Terms & Conditions
1. General Terms
1.1. "We" and "us" means Computime IT Solutions Ltd
1.2. "You" means the person (which includes a company or other business) contracting to obtain goods, software licences or services from us
1.3. Where "you" means more than one person, each one of you is responsible, individually, for each of the obligations of all of you under this agreement.
1.4. We agree to supply you with the goods, software licences or services (as appropriate) set out in the quotation for the price set out on the quotation and subject to the terms set out in it, in this agreement and in the other documents referred to in this agreement and the quotation (as appropriate).
1.5. In this agreement, "staff" includes employees and sub-contractors.
2. The Agreement
2.1. These terms and conditions (including documents specifically referred to in it) are the whole of the terms and conditions governing the agreement between us, unless we both agree to any amendments in writing.
2.2. "this agreement" means (in reverse order of precedence):
2.2.1. these terms and conditions;
2.2.2. terms and conditions referred to in this agreement;
2.2.3. documents explicitly referred to in the quotation;
2.2.4. the quotation; and
2.2.5. amendments to the agreement agreed in writing.
2.3. Where there is any conflict between different parts of the agreement, the item having the higher order of precedence referred to in clause 2.2 above shall prevail.
2.4. You confirm that you have told us everything you know or suspect which may make the goods or services significantly more difficult for us to make or carry out.
2.5. You confirm that you have checked the specifications set out in and attached to the quotation and that they are correct.
2.6. We cannot be held responsible for any statements we have not confirmed in writing. ((In the past there have been situations where customers who have received quotations from a number of different companies have become mistaken as to which sales person from which company said what. To avoid this, if you have any specific requirements relating to your order, you must ensure that those requirements have been confirmed in writing between us).). If the quotation contains that statement, or explicitly refers to the document containing it, then it becomes part of the contract and we will accept responsibility for it (subject to these terms and conditions).
2.7 This agreement supersedes and prevails over all terms purported to be imposed or incorporated by you unless otherwise expressly agreed in writing.
3. Definitions
3.1. Any rule of interpretation that is contrary to common sense does not apply to this agreement. Any part of these terms and conditions, or any terms and conditions referred to in it, which is in italics (like this) is not part of it but is simply a comment.
3.2. Paragraph headings are merely a guide and are not intended to be a part of this agreement.
4. Quotations
4.1. A quotation does not amount to a contractual offer and is an indication that we may be willing to supply at a particular price.
4.2. In any event, no quotation is valid after 30 days of its issue.
4.3. No price specified in the quotation or elsewhere includes VAT or other applicable taxes or duties unless specifically stated.
5. Amendments to Specifications and Cancellation
5.1. We may alter the specifications of goods, software or services from time to time so long as the alteration does not make the goods, software or services any worse. If you ask us to alter the specification after the order has been placed we may consider doing so (at our discretion) but you are warned that this may entail an increase in the price. A variation to the specification (including the price) (as opposed to a variation to the contract) is only valid where signed by one of our authorised sales staff.
5.2. If, after you have placed an order, you wish to cancel it, we may do so at our discretion but if we agree, subject to your paying us our anticipated loss on cancellation (including loss of reasonable profit).
6. Rights of others and Permissions
6.1. If we have agreed that we are to do anything under this agreement on your instructions, and as a result we are in breach of any rights of anyone else (or anyone else threatens us with proceedings for breach of their rights) you agree to indemnify us against any loss we may suffer, including legal costs, in defending or resisting the proceedings or claim, or settling the proceedings or claim on legal advice. Your obligations under this clause will remain after the rest of this agreement has terminated whatever the reason for termination.
6.2. If you come across any circumstances which may lead to a claim under clause 6.1 above, you agree to tell us about them as soon as possible.
6.3. If, as a result of such a claim or threat, we decide that it is no longer commercially sensible to proceed with your order, we may cancel the order in accordance with the provision set out below.
6.4. We will use reasonable commercial effort to ensure that nothing we do under this agreement will infringe the rights of others. If we do anything under this agreement which results in an actual or threatened infringement of the rights of anyone else (provided that is was something which was not done at your explicit direction or with your specific consent) ("a claim") we may at our option:
6.4.1. obtain a licence or settlement of the claim (at no cost to you);
6.4.2. perform our obligation in a different way to avoid the claim;
6.4.3. cancel the agreement under clause 10.
7. Intellectual Property
7.1. You acknowledge that material of any nature which we provide you with, either under this agreement or otherwise (for example, quotations or other pre-contractual material) may contain intellectual property which is either our property or licensed to us (including copyright, trade marks, registered and unregistered designs and patents). Nothing in this agreement is intended either
7.1.1. as a licence for you to use such intellectual property
7.1.2. or as a transfer of such intellectual property unless explicitly stated in writing.
8. Sub Contracting
8.1. We may sub-contract any of the services we have agreed to provide under this contract at our discretion.
8.2. Where we have sub-contracted any services to a third party specified by you, we shall not be liable for any non-performance of that third party's obligations, and for the purposes of this agreement, any delay or hindrance caused by or attributable to that third party shall be considered to have been caused by you.
9. Third Party Recommendations and Statements
9.1. As part of carrying out our obligations under this agreement we may recommend or suggest that someone else carry out work, or supply goods, software or services. By making this recommendation or suggestion, we do not guarantee that work or those goods, software or services. However, we accept responsibility for the recommendation or suggestion if, at the time we made it, a professional in our position and based on what you have told us and in the circumstances, would not reasonably have made that recommendation or suggestion. In that case, we will accept liability as if we did the work or supplied the goods, software or services ourselves, and subject to these terms and conditions, provided that you let us have full conduct of any claim against the third party in question.
9.2. Where we provide goods or software originally manufactured or developed by others, we may pass on to you statements or representations about such software or goods. We pass this information on to you in good faith but we do not undertake to verify them or guarantee their accuracy, and exclude liability except to the extent that we may have been negligent in passing on such information to you.
10. Unusual Circumstances
10.1. If circumstances arise which are largely beyond our control, and which make it no longer commercially sensible for us to continue your order, we may cancel it on the terms set out below:
10.2. If we decide to cancel it
10.2.1. we shall give you notice, and we shall not be responsible for any loss to you which arises because of that decision (although any other rights which you may have arising before we made that decision will still stand); and
10.2.2. you will pay us a reasonable sum in relation to the proportion of your order which we have fulfilled.
11. Consequential Loss and Our Liability
11.1. UNLESS EXPLICITLY STATED IN THE QUOTATION IN WRITING, WE DO NOT ACCEPT LIABILITY FOR CONSEQUENTIAL LOSS OF ANY KIND AND WE HAVE PRICED THIS CONTRACT ON THE BASIS THAT CONSEQUENTIAL LOSS HAS BEEN EXCLUDED. IF YOU WISH US TO BEAR LIABILITY FOR CONSEQUENTIAL LOSS WE MAY CONSIDER DOING SO BUT ON THE BASIS THAT THE CONTRACT PRICE WILL HAVE TO BE INCREASED TO COVER THE INCREASED RISK, WHETHER OR NOT WE CHOOSE TO BEAR IT THROUGH OUR INSURANCE. Consequential loss includes (but is not limited to) loss of profits, loss of anticipated savings, loss of business, loss of revenue, loss of goodwill and costs of loss of staff time.
11.2. If we have not accepted a different level of liability our entire liability under this contract shall be limited to the value of the goods, software licences or services provided under it (or, in the case of a breach of any of the terms referred to in clause 16 below, the appropriate level of liability contained within those terms).
11.3. Nothing at all in this agreement (which includes all documentation referred to in it) is designed or intended to reduce or restrict our liability for the death of or personal injury to anyone caused by our negligence or the negligence of anyone for whom we are responsible (which may include, for example, our employees, sub-contractors or agents) or for fraud or wilful deceit.
12. Payment of Price
12.1. You must pay us the price specified in the quotation, including any VAT which may apply in accordance with the terms and on the dates contained in it (if no terms or dates are referred to, the price is payable immediately on acceptance of order. Payment may be paid by Cheque or Credit Card, made payable to Computime IT Solutions Ltd.
12.2. If you fail to pay the whole or part of any sum you owe to us (whether because of this agreement or not) by the time it comes due for payment, all sums which you owe us (whether under this agreement or not) will become due for payment immediately, and we may issue court proceedings against you to recover them without giving you any further notice.
12.3. You must pay us the whole of the amount due, and may not set off or deduct anything from this amount without our written permission.
12.4. The Parties agree that any sums due under this Agreement will be subject to interest at the Statutory Rate of Interest applicable under the Late Payment of Commercial Debts (Interest) Act 1998 (irrespective of whether such Act applies to this agreement).
12.5. We may assign the benefit of any debt owed to us by you to any third party at any time.
13. Guideline Definitions and Payment Terms
13.1. No terms specified: payment is due in full on acceptance of the order;
13.2. "30 days": payment is due on the 30th day after you placed the order;
13.3. "On installation": payment is due in full immediately upon practical completion (as defined below) of installation
13.4. "Lease": means that
13.4.1. (in the case of hardware) title to hardware does not pass to you (unless explicitly stated in, and subject to the terms of, the order);
13.4.2. (in the case of software) the licence is a periodic licence and periodic fees are payable under the provisions of the licence agreement.
13.5. If we have undercharged you the VAT that should have been due on an order, you agree to pay us the outstanding VAT immediately. If we have overcharged you VAT, we shall refund you the amount that you have overpaid.
13.6. "Practical completion" means that software or installation has been completed to the extent that it is reasonably possible to use it for normal contemplated use, save only for any minor snagging items (which will usually be dealt with under the terms of our warranty).
14. Time for Performance
14.1. Whenever we agree to do anything by or on a particular time, we will try to do it on or at that time, but we shall not be liable for late performance
14.1.1. if late performance is reasonably beyond our control (it is due, for example, to the failure of our own suppliers to perform); or
14.1.2. unless you have given us a notice allowing us a reasonable time to perform and we have failed to do so (in any event, clause 10 above applies).
15. Indemnity
15.1. Where we do anything for you on your premises (or premises under your control), you agree to indemnify us and keep us indemnified against any loss, damage claim or expense arising out of the physical injury of or death of any of our staff arising in any way from our performance of this agreement and arising by reason of the provision of defective equipment, your failure to provide a safe system of work or otherwise by reason of any negligent act or default on your part or on the part of your servants or agents or other person on your premises.
16. Incorporation of Other Terms
16.1. Depending upon what is supplied under this agreement, our following additional standard terms (in force at the time of this agreement) apply:
16.1.1. Standard Terms for the Supply of Hardware
16.1.2. Standard Terms for the Supply and Licensing of Software (for third-party software or standard software developed by us)
16.1.3. Standard Terms for the Development of Software (for software developed or customised by us)
16.1.4. Standard Terms for the Supply of Consultancy
16.1.5. Standard Terms for the Supply of Hardware Maintenance
16.1.6. Standard Terms for the Supply of Software Support
16.2. Definitions in this agreement also apply to the additional standard terms.
16.3. In each case, copies of the above standard terms are available on request.
17. Assignment
17.1. Except as is specifically referred to in this agreement, neither of us may assign the benefit or the obligations of any part of this agreement without the written consent of the other.
18. Notices
18.1. Where any notice is required to be given under this agreement (where the word "notify" is used it means "to give notice"), it is validly given if it is in writing and sent by fax, email or prepaid first-class or airmail post to the correct fax number, email address or postal address of the relevant party as contained on the quotation or prior correspondence, or subsequently notified to the other party. Where sent by fax, the notice is deemed to have arrived immediately upon sending. If sent by email, the notice is deemed to have arrived 24 hours after it was sent (unless within those 24 hours the sender has been sent an email saying that the notice has not been delivered). If sent by post, the notice is deemed to have arrived on the third working day after the day on which it was sent (if sent to an address within the UK), the fifth working day (if sent to an address within the European Economic Area) or on the seventh working day (anywhere else in the world) (unless in each case within that period it was returned as undelivered).
19. Confidentiality and Poaching
19.1. You may have or obtain confidential information (which includes but is not limited to information relating to our products, planned products and details of our marketing, support and internal structures and similar information relating to our suppliers or related products). You agree that you will use confidential information solely for the purposes of this agreement and for evaluating future products or services supplied by us, and that you shall not disclose, whether directly or indirectly, to any person any confidential information unless the disclosure is required to carry out this agreement. Before you make any disclosure to another person, you must obtain from them a binding commitment to keep that information confidential. That commitment must be at least as effective as this obligation is on you.
19.2. The clause above shall not prevent you from disclosing or using any information
19.2.1. which is public or becomes public through no fault of your own or of those to whom you have entrusted it;
19.2.2. or to the extent permitted by law.
19.3. We agree to be bound by the obligations contained in the above clauses 19.1 and 19.2 likewise in relation to any confidential information which you may give us.
19.4. You agree not to solicit or engage any of our staff (with whom you have had contact) directly or indirectly within at least six months after the termination of any contract between you and us.
19.5. You agree that for at least the six month period set out above you will not introduce or identify any of our staff to any other person with a view to that other person engaging our staff member.
20. Termination on Insolvency
20.1. If, in our reasonable opinion, it appears that you will be unable to meet the payment terms we have agreed we may terminate this agreement immediately without notice, in which case we shall no longer be under any obligation to do any work for you under it, and you immediately become liable to pay us all sums which you owe us (whether or not under this agreement and whether or not they have become due). In addition, you will be liable to pay us a reasonable sum representing the work we have done up to the date of termination, which shall be calculated to include the loss of anticipated profit for the whole of the contract.
20.2. For the avoidance of doubt, it shall be reasonable for us to terminate under clause 20.1 above if any of the following occurs:
20.2.1. the presentation of a bankruptcy, or winding-up petition against you or a moratorium for a company voluntary arrangement by you;
20.2.2. the appointment of a manager, receiver or administrator over all or any part of your assets;
20.2.3. the commencement of any winding-up process (other than for the purposes of reconstruction or amalgamation);
20.2.4. the entry into or proposal of any form of arrangement or composition with your creditors; or
20.2.5. anything analogous to the above sub-sub-clauses in any jurisdiction.
21. Law
21.1. This agreement shall be governed and construed in accordance with the Laws of England and shall be subject to the exclusive jurisdiction of the English Courts.
22. Waiver
22.1. If we fail to rely on our strict legal rights under this agreement, that shall not prevent us from relying on those rights at any time in the future.
23. Disputes
23.1. If any dispute or grievance arises between us out of this agreement, before taking any further action (such as requiring us to remedy an alleged fault within a specific time), we each agree that it will be discussed by staff members of each of us who are most closely involved with the running of the contract. If that does not produce a resolution, the problem will be escalated to the respective superiors of each staff member respectively, until the problem is dealt with. Only if the respective Chief Executive Officers of each party cannot reach agreement on the dispute will the matter be taken to the next stage as set out below.
23.2. Should the escalation mechanism set out in 23.1 above fail to be effective, before taking any other action we each agree to submit in good faith to a mediation procedure administered by ADR Group of Bristol, or, failing that, such other similar organisation as the President for the time being of the Law Society of England and Wales shall nominate. Unless we agree otherwise, the costs of the mediation shall be borne equally by each of us.
24. Rights of Third Parties
This Agreement is not intended to convey benefit on any person not a party to it and accordingly the provisions of the Contracts (Rights of Third Parties) Act 1999 are excluded.
25. Data Protection
We will take all reasonable steps necessary to uphold your rights to protect your personal data, including the right to obtain information on, update or amend any personal data on you which we hold but we will not pass on any personal data without your prior written consent. Where we are acting as a Data Controller as defined the Data Protection Act 1998 we agree to maintain the security of such Personal Data as are provided to us by you pursuant to such a relationship to an extent equivalent to that required by the Security Principle of that Act.
You undertake to obtain all consents, permissions and notifications necessary to enable you to provide us with personal data about you, and your staff, contractors, suppliers and customers which are reasonably necessary for us to perform this agreement, including such consent as is necessary to administer this agreement including collecting and enforcing payments due under it including passing such information to our financiers for administration and related purposes.
Standard Terms for the Supply and Licensing of Software
These terms are supplemental to the General Terms and Conditions of Software Hardware and Consultancy Supply (the "General Terms")
1. Agreement to Supply
1.1. We agree to supply the software (other than custom software) referred to in the quotation subject to the General Terms and these terms and conditions at the price set out in it ("supply" in this Agreement means "to grant a non-exclusive licence and (if appropriate) provide with media").
1.2. Custom software means any software which we have written for you at your request. The supply of custom software is governed by our Standard Terms for the Development of Software
1.3. Nothing in this agreement is intended to pass the title in any copyright or other intellectual property to you, and any right which you gain to use intellectual property is obtained solely either under our core licence agreement a copy of which is available on request or under the licence agreement applicable to the software in question.
2. Payment of Licence Fee
2.1. You agree to pay the licence fee contained in the quotation in accordance with the payment terms set out in it.
2.2. If the licence fee is a periodic licence fee, you agree to pay each periodic fee promptly in accordance with the terms of payment set out in the quotation. If it states in the quotation that you are to pay by direct debit, you authorise us to deduct relevant payments from the appropriate bank account in accordance with the direct debit rules in force from time to time.
2.3. If you fail to pay any periodic fee due, your licence to use the software is terminated. You are warned that there may be disabling devices in the software which prevent its further use while you remain unlicensed.
3. Media Warranty
3.1. If we supplied the software on magnetic, electronic or optical media, we warrant the media (as opposed to any programs or data which the media may contain) to be free from transcription errors or defects in manufacture for [one year] from the date we supply it. During the warranty period, we will repair or replace (at our option) the media with media not containing the transcription error or defect, provided that you have not abused it and you are not in breach of any of your obligations to us or to any licensor of the software or data contained on the media. This warranty is in addition to any rights you may have by law.
4. Specification
4.1. Unless it states in the quotation that we specified the software we shall not be liable for the software's fitness for any purpose or satisfactory quality, and we expressly exclude all other liability for warranties, whether express or implied, except as follows. We warrant only that it complies with its description as set out in the quotation.
4.2. Where it states on the quotation that we specified the software we shall not be liable for any failure of the software except as otherwise set out in this agreement, or to the extent that no reasonable computer professional in our position, and based on what you have told us and in the circumstances, would have specified that software at the time we specified it.
5. Software Licensed By Us
5.1. This clause refers to software ("our software") of which we own the copyright, or to which we have been granted a right to sub-license.
5.2. Where we supply you with our software, it is on the following terms:
5.2.1. We supply it to you under the terms of our core software licence, (a copy of which is available on request) and which is incorporated in this agreement.
5.2.2. We warrant that it complies substantially with its description and functions substantially in accordance with the documentation (if any) supplied with it.
5.2.3. We undertake to correct by patch or new release (at our option) that part of it which does not comply, so long as you notify us (with details) of the non-compliance within 90 days, PROVIDED THAT the non-compliance has not been caused by any modification, variation or addition to the Software not performed by or authorised by us, or is caused by the incorrect use, abuse or corruption of the Software or by use of the Software on equipment other than the Equipment specified in the Specification.
5.2.4. Except as otherwise provided in this clause, we make no other representations or warranties and expressly exclude them whether express, implied, statutory or otherwise especially as to quality or fitness of the Software for any particular purpose.
5.3. If we supply you with upgrades or patches, those upgrades or patches become incorporated into the Software and they are covered by this agreement and the core software licence. New releases are also covered by this agreement and the core software licence. Your licence to use or transfer any of Our Software ceases as soon as we have supplied you with an upgrade or new release.
5.4. You agree that you will comply in all respects with the terms of the core software licence and that if you fail to comply with those terms, or any term of this agreement then we may terminate the licence.
5.5. You agree that you will keep up-to-date and accurate details of the location of all copies of the Software.
5.6. You agree to keep details of any assignment of the software licence (and only to assign it in accordance with the licence) and to notify us of details of any assignee. Upon valid assignment of the software you agree to destroy all copies of the Software which remain in your possession or under your control. You should note that any assignment of the software only assigns a bare licence to it to the assignee. The assignee, if it wishes any further rights in relation to the software (for example, the right to bug-fixes, maintenance or support) will have to re-register the software with us, for which an administration fee will be required.
5.7. You agree to ensure that our copyright notice is faithfully reproduced on all copies you make of all or any part of the Software.
5.8. You acknowledge that the Software is not (unless specified specifically in the quotation) designed for mission-critical or safety-related purposes and should not be used in any such context.
5.9. Where we supply Our Software to you, you confirm that you have received adequate demonstration of it prior to entering into this agreement.
5.10. We confirm that we have used commercially reasonable efforts to scan Our Software for viruses prior to delivery to you but that you are ultimately responsible for implementing virus checking on your own equipment.
5.11. You acknowledge that the terms on which the Software is supported and licensed prohibit the use or installation of unnecessary software on the system. This includes games, novelty programs, desktop enhancement products and most shareware, programs from magazine cover disks or downloaded from the internet. They also prohibit you from making changes to the configuration of the operating system or software (e.g. by using the control panel or registry editors).
6. Software Licensed by Third Parties
6.1. We do not provide any warranties in relation to software licenced by third parties ("Third Party Software") and we exclude all liability for loss, damage or claims caused by such software as far as permitted by law, except:
6.1.1 where you have ordered the Third Party software independently (without advice from us) we shall be liable only for any direct loss attributable to our failure to supply software which complies with your order, but not for (late delivery or) any consequential loss as defined in Clause 11 of the General Terms);
6.1.2 where the Third Party software has been recommended to you by one of our qualified consultants to fulfil a specific function or purpose, we accept responsibility for direct loss attributable to the Third Party software failing to fulfil that specified function or purpose, but only to the extent set out in Clause 9 of the General Terms.
6.2. Other than in the circumstances set out in clause 7, we shall be under no further liability to you in respect of that software.
6.3. If we decide that it is not practical to obtain replacement software or a valid licence in accordance with clause 7, this constitutes "unusual circumstances" referred to in clause 10 of the General Terms.
6.4. You agree to comply with the terms of any licence relating to Third Party software which will, unless stated otherwise in the quotation, be on the supplier's standard terms and (if applicable to that software) you authorise us to act as your agent to enter into such licence agreement with the third party on your behalf. We make no representation or warranty relating to the terms and effect of such third party licence or licence agreement.
7. Software Warranty
The following Warranty is applicable only to Our Software:
7.1. You acknowledge that software in general is not error-free and agree that the existence of such errors shall not constitute a breach of this Licence
7.2. If you discover a material error which substantially affects your use of the Software and you notify us of the error within [90 days] from the date of delivery of the software (the "warranty period") we shall at our sole option either refund the licence fee or use all reasonable endeavours to correct by patch or new release (at our option) that part of the Software which does not comply PROVIDED THAT the non‑compliance has not been caused by any modification, variation or addition to the Software not performed by us (or with our authorisation) or is caused by its incorrect use, abuse or corruption of the Software caused by third party software.
7.3. Our warranty in relation to the functioning of the Software (including, if applicable, the dongle) on any particular system only applies where the System complies with our hardware and software compatibility list as issued from time to time
7.4. To the extent permitted by the applicable law, and subject to clause 7.5 below, the we disclaim all other warranties with respect to the Software, either express or implied, including but not limited to any implied warranties of merchantability or fitness for any particular purpose.
7.5. YOU ACKNOWLEDGE THAT THE SOFTWARE IS NOT DESIGNED FOR USE IN MISSION- OR SAFETY-CRITICAL SITUATIONS. [THE ALGORITHMS UPON WHICH IT IS BASED MAY INVOLVE STATISTICAL AND OTHER METHODS OF INTERPOLATION AND EXTRAPOLATION AND VISUAL OR OTHER OUTPUT WHICH IT MAY PRODUCE ARE THEREFORE LIABLE TO ARTEFACTS AND ERRORS INHERENT IN THE USE OF THESE TECHNIQUES. OUTPUT FROM THE SOFTWARE SHOULD ALWAYS BE CONFIRMED AND VERIFIED IN ACCORDANCE WITH RECOGNISED SCIENTIFIC AND EXPERIMENTAL PRACTICE]. WE MAY BE PREPARED TO CREATE A SPECIALLY MODIFIED OR RE-WRITTEN VERSION OF THE SOFTWARE AT EXTRA COST TO COMPLY WITH ANY SAFETY OR MISSION-CRITICAL REQUIREMENTS.
7.6. Although we do not warrant that the Software is free from all known viruses we have used commercially reasonable efforts to check for the most commonly known viruses prior to packaging. You are solely responsible for virus scanning the Software.
7.7. You acknowledge that there may be disabling programs or devices in the Software designed to inhibit licence infringement.
7.7.1. Provided that the dongle has not been mal-treated we will, if the dongle fails, at our option, and at any time during the currency of this Licence either
7.7.1.1.replace the dongle; or
7.7.1.2.replace the Software with a version of identical or enhanced functionality but which is not protected by a dongle or is protected by an alternative dongle.
8. Unlicensed Software
8.1. You acknowledge that it is illegal to use unlicensed software and you hereby grant us permission to enter any of your premises where we reasonably suspect that unlicensed copies of our Software are located and seize and/or delete them.
9. Our Liability
9.1. We shall not be liable to you for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the Licence, the Software, its use or otherwise, except to the extent that such liability may not be lawfully excluded under the applicable law.
9.2 Notwithstanding the generality of 9.1 above, we expressly exclude liability for indirect, special, incidental or consequential loss or damage which may arise in respect of the Software, its use, the Systems or in respect of other equipment or property, or for loss of profit, business, revenue, goodwill or anticipated savings unless we have explicitly agreed to accept increased liability in the quotation.
9.3If any exclusion contained in this Agreement shall be held to be invalid for any reason and we become liable for loss or damage that may lawfully be limited, that liability shall be limited to the licence fee which you paid for the Software over the course of the twelve months immediately prior to the event (or omission) giving rise to the liability;
9.4 We do not exclude liability for death or personal injury which arises as a result of our negligence or the negligence of our employees, agents or authorised representatives and for which we are responsible, or for fraud or wilful deceit.
10. Configuration of Software
10.1. You acknowledge that the configurations or arrangements of software or data which we have installed may be subject to copyright (and in the absence of our written permission) you are granted no licence to copy that configuration or arrangement onto any system other than the one on which we installed the software.
11. Termination
11.1. We may terminate this agreement in respect of all or any of the licences granted under it at any time if:
11.1.1. You are in breach of any of the terms of this agreement between us;
11.1.2. You are (or any subsequent transferee is) in breach of the terms of any licence granted under it;
11.1.3. (if a licence granted hereunder is a periodic licence) we give you notice before renewal of that licence that we do not wish to renew it;
11.2. If we terminate this agreement or any licence, that termination shall not affect the rights or obligations of the parties which accrued prior to termination.
12. Compliance with Instructions
12.1. You agree to comply with all reasonable instructions regarding the use of the software, and to provide adequate training to all operators of it.
12.2. You will ensure that the system on which the software is running:
12.2.1. is and continues to be well and adequately maintained;
12.2.2. is and continues to be contained in the hardware compatibility lists of all suppliers of software intended to be running on that system and in respect of that software;
12.2.3. is and continues to be within the hardware and performance specifications required by the suppliers of all software running on the system; and
12.2.4. does not contain any extraneous programs, data or hardware which are not reasonably necessary for the use of the system for its intended purpose (this includes most software downloaded from the internet or contained on magazine cover disks or any games).
12.3. You agree to install patches and upgrades to all software supplied under this agreement (or reasonably necessary for the functioning of software supplied under this agreement) as and when we notify you to do so. You are warned that there may be charges for these patches or upgrades.
12.4. You agree to maintain a comprehensive log of all faults or problems encountered in running the software and agree to allow us to see it on request.
13. Installation
13.1. Unless explicitly stated on the quotation, we do not agree to install or configure the software.
13.2. Where we have agreed to install the software:
13.2.1. You will ensure that you have taken a full backup of all programs and data on the equipment before installation;
13.2.2. You will ensure that the equipment (and, is appropriate, operating system and other support software) is of a suitable specification for the software;
13.2.3. We do not agree to convert or input data unless explicitly agreed in the quotation in which case:
13.2.3.1. You agree to ensure that the data to be converted are in a suitable format to be converted as specified in the quotation;
13.2.3.2. You agree to check the integrity of data both before and after the conversion process;
13.2.3.3. You acknowledge that certain aspects of the data may not be amenable to conversion.
Standard Terms for the Development of Software
These terms are supplemental to the General Terms and Conditions of Software Hardware and Consultancy Supply (the "General Terms")
1. Agreement to Develop
1.1. We agree to develop the custom software referred to in the quotation at the price set out in it subject to the General Terms and these terms and conditions ("the development agreement")
1.2. You agree to provide us with reasonable assistance and (if set out in the quotation, facilities) for the development, testing and installation of the software and its associated data.(Note: testing and development work may require down-time on your equipment. If this is the case, unless we have priced for out-of-hours development, we shall expect you to schedule for reasonable amounts of down-time during working hours).
2. Definitions
2.1. "Software" means the custom software described in the quotation including any operator manuals relating to it, to be developed by us in accordance with this agreement.
2.2. "Equipment" means the computer hardware equipment specified in the quotation upon which the Software is to operate when complete.
2.3. "Specification" means the specification approved in accordance with clause 4 below.
2.4. "Development Work" means the development work required to produce the Software based upon the Specification.
2.5. "Development Timetable" means the timetable upon which the Development Work is proposed to take place which will accompany the Specification (or is amended from time to time in accordance with the terms of this Agreement).
2.6. "Acceptance" or "Accepted" means acceptance of any part or the whole of the Software which has successfully passed the acceptance tests specified in the Specification.
3. Duration
3.1. This development agreement shall continue until the Software is Accepted unless either party gives to the other not less than [2] months prior written notice, subject always to prior termination as specified in this agreement. Termination of the development agreement shall not affect termination of other elements of this agreement as set out in the quotation.
4. Preparation and Approval of Specification
4.1. Where the quotation requires that a detailed specification is drawn up:
4.1.1. We will draw up the Specification for the Software in accordance with your requirements as stated in the outline specification referred to in the quotation ("the Outline Specification") and shall give it to you for approval.
4.1.2. You will notify us of any amendments required within 21 days after you receive the Specification (or revised Specification, as the case may be). If you do not notify us of any amendments within the 21 day period, we may take it that the specification is approved and we will begin work on the Software as set out below
4.1.3. If you notify us of any amendments within the 21 day period, we will amend the Specification in accordance with those amendments, but only to the extent that the amendments are within the Outline Specification. We will then let you have the new Specification for your approval.
4.1.4. If your amendments to the Specification extend beyond the Outline Specification, we shall (if we agree to do that work) charge you at our normal current rate for doing so. We may also make any consequential changes to the Timetable.
4.2. Upon approval of the Specification, we will start the Development Work.
5. Testing, Acceptance and Delivery of the Software
5.1. Upon completion of the Development Work the acceptance tests will be run as specified in the Specification.
5.2. Upon passing the acceptance tests, the Software or that part ("module") of it (if not the whole) shall be considered Accepted and we shall deliver it to you together with documentation sufficient to enable a reasonably skilled operator to install and use the Software on the Equipment.
5.3. Unless explicitly stated on the quotation, we do not agree to install or configure the Software.
5.4. Where we have agreed to install the Software:
5.4.1. You will ensure that you have taken a full backup of all programs and data on the Equipment before installation;
5.4.2. You will ensure that the Equipment (and, is appropriate, operating system and other support software) is of a suitable specification for the Software;
5.4.3. We do not agree to convert or input data unless explicitly agreed in the quotation in which case:
5.4.3.1.You agree to ensure that the data to be converted are in a suitable format to be converted as specified in the quotation;
5.4.3.2.You agree to check the integrity of data both before and after the conversion process;
5.4.3.3. You acknowledge that certain aspects of the data may not be amenable to conversion.
5.5. We will use all reasonable endeavours to complete and deliver the Software in accordance with the Development Timetable, but we will not be liable for its failure so to do nor will it be in breach of this Agreement solely by reason of that failure.
5.6. If you fail to take delivery of any part, module or the whole of the Software in accordance with the terms of this Agreement or if either of us terminates this Agreement for whatever reason, you will be liable to pay to us all sums due for time spent and materials used to date, in addition to any and all costs and expenses incurred by us as a result of your default, termination or of rescheduling delivery to you at a later date.
6. Cost of Development Work
6.1. Unless otherwise agreed, any development work outside the Specification will be costed on a time and materials basis using our standard hourly charge-out rates in force at the time the work is done. If you agree that we should do work on this basis, it will be covered in all respects by this Agreement.
7. Software Support and Enhancement
7.1. This Agreement does not include support or enhancement of the Software unless specifically stated in the quotation, in which case our Standard Terms for the Supply of Software Support apply (a copy of which is available on request).
8. Warranty
8.1. We warrant to you that the Software, on delivery to you, will conform substantially with the Specification.
8.2. We undertake to correct by patch or new release (at our option) that part of the Software which does not comply, so long as you notify us (with details) of the non-compliance within 90 days from the date of Acceptance, PROVIDED THAT the non-compliance has not been caused by any modification, variation or addition to the Software not performed by or authorised by us, or is caused by the incorrect use, abuse or corruption of the Software or by use of the Software on equipment other than the Equipment specified in the Specification. If you have a maintenance agreement covering the Software, the maintenance agreement takes precedence over this clause.
8.3. Except as otherwise provided in this clause, we make no other representations or warranties and expressly exclude them whether express, implied, statutory or otherwise especially as to quality or fitness of the Software for any particular purpose.
8.4. Although we do not warrant that the Software shall be free from all known viruses we have used commercially reasonable efforts to check for the most commonly known viruses prior to delivery but you are solely responsible for virus scanning the Software.
8.5. We do not warrant that the Software is error free, but warrant that it will function substantially in accordance with the Specification and agree to correct notified errors as set out above.
8.6. We warrant that the disabling devices (if any) in the Software are only intended to be used in the event that you are in breach of this Agreement.
8.7 We warrant that we are lawfully able to grant the rights purported to be granted by way of licence hereunder within the United Kingdom PROVIDED THAT
8.7.1 This warranty does not extend to anything which we have undertaken explicitly at your instruction.;
8.7.2 Unless agreed otherwise in writing, this warranty does not extend to registered intellectual property rights (for example patent, registered trademark and registered design) whether within the United Kingdom or elsewhere on the basis that we have not built into the price the cost of patent and equivalent searches and clearances prior to commencing work.
8.8 Prior to claiming under the warranty contained in clause 8.7 above, you agree to permit us a reasonable opportunity to remedy the breach by (at our option) obtaining a licence or settlement with any claimaint or re-writing any part of the Software so that it no longer infringes (provided that such re-write does not cause the software to fall materially outside the specification)
9. Our Liability
9.1. Subject to clause 9.2, our maximum aggregate liability under this Agreement shall be limited to the cost of the Development Work. In particular, in the event that any exclusion contained in this Agreement shall be held to be invalid for any reason and we become liable for loss or damage that it may otherwise have been lawful to limit, such liability shall (unless otherwise agreed in writing) be limited to the cost of the Development Work.
9.2. We do not exclude or restrict liability for death or personal injury where that liability arises as a result of our negligence or negligence for which we are liable or liability for fraudulent mis-statement
10. Copyright, Patents, Trade Marks and Other Intellectual Property Rights
10.1. You agree that this agreement is not intended to transfer any intellectual property rights to you and all such rights are granted to you solely by licence and you agree to accept and be bound by the terms of our standard form of Core Software Licence a copy of which is available on request, and subject to the payment of licence fees (if applicable).
10.2. You acknowledge that all copyright, trade marks, trade names, patents and other intellectual property rights created, developed, subsisting or used in or in connection with the Software are and shall remain our sole property (or the property of their respective owners).
10.3. You agree that you will not, during or at any time after the completion, expiry or termination of this Agreement in any way question or dispute our ownership of or right to use those intellectual property rights.
10.4. If new inventions, designs or processes evolve in performance of or as a result of this development agreement, you acknowledge that they shall be our property unless otherwise agreed in writing.
10.5 The Software may incorporate code or components which are licensed to us by third parties, or for which we procure a licence for you (for example, run-time modules). You agree to abide by the terms of such licences which shall, unless we have agreed otherwise at the outset, be royalty free. Except to the extent that it was commercially unreasonable for us to have used such third party code or components, we shall not be liable for and claim by a third party that use of such code or component.
11. Licensee's Obligations
11.1. You agree that you will keep up-to-date and accurate details of the location of all copies of the software.
11.2. You agree to keep details of any assignment of the software licence (and only to assign it in accordance with the licence) and to give us details of any assignee. Upon valid assignment of the software you agree to destroy all copies of the Software which remain in your possession or under your control.
11.3. You agree to ensure that our copyright notice is faithfully reproduced on all copies you make of all or any part of the Software.
11.4. You acknowledge that the Software is not (unless specified specifically in the quotation) designed for mission-critical or safety-related purposes and should not be used in any such context.
Standard Terms for the Supply of Consultancy
These terms are supplemental to the General Terms and Conditions of Software Hardware and Consultancy Supply (the "General Terms")
1. Agreement to Supply
1.1. We agree to provide you with the consultancy ("consultancy") services detailed in the quotation at the price set out in. ("the consultancy agreement"). The quotation will have appended to it and set out terms of reference which define the scope of the consultancy.
2. Standard of Care
2.1. We agree to perform the consultancy with the care and skill to be expected of a competent consultant carrying out work of a nature similar to the consultancy, and in all the circumstances surrounding it.
2.2. Unless it explicitly states in the terms of reference that we are providing independent consultancy services, consultancy may involve advising on solutions provided by suppliers with whom we have a relationship. However, even where we are not providing independent consultancy services, our advice will take into account your needs and requirements (as you have told them to us).
3. Charges
3.1. Unless otherwise stated, our charges do not include hotel accommodation, subsistence or travel costs for staff which we supply to you which will be charged to you (with the addition of VAT, if appropriate) at cost.
4. Additional Services
4.1. We may be prepared to carry out additional consultancy services for you but these will be carried out on a time and materials basis at our usual hourly rate.
5. Intellectual Property
5.1. Where we create any intellectual property at your request or pursuant to the provisions of this agreement, you are granted a limited licence to use that intellectual property for your own internal purposes. In particular
5.1.1. You may not adapt or amend such intellectual property without our written permission (except to the extent permitted by law);
5.1.2. You may not re-use any part (as opposed to the whole) of such intellectual property or incorporate it into any other work without our permission;
5.1.3. The licence will terminate immediately on notice from us if you are in breach of any of its terms
5.1.4. If the Quotation has reference to other licence terms relating to any intellectual property created inder this Agreement, the terms of that licence supersede the terms of the licence granted by this clause 5.
5.2. This agreement is not intended to transfer the title to any intellectual property to you and your licence to use any intellectual property as referred to in clause 5.1 above is:
5.2.1. dependent upon your having paid all outstanding sums due to us under this agreement or otherwise;
5.2.2. dependent upon your accepting an obligation to reproduce faithfully our copyright symbol or legend on all copies of the intellectual property which you make; and
5.2.3. not sole or exclusive.
6. Provision of Assistance
6.1. You agree to provide us with all reasonable assistance and facilities to enable us to carry out the consultancy, including:
6.1.1. (if the consultancy is to take place on your site) providing our staff with suitable office space and facilities;
6.1.2. (if the consultancy includes presentation), providing us with a suitable room to perform the consultancy, together with appropriate audio-visual equipment and refreshments.
6.1.3. providing us with access to the hardware, software and data which we reasonably require to carry out the services;
6.1.4.
6.1.5. carrying out our reasonable instructions relating to the installation, running and testing of any software on your computer equipment. (note: it may be that the consultancy work requires downtime on your equipment. If this is the case, unless we have priced for out-of-hours consultancy, we shall expect you to schedule for reasonable amounts of down-time during working hours);
6.1.6. providing us with information and access to your staff which we may reasonably require to carry out the services.
6.2. Unless specifically stated in the quotation, this agreement does not oblige us to install, configure, reinstall or reconfigure any software or to reinstate or reload any data and our obligation under it is limited to the terms of reference. You acknowledge that our activities may result in the corruption or erasure of software or data and you must therefore ensure that you keep careful, up-to-date verified backups of software and data using a rotation system and regularly replaced media.
6.3 You agree not to change the location where the consultancy is carried out without our written consent.
7. Staff
7.1. We do not guarantee that we can supply specific, named, staff to perform the consultancy work.
7.2 We may sub-contract the work to such third parties as we consider appropriate. Where we have selected the third party in question, we remain responsible for the acts and omissions of the sub-contractor as if we had undertaken the work ourselves. Where you have nominated the sub-contractor, you accept liability for their acts and defaults.
8. Copyright
8.1. You confirm that you have, and will throughout the subsistence of this consultancy agreement continue to maintain, valid copyright and other intellectual property licences in relation to all third party computer programs, images, logos, trademarks or other items which are the subject of this consultancy agreement so that no one working under this consultancy agreement will infringe any third party copyright or other intellectual property right in carrying out the consultancy.
8.2. You agree to fully and effectively indemnify us against any loss which we may suffer arising from your breach of the above clause 8.1
9. Termination
9.1. In addition to the termination provisions set out in the General Terms, we may terminate this consultancy agreement by notice in the following circumstances:
9.1.1. if any sums you owe to us remain outstanding after they became due; or
9.1.2. in the event that you fail to provide the staff supplied to you under this agreement and working on your premises (or premises specified by you) with a safe system of work or require that that member of staff works in conditions or with equipment which are in any way unsafe or hazardous or if you otherwise act unreasonably so as to delay for a significant period of time our completion of the services.
9.2. You may terminate this consultancy agreement in the following circumstances:
9.2.1. if any of our staff fails to attend for a period of not less than four (4) consecutive working days unless you authorise the absence in advance or it is due to sickness or injury;
9.2.2. if any of our staff commits any act of gross misconduct as defined in your reasonable site rules; or
9.2.3. if any of our staff proves in your reasonable opinion to be unsuitable to carry out work required under this consultancy agreement and we have been unable to provide a suitable replacement within 10 working days after you have notified us of their lack of suitability
9.3. PROVIDED THAT in the case of each of the cases referred to in clauses 9.2 above you may not terminate this Agreement unless and until the matter has been referred to the Grievance Procedure referred to in the General Terms and you have not found the outcome satisfactory.
10. Liability
10.1. Unless specifically stated otherwise in the quotation, we shall not be liable for any physical loss or damage to your hardware or software or other equipment nor for any loss (including loss of business profits), damages, claims or expenses of whatever nature whether direct or consequential arising directly or indirectly as a result of such physical loss or damage or of programming or other error by us in carrying out the consultancy or for any claim whether by you or your employees, agents or customers arising out of any of our acts or omissions or those of any of our staff caused by reason of negligence or breach of duty in excess of the total amount paid by you to us under this agreement over the year immediately preceding such a claim.
For more information phone 024 7667 1900 or fax 024 7667 1920 or Email us now
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