1. General Terms 1.1 Scope of Works Nick Spalding Limited (‘NSL’) shall upon these Terms and Conditions
i. provide the consultancy, analysis, design, programming, installation, training and other services described in the Contract Letter or Specification (“the Services”);
ii. write the application programs which shall provide the facilities and functions set out in the Contract Letter or Specification (“the Software”);
iii. supply, deliver and install the computer hardware, cabling, network components, equipment and materials described in the Contract Letter and Specification (“the Hardware”);
iv. install the Software on the Hardware or (as the case may be) on the Client’s Hardware described in the Specification (“the Client’s Hardware”)
i. The Client is charged:
a) either on a time and materials basis where the Services provided by staff are charged at daily rates as quoted in the Contract Letter. Fractions of a day are charged on an hourly pro rata basis;
b) or on a project basis where the work described in the Contract Letter or Specification is carried out for a fixed fee. Additional work outside the scope of this description will be charged on a time and materials basis as above.
ii. Charges do not include Value Added Tax which will (where appropriate) be added to the amount of an invoice at the prevailing rate.
iii. NSL’s charges exclude travel or hotel expenses and the costs of materials and services not provided directly by NSL.
Any expenses necessarily incurred in the course of the project will be charged at cost. Clause 1.12 of these Terms and Conditions outlines how expenses are calculated for site work.
iv. The rates quoted will be fixed for the initial period of the assignment, or for six months, whichever is shorter. Charge rates will be assessed from time to time and NSL’s policy is to review rates for all staff on April 1st, and for certain staff on October 1st.
1.3 The Working Day and Overtime The normal working day is seven and a half hours. For Services contracts this may be subject to alteration by mutual agreement for work carried out on the Client’s premises Overtime is charged at time and a third and work carried out during weekends, or public holidays, is charged at double time. Where required working period is substantially outside the normal working day the rate premium will be subject to negotiation.
1.4 Invoicing and Payment
i. Invoices are submitted as follows:
a) For Services and Software provided on time and materials basis: These are based on time logs filled in by staff on the project. They are included with the invoice.
b) For Fixed Price projects: According to the payment schedule in the Contract Letter or, if none is given, monthly in arrears based on work in progress.
c) For Hardware and Software Licenses: on delivery of the Hardware to the Client’s premises.
ii. Invoices must be paid in full within 7 days of the date of issue unless extended credit terms are agreed.
iii. If any payment is overdue NSL may (without prejudice to any other right or remedy available to it) suspend work under the contract until payment in full thereof has been made. Invoices remaining unpaid after 60 days will attract a surcharge of five percent per 30 days (or part thereof) on the current Barclays Bank base rate for the full period the debt has been outstanding.
iv. The Client shall not be entitled to withhold payment in whole or in part on the grounds that it has a claim, counterclaim or set-off against NSL.
1.5 Client Obligations
The Client shall in accordance with the Contract Letter, Project Plan or Specification make available free of charge to NSL all information, facilities and services reasonably required by NSL for the performance of the Contract.
Each party shall treat as confidential all information obtained from the other pursuant to the Contract and shall not divulge such information to any person (except such party’s own employees and then only those employees who need to know the same) without the other party’s prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to the Contract, which is already public knowledge or becomes so at a future date (otherwise than as a result of breach of this clause) or which is trivial or obvious.
Each party shall ensure that its employees are aware of the provisions of this clause and each party shall use all reasonable endeavours to ensure that its employees comply with the provisions thereof.
If NSL appoints any sub-contractor, then NSL may disclose confidential information to such sub contractor giving to the Client an undertaking in similar terms to the provisions of this clause.
The foregoing obligations as to confidentiality shall continue to apply notwithstanding the termination of the contract.
1.7 Software Intellectual Property Rights
i. The Client shall not acquire title to the Intellectual Proper ty Rights in the Software, the Documentation or the other Deliverables (excluding Client Data) which are developed and/or supplied hereunder.
ii. NSL hereby grants, or shall procure that the owner of the Intellectual Property Rights in the Software, the Documentation and the other Deliverables (excluding Client Data) grants, the the Client, a non-exclusive license to use, reproduce, modify, adapt and enhance the Software and to reproduce, modify, adapt and enhance the Documentation and other Deliverables (excluding Client Data). Such license shall be transferable, perpetual and irrevocable.
iii. The Client shall be entitled to sub-licence a third party to use, reproduce, modify, adapt and enhance the Software on behalf of the Client.
iv. NSL shall indemnify the Client against any claim that the normal use or possession of the Software or the Hardware infringes the Intellectual Property Rights of any third party provided that NSL is given immediate and complete control of any such claim, that the Client does not prejudice NSL’s defence of such claim and that the Client gives NSL all reasonable assistance with such claim.
NSL shall have the right to replace or change all or any part of the infringing item in order to avoid infringement (so long as such replacement or change does not materially affect the performance of the Software or (as the case may be) the Hardware.
The foregoing states the entire liability of NSL to the Client in respect of the infringement of the Intellectual Property Rights of any third party.
i. Except as provided in these Terms and Conditions, no warranty condition, undertaking or term, expressed or implied, statutory or otherwise, as to the condition, quality, performance, merchantability, durability or fitness for purpose of the Hardware or the Software is given or assumed by NSL and all such warranties, conditions, undertaking and terms are hereby excluded.
ii. NSL will carry out the contract with reasonable skill and care, but (except as provided in these Terms and Conditions) shall not under any circumstances in relation to its carrying out the Contract be liable (whether in contract, tor t or otherwise) for any loss or damage of whatsoever nature suffered by the Client whether arising from any act, default or neglect on the part of NSL, its employees, agents or sub-contractors or from any defect in, failure in, or unsuitability for any purpose of, the Hardware or the Software or otherwise howsoever, to the extent that the amount of such loss or damage exceeds (or would when aggregated with the amount of any previous loss or damage exceed) the greater of:
a) for service contracts: twenty thousand pounds
b) for fixed price contracts: the contract price
c) the amount (if any) which NSL is entitled to claim under the terms of any insurance policy in force at the time, up to a maximum of one million pounds (£1,000,000).
iii. NSL shall not in any event be liable for any indirect or consequential loss whatever or however caused.
iv. The Client agrees fully and promptly to indemnify NSL against all costs, claims, demands, damages, losses and expenses to which NSL may become liable or which NSL may suffer or incur as a result directly or indirectly of NSL’s acting in accordance with the Client’s instructions, or arising from any act, default or neglect on the part of the Client, its employees, agents or subcontractors.
v. Notwithstanding anything to the contrary, however, nothing in these Terms and Conditions shall operate to exclude or restrict NSL’s liability for death or personal injury resulting from negligence within the meaning of the Unfair Contract Terms Act 1977.
1.9 Staff Transfer
i. It is a condition of acceptance of any assignment or project that neither the Client nor NSL during the assignment or project and for twelve months after the assignment or project employs directly or indirectly, makes or seeks to make any offer of employment to any of the other’s staff engaged on the assignment or project.
ii. The Client shall procure that none of its customers or clients during the assignment or project and for twelve months after the assignment or project employs directly or indirectly, makes or seeks to make any offer of employment to any of NSL’s staff engaged on the assignment or project.
iii. The Client shall procure that none of its contractors or consultants during the assignment during the assignment or project and for twelve months after the assignment or project employs directly or indirectly, makes or seeks to make any offer of employment to any of NSL’s staff engaged on the assignment or project with a view to that member of NSL’s staff being engaged in the provision of services to the Client.
When an end date for the assignment or project has not been specified or, should either the Client or NSL wish to terminate an assignment or project prematurely, the terminating party shall give six weeks written notice to the other.
In the event of cancellation for the Clients convenience (and not due to breach of the contract terms by NSL as set out in clause 1.13), the Client will be required to pay all outstanding debts for work completed in addition to a cancellation fee equal to 50% of the value of the remaining work required to complete the assignment or project.
1.11 Staff Substitution
Whilst all reasonable efforts will be made to use the nominated staff on the assignment or project, NSL reserves the right to replace any nominated staff if it becomes necessary or expedient to so do.
If any staff are to be replaced, NSL will give to the client as much advance notice as the circumstances permit.
1.12 Site Work Unless stated in the Contract Letter, for site work, travelling time in excess of the employee’s normal travel to work time will be charged at cost. On such journeys the cost of air travel, rail travel or a car mileage allowance at the prevailing company rate will be charged (as appropriate). For site work involving overnight stays the cost of bed, breakfast and evening meal, any incidental expenses such as travel and medical insurance (outside UK only), plus the cost of NSL’s standard employee disturbance allowance will be charged.
The contract may be terminated by either party by notice in writing to the other having immediate effect if the other shall commit any breach of the contract which breach (if capable of remedy) is not remedied within 14 days of notification or if the other shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bone fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.
The termination of the contract (howsoever arising) shall be without prejudice to the rights and remedies of the parties accrued before such termination and nothing shall prejudice the right of either party to recover any amount of outstanding debt at the termination howsoever caused.
1.14 Force Majeure
If due performance of the contract by either party is affected in whole or in part by reason of any event, omission, accident or other matter beyond the reasonable control of such party, such party shall give prompt notice thereof to the other party and shall be under no liability for any loss, damage, injury or expense (whether direct or consequential) suffered by the other party due to the affected performance.
Such party shall use all reasonable efforts to avoid or overcome the causes affecting performance and shall fulfil all outstanding performance as soon as it becomes practical to do so.
All notices required or permitted to be given under the contract shall be in writing and sent by first class letter or facsimile or delivered by hand to NSL or the Client’s representative responsible for liaison at their normal working address, or at such other address as the appropriate party may from time to time designate.
Proof that an envelope containing a notice was correctly addressed, prepaid and posted, shall be proof that it was sent. Notices are assumed to have arrived 48 hours after the date of posting.
In the event of any clause contained in these Terms and Conditions or in the Contract Letter being declared by any cour t of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way impair or affect any other clause all of which shall remain in full force and effect.
1.17 Waiver The failure of either party at any time to enforce any provision of the contract shall in no way affect its right thereafter to require complete performance by the other party, nor shall the waiver of any breach of any provision be taken or held to be a waiver of any subsequent breach of any such provision or be a waiver of the provision itself. Any waiver to be affective must be in writing.
1.18 Whole Agreement
These Terms and Conditions together with those in the Contract Letter shall apply to any contract for the provision of NSL to the Client of professional services constitutes the entire contract between NSL and the Client and supersedes all previous communications, representations and contracts either written or oral.
In the case of any inconsistency between these Terms and Conditions and those in the Contract Letter. the ones in the Contract Letter shall prevail.
The printed terms and conditions of any purchase order or other correspondence of the Client in connection with the Contract shall not apply.
The Client acknowledges that it is not entering into the contract in reliance upon any representation not set out in the contract.
No amendment to the contract shall be binding unless in writing, signed by the parties or their duly authorised representatives and expressed to be for the purpose of such agreement.
Any dispute arising in connection with the contract between the parties hereto shall, after written notice by either party to the other, be referred to a single arbitrator mutually agreed for the purpose, or in default of such agreement, to be appointed at the request of either party by the President of the British Consumer Society.
Such reference shall be deemed to be a submission to arbitration under the Arbitration Act 1996 or any statutory modification or reenactment thereof for the time being in force.
1.20 Governing Law
The contract shall be construed in accordance with and governed by English Law and each party hereby submits to the non-exclusive jurisdiction of the English Courts.
Headings have been included for convenience only and shall not be used in construing any provision herein.
2. Specific Terms relating to Hardware Supply
2.1 Delivery and Installation of Hardware
i. NSL shall deliver the Hardware to the location specified in the Contract
ii. The Client shall before delivery, at its own expense, prepare the installation location and provide the proper environment and operational conditions for the Hardware. NSL shall in reasonable time before the delivery of the Hardware supply to the Client such information as may be necessary to enable the Client to do this.
iii. NSL shall not carry out or be responsible for the removal of doors, widening of entrances or any other structural work of any description which shall be carried out by the Client before delivery at its own expense.
i. After delivery of the Hardware to the Client’s site, these shall be at the Client’s sole risk in respect of all loss of damage arising from any causes whatsoever.
ii. Notwithstanding delivery, Hardware will remain the property of NSL and the Client will hold the Hardware as NSL’s bailee until payment in full for it and all other sums due from the Client to NSL on any account whatsoever.
Until such time, the Client shall keep the Hardware fully insured and if the Hardware is lost, damaged or destroyed shall hold the proceeds of insurance for and to the order of NSL until such payment is made.
In any event entitling NSL to terminate the contract or if the Client fails to make any payment to NSL on or before the due date therefore then NSL may without notice recover possession of any Hardware the property of NSL and the Client grants to NSL irrevocable license to enter for that purpose any premises then occupied by the Client
iii. NSL shall be entitled to maintain an action for the price of the Hardware, notwithstanding that property in it has not passed to the Client.
2.3 Hardware Warranty
i. Hardware is sold with the benefit of, and under the terms of, the Manufacturer’s warranty
ii. NSL shall have no liability or obligation under the warranty:
a) unless NSL receives written notice of the defect in question not later than the expiry of the warranty;
b) in respect of defects not due solely to defective materials, workmanship or installation;
c) if the hardware has been modified in any way without NSL’s prior written consent or if the original identification marks have been removed or altered
d) if the hardware has been subjected to neglect, carelessness or abnormal conditions or involved in any accident or attempt at repair or replacement or dealt with contrary to any direction issued by NSL or the mmanufacturer;
e) if the terms of payment set out in clause 1.4 have not been complied with.
3. Specific Terms Relating to Fixed Price Projects involving Software Supply
3.1 Project Plan
NSL shall carry out its obligations in accordance with any Project Plan in the Contract Letter or Specification, but time shall not be of the essence in relation to the performance of such obligations.
3.2 Change Control
i. If additional work or expense is incurred by NSL as a result of a change in the Specification or Project Plan being made by the Client, or by a failure or by the Client in meeting his obligations in connection with the Contract, then such additional work or expense will be reasonably charged to the Client over and above the contract price
ii. Any changes proposed by either NSL or the Client will be negotiated and agreed before the change is implemented. Changes involving additional consultancy, design and software programming will be priced using the current standard or overtime consultancy rates for the staff involved.
NSL will be entitled to charge for the work involved in preparing and responding to Client change requests, whether or not the Client agrees to go ahead with them.
i. After the System has been delivered and installed, NSL shall, if so specified in the Project Plan, submit it to tests to ensure that the Software is in accordance with the Specification and (where applicable) that any hardware is in full working order.
If required by NSL, such tests shall be carried out in the presence of the Clients representative and for this purpose the Client shall provide its representative when required to do so by NSL.
ii. Once the System has successfully passed the tests, they shall be accepted by the Client (“Acceptance”) and the Client shall, if requested to do so, provide an Acceptance Certificate.
Where no acceptance tests have been specified then Acceptance will be on delivery. Should the Client fail to carry out the Acceptance tests specified and set out in the Project Plan, then acceptance will take place 14 days after the scheduled date of the tests, or on live usage of the system. whichever is the sooner.
3.4 Software Warranty
i. NSL warrants that the software will provide the facilities and functions set out in the Contract Letter or Specification for a period of three months from Acceptance or (if there is no Acceptance schedule in the Project Plan) from the date of delivery.
ii. If NSL receives written notice from the client of any breach of the foregoing warranty, NSL shall (subject to paragraph (iii) below) at its own expense and within a reasonable time after receiving such notice remedy the defect or error in question, but shall not be under any other liability in respect of such breach whatsoever.
iii. NSL shall have no liability or obligation under the warranty:
a) unless NSL receives written notice of the defect or error in question not later than the expiry of the three months referred to in paragraph (i) of this clause;
b) in respect of the defects or errors resulting from any modification of the software made by any person other than NSL;
c) in respect of defects or errors caused by the use of the Software on or with Hardware (other than the Hardware or the Client’s Hardware) or other computer programs not supplied by or approved in writing by NSL;
d) if the terms of payment set out in clause 4 have not been complied with. iv.NSL may charge for any false call-outs or for modifications or enhancements to the Software which are outside the Specification at its prevailing consultancy rates.