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CONDITIONS FOR THE SUPPLY OF CONSULTANCY AND OTHER TECHNICAL SERVICES These Conditions shall apply to all contracts for the supply by Connectology Network Services Limited (“Connectology”) of consultancy systems specifications, bespoke programming and other technical services.
1 DEFINITIONS In these Terms and Conditions the following expressions shall (where the context so admits) have the following meanings:-
“Technical Services” means the consultancy systems specification, bespoke programming or other technical services to be provided by Connectology as detailed in the Quotation.
“Timetable” means the timetable within which Connectology will perform the Technical Services and which is specified in the Quotation and shall include any revisions to the Timetable made in accordance with Condition 3.3.
“Price” means the price to be paid by the Client for the Technical Services and which is specified in the Quotation.
“Client” means the recipient of Technical Services from Connectology
“Quotation” means the quotation for the Technical Services submitted by Connectology to the Client.
“Contract” means the contract between Connectology and the Client entered into subject to these Terms and Conditions for the provision of the Technical Services, comprising the Quotation (including the Specification) and the Client’s acceptance thereof.
“Working Hours” means the hours between 09.00 to 17.30 on Mondays to Fridays except public holidays.
“Specification” means the description, specifications and other details of the Technical Services set out, or incorporated by reference in, the Quotation.
“Stage” means the numbered stages (if any) for the performance of the Technical Services described in the Timetable.
“Programs” means the software programs to be designed and written by Connectology in accordance with the terms of the Quotation.
2 FORMATION OF CONTRACT 2.1 Any order sent to Connectology by the Client shall be accepted entirely at the discretion of Connectology, and, if so accepted, will only be accepted upon these Terms and Conditions.
2.2 Each order which is so accepted shall constitute an individual legally binding contract between Connectology and the Client.
2.3 These Terms and Conditions (together with terms, if any, set out in the Quotation) shall constitute the entire understanding between the parties relating to the provision of the Technical Services, and shall supersede any previous communication, representation or agreements by either party whether oral or written. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law. No change of any of the Terms and Conditions herein shall be valid unless in writing and signed by an authorised representative of each party.
2.4 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
3 AVAILABILITY OF TECHNICAL SERVICES 3.1 The performance of the Technical Services by Connectology shall be in accordance with the Specifications set out in the Contract. All performance and completion dates given by Connectology (including for the avoidance of doubt the dates specified in the Timetable) are estimates only and the time for the performance or completion of the Technical Services shall not be the essence of the Contract. Accordingly Connectology accepts no responsibility or liability, financial or otherwise, in the event that the Timetable is not complied with. In particular, for the avoidance of doubt, and without limitation of the generality of the foregoing, Connectology shall not be liable to reimburse the Client in respect of any delay payments or other penalties for which the Client may become liable to any customer of the Client as a result of delay or failure by Connectology whether or not the Connectology is aware of the Client’s potential liability to pay the same.
3.2 The Technical Services shall be performed or (as the case may be) made available during Working Hours only. If the Client requires performance or availability outside Working Hours then (subject to acceptance by Connectology) an additional charge shall be payable at Connectology’s standard rates in force from time to time.
3.3 Without prejudice to Condition 3.1, Connectology shall use its reasonable endeavours to notify the Client of any delay in the Timetable for the provisions of Technical Services , and to propose a revised Timetable to the Client. Any onward notification of such delay to customers of the Client shall be the sole responsibility of the Client. [Where the reasons for the said delay are other than those covered in Condition 4 (Force Majeure), the Client shall have the right (within twenty-one days of the date of receipt of the notification) to advice Connectology in writing that it intends to terminate the Contract forthwith (which latter course the Client shall be entitled to take without liability to Connectology other than for all Technical Services performed (on a time and materials basis according to Connectology’s then current price list) and charges (and of any cancellation charges of supplier’s sub-contractors or suppliers) incurred by Connectology up to the date of termination. Subject as aforesaid the Contract shall be deemed to include the aforesaid revised estimated delivery schedule. Any revision proposed by the Client to the Timetable shall be subject to mutual agreement.]
3.4 Contracts may be divided into Stages. At the end of each Stage, Connectology will give the Client a Quotation in writing of the likely cost of completing the next Stage. The Client then has the right not to proceed to the next Stage.
4 FORCE MAJEURE 4.1 Connectology shall not have any liability in respect of any delay in carrying out or failure to carry out any of its obligations under the Contract caused by:-
4.1.1 fire, strikes or other industrial action or dispute, acts of Government, default of suppliers or sub-contractors, or
4.1.2 any circumstances outside the reasonable control of Connectology; or
4.1.3 any act or omission on the part of the Client, such as the failure to confirm approval or to give accurate information;
4.1.4 difficulties in development which could not reasonably have been foreseen;
4.1.5 any other occurrence which makes it reasonable to extend the development time.
4.2 Without prejudice to Condition 3.1, Connectology shall have the right to extend the estimated delivery schedule as set out in the Timetable by a period of time sufficient to take due account of the event occurring as set out in Condition 4.1. If however such extension continues for a period of six months the Client may on the expiry of that period terminate the Contract forthwith without liability to Connectology other than reimbursement on the same terms as provided in Condition 3.3.
5 PRICES AND PAYMENT 5.1 Prices for the provisions of the Technical Services will be those set out in the Quotation.
5.2 Unless otherwise stated in the Quotation, Connectology shall be entitled to invoice the Client under the Contract at the end of each month for work undertaken or completed by Connectology on the Contract during that month. Payment of all Connectology invoices shall be made in Pounds Sterling at the end of the month following the month in which the invoices are issued. At the request of the Client, Connectology shall issue with all invoices submitted to the Client under this Condition a statement of the work carried out by Connectology to which the invoice refers. Where chargeable, Value Added Tax and any other applicable taxes or duties shall be added to the invoices at the current rate or rates in force at the relevant times
5.3 The time of payment shall be the essence of the Contract.
5.4 If the Client fails to make any payment to Connectology on the due date then without prejudice to any other right or remedy available to Connectology, Connectology shall be entitled to:-
5.4.1 terminate the whole or any part of the Contract or suspend the performance or further performance of its obligations under the Contract;
5.4.2 appropriate any payment made by the Client to such of the Technical Services (or the products and services supplied under any other contract between Connectology and the Client) as Connectology may think fit;
5.4.3 charge the Client interest (both before and after judgement) on the amount outstanding on a daily basis, at the rate of 2 per cent per annum above the base rate of Barclays Bank Plc, such interest to be calculated from the due date to actual payment (both dates inclusive) compounded quarterly;
5.4.4 a general lien on all goods and property belonging to the Client and such lien shall be exercisable in respect of all sums lawfully due from the Client to Connectology and Connectology shall be entitled on the expiration of 14 days’ notice in writing to dispose of such goods or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
6 DEFECTS 6.1 In respect of any error or defect in the Technical Services provided by Connectology under the Contract which is notified to Connectology in writing by the Client within [six months] of the provision thereof, Connectology agrees that it will make resources available to investigate the defect and endeavour to rectify the defect. On receipt of notification of any suspected defect, Connectology shall free of charge as soon as possible carry out an investigation into the cause thereof, and thereafter rectify the same (if possible).
6.2 Except as set in Condition 6.1 or in respect of death and personal injury caused by Connectology’s negligence, Connectology accepts no liability in respect of any error or defect in any Technical Services provided, or the consequences thereof, and gives no warranty in respect thereof.
6.3 The Technical Services are provided by Connectology on the basis that it is for the sole use of the Client, for the purpose set out in the Specification. The Client shall not communicate the Technical Services or any information contained therein to any third party, nor use the Technical Services or any information contained therein other than for the said purpose. Should Connectology communicate the Technical Services or any information contained therein to a third party, contrary to the foregoing, or use any such Technical Services or information in the performance of work for a third party, whether or not in accordance with the said purpose, Connectology will be solely liable to such third party for any error or defect in such Technical Services or information, and/or the consequences thereof, and will indemnify Connectology against all loss, actions, claims, costs, demands, expenses and liabilities whatsoever (if any) which Connectology may incur either at common law or by statute in respect of any loss, damage, personal injury or death suffered by a third party by reason of any error or defect in such Technical Services or information, or by reason of the consequences of any such error or defect.
7 ECONOMIC LOSS 7.1 In no circumstances shall Connectology be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof:-
7.1.1 for any increased costs or expenses,
7.1.2 for any loss of profit, business, contracts, revenues, or anticipated savings, or
7.1.3 for any special indirect or consequential damage of any nature whatsoever arising directly or indirectly out of the provisions by Connectology of the Technical Services, or of any error or defect therein, or of the performance, non-performance or delayed performance by Connectology of the Contract.
8 LIMITATION OF LIABILITY 8.1 Notwithstanding anything contained in the Contract, Connectology’s liability to the Client in respect of the Contract, in contract, tort (including negligence or breach of statutory duty) or howsoever otherwise arising, shall be limited to £[ ].
9 RECRUITMENT OF STAFF 9.1 Each of Connectology and the Client hereby undertakes to the other that during the continuance of the Contract and for a period of six months following its termination or completion it will not directly or indirectly, either on its own behalf or on behalf of any other person:
9.1.1 solicit or endeavour to entice away from or discourage from being employed by the other party the employees of that other party met or introduced as a result of discussions, negotiations and other communications between them relating to the Technical Services and/or the Contract; or
9.1.2 induce any employee of the other to leave his employment; or
9.1.3 engage or employ any individual employed by the other party met or introduced as a result of discussions, negotiations and communications between them relating to the Technical Services and/or the Contract.
9.2 Each of clauses 9.1.1 to 9.1.3 above shall be treated as a separate obligation and shall be severally enforceable as such.
9.3 The parties consider the restrictions in clause 9.1 to be fair and reasonable, but if a court of competent jurisdiction finds any of them to be unenforceable the parties agree to accept any modification as to the extent or duration of the restriction concerned which the court sees fit to impose or, if it does not see fit, which is reasonably necessary to render the restrictions enforceable.
10 CONFIDENTIAL INFORMATION 10.1 Each party (“the receiving party”) of the Connectology and the Client undertakes to the other party (“the disclosing party”) in relation to the information of the disclosing party which is clearly designated in writing as being confidential (“the Confidential Information”):-
10.1.1 to maintain the same in confidence and to use it only for the purposes of the Contract and for no other purpose and in particular, but without prejudice to the generality of the foregoing, not to make any commercial use thereof or use the same for the benefit of itself or of any third party other than pursuant to the Contract or a further contract with the disclosing party;
10.1.2 not to copy, reproduce or reduce to writing any part thereof except as may be reasonably necessary for the aforesaid purposes and that any copies, reproductions or reductions in writing so made shall be the property of the disclosing party;
10.1.3 not to disclose the same whether to its employees or to third parties except in confidence to such of its employees or directors who need to the same for the aforesaid purposes; and
10.1.4 to apply thereto no lesser security measures and degree of care than those which the receiving party applies to its confidential or proprietary information.
10.2 Neither party shall be required to treat as confidential any information which:-
10.2.1 was already known to it prior to its receipt from the disclosing party;
10.2.2 was in the public domain at the time of receipt by the receiving party or subsequently entered into the public domain other than by reason of the breach of these Terms and Conditions or of any obligation of confidence owed by the receiving party or its agents or sub-contractors to the disclosing party;
10.2.3 was subsequently disclosed to it lawfully by a third party who did not obtain the same (whether directly or indirectly) from the disclosing party; or
10.2.4 is trivial or obvious.
11 ALTERATIONS TO THE CONTRACT 11.1 If at any time during the currency of the Contract the Client wishes to alter the Technical Services to be provided by Connectology under the Contract then the Client shall provide Connectology with full written particulars of such alterations and with such further information as Connectology may reasonably require.
11.2 Connectology shall then (at its option) either:-
11.2.1 submit to the Client as soon as reasonably practicable a written quotation for such alterations specifying what changes (if any) will be required to the terms of the Contract; or
11.2.2 inform the Client that Connectology does not agree to make such alterations (without being obliged to give any reason therefor) in which case the Contract shall continue in force unchanged subject to Condition 11.4.
11.3 Upon receipt of a quotation under Condition 11.2.1 the Client may elect either:-
11.3.1 to accept such quotation in writing in which case the Contract shall be amended in accordance therewith; or
11.3.2 to withdraw the proposed alterations in which case the Contract shall continue in force unchanged (subject to Condition 11.4).
11.4 Connectology shall be entitled to make a reasonable charge on a time and materials basis for considering such alterations and (where applicable) preparing the said quotation and if such activity results in a delay in the performance of the obligations of Connectology under the Contract then Connectology shall not be liable for such delay and shall be entitled to an extension of time for performing its obligations equal to the period of the delay.
11.5 Connectology shall not be obliged to consider or make any alterations to the Contract except in accordance with the above procedure.
12 INTELLECTUAL PROPERTY RIGHTS 12.1 The copyright and all other intellectual property rights of whatever nature in all work which has been or will be developed by Connectology in the performance of its obligations under the Contract (“the Proprietary Rights”) shall be and shall remain vested in Connectology. Connectology hereby undertakes to grant the Client upon request on such terms as may be agreed such licence(s) as are necessary to enable the Client to make use of the same solely for the Client’s own internal purposes.
12.2 The Client hereby grants Connectology a non-exclusive, world-wide, royalty-free licence to the Client’s pre-existing copyright and other intellectual property rights to the extent necessary for Connectology to perform its obligations under the Contract and will indemnify Connectology fully against any breach of this Condition
12.3 The Client warrants that it is able to grant Connectology all necessary rights and licences in respect of any third party intellectual property rights licensed to the Client to the extent necessary for Connectology to perform its obligations under the Contract and will indemnify Connectology fully against any breach of this Condition.
12.4 All documentation, educational material and all other written information in any form, including electronic, provided by Connectology during supply of the Technical Services are protected by Connectology copyright. All such materials are provided for the sole use of the Client and may not be copied or reproduced in any form without the prior written consent of Connectology. All authorised copies shall carry Connectology’s approved copyright notice.
13 WARRANTIES Connectology shall provide the Technical Services in a professional manner and in accordance with standards generally observed in the industry for similar services and will be provided with reasonable skill and care. Connectology shall not be responsible for any business decisions made, or actions taken by the Client based on any part of the Technical Services.
14 TERMINATION 14.1 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of the Contract and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its credits or has a receiver or administrator appointed.
14.2 Upon termination the Client shall pay Connectology for all Technical Services performed (on a time and materials basis according to Connectology’s then current Price List) and charges (including any cancellation charges of supplier’s sub-contractors or suppliers) incurred by Connectology up to the date of termination.
15 PROGRAMMING 15.1 With respect to any computer programming services set out in the Quotation which Connectology agrees to provide to the Client:-
15.1.1 the Client shall be responsible for all testing of the computer programs once they have been installed on the Client’s equipment;
15.1.2 the Client shall by written notice upon Connectology within seven days after each computer program has been installed on its equipment either approve or reject the same. The Client shall only be entitled to reject the Programs upon the basis that (and by detailing the manner in which) the Programs do not operate in the manner provided for in the Specification. The Client shall not be deemed to have approved of the Programs if they neither approve nor reject them within the said seven days after installation;
15.1.3 Connectology shall within 28 days of receiving any notice of rejection pursuant to Condition 15.1.2 above make all such alterations to the rejected Programs as shall in the circumstances be necessary and shall re-submit the same for approval by the Client. The provisions of Condition 15.1.2 and this Condition 15.1.3 shall apply mutatis mutandis until such time as the Client shall approve (or be deemed to approve) the Programs.
16 CLIENT’S OBLIGATIONS 16.1 The Client will:-
16.1.1 promptly furnish Connectology with such information and documents as Connectology may reasonably request for the proper performance of its obligations under the Contract;
16.1.2 ensure that its employees co-operate fully with Connectology;
16.1.3 make available to Connectology such office and secretarial services at the Client’s premises as may be necessary for the proper performance by Connectology of its work under the Contract.
17 MISCELLANEOUS 17.1 Connectology may provide the same or similar services to other customers.
17.2 The Client may not assign any of its rights or obligations without Connectology’s written consent.
17.3 Connectology shall be entitled to sub-contract the performance of the whole or any part of the Contract without prior notice to the Client.
17.4 Any notice required or permitted to be given by either party to the other under these Terms and Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this Condition to the party giving the notice.
17.5 Connectology’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
17.6 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity or enforceability of the other provisions of these Conditions and the remainder of any provision in question shall not be affected.
17.7 These Conditions and the Contract shall in be governed and construed in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the English Courts for the settlement of all disputes or claims which may arise out of or in connection with the Contract.
17.8 Website design and marketing services provided by Jelly Solutions and Execute Marketing www.executemarketing.co.uk
COMPANY REGISTRATION Company Name Connectology Network Services Ltd VAT Number 795 1225 16 Registration Number 4440998 Registered Address 5 Clarendon Place, Leamington Spa, Warwickshire CV32 5QL | ||||||
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Copyright 2007 Connectology | ||||||
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