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'Contract’
shall
mean this agreement between RA
and the Customer for the provision
of the Service as set in this
agreement and the Quotation.
'Customer'
shall mean the person, business
or company entering into this
agreement and referred to in the
Quotation.
'Fixed
Price' shall mean a Service
whereby an all inclusive price
is specified in the quotation
to deliver a specified Service.
‘Quotation’
shall mean the quotation and specification
setting out details of the Service
whether or not annexed to this
Contract.
‘RA’ shall mean Romsey
Associates Limited of Unit 2 Eelmoor
Road Eelmoor Road Industrial Estate
Farnborough Hampshire GU14 7QN
or any subsidiary or associate
thereof contracted by RA to provide
the Service in whole or in part
to the Customer.
‘Time
& Materials’ shall mean a
Service whereby an hourly charge
rate applies for all time expended
by RA on behalf of the Customer
and additional charges for materials
and expenses required to complete
the Service will be charged at
cost plus 10% and invoiced weekly.
'Service'
shall mean the provision of any
time, resource and materials by
RA for the Customer referred to
in the Quotation.
The
headings in this Contract are
for convenience only and shall
not affect its interpretation.
Charges Save as varied by the
Quotation the following charges
provisions shall apply in respect
of the Service:
-
1. The Customer shall pay RA fees
for the Services at the rate set
in the Quotation. Any work requested
by the Customer, which is not
specifically covered by the Quotation,
will be confirmed to the Customer
in writing, normally by fax or
email, and will be charged at
the current standard rates and
invoiced to the Customer on completion
of the work.
2.
The Customer shall make payment
on each invoice within 30 days
of the invoice date. When invoices
remain unpaid, RA reserves the
right to suspend all related Services
and to add compound interest at
the rate of 1.5% per month, calculated
until the date payment is received.
3. The Customer shall accept invoices
for Time & Materials Services
on a weekly basis and make payment
on each invoice within 30 days
of the invoice date.
4.
The Customer shall accept invoices
for Fixed Price Services based
on stages specified in the quotation
and make payment on each invoice
within 30 days of the invoice
date.
Confidentiality
RA shall keep confidential
such of the Customer’s information
which is specifically designated
as confidential by the Customer
at the time of the acceptance
of the quotation by the Customer
or which is subsequently so designated
in writing by the Customer and
shall not divulge the same to
any third party without written
consent of the Customer. This
provision shall not apply where
such information as is already
in the public domain or is otherwise
required to be divulged by RA
for the reasonable performance
of its obligations under the Contract
or in the event that RA removes
any of the Customer’s hardware
from the Customer’s site, unless
it is otherwise specifically agreed
in writing by the parties at the
time, RA shall be entitled to
assume that all data of a sensitive,
commercial or personal nature
(as defined by the Data Protection
Act 1998) has been removed from
the hard disks or other media.
Liability The following limitations
shall apply to the liability of
RA under this Contract: -
1.
RA shall not be liable for any
indirect incidental or consequential
loss or damage (including, but
not limited to, loss of programs
or data, loss of use of equipment,
and loss of profits), howsoever
caused, including costs associated
with the use of additional personnel
used to aid recovery from such
a loss.
2.
All terms and conditions and warranties
whether made expressly or implicitly
relating to the quality or fitness
for purpose of the Service are
excluded and where the materials
equipment or specification contained
or referred to in the Quotation
have been specified by the Customer
or any third party the Customer
acknowledges that RA is entitled
to rely exclusively on the quality
and fitness for purpose of such
materials equipment or specification
without liability for any consequential
loss. Without prejudice to the
forgoing RA shall not be liable
for any direct or indirect damage
or loss or delay or additional
costs arising from any change
required by the Customer or its
clients to the specification referred
to in the Quotation
3.
RA shall be under no liability
whatever (whether contractual
tortious or otherwise) for any
loss or damage (including loss
of profit) suffered by the Customer
or the Customer’s clients employees
agents or any other third party
arising out of a breach whether
direct or indirect by RA of this
Contract or otherwise in respect
of the Service. This includes
(without limitation) loss of or
damage to data or the systems
to which the Service or any related
installation is connected, loss
caused by interruption or cessation
of services to the Customer beyond
the reasonable control of RA and
loss arising from e-commerce or
electronic financial or credit
transactions conducted by or on
behalf of the Customer or its
clients.
4.
In the event of any breach of
this Contract by RA the remedies
of the Customer shall be limited
to damages and under no circumstances
shall the liability of the Contractor
exceed the amount of the Quotation.
5. Where the Customer is not a
consumer it acknowledges that
it does not trade as such and
that the terms of this contract
are reasonable.
Customer
Responsibilities
The
Customer shall:
1. provide timely access to information
and personnel necessary to progress
and complete the works. Where
excessive delays are encountered
during Fixed Price Services, RA
reserves the right to charge the
Customer for any additional time
and expenses incurred and to change
the delivery schedule appropriately.
2. provide RA’s service personnel
free of charge with fully adequate
and safe working space and facilities
for all installation and maintenance
works to be carried out.
3.
ensure that all software and files
are adequately replicated at the
Customer’s expense prior to any
works being carried-out on the
Customers equipment. File back-up,
file restore and data retrieval
are not covered by this Contract
and RA reserves the right to make
charges for such work carried
out at the Customers request.
4.
shall indemnify RA against any
claim for infringement of copyright
and royalty payments associated
with materials, information and
software supplied or made available
by and warrants with RA that it
is itself exclusively entitled
to the intellectual property and
all other rights in or has the
previous licence and agreement
of the proprietors thereof to
the use adaptation and development
of the same by RA pursuant to
this Contract.
5. maintain an adequate back-up
strategy to ensure that when current
data is corrupt, the Customer
can recreate data without causing
loss of the staff time or resources
of RA.
6.
not either on its own account
nor for any other body or person
solicit or endeavour to entice
away from RA any employee or director
of RA nor any person who to its
knowledge is at the date of the
Quotation a customer of RA.
Provision
of Bespoke Software Development
Where
the quotation specifies the provision
of bespoke software to the Customer
the following provisions will
apply : -
1.
RA will deliver to the Customer
working software that meets the
requirements of the requirement
document agreed between RA and
the Customer at the time of acceptance
of that quotation.
2. Unless specifically excluded
in the quotation, RA will provide
the development and test environment
necessary to deliver completed
software and the application code
will be delivered to the Customer
on completion of the project specified
once RA shall have received payment
in full in accordance with the
Contract.
3. After such payment, the Customer
may use the software with the
agreement of RA provided that,
as the Customer hereby acknowledges,
RA shall at all times retain all
intellectual property and other
rights in relation to the works
carried out pursuant to the Contract
and on all applications relating
to or derived from them and reserves
the right to reuse, modify or
enhance the software or elements
of the software and use it in
any manner they so wish without
the consent of the Customer or
any third party Provision of Web
Sites Where the quotation specifies
the provision of a Web Site to
the Customer by RA the following
provisions will apply : -
1. Customer liability. Whilst
RA will endeavour to ensure that
any goods or services supplied
will meet all legal requirements
for the use specified in the quotation,
it is exclusively the Customer's
responsibility to ensure that
pages and images are not libellous
and do not infringe copyright
or other intellectual property
rights. The Customer shall indemnify
and keep RA indemnified from all
costs claims demands and liability
howsoever arising from or as a
result of the Customer’s pages
of the Site or the contents thereof.
The Customer shall at its own
expense meet and pay all costs
claims demands and liability including
without limitation all damages
awards against RA arising therefrom
but shall forthwith provide RA
with notice of such claims and
demands provide with full authority
to defend and proceedings arising
therefrom including authority
to compromise or settle the same
such claims demands or proceedings.
The Customer shall provide RA
or its advisers with all assistance
reasonably necessary to defend
such claims demands or proceedings
at the Customer's sole expense.
2.
Improper Use The information and
material supplied RA as part of
or pursuant to The Contract may
only be used for lawful purposes.
The Customer warrants to RA and
it the exclusive responsibility
of the Customer to ensure that
the information and material supplied
to RA by the Customer or subsequently
used by it or any third party
is not in contravention of applicable
legislation including without
limitation pyramid selling schemes
or material judged to be obscene,
threatening or racially prejudiced
the United Kingdom, the country
in which the Customer's domain
is registered the country where
the web server resides and countries
where the Customer's services
or products are available.
3.
Duration and Termination The duration
of the Contract shall where appropriate
be set out in the Quotation and
shall be subject to the following
provisions :-
(a)
RA reserves the right to remove
forthwith hosted web pages and/or
images on sites which RA controls
if it has reason to believe the
pages or images may be illegal
or in breach of intellectual property
laws pending further investigation.
No reimbursement will be made
for any period when pages or images
are unavailable for this reason.
No charge will be made for restoring
any pages or images which are
found, after investigation, to
be non-infringing. Replacement
of infringing pages or images
by non-infringing pages or images
will incur further charges at
our standard maintenance rates.
(b)
RA reserves the right to permanently
remove forthwith, in whole or
in part, any web site hosted by
RA which repeatedly exceeds the
agreed bandwidth limitations where
the Customer refuses to make changes
requested by RA to the site to
bring the bandwidth requirements
within the agreed limits or purchase
more bandwidth. No reimbursement
will be made in this case.
(c)
RA reserves at its sole discretion
the right to forthwith temporarily
suspend or permanently remove
hosted web pages and images, and
to terminate any other service
provided, in the event that the
Customer is in arrears with one
or more payments.
(d) RA reserves the right to claim
a right, equivalent to a lien,
over web space and/or domain names
purchased on behalf of the Customer
in respect of any sums from time
to time due to RA by the Customer.
(e)
RA reserves at its sole discretion
the right to give three months'
notice not to renew any contract
for ongoing services. RA will
not be required to provide any
reason or explanation for such
termination.
4. Payment Unless otherwise specifically
set out in the Quotation the following
provisions in relation to payment
shall apply in relation to Internet
services: -
(a) Internet services are provided
on an ongoing basis with all payments
due in advance for each consecutive
period of 12 months service.
(b) The Customer may cancel the
service may by giving 3 months
notice in writing to RA.
(c) The initial period of service
will commence on the first day
of service following the end of
any agreed trial period or the
date the customer receives access
information where no trial has
been requested. If the customer
terminates this contract before
the end of this initial period,
then RA will charge the Customer
a sum equal to the charges otherwise
due for the remainder of that
initial period. After this initial
period RA will charge the Customer
for the full amount of the payment
otherwise due for the full 12
month period of service where
the Customer seeks to terminate
this Contract but shall fail to
give the full period of notice
required under this provision.
Documentation RA shall provide
all documentation in printed format
and where appropriate in Microsoft
Word 2000 format. Delivery of
documentation data files in other
formats shall be agreed between
RA and the Customer and specifically
defined in the Quotation. Miscellaneous
If either party ceases to carry
on business or makes any arrangement
with creditors or if a receiver
of its assets is appointed or
if (being an individual) an order
in bankruptcy is made against
it or any partner, or if (being
a Company) a winding-up order
or resolution is made or passed
(save voluntarily for the purposes
of solvent amalgamation or reconstruction),
then the other party may immediately
by giving notice terminate this
Contract. Neither party shall
be liable to the other party for
failure or delay in the performance
of any obligation under this Contract
(other than any obligation to
pay money) caused by any circumstances
outside its control, such as,
but not limited to, Act of God,
fire, flood, war, industrial dispute,
governmental actions or regulations,
or failure or delay on the part
of suppliers or sub-contractors.
If any term or provision of this
Contract shall in whole or in
part be held to any extent to
be illegal or unenforceable under
any enactment or rule of law that
term or provision or part thereof
shall to that extent be deemed
not to form part of this agreement
and the enforceability of the
remainder of this agreement shall
not be affected. Any waiver of
a breach of this Agreement by
the Customer or any variation
of this Agreement must be in writing.
Any notices given under this Agreement
shall be in writing and sent
(a) by first class pre-paid post
to the last known address of the
party or
(b) by fax to their last known
fax number.
The
notice shall be deemed served
(a) two working days after posting
or
(b)
upon receipt of a successful transmission
report.
This Agreement shall be governed
by and construed in accordance
with the laws of England and the
parties submit to the exclusive
jurisdiction of the English courts.
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