Standard Conditions of supply of IT Services
Interpretation
Application of conditions
These conditions shall:
apply to and be incorporated in the Contract; and
prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
Effect of purchase order
The Customer's purchase order constitutes an offer by the Customer to purchase the Services specified in it on these conditions. Accordingly, the execution and return of the acknowledgement copy of the purchase order form by the Supplier, or the Supplier's commencement or execution of work pursuant to the purchase order, shall establish a contract for the supply and purchase of those Services on these conditions. The Customer's standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.
Supplier's obligations
The Supplier shall use reasonable endeavours to manage and complete the Project, and to deliver the Deliverables to the Customer, in accordance, in all material respects with the Project Plan.
The Supplier shall use reasonable endeavours to meet the performance dates specified in the Project Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
The Supplier shall appoint the Supplier's Project Manager who shall have authority to contractually bind the Supplier on all matters relating to the Project. The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier's Project Manager throughout the Project but may replace that person from time to time where reasonably necessary in the interests of the Supplier's business.
Customer's obligations
The Customer shall:
co-operate with the Supplier in all matters relating to the Project and appoint the Customer's Project Manager, who shall have the authority to contractually bind the Customer on matters relating to the Project;
provide in a timely manner such access to the Customer's premises and data, and such office accommodation and other facilities, as is requested by the Supplier;
provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects; and
be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.
If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer's agents, subcontractors or employees, the Customer shall in all circumstances be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it, subject to the Supplier confirming such costs, charges and losses to the Customer in writing. Such losses shall include, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere.
The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of six months after the completion of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or subcontractor of the Supplier. The Customer shall not be in breach of this 5.3 if it hires an employee or subcontractor of the Supplier as a result of a recruitment campaign not specifically targeted to any employees or subcontractors of the Supplier.
Any consent given by the Supplier in accordance with 5.3 shall be subject to the Customer paying to the Supplier on demand a sum equivalent to 20% of the then current annual remuneration of the Supplier's employee or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or subcontractor.
Change control
The Customer's Project Manager and the Supplier's Project Manager shall meet at least once every 3 to 6 months to discuss matters relating to the Project. If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
the likely time required to implement the change;
any variations to the Supplier's charges arising from the change;
the likely effect of the change on the Project Plan; and
any other impact of the change on the terms of the Contract.
If the Supplier requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of the Contract to take account of the change.
Charges and payment
The Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Project Plan. The total price shall be paid to the Supplier in instalments as set out in the Project Plan on it achieving the corresponding Project Milestone. On achieving a Project Milestone, the Supplier shall (subject to 7.2) invoice the Customer for the charges that are then payable, together with expenses and the costs of materials, calculated as provided in 7.5.
All payments made by the Customer under this agreement are exclusive of VAT. The Supplier shall provide the Customer with a valid VAT invoice. The Customer shall pay any stamp duties or similar transfer taxes imposed on the supplies made under this agreement and shall reimburse the Supplier for any such stamp duties or similar transfer taxes paid by the Supplier. If the Customer is required to make any deduction for or on account of tax from any payment due under this agreement (Tax Deduction):
The Customer shall account to the relevant tax authority for such Tax Deduction and shall provide evidence to the Supplier that it has so accounted.
The amount of the payment due under this agreement shall be increased so that the Supplier receives an amount equal to the amount that would have been received by it, had the Customer not been required to make any Tax Deduction.
The Customer and the Supplier shall cooperate to minimise the amount of any Tax Deduction. If following the making of a Tax Deduction, the Supplier determines in its sole discretion/ acting in good faith that it (or any member of the Supplier's group) has received and retained any credit, relief or other benefit as a result of the Tax Deduction, the Supplier shall pay such amount to the Customer as the Supplier determines in its sole discretion/ acting in good faith would leave the Supplier in the same position as if the Customer had not been required to make any Tax Deduction.
7.4 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:
charge interest on such sum from the due date for payment at the annual rate of 1.5% above the base lending rate from time to time of Tide Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and
suspend all Services until payment has been made in full.
7.5 Time for payment shall be of the essence of the Contract.
7.6 The Customer shall pay each quarterly invoice submitted to it by the Supplier in full, and in cleared funds, within 28 days of receipt.
7.7 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
7.8 All amounts due under this agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
Intellectual Property Rights
All Intellectual Property Rights and all other rights in the Deliverables shall be owned by Nayaka Security. The Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, non-transferable and worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If the Supplier terminates the Contract under 11.1, this licence will automatically terminate.
The Customer acknowledges that the Customer's use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
Confidentiality and Supplier's property
Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's Representatives [whether before or] [after the date of this agreement] in connection with the Contract, including but not limited to:
the existence and terms of this agreement;
any information that would be regarded as confidential by a reasonable business person relating to:
the business, assets, affairs, customers, clients, suppliers, or plans , intentions, or market opportunities of the disclosing party [(or of any member of the group of companies to which the disclosing party belongs); and
the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
any information developed by the parties in the course of carrying out this agreement.
Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
The provisions of this Condition shall not apply to any Confidential Information that:
is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this Condition);
was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
the parties agree in writing is not confidential or may be disclosed; or
is developed by or for the receiving party independently of the information disclosed by the disclosing party.
Each party shall keep the other party's Confidential Information secret and confidential and shall not:
use such Confidential Information except for [the purpose of exercising or performing its rights and obligations under or in connection with this agreement; or
disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this 9.
A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this Condition.
A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Condition 9.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.
On termination or expiry of this agreement, each party shall:
destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;
erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
certify in writing to the other party that it has complied with the requirements of this Condition, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this Condition shall continue to apply to any such documents and materials retained by a recipient party, subject to Condition 11 (Termination).
Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
The provisions of this Condition 9 shall continue to apply after termination or expiry of this agreement.
Limitation of liability
The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:
any breach of the Contract however arising;
any use made by the Customer of the Services, the Deliverables or any part of them; and
any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
All warranties, conditions and other terms implied by statute or common law are, to the greatest extent permitted by law, excluded from the Contract.
Nothing in these conditions excludes the liability of the Supplier:
for death or personal injury caused by the Supplier's negligence; or
for fraud or fraudulent misrepresentation.
Subject to 10.2 and 10.3:
the Supplier shall not in any circumstances be liable, whether in tort (including for [negligence or] breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
loss of profits; or
loss of business; or
depletion of goodwill or similar losses; or
loss of anticipated savings; or
loss of goods; or
loss of contract; or
loss of use; or
wasted expenditure; or
loss or corruption of data or information; or
any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
the Supplier's total liability in contract, tort (including negligence or breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or the contemplated performance of the Contract shall be limited to the total amount due (plus interest if applicable) for the 3 year period of the agreement.
Termination
Without prejudice to any other rights or remedies to which the Supplier may be entitled, if the Customer terminates the Contract for any reason, the Customer will be liable to pay the full amount (plus interest if applicable), of the Contract. The Supplier may terminate the Contract but without liability to the Customer if:
the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 90 days after being notified in writing to make such payment;
the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
[the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;]
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in 11.1(d) to 11.1(k) (inclusive);
[the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or]
there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
On termination for whatever reason, the total amount due and outstanding under the Contract will become payable immediately.
Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
Force majeure
Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed.
Waiver
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Severance
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
If any provision or part-provision of this agreement is deemed deleted under 15.1, the parties shall negotiate in good faith to amend such provision so that, to the greatest extent possible, the amended provision achieves the intended commercial result of the original provision.
Entire agreement
This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that, in entering into this agreement, it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
Nothing in this Condition shall limit or exclude any liability for fraud.
Assignment
The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement, provided that it gives prior written notice of such dealing to the Customer.
The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
Third party rights
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
Notices
Any notice given to a party under or in connection with this Contract shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case)
Any notice shall be deemed to have been received:
if delivered by hand, at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
This condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Governing law
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and interpreted in accordance with the law of England and Wales.
Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).