Subject to clause 10.3 below, these Terms and Conditions (the "Terms") relate to and should be read in conjunction with and in accordance with the Confirmation of Order a copy of which is attached hereto or printed on the reverse.
1. Interpretation
1.1 In this Agreement save where the context otherwise requires the words and phrases below shall have the following meaning:
"Agreement" means the Confirmation of Order and the Terms and any schedules and recitals of either;
"Client" means the person or company identified in the Confirmation of Order;
"Client Trade Marks" means the trade marks, service marks, trade names, logos and the trading style of Client;
"Company" means Simbiotik Limited, a company registered under number 06777044;
"Confirmation of Order" means the confirmation of order signed by Client and Company to which these Terms are annexed or printed on the reverse;
"Deliverable" means any product, document or other deliverable item (including software) that Company has agreed to supply to Client as part of the Services;
"Group" means in relation to a company, that company and any company of which it is a Subsidiary (its holding company) and any other Subsidiaries of any such holding company. Unless the context otherwise requires, the application of the definition of Group to any company at any time shall apply to Company as it is at that time;
"Intellectual Property Rights" means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world and "Intellectual Property" shall be construed accordingly;
"Services" means the consultancy services more particularly set out in the Confirmation of Order;
"Subsidiary" in relation to a company (a holding company) wherever incorporated, means a "subsidiary" as defined in section 1159 of the Companies Act 2006 and any other company which is a subsidiary (as so defined) of a company which is itself a subsidiary of such holding company. Unless the context otherwise requires: - (a) the application of the definition of Subsidiary to any company at any time shall apply to Company as it is at that time; and (b) references to Subsidiary or Subsidiaries are references to a subsidiary or subsidiaries of Company;
"VAT" means Value Added Tax or such other tax as may be properly chargeable under any UK legislation.
1.2 The headings to the clauses set out in this Agreement are for ease of reference only and shall not affect the interpretation or construction thereof.
1.3 In this Agreement words expressed in any gender shall where the context so requires or permits include any other gender and words importing persons shall include bodies corporate, firms, organisations and partnerships and other incorporated bodies or unincorporated bodies or otherwise and vice versa.
1.4 In this Agreement words expressed in the singular shall where the context so requires or permits include the plural and references to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.
1.5 In this Agreement any reference to days means calendar days.
2. Services
2.1 Subject to the terms and conditions of this Agreement, Company shall perform the Services in accordance with the terms hereof.
2.2 Company shall apply such time, attention, resources, personnel and skill as may be necessary or appropriate for its performance of the Services hereunder.
2.3 Company shall use all reasonable endeavours to deliver Deliverables by any date(s) agreed but time of delivery shall not be of the essence.
2.4 Company shall be solely responsible for the selection and allocation of personnel to perform the Services and reserves the right to use persons other than its employees to perform the Services.
2.5 None of Company's personnel who perform the Services shall become an employee of Client and Client shall not have any obligation to pay any such personnel's salary, national insurance, social security or any other amounts required by law or by contract to be paid to or in respect of any such personnel by his or her employer.
2.6 Company warrants that the Services will be carried out with reasonable skill and care in accordance with the terms of this Agreement.
3. Client's Obligations
3.1 Client shall be responsible for specifying fully and clearly its requirements from the Services. Client agrees to provide Company promptly with all information, data, reports and other materials that Company may reasonably require from time to time to facilitate the performance of the Services. Client warrants that all such information, representations, data, reports and other materials is/are accurate and complete and that Client is entitled to provide the same to Company for Company's use without recourse to any third party.
4. Payment of Consideration
4.1 In consideration of the Services to be provided by Company hereunder, Client shall pay to Company the Consideration
4.2 In addition to the Consideration, Client shall reimburse Company for all reasonable expenses incurred by Company in the course of performing the Services.
4.3 Company shall invoice Client either at the end of each calendar month in respect of all Consideration payable and all expenses incurred in respect of Services performed during the relevant calendar month or on the dates specified in the Confirmation of Order, if specified.
4.4 Client shall pay Company's invoices within 30 days of the invoice date. All invoices and all payments hereunder shall be in UK pounds sterling.
4.5 All sums referred to in this Agreement are payable in full without deduction, withholding or set-off for any reason whatsoever and are exclusive of Value Added Tax and any other duty or tax, which shall (if and to the extent applicable) be payable by Client.
4.6 Payment on time is an essential term of this Agreement, notwithstanding any other provision of this Agreement, in the event that the Consideration (or any part thereof) is not paid by the due date or dates set out in the Agency's monthly invoices or in this Agreement, the Agency reserves the right to, at the cost and expense of Client: -
4.6.1 suspend its provision of the Services or part thereof; and/or
4.6.2 terminate the Services or part thereof; and/or
4.6.3 charge interest on any sums not paid at a rate of 8% above the base rate of Barclay's Bank Plc per month or part thereof from the date due to the date such sum is received by the Agency.
5. Intellectual Property Rights
5.1 Client acknowledges and agrees that all Intellectual Property Rights in the Deliverables, wherever in the world enforceable, shall immediately upon creation vest in and shall be and remain the sole and exclusive property of Company.
5.2 Company hereby grants Client a perpetual royalty free non-transferable licence to use the Deliverables in the United Kingdom for the purposes contemplated hereunder but for the avoidance of doubt no ownership in the Intellectual Property Rights in the Deliverables shall pass to the Client unless specifically agreed with the Company in the Confirmation of Order.
5.3 If and to the extent that any of the Deliverables comprise or include any work the Intellectual Property Rights in which belong to a third party, Company shall procure a licence for Client to use such work on such terms as may be agreed between Company and the relevant third party.
5.4 Company shall retain all Intellectual Property Rights in any documents, data, drawings, specifications, articles, computer programs, object code, source code, network designs, notes, sketches, reports, inventions, improvements, modifications, discoveries, tools, scripts and other items created, produced or developed by Company (whether alone or jointly with others) either (i) during the term of this Agreement but not solely for the purposes of providing the Services or (ii) prior to the signature of the Confirmation of Order.
5.5 The terms of and obligations imposed by this Clause 5 shall survive the termination of this Agreement for any reason.
6. Limitation of Liability - Client's attention is particularly drawn to this condition
6.1 Nothing in this Agreement excludes or limits Company's liability: - (i) for death or personal injury caused by Company's negligence; (ii) for any liability, which it would be illegal for Company to exclude or attempt to exclude; or (iii) for fraud or fraudulent misrepresentation.
6.2 Subject to the exception in clause 6.1 above, Company shall not be liable for any damages, losses, costs, charges or expenses of whatever nature caused by, arising out of or in any way connected with, or for any failure by Company to perform any obligation hereunder due to causes beyond its reasonable control (including without limitation industrial disputes, acts of terrorism, fires, floods, acts of God and hostilities) or any other circumstances which Company could not reasonably foresee and provide against.
6.3 Subject to the exception in clause 6.1 above, Company shall not be liable to Client for any indirect or consequential losses or damage howsoever arising including without limitation loss of profits, pure economic loss, loss of business, repudiation, depletion of goodwill, liability Client may have with someone else, loss of opportunity, damage or corruption to or loss of use of computer equipment, software or data or loss of time on the part of management or other staff and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
6.4 Without prejudice to the provisions of sub-clause 6.1 to 6.3 hereof any liability of Company in respect of any claims of whatever nature arising out of or in any way connected with this Agreement (including any liability of Company for negligence) shall not in any circumstances whatsoever exceed the amount which Company's insurance company pays out in respect of a claim or 25,000 whichever is the greater.
6.5 This Agreement sets forth the full extent of Company's obligations and liabilities in respect of the performance of the Services. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Company except as specifically stated in this Agreement. Any condition, warranty representation or other term concerning the performance of the Services which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise, is hereby excluded.
7. Confidentiality
7.1 Each party shall keep confidential all information (whether written or oral) concerning the business of another party that it has obtained or received as a result of the performance and negotiation of the Agreement between the parties.
8. Restrictions
8.1 The Client agrees that both during and for a period of eight months after the term of this Agreement, the Client shall not without the prior written consent of the Company:
8.1.1 employ or engage any person who is (or was at any time during the term of this Agreement) a director, employee, agent or contractor of the Company and with whom the Company has had dealings pursuant to this Agreement (a "relevant person"), or solicit or induce any such relevant person to terminate their employment or engagement with the Company;
8.1.2 engage or accept services from or otherwise deal with any company, partnership or other entity of which any relevant person is a director, employee, agent or contractor.
8.2 During and for a period of eight months after the term of this Agreement, the Client shall not assist or encourage any Related Third Party to engage in, nor shall it procure that any Related Third Party engages in, any of the conduct referred to in Clauses 8.1.1 or 8.1.2. "Related Third Party" for this purpose means any of the Client's affiliates, subsidiaries or sub-contractors or any other persons with whom the Client is associated and/or of whom the Client has control.
8.3 The Client acknowledges that all relevant persons are subject to corresponding restrictions preventing them from being employed or engaged by or providing services to the Client for a period after the termination of their employment or engagement with the Company.
8.4 Each of the covenants in this clause 8 are considered fair and reasonable by the parties.
9. Term and Termination
9.1 This Agreement will be deemed to take effect on the date of the last signature on the Confirmation of Order and will have effect, subject to clauses 9.2 and 9.3 below, until the payment of Company's final invoice.
9.2 Always provided that either party may not rely on their own Breach of clause 9.2.1 below or Circumstance in clause 9.2.2 below, Company or Client may terminate this Agreement forthwith on giving written notice to the other party if:-
9.2.1 Company or Client commits a serious breach of the Agreement and (in the case of a breach capable of being remedied) shall have failed to remedy such breach within 14 days after the receipt of a request in writing from the other party to do so ("Breach"); or
9.2.2 Company or Client fails to comply with a statutory demand or goes into liquidation (other than for the purpose of reconstruction or amalgamation) or has a resolution passed for its winding-up or has an administration receiver appointed or has a petition presented to the court for an administrative order under Part 11 of the Insolvency Act 1986 or has a voluntary arrangement approved under Part 1 of the Insolvency Act 1986 or 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 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is declared bankrupt or deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply ("Circumstance").
9.4 Termination of this Agreement for whatever reason shall not affect the accrued rights or liabilities of any party and this clause along with clauses 5, 6, 7, 8 and 9.5 shall survive termination.
9.5 Upon the termination of this Agreement for any reason each party shall within 30 days of termination send to the other or otherwise dispose of in accordance with the reasonable directions of the other party any copies in hard or electronic format of any confidential information belonging to that party.
10. General
10.1 Neither Client nor Company shall be entitled to assign, sub-license or otherwise transfer the benefit or burden of this Agreement to any person without the prior written agreement of the other party.
10.2 This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between them relating to its subject matter. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of each of the parties.
10.3 In the event of any conflict between the provisions set out in the Confirmation of Order and the Terms, the Confirmation of Order shall take precedence in relation to that matter.
10.4 Each party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly set out in this Agreement.
10.5 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect, and if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
10.6 The failure by any party to exercise a right or remedy hereunder shall in no manner affect that party's ability to exercise its right or remedy at a later time. No waiver by a party of the breach of any provision hereof whether by conduct or otherwise on any one or more instances shall be deemed to be further or continuing waiver of such provision.
10.7 All notices, which are required to be given hereunder, shall be in writing and shall be sent to the address of the recipient set out in the Confirmation of Order. Any such notice may be delivered by hand or by first class pre-paid letter or facsimile and shall be deemed to have been served by hand when delivered if by first class post 48 hours after posting and if by facsimile when delivery confirmation is received.
10.8 A person who is not a party to this Agreement shall not have any rights under or in connection with it.
10.9 This Agreement shall be governed by and construed in accordance with the laws of England. Any dispute that may arise between the parties concerning this Agreement shall be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of those courts.