1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement: “Contract” means the contract made between the Client and Smartlogic to which these terms of business apply; “Smartlogic” means Smartlogic IT Ltd (company 15890637);
“Materials” means any and all materials developed, written or prepared by Smartlogic, its employees, agents or sub-contractors in relation to the Project (whether individually, collectively or jointly with the Client and on whatever media) including, without limitation software, program documentation, any and all reports, studies, data, diagrams, charts and specifications “Products” means all the cabling, computer hardware, other equipment, software programs, Third Party Services and Third Party Software agreed by the parties as necessary for the Project other than the Materials and “Product” means any one of them; “Project” means the provision to the Client of the Services; “Proposal” means the proposal detailing the Services to which these terms of business are attached, as varied from time to time. The Proposal and Terms of Business shall when accepted by the Client form part of and be deemed to be incorporated into the Contract; “Services” means the services described in the Proposal, including the delivery of the Products, installation of a computer network and programming of any Materials for the Client; “Third Party Software” means the software of any third party licensor to be supplied or supported as part of this Contract; “Third Party Services” means services provided by third party suppliers (other than Smartlogic) to be supplied or supported as part of this Contract including Internet services and security services.
1.2 Smartlogic supplies Products and Materials on its own account and not as agent or otherwise on behalf of any other party.
2. THESE TERMS AND CONDITIONS TO APPLY
2.1 These terms and conditions shall apply to the provision of Services and shall apply to the exclusion of any terms and conditions of the Client, whether included in any purchase order, acceptance letter or otherwise.
3. OBLIGATIONS OF SMARTLOGIC
3.1 The Services shall be provided by Smartlogic and/or its subcontractors with reasonable skill and care by personnel having the necessary skill, expertise and qualifications to ensure the proper performance of Smartlogic’s obligations hereunder.
3.2 Unless other working hours are agreed in the Proposal, personnel provided by Smartlogic will at all times be subject to Smartlogic’s normal working hours for the time being.
3.3 Smartlogic’s personnel will, when on the Client’s site, comply with such codes of staff practice as apply to the Client’s staff and as disclosed to Smartlogic by the Client.
3.4 Services by nominated personnel are offered subject to their availability at the time the relevant work on the Project requires to be done. Where nominated personnel are not available they will be substituted with suitably qualified replacements.
4. CHARGES
4.1 If Smartlogic and the Client have agreed a fixed price for the Services or any part thereof the Client will pay to Smartlogic the amount specified in the Proposal for such services in accordance with the payment schedule specified in the Proposal.
4.2 If the Client has agreed to pay for the Services or any part thereof on a time and materials basis, then unless otherwise agreed the Client will be charged at Smartlogic’s then prevailing rates and invoiced monthly in arrears for such elements. Such prices will remain fixed until completion of the Project or the date three months from the Client’s acceptance of the Proposal, whichever is the shorter period, and thereafter may be increased by Smartlogic to reflect any increases in staff and other overheads.
4.3 Any estimate given by Smartlogic (whether in the Proposal or otherwise) of the amount payable for Materials and Products will be given in good faith but the Client recognises that the amount payable may exceed such estimate, or subject to change by Smartlogic’s suppliers. Smartlogic shall give the Client such reasonable notice as is practicable upon Smartlogic becoming aware that any estimate given is likely to be exceeded.
4.4 All charges payable under this Contract are exclusive of VAT, which shall be paid by the Client in addition, where applicable.
4.5 Punctual payment is of the essence of the Contract. If any sum payable under this Contract is not paid on or before the due date then (without prejudice to Smartlogic’s other rights and remedies) Smartlogic reserves the right to suspend performance of the Services or delivery of the Products and to charge interest on such sum on a day to day basis (as well after as before any judgment) from the due date to the date of payment (both dates inclusive) at the rate of four percent above the base rate of Barclays Bank plc from time to time in force, compounded quarterly. Any interest shall be paid on demand.
5. PRODUCT SUPPLY
5.1 Smartlogic agrees to sell and the Client agrees to purchase the Products. Whilst Smartlogic will use reasonable endeavours to source any Products to be supplied under this Contract, in some cases, a particular item may no longer be available from the manufacturer. Subject to prior consultation with the Client, Smartlogic reserves the right prior to delivery of the item of Products to substitute an alternative component for any item which is no longer available provided such substitution does not materially affect the performance of the item concerned or the system as a whole and will not result in any increase in the price without agreement to such in writing from the Client.
5.2 Smartlogic shall not be responsible for any delay in the performance of the Services arising from the late delivery or non-delivery to it of Products by its suppliers. Any milestones in the Proposal shall be extended accordingly.
5.3 Unless otherwise agreed the Products are supplied in accordance with the Manufacturer’s standard specification. Smartlogic reserves the right to increase its quoted or listed price or to charge accordingly in respect of any order accepted for Products of non-standard specifications and in no circumstances will it consider cancellation of such orders or the return of the relevant Product thereafter.
5.4 Where Products have been imported from the United States, US Government restrictions may limit the further exportation of such items and the Client undertakes that it shall not re-export such items without first obtaining such approvals as are necessary from the appropriate authorities. Such approvals and the cost of obtaining them are the responsibility of the Client.
6. CLIENT’S DEFAULT, TERMINATION, CANCELLATIONS AND RE-SCHEDULING OF DELIVERIES
6.1 This Contract may be terminated forthwith by Smartlogic by notice in writing to the Client if the Client shall fail to pay any sum due to Smartlogic within 30 days of its due date, shall have a receiver or administrative receiver appointed, shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), shall become subject to an administration order, enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.
6.2 If circumstances arise which entitle Smartlogic to terminate this Contract, or this Contract is terminated, or the Client purports to sell the Materials or Products to a third party before it has paid in full therefore, Smartlogic is irrevocably authorised to enter forthwith the Client’s site(s) for the sole purpose of repossessing and removing the Materials and Products. Smartlogic shall not be responsible for any damage or loss of data thereby caused. Any termination of this Contract shall discharge Smartlogic from any liability for further performance of this Contract and shall entitle Smartlogic to demand immediate settlement in full of all outstanding invoices and work in progress. The licence in clause 13.3 shall automatically terminate.
6.3 Any termination of this Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
6.4 Subject to clause 5.3, the Client shall not return Products or Materials without first obtaining a returns number from Smartlogic and Smartlogic shall not accept such Products or Materials unless returned (at the Client’s expense) in new condition, complete and together with manuals, within five working days of receipt by the Client. The Client shall indemnify Smartlogic against all losses including any restocking charges sustained or incurred by Smartlogic, which are attributable to such action by the Client.
7. DELIVERY AND INSTALLATION
71. Smartlogic will use all reasonable endeavours to meet the estimated delivery and installation dates set out in the Proposal but such dates are estimates only. In the event of dates slipping, Smartlogic shall inform the Client as soon as reasonably possible. Smartlogic shall deliver the Products to the Site(s) specified by the client.
72. Requests by the Client for cancellation or amendment of any order for the rescheduling of deliveries or installation of the Products and performance of the Services will only be considered by Smartlogic if made in writing and shall be subject to the written acceptance of Smartlogic.
7.3 The Client recognises that it is responsible for completion of each milestone allocated to it in the Proposal.
7.4 If Smartlogic shall be prevented or delayed from performing any of its obligations under this Contract by reason of any act or omission of the Client then, notwithstanding anything else contained in this Contract the timetable shall be extended accordingly and the Client shall pay to Smartlogic all reasonable costs, charges and losses sustained or incurred by Smartlogic which are attributable to such act or omission.
7.5 Except where and to the extent that cabling is being provided by Smartlogic hereunder, the Client shall ensure that all necessary cables and connectors are installed, operating and available to Smartlogic on the delivery date, and that a clean power supply is available. Unless specified in the Proposal, only cables supplied by the manufacturer of any Products as part of same will be delivered with it and the provision and cost of all other cabling will be the responsibility of the Client.
7.6 It is the Client’s responsibility to ensure that the operating environment shall be suitable for the operation of the Products once installed. Unless and to the extent specified in the Proposal, the cost to modify the environment, lay new power cables and lay new communication lines is not included under this Contract.
8. ACCEPTANCE
8.1 Upon completion of the Project, Smartlogic may at its option go through the Proposal and a job sheet to ensure all milestones are met, for which purpose the Client shall provide at the time requested by Smartlogic a representative authorised to witness the checking, the purpose of which is to demonstrate to the Client that the Products and Materials have been delivered and properly installed. The Client’s representative shall then sign the job sheet as having been successfully completed, at which point acceptance shall be deemed to have taken place. Where an item fails for any reason during the check list procedure this shall be shown on the job sheet accordingly and demonstrated later when rectified, except that where successful completion fails through no fault of Smartlogic, including but not limited to, failure of the Client to provide a representative at the appropriate time or to annotate the job sheet as having been successfully completed if such has been the case, or failure of either hardware, software, cabling or any other item not supplied.
9. RESPONSIBILITIES OF THE CLIENT
91. Subject to clause 3.3 the Client shall afford Smartlogic such access to its site and equipment and other products or software not installed by Smartlogic as part of the Services and such information, documentation, records and other material and such co-operation and assistance relevant to the provision of the Services as Smartlogic may reasonably require to provide the Services and shall appoint a contact person to co-ordinate support activities for the Client. The Client shall be entitled to change the contact name stated subject to informing Smartlogic in writing on or before such changes. The Client shall ensure that the contacts are sufficiently trained to enable proper liaison between Smartlogic and the Client.
9.2 The Client shall ensure that regular back-ups of its data are created and suitable security measures are taken to protect its I.T. assets. Smartlogic shall not be liable for any loss or damage sustained or incurred by the Client or any third party through loss or spoiling of data resulting from the performance of the Services except where caused by its negligence. Smartlogic will use reasonable endeavours to put right any such loss of data or programs, but reserves the right to charge for such (save where caused by the negligence of Smartlogic).
9.3 The Client shall indemnify Smartlogic against any liability (including professional costs and expenses) suffered or incurred by Smartlogic arising out of or in connection with any claim alleging infringement or misuse of a third party’s confidential information, copyright or any other intellectual property rights in the event that Smartlogic are required by the Client to use the information or material concerned or the information or material concerned is received by Smartlogic from the Client save to the extent that Smartlogic shall have failed to comply with the Client’s reasonable instructions regarding the use and security of such information or material.
10. SUPPORT SERVICES
Any maintenance or support services in relation to any of the Products or Materials are covered by Smartlogic’s Support Agreement as amended by the parties from time to time.
11. TRAINING
Smartlogic shall provide the training set out in the Proposal at such times, as the parties shall agree. Training days booked by the Client and subsequently cancelled by it without a clear seven days’ notice period provided in writing to Smartlogic will be charged for in full.
12. THIRD PARTY SOFTWARE
12.1 Third Party Software to be provided hereunder is as detailed in the Proposal. The licences for Third Party Software will be supplied with the said Third Party Software.
12.2 In respect of Third Party Software, the intellectual property rights conditions, any indemnity relating thereto and restrictions and/or requirements relating to use and/or copying shall all be as set out in the appropriate direct licence agreement. It is a prerequisite of use of Third Party Software that such licences are complied with and where applicable signed and passed to the relevant licensor. Save for Smartlogic’s obligations to supply, and where necessary install or support such Third Party Software, the Client acknowledges that Smartlogic shall have no other liability in respect thereof.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 Bespoke software Materials or other consultancy services (if any) to be produced by Smartlogic under this Contract will be described in the Proposal. The Proposal can only outline in broad terms the functionality required of any Materials and there will be a need for co-operation between the parties in order to arrive at a mutually agreed specification which shall not exceed the Proposal under any circumstances unless by agreement of the parties. The Proposal will include an acceptance test or acceptance criteria based on key operational functions agreed with the Client.
13.2 Prior to installation of any Materials the Client may at any time request and Smartlogic may at any time recommend changes thereto. Neither party shall be obliged to agree to any change unless and until such change is a formal amendment to this Proposal. The Client will be entirely responsible for the affect of any change on timescales and price as a result. All changes shall be on a time and materials basis.
13.3 Save as may be expressly otherwise agreed with the Client any and all copyright and other intellectual property rights throughout the world in the Materials shall vest exclusively in Smartlogic and Smartlogic hereby grants to the Client on payment in full of all monies due to Smartlogic from the Client a perpetual, non-exclusive and non- transferable licence to the Client to use and copy the Materials for its own business purposes but for no other purpose whatsoever. The Client shall not be entitled to sub-licence the whole or any part of the Materials, unless otherwise agreed in writing.
14. LIABILITY
14.1 In no circumstances shall Smartlogic have any obligation or duty or liability in contract, tort, negligence, breach of statutory duty or otherwise beyond that of a duty to exercise reasonable skill and care. Except where otherwise provided in these terms and conditions, Smartlogic shall be under no liability whatever except where caused by the negligence or wilful default of Smartlogic its servants or agents. All conditions, warranties or other terms, whether express or implied, statutory or otherwise, are hereby expressly excluded provided that nothing in this paragraph shall exclude or restrict any liability of Smartlogic or its servants or agents.
14.2 Smartlogic shall not be liable to the Client in contract, tort, negligence, breach of statutory duty or otherwise for any indirect or consequential or economic loss whatsoever, including but not limited to loss of business, data, use of equipment or other facilities, profits, future contracts or anticipated savings.
14.3 Smartlogic’s total liability in contract, tort, negligence, breach of statutory duty or otherwise arising out of or in connection with the Services or any other Products shall be limited to one million pounds (£1 million) to any one event or series of connected events.
14.4 Nothing in this Contract shall exclude liability for death or personal injury resulting from the negligence of Smartlogic or its employees while acting in the course of their employment.
14.5 The Client shall indemnify Smartlogic against all actions, proceedings, claims or demands in any way connected with the Project brought or threatened against Smartlogic by a third party except to the extent that Smartlogic is liable to the Client under this Contract.
14.6 Each provision of these terms and conditions excluding or limiting liability is to be construed as a separate exclusion or limitation applying and surviving even if for any reason one or other of the said provisions is held inapplicable or unreasonable in any circumstances and shall remain in full force notwithstanding termination of this Contract.
15. CONFIDENTIALITY AND NON-SOLICITATION
15.1 Smartlogic and the Client shall keep confidential all information received from or on behalf of the other which relates to the business of the other or which is designated in writing as confidential at the time of its supply. This duty of confidence shall not extend to any information which was already in the public domain or in the possession of the receiving party or lawfully received from a third party nor to information already published at the date of such disclosure or subsequently published or disclosed through no fault of the receiving party nor to any information which can be shown to have been independently developed or created without access to the information disclosed.
15.2 Except as expressly provided herein or for the purposes of the Project the Client shall not use, exploit, divulge or disclose to third parties Smartlogic’s business systems, methodologies, proprietary systems or application programs which may be communicated to or gained by the Client in connection with or in the course of the Project.
15.3 Each party shall promptly notify the other if it becomes aware of any breach of confidence by any person to whom the information is divulged and shall give the other all reasonable assistance in connection with any proceedings which it may institute in relation thereto. These provisions as to confidentiality shall remain in full force and effect notwithstanding any termination of this Contract.
15.4 The Client shall not (and shall procure that any company in its group of companies shall not) during the term of this Contract, or for a period of twelve months after completion of the Services, solicit, engage or employ any of the employees or contractors used by Smartlogic in the performance of the Services.
16. TITLE AND RISK
16.1 Title in any Materials and Products supplied by Smartlogic under this Contract shall remain with Smartlogic until such time as the Client has paid the price in relation thereto in full together with any other sums then properly due under this Contract. Until such payment is received by Smartlogic, the Client shall hold the Materials and Products on a fiduciary basis and as bailee for Smartlogic in such a way that such Materials and Products are identifiable as belonging to Smartlogic and if the Client fails to pay the price Smartlogic, as owner, shall be entitled to demand return of the Materials and Products or to collect same from the Client in accordance with clause 6.2 above. At no time does title pass in any software supplied under this Contract.
16.2 Notwithstanding the above, any risk of damage or destruction of items under this Contract and delivered to Site(s) shall be borne by the Client from the time of delivery who shall be responsible for arranging insurance to cover the full replacement value thereof from such time.
17. FORCE MAJEURE
17.1 Smartlogic shall not be liable for the cancellation by it of any order or any unfulfilled part thereof or for effecting partial delivery if performance by Smartlogic is prevented or delayed whether directly or indirectly by any cause whatsoever beyond the reasonable control of Smartlogic whether such cause existing or was foreseeable at the date of acceptance of the Client’s order by Smartlogic or not and without prejudice to the generality of the foregoing any cause shall be deemed to prevent, hinder or delay Smartlogic if Smartlogic is thereby prevented, hindered or delayed from fulfilling other commitments whether to the Client or to third parties.
18. GENERAL
18.1 Smartlogic is an independent contractor and nothing in this Contract shall render it an agent or partner of the Client.
18.2 The Proposal, these Terms of Business, and any document referred to in any of the foregoing constitute the entire agreement between Smartlogic and the Client relating to the subject matter of the Proposal and shall supersede all previous communication (whether oral or written) relating thereto; the Client has not relied on any representation, arrangement, understanding, term or agreement (whether written or oral) not expressly set out or referred to in any such document and save as so expressly set out in any of the same as may be implied by statute or howsoever otherwise are excluded to the fullest extent permitted by law.
18.3 Any variation or addition to the Proposal or these terms of business or any other such document shall only be effective if agreed by both Smartlogic and the Client in writing.
18.4 In the case of any conflict between any provision of the Proposal and these terms of business the Proposal shall prevail.
18.5 The Client may not assign or transfer its rights or obligations under this Contract without the prior written consent of Smartlogic.
18.6 Smartlogic shall be entitled to engage on such terms, as Smartlogic shall think fit the services of independent contractors of its own to assist it with its duties hereunder.
18.7 No forbearance, delay or indulgence by either party in enforcing the provisions of this Contract shall prejudice or restrict the rights of that party nor be construed or deemed to be a waiver of any of that party’s rights hereunder and no waiver of any breach shall operate as a waiver of any subsequent or continuing breach.
18.8 If any of the provisions of this Contract are invalid under any applicable statute or rule of law then to that extent they are deemed omitted.
18.9 Any notice to be given hereunder shall be delivered or sent by post or email to the address of the other party set out in the Proposal (being the site address or such other address as may have been notified in accordance with this clause) and any notice shall be deemed to have been served if delivered at the time of delivery, if sent by first class pre-paid post to and from an address within the United Kingdom 48 hours after posting, if by pre-paid airmail to or from an address outside the United Kingdom 5 days after posting and if sent by.
18.10 Smartlogic may advertise or otherwise disclose its appointment or the terms of this Contract save to the extent that the Client shall have reasonably raised a prior objection in writing.
18.11 This Contract shall be governed by and construed in accordance with the laws of England the parties hereby submit to the non-exclusive jurisdiction of the English Courts.
