| 1 |
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DEFINITIONS
In this document the following words shall have the following meanings: |
| 1.1 |
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"Agreement" means
these Terms and Conditions together with the terms of any Cost Specification
Document; |
| 1.2 |
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"Customer" means
the organisation or person who purchases services from Dave Cutler; |
| 1.3 |
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"Intellectual Property
Rights" means all patents, registered and unregistered designs,
copyright, trade marks, know-how and all other forms of intellectual
property wherever in the world enforceable; |
| 1.4 |
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Cost Specification Document
means a statement of work or quotation provided by Dave Cutler; |
| 1.5 |
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"Supplier" means
Dave Cutler,
12 Woodrush Close,
Taunton,
Somerset,
TA1 3XB |
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| 2 |
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GENERAL |
| 2.1 |
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These Terms and Conditions
shall apply to all contracts for the supply of services by Dave Cutler
to the Customer. |
| 2.2 |
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Before the commencement of
the services Dave Cutler shall submit to the Customer a Cost Specification
Document which shall specify the fees payable in return for completion
of the requested work. The Customer shall notify Dave Cutler immediately
if the Customer does not agree with the Cost Specification Document.
All Cost Specification Documents shall be subject to these Terms and
Conditions. |
| 2.3 |
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Dave Cutler shall use all
reasonable endeavours to complete the services within estimated time
frames but time shall not be of the essence in the performance of any
services. |
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| 3 |
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FEES AND PAYMENT |
| 3.1 |
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The fees for the performance
of the services are as set out in the Cost Specification Document. Dave
Cutler shall invoice the Customer for the services as detailed therein. |
| 3.2 |
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Invoiced amounts shall be
due and payable within 30 days of receipt of invoice. Dave Cutler shall
be entitled to charge interest daily on overdue invoices from the date
when payment becomes due from until the date of payment at a rate of
2% per annum above the base rate of the Bank of England. In the event
that the Customer's procedures require that an invoice be submitted
against a purchase order to payment, the Customer shall be responsible
for issuing such purchase order before the services are rendered. |
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| 4 |
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CUSTOMER'S OBLIGATIONS |
| 4.1 |
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To enable Dave Cutler to perform
its obligations under this Agreement the Customer shall:
- 4.1.1 - co-operate
with Dave Cutler;
- 4.1.2 - provide
Dave Cutler with any information reasonably required by Dave Cutler;
- 4.1.3 - obtain all
necessary permissions and consents which may be required before the
commencement of the services; and
- 4.1.4 - comply with
such other requirements as may be set out in the Cost Specification
Document or otherwise agreed between the parties.
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| 4.2 |
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The Customer shall be liable
to compensate Dave Cutler for any expenses incurred by Dave Cutler as
a result of the Customer's failure to comply with Clause 4.1. |
| 4.3 |
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Without prejudice to any other
rights to which Dave Cutler may be entitled, in the event that the Customer
unlawfully terminates or cancels the services agreed to in the Cost
Specification Documents, the Customer shall be required to pay to Dave
Cutler as agreed damages and not as a penalty the full amount as set
out in the Cost Specification Documents, and the Customer agrees this
is a genuine pre-estimate of Dave Cutler's losses in such a case. For
the avoidance of doubt, the Customer's failure to comply with any obligations
under Clause 4.1 shall be deemed to be a cancellation of the services
and subject to the payment of the damages set out in this Clause. |
| 4.4 |
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In the event that the Customer
or any third party, not being a sub-contractor of Dave Cutler, shall
omit or commit anything which prevents or delays Dave Cutler from undertaking
or complying with any of its obligations under this Agreement, then
Dave Cutler shall notify the Customer as soon as possible and:
- 4.4.1 - Dave Cutler
shall have no liability in respect of any delay to the completion of
any project;
- 4.4.2 - if applicable,
the timetable for the project will be modified accordingly;
- 4.4.3 - Dave Cutler
shall notify the Customer at the same time if it intends to make any
claim for additional costs.
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ALTERATIONS TO THE COST
SPECIFICATION DOCUMENTS |
| 5.1 |
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The parties may at any time
mutually agree upon and execute new Cost Specification Documents. Any
alterations in the scope of services to be provided under this Agreement
shall be set out in the Cost Specification Documents, which shall reflect
the changed services and fees and any other terms agreed between the
parties. |
| 5.2 |
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The Customer may at any time
request alterations to the Cost Specification Documents by notice in
writing to Dave Cutler. On receipt of the request for alterations Dave
Cutler shall, within 5 working days or such other period as may be agreed
between the parties, advise the Customer by notice in writing of the
effect of such alterations, if any, on the fees and any other terms
already agreed between the parties. |
| 5.3 |
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Where Dave Cutler gives written
notice to the Customer agreeing to perform any alterations on terms
different to those already agreed between the parties, the Customer
shall, within 5 working days of receipt of such notice or such other
period as may be agreed between the parties, advise Dave Cutler by notice
in writing whether or not it wishes the alterations to proceed. |
| 5.4 |
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Where Dave Cutler gives written
notice to the Customer agreeing to perform alterations on terms different
to those already agreed between the parties, and the Customer confirms
in writing that it wishes the alterations to proceed on those terms,
the Cost Specification Documents shall be amended to reflect such alterations
and thereafter Dave Cutler shall perform this Agreement upon the basis
of such amended terms. |
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| 6 |
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WARRANTY |
| 6.1 |
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Dave Cutler warrants that
the services performed under this Agreement shall be performed using
reasonable skill and care, and of a quality conforming to generally
accepted industry standards and practices. |
| 6.2 |
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Without prejudice to Clause
6.1, and except as expressly stated in this Agreement, all warranties
whether express or implied, by operation of law or otherwise, are hereby
excluded in relation to the services to be provided by Dave Cutler. |
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INDEMNIFICATION
The Customer shall indemnify Dave Cutler against all claims, costs
and expenses which Dave Cutler may incur and which arise, directly or
indirectly, from the Customer's breach of any of its obligations under
this Agreement, including any claims brought against Dave Cutler alleging
that any services provided by Dave Cutler in accordance with the Cost
Specification Documents infringes a patent, copyright or trade secret
or other similar right of a third party. |
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| 8 |
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LIMITATION OF LIABILITY |
| 8.1 |
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Except in respect of death
or personal injury due to negligence for which no limit applies, the
entire liability of Dave Cutler to the Customer in respect of any claim
whatsoever or breach of this Agreement, whether or not arising out of
negligence, shall be limited to the fees paid by the Customer to which
the claim relates. |
| 8.2 |
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In no event shall Dave Cutler
be liable to the Customer for any loss of business, loss of opportunity
or loss of profits or for any other indirect or consequential loss or
damage whatsoever. This shall apply even where such a loss was reasonably
foreseeable or Dave Cutler had been made aware of the possibility of
the Customer incurring such a loss. |
| 8.3 |
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Nothing in these Terms and
Conditions shall exclude or limit Dave Cutler's liability for death
or personal injury resulting from Dave Cutler's negligence or that of
its employees, agents or sub-contractors. |
| 8.4 |
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Because software is inherently complex and may not be completely free of errors,
it is your responsibility to verify our work and to make appropriate copies of data files on a regular basis.
Dave Cutler will not be responsible for failure to do so. In no event will Dave Cutler be liable for indirect,
special, incidental, tort, economic, cover or consequential damages arising out of the use or inability to
use Dave Cutler's products or services, including without limitation, damages or costs relating to the loss of profits,
business, goodwill, data or computer programs. |
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| 9 |
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TERMINATION
Either party may terminate this Agreement forthwith by notice in
writing to the other if: |
| 9.1 |
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the other party commits a
material breach of this Agreement and, in the case of a breach capable
of being remedied, fails to remedy it within 30 calendar days of being
given written notice from the other party to do so; |
| 9.2 |
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the other party commits a
material breach of this Agreement which cannot be remedied under any
circumstances; |
| 9.3 |
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the other party passes a resolution
for winding up (other than for the purpose of solvent amalgamation or
reconstruction), or a court of competent jurisdiction makes an order
to that effect; |
| 9.4 |
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the other party ceases to
carry on its business or substantially the whole of its business; or |
| 9.5 |
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the other party is declared
insolvent, or convenes a meeting of or makes or proposes to make any
arrangement or composition with its creditors; or a liquidator, receiver,
administrative receiver, manager, trustee or similar officer is appointed
over any of its assets. |
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| 10 |
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INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result
of the performance of this Agreement will vest in Dave Cutler until
all monies specified in the Cost Specification document are received
by Dave Cutler. Dave Cutler will then assign all IPRs to the customer,
and will execute any appropriate documents required to complete such
assignment. |
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| 11 |
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FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform
any of its obligations if the delay or failure results from events or
circumstances outside its reasonable control, including but not limited
to acts of God, strikes, lock outs, accidents, war, fire, the act or
omission of government, highway authorities or any telecommunications
carrier, operator or administration or other competent authority, or
the delay or failure in manufacture, production, or supply by third
parties of equipment or services, and the party shall be entitled to
a reasonable extension of its obligations after notifying the other
party of the nature and extent of such events. |
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| 12 |
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INDEPENDENT CONTRACTORS
Dave Cutler and the Customer are contractors independent of each
other, and neither has the authority to bind the other to any third
party or act in any way as the representative of the other, unless otherwise
expressly agreed to in writing by both parties. Dave Cutler may, in
addition to its own employees, engage sub-contractors to provide all
or part of the services being provided to the Customer and such engagement
shall not relieve Dave Cutler of its obligations under this Agreement. |
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| 13 |
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ASSIGNMENT
The Customer shall not be entitled to assign its rights or obligations
or delegate its duties under this Agreement without the prior written
consent of Dave Cutler. |
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| 14 |
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SEVERABILITY
If any provision of this Agreement is held invalid, illegal or unenforceable
for any reason by any Court of competent jurisdiction such provision
shall be severed and the remainder of the provisions herein shall continue
in full force and effect as if this Agreement had been agreed with the
invalid illegal or unenforceable provision eliminated. |
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| 15 |
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WAIVER
The failure by either party to enforce at any time or for any period
any one or more of the Terms and Conditions herein shall not be a waiver
of them or of the right at any time subsequently to enforce all Terms
and Conditions of this Agreement. |
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| 16 |
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NOTICES
Any notice to be given by either party to the other may be served
by email, fax, personal service or by post to the address of the other
party given in the Cost Specification Documents or such other address
as such party may from time to time have communicated to the other in
writing, and if sent by email shall unless the contrary is proved be
deemed to be received on the day it was sent, if sent by fax shall be
deemed to be served on receipt of an error free transmission report,
if given by letter shall be deemed to have been served at the time at
which the letter was delivered personally or if sent by post shall be
deemed to have been delivered in the ordinary course of post. |
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ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties
relating to the subject matter and supersedes any previous agreements,
arrangements, undertakings or proposals, oral or written. Unless expressly
provided elsewhere in this Agreement, this Agreement may be varied only
by a document signed by both parties. |
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| 18 |
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NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any
rights on a third party. |
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| 19 |
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GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance
with the law of England and Wales
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