Standard Terms and Conditions Of Business
1. In these conditions the following apply :
(I) “the Company” means Netcomm Systems Ltd.
(II) “the System(s)” means the functional specification(s) and/or programming together with all relevant documentary or machine readable material that are required to implement a Client’s requirements.
(III) “the Client” means any individual or organisation to whom computer Personnel and/or Systems and/or Systems Maintenance services are provided or are to be provided by the Company.
(IV) “the Contract” means a binding Contract in writing between the Company and the Client for the provision of products and/or services.
(V) “the Personnel” means computer personnel employed by the Company to fulfill a Contract between the Company and the Client.
(VI) “Systems Maintenance” means the maintenance of an agreed set of programmes the type and origin which are delineated in each specification proposal and/or the maintenance of Hardware.
(VII) “Systems Specification” means a document defining the operation of a given unit of programmes which was the basis of the Company development of the programmes to be maintained or produced under an existing Contract, together with the subsequent documentation which has been accepted by the Client.
(VIII) “Hardware” means any physically tangible item which the Company is undertaking to supply or provide Systems Maintenance on for the Client. Hardware may on occasions form part of the System or Systems Specification.
2. All quotations, Contracts and sales transactions are made subject to the following terms and conditions provided that any special condition in any quotation or Contract shall prevail to the extent that they are inconsistent with the following terms and conditions.
3. If the Company’s terms and conditions (whether specific or general) shall be at variance or inconsistent with any printed conditions attached to the Client’s order then the Company’s terms and conditions shall prevail and be effective notwithstanding any similar conditions otherwise applying to Client’s orders.
4. A quotation that is stated to be for a fixed price shall be deemed to have been withdrawn unless an order in respect thereof is placed within the period specified in the quotation.
5. All quotations or schedules of service to be rendered by Personnel are based upon a seven and a half hour working day and a thirty seven and a half hour working week, excluding the week end and public holidays. Although the Company will use its best endeavours to ensure that such quotations are as accurate as possible no liability can be accepted for any failure to comply with such quotations.
6. If the Company is providing Systems or Systems Maintenance involving third party products and/or services, then the terms and conditions of the third party supplier(s) will be held to also be in affect only in relation to their particular product or service.
COST OF SYSTEMS AND/OR SYSTEMS MAINTENANCE
7. Except as mentioned in condition 8 in respect of a quotation or acceptance of an order where the cost is expressly stated to be fixed for a specific period, the Company reserves the right to alter its quotation or other prices in respect of the System or Systems Maintenance at any time if variation in the cost of materials to be supplied by the Company and/or Personnel labour cost shall in the absolute opinion of the Company make such an alteration necessary.
8. Where in a quotation or acceptance of an order a cost is expressly stated to be fixed for a specific period and for any reason (except where the same is due to the default of the Company) services are made under quotation or order after the end of the said period, the Company reserves the right by written notice to the Client in respect of such services to charge in addition to the fixed price such business increases in price resulting from variation in the costs of materials to be supplied and/or Personnel labour cost as have occurred since the date of the quotation or order (as the case may be).
9. Expenses will normally be dealt with in the quotation itself. Where no specific clause relating to expenses is included, it will be assumed that all Personnel expenses while working on the Company’s premises or elsewhere with Client’s approval will be invoiced to the Client at cost. Such expenses include accommodation and travel beyond the normal commuting distance of a member of Personnel.
10. The basis for charging (time and materials, fixed price or any variation thereof) will be stated in the quotation but in all cases, unless specifically agreed in writing to the contrary by both parties, the Company will submit monthly invoices to the Client setting out costs incurred (including expenses if any) and/or charges due.
11. All charges payable by the Client to the Company shall be due for payment not later than 28 days from invoice date unless stated otherwise on the invoice. Non-compliance with the Company’s terms of payment shall constitute default without reminder. In the case of default the Company may charge interest at the rate of 1.5% per month from the date on which payment falls due. In the event that the Client should fail to fulfil the terms of payment quoted in respect of any invoice the Company may at its sole discretion demand payment of all outstanding balances whether due or not and/or cancel all outstanding Contracts and/or cease all work on behalf of the Client until all outstanding charges have been paid or satisfactory securities given. The Client shall not be entitled to withhold or set off payment for any reason whatsoever. The Company shall not be responsible for any loss borne by the Client due to any cancellation of Contracts or cessation of work.
12. Where appropriate (that is, time and materials, or approved variations to a fixed price), the Personnel costs incurred shall be calculated at the hourly rate for the individual concerned as detailed in our Table of Charges in force at that time.
13. In case of Personnel whose services are provided on an ad hoc basis for part or all of a Contract, charging shall be in an hourly basis and invoices will be sent to the Client for the work done as and when it occurs.
14. Unless otherwise agreed in writing, the minimum time charged for Personnel working on the Client’s premises on an ad hoc basis shall be half a day for up to half a day’s travelling and attendance and shall be one day for any longer period up to one day.
15. In the case of Personnel who give services on a daily or weekly basis the Client will be charged one and a half times the standard rate for occasional overtime except in the case of week end or public holiday worked by Personnel when the rate will be two times the standard rate as per the Table of Charges in force at that time.
WORK ON CLIENT’S PREMISES AND ITEMS SUPPLIED BY THE CLIENT
16. For all work that has to be undertaken on the Client’s premises the client will provide a place of work, necessary supplies and suitable accommodation for each member of Personnel. This includes reasonable access to the Client’s premises and personnel outside of normal working hours.
17. Unless otherwise agreed in writing, the Client agrees to provide all the necessary data entry, computer time and computer supplies without charge. In the event of unavailability of a suitably located computer hardware configuration to be provided by the Client and capable of being used for maintenance and systems testing for seven consecutive hours within the normal working day, the Company reserves the right to charge the Client for any additional costs incurred due to the lack of machine time or software maintenance aids. Such costs will based on the Company’s Table of Charges in force at that time.
18. Where services are being provided via a remote modem link to the Client’s premises, the client will ensure that their best endeavours are made to provide a suitable computer hardware configuration as identified by the Company, and provide reasonable access to the System including hours outside of normal working hours as required by the Company.
19. Unless otherwise instructed differently by the Company the Client will ensure that, as a minimum, daily data backups of the System are performed together with monthly entire System backups which will be made available to the Company as required.
20. Systems will be specified, designed, implemented and tested only from a statement of requirements approved by the Client. Such a statement will identify those points at which Client approval is required before implementation proceeds.
21. The Client undertakes to carry out a systems acceptance test and to inform the Company of the results, that is, correct and acceptable or incorrect and unacceptable (with a detailed description of the basis of this latter categorisation) in writing within one month of delivery of the System to the Client. If such results are incorrect and unacceptable the Company will arrange for the System to be re-implemented. If the Company receives no notification within one month of delivery the Client shall be deemed to have accepted the System.
22. If the Company is prevented from delivering any Systems by the time provided for delivery by reason of any unexpected or exceptional cause then the period of delivery shall be extended by the duration of the occurrence.
23. On the assumption that maintenance covers software to operate on a given designed computer system, the following types of software shall be covered by any Systems Maintenance Contract between the Company and the Client:
a. Manufacturers software: programs supplied by the original machine manufacturer essential for the operation or use of that computer (including compilers and utilities) and supported by the manufacturer.
b. Non-manufacturers software: as a. but where the supplier is not the manufacturer or the Client or the Company, but is supported by the supplier.
c. Other software: software as defined in a. but either not supported or produced by the Client.
d. The Company’s software: software as defined in a. that is provided or supported by the Company under a software support Contract.
e. Application programs: all programs specifically relevant to the Client’s use of the computer.
f. Non-application programs: any programs not fitting into categories a-e which are specifically defined by the Company under a software support Contract.
The definition of “supported” in these terms is taken to indicate that a failure in the software is the responsibility of the supplier to correct although not necessarily within a given time.
24. The Company’s Systems Maintenance covers the categories of support as defined in condition 23 either for programs written by the Company or by another supplier, as set out in the quotation. Unless otherwise stated, it is assumed that for programs not supplied by the Company, the relevant standards of documentation have been adhered to. Any documentation that lacks such information may result in additional charges to the Client.
25. a. The Company supplied programs – only the programs accepted by the Client following systems acceptance tests and as defined in the original Systems Specification shall be deemed to be the subject of any ongoing Systems Maintenance Contract.
b. Non-Company supplied programs – only those programs as detailed in the quotation shall be covered unless additional programs are added by mutual agreement in writing between the Client and the Company.
26. The System Maintenance Contract specifically excludes the re-installation of programs required as a result of hardware or software failure. The Company reserves the right to either charge for such time as Personnel shall be required to perform program installation (at the rate in the Company’s Table of Charges in force at that time), or require the Client’s personnel to perform the installation as required by the Company.
MAINTENANCE OF PROGRAMS
27.1 The Company supplied programs:
a. If it can be proven by the Client that the programs produced and supplied by the Company fail to operate on data included in the systems acceptance tests or data defined as valid input to the System in the Systems Specification, or that results produced are at variance to this specification, then the Company will provide its best endeavours to correct any relevant program faults under the Contract.
b. Where data not specified as valid input or results of processing not covered by the original Systems Specification are found to be the cause of failure of the program or incorrect results then the Company will inform the Client of :
I. The variance or omission in the Systems Specification.
II. The estimated cost of correction and if required correct the fault on a time and materials basis.
c. Where the error in a program is not covered by any maintenance Contract and which is not the subject of an additional maintenance Contract the Company will inform the Client of the fault, its apparent origin and the expected delay incurred. Upon invitation of the Client the Company may be prepared to undertake a correction or bypassing of the fault on a time and materials basis.
27.2. Non Company supplied programs:
The Company agrees to maintain the programs defined under the Contract during the agreed period subject to the following limitations:
I. Where the fault is in a program not covered by a Company Contract for Systems Maintenance the procedure in 28.1c would apply.
II. The correction of faults is limited to faults that are due to incorrect coding of programs and does not cover re-designing or re-writing programs that are wrong in concept. In these circumstances clause 27.1c would apply.
III. Faults due to failure of or limitations in, the Hardware on which the programs operate, are not covered by the Company’s Contracts unless specifically referred to in the quotation.
27.3. Where faults are found to be due to other than programs or system design faults, the Company reserves the right to charge the Client for the time and material cost of investigating the fault if the Client could reasonably have been accepted to have been responsible, that is, for operator errors (incorrect data, failure to read procedure manuals etc.).
27.4 Maintenance will normally by provided by Personnel between the hours of 9.00am and 5.30pm Monday to Friday excluding public and Company holidays unless otherwise agreed in writing. Where services can in no way be provided by remote link or by telephone assistance to the Client’s personnel and hence Personnel are required on the Client’s premises, if meaningful time on the day designated for arrival remains using normal transport, Personnel will arrive before 5.00pm or, failing this, by 10.00am the following day unless otherwise agreed by the Company.
28. The Client undertakes to indemnify the Company against all third party claims made against the Company arising on an act performed or omitted to be performed by any member of Personnel during the course of giving service to the Client in accordance with the Contract provided always that the indemnity given by this clause shall not extend to any liability which is covered by the Company’s public liability insurance.
29. The Client shall use its best endeavours to ensure that no programs, materials or information supplied by it to the Company shall be such to cause the Company, in carrying out the Client’s order, to infringe any letters patent, registered design, trade mark or copyright and the Client undertakes to indemnify the Company against all claims, costs, damages and expenses which the Company may incur by reason of any infringement or otherwise arising out of the use by the Company by such programs, materials or information for the purpose of or in connection with the performance of the Company of its Contract with the Client.
30. The Client undertakes to supply Personnel with such data records and staff, as the Company considers necessary to provide proper services to the Client in accordance with the terms of the Contract. The Company undertakes not to divulge or communicate to any person, firm or company any confidential information so acquired without written consent of the Client.
WARRANTIES AND CLAIMS
31. a. No condition or warranty is given or shall be implied by statute common law or otherwise in respect of the Systems and in particular as to the fitness of the Systems for any particular purpose or as to their corresponding with any particular description or with any samples supplied as to the quality thereof.
b. Whilst any survey, advice, representation or forecast given or implied from anything said or written in discussion or negotiations between the Company and the Client or other representatives prior to making of the Contract are given in good faith and on the basis of the facts before the Company, the Company shall be under no legal liability in respect thereof to any persons.
SUB-CONTRACTING AND SUBSTITUTE PERSONNEL
32. a. If any of the Personnel shall become no longer available for any reason the Company will supply a similarly experienced person as soon as is possible. If the Company fails to do so within six weeks then the Client may cancel the outstanding part of the Contract. Similar conditions will apply in the case of subsequent replacements.
b. The Company shall be free at any time to sub-Contract any part or parts of any Contract between the Company and the Client.
CLIENT CANCELLATION OR ALTERATIONS TO CONTRACTS
33. a. The Client shall not be entitled to cancel the Contract or any part thereof except on such terms as to indemnify to the Company (including loss of profit) as the Company may have prior to the Client’s cancellation agreed in writing. The Company is not bound to agree to the cancellation and may complete the Contract not withstanding any reported cancellation by the client.
b. No variation of a term of the Contract (unless specifically authorised by these conditions) shall bind either party unless such variation is made in writing signed by the party to be bound.
RESERVATION OF PROPERTY AND RIGHT OF DISPOSAL
34. Until payment by the Client in full of the charges and any other monies payable to the Company in respect of the Contract;
a. The property in the Systems shall remain in the Company
b. The Client shall hold the Systems in fiduciary capacity for the Company
c. If the Client shall receive from any person any payment in respect of the Systems the Client shall receive and hold such monies on behalf of the Company and shall forthwith pay there from all sums due in respect of the System.
At any time after the occurrence of any event specified in condition 36 hereof the Company or its agents may enter the premises of the Client and take possession of the Systems and remove and dispose of them as the Company thinks fit. The Company shall apply the proceeds of disposal (after deduction of all expenses) in discharge of the amount unpaid by the Client.
35. The Client shall be deemed to be in breach of contract if it:
a. Makes default or commits any such breach of its obligations to the Company hereunder or
b. Is involved in any legal proceedings in which its solvency is in question or
c. Is a Company and any meeting is convened or resolution passed or petition is presented (otherwise then for re-construction or amalgamation) to wind it up or a Receiver is appointed or
d. Ceases or threatens to cease trade or if in the opinion of the Company serious doubts arise as to the Client’s solvency then in any such case the Company shall immediately become entitled (without prejudice to its other claim rights under the Contract) to suspend further performance of the Contract for such time not exceeding six months as it shall in its absolute discretion think fit or (whether or not notice of such suspension shall have been given), to treat the Contract as wrongly repudiated by the Client and forthwith terminate the Contract. The Company will notify the Client of the exercise of it’s option to suspend or terminate the Contract within a reasonable time of its becoming aware of the actual default on the Client’s part giving rise to the Company’s rights under this condition.
e. Should fail to make any payments as required by the Contract.
LIMITATION OF LIABILITY
36. It is expressly stipulated that in the event of any claim on any ground being made by the Client in respect of the Systems or other matters arising from or in relation to the Contract (including but without prejudice to the generality any claim for non delivery or of default in or damage to the Systems or in respect of any breach of any term, condition or warranty relating to the quality or quantity of the Systems) the liability of the Company shall be limited (in respect of each claim or series of connected claims) to the invoice value of the Systems and under no circumstances shall the Company be liable for any consequential loss howsoever arising.
37. In particular, but without limitation, the Company shall not be liable for loss or damage suffered, arising from, or the consequence of the Client’s act or default in relation to:
a. Errors in the specification of requirement.
b. Delays in providing essential information for the completion of any specification, design, or programming, or in providing any approvals of such, as may be necessary for work to proceed.
c. Illegible information being supplied.
d. Faulty, damaged or incorrectly packaged computer media being supplied to the Company.
e. The late arrival or the non-arrival of test data.
f. Incorrect data supplied or data out of specified sequence or in wrong form.
g. Failure to inform the Company of an error in work which the Client has undertaken to examine.
h. Delays attributable to manufacturer’s software not performing to specification or not being available.
I. The provision of out of date or inaccurate manuals or information relating to the machine configuration and operating systems on which the Systems are to be run.
j. Delays in obtaining machine time for testing affecting any schedule of testing.
TERMINATION OF TIME AND MATERIALS CONTRACTS
38. Time and materials Contracts may, unless the duration of the Contract is otherwise agreed in writing between the Company and the Client, be terminated by either party giving one months notice to the other party in writing.
39. When notice to terminate a time and materials Contract is given by the Client, the Company undertakes to continue to make Personnel available to the Client for a period of one month from the date of receipt of the notice. Upon expiration of this period all data documents, programs or other related items will be handed over to the Client who shall be deemed to accept them as complete and satisfactory performance of the Contract.
40. When notice to terminate a time and materials Contract is given by the Company, the Company undertakes to continue to make Personnel available to the Client for a period of one month from the date of receipt of the notice by the Client. Only those items that the Company considers to be completed will be invoiced.
41. All Contracts shall be governed by English Law. Any dispute whether of interpretation or otherwise as to the liability either of the Company or the Client arising out of the Contract or any part thereof shall be determined by the English Court of Law to whose jurisdiction and decision the Company and the Client shall submit and hereby agree to be bound.
42. The sub heading of these conditions are not to be regarded as part thereof.