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STANDARD TERMS AND CONDITIONS FOR SUPPLY OF PRODUCTS AND SERVICES
BY
KERNOW INFORMATION TECHNOLOGY SOLUTIONS (KitSolutions).
1
DEFINITIONS
In this document the following words shall have the
following meanings:
1.1
"Agreement" means these Terms and Conditions together with the terms of any applicable
Specification Document;
1.2
"Customer" means the organization or person who purchases products or services from
the Supplier;
1.3
"Intellectual Property Rights" means all patents, registered and unregistered designs,
copyright, trademarks, know-how and all other forms of intellectual property wherever
in the world enforceable;
1.4
"Specification Document" means a statement of work, quotation or other similar document
describing the products or services to be provided by the Supplier;
1.5
“Project” means all products, services or goods described in the “Specification
Document”;
1.6
"Supplier" means. KitSolutions, 7 Chandlers Walk, St Austell, Cornwall, PL25 3NB
2
GENERAL
2.1
These Terms and Conditions shall apply to all contracts for the supply of products
or services by the Supplier to the Customer.
2.2
Before the commencement of the Project the Supplier shall submit to the Customer
a Specification Document which shall specify the goods and services to be supplied
and the price payable. The Customer shall notify the Supplier immediately if the
Customer does not agree with the contents of the Specification Document. All Specification
Documents shall be subject to these Terms and Conditions.
2.3
The customer shall provide the supplier with a signed copy of the specification
document or purchase order as confirmation of acceptance of the Terms and Conditions
and the price payable.
2.4
The Supplier shall use all reasonable endeavors to complete the Project within estimated
time frames but time shall not be of the essence in the performance of any services.
3 PRICE AND PAYMENT
3.1
The price for the supply of the Project is as set out in the Quotation Document.
The Supplier shall invoice the Customer.
3.2
A deposit of 25% of the total price is payable by the Customer to the Supplier prior
to commencement of the Project.
3.3
A further 25% of the total price is payable by the Customer to the Supplier on completion
of the Project prototype.
3.4
The balance of the total price is payable by the Customer to the Supplier on completion
of the Project.
3.5
Invoiced amounts shall be due and payable within 30 days of receipt of invoice.
The Supplier shall be entitled to charge interest on overdue invoices from the date
when payment becomes due from day to day until the date of payment at a rate of
4% per annum above the base rate of the Bank of England.
4 SPECIFICATION
OF THE PROJECT
The Project shall be required only to conform to the
Specification Document. For the avoidance of doubt no description, specification
or illustration contained in any product pamphlet or other sales or marketing literature
of the Supplier and no representation written or oral, correspondence or statement
shall form part of the contract.
5
DELIVERY
5.1
The date of delivery specified by the Supplier is an estimate only. Time for delivery
shall not be of the essence of the contract and the Supplier shall not be liable
for any loss, costs, damages, charges or expenses caused directly or indirectly
by any delay in the delivery of the goods.
5.2
All risk in the Project shall pass to the Customer upon delivery.
6 TITLE
6.1
Title in the Project shall not pass to the Customer until the Supplier has been
paid in full.
6.2
Unless otherwise agreed, Title in the Project does not include any application code
used in development of the Project. The code shall remain the Intellectual Property
of the Supplier as detailed in Clause 13.
7
CUSTOMER'S
OBLIGATIONS
7.1
To enable the Supplier to perform its obligations under this Agreement the Customer
shall:
7.1.1 Co-operate
with the Supplier;
7.1.2 Provide
the Supplier with any information reasonably required by the Supplier;
7.1.3 Obtain
all necessary permissions and consents which may be required before the commencement
of the Project; and
7.1.4 Comply
with such other requirements as may be set out in the Specification Document or
otherwise agreed between the parties.
7.2
The Customer shall be liable to compensate the Supplier for any expenses incurred
by the Supplier as a result of the Customer's failure to comply with Clause 7.1.
7.3
Without prejudice to any other rights to which the Supplier may be entitled, in
the event that the Customer unlawfully terminates or cancels the Project agreed
to in the Specification Document, the Customer shall be required to pay to the Supplier
as agreed damages and not as a penalty the full amount of any third party costs
to which the Supplier has committed and in respect of cancellations on less than
five working days written notice the full amount of the goods and services contracted
for as set out in the Specification Document, and the Customer agrees this is a
genuine pre-estimate of the Supplier's losses in such a case. For the avoidance
of doubt, the Customer's failure to comply with any obligations under Clause 7.1
shall be deemed to be a cancellation of the goods and services and subject to the
payment of the damages set out in this Clause.
7.4
In the event that the Customer or any third party, not being a sub-contractor of
the Supplier, shall omit or commit anything which prevents or delays the Supplier
from undertaking or complying with any of its obligations under this Agreement,
then the Supplier shall notify the Customer as soon as possible and:
7.4.1 The
Supplier shall have no liability in respect of any delay to the completion of any
Project;
7.4.2 If
applicable, the timetable for the Project will be modified accordingly;
7.4.3 The
Supplier shall notify the Customer at the same time if it intends to make any claim
for additional costs.
8 ALTERATIONS TO
THE SPECIFICATION DOCUMENT
8.1
The parties may at any time mutually agree upon and execute new Specification Documents.
Any alterations in the scope of the Project to be provided under this Agreement
shall be set out in the Specification Document, which shall reflect the changes
to the Project and price and any other terms agreed between the parties.
8.2
The Customer may at any time request alterations to the Specification Document by
notice in writing to the Supplier. On receipt of the request for alterations the
Supplier shall, within 10 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 price and any other terms already agreed between the parties.
8.3
Where the Supplier 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 10 working days of receipt of such notice or such other period
as may be agreed between the parties, advise the Supplier by notice in writing whether
or not it wishes the alterations to proceed.
8.4
Where the Supplier 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
Specification Document shall be amended to reflect such alterations and thereafter
the Supplier shall perform this Agreement upon the basis of such amended terms.
9 WARRANTY
9.1
The Supplier warrants that as from the date of delivery for a period of one year
the Project and all of its component parts, where applicable, are free from any
defects in design, workmanship, construction or materials.
9.2
The Supplier 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.
9.3
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
goods and services to be provided by the Supplier.
10 INDEMNIFICATION
The Customer shall indemnify the Supplier against all
claims, costs and expenses which the Supplier 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 the Supplier alleging that any goods and/or
services provided by the Supplier in accordance with the Specification Document
infringes a patent, copyright or trade secret or other similar right of a third
party.
11 LIMITATION OF LIABILITY
11.1 Except
in respect of death or personal injury due to negligence for which no limit applies,
the entire liability of the Supplier 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 price paid by the Customer to which the claim relates.
11.2 In
no event shall the Supplier 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 the Supplier had been made aware of the possibility of the Customer
incurring such a loss.
11.3 Nothing
in these Terms and Conditions shall exclude or limit the Supplier's liability for
death or personal injury resulting from the Supplier's negligence or that of its
employees, agents or subcontractors.
12 TERMINATION
Either party may terminate this Agreement forthwith
by notice in writing to the other if:
12.1 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;
12.2 The
other party commits a material breach of this Agreement which cannot be remedied
under any circumstances;
12.3 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;
12.4 The
other party ceases to carry on its business or substantially the whole of its business;
or
12.5 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.
13 INTELLECTUAL PROPERTY
RIGHTS
All Intellectual Property Rights produced from or arising
as a result of the performance of this Agreement shall, so far as not already vested,
become the absolute property of the Supplier, and the Customer shall do all that
is reasonably necessary to ensure that such rights vest in the Supplier by the execution
of appropriate instruments or the making of agreements with third parties.
14 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.
15 INDEPENDENT CONTRACTORS
The Supplier 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. The Supplier 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 the Supplier of its obligations
under this Agreement or any applicable Specification Document.
16 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 the Supplier.
17 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.
18 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.
19 NOTICES
Any notice to be given by either party to the other
may be served by e-mail, fax, personal service or by post to the address of the
other party given in the Specification Document or such other address as such party
may from time to time have communicated to the other in writing, and if sent by
e-mail 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.
20 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.
21 NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall
it confer any rights on a third party.
22 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in
accordance with the law of England and the parties hereby submit to the exclusive
jurisdiction of the English courts.
23 SOLICITATION
23.1 The
Customer agrees and undertakes that it will not solicit, in any way the services
of any staff member with whom it has had dealings during a period of three months
prior to its approach.
23.2 This
undertaking shall not apply in respect of any staff member who without having been
previously approached directly or indirectly
by the Customer responds to any advertisement placed by the Customer or on the Customers
behalf.
23.3 Should
the Customer breach the terms of this undertaking and employ or engage a staff member
(without the Company's prior consent) the Company reserves the right to charge the
Customer a fee of 20% of the staff members annual earnings from the Company.
24 DATA PROTECTION
24.1 The
customer agrees that the Company may make such enquiries and searches and obtain
such references as it considers reasonable from any person, firm or company including
any credit reference agency; and further agrees that the company may keep a record
of the search on its file.
24.2 It
is a condition of this Contract that the Customer enters this Contract as principal
and not as agent for any other person or party. The Customer by entering this Contract
agrees and represents that it does so as principal and not as agent. However, if
the contrary to this, The Customer does enter in to this Contract as agent, then
KitSolutions may sue and obtain judgment against the principle party.
24.3 If
as a result of any non-payment or any other breach of this Contract by the Customer
instructs solicitors, or takes any steps, action or proceedings however to obtain
payment or to entertain its right here under, the Customer shall be obliged fully
to indemnify the Company in respect of any costs( which, if proceedings are issued
shall be paid by the Customer on the indemnity basis) or expenses or liabilities
thereby suffered or incurred by the Company.
24.4 If
at any time one or more of the Conditions in this document become in whole or in
part void, invalid or unenforceable the remainder of these conditions shall nevertheless
remain valid an enforceable.
24.5 All
notices here under shall be in writing and shall be given by hand or sent prepaid
first class post, facsimile or telex to the party concerned at its last known address.
Notices sent by first class post shall be deemed (in the absence of earlier receipt)
to have been delivered forty eight hours after dispatch and notices sent by facsimile
or telex shall be deemed to have been delivered on the first working day following
the date of their dispatch.
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