Terms & Conditions
1. Interpretation
The definitions and rules of interpretation in this clause apply in these terms and conditions “(Conditions)”
| “Customer’s Equipment” | any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services; |
| “Customer’s Manager” | the Customer’s manager for Services, appointed in accordance with condition 6.1; |
| “Deliverables” | all Documents, products and materials developed by the Supplier in relation to a Project Plan in any form, including computer programs, data, reports and specifications (including drafts) and such deliverables as may be specified in the Project Plan; |
| “Document” | includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form; |
| “In-put Material” | all Documents, information and materials provided by the Customer relating to the Services, including computer programs, data, reports and specifications and such in-put materials as may be specified in the Project Plan; |
| “Intellectual Property Rights” | all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral 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 for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world; |
| “Pre-existing Materials” | all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications and such pre-existing materials as may be specified in the Project Plan; |
| “Project” | a project as described in a Project Plan; |
| “Project Milestones” | a date by which a part of the Project is estimated to be completed, as set out in the Project Plan; |
| “Project Plan” | the detailed plan describing a Project and setting out the estimated timetable (including Project Milestones) and responsibilities for the provision of the Services agreed in accordance with condition 4; |
| “Services” | the services to be provided by the Supplier under the Contract as set out in Schedule 1, together with any other services which the Supplier provides or agrees to provide to the Customer; |
| “Supplier’s Equipment” | any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer; |
| “Supplier’s Manager” | the Supplier’s manager for the Services appointed under condition 5.3; |
| “VAT” | Value added tax chargeable under English law for the time being and any similar additional tax. |
1.1 Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 The Terms and Conditions form part of the Contract and shall have effect as if set out in full in the body of a Contract and/or schedules.
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to writing or written excludes faxes but includes e-mail.
1.6 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
2. Application of conditions
2.1 These Conditions shall:
2.1.1 apply to and be incorporated into any Contract; and
2.1.2 prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer’s purchase order, and the Customer’s acceptance of a quotation for Services by the Supplier through completion and submission of a Proposal Acceptance Document, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:
2.2.1 by the completion of a Project Agreement Document (PAD) and return to the Supplier before the project start; or
2.2.2 when a contract for the supply and purchase of those Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
3. Commencement and duration
3.1 The Services supplied shall be provided by the Supplier to the Customer from the date of acceptance by the Supplier of the Customer’s offer in accordance with condition 2.2 or the date specified in a Project Plan, if different.
3.2 The Services supplied shall continue to be supplied until the Project is completed in accordance with the Project Plan or for a stated period and, shall continue to be supplied unless the Contract is terminated by one of the parties giving to the other not less than one months’ notice. See Early Cancellation penalties in 8.6.
4. Project Plan
4.1 Project Plan(s) shall be agreed in the following manner:
4.1.1 the Customer shall provide the Supplier with a request for a Project Plan, setting out the requirements and specifications of the services which it is requesting from the Supplier, including a description of what work is to be done, dates by which is requested to be started and finished, Deliverables, In-put Materials and such other information as the Supplier may request to allow the Supplier to prepare a draft Project Plan;
4.1.2 the Supplier shall, as soon as reasonably practicable, provide the Customer with a draft Project Plan; and
4.1.3 the Supplier and the Customer shall discuss and agree the draft Project Plan and when it has been agreed, they shall both sign a copy of it and it shall become Schedule 2 to and subject to these Conditions.
4.2 The Supplier shall charge for the preparation of the Project Plan on a time and materials basis in accordance with condition 8.
4.3 Once the Project Plan has been agreed and signed in accordance with condition 4.1.3, no amendment shall be made to it except in accordance with condition 7 and condition 15.
5. Supplier’s obligations
5.1 The Supplier shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Customer, in accordance in all material respects with Schedule 1 as may be modified by a Project Plan.
5.2 The Supplier shall use reasonable endeavours to meet any performance dates or Project Milestones specified in Schedule 1 OR the Project Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
5.3 The Supplier shall appoint the Supplier’s Manager who shall have authority contractually to bind the Supplier on all matters relating to the Services. The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier’s Manager throughout the term of the Contract, but may replace him from time to time where reasonably necessary in the interests of the Supplier’s business.
5.4 The Supplier shall use all reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises and that have been communicated to it under condition 6.1.5, provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
6. Customer’s obligations
6.1 The Customer shall:
6.1.1 co-operate with the Supplier in all matters relating to the Services and appoint the Customer’s Manager in relation to the Services, who shall have the authority contractually to bind the Customer on matters relating to the Services;
6.1.2 provide, for the Supplier, its agents, sub-contractors and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as requested by the Supplier;
6.1.3 provide, in a timely manner, such In-put Material and other information as the Supplier may request and ensure that it is accurate in all material respects;
6.1.4 be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services;
6.1.5 inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises;
6.1.6 ensure that all Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant UK standards or requirements;
6.1.7 obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Supplier’s Equipment, the use of In-put Material and the use of the Customer’s Equipment in relation to the Supplier’s Equipment in all cases before the date on which the Services are to start;
6.1.8 keep, maintain and insure the Supplier’s Equipment in good condition and shall not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation;
6.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
6.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
6.4 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of six months after the last date of supply of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier in the provision of the Services.
6.5 Any consent given by the Supplier in accordance with condition 6.4 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee or sub-contractor.
7. Change control
7.1 The Customer’s Manager and the Supplier’s Manager shall meet on a pre-agreed frequency to discuss matters relating to the Services. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
7.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
7.2.1 the likely time required to implement the change;
7.2.2 any variations to the Supplier’s charges arising from the change;
7.2.3 the likely effect of the change on the Project Plan; and
7.2.4 any other impact of the change on the terms of the Contract.
7.3 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. The Supplier may, from time to time, change the Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, it will give the Customer reasonable notice of any change.
7.4 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of the Contract to take account of the change.
7.5 The Supplier may charge for its time spent in assessing a request for change from the Customer on a time and materials basis in accordance with condition 8.
8. Charges and payment
8.1 The following will apply for charges:
8.1.1 the charges payable for the Services shall be calculated in accordance with the Supplier’s standard daily fee rates, as amended from time to time;
8.1.2 the Supplier’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between 8.00 am and 5.00 pm on weekdays (excluding public holidays);
8.1.3 the Supplier shall be entitled to charge an overtime rate of 50% of the normal daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in condition 8.1.2;
8.1.4 all charges quoted to the Customer shall be exclusive of VAT which the Supplier shall add to its invoices at the appropriate rate;
8.1.5 the Supplier shall ensure that every individual whom it engages on the Services completes time sheets recording time spent, and the Supplier shall use such time sheets to calculate the charges covered by each monthly invoice referred to in condition 8.1.6; and
8.1.6 the Supplier shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition 8.1. Expenses will include the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier to the Customer;
8.2 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of invoice date. Invoices will be dated after work has been completed, or on the last calendar day of the month in which the work is done.
8.3 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
8.3.1 charge interest on such sum from the due date for payment at the current interest rate as governed by The Late Payment of Commercial Debts (Interest) Act 1998 and the Late Payment of Commercial Debts Regulations 2002 accruing on a daily basis whether before or after any judgment; and charge fixed fee compensation as set out in the above-mentioned Act, plus additional reasonable costs; and
8.3.2 suspend all Services until payment has been made in full.
8.4 Time for payment shall be of the essence of the Contract.
8.5 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 8.5 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.6 Early cancellation of any contract, whole or partial, is subject to a cancellation charge. This charge becomes applicable from project commencement date. The project commencement date is the date the PAD is signed by the Customer. Cancellation fees are a scaled percentage of the charges scheduled to be charged to the Customer within the following 30 days following the date notice was received by the Supplier
8.6.1 If notice is served less than 30 days from project commencement the Customer will incur 100% of scheduled services/products in the following 30 days being payable by the Customer; if 31-60 days notice is served from project commencement 50% of scheduled services/products will be payable. A notice period in excess of 60 days will incur 0% cancellation charge.
8.6.2 If notice to vary project dates is issued less than 14 days prior to the scheduled date, then 100% of the fees for scheduled services will become payable. Variations between 15-30 days prior to the scheduled project date will incur a 50% variation fee. Variations with more than 30 says notice will incur no fee. In all cases bigrock will make reasonable efforts to accommodate variations and to levy this charge only if variations have a material effect on bigrock and/or its associates. Variation of dates within a project will be subject to the same potential level of charge as cancellations. Bigrock will make reasonable efforts to accommodate such variations.
8.7 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
9. Intellectual property rights
9.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier. Subject to condition 9.2, the Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Contract is terminated, this licence will automatically terminate.
9.2 Use of the material provided by the Supplier is limited to those people specifically covered by the scope of each project.
9.3 The Customer acknowledges that, where the Supplier does not own any Pre-existing Materials, the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
9.4 In the context of this clause 9, ‘reasonable use’ shall mean use by the Customer within the limits defined in the Proposal and or any Deliverable as the case may be.
10. Confidentiality and the Supplier’s property
10.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents or sub-contractors and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
10.2 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including Pre-existing Materials and the Supplier’s Equipment) shall, at all times, be and remain as between the Supplier and the Customer the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
10.3 This condition 10 shall survive termination of the Contract, however arising.
11. Limitation of liability
11.1 This condition 11 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
11.1.1 any breach of the Contract;
11.1.2 any use made by the Customer of the Services, the Deliverables or any part of them; and
11.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions limits or excludes the liability of the Supplier:
11.3.1 for death or personal injury resulting from negligence; or
11.3.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
11.3.3 for any liability incurred by the Customer as a result of any breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
11.4 Subject to condition 11.2 and condition 11.3:
11.4.1 the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
11.4.1.1 loss of profits; or
11.4.1.2 loss of business; or
11.4.1.3 depletion of goodwill and/or similar losses; or
11.4.1.4 loss of anticipated savings; or
11.4.1.5 loss of goods; or
11.4.1.6 loss of contract; or
11.4.1.7 loss of use; or
11.4.1.8 loss or corruption of data or information; or
11.4.1.9 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
11.4.2 the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the lower of £50,000 and 100% of the price paid for the Services.
12. Data protection
12.1 The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier in connection with the Services.
13. Termination
13.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
13.1.1 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
13.1.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
13.1.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
13.1.4 a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
13.1.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
13.1.6 the other party ceases, or threatens to cease, to trade; or
13.1.7 there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001); or
13.1.8 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.2 On termination of the Contract for any reason:
13.2.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
13.2.2 the Customer shall, within a reasonable time, return all of the Supplier’s Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
13.2.3 the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
14. Force majeure
14.1 The Supplier shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, snow, ice, storm or default of suppliers or sub-contractors.
15. Variation
15.1 Subject to condition 4 and condition 7, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
16. Waiver
16.1 A waiver of any right under these terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
16.2 Unless specifically provided otherwise, rights arising under these Terms are cumulative and do not exclude rights provided by law.
17. Severance
17.1 If any provision (or part of a provision) of these Terms are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
18. Status of pre-contractual statements
18.1 Each of the parties acknowledges and agrees that, in entering into a Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
19. Assignment
19.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
19.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
20. No partnership or agency
20.1 Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. Rights of third parties
21.1 A Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
22. Notices
22.1 Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address or email, given in the Contract (or such other address, email or person as the relevant party may notify to the other party) and shall be delivered personally, sent by email or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of email, at the time of receipt, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 22 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by email, to the email address of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
23. Governing law and jurisdiction
23.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
23.2 The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms, related Contracts or its subject matter.
This agreement has been entered into on the date the Proposal Acceptance Document (PAD) is signed