BirchenallHowden Ltd Terms and Conditions of Business
In these conditions (“the Conditions”), (“the Company”) is BirchenallHowden Ltd,
(“the Client”) means the person, firm or organisation who commissions the services
of the Company and to whom the Company addresses a quotation, offer, tender, or
written proposal and (“the Services”) means the Services which are the subject
of such quotation, offer, tender, or written proposal. Terms and Conditions are
subject to change and revision, the most recent version can be found at
www.birchenallhowden.co.uk or by contacting the Company.
1 APPLICATION OF CONDITIONS
1.1 These Conditions shall apply to all contracts
between the Company and Client for the provision
of Services by the Company (“the Contract”) and all
quotations, offer, tender, or written proposals are made
and all orders are accepted by the Company subject
to these Conditions. Except as otherwise provided in
these Conditions or agreed in writing by the Company,
all other terms, conditions or warranties are excluded
from any Contract between the Company and the Client.
1.2 All brochures, descriptive matter, price lists or
advertisements whether or not supplied with the
quotation, offer, tender or written proposal, are
approximate only and intended merely to give a
general idea of the Services described therein and
shall not form part of the Contract.
2. PERFORMANCE OF THE SERVICES
2.1 Any time or date for the performance of the
Services is given as accurately as possible but is not
guaranteed. The Client shall have no right to cancel
the Contract if the Company fails to meet any agreed
time of performance in any event provided that if
(Subject to Clause 2.2 and Clause 6) performance is
more than 30 days late, the Client shall be entitled to
claim compensation.
2.2 In no event shall the Client be entitled to cancel
the Contract or claim any compensation for delays to
the agreed time of performance of the Services which
have arisen or resulted from any act, omission, breach,
neglect or fault of the Client, it servants, agents or
employees or any other person connected to the Client.
2.3 The Company is no responsible for any data loss
whilst either physically on a Client site, or connected
to any Client computer, network or server remotely.
The Client is responsible for maintaining their own
backups of all data, and the Company is excluded
from liability for any loss of data.
3. FES
3.1 Unless otherwise agreed, all fees will be charged
on the basis of rates from time to time current during
the carrying out of the Services.
3.2 All mileage costs (excluding mileage as part of
an agreed monthly support program) will be charged
at the discretion of the company, and are at 50p per
mile. The fees for the Services may be subject to the
addition of VAT and other taxes where applicable,
the cost of providing specialist support services,
disbursements and out of pocket expenses incurred in
connection with the Services including photocopying,
postage, faxes, subsistence and other travel. The
Company will ensure the Client is informed of and
agrees to pay any such extra charges (excluding
mileage) before they are incurred.
3.3 The Company reserves the right to ask the Client
for a reasonable payment in advance on account
either of their fees, costs, disbursements or out of
pocket expenses. This may represent a % of agreed
fees, of up to 100%; however this may be subject to
negotiation, under special circumstances.
4. PAYMENT
4.1 Unless otherwise agreed in writing by the
Company, the Client shall be invoiced on completion
of the project or at monthly intervals for work to
date (notwithstanding that it has not completed
performance of the Services) and all accounts shall be
paid net on or before 14 days from the invoice date.
Cheques and money orders shall be made payable
to or to the order of the Company or its nominated
payee, as detailed on the invoice. Only the official
receipt of the Company or its nominated payee shall
be treated as valid.
4.2 Where the Company undertakes any work in
pursuance of or by way of tender for any project or
commission from a Client, such work shall become
duly payable in accordance with Clause 4.1 upon the
successful appointment of the Company to undertake
the project or commission for which such work was
produced.
4.3 Where the Client defaults in payment, the
Company shall (without prejudice to any other right
or remedy) be entitled to charge compound interest
monthly at the rate of 6% above the base rate of the
Bank of England on the outstanding balance from time
to time until payment in full is made and/or suspend,
cancel or terminate any or all of the Services under
the Contract and under any other contract between
the Company and Client. The Client shall pay the
Company’s costs, charges and expenses directly or
indirectly incurred in obtaining or otherwise enforcing
payment of the same.
5. CANCELATION
5.1 Cancellation of the Contract cannot be made
without the Company’s consent in writing.
5.2 If the Company accepts cancellation by the
Client in relation to any or all of the Services, the
Company shall have the right to charge the Client
for its fees incurred to date and an administration
charge which shall reflect any costs expenses or
disbursements incurred by the Company up to the
time of cancellation including payment to cover the
Company’s loss or other damage resulting.
5.3 The Client shall at all times reimburse the
Company for any costs, charges and/or fees incurred
by the Company as a result of a breach and/or
cancellation by the Client of any contract entered into
by the Company on the Client’s behalf.
6. GUARANTE
6.1 The Company undertakes to carry out the Services
with reasonable skill and care. All other warranties and
conditions whether expressed or implied by statute,
common law or otherwise are hereby excluded.
6.2 If the performance of the Services is such as
might or would (subject to these Conditions) entitle
the Client to claim damages, to repudiate the Contract
or to reject the Services, the Client must first ask the
Company to re-perform the Services or to credit the
Client with such proportionate part of the fees for the
Services as the Company in all the circumstances
deems fit, provided that the Company shall be under
no liability under this guarantee if (a) the Client has
not paid in full for the Services or (b) the Client has
failed in any other respect to adhere strictly to the
Conditions hereof or (c) the Company has not been
notified within one month of it becoming apparent
that the Services have been performed defectively
or (d) the Client undertakes all or any proof reading
of any products produced pursuant to the Services
and any defects in such products shall be notified to
the Company within such time as reasonably agreed
between the Client and the Company.
6.3 If the Company does so supply satisfactory
substitute Services or credit, the Client shall be bound
to accept such substituted Services or repayment
and the Company shall be under no further liability
in respect of any loss or damage of whatever nature
arising in relation to those Services.
7. EXCLUSION OF LIABILITY
7.1 Nothing contained in this Condition shall limit
or restrict the Company’s liability for death or
personal injury caused as a result of the Company’s
negligence, nor does the Company limit or restrict
its liability for fraudulent misrepresentation under the
Misrepresentation Act 1967.
7.2 Under no circumstances whatever shall the
Company be liable for losses special to the particular
circumstances of the Client, indirect or consequential
loss including loss of profits, damage to property or
wasted expenditure.
7.3 Without prejudice to the other provisions of this
Condition, the Company’s liability, whether in respect
of one claim of their aggregate of various claims shall
not exceed the total of the Contract fees for
the Services.
7.4 The fees for the Services are based on the
assumption that the liability of the Company and Client
are set as set out herein. The Client is advised to
insure against any risk not accepted by the Company.
8. CLIENTS OBLIGATION AND INDEMNITY
8.1 The Client undertakes to fulfil any obligations put
upon them which have been agreed by the parties to
enable the Company to provide the Services.
8.2 Pursuant to Clauses 7.1 and 2.2, the Client
shall at all times fully and promptly indemnify and
keep indemnified the Company, its servants and
agents against any liability, loss, expenses, claims
or proceedings whatsoever arising whether direct,
indirect or consequential and of any kind arising or
resulting from any breach of these Conditions, acts
omissions, neglect or default on the part of the Client,
its employees, servants or agents or any other person
connected to the Client.
9. INTELECTUAL PROPERT Y
9.1 All trade marks, registered or unregistered design
rights, copyrights, confidential information, know-how
and other intellectual property rights of any nature
in all drawings, documents, proposals, confidential
records, computer software and other information
supplied by the Company, whether produced by itself
or a third party, are owned by the Company unless
otherwise agreed in writing
9.2 The Client warrants that any instructions furnished
or given by the Client in execution of the Client’s
order shall not cause the Company to infringe any
Intellectual Property of any third party and indemnifies
the Company against any such claims of infringement.
10. TERMINATION
10.1 Without prejudice to any other rights or remedies
to which the Company may be entitled, if the Client
shall be in breach of any of its obligations under these
Conditions or ceases or threatens to cease during the
period of the Contract to carry on business, becomes
insolvent, has a receiver, administrative receiver or
manager appointed over the whole or any part of its
assets, enters into any composition with creditors
generally, or has an order made or resolution passed
for it to be wound up (otherwise than in furtherance
of any scheme for amalgamation or reconstruction) or
otherwise undergoes any similar process in any other
jurisdiction, the Company may, without prejudice to
its other rights, demand immediate payment by the
Client of all unpaid accounts and suspend further
performance of the Services, cancel this and any other
contract between the Company and the Client, without
any liability attaching to the Company in respect of
such suspension of cancellation and debit the Client
with any loss sustained thereby.
11. FORCE MAJEURE
11.1 The Company shall have the right to cancel or
delay performance of the Services if it is prevented
from, hindered or delayed through any circumstances
beyond its reasonable control, including but not
limited to war, riot, government requisitions of any
kind, suspension or loss of means of transport, strikes,
lock outs, governmental decrees, quality control non
release, Carrier delays, labour disputes, fire, electrical
failure, explosion, flood, accident, failure of any
third party to supply the Company or breakdown of
machinery.
11.2 During any such period of cancellation the
Company shall have the right at its option (a) to
suspend further performance of the Contract until
such time as the cause of the delay shall no longer
be present or (b) to be discharged from further
performance of and liability under the Contract and
if the Company exercises such rights the Client shall
thereupon pay the Company’s out of pocket expenses,
fees and disbursements to date.
12. HOSTING
‘Hosting’ refers to the provision of shared server
space for serving web pages to the Internet, virtual
office solutions, backup and remote backup, mail
sharing, ActiveSite / ActiveCMS, Internet Messaging
Firewall, file sharing and extra features such as e-mail
mailboxes, direct SMTP feeds, SQL databases etc,
may also be provided and fall within these terms.
12.1 The Client is responsible for the content of their
web site, including legal permission and copyright for
all data. The Client’s account will be suspended and
material removed if The Company is made aware that
such information is being displayed.
12.2 The Company is not responsible for any loss of
data or information cause by misuse or mistake on the
Client’s part.
12.3 The Company will take disaster protection
backups of all data stored on the Company’s servers.
This information will be used to re-build service only
following a disaster. Data will be restored to the point
of the last successful backup.
12.4 On terminating the service, the Company will
remove all data belonging to the Client stored on the
Company’s servers. It is the responsibility of the Client
to retrieve this data beforehand, should the Client so wish.
12.5 Whilst every reasonable effort will be made by the
Company to ensure that no data will be lost, corrupted
or otherwise interfered with, the Company ultimately
is not responsible for any data on their servers, of
whatever nature, nor the security of that data.
13. CONECTIVITY, ADSL AND BROADBAND
‘ADSL’ or ‘Broadband’ refers to the provision of fasterthan-
dialup Internet access via a BT Openreach (noncable)
PSTN line, or any other form of connectivity.
Minimum term of twelve months applies on all
connections, with an early termination penalty clause
of £75 plus one month’s service.
13.1 The Company’s chosen network carrier is BT
Wholesale, and our chosen network operators are
NetServices plc and Griffin ltd. The company will
provide ADSL user accounts, billing and 1st line support.
13.2 The Client must ensure a BT or non-cable
telephone line is operational in the premises where
ADSL is to be provided.
13.3 Telephone line rental charges, or telephone
call charges, are not included in the price of
the Company’s ADSL services. It is the Client’s
responsibility to pay these separately to the Client’s
telephone service provider.
If the Client fails to pay their telephone service
provider charges, and BT suspends the ADSL service
at the BT exchange,
the Client agrees to pay any penalty fees to the
Company for the reconnection of the ADSL service.
13.5 The maximum downstream bandwidth of
Business Lite and Business ADSL services is
2048kpbs (two megabits per second). The maximum
downstream bandwidth of Business MAX services is
8192kbps (eight megabits per second).
The maximum upstream bandwidth of Business Lite
and Business ADSL services is 256kpbs (quarter
megabit per second). The maximum upstream
bandwidth of ADSL MAX service is 448kps and
880kpbs for ADSL MAX PLUS.
13.7 During the provision of ADSL MAX / MAX
PLUS, the quality / speed of service will be variable
– especially during the first 36 hours after activation
where service may be unusable. This is because the
technology behind ADSL MAX / MAX PLUS will ‘train’
the line in order to get the fastest possible speed. The
service will settle on the fastest stable speed after
around 10 days.
13.8 All speeds are distance dependant from the
Client’s local BT exchange, and speed can be affected
by the quality of the local loop cabling, and Internet
/ BT conditions beyond the Company’s control. The
Company will endeavour to give the Client the best
possible speed the Client’s telephone line can take.
13.9 All ADSL orders are subject to a satisfactory
line check by BT. The Company is not responsible
should the line check fail and any subsequent failure to
provide ADSL. Any fees paid up-front to the Company
will be refunded in full should BT be unable to provide
ADSL to the Client’s telephone line.
13.10 Telephone line faults should be reported to the
Client’s telephone service provider in the usual manner.
13.11 The Client must ensure all equipment
connecting to the Internet is capable of being
connected and appropriate anti-virus protection and
firewall protection is in place. The Company can
advise on protection should this be required.
13.12 The Company reserve the right to charge
additional fees should the Client be absent when a BT
Openreach engineer is scheduled to visit the Client’s
premises to carry out any BT network servicing in
relation to the provision of ADSL.
13.13 ADSL is provisioned to a physical location via
a BT allocated telephone number. Should the Client
wish to alter that telephone number or location in the
future (such as moving premises); the Client will need
to request from BT a reference number to move the
ADSL connection to the new site / number. If BT is
unable to move ADSL at the same time as the Client’s
telephone service, the Client will need to enter a
new ADSL contract with the Company, and pay any
outstanding minimum term fees in full.
13.14 ADSL is provisioned over the ‘local loop’ owned
by BT Openreach. The quality of service is dependent
on variations of BT’s network which are beyond the
Company’s control.
13.15 ADSL is not a fault-proof system, and it does
not have a guaranteed uptime. It is the Company’s
strong recommendation that the Client has backup
connectivity.
14. ELECTRONIC MAIL (EMAIL)
14.1 The Client or any person authorised by the Client
must not send unsolicited or ‘spam’ email via any mail
service provided by the Company. This includes ‘chain
mail’ messages.
14.2 The Company cannot guarantee delivery of email
to users on other Internet Service Providers, as once
email leaves the Company’s network; it becomes the
responsibility of the receiving Internet Service Provider
to process delivery.
14.3 The Client is not responsible for any virus or
rogue code (including Trojans) that are embedded
into emails collected from the Client’s servers. The
Client makes efforts to remove viruses, and it is the
Company’s recommendation that all the Client’s
computers have up-to-date virus protection on all
computers.
15. GENERAL LIABILITY
15.1 Whilst the Client may link to other computer
network via the Internet, using a service provided by
the Company, the Client accepts the Company is not
in control of telecommunication networks to which the
Company don’t’ provide or have direct access, and
so are not responsible for the performance of those
networks, and any service failures.
15.2 The Client acknowledges the Company has no
control over data available and accessible via the Internet,
and the Company’s services do not filter or exclude any
data from being accessed. The Company exclude all
possible liability for any information or data accessed via
the internet, regardless of nature or content.
15.3 If the Client hosts data with the Company on
a web site, or through any server or storage device,
the Company exclude liability for any of that data or
information provided, be it through theft, negligence,
loss or for any other reason.
15.4 The Company excludes liability for the action of
third-party contractors or suppliers’ actions, faults in
their equipment or service failures which prevent the
Client from accessing any service provided by the
Company.
15.5 The Company excludes liability in any case,
including negligence for the loss, direct or indirect of
business revenue or profits, anticipated savings or
wasted expenditure, corruption or destruction of data
or for any consequential loss whatsoever.
15.6 Where the Company is found to be liable in
contract or otherwise (including negligence) by a court
of law or other competent authority, the Client accepts
the liability for damages of the Company, under or
in connection with these Terms and Conditions, will
be limited to the actual amount paid by the Client to
the Company during the previous twelve months for
provision of the services.
16. GENERAL
16.1 The Contract is between the Company and the
Client as principal and is not assignable without the
consent of the Company.
16.2 If any of these Conditions is held by any
competent authority to be invalid or unenforceable in
whole or in part the validity of the other Conditions the
remainder of the Condition in question shall not be
affected thereby.
16.3 Failure by the Company at any time to enforce
any of these Conditions shall not be construed as
a waiver by the Company of such Condition or any
other conditions and the Company shall be entitled to
enforce any such breach at any time.
16.4 The Contract shall be governed and interpreted
according to the laws of England and shall be subject
to the jurisdiction of the English courts. Nothing in this
clause shall limit the right of the Company at its sole
discretion to bring proceedings in connection with this
Contract in any other Court of competent jurisdiction.
16.5 Any notice required to be given under the
Contract shall be in writing and delivered personally or
sent by first class post to the registered office of the
Company.
17. LAW
All the content of these Terms and Conditions shall be
construed within the context of English Law. All parties
agree to submit to the exclusive jurisdiction of the
English courts.
BirchenallHowden Ltd
178 Shoreham Street, Sheffield, South Yorkshire, S1 4SQ
Company Number: 05779505
Revised July 2009.