BirchenallHowden Ltd Terms and Conditions of Business
In these conditions (“the Conditions”), the following definitions apply:
Client means the person, firm or organisation who commissions the Services of the Company and to whom the Company provides the Services;
Commencement Date has the meaning set out in Condition 2.2;
Company means BirchenallHowden Ltd;
Intellectual Property means 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;
Services means those services supplied by the Company as set out in the Specification;
Specification means the description or specification of the Services.
The Conditions are subject to change and revision, the most recent version can be found atwww.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.
1.3 The Client's attention is particularly drawn to Condition 9.
2. Performance Of The Services
2.1 The placing of an order constitutes an offer by the Client to purchase Services from the Company in accordance with these Conditions.
2.2 The order shall only be deemed to be accepted when the Company issues written acceptance of the order, acknowledging the order, at which point and on which date the Contract shall come into existence ("Commencement Date").
2.3 The Company shall supply the Services in accordance with the Specification in all material respects.
2.4 The Company shall use all reasonable endeavours to meet any performance dates agreed between the parties. Any time or date for the performance of the Services is given as accurately as possible but is not guaranteed and time shall not be of the essence for the performance of the Services.
2.5 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 Condition 2.6 and Condition 6) performance is more than 30 days late, the Client shall be entitled to claim compensation for any reasonable costs incurred by the Client as a direct result of the delay.
2.6 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, its servants, agents or employees or any other person connected to the Client.
2.7 The Company is not responsible for the security of any Client data or for any data loss whilst either physically on a Client site, or connected to any Client computer, network or server remotely save where due to the Company's negligence. The Client is responsible for putting in place its own back-up services or solutions, and for maintaining its own backups of all data and databases. For the avoidance of doubt, the Company does not provide specialist back-up services and solutions. Any back-up products and services offered by the Company are supplemental to the back-up services provided internally by the Client or by a third party back-up specialist services and solutions provider. In the event of a loss of data due to the Company's negligence, the Company's sole liability to the Client shall be to restore the data to the last back-up carried out by the Client, subject at all times to condition 9.
2.8 The Company is not responsible and gives no guarantees in respect of the suitability or compatibility of the Services and products provided by the Company (including without limitation remote backup, hosted services, website hosting and e-mail hosting) for use with the Client's data and/or databases.
2.9 The Company shall have no liability to the Client in respect of any system downtime which arises as a result of defects in the Client's systems or equipment or defaults by any employees, agents or sub-contractors of the Client or any network operators.
2.10 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Client in any such event.
3. Client obligations
3.1 The Client shall, at no charge:
3.1.1 ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
3.1.2 co-operate with the Company in all matters relating to the Services;
3.1.3 provide the Company, its employees, agents, consultants and subcontractors, with access to the Client's premises, office accommodation and other facilities as reasonably required by the Company;
3.1.4 provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and to ensure that such information is accurate in all material respects;
3.1.5 keep and maintain all materials, equipment, documents and other property of the Company ("Company Materials") at the Client's premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not to dispose of or use the Company Materials other than in accordance with the Company's written instructions or authorisation;
3.1.6 take responsibility for maintaining backups of all data and databases;
3.1.7 ensuring that it has in place all necessary data and system security measures including without limitation anti-virus protection. For the avoidance of doubt, the Company has no liability to the Client in the event that the Client's systems or databases are hacked by a third party or attacked by a virus.
3.2 If the Company's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation ("Client Default"):
3.2.1 the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Company's performance of any of its obligations;
3.2.2 the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company's failure or delay to perform any of its obligations as set out in this Condition 3.2; and
3.2.3 the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.
3.3 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.
3.4 Pursuant to Conditions 9.1 and 2.7, 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.
4.1 Unless otherwise agreed, all fees payable for the Services ("Fees") will be charged on the basis of the Company's prevailing day rates.
4.2 All mileage costs (excluding mileage as part of an agreed monthly support program) will be charged at the discretion of the Company at 50p per mile. The Fees for the Services may be subject to the addition of 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.
4.3 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 percentage of agreed Fees, of up to 100%; however this may be subject to negotiation, under special circumstances.
5.1 Unless otherwise agreed in writing by the Company, the Client shall be invoiced on completion of the Services or at monthly intervals for work to date (notwithstanding that it has not completed performance of the Services) and all Fees for the Services shall be on a time and materials basis.
5.2 The Client shall pay each invoice submitted by the Company:
5.2.1 within 30 days of the date of the invoice; and
5.2.2 in full and in cleared funds to a bank account nominated in writing by the Company, and time for payment shall be of the essence of the Contract. Only the official receipt of the Company or its nominated payee shall be treated as valid.
5.3 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.4 Without limiting any other right or remedy of the Company, where the Client fails to make payment by the due date for payment ("Due Date"), the Company shall (without prejudice to any other right or remedy) be entitled to charge compound interest monthly at the rate of 6% per annum above the base rate of the Bank of England on the outstanding balance from time to time until payment in full is made. The Client shall pay the Company’s costs, charges and expenses directly or indirectly incurred in obtaining or otherwise enforcing payment of the same.
5.5 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.
5.6 All payments payable to the Company under the Contract shall become due immediately on termination of the Contract, despite any other provision. This Condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
6.1 Cancellation of the Contract cannot be made without the Company’s consent in writing.
6.2 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 from such cancellation.
6.3 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.
7. The Company and the Services
7.1 The Company undertakes to carry out the Services with reasonable skill and care. All warranties and conditions and other terms whether expressed or implied by statute, common law or otherwise are to the fullest extent permitted by law hereby excluded.
7.2 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 Condition if
7.2.1 the Client has not paid in full for the Services; or
7.2.2 the Client has failed in any other respect to adhere strictly to the Conditions hereof; or
7.2.3 the Company has not been notified within one month of it becoming apparent that the Services have been performed defectively; or
7.2.4 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.
7.3 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.
8. Confidentiality and Company property
8.1 A party ("Receiving Party") 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 Receiving Party by the other party ("Disclosing Party"), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
8.2 All materials, equipment and tools, drawings, specifications and data supplied by the Company to the Client shall at all times be and remain the exclusive property of the Company, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to the Company, and shall not be disposed of or used other than in accordance with the Company's written instructions or authorisation.
8.3 This Condition 8 shall survive termination of the Contract.
9. Limitation Of Liability
9.1 Nothing contained in these Conditions shall limit or exclude the Company’s liability for:
9.1.1 death or personal injury caused as a result of the Company’s negligence, or the negligence of its agents or sub-contractors;
9.1.2 fraud or fraudulent misrepresentation; or
9.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2 Subject to Condition 9.1 and 9.3:
9.2.1 under no circumstances whatever shall the Company be liable in contract, tort (including negligence), breach of statutory duty, or otherwise, for loss of profits or for any indirect or consequential losses arising under or in connection with the Contract;
9.2.2 without prejudice to the other provisions of this Condition, the Company’s liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall in not event exceed the total Fees paid by the Client for the Services.
9.3 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.
10. Intellectual Property
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company.
10.2 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client's use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Client.
10.3 All Company Materials are the exclusive property of the Company. 10.4 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.
11.1 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.
11.2 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Client if the Client commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the breach;]
11.3 In any event, upon termination or expiry of the Contract:
11.3.1 each party shall promptly return any property of the other which it has in its possession or control;
11.3.2 the Client shall promptly pay the Company all unpaid Fees and charges accrued until the date of termination or expiry;
11.3.3 any right of action or remedy which has accrued or shall afterwards accrue to either party shall not be prejudiced; and
11.3.4 all provisions which are, expressly or impliedly, to survive the termination or expiry of the Contract shall remain in full force and effect.
12. Force Majeure
The Company shall have no liability to the Client 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, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company 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, storm or default of suppliers or sub-contractors.
‘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 (and other alternative products) 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.
13.1 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.
13.2 The Company is not responsible for any loss of data or information caused by misuse or mistake on the Client’s part.
13.4 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.
13.5 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.
14. Connectivity, ADSL And Broadband
‘Connectivity’, ‘ADSL’ or ‘Broadband’ refers to the provision of faster-than-dialup internet access via any provider’s connection, and includes any form of transfer of information over a data connection. A minimum term of twelve months applies to all connections provided by the Company. In the event that the Customer wishes to terminate such connection prior to the expiry of the minimum term, an early termination payment of £100 plus any outstanding months’ services fees are payable.
14.1 The Company’s chosen network operators are Ask4, Plusnet PLC and Griffin Ltd. The company will provide user accounts, billing and first line support.
14.2 The Client must ensure a BT or non-cable telephone line is operational in the premises if an ADSL connection is to be provided.
14.3 Telephone line rental charges, or telephone call charges, are not included in the price of the Company’s connectivity services. It is the Client’s responsibility to pay these separately to the Client’s telephone service provider.
14.4 If the Client fails to pay their telephone service provider charges, and BT (or any other relevant provider) suspends connectivity service, the Client shall pay any charge levied by the Company or its third party connectivity providers for the reconnection of the service.
14.5 During the provision of some connectivity services (such as ADSL), the quality / speed of service will be variable – especially during the first 36 hours after activation where the service may be unusable. The technology behind some connectivity services will ‘train’ the line in order to achieve the most stable service. The service will settle on the fastest stable speed after approximately 10 days.
14.6 Dependent on the technology, speed may be affected by factors such as distance from the Client’s local BT exchange or cabinet. Due to the nature of the Internet, it is possible that third party providers’ networks and connectivity infrastructure may affect the speed of accessing certain websites or services, as well as fail or drop connection, which is beyond the Company’s control.
14.7 Telephone line faults should be reported to the Client’s telephone service provider in the usual manner.
14.8 The Client must ensure all equipment used to connect to external networks has appropriate protection measures, such anti-virus protection and firewall protection in place. The Company can advise on protection options, but it remains the responsibility of the Client to monitor and maintain this equipment.
14.9 The Company reserves the right to charge additional fees should the Client be absent when either a Company or 3rd party engineer attend for a site visit.
14.10 All forms of connectivity are not fault-proof, the Company does not guarantee any uptimes. It is the Company’s strong recommendation that the Client has several backup connectivity connections, and other solutions in place should their connectivity fail. The Company is in no way liable for any downtime or loss of business incurred by the Client in the event of any complete or partial loss of connectivity, or slow speeds of the connectivity.
15. Electronic Mail (Email)
15.1 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.
15.2 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.
15.3 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.
16. No Liability for Third Parties
16.1 Whilst the Client may link to other computer and IT network via the Internet, using a service provided by the Company, the Client accepts the Company is not in control of and has no responsibility or liability for the performance of telecommunication networks to which the Company does not have direct access.
16.2 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 liability to the fullest extent possible under law for any information or data accessed via the internet, regardless of nature or content.
16.3 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.
16.4 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.
17.1 The Contract is between the Company and the Client as principal and is not assignable without the consent of the Company.
17.2 If any of these Conditions is held by any competent authority to be invalid, illegal or unenforceable in whole or in part, the validity of the other Conditions and the remainder of the Condition in question shall not be affected thereby.
17.3 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
17.4 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way
17.6 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.
17.7 A person who is not a party to the Contract shall not have any rights under or in connection with it.
All the content of these Conditions shall be construed within the context of the laws of England and Wales. All parties agree to submit to the exclusive jurisdiction of the courts of England.
BirchenallHowden Ltd 178 Shoreham Street, Sheffield, South Yorkshire, S1 4SQ
Company Number: 05779505
Revised December 2010