All work undertaken by Big Software Ltd. is subject to the following Terms and Conditions unless specifically agreed in writing between Big Software Ltd. and the Client.
In these Terms and conditions: -
'The Company' shall mean Big Software Ltd.
'The Client' shall mean any person, firm or corporation who places an order with The Company for the supply of products or services.
'Consultants', 'Personnel' or 'Staff' refers to any person or persons supplied by The Company to The Client, either employees, servants or agents of The Company.
'Contact' shall mean the agreement between The Client and The Company.
'Connectivity Services' shall mean any Internet access or hosting services provided by The Company including, without limitation, Web hosting, e-mail services, DNS hosting and database hosting.
'Copy' means any materials provided by the Customer for incorporation in a Web site or for other public display including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text.
'Design/Development Services' means any services provided by The Company in relation to design or development including, without limitation, Web design, visual identity development and software development.
'Contract Documentation' will normally constitute the following elements: -
- The Terms of Reference from The Client
- A proposal from The Company including a definition of their approach in meeting the Terms of Reference.
- Written confirmation by The Client of their acceptance of the Proposal. If The client does not provide such then The Companies terms shall prevail. Where The Company have prepared the Terms of Reference then the Proposal and Terms of Reference may be one and the same.
- In these terms and conditions, and the Agreement,
- Words importing the singular shall include the plural and vice versa, words importing any gender include every gender and words importing persons include bodies corporate and unincorporate; and (in each case) vice versa;
- Any reference to a party to the Agreement includes a reference to his successors in title and permitted assigns;
- The headings to clauses are for ease of reference only and shall not affect the interpretation or construction of the Agreement or the terms and conditions.
- Consultancy Services
Consultancy services undertaken by The Company for The Client will be in accordance with the agreed Terms of Reference for the assignment unless any revision is agreed in writing.
- Period Of Service
The period of service by The Company is set out in the elements of the Contract, principally in the Terms of Reference and the Proposal. One Day's Booking constitutes 8 hours (09.00 - 17.00 unless otherwise requested), a Half Day's Booking constitutes 4 hours. Extra hours are charged at our usual rate as stated on our 'Booking Sheet', any additional work required that is not completed on the day is billable to The Client at all times.
- Responsibilities of The Company
The Company will provide qualified and competent consultant(s) to provide the services as defined in the Contract documentation. All personnel provided by The Company are employees of or contracted to The Company and are not employees of or individually contracted to The Client.
The Company reserves full control of how its staff will carry out its professional consultancy services to The Client.
The Company staff will undertake to observe all rules and regulations applicable to The Client's own staff subject to these being directly communicated by The Client to The Company staff.
The Company staff undergo periodic training and this together with the taking of annual holidays, may lead to staff being absent from assignments for short periods. The Company will endeavour to avoid any disruption to project progress.
The Company may substitute staff at its discretion, for which it will do its best to give The Client reasonable notice and to provide replacement staff of equivalent ability.
- Client's Responsibilities
The Client represents and warrants that The Client has the power and authority to enter into and perform its obligations under the Agreement.
The Customer agrees to indemnify, defend, and hold harmless The Company, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable legal fees, to the extent that such action is based upon a claim that:
- if true, would constitute a breach of any of The Client's representations, warranties, or agreements hereunder; or
- arises out of the negligence or wilful misconduct of The Client; or
- any Copy provided by The Client to The Company hereunder or other material on any Web site belonging to The Client infringes or violates any laws or rights of third parties including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, database rights, trade secrets, export laws and/or licences.
The Client is responsible for ensuring that any Copy is provided to The Company in accordance with The Company's Copy Guidelines and/or any other agreed specifications. The Company reserves the right to levy additional fees for any work caused by non-compliance with this clause.
When working at The Client's place of work, The Client will be responsible for the provision of working accommodation, canteen, medical facilities and safety, health and environment controls to the extent that such are provided for the Client's own employees.
The Client will provide to The Company all necessary rules and regulations applicable to their own staff prior to The Company beginning work.
With regard to any member of The Company's staff working on an assignment with The Client, The Client agrees not to employ such staff or the use their services as consultants either independently or via a third party for a period of 6 months following the end of any involvement by the individual concerned with any assignment with The Client. Breach of this condition will render The Client liable to pay liquidated damages equal to 6 months' fees at the current standard daily fee rate for the consultant concerned.
Where the client's own staff are undertaking work as part of the project or are undertaking work which has a direct impact upon the quality of delivery and project deadlines to be delivered by The Company, then The Client undertakes to use staff who are sufficiently qualified and competent to ensure that the tasks to be undertaken by The Company are not adversely affected or delayed.
The Company reserve the right to decline to accept full responsibility if we suspect an individual's lack of IT knowledge or experience, The Client agrees to The Company removing a copy of the registry from any machines we work on and that we may in the case of database work also remove an empty copy of the database and layouts for support purposes.
The Client will use its best endeavours to ensure that any such work by its own staff will not have an adverse effect or cause delay to The Company's performance under the Contract, such as to cause The Company to sustain a loss of revenue as a result.
- Provision Of Software
Where the professional services provided by The Company include the installation of Software on The client's computer equipment on behalf of The Client, then the following provisions will apply, unless a separate agreement is made in writing:
- Delivery and Installation
Once The Client's Purchase Order for the necessary software and licences has been received and paid for, The Company shall order the goods for delivery and if required shall install the application on The Client's Equipment. It is The Client's responsibility to ensure that all necessary Technicians, Passwords, Hardware and Memory capacity are available to support the software ordered. Guidelines for the Minimum Specification required can be found on our website.
- Risk and Property
Risk and property in the media on which the Application and Program Documentation are recorded or printed shall pass to the Client upon receipt.
- Proprietary Rights
Where The Company are customising standard solution software then the Intellectual Property Rights are as applicable to that solution. Where separate bespoke code is added to a standard solution software then the intellectual property rights of whatever nature for the bespoke code shall remain the property of The Company who reserve the right to use the Application or part of the Application unless otherwise specifically agreed in writing.
The Company agrees that the Customisation or bespoke addition will provide the facilities and functions and otherwise perform as set out in the Terms of Reference or in a Specification provided by The Client. For an initial period of 14 (fourteen days) from the date of delivery, The Company will provide the support described in the Technical Support Agreement free of charge we estimate this time should not exceed 10 minutes per user on The Client site. The Company will provide adequate instruction to enable The Client to make use of the Application in conjunction with The Client's Equipment.
This Warranty becomes null and void if at any time after Acceptance of the Application by The Client the Application code provided by The Company has been subject to any alteration, addition, or deletion, without the written agreement of The Company.
- Third Party Solutions
The Company cannot provide any separate Warranty relating to other third party solution products, which are subject to the standard Licences and Warranties provided by the product Warranties. It is the responsibility of The Client to satisfy themselves that those Warranties are adequate. The Company cannot be held liable for any software errors in third-party products. The Company refers all reports of errors to the third party but The Company itself is unable to guarantee that any errors will be corrected in any given timescale. The Company reserves the right to charge for bug fixes provided by The Company. All support calls after the initial 14 day period shall be directed through a Support Contract else will be charged at the prevailing rates.
- Exclusions Copying
The Client may make copies of the Application as are reasonably necessary for back-up, security or operational use.
- Postponement or Delay
Both The Company and The Client will endeavour to avoid any disruption to the agreed project timetable, particularly where The Company consultancy staff are committed to working specific days on The Client's behalf.
Where The Client decides to cancel, postpone or delay specific project tasks or activities contained in the Contract for reasons that are not the responsibility of or under the control of The Company, then they must give The Company adequate notice of such a decision. In this case The Company will endeavour to use its consultants on other client chargeable work elsewhere. However, where the Client has given The Company notice of less than 7 days, and The Company are unable to use the designated consultants on alternative chargeable work, then The Company reserve the right to charge a cancellation fee of 50% of the fees due for the cancelled Booking and within 3 working days 100% will be charged. Any expenses that have been incurred as a result of the cancellation will also be charged to The Client. The Company cancellation policy is clearly stated on the Booking Sheet that The Client must sign prior to any Booking being undertaken.
- Fees and Expenses
Unless otherwise agreed in writing the following will apply:
Fees are based on the time spent by The Company staff on an assignment at the notified rate for the staff concerned. The Standard Daily Fee rates are outlined in Appendix A.
Fee rates are reviewed periodically and may change without prior notice. However, wherever possible the fee rates quoted in the proposal are normally maintained for the duration of a project.
Fees are based upon a standard day of 8 hours per day. Where overtime working is required by The Client then our usual hourly rate will apply.
Expenses incurred for travel, and for goods and services purchased on The Client's behalf, will be charged at cost, with the exception of amounts over £50 when a 10% surcharge will apply. The Clients may prefer to purchase such items as air tickets themselves. For travel, the firm's standard policies will apply, i.e. standard class rail/economy class air travel within the UK and club class or equivalent for overseas travel. Details of standard re-chargeable expenses are contained in Appendix B.
All fees and expenses are exclusive of Value Added Tax and other Government Taxes, which will be charged in addition at the appropriate rate(s) in force at the date of invoice.
As we proceed through each phase, we track the amount of time and level of skill undertaken. If we find that circumstances dictate that the phase of work requires additional consultancy time to that estimated, then we make The clients aware of this before commencing work. Where the additional time arose directly because The Client has changed the Terms of Reference we may ask for written authorisation to extend the overall budget.
Whenever possible we look to carry forward the 'additional' time to further phases of the project and see whether we can save time later on in the project to compensate - in order to maintain the overall budget.
If as the project progresses and we are not able to recover the additional time then we will discuss with The Client why there is some additional chargeable time, beyond the original estimate and, with agreement, raise a supplementary invoice.
However, if we find that our firm estimates have been unduly cautious or that the scope of work is subsequently reduced, we may be able to complete the project in fewer days than estimated and pass the savings onto The Client.
- Domain Name
We provide this service in association with Third Party Domain Name Registrars, you must agree their Discimilar/Terms and Conditions.
For registration of .com , .net , .org domain names it depends on availability of Domain Name and it will be confirmed within app. 15 days after receiving full Payment in advance.
We also provide sub domains like as www.BigSoftware.co.uk/you for such domains you have to pay desired charges to Big Software Ltd in advance.
For renewal of Domain Name you must have to pay Desired charges one month before the Expiry Date if the said Domain.
If your payment is not received on or before given date your service will be Suspended.
We are not responsible for non functioning of Domain Name due to any problems of Domain Server or ISP.
Unless otherwise specified, payment of all invoices shall be made in full within 14 days. Any breach of this condition shall entitle The Company to terminate the Agreement without prior notice.
All prices given by The Company exclude VAT and therefore The Company shall add VAT as and where appropriate at the point of invoice.
The Company will invoice The Client in arrears and our terms are strictly 14 days, except for software and our capital expenditure which will be invoiced and must be paid for in advance. The Client will pay each invoice within 14 days of the date of invoice. Late payments are liable to be charged an additional interest fee at a rate of 8%. As supported by the Late Payments Act. All support work will stop in the event of unpaid invoices.
In the case of Design/Development Services, should the development be delayed causing milestones to be missed through fault of the The Client, then The Company reserves the right to levy staged payments as if the milestones had been achieved. Specifically, if The Client fails to fulfil a specific request for Copy or other materials within a period of 30 days, then The Company will have the right to levy the fee due at the next milestone. If The Client fails to fulfil the aforementioned request within 60 days, then The Company shall have the right to terminate the Agreement for Cause
Recurring fees are subject to review as and when they fall due for renewal. A minimum of 28 days advance notice shall be provided of any change.
- Price/Quote/Tender validity
All prices for Design/Development Services will be estimates until both parties have agreed to a set of specifications, at which time a fixed-price quotation for the remainder of the project will be agreed, Tenders and quotes are valid for 30 days from the date of issue unless otherwise stated.
The Company often wishes to seek beneficial publicity for work undertaken on behalf of The Client.
The Company assumes that the right to include The Client names without any attributable comment in its Client list contained on its website, in proposals or other similar submissions to other prospective Clients/Customers is permitted, unless The Client expressly forbids such disclosure.
Permission to attribute work to a Client publicly i.e. in public articles, case studies, or advertising will always be obtained in advance from The Client.
In the performance of its duties under the terms of this contract, The Company may come to know information about both The Client and its own Clients, and such information may include financial data, Client lists, methods of operating, policy statements and other confidential data. The Company, its employees and consultants will keep confidential all information passed to it by The Client, unless in the public domain, and all reports, advice, recommendations etc. produced
by The Company under this agreement. During this contract the Client may come to know information about both The Company and such information may include financial data, Client lists, methods of operating, policy statements and other confidential data. The Client will keep confidential all information passed to it by The Company, unless in the public domain, and all reports, advice, recommendations etc. produced by The Company under this agreement.
The Client agrees to keep confidential any authentication details provided by The Company in relation to The Company's services and takes full responsibility for any and all use of The Companys services by any third party that the Client allows (intentionally or unintentionally) to access any authentication details.
Neither The Company nor The Client may assign or transfer this contract, any interest therein or claim there under without the written approval of The Company.
- Termination Of Contract
This contract may be terminated forthwith by either party in the event of the other going into insolvent liquidation or having a Receiver or Administrator appointed over all or part of its assets. In the event of insolvency then The Client will not object to The Company taking goods to the value of any outstanding invoices. If either party is prevented from performing its obligations under the Contract by circumstances beyond its reasonable control, such obligations shall be suspended during any period of delay so caused.
If the delay substantially defeats or appears likely to substantially defeat the purpose of the Contract, and The Client decides to terminate the Contract then The Client will be liable to pay for the work and expenses undertaken or incurred by The Company up to the time of termination.
Any notice of termination is only valid if given in writing to The Client at his principal place of business and to The Company at their Registered Office. Such notice to be given not less than 7 working days before the termination.
Where The Client decides to terminate the contract for reasons which are not the responsibility of The Company or are beyond The Company's control, then The Company reserves the right to charge a termination fee of up to 50% of the value of any outstanding work, subject to a minimum of the value of consultancy days already committed to The Client and due to be completed before the date of termination.
- Limitation Of Liability
Neither The Client nor The Company shall be in breach of this contract if there is any total or partial failure of performance by it of its duties and obligations under this contract occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance from obtaining any raw materials or energy, or other cause beyond its control.
If The Client or The Company is unable to perform its duties and obligations under this contract as a direct result of the effect of one or more of such causes each party shall give written notice to the other of such inability stating the case in question. The operation of these Terms and Conditions shall be suspended during the period in which the cause continues to have effect.
Forthwith upon the cause ceasing to have effect each party shall give written notice to the other that the contract may continue.
If the cause continues to have effect for a period of more than one month then either party shall have the right to terminate the contract under the terms contained in this document. Such notice shall not take effect if either party gives notice within that period that the cause has ceased to prevent the operation of the contract.
Notwithstanding the above, The Company its employees and consultants shall not be liable for any and all liability and loss, damages, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by The Client whether direct or consequential (including but without limitation any economic loss or other loss of profits, business or goodwill) arising out of any dispute or contractual tortuous or other claims or proceedings brought against The Client by a third party claiming relief against The Client by reason of the use to which the assistance and advice given under the terms of this contract is put by The Client or by any party with the authority of The Client.
The Company will not be liable for any failure on its part to fulfil its obligations to The Client where such failure is due to circumstances beyond its control.
A Booking Sheet must be signed before any activity can be performed. Unless specifically requested by The Client, The Company will not normally undertake work until they have received written confirmation from The Client of their acceptance of the Booking and the attached Terms and Conditions. Where The Client has specifically requested work to commence prior to completion of the Contract Documentation, The Company will undertake work for the duration of time, or to the maximum value of fees and expenses as contained in a written authorisation or Letter of Intent. Such authorisation to be received by fax or mail containing the signature of the authorised client representative. The commencement of work implies acceptance by both parties of these Standard Terms and Conditions.
- Governing Law And Jurisdiction
The validity, construction and performance of this Agreement shall be governed by English law, and shall be the subject to the exclusive jurisdiction of the High Court of Justice in England.