In serving its clients the company operates in accordance with any relevant Service Level Agreement (SLA), any appendix AND the following general terms and conditions, which will bind all parties unless there is prior written agreement to the contrary. Where reference is made below to `The Company` this should be taken as meaning MANAGED IT EXPERTS LTD unless otherwise specified. Where there are other terms applying to the provisions of goods and/or services then all parties accept that the terms as set out in this document will take precedent;
1. All of The Company, its staff, and associates are under a professional obligation to serve their Client’s best interests at all times. Except insofar as they may be lawfully compelled to do so or it is deemed relevant to the work in hand, they will not disclose to third parties information confidential to the Client, nor general statements about Clients, without their prior notification and approval. Similarly, Clients may not disclose or pass on in any way The Company work (written & unwritten), including financial, photographic, electronic or other forms of presentation, to third parties without its prior written consent.
2. All recommendations, estimates, opinions and forecasts made for clients by The Company are made in good faith and represent The Company `s best professional judgement on the basis of the information available to them. The Company operates on the basis that all information supplied by the Client is wholly accurate and relevant and that the Client accepts full responsibility for all such information and any subsequent issues arising. In this regard the Client is also required to comply fully with all requests made by the Company for information, access and/or co-operation. However, since the delivery of goods/services, achievement of forecasts, recommendations, targets, and objectives usually depend to some extent on factors outside The Company `s control, no statement is to be deemed in any circumstances a representation, undertaking, warranty or contractual term, and no claim will lie against The Company should such statements prove inaccurate or based on incorrect premises.
3. When an employee or associate of The Company acts executively or independently on behalf of or at the request of a Client, The Company cannot accept responsibility for any acts, omissions or damages arising. The Client will in such circumstances indemnify The Company and the employee or associate against all costs, claims, charges and expenses for which The Company or the employee or associate may become liable by reason of the acts or omissions of the employee or associate during this period.
4. When The Company `s employees or associates are required to work on a Client’s premises, the Client will provide them with office accommodation, telephone and other necessary communications links, and minor secretarial services without charge. The Client will also accept and make arrangements for the appropriate insurances and safety provisions to be in place.
5. Intellectual property rights in any work submitted or undertaken by The Company under this contract shall be vested in The Company, unless otherwise agreed with the Client in advance. Subject to receipt of FULL payment the Client shall have a free irrevocable licence to make use of the same for its own personal/commercial purposes, but may not assign, pass on, charge or otherwise deal with any such licence. It is recommended that any such future use must always be done only after all appropriate up-dates and checks are conducted by The Company. Otherwise The Company cannot accept any responsibility for any errors or issues arising.
6. The Company will not be responsible for any loss or delay in fulfilling any assignment incurred as a result of any factor beyond the control of The Company, including but without limitation acts of God, illness, unfair, occurrence beyond The Company`s control or unjustifiable delays, lack of co-operation, national or local government industrial action, or severe adverse weather. In this regard while The Company will exercise all due care and attention The Company will not take responsibility for any goods handed in for amending, repair or any other service.
7. In the event that The Company feels that the project, work or process is not operating or proceeding as planned or anticipated or any party is acting in an unacceptable manner The Company will reserve the right/option to suspend and/or withdraw its services. Where The Company feels it necessary to withdraw its services a minimum of 1 weeks’ notice will be provided to the client where possible. Should this option be actioned The Company will not be obliged to honour or complete any outstanding work and will issue an invoice for all work undertaken and/or completed to date. The client shall be obliged to honour any such invoices issued in full.
8. The Company`s professional staff and relevant associates will record all time spent on behalf of a Client and unless otherwise agreed this record forms the basis of the fees payable.
9. The fee cost is based upon the terms stipulated in the Service level Agreement or relevant work completion form. A fee day is defined as 8 hours; portions of a fee day will be charged pro rata on the basis of the hourly rate quoted below or any part-hour thereof.
10. The fees / estimates quoted in proposals or in any attached appendix are made in good faith and are made by The Company. These will remain valid for thirty days unless withdrawn prior to the expiry of that period and The Company retains the right to amend proposals after this period.
11. Where a contract is for amounts specified for various phases of an assignment, and where circumstances arise which could not reasonably have been foreseen at the time of the contract, the Client will pay an additional fee in respect of the extra work occasioned by the circumstances and the work. Where possible an estimate of the work involved will be agreed with the Client before incurring the additional expense. In this regard where The Company is unable to seek prior approval from the Client but feels it necessary to commit additional time/resource then the Client agrees to trust The Company`s judgement here. In such circumstances The Company agrees to keep any such additional spends to a minimum at all times.
12. Where it is specified that the Client may have the option to terminate work after a particular phase, the Client will undertake to meet the cost of all work (as shown on the time sheets), expenses, and any VAT, that has not already been paid for. The Client may also vary the assignment as circumstances may dictate, after consultation with The Company.
13. The Company, its employees and associates, will at all times seek to minimise such expenses incurred during assignments.
14. Disbursements made by The Company on behalf of a Client (for example publications and itemised telephone calls) will be recharged, as will be travel and accommodation. Entertainment expenses, when necessary, will also be recharged. All such charges will be agreed or notified in advance where possible.
15. Mileage costs, if incurred, will be charged at the per mile rate allowable by the Inland Revenue for the first mileage tranche and in accordance with any associated appendix.
16. The Company will make up any agreed number of copies of reports. In addition to the agreed number, additional copies will be charged at an agreed rate for each copy.
17. Value Added Tax will be charged where applicable.
18. Claims for expenses will be accompanied by copies of documentation, where this is reasonable and practical. The originals will be retained and will be made available on request.
19. Where travel in the UK involves travelling to venues throughout the UK The Company will charge for travel time at the fee rate specified in the cost estimates or Service Level Agreement (SLA) or at any relevant appendix for the assignment / work undertaken.
20. The cost of such travel time, as well as the associated costs of travel and accommodation as these arise, will be charged to the expense budget as agreed with the Client.
21. When overseas travel is involved, The Company will charge for travel time, as agreed with the Client.
22. The Company will recharge the cost of medical, travel, and personal effects insurance for overseas travel – again advising the Client of any such costs in advance where possible.
23. When The Company is required to make payments in foreign exchange, The Company will be entitled to claim reimbursement at the exchange rate applicable at the time of the expenditure, including any charges levied on such transactions.
24. Invoices will be submitted by The Company to Clients as specified in the proposal / SLA. As much of The Company costs consist of salaries and operating expenses, which cannot be deferred, The Company will appreciate prompt settlement and no later than 14 days after date of invoice.
25. In addition to any terms outlined within the relevant invoice issued if any payment due by the Client under this Agreement is in arrears for more than thirty five (35) days after the date of invoicing then unless otherwise agreed in writing any such amount will be deemed to be late and in arrears. The Company will then be entitled to charge cumulative interest on the full amount outstanding at a daily rate equivalent to 4% above the Bank of Scotland base interest rate published on the date of the original invoice. Such interest, along with any relevant charges/costs, will accrue from day to day from the original due date until payment in full is made. In respect of any late payments or arrears due to The Company reserves the right to pass on, sell, factor or assign any such overdue debts to a third party of their choice for which additional charges may apply – in some instances this will be unavoidable.
26. Where The Company assignment results in the production and publication of a brochure, report, article, book, magazine, video, film or other generally available publication which is principally derived from work undertaken by Company employees and associates, then the Client will not be allowed to make any use of such item(s) until ALL payments have been received by The Company.
27. The use of such items (as defined above) by The Company will be agreed in advance with the Client, and will at all times reflect The Company’s continuing concern to advance and serve the best interest of the Client.
28. These terms and conditions will apply fully to the named staff and associates and to such others as may be agreed with the Client in writing.
29. Neither party shall make any public disclosure relating to the Agreement or the subject matter of the Agreement without the prior written agreement of the other party, except for any announcement intended solely for internal distribution or any disclosure required by legal or regulatory requirements.
30. The Client undertakes to use only for its own internal business purposes or other purposes agreed in writing by The Company, any work or information delivered or shared. Any instances of using or passing on work or information delivered to an unauthorised third party or attempting to use for gain of any kind not covered or referred to in this proposal/ agreement will incur charges equivalent to normal Company rates plus a 50% penalty to cover administration costs and detrimental effect on business.
31. If the Client makes use of any work or information provided by The Company under any quotation such use of or reliance upon such work / information shall be deemed to be acceptance by the client thereof and outstanding payments (if any) for such work will be due and payable on the first date of such use.
32. The Company/Client shall use all its reasonable endeavours’ to ensure that the work delivered does not infringe the intellectual property rights of any third party. However the Client accepts full responsibility for ensuring that any requests or items handed over do not infringe any rights of any other third party. Where any such infringes occur the Client agrees to fully indemnify The Company. Unless otherwise stated ownership of any such intellectual property created by the Company shall remain with The Company.
33. The Client will indemnify The Company against all loss, claims, demands, liabilities and expenses arising directly or indirectly out of any claim by a third party that any information, data, copyright work, material, software, hardware or methodologies incorporated at the Client’s request into work delivered by The Company or otherwise used in the preparation of work delivered or in the performance of the services at the Client’s request infringes that third party’s Intellectual Property Rights subject to the following conditions:
33a The Company shall promptly notify the Client in writing of any allegations of infringement of which it has notice and will not make any admissions without the Client’s prior written consent;
33b The Company, at the Client’s request and expense, allow the Client to conduct and/or settle all negotiations and litigation resulting from any such claim; and
33c The Company shall, at the request of the Client, afford all reasonable assistance with such negotiations or litigation and shall be reimbursed by the Client for any reasonable costs and expenses incurred in so doing.
34. The provisions of this clause state the entire liability of The Company to the Client in respect of the infringement of the intellectual property rights of any third party. The Client acknowledges that unless otherwise specified no intellectual property rights whatsoever are assigned by the Company to the client under this agreement. The Company hereby grants to the Client, upon receipt of all payments due in full, a non-exclusive royalty-free licence to use the work delivered for the client’s internal purposes or such purposes as are expressly agreed in advance in writing by The Company.
35. The client hereby warrants, represents and undertakes to The Company that unless agreed otherwise,:-
35a in consideration for the price, Intellectual Property Rights in the project (“the IPR”) are hereby assigned to The Company, without limitation as to use, as their absolute property free of encumbrances and free and clear of any security interest or third party rights; and expressly includes the public and digital performing rights in any manner, medium and format (not known or hereafter developed);
35b Use of the IPR by The Company shall not in any way infringe the rights of any third party;
35c Any and all moral rights (whether past, present or future) conferred on any individual creator of the IPR or any part thereof have been or are irrevocably and unconditionally waived.
36. The Client shall facilitate the timely completion of the Services by performing and providing all such services, products, staff, resources, data, and consents, including, without limitation, those specified and agreed in any Quotation as being requisite for the provision of the Services. The Client shall indemnify The Company on demand against any costs (including, without limitation, additional costs of delay), liabilities, loss, damages, or expenses arising from the Client’s failure to perform such undertaking. Any serious breaches of the above, which affect the performance and / or delivery of the contractual objectives may result in a breach of contract, for which the client would be liable for. The Client shall:
36a Comply with the Client’s legal obligations (including, without limitation, those relating to health and safety at work) in relation to The Company’s personnel, sub-contractors and agents providing the Services on the Client’s premises; and ensure that all equipment and resources supplied by the Client to The Company personnel, sub-contractors and agents providing the services complies with all applicable legal requirements (including, without limitation, those relating to health and safety at work).
36b Take whatever corrective action necessary to ensure maximum co-operation towards The Company in fulfilling their role and the speedy and efficient delivery of the agreed objectives agree never to act in a manner which is or may be detrimental to The Company’s business, including adverse publicity.
36c Agree never to enter into, entice, recommend, or facilitate any parties involved or related to this proposal to carry out business direct with them or another third party unless this is specifically agreed with The Company.
36d Agree; where this proposal involves the provision of a service and/or product as a third party, never to enter into any arrangement to supply such goods and/or services direct to any such party during the term of this proposal/agreement and for a period of not less than 6 months after the conclusion of this proposal / agreement.
36e In respect of complaints and/or returns the Company will adhere to all relevant statutory requirements which apply and reserve the right to verify all such complaints and/or returns.
37. Other than in respect of a payment of money due, neither party shall have any liability to the other for failure to perform its obligations, delay or loss occasioned by circumstances which it is outside the party’s reasonable control to prevent, including but without limitation war, strike, lock-out, industrial dispute, fire, explosion, natural disaster, illness and death. If such delay or failure continues for thirty days, the party not responsible for such delay or failure will be entitled to terminate the Agreement by notice in writing.
38. If any provision or part of this Agreement is held to be invalid or unenforceable, the remaining provisions and parts of this Agreement shall remain in full force and effect. No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party.
39. The relationship between the Client and The Company is that of independent supplier and client. Neither party is agent for the other unless specifically so appointed in writing and neither party has any authority to make any contract, whether expressly or by implication, in the name of or otherwise binding the other party, without that party’s prior written consent for express purposes connected with the performance of the Agreement.
40. The parties shall each comply with their obligations in terms of the Data Protection Act 1998 and current legislation including the relevant consumer legislation (for consumer contracts) and fair contract terms (for commercial cleints), EU Data Protection Directive in relation to the processing of personal data by each of them in the course of carrying out their respective obligations under the Agreement. The Client must take every reasonable step not to disclose such personal, private, or sensitive data.
41. In relation to personal data processed by The Company at the request of or as a result of its obligations to the Client under the Agreement, the Client shall at all time, while The Company continues to process such personal data, act as, and maintain the role of the owner and controller of such personal data. The Client warrants and confirms that it has obtained all necessary consents and appropriate notification to allow such data to be transferred to and processed by The Company including, without limitation, transfer and processing of such data outside the European Economic Area.
42. The Company agrees, having regard to the state of technological development and the costs of implementing any measures, to take reasonable endeavours to ensure that appropriate technical and organisational security measures are taken against unauthorised or unlawful processing of personal data and against accidental loss, destruction of, or damage or access to, personal data.
43. The Agreement constitutes the entire agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the provision of the Services. The Agreement may not be modified or amended except in writing signed by a duly authorised representative of each party. The Agreement and the written documentation referred to fully reflect all parties obligations and undertakings and any such verbal only communication must be confirmed in writing if any of the terms of such discussions are to be deemed relevant and therefore forming part of the contract. Both parties must ensure that all relevant undertakings, commitments, and obligations are reflected in writing.
44. The Agreement shall be governed by and interpreted in accordance with the laws of Scotland. The parties agree to submit to the exclusive jurisdiction of the courts of Scotland. Any issues or concerns MUST be put in writing to the other party who has signed here AND do this within 48 hours of any alleged event or the party becoming aware of this `concern` or requirement for clarification. Some disputes should be resolved at a local level where at all possible BUT where appropriate within disputes between the parties shall be referred initially for Alternative Dispute Resolution i.e. Mediation or Arbitration first, using a Mediator/Arbitrator appointed by The Company. Should Mediation fail all parties agree to attempt arbitration. Such expert Mediators or Arbitrators shall be members of a well-regarded body. Such alternative dispute resolution options shall not preclude appeal to the courts or any other remedy BUT parties may be asked to explain where they have not even attempted ADR before proceeding to court.
45. The Company reserves the right to vary/amend its terms and conditions of business unilaterally in accordance with the needs of the business and/or any legislative requirements.