Terms and Conditions of Trading
WORKING SOLUTIONS (CREATIVE IT) LIMITED
TERMS AND CONDITIONS FOR CUSTOMERS
Version 6 – Applicable to all work and orders occurring on or after 1st November 2008
1. These terms and conditions shall apply in respect of all goods and services we supply to you whether specified overleaf or otherwise ("the Service"). Except to the extent that these terms and conditions are varied by mutual consent they shall constitute the entire agreement between us and shall prevail over your own terms and conditions. You agree that in entering into this agreement, you shall not rely on any representation or understanding, whether oral or in writing, which is not included or referred to in these terms and conditions.
2.1. All communication in respect of the Service received from you whether by way of a requested change or otherwise shall only be accepted in writing. Writing shall include email or fax. We shall not be responsible for confirming that the relevant person communicating with us is not authorised unless you have specifically notified us that such person is not authorised.
2.2. Where we are to provide the Service in accordance with your specification, you shall deliver to us at your expense all the necessary information (including without limitation details of any design and plan) in sufficient time and of sufficient quality to enable us to provide the Service in accordance with your instructions and by any dates estimated for delivery and you shall indemnify us against all losses, expenses, damages and costs incurred by us as a result of our use of the information supplied by you including (but not limited to) those incurred by us in respect of any claim by a third party for infringement of any patent, copyright, design, trademark or other industrial or intellectual property right or for negligence, whether in respect of personal injury or death or otherwise. Risk of damage to or loss of any documentation (in whatever form) supplied by you shall be yours even if in our possession.
2.3. While every effort is made to ensure accuracy all details contained on our website, brochures, price lists and other promotional material are intended to give a general idea of our product and services only and nothing contained in any of them shall form part of these terms and conditions.
2.4. All work undertaken that is an update to an existing solution provided by us shall be subject to additional charges and a set up fee (to cover the cost of recovery from archives reconfiguration of development tools and hardware etc) unless such work is covered by a separate maintenance and support licence.
3.1. You will pay the price for the Service set out in the relevant quotation issued by us to you. All quotes are based on the information and instructions you have given us and exclude VAT and remain open for a period of 30 days from issue unless otherwise specified. If during the provision of the Service the information and/or instructions you have given us at the time the relevant quote was issued changes and that change increases the cost to us in providing the Service whether by increase man hours or otherwise or the materials you have supplied us are inferior and result in greater cost to us in providing the Service than reasonably anticipated when supply the quote we reserve the right without notice to increase the price proportionately.
3.2. We reserve the right to carry out a credit check on you. In the event of an adverse report we reserve the right to withdraw the Service without compensation to you.
3.3. Where the Service is to be provided by instalments or development stages, each individual instalment or development stage may at our option be treated as a separate contract and will, notwithstanding para 3.3 below, be invoiced separately.
3.3.1. In respect of development work only (unless otherwise agreed) the price shall be payable as follows with no credit:
(a) 50% of the contractual price upon acceptance of quotation.
(b) 40% on delivery of the Beta version of the software;
(c) 10% within 4 days of final acceptance
3.4. In respect to any other service, Payment terms for all other work carried out by us shall be as stated in the relevant quotation. If Payment terms are not stated, they are cash with order.
3.4.1. If credit has been applied for and is available, this may be used against the invoice value up to the credit limit for the terms agreed.
3.5. Unless otherwise agreed by us in writing the contract price for the Service shall be payable in the manner agreed without set off on or before the agreed due date. We reserve the right to;
(i) charge interest at the rate of 8% per annum on any balance outstanding if payment remains outstanding beyond the payment date (such interest to be charged from day to day and compounded annually)
(ii) appoint or transfer the debt to a collection agency and seek recovery of any costs incurred
(iii) remove the Service from your server.
3.6. If payment is overdue and/or you are in breach of your obligations set out in this agreement in addition to para 3.4 above we reserve the right (without prejudice to any other right or remedy available to us) to stop or postpone delivery or performance under this agreement and we will not be liable for any loss you may suffer as a result of application of this clause. In addition any discount offered by us will be automatically revoked.
3.7. We reserve the right to appropriate any payment made by you and apply it in total or partial satisfaction of any debt due from you to us.
3.8. We may submit work at various stages for your approval. Once you have approved the work we shall have no responsibility for any errors not corrected by you.
3.9. Requested changes to the brief by you must be notified in writing. Where additional work is required due to the changes such additional work will be charged at our current hourly rate relevant for the seniority of the person carrying out the work.
3.10. Reference to man hours shall mean normal working hours. Where additional work is required outside normal working hours our hourly rates shall be multiplied by 1.5.
4.1. Where you purchase goods from us as part of the Service, risk in the goods will pass to you on delivery. Title in any goods supplied by us to you shall not pass to you until we have received all sums due to us. We reserve the right to enter your premises and you shall grant us access to recover any goods supplied by us to you and/or suspend the Service to you if payment is not made on the due date
4.2. Where we have supplied goods to you as part of the Service you must inspect the good on delivery before accepting them. If you have confirmed acceptance of the good whether by way of a signed delivery note or otherwise no refund can be made by us. If you discover the goods are faulty you should notify us within 48 hours and follow any reasonable instructions we may give. Failure to notify us within the 48 hour period will mean that you are deemed to have accepted the goods.
4.3. Where the provision of the Service includes development work by us such acceptance of the development work shall be as agreed in the brief.
4.4. Times given for delivery of the Service are estimates only and time shall not be of the essence.
5. In the event that you cancel your order placed with us you will be charged on an hourly basis for any work carried out on your behalf with a minimum of one hour being charged together with any disbursements we have incurred and a cancellation fee.
6. The title to and any copyright or other intellectual property rights in the materials supplied by you to us will belong to you to the extent that it is not materially varied by us. We retain the title to and any copyright or other intellectual property rights in all designs, plans, images, source code and any other material developed by us in providing the Service to you. On receipt of payment we agree to grant you a royalty free licence to use any intellectual property rights to the extent that we are bale to do so from the provision of the Service provided that such use of the Intellectual Property Rights is consistent with the purpose for which the Service was provided. Any other use of our intellectual property rights shall require our written consent. Any breach of our intellectual property rights will be deemed to be a breach of these terms and conditions.
7. All software developed and owned by us and licensed to you shall be licensed in accordance with these terms and conditions and the relevant end user agreement. Where third party software is supplied as part of the Service such software shall be subject to the relevant third party licence terms.
8. All software supplied by us to you is on an as is basis. Other than as expressly provided for in these terms and conditions no warranty, guarantee or other term relating to the provision of the Service whether implied by statute, common law or otherwise is given, however where we supply goods to you as part of the Service we shall, where possible, assign to you the benefit of any warranty, guarantee or indemnity given to us by the persons supplying the goods to us.
9. We shall have no liability to you for any loss, damage, costs, expenses or other claims for compensation arising from any materials supplied by you to us or instructions supplied by you which are incomplete, incorrect, inaccurate or illegible, or arising from their late arrival or non-arrival, or any other fault of yours.
10.1. Except in respect of death or personal injury caused by our negligence we shall not be liable to you by reason of any representation (unless fraudulent) or any implied warranty, condition or other term or any duty at common law or under the express terms of this agreement for any loss of profit or any indirect or consequential loss, loss of goodwill, any destruction of data, damage, costs or expenses whether or not such losses were in the contemplation of the parties and at the date of this agreement, which arise out of or in connection with the provision of the Service.
10.2. Except in respect of death or personal injury our entire liability in contract, tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this agreement between us shall not exceed either the amount of the price payable by you in respect of the services, goods and/or materials we supply to you or in respect of a valid claim the amount claimable under the terms of the appropriate insurance policy we hold.
10.3. You agree to indemnify and hold us harmless for all liabilities, loss, claims and expenses that may arise from any breach of these terms and conditions by you, including any third party liabilities incurred by us.
10.4. Any claim that you may have against us must be notified to us in writing within one month of the claim arising.
11. We reserve the right to assign or sub-contract any or all of the rights and obligations under these terms and conditions without your further consent to such assignment or sub-contract.
12. We may on occasion reference any work carried out by us on your behalf and/or list you as being a customer of ours for marketing and promotional materials. The price agreed at the outset of the relevant contract reflects your consent to this.
13. If any provision of these terms and conditions (whether in part or in whole) is held by a Court or jurisdiction to be illegal, or unenforceable the parties shall agree to amend the relevant provision as shall be necessary to ensure its application and the remaining provisions of the Contract shall remain full force and effect.
14. Any waiver by us of any breach of or any default under any provision of this agreement will not be deemed a waiver of any subsequent breach or default and will in no way affect the terms of this agreement.
15. The terms of the Contracts (Rights of Third Party) Act 1999 shall not apply to these terms and conditions.
16. You undertake that you shall not for a period of 24 months after the date of these terms employ, enter into a contract for the services of, or entice away from the employment of us anyone who is at that time, and was at the date of these terms and conditions, an employee of us.
17. These terms and conditions shall be governed by the laws of England and the non-exclusive jurisdiction of the English Courts.