Terms and Conditions

1. Definitions

In these Terms and Conditions the following words shall have the following meanings:

“Agreement”  means these terms and conditions and the Schedule.

“Charges”       means all the charges payable by the Client in accordance with this Agreement, including without limitation the

“Client”            means the individual, company or organisation specified in the Schedule.

“Delivery Date”    means the date(s) on which the Goods and Services are to be provided by EJC to the Client as set out in the Schedule or otherwise within twenty-eight (28) days of receipt by EJC of payment in full of the Goods Fee and the Services Fee.

“Expenses”     means all costs and expenses reasonably incurred by EJC in relation to the provision of the Goods and Services, including without limitation, any costs and expenses incurred by EJC’s employees, agents and subcontractors when travelling to and from the Site, attending meetings with the Client and preparing reports for the Client, and any telephone charges, courier and facsimile costs.

“EJC”                Evan Joyce (Consulting) Limited.

“Goods”           means the software, hardware and other equipment to be supplied by EJC to the Client as specified in the Schedule.

“Goods Fee”   means the fee payable by the Client for the Goods as specified in the Schedule.

“Schedule”     means the schedule, estiamte or proposal produced by EJC and which sets out the Goods and Services to be provided by EJC and the Charges to be paid by the Client.

“Services”       means the installation services to be provided by EJC as set out in the Schedule attached hereto and as may be amended from time to time in accordance with clause 2.1.

“Services Fee”       means the fee payable by the Client for the provision of the Services as specified in the Schedule.

“Sites”              the Location of the Client’s business operations and its Network Infrastructure as set out in the Schedule.

“Warranty”     means any warranties and guarantees that are provided by supplied with any Goods that are procured by EJC on behalf of the Client.

“Year”              means a period of twelve (12) calendar months commencing on 1st January.

2. Provision of Goods and Services

2.1.           EJC shall deliver the Goods to the Client and perform the Services in accordance with the terms of this Agreement.

2.2.          EJC will use its reasonable endeavours to deliver the Goods and provide the Services to the Client by the Delivery Date.

2.3.          EJC and the Client may from time to time mutually agree that EJC will provide additional services by executing an additional schedule, which shall be subject to these terms and conditions.

3. Client’s Obligations

3.1.           The Client undertakes to:

3.1.1.        ensure that the Goods and Services to be provided by EJC satisfy its requirements and are compatible with its existing hardware, software and equipment prior to entering into this Agreement.

3.1.2.       provide EJC, its employees, agents and subcontractors with access to the Client’s premises, equipment, systems and facilities (including, but not limited to, telephone services and adequate Internet connections) as reasonably required by EJC to perform its obligations under this Agreement and ensure that they are treated in a courteous manner and not subject to verbal or physical abuse.

3.1.3.       to the extent that EJC requires access to the same, ensure that its premises, equipment and facilities are safe and comply with all applicable health and safety laws and regulations, and the Client shall maintain insurance in respect of persons working on its premises as required by law.

3.1.4.       provide EJC, its employees, agents and subcontractors promptly with all necessary co-operation, information and data and access to staff and timely decision making which may be reasonably required by EJC, its employees, agents and subcontractors for the proper performance of its obligations under this Agreement and use its best endeavours to ensure that all information and data provided to EJC is complete, accurate and up-to-date.

3.2.          Client hereby acknowledges and agrees that EJC shall not be liable for any delay or failure to comply with its obligations hereunder that arises from any delay or failure by the Client to comply with the provisions of this Clause 3.

4. Payment

4.1.           Except where otherwise stated in the Schedule, the Client shall pay the Charges in accordance with the payment terms set out herein.

4.2.          EJC will invoice the Client for the Goods Fee and Services Fee in advance and for the Expenses in arrears.

4.3.          All Charges are exclusive of VAT and any other taxes or duties which shall be charged in addition at the rates in force at the time of application.

4.4.          All invoices shall be paid in full without set-off or counterclaim within fourteen (14) days of the invoice date.

4.5.          In the event that any payment is not received on the Due Date, EJC shall be entitled to charge interest on any unpaid amount at a daily rate which shall (after, as well as before, any unsatisfied judgment in respect thereof) be eight per cent (8%) per annum above the Sterling base rate of HSBC Bank plc.

4.6.          EJC shall not be required to deliver the Goods or provide the Services to the Client until it has received payment in full of the Goods Fee and the Services Fee.

4.7.          The acceptance of any monies by EJC shall not be construed as an acceptance of such monies as the correct and full amount due and owing to EJC or as a waiver by EJC of any claims it may have against the Client.

4.8.          No title to any Goods provided by EJC shall pass to the Client until full and final payment of all Charges has been received by EJC. Risk in the Goods shall pass to the Client on delivery.

5. Warranty

5.1.           EJC shall use its reasonable endeavours to transfer to the Client the benefit of any warranties and/or guarantees provided by the manufacturer(s) of the Goods.

5.2.          EJC shall perform the Services with reasonable skill and care in a manner consistent with generally accepted standards for identical or similar Services.

6. Limitation of Liability

6.1.           All warranties, representations, guarantees, conditions and terms, other than those expressly set out in this Agreement whether express or implied by statute, common law, trade usage or otherwise and whether written or oral (including without limitation the implied warranties of merchantability and of fitness for a particular purpose) are hereby expressly excluded to the fullest extent permissible by law.

6.2.          EJC shall not be liable to the Client for any loss or damage (whether direct or indirect) arising from or in connection with any defect or fault in the Goods, any delay in the delivery of the Goods, any failure of the Goods to satisfy the Client’s requirements or any incompatibility of the Goods with any existing software, hardware or other equipment of the Client. For the avoidance of doubt, the Client shall bring any claims in relation to defects or faults in the Goods directly against the manufacturer of such Goods.

6.3.          EJC’s sole liability to the Client in respect of any delay in the performance of the Services or failure to perform the Services in accordance the terms of this Agreement shall be to re-perform the Services free of charge and within a reasonable period of time.

6.4.          Notwithstanding Clauses 6.2 and 6.3, and subject to Clauses 6.6, liability for which shall be unlimited, the maximum aggregate liability of EJC (including its respective agents and sub-contractors) to the Client in any Year arising from or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall not exceed the total Charges paid by the Client in that Year.

6.5.          Without prejudice to generality of the foregoing, in no event shall EJC (including is respective agents and subcontractors) be liable for any indirect or consequential losses of any nature whatsoever, any loss of profits, loss of data, business interruption, loss of use, loss of contracts, or loss of goodwill (whether direct or indirect) whether or not caused by or resulting from its negligence or a breach of its statutory duties or a breach of its obligations howsoever caused even if it is advised of the possibility of such loss.

6.6.          Nothing in this Agreement shall be deemed to exclude, restrict or limit the liability of either party (or their respective agents or subcontractors) for death or personal injury resulting from their negligence or any liability for fraudulent misrepresentation.

6.7.          Both parties accept that the limitations and exclusions set out in this Agreement are reasonable having regard to all the circumstances.

7. Term and Termination

7.1.           This Agreement shall commence on the date that the Client signs the Schedule and shall continue until all Goods and Services specified in the Schedule have been delivered or provided by EJC to the Client unless terminated in accordance with this Clause 8.

7.2.          Either Party (“Terminating Party”) may terminate this Agreement with immediate effect by written notice to the other party (The “Defaulting Party”) on or at any time after the occurrence of:

7.2.1.        a material breach by the Defaulting Party of any of its obligations in this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 30 days after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so;

7.2.2.       i) any liquidator, trustee in bankruptcy, receiver, administrative receiver, administrator or similar officer is appointed over, or in respect of, the Defaulting Party or any part of its business or assets; or ii) any order is made, or resolution is passed, or notice is issued convening a meeting for the purpose of passing a resolution, or any analogous proceedings is taken, for the winding-up, administration, dissolution or bankruptcy of the Defaulting Party (other than a members’ voluntary liquidation solely for the purpose of solvent amalgamation, reconstruction, reorganisation, dissolution, merger or consolidation); or iii) any provisional liquidator is appointed to the Defaulting Party or the Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors; or iv) the Defaulting Party threatens to do any of the things listed above.

7.3.          Termination of this Agreement however caused shall be without prejudice to any rights or liabilities accrued at the date of termination, which includes without limitation, all sums due to EJC for Goods and Services supplied (including for the avoidance of doubt any Charges incurred in respect of work in progress) prior to the date of termination.

8. Miscellaneous

8.1.           This Agreement constitutes the entire agreement and understanding of the parties and supersede all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of this Agreement

8.2.          Each party warrants to the other party that, in entering into this Agreement, it has not relied on any statement, representation, assurance or warranty of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement.

8.3.          If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force unless, in the reasonable opinion of EJC, the purpose of this Agreement is frustrated as a result. If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with whatever modification is necessary in the reasonable opinion of EJC to give effect to the commercial intention of the parties.

8.4.          No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.

8.5.          EJC shall not be in breach of this Agreement, nor shall it be liable for any failure or delay in the performance of any of its obligations under this Agreement (and time for performance of such obligations shall be extended accordingly) arising from or attributable to acts, events, omissions or accidents beyond its reasonable control, including but not limited to acts or omissions of it’s suppliers, agents and subcontractors (“Force Majeure Event”), provided that: (a) it promptly notifies the other parties in writing of the nature and extent of the Force Majeure Event causing its failure or delay in the performance of its obligations; (b) it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the occurrence of the Force Majeure Event, it ought reasonably to have taken, but did not; and (c) it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event and to resume the performance of its obligations as soon as reasonably practicable.

8.6.          No failure or delay by a party to exercise any right or remedy provided under this Agreement 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.

8.7.          Any notice required under this Agreement shall be given in writing and in the English language and sent to the address of the intended recipient as set out in the Schedule.  Either party may change their address for notices by notice to the other party given in accordance with the provisions of this Clause. Any such notice may be delivered personally or sent by registered post or equivalent, courier, facsimile, or email and shall be deemed to have been received: i) if delivered personally or if couriered, when delivered; ii) if posted, two working days after the date of posting or, in the case of a notice to an addressee not in the country of the sender, ten working days after the date of posting; iii) if sent by facsimile or email, upon confirmation of delivery to the intended recipient.

8.8.          This Agreement is personal to the Client and the Client may not, without the prior written consent of EJC, assign, transfer, sub-contract, delegate or deal in any other manner with any of its rights and obligations under it. EJC may, at any time, assign (absolutely or by way of security and in whole or in part), transfer, mortgage, charge or deal in any other manner with the benefit of any or all of any of the Client’s obligations or any benefit arising under this Agreement. EJC may, at any time, sub-contract any of its obligations under this Agreement to any third party.

8.9.          The parties are independent contractors and nothing in this Agreement will constitute one party as the agent or partner of the other.

8.10.         In the event of conflict between these terms and conditions and the Schedule these terms and conditions shall prevail.

8.11.         No third party shall acquire any rights against a party to this Agreement by virtue of the Contract (Rights of Third Parties) Act 1999 or similar laws in any jurisdiction.

8.12.         This Agreement shall be governed by and construed in accordance with the laws of England and Wales and in the event of dispute the parties hereby submit to the exclusive jurisdiction of the English Courts.