Terms

Terms & Conditions for the Supply of Services and/or Products

1.    INTERPRETATION

1.1.    “Customer” means the person or company for whom RWS has agreed to provide the Services and/or Products in accordance with these Terms & Conditions.
1.2.    “Change Control Procedure” means the procedure set out in the SOW or quotation by which changes in the SOW or quotation are agreed in writing between the parties.
1.3.    “Products” means any goods supplied to the Customer by RWS including computer and/or software products.
1.4.    “Intellectual Property” means any and all patents, patent applications, know-how, trade marks, trade mark applications, trade names, registered design, copyright, database rights or other similar intellectual property rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future.
1.5.    “RWS” means RWS Web Solutions Ltd trading as Bluesky-e..
1.6.    “Product Statement” means the Product Statement attached to these Terms & Conditions where Products only are to be supplied to the Customer
1.7.    “SOW” means the Statement of Work, Site Specification or Search Engine Brief document to which these Terms & Conditions are attached where Services and Products are to be supplied to the Customer
1.8.    “Services” means the Services to be provided by RWS for the Customer and referred to in the SOW.
1.9.    The headings in these Terms & Conditions are for convenience only and shall not effect their interpretation.
1.10.    References to the singular shall include the plural where appropriate.

2.    SCOPE OF CONTRACT

2.1    These Terms & Conditions together with any other documentation referred to specifically shall comprise the entire agreement between the Customer and RWS (“the Contract”).  No other statement written or oral, including any statements in any brochure, promotional literature, quotations or tenders of RWS nor any terms and conditions contained in a purchase order of the Customer shall be incorporated into the contract or have legal effect.
2.2    The terms set out below shall prevail over any terms put forward by the Customer and except as provided for in 2.3, no conduct of RWS shall constitute acceptance of any terms put forward by the Customer unless RWS expressly agrees to them in writing signed by its duly authorised agent.
2.3    No employee or agent of RWS has any authority to vary these terms orally or to make any representation on behalf of RWS as to their effect.  No addition or variation of these terms shall be binding on RWS unless in writing signed by one of RWS’s Directors or effected under the Change Control Procedure or in accordance with Clause 8.
2.4    In case of conflict between the provisions of these Terms & conditions and the SOW, the provisions of the Terms & Conditions shall prevail.

3.    CHARGES AND PAYMENT

3.1    Where Services together with Products are supplied the charges and the payment terms shall be in accordance with the SOW.  Where Products only are supplied the charges and payment terms shall be in accordance with the Product Statement.  In the absence of specified payment terms, the Customer shall pay invoices within 30 (thirty) days of the invoice date.  Failure to meet due payment dates will entitle RWS to suspend work and charge the Customer for all reasonable costs and expenses occasioned thereby.  All payments due from the Customer shall be made without any set-off, deduction or counter claim of any nature.
3.2    Overdue payments will attract interest charges for late payment at 2% per annum above the Base Rate of Lloyds TSB Bank PLC.  All taxes or duties which RWS shall have to pay, or collect, in connection with the provision of the Services, shall be borne by the Customer (including VAT at the applicable rate at the date of invoice).
3.3    Any additional work required to be carried out or Products supplied by RWS not referred to in the SOW or the Product Statement shall be charged for separately at RWS’s then prevailing rates.
3.4    RWS reserves the right, by giving notice to the Customer at any time before delivery of Products to increase the price of the Products to reflect any increase in the cost to RWS which is due to any factor beyond the control of RWS.
3.5    Prices quoted are based on the provision of Services during normal working hours of 9.00 am to 5.00 pm Monday to Friday inclusive and both Services and Products are quoted net of VAT and any other applicable taxes.

4.    INCIDENTAL EXPENSES

The Customer shall pay any reasonable and proper expenses specified by RWS.  Such expenses may include travel, accommodation and out-of-pocket expenses.

5.    TITLE

5.1    Title in all Products intended to pass shall remain with RWS until all payments due under the Contract are paid in full.
5.2    Between delivery and payment in full the risk in any Products supplied shall be with the Customer, who shall keep the same in good condition and repair, properly stored and labelled as being RWS’s property, and comprehensively insured.
5.3    In the event of non-payment (in full or in part) for the Products by due date, the Customer hereby irrevocably licenses RWS (insofar as it is able) to enter upon any premises to remove the Products.

6.    RIGHTS TO DEVELOPMENTS

Any Intellectual Property which may be developed by RWS, relating to the provision of Services, including any enhancements or modifications made to any Products shall vest in and remain the property of RWS.  RWS may in its sole discretion develop, use, market and licence any software or data processing material that is similar or related to that which was developed by RWS for the Customer.  The Customer shall execute such documents as RWS may reasonably request to give RWS the benefit of and to obtain protection for any Intellectual Property developed by it in carrying out the Services. Subject to payment of all amounts due under this Contract RWS grants to the Customer a non-exclusive and non-transferable licence to use that part of RWS’s Intellectual Property necessary for the Customer’s utilisation of the Services.

7.    WARRANTY AND LIABILITY

7.1    RWS warrants to the Customer that the Services will be provided using reasonable care and skill.  RWS also warrants that it will take all reasonable steps to comply with any timetable in the SOW but time shall not be of the essence in relation to such obligations. Where RWS supplies in connection with the provision of the Services any Products or Services supplied by a third party, RWS does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise but shall, where possible, assign to the Customer the benefit of any warranty or guarantee given to it.
7.2    RWS shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any instructions supplied by the Customer which are incomplete, inaccurate, or arising from their late arrival or non arrival, or any other fault of the Customer including the failure to fulfill its obligations referred to in Clause 11.
7.3    Except in respect of death or personal injury caused by RWS’s negligence, RWS shall not be liable to the Customer 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 the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of RWS, its servants or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Customer and RWS’s liability in respect of the Contract shall be limited in the following manner:-
7.4
7.4.1    RWS’s liability for breach of contract shall not exceed RWS’s charges for the supply of the Services and/or Products under this contract.
7.4.2    Save in respect of damages for death or personal injury, RWS’s liability for negligence and other torts shall be limited to the amount recoverable under its relevant insurance policies.
7.4.3    No action regardless of form related to or arising out of this Contract may be brought by the customer more than two years after the cause of action has accrued.
7.5    Subject as expressly provided in this Agreement, and except where the Products are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.    CHANGE CONTROL

RWS may at any time and without using the Change Control Procedure make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements.

9.    HEALTH AND SAFETY

The Customer shall take all reasonable precautions to ensure the health and safety of RWS personnel while the same are on the Customer’s premises.  The Customer agrees to observe the provisions of the Health and Safety at Work etc Act 1974 and any amendments thereto.

10.    CUSTOMER OBLIGATIONS

10.1    The Customer agrees to carry out its obligations and responsibilities as set out in the SOW.

10.2    In all circumstances the Customer will provide RWS with all necessary co-operation, information and support that may reasonably be required by RWS for the performance of its obligations hereunder.  RWS will be entitled to charge for additional time required to complete the Services arising as a result of failure of the Customer to meet its obligations.

11.    STAFF

The Customer agrees not to solicit the employment of, nor offer employment to, nor use the Services of any employee, or consultant of RWS who has been engaged either directly or indirectly in the provision of the Services, for a period of 6 months from the date of final payment for Services.  In the event of the Customer employing or using the Services of any such employee or consultant whether directly or indirectly, in contravention of this paragraph, the Customer will pay to RWS a sum equivalent to one years salary for that employee or consultant, such sum to be payable on the date when such employee or consultant is first employed or his services used by the Customer.

12.    TERMINATION

12.1    Either party may terminate this Contract immediately by notice in writing to the other if:

12.2    The other commits any material breach of this Contract which is capable of remedy and fails
to remedy the same within 30 days of notice from the other party requiring the remedy or

12.3    The other commits any material and irremediable breach of this Contract or repeats any breach which has previously been the subject of a notice under sub-clause 12.1 above or

12.4    The other has an Administrator, Receiver, Administrative Receiver, Liquidator or Trustee in Bankruptcy or similar officer appointed or enters into a composition or arrangement for the benefit of its creditors.

12.5    In the event that the Contract is terminated before the completion of the Services, RWS shall be entitled to payment by the Customer for work completed on a quantum meruit basis.

12.6    For the purposes of this clause a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all material respects other than as to the time of performance.

13.    EFFECT OF TERMINATION

Termination or determination of this Contract shall be without prejudice to any other rights or remedies a party may be entitled to under this Contract or at law and shall not affect any accrued rights or liabilities of either party.

14.    NON-DISCLOSURE

Confidential Information includes (without limitation) all and any information about business plans, research and development projects, product formulae, processes, inventions, designs or know-how, sales statistics, financial information, and the names, addresses and contact details of customers or potential customers or suppliers. Both parties have a responsibility to protect and maintain the confidentiality of both parties’ Confidential Information. Both parties will not reveal any such Confidential Information except as expressly authorised, required by law, or strictly necessary for the provision of the Services.  This obligation will continue until any such information comes into the public domain other than through any breach of this provision.

15.    LICENSING OF PRODUCTS

Third party Products purchased by the Customer are sold subject to the terms and conditions of use of the relevant third party licensor for such Products.

16.    NOTICE

All notices required to be sent hereunder shall be in writing and shall be mailed to the address listed within the SOW or Product Statement.  A notice shall be deemed to have been served, if sent by first class mail, two business days after posting.

17.    SEVERABILITY

In the event of any provision of these Terms & Conditions being held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.

18.    WAIVER

The waiver by either party of any default or breach of this Contract shall not constitute a waiver of any other subsequent default or breach.

19.    ASSIGNMENT/SUBCONTRACTING

The Customer will not be entitled to assign this Contract or their rights or obligations hereunder without the prior written consent of RWS.  RWS shall be entitled to carry out any of its obligations under this Contract through sub-contractors.

20.    LAW

The Law governing this Contract shall be English law and the forum for settling disputes shall be the English Courts.

21.    FORCE MAJEURE

RWS shall not be liable for any consequences due to or resulting from any cause beyond its reasonable control and where this has resulted in delays RWS shall be entitled to a reasonable extension of time and shall be entitled to charge for such time at its then prevailing rates.

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