Limitless Internet Solutions Ltd (referred to as “Limitless” or “we”)
1. Purpose and Form
1.1 This document contains the terms and conditions (which are referred to generally here as “these terms”) upon which Limitless offers to provide services and deliverable items.
1.2 These terms govern the binding legal agreement (referred to here as “the agreement”) which is made between the person, company or organisation (in these terms referred to as “you” or “the Customer”) which places an order (“Order”) whether by accepting the offer of services and/or deliverable items contained in our proposal document or letter (“proposal”) or your making an order which Limitless states is accepted on these terms.
1.3 The agreement made is for us to provide supply items at the price or rates (referred to as “Charges”) specified in our proposal or your order.
1.4 We are willing to negotiate higher levels of liability than specified in clause 5, subject to your agreement on Charges that reflects this increase; in the absence of any agreed increase in our liability you acknowledge that our limit of liability taking into account the availability of insurance and any other relevant considerations is fair and reasonable.
1.5 Where from time to time services we provide you, such as hosting services or special projects are subject to additional terms and conditions, notified to you or specified in our proposal, the additional terms supplement these terms. Our proposal may be modified or added to at your request and by mutual agreement from time to time.
1.6 Words quoted have the meaning defined in this Clause and agreements made under these terms bind jointly and severally if we work for you and another jointly, use of words of gender or number does not exclude any other and the words “such as” introduce a list of examples which are not exhaustive. These terms have been prepared for the use of Limitless with its customers, copyright in these terms is © Tarlo Lyons, London 1996,1997, 1998 all rights reserved, no unauthorised reproduction or use is permitted.
2. Our obligations
2.1 Provide Services
We will use all reasonable endeavours to provide the services referred to in the Order.
2.2 Supply Deliverables
We will deliver any deliverables referred to in the Order and, if applicable we will use all reasonable endeavours to comply with any timetable relevant to the Order. Delivery will be by electronic means or, if the Charges include delivery of physical media, ex works our London offices.
If you request changes to an Order, such as to meet greater volumes or better specifications than originally contemplated, we reserve the right to increase the applicable Charges for the relevant items ordered; such increases will be notified to you in writing (if you require us to) prior to our incurring any related cost. If the extent of changes is such as to require significant investigation or feasibility study, we will be entitled to charge at applicable rates for our staff time engaged.
2.4 Interruptions and delays
Interruptions to our services or delays in supplying deliverable items due to circumstances beyond our reasonable control are not our responsibility but we will use all reasonable endeavours to continue with an order when these occur.
3. Your obligations
3.1 Make resources available
For work involving our existing resources, unless specified in an Order or subsequently notified to you, we will make no additional charge. Where we are required to travel, take accommodation, incur other expenses or make use of your resources (such as your telephones, faxes, office equipment and space) you will make available the resources we reasonably require and pay for such expenses reasonably incurred to enable us to carry out and complete the relevant Order.
3.2 Pay the price or rates applicable
You will pay the Charges applicable (plus any VAT chargeable) for the relevant Order within 30 days after invoice. You will pay at the rate specified in the Order or as subsequently notified in writing by Limitless for continuing services (unless we agree a single or staged payment) monthly. You will not set-off your responsibilities to pay any amount due on account of any claim or dispute against us on an unrelated matter. If any amount is unpaid by you 30 days after invoice, we will be entitled to suspend the completion of any work or the provision of a service then current on any Order without any liability to you and charge you interest on the balance unpaid until payment (before as well as after any judgement) at the rate of 4% above the Base Rate of Barclays Bank plc from time to time.
4. Copyright and Confidentiality
a) We own or have the right to supply to you any copyright material contained in deliverable items we provide under these terms. Our copyright and that of the owners of any material we do not own ourselves is retained; you have the right to use such deliverable items for the purposes described in our proposal or your order, or (in the absence of any description) only for the purposes current at the time of delivery to you, but not otherwise (without our prior written consent) and not in any case for sub licensing, assignment or resale.
b) We will indemnify you against any final award of damages made against you by a Court in the United Kingdom to the extent we are liable for any infringe-
ment of any copyright or other intellectual property rights of a third party arising from anything we have originated and supplied to you, PROVIDED you: transfer to us as soon as you become aware and entirely the conduct of any negotiation, settlement or defence of any such claim of infringement; make no admission or statement which would adversely affect settlement or defence, and (if necessary to avoid any such infringement) you use only current versions of any such deliverable items.
All information which you notify us and designate as confidential we will keep confidential and not disclose to any third party. Our proposal and communications with you about our business services and proprietary products are confidential information which you undertake and represent will not be used or disclosed to any third party without our authority. This will not apply to such information if the originator has authorised its disclosure in writing and once it is i) generally known ii) disclosed by a third party without any breach of confidentiality.
5. Limit of liability and indemnity
A) WE EXCLUDE LIABILITY FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER AND HOWSOEVER CAUSED AND FOR ANY LOSS OF PROFIT, BUSINESS OR ANTICIPATED SAVINGS EXCLUDING LIABILITY IN RESPECT OF DEATH, PERSONAL INJURY AND FRAUDULENT MIS-REPRESENTATION.
B) WE LIMIT OUR AGGREGATE LIABILITY FOR ANY CLAIMS MADE IN RESPECT OF A SERVICE ITEM OR DELIVERABLE ITEM SUPPLIED TO YOU WHETHER ARISING FROM OUR NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE (A “DEFAULT”), TO THE AMOUNT RECEIVED FROM YOU IN RESPECT OF THE SERVICE (DURING THE TWELVE MONTHS UP TO THE DEFAULT) OR DELIVERABLE ITEM AFFECTED BY THE RELEVANT DEFAULT
C) WHATEVER THE EFFECT OF PARAGRAPH F) OF THIS CLAUSE THE AMOUNT SPECIFIED IN B) SHALL REDUCE TO NIL IN FOUR EQUAL AMOUNTS ON EACH OF THE FOUR ANNIVERSARIES OF THE END OF MONTH IN WHICH THE DEFAULT IN THE SERVICE OCCURRED OR THE DATE OF DELIVERY AS THE CASE MAY BE.
D) WE SUPPLY SERVICES AND DELIVERABLE ITEMS IN ACCORDANCE WITH THESE TERMS AND (IF NOT SPECIFIED IN THE RELEVANT ORDER) TO THE STANDARDS WE CONSIDER APPROPRIATE TO THE PRICE AND LEVEL OF DETAIL SUPPLIED TO US, ACCORDINGLY WE DO NOT GIVE ANY ADDITIONAL WARRANTIES AND EXCEPT TO THE EXTENT PRECLUDED BY LAW ALL IMPLIED WARRANTIES, DUTIES, CONDITIONS AND UNDERTAKINGS (INCLUDING ANY AS TO SATISFACTORY QUALITY) WHETHER IMPLIED, STATUTORY OR OTHERWISE ARE HEREBY EXCLUDED.
E) YOU INDEMNIFY US AND WILL KEEP US FULLY AND EFFECTIVELY INDEMNIFIED AGAINST ANY LOSS, COSTS OR DAMAGE WE SUFFER ARISING FROM ANY CONTENT, MATERIAL OR REQUIRED MODE OF OPERATION SUPPLIED OR SPECIFIED BY YOU FOR ANY SERVICE OR DELIVERABLE ITEM YOU CONTRACT US TO PROVIDE.
F) ANY CLAIM OR ACTION BY YOU IN RESPECT OF A DEFAULT SHALL ONLY BE VALID IF BROUGHT WITHIN 1 YEAR.
6. General terms
6.1 Any service we provide on a periodic basis may, unless otherwise agreed by Limitless, be terminated by either of us in writing on not less than one quarter’s notice, effective on the relevant payment dates for the service in question, and either of us may terminate an agreement by written notice to the other:-
a) if the other is in persistent breach or material breach of these terms and has failed to remedy such breach after 30 days following notice of intention to terminate specifying the relevant breach; or
b) if the other is wound up (other than for the purpose of solvent amalgamation or reconstruction) or otherwise suffers an event of due process in insolvency, wrongful reconstruction trading or an irredeemable breach of these terms;
and upon any such termination, without limiting any of our other rights or remedies, any deliverable items not fully paid for and all confidential information and material shall forthwith be returned to the one of us who supplied them.
6.2 If any provision of these terms is held by a competent Court or tribunal to be unenforceable, illegal or invalid, that provision or the offending words will be deemed not to be contained in these terms (to the extent, if partially so, required for it to be enforceable, legal or valid).
6.3 In entering into an agreement with Limitless each Order and these terms comprise the entire agreement between us and no statement whether oral or in writing made by either of us prior to the date of acceptance of an Order, (which will be the date of the relevant agreement) will be relied on unless it is set out in our proposal document or letter or your order as accepted by us.
6.4 The benefit of an agreement entered into under these terms by you may be transferred to any other wholly owned subsidiary of your group, if you are a member of a group of companies.
6.5 We may communicate by means of electronic mail and fax, as well as postal services. The only person who may validly authorise any change to an agreement for Limitless will be the Project Manager and no change will be effective until authorised or acknowledged by them. He/she will ensure this same restriction applies to your nominee if you notify him/her accordingly.
6.6 The law of England and Wales governs agreements between you and Limitless and you irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales.