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Terms and Conditions |
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Exec Express Ltd, Registered in England, Company Number 3819363 Trading as exec express, exec4,
e-exec, autoexec, e-engineering IMPORTANT NOTICE
These
terms shall apply to any and all work undertaken or services provided by Exec
Express Ltd trading as exec4 and/or any other trading names [exec4].
The
final statement of any work or services will usually be set out in an Order
Acknowledgement. PART A
General Terms Applicable to all Services PART
B
Additional Terms Applicable to Professional Services PART
C
Additional Terms Applicable to Design
& Development Services PART D
Additional Terms Applicable to Hosting & Email Services PART
A
General Terms Applicable to all Services A1
DEFINITIONS & INTERPRETATION A1.1
DEFINITIONS
A1.2
INTERPRETATION
In these Terms, unless the context
otherwise requires: a)
headings are for convenience only and will not affect interpretation of
the clauses to which they relate b)
the singular includes the plural, and vice versa c)
words expressed in one gender include the other gender d)
reference to any person includes any individual, firm, body corporate,
association, partnership, government or state (whether or not such has a
separate legal personality). A2
ABOUT THESE TERMS A2.1
Part A of these Terms shall apply to any and all Services which are
provided by exec4 to the Client. A2.2
Parts B-E of these Terms shall apply in addition to Part A for those
Services to which such terms specifically relate.
For example, the “Part B: Additional Terms applicable to Professional
Services” shall apply only to those elements of the Services which relate to
the provision of professional services, for example consultancy.
A2.3
In the event of any conflict between the provisions of the Order
Acknowledgement, and those contained within these Terms, the latter shall
prevail. A3
DURATION A3.1
The Services will commence on the date stated in the Order
Acknowledgement by exec4 and will continue until completion of those Services,
unless terminated earlier in accordance with these Terms. A4
Performance of the Service A4.1
Whilst exec4 shall use all reasonable endeavours to deliver the Services
by any agreed dates, although the Client accepts that such timescales are
estimates only. Accordingly, exec4
shall not be
liable for any delays in the provision of the Services. A4.2
exec4 shall perform the Services substantially in accordance with the
Order Acknowledgement. A4.3
Any additional warranties appropriate to each type of Service are set out
in Sections B-E of these Terms. A4.4
The warranties contained within these Terms are provided in lieu of any
implied statutory provisions, the incorporation of which are excluded to the
extent permissible at law. A5 Charges
& Payment A5.1
In consideration of exec4’s performance of the Services, the Client
shall pay exec4 the Charges. A5.2
In addition to the Charges the Client shall pay exec4, VAT and/or
any other applicable sales taxes at their respective current rates.
A5.3
Unless and to the extent stated otherwise in the Order Acknowledgement,
the Client shall
pay all invoices within 30 days from the date of invoice. A5.4
If the Client has a bona fide dispute in relation to all or any portion
of an invoice submitted by exec4, the Client shall notify exec4 in writing
within 10 days of its receipt of the invoice.
Such notification shall include the amount and particulars of the
disputed charge. The Client will
pay any undisputed amount in accordance with Clause A5.3. The parties will
resolve the disputed amounts in accordance with Clause A13. A5.5
exec4 reserves the right to charge interest on all overdue invoices at
the rate of 2% above the base rate of National Westminster Bank plc.
A6
Intellectual Property Rights
OWNERSHIP A6.1 Any
and all Intellectual Property Rights arising in connection with performance of
the Services are the exclusive property of exec4.
Except and to the extent expressly provided in Parts B-E of these Terms,
or in the Order Acknowledgement, nothing in these Terms will be deemed to or
require exec4 to transfer, assign or license any Intellectual Property Rights.
A6.2
All information or materials supplied to exec4 by the Client in
connection with the Order Acknowledgement, together with all associated
Intellectual Property Rights, will remain the property of the Client.
A6.3
The Client hereby grants exec4 a free licence to use all such information
and materials for all purposes connected with the provision of the Services (or
otherwise in connection with the Order Acknowledgement). A6.4
The Client warrants that it has the right to: a)
disclose the information and materials referred to in Clause A6.2, and b)
grant the licence set out in Clause A6.3, and the
Client agrees to defend,
indemnify and hold exec4 harmless from any and all demands, liabilities, losses,
costs and claims, including legal fees incurred by (or asserted against) exec4
and its third party suppliers, that may arise from or in connection with
any allegation of infringement of Intellectual Property Rights of a third party
arising due to exec4’s possession or use of such information or materials.
A7
Confidential
Information A7.1
The Client and exec4 agree to treat as confidential any and all
Information of one another which may come into their possession (or the
possession of any of its employees, agents, sub-contractors or assignees) as a
result of, or in connection with, the Order Acknowledgement. A7.2
The parties agree not to copy the Information of the other party except
as necessary to perform or receive Services under the Order Acknowledgement.
A7.3
The provisions of this Clauses A7.1 & A7.2 will not apply to
Information that: a)
either party was already holding in its lawful possession (and at its
free disposal) before the other party shared such Information under the Order
Acknowledgement; or b)
either party received under a lawful disclosure from a third party
without any obligations of confidence; or c)
either party replicated independently of the other without access to or
knowledge of the Information; or d)
is in the public domain other than through a breach of the Order
Acknowledgement; or e)
must be disclosed by law. A7.4
Each party agrees to promptly deliver or destroy all materials and data
in its possession or control that contain any Information upon the written
request of the other party. A8 Termination
A8.1
Without prejudice to other rights, either party will have the right
without notice to terminate the Order Acknowledgement if: (a)
the other party commits a
material breach and fails to remedy the
breach within fourteen (14) days of receiving written notice to do so; or (b)
the other party commits a
material breach, and such breach is incapable of remedy; or (c)
the other party is the subject of a bankruptcy order or becomes insolvent
or makes any arrangement or composition with or assignment for the benefit of
its creditors or if any of the its assets are the subject of any form of
seizure; or goes into liquidation, either voluntary or compulsory; or if a
receiver or administrator is appointed; or (d)
the other party is the subject of proceedings in any jurisdiction which
are equivalent (or similar) to the circumstances set out in Clause A8.1(c). A8.2
Termination of the Order Acknowledgement, howsoever caused, will not
affect the rights of either party that may have accrued up to the date of
termination. A9
Limitation of Liability A9.1
Nothing in the Order Acknowledgement excludes or limits the liability of
either party for: a)
death or personal injury caused by it’s own negligence; or b)
fraudulent misrepresentation; or c)
any other liability, the exclusion or limitation of which is not
permitted by law. A9.2
Subject to Clauses A9.1 and A9.3 the liability of exec4 in contract, tort
(including negligence), misrepresentation or otherwise arising out of or in
connection with the Services shall be limited to £10,000 in aggregate. A9.3
In no event shall exec4 be liable for any loss of profit, business, goodwill, or for
any other indirect or consequential loss or damage which arises out of or in
connection with the Services. A9.4
Subject to Clause A9.1, exec4 shall have no liability to the Client in
respect of any claim arising unless the Client shall have served notice of the
same upon exec4 within 2 years of the date it became aware of the circumstances
giving rise to the claim, or the date when it ought reasonably to have become so
aware. A10
Force Majeure A10.1
Neither party shall be liable for any breach of its obligations under the
Order Acknowledgement where such breach results from a Force Majeure Event. A10.2
Each party agrees to give notice promptly to the other upon becoming
aware of a Force Majeure Event such notice to contain details of the
circumstances giving rise to the Force Majeure Event. A10.3
Each party agrees to use all reasonable endeavours to resume the
performance of its respective obligations as soon as reasonably practicable
following the occurrence of a Force Majeure Event. A10.4
If a breach due to a Force Majeure Event shall continue for more than 10
days then the parties shall enter into good faith negotiations to incorporate
such amendments to the Order Acknowledgement as may be necessary to enable
continued performance. A10.5
In the event that parties are unable to incorporate amendments to the
Order Acknowledgement pursuant to Clause A10.4 within the specified 10 days,
then exec4 shall be entitled to terminate the Order Acknowledgement.
A11 Assignment
and Sub- contracting A11.1
Neither party may assign, novate or otherwise transfer any of its rights
or obligations under the Order Acknowledgement, without the written consent of
the other except that exec4 shall be entitled to assign its rights under the
Order Acknowledgement to any Group Company. A12 Notices A12.1
Any notice required to be given for the purpose of the Order
Acknowledgement must be in writing and will be deemed to have been duly given if
sent by pre-paid post or delivered by hand or sent by fax (which must be
confirmed as soon as possible by post to the relevant registered office or place
of business). A13
Dispute
Resolution A13.1
Any dispute which may arise between the parties in relation to any matter
arising out of the Order Acknowledgement shall in the first instance, be
referred to more senior personnel within the respective parties organisation who
shall endeavour to reach a resolution within 10 working days from the date on
which the matter was first referred to them. A13.2
If the dispute is not resolved within 10 working days (or in the event
that there is no more senior personnel in either or both party’s
organisations) then the matter may be referred to a mediator by either or both
parties, and: a)
the mediator will be appointed by agreement of the parties.
In the event of a failure to agree within 3 days of a proposal by one
party the mediator will be appointed by the Centre for Dispute Resolution (CEDR); b)
within 14 days of the appointment of the mediator the parties will meet
with the mediator in order to agree the procedure to be adopted for the
negotiations; c)
all negotiations connected with the dispute will be conducted in
confidence and without prejudice to the rights of the parties in any further
proceedings; d)
if the parties reach agreement on the resolution of the dispute the
agreement will be put into writing and once signed by the parties will be
binding on them; e)
if the parties fail to reach agreement within 1 month of the mediator
being appointed then either party may exercise any remedy that it has under the
Agreement or at law; f)
each party shall be responsible for its own costs in respect of the
mediation. A14
Loss of Data
The
Client shall remain at all times responsible for the security, protection and
back up of its own data. A15 Rights
of Third Parties
A15.1
No person who is not a party to the Order Acknowledgement shall have any
right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term
of the Order Acknowledgement. A16 Independent Contractors
A16.1
The parties are independent contractors. Neither party may act on the
other’s behalf without prior written consent. A17
ENTIRE AGREEMENT A17.1
The Order Acknowledgement contains the entire terms for the Services and
supersedes all prior oral or written communications.
It may not be amended except in writing, signed by authorised
representatives of both parties. A18
Severability A18.1
If the event that any term of the Order Acknowledgement is subsequently
found to be unenforceable, invalid or illegal for any reason whatsoever, the
invalidity or unenforceability of such provision shall not affect the other
provisions of the Order Acknowledgement and all provisions not affected shall
remain in full force and effect. The parties agree to attempt to substitute for
any invalid or unenforceable provision a valid or enforceable provision which
achieves to the greatest extent possible the economic legal and commercial
objectives of the invalid or unenforceable provision. A19 Survivorship
A19.1
Clauses A1, A2, and A5 through to A21 inclusive shall survive termination
of the Order Acknowledgement. A20
Waiver
A20.1 No failure, delay or indulgence on the part of either party in exercising any right under the Order Acknowledgement shall constitute a waiver of such right. A21
LAW
A21.1 The Order Acknowledgement is governed by the Laws of England and Wales and the parties submit to the non-exclusive jurisdiction of the English Courts. ~~~ PART
B
Additional Terms Applicable to Professional Services B1
WARRANTY B1.1
exec4 shall provide the Services in a professional manner, using the due
skill and care of a professional company with expertise in the provision of
services similar to the Services. B1.2
The Client accepts responsibility for the way in which it uses the
Services. Exec4 does not warrant that provision of the Services shall have any
particular outcome for the Client. B2
INTELLECTUAL PROPERTY RIGHTS - OWNERSHIP B2.1
Title to and all Intellectual Property Rights as may be generated by
exec4 in the performance of the Services will be and remain vested in and be the
absolute property of exec4, or its licensor as appropriate. B3
PERSONNEL B3.1
exec4 shall use such of its staff, agents or sub-contractors as it deems
appropriate to perform the Services B3.2
exec4 may change the staff, agents or subcontracts performing the
Services if for any reason it wishes to so.
Where possible, exec4 shall provide advance notice of such changes. B4
CONFIDENTIALITY - GOOD PRACTICE, REGULATION AND LAWFUL ACTIVITIES
B4.1
The appointment and ongoing engagement of exec4 Services is subject to
the Client respecting appropriate professional, regulatory, and law abiding
activities and the Client must exclude and indemnify exec4 from any
inappropriate activities accordingly – obviously, exec4 must never be expected
to participate in, or be party to: assisting any illegal activities; breaching
any related industry or territorial regulations; acting on the Client’s behalf
in a manner that is not of generally recognised good practice, B4.2
The Client must disclose all material and influencing factors, including
impending disciplinary, regulatory or legal actions, to exec4 prior to the
commencement of provision of any exec4 Services. Should such factors arise or be
identified by the Client after Services have commenced, they must be notified to
exec4 immediately. Should exec4 discover such factors at any stage they will be
brought to the Client’s attention as soon as is practically possible. B4.3
In such circumstances, exec4 must reserve the right to immediately
terminate all Services without due related notice periods - this may include
incomplete projects and/or withdrawal of all resources assigned to the
Client’s existing or future projects. B5
TRAVEL AND EXPENSES
B5.1 exec4 must also reserve the right to charge for any travel time in excess 2 hours per day, and all out of pocket expenses. ~~~ PART
C Additional
Terms Applicable to Design
& Development Services C1
WARRANTY C1.1
exec4 warrants that software will perform substantially in accordance
with the agreed specification. C1.2
exec4 does not warrant that the software, or use of any service dependent
upon it, will be uninterrupted or error free.
C1.3
Any major faults arising within period of 3 months will be corrected by
exec4. Where faults are found to be
caused (or contributed to) by a party other than exec4 then exec4 reserves the
right to charge for all work undertaken to investigate and/or correct such
faults. C2
ACCEPTANCE C2.1
The Service will be deemed accepted by the Client on the earlier of the
date on which: a)
exec4 confirms to the Client that the Services are completed, or b)
the Client takes into use the results of the Services (for example,
utilises or uploads a web site or starts to use all or part of an application),
or c)
exec4 uploads the web site for the Client, or d) exec4 delivers the Services to the Client (for example, delivers software or an application). ~~~ PART
D
Additional Terms Applicable to Hosting & Email Services
D1
APPROPRIATE USE OF THE SERVICE D1.1
The Client must not use the Service in an inappropriate manner or for any
inappropriate purpose, including but not be limited to a)
Sending, broadcasting, distributing, advertising or otherwise in
connection with unsolicited, offensive, abusive, indecent or obscene content b)
Causing annoyance, inconvenience or anxiety to another person c)
plan, incite or undertake fraudulent activities or criminal offences d)
any activity resulting in breach of any law or regulation in any
jurisdiction. D1.2
If exec4 discovers or suspects that the Client is using the Service in an
inappropriate manner, or for any inappropriate purpose, exec4 shall be entitled
to withdraw the Service without liability or compensation to the Client. D1.3
The Client must not use the Service in such a way as to hinder or
jeopardise the performance of the server or other technology on which the
Service resides or depends, including but not limited to: a)
exceeding any size or usage restrictions advised by exec4 from time to
time b)
using the server as an application server (for example, but without
limitation, using it to generate large volumes of email from a database) D1.4
If exec4 discovers or suspects that the Client is using the Service in
any way which is or may hinder, jeopardise or adversely affect the server or
other technology on which the Service resides or depends, then exec4 shall be
entitled to withdraw the Service without liability or compensation to the
Client. Alternatively, at exec4’s
discretion, it may impose restrictions on the Client’s use of the Services
(for example, but without limitation, restricting bandwidth, processor
utilisation or disk space) and the Client will promptly comply with such
restrictions. D2
RELIANCE ON THIRD PARTIES D2.1
exec4 relies on the provision of some elements of the Services from third
party suppliers. Whilst exec4 uses all reasonable endeavours to manage such
third parties in an appropriate manner, they are independent entities and as
such exec4 shall not liable to the Client for any delay or failure in the
Services arising due to act or omission of exec4’s suppliers. D3
VARIATION OF TERMS D3.1
exec4 may vary the Terms as they relate to the Services without obtaining
prior consent of the Client. D3.2
exec4 may change any element of the Service as it deems necessary,
including but not limited to moving hosting service supplier, IP addresses or
web servers. D3.3
exec4 may terminate the Services at its convenience without liability to
the Client. D4
INDEMNITY D4.1
The Client shall defend, indemnify and hold exec4 harmless from any and
all demands, liabilities, losses, costs and claims, including legal fees
incurred by (or asserted against) exec4 and its third party suppliers, that may
arise from or in connection with the use of any Service by the Client, its
subcontractors or agents. D5
OBLIGATION TO REPORT MISUSE D5.1
The Client shall notify exec4 if it becomes aware of any misuse of the
Services, including but not limited to: a)
port scanning b)
hacking (including attempts) c)
firewall activity d)
virus, worm or trojan activity e)
newsgroup and/or discussion forum misuse f)
spam g)
RSS feeds. D5.2 If exec4 subsequently wishes to investigate further, on its own behalf or that if its supplier, then the Client shall promptly provide all reasonable assistance and information to exec4 or its suppliers upon request. ~~~ PART
E Additional Terms Applicable to Domain
Name Registration Services E1
STATUS OF EXEC4 AS A RESELLER E1.1
exec4 is an authorised reseller of Domain Name Registration Services on
behalf of various domain name registrars. E1.2
exec4 currently utilises a number of registrars to apply for a domain
name – the selected registrar is frequently selected on domain ‘type’ (eg
dot com, dot org etc), purchase price and specific terms of ongoing upkeep,
transfers etc. E2
THIRD PARTY TERMS & APPLICATION PROCESS E2.1
The Client hereby confirms that it has read and agrees to be bound by any
and all terms of the relevant registrar for or in connection with the Domain
Name Registration Services. To
complete the registration process, the Client must acknowledge that it has read,
understood, and agreed to be bound by all the terms and conditions, dispute
policy and/or their equivalent policy, and
the rules and regulations set forth by the registry administrators for the
respective registries. E2.2
The Client hereby authorises exec4 to process the application for a
domain name as stated in the Order Acknowledgement, by accessing an appropriate
Domain Name Registration Service on its behalf, and registering the domain name
in the Client’s own name. E2.3
exec4 or the selected
registrar may at its sole discretion,
elect to accept or reject any application for registration of domain name for
any reason, including but not limited to, rejection due to a request for
registration of a prohibited domain name. E2.4
Upon the selected Registrar’s receipt of domain name registration
information, the Registrar shall submit the information to the registry
administrator for the appropriate top-level domain for approval and processing.
The registry administrator then puts into effect the domain name registration. E2.5 As consideration for exec4 providing domain
name registration services, the Client agrees to pay exec4 the amounts for
registration, renewal and any other or administration fees incurred and/or
levied in connection with the Domain Name Service Registration. E2.6
The Client’s domain registration will only pass to the Client upon
receipt of cleared funds from the Client. exec4
reserves the right to cancel that
registration or restrict use of the domain name until payment has been received. E2.7
The Client shall defend,
indemnify and hold exec4 harmless from any and all demands, liabilities, losses,
costs and claims, including legal fees incurred by (or asserted against) exec4,
that may arise from or in connection with the use of any domain name by the
Client, its subcontractors or agents. E2.8
The Client acknowledges and
recognises that the domain name system and the practice of registering and
administering domain names are continuously evolving, and acknowledge and agree
that exec4 may modify this Agreement, the Order Acknowledgement and the
application of any Dispute Policy as necessary from time to time to comply with
any agreements by which any registrar is or will be bound, and to adjust to
changing business circumstances. E2.9 The Client agrees that its continued use of any
registered domain name constitutes acceptance of this Agreement (and/or the
relevant terms mentioned in Clause 1.3 above) and any amendments thereto. If at
any time, the Client no longer wishes to be bound by such terms, or does not
agree to subsequent changes, the Client’s sole remedy is to request that the
cancellation or transfer of its domain name registration to a different domain
name registrar. E2.10
The Client warrants that if the
Domain Name Services it obtains from exec4 are for another entity, the Client
has full authority to bind that entity as a principal to all terms and
conditions that will subsequently apply. If you have any questions arising from the
Terms and Conditions above, please contact: E-mail: legal@exec4.com Exec Express Ltd
Company Regn No 3819363 Trading
as exec express, exec4, autoexec, e-engineering Terms and Conditions - Terms of Business - Revised 1st July 2006 |
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