1.1 These are the Terms and Conditions of Itek Systems Management Ltd and shall govern all Contracts, Agreements and Transactions for the supply of Services and Goods to the Client and apply in place of and prevail over any terms or conditions contained or referred to in any correspondence or elsewhere or implied by trade, custom, practice or course of dealings unless specifically agreed to in writing by a director of Itek Systems Management Ltd, and any purported provisions to the contrary are hereby excluded or extinguished.
1.2 Any written order or other communication of any kind from the Client containing any terms and/or conditions inconsistent with the Standard Terms or the Detailed Terms shall not be accepted by Itek Systems Management Ltd to the extent of such inconsistency and such inconsistent terms and/or conditions shall be deemed to be severable and shall be severed from the Order without otherwise affecting the validity thereof.
1.3 No employee, servant or agent of Itek Systems Management Ltd has the authority to vary these Standard Terms or the Detailed Terms orally and no variation of these Standard Terms or the Detailed Terms shall be effective or binding on Itek Systems Management Ltd unless incorporated into the document and made in writing and signed by a director of Itek Systems Management Ltd.
1.4 No responsibility is accepted by Itek Systems Management Ltd for any inaccuracy or error in orders given by telephone.
Any date or period quoted by Itek Systems Management Ltd for the delivery of Goods or Services is given in good faith by way of estimate only. While Itek Systems Management Ltd will endeavour to deliver within the period stated, such date or period is not to be of the essence of the contract. Itek Systems Management Ltd shall not be liable for any delays resulting in any way in respect of late delivery even when Itek Systems Management Ltd has expressly agreed in writing a delivery date, nor shall such failure to deliver on the date or within the period named by Itek Systems Management Ltd be deemed to be a breach of contract.
3.1 The Services shall comprise the provision by Itek Systems Management Ltd to the Client of the Services as set out in the Proposal Schedule.
3.2. Where the Client requests and Itek Systems Management Ltd agrees to the supply of Extra Works then Itek Systems Management Ltd shall be entitled to levy Additional Charges at the rates set out in the Proposal Schedule, computed by reference to the Man Hours provided.
3.3 Where the Client requires a level of support and maintenance which requires Itek Systems Management Ltd to engage a third party to rectify a fault, then Itek Systems Management Ltd shall be entitled to charge the Client for the services of such third party. Such Third Party Charges shall be determined by Itek Systems Management Ltd in its absolute discretion (usually in accordance with an action plan devised by Itek Systems Management Ltd for that purpose) and must be advised to and agreed upon by the Client prior to their being incurred on the Client’s behalf.
3.4 For the avoidance of doubt, the Services cover labour only and do not include the supply of hardware, software or any other parts, which shall be invoiced separately where provided. Itek Systems Management Ltd strongly recommends that all Servers have valid Hardware warranty and that all 3rd party software has a vendor support warranty
3.5 Itek Systems Management Ltd shall use its best endeavours to comply with the response times set out in Schedule 1 but the parties agree that time shall not be of the essence in relation to response times and that Itek Systems Management Ltd shall have no liability whatsoever for any failure to adhere to the proposed response times in Schedule 1.
3.6 The Client acknowledges that a Computer System and connected devices have a limited lifespan. Itek Systems Management Ltd may make recommendations as to the upgrading or replacement of software and hardware and the Client agrees that these will be implemented forthwith. Where an element of the Computer System is no longer supported by a third-party supplier an upgrade will usually be recommended.
4. SUPPORT AND MAINTENANCE
4.1 Itek Systems Management Ltd shall only provide the Client with the Services if the Client has paid the Support and Maintenance Charge on the due dates as set out in the Proposal in full.
4.2 All devices connected to the client's network either directly or indirectly during any monthly billing period will be billed and supported unless specifically agreed to the contrary in writing by Itek. Any device removed from the client's network by the end of a billing month will not be billed or supported.
4.3 The Services shall or shall not include, entirely at Itek Systems Management Ltd discretion on a case-by-case basis, the diagnosis and rectification of any fault resulting from:
4.3.1 the improper use, operation, neglect or the abuse or misuse of all or any part of the Computer System;
4.3.2 the modification of the Computer System or its merger (in whole or in part) with any other software, hardware or computer system;
4.3.3. the use of the Computer System or any part of it at a site or on hardware or equipment not registered with or notified to Itek Systems Management Ltd;
4.3.4 the failure by the Client to implement recommendations in respect of or solutions to faults previously advised by Itek Systems Management Ltd including recommendations to replace any of the Client’s hardware or software. Itek Systems Management Ltd decision shall be reasonable and final in determining the impact of a failure to follow a recommendation;
4.3.5 any repair adjustment alteration or modification of the Computer System by any person other than Itek Systems Management Ltd without Itek Systems Management Ltd prior written consent;
4.3.6 any breach by the Client of any of its obligations under any maintenance agreement in respect of any hardware on which the Computer System is used;
4.3.7 the use of the Computer System for a purpose for which it was not designed or intended;
4.3.8 the use of the Computer System by the Client’s personnel who, in the reasonable opinion of Itek Systems Management Ltd, are not adequately trained.
4.3.9 problems caused by third-party suppliers. Time liaising with third-party suppliers shall be deemed to be time spent diagnosing faults caused by third-party suppliers;
4.2.10 where an element of the Computer System is no longer supported by a third-party supplier.
4.4 Itek Systems Management Ltd may restrict the types of modifications that can be made to the Computer System.
4.5 Itek Systems Management Ltd may password-protect certain elements of the Computer System. We will record certain password information in our database. We will release such password information to the Client’s personnel as agreed. Itek Systems Management Ltd will not be liable for providing any Services in respect of issues created through unauthorised access to the system by Client personnel.
4.6 In the event that the Client or any third party installs any software or makes any changes to the Computer System without written permission from Itek Systems Management Ltd, then Itek Systems Management Ltd may cease to provide the Services with no liability to the Client. In the event that written permission is provided by Itek Systems Management Ltd, Itek Systems Management Ltd may make Additional Charges for any work associated with the change.
4.7 For the avoidance of doubt, no third party may access the servers or network using direct or remote access software. No remote access software may be installed on the Computer System with the exception of that which is installed by Itek Systems Management Ltd.
4.8 Itek Systems Management Ltd may upon request by the Client and at Itek Systems Management Ltd sole discretion provide support notwithstanding that the fault results from any of the circumstances described in Clauses 4.3, 4.5 and 4.6 above, or in respect of any other request by the Client. In such circumstances, Itek Systems Management Ltd shall be entitled to levy Additional Charges.
4.9 Itek Systems Management Ltd reserves the right to make Additional Charges to the Client for any Services provided in accordance with the Client’s request where such Services are provided outside the Hours of Service.
4.10 Itek Systems Management Ltd shall be entitled to levy Additional Charges if support is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Client’s request unnecessary or unreasonable.
4.11 Additional Charges [levied under Clauses 4.6, 4.8 and 4.10] shall be calculated as follows:
Total Hours provided x Itek Systems Management Ltd’s current consultancy rate.
4.12 Additional Charges levied under Clause 4.8 shall be calculated in accordance with the formula set out in Clause 4.11 but using an increased consultancy rate at Itek Systems Management Ltd’s discretion.
5.1 All prices and terms quoted by Itek Systems Management Ltd or shown on Itek Systems Management Ltd website or on any price lists, catalogues etc. may be altered by Itek Systems Management Ltd without notice and without liability to Itek Systems Management Ltd.
5.2 Except as specified herein, all sums payable by the Client are exclusive of VAT and similar taxes, imposts and surcharges payable in respect of the Services. The Client shall pay any additional charges due to Itek Systems Management Ltd in respect of the said VAT and similar taxes, imposts and surcharges (including customs duty, excise and stamp duty) imposed in connection with the Services.
5.3 Itek Systems Management Ltd reserves the right at any time prior to delivery of the Services to adjust the price to take account of any increase in the cost of labour, raw materials, currency fluctuations, increases of taxes or duties or any other matters affecting the cost to Itek Systems Management Ltd in complying with the Contract
5.4 Charges may also be varied by Itek Systems Management Ltd from time to time on giving not less than 3 months’ notice to the Client but will not take effect prior to 1 year from the Commencement Date and any change will take effect for the continuation of the agreement.
5.5 Itek Systems Management Ltd reserves the right to amend any accidental errors and omissions in proposals, quotations and invoices.
6.1 A valid Direct Debit in favour of Itek Systems Management Ltd will be requested and setup during the onboarding period and must remain in place at all times during the trading relationship. All payments will be deducted from the client's nominated bank account no earlier than 10 days from notification of the charge or on specific dates agreed in advance by Itek Systems Management Ltd.
6.1 Payment terms for the Services are set out in the Proposal Schedule or, if not so specified, to be paid in full within 14 days following the date of invoice. Payment of monthly or annual fees and any deposit shall be made in accordance with the terms set out in the Proposal Schedule or, if not so specified, to be paid in advance by Direct Debit. Additional Charges, Third Party Charges and expenses shall be paid by the Client within 14 (fourteen) days following the date of the invoice and collected by Itek Systems Management Ltd by direct debit. Payment shall be a condition precedent to the continued performance by Itek Systems Management Ltd of its obligations under the Contract. The Client's failure to comply with this payment condition shall make the supply of the Services voidable at the option of Itek Systems Management Ltd by giving written notice to the Client. Such notice by Itek Systems Management Ltd shall be without prejudice to Itek Systems Management Ltd rights to recover all monies owing to it by the Client which shall thereupon become immediately due and payable and shall be recoverable by Itek Systems Management Ltd as a liquidated debt.
6.2 Itek Systems Management Ltd has the right to suspend provision of the Services where payment is overdue, on giving immediate notice to the Client. The right to suspend performance ceases when the Client makes payment in full of all amounts due.
6.3 Any period during which performance is suspended in pursuance of this Clause 6 shall be disregarded in computing any contractual time limit taken, by Itek Systems Management Ltd or by a third party, to complete any work directly or indirectly affected by the exercise of this right. Where the contractual limit is set by reference to a date rather than a period, the date shall be adjusted accordingly.
6.4 The Support and Maintenance Charge shall include the cost of travelling time, on a site-by-site basis.
6.5 Itek Systems Management Ltd reserves the right to charge the Client interest on all overdue amounts at the statutory rate payable under the Late Payment of Commercial Debts (Interest) Act 1998 in force from time to time.
6.6 Itek Systems Management Ltd may, at its absolute discretion, require a deposit or full payment before commencing any work and shall have no obligation to provide any goods or services until payment of the aforementioned deposit or full payment.
6.7 Itek Systems Management Ltd will respond to oral or written requests for goods or services. However, Itek Systems Management Ltd reserves the right to request a written order from the Client for the provision of goods or services whether under the Contract or any other and, where requested, the Client shall provide such a written order prior to work commencing or goods or services being provided.
6.8 All goods provided under any Contract between the Client and Itek Systems Management Ltd remain the property of Itek Systems Management Ltd until paid for in full.
6.9 Where the Services are delivered in instalments or in the course of two or more separate deliveries any failure to make such payments due on or before the due date will entitle Itek Systems Management Ltd at its option to treat the Contract as voided by the Client and in such event, Itek Systems Management Ltd reserves all rights therein which may have accrued to the Client prior to such termination.
7. COMPUTER AND OTHER ON-SITE FACILITIES.
7.1 The Client shall make available to Itek Systems Management Ltd free of charge whilst on-site: -
7.1.1 A competent representative to liaise with the Itek Systems Management Ltd personnel;
7.1.2 such use of any equipment as shall be reasonably required by Itek Systems Management Ltd to provide the Services and the Client hereby agrees to allow Itek Systems Management Ltd unhindered access to such equipment including but not limited to the ability for Itek Systems Management Ltd to turn off and/or restart the Client’s server(s) where appropriate;
7.1.3 use of a telephone for Itek Systems Management Ltd engineers for all reasonable purposes, including, but not limited to, providing Itek Systems Management Ltd Head Office with progress reports and contacting third-party suppliers.
7.1.4 toilet and washroom facilities.
7.2 The Client shall notify Itek Systems Management Ltd of all security and other office procedures implemented at the Site and shall provide Itek Systems Management Ltd with its health and safety policy prior to the commencement of the Term. Itek Systems Management Ltd shall comply with all such security and office procedures at all times during the on-site provision of the Services.
7.3 The Client warrants that all software it provides to Itek Systems Management Ltd for installation, configuration or use in any way, has been legally obtained and is properly licensed. The Client further warrants that it has legally purchased a sufficient number of copies of such software and that it has not violated any licensing laws. Itek Systems Management Ltd has no knowledge regarding the licensing of software provided to it by the Client and the Client indemnifies Itek Systems Management Ltd for any installation, configuration or use of such software. The Client understands and acknowledges that it shall be solely responsible and liable for all licensing and purchasing of software. The Client shall provide the Client’s software licence codes and disks when required by Itek Systems Management Ltd. At no time shall the Client ask Itek Systems Management Ltd to behave illegally by using unlicensed software.
7.4 Itek Systems Management Ltd has an Equal Opportunities Policy but nevertheless reserves the right to employ persons of their choice on all contracts including on-site work. Subject to this, Itek Systems Management Ltd will use its best endeavours to co-operate with site agreements provided this does not conflict with their normal course of work.
Itek Systems Management Ltd warrants that:
8.1 the Services will not infringe the rights of any third party
8.2 it will provide the Services at all times with reasonable skill and care.
8.3 it will devote as much of its time and resources as may reasonably be required to enable it to provide the Services.
8.4 it will observe the Client’s reasonable instructions with regard to the performance of the Services.
8.5 it will use all reasonable endeavours to perform the Services within the agreed timescale.
9. INTELLECTUAL PROPERTY
9.1 Each party shall continue to own the Intellectual Property Rights in all documents, goods and services owned by that party prior to the date of the Contract.
9.2 So far as is required for the completion of the Contract the party owning such Intellectual Property Rights shall grant to the other a royalty-free, non-exclusive, non-assignable licence that will terminate on the termination of the Contract.
9.3 Itek Systems Management Ltd shall own the Intellectual Property Rights in all documents, goods and services created by it during the course of the Contract and grants to the Client a royalty-free, non-exclusive, non-assignable licence for such period as is reasonably necessary to enable the Client to receive the full benefits of the Contract.
10.1 Itek Systems Management Ltd and the Client will treat as confidential all information obtained from the other party under or in connection with the Contract concerning the business or affairs of the other or any member of the group of companies to which it belongs, or which is designated as confidential by the other party or which is by its nature clearly confidential (“Confidential Information”).
10.2 The recipient party will not modify the other party’s Confidential Information or use or disclose it to any person (or permit others to do so, except those employees, agents, sub-contractors, suppliers and other representatives as necessary for the performance of Itek Systems Management Ltd rights and obligations under the Contract) without the other party’s prior written consent.
10.3 The provisions of 10.1 and 10.2 will not extend to information which:
10.3.1 was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party; or
10.3.2 is already or becomes public knowledge through no act or omission of the receiving party paragraph; or
10.3.3 is independently developed by the recipient party without access to or use of such information;
10.3.4 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
10.3.5 is required to be disclosed by law or by any regulatory authority having jurisdiction over either party.
10.4 Each party:
10.4.1 will ensure that all persons to whom it discloses any Confidential Information of the other party are aware prior to disclosure of the confidential nature of the information and that they owe a duty of confidence to the other party;
10.4.2 agrees to take all reasonable steps to ensure that the other party’s Confidential Information is not disclosed or distributed by its employees or agents in violation of these provisions; and
10.4.3 shall give notice to the other party of any unauthorised misuse, disclosure, theft or other loss of that party’s Confidential Information immediately upon becoming aware of the same.
10.5 These obligations of confidentiality will survive any termination of the Contract.
11. DATA PROTECTION
11.1 Itek Systems Management Ltd will process personal information (“Information”) provided by the Client as defined in the Data Protection Act 1998 (“DPA”) in accordance with applicable data protection law and this Clause 11.
11.2 The Client consents to Itek Systems Management Ltd using Information as follows:
11.2.1 Itek Systems Management Ltd will obtain, record, store and use Information as necessary to perform Services including transfer of Information to employees, agents and third parties as required for this purpose.
11.2.2 Itek Systems Management Ltd may transfer its business assets (which include Information) on re-organisation, sale or merger of the whole or any part of its business.
11.2.3 Itek Systems Management Ltd reserves the right to process Information as required for marketing purposes, to obtain legal advice, comply with legal requirements, enforce or apply any agreements (including the Contract) and protect the rights, property or safety of Itek Systems Management Ltd, its employees, clients, customers and others.
11.2.4 Itek Systems Management Ltd may transfer Information outside the European Economic Area for any of the purposes listed in this Clause 11.
11.2.5 If Itek Systems Management Ltd intends to process Information other than as set out above the Client will receive notice and be given the opportunity to decline the processing.
12.1 Neither party shall be liable to the other or any person claiming through the other for any loss of profit, damages or expense, or for any consequential loss or damage of any kind whatsoever, arising out of the provision of the Services save as otherwise provided in the Contract.
12.2 In any event each party’s total liability to the other shall not exceed the fee payable under the Contract for the calendar year in which the cause of action arose.
12.3 Itek Systems Management Ltd acknowledges the importance of maintaining data protection and security but the Client shall be responsible for maintaining backups of all critical software, documents and applications on all of the Client’s file servers, personal PCs, organisers and other electronic equipment. The parties hereby agree that Itek Systems Management Ltd will have no liability whatsoever for any loss or compromise of data protection or security, for any failure to backup data, failure in backups of data or for any breaches of security to the Client’s equipment, loss or corruption of data or any delays in the provision of the service for any reason whatsoever, unless resulting from the negligence of Itek Systems Management Ltd or its employees, agents or subcontractors.
12.4 Itek Systems Management Ltd shall not be liable for any of the Client’s goods, equipment or property if removed from a site by an engineer unless the Client has requested and obtained a written receipt in respect of that item signed by the engineer. In any event, Itek Systems Management Ltd accepts no responsibility for its loss or damage unless caused by the negligence of Itek Systems Management Ltd or its employees, agents or subcontractors.
12.5 Itek Systems Management Ltd is not liable for any problems to the extent that such problems are caused or aggravated by third-party suppliers.
12.6 Nothing herein shall be deemed to exclude or restrict either party’s liability for death or personal injury resulting from the negligence of that party.
13 FORCE MAJEURE
13.1 Itek Systems Management Ltd shall not be liable for any failure to deliver the Services arising from circumstances outside Itek Systems Management Ltd control.
13.2 Non-exhaustive illustrations of such circumstances would be Acts of God, war, riot, explosion, abnormal weather conditions, fire, flood, strikes, lockouts, Government action or regulations, delay by suppliers, accidents, shortage of materials, labour or manufacturing facilities.
13.3 Should Itek Systems Management Ltd be prevented from delivering the Services in the above circumstances it shall give the Client written notice of this fact as soon as reasonably practicable after discovering it.
13.4 If the circumstances preventing delivery are still continuing six months after the Client receives Itek Systems Management Ltd notice then either party may give written notice to the other cancelling the contract.
13.5 If the contract is cancelled in this way, Itek Systems Management Ltd will refund any payment which the Client has already made on account of the price (subject to deduction of the appropriate pro rata amount for Services carried out by Itek Systems Management Ltd) but Itek Systems Management Ltd will not be liable to compensate the Client for any further loss or damage caused by the failure to deliver.
14. TERM & TERMINATION
14.1 The Services shall continue for the period set out in the Proposal Schedule and automatically renew on the same terms thereafter for successive periods equivalent to the original agreement period unless terminated by either party giving written notice to the other no later than three months prior to the end of the current or successive period.
14.2 In the absence of such information in the Proposal Schedule, the Services shall be for a minimum period of one year and automatically renewed at the same terms thereafter for successive periods of one year unless a discounted multi-year period was provided which will automatically renew thereafter on the same terms for successive periods equivalent to the original agreement period unless terminated by either party giving written notice to the other no later than three months prior to the end of the current or successive period.
14.2.1 Clause 14.2 is not applicable to Block Hours-only agreements or one-off provision of services or hardware.
14.3 There are no rights of early termination or cancellation by the client. Should a client wish to cancel the agreement during the initial term or any successive term periods following automatic renewal, the full balance of the agreement will be payable to Itek Systems Management Ltd as if the contract had run to the end of the current period based on the greater of the previous month's invoice quantity or average invoice quantity for the previous 12 months.
14.4 If the Client shall fail to pay any payment to Itek Systems Management Ltd on the due date or becomes subject to any of the circumstances detailed below then Itek Systems Management Ltd may treat all sums due or to become due as if the agreement had reached its full term as detailed in the Proposal Schedule including all successive term periods and on any delivery as immediately payable and at its absolute discretion suspend or cancel further work or require payment in advance therefor or treat the Contract as repudiated by the Client but without prejudice to any other rights of Itek Systems Management Ltd.
14.4.1 The Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
14.4.2 (being an individual) the Client is the subject of a bankruptcy petition or order;
14.4.3 a creditor or encumbrancer of the Client attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within14 days;
14.4.4 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Client;
14.4.5 (being a company) a floating charge holder over the assets of the Client has become entitled to appoint or has appointed an administrative receiver;
14.4.6 a person becomes entitled to appoint a receiver over the assets of the Client or a receiver is appointed over the assets of the Client;
14.4.7 any event occurs, or proceeding is taken, with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.4.1 to 14.4.6;
4.4.8 the Client suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business.
14.5 If Itek Systems Management Ltd becomes subject to any of the circumstances detailed below then the Client may treat the Contract as repudiated by Itek Systems Management Ltd but without prejudice to any other rights of the Client.
14.5.1 Itek Systems Management Ltd commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or making a proposal for or entering into any compromise or arrangement with its creditors;
14.5.2 a creditor or encumbrancer of Itek Systems Management Ltd attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within14 days;
14.5.3 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over Itek Systems Management Ltd;
14.5.4 a floating charge holder over the assets of Itek Systems Management Ltd has become entitled to appoint or has appointed an administrative receiver;
14.5.5 a person becomes entitled to appoint a receiver over the assets of Itek Systems Management Ltd or a receiver is appointed over the assets of Itek Systems Management Ltd;
14.5.6 any event occurs, or proceeding is taken, with respect to Itek Systems Management Ltd in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.5.1 to 14.5.5 (inclusive);
14.5.7 Itek Systems Management Ltd suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business.
14.6 If either party fails to comply with any of the provisions of these terms and does not rectify such non-compliance within 14 days of receipt of written notice thereof, the other party may, without prejudice to any other of its rights or remedies it may have and without being liable to the other for any loss or damage which may be occasioned, give written notice to the non-complying party terminating the Contract with immediate effect, but such notice shall be without prejudice to Itek Systems Management Ltd right to recover all monies owing under the Contract.
15. NON SOLICITATION
15.1 The Client shall not during the Term or for a period of 12 months thereafter either directly or indirectly solicit or offer employment or any form of engagement whatsoever to any member of Itek Systems Management Ltd staff who at any time during the Term, was involved in providing any services on behalf of Itek Systems Management Ltd to the Client.
15.2 If any employee terminates his or her employment with Itek Systems Management Ltd (regardless of the reason for termination) and is employed by the Client (or any affiliate or subsidiary of the Client) in any capacity either directly, or via an agency or company, during or within the 12 month period, the Client shall immediately pay Itek Systems Management Ltd an amount equal to 100% of the yearly salary, wage or fees (including bonuses and benefits in kind) paid by Itek Systems Management Ltd to such employee in the last year of that employee’s employment by Itek Systems Management Ltd.
Any notice hereunder shall be deemed to have been duly given if sent by prepaid first-class delivery post or facsimile to the party concerned at its last known address. Notices sent by post shall be deemed (in the absence of evidence of earlier receipt) to have been delivered 48 hours after despatch and in proving the fact of dispatch it shall be sufficient to show that the envelope containing such notice was properly addressed, stamped and posted. Any notice sent by facsimile shall be deemed to have been delivered on the first working day following its dispatch.
Neither party shall assign or transfer or purport to assign or transfer the contract or the benefits thereof to any other person without the prior consent of the other
Failure by either party to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to ban the exercise or enforcement thereof at any time or times thereafter.
19.1 If any provision of this agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
20 THIRD PARTIES AND RELATIONSHIP
20.1 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any remedy or right of any third party which exists or is available apart from that Act.
20.2 Itek Systems Management Ltd provides Services to the Client hereunder as an independent contractor, and the Contract shall not be construed as a partnership or joint venture.
21. PROPER LAW AND JURISDICTION
All agreements and transactions shall be governed by and construed in accordance with Scottish Law and each party agrees to submit to the exclusive jurisdiction of the Scottish Courts as regards any claim or matter arising under this Agreement.
The following definitions and interpretations shall apply to these Standard Terms, the Detailed Terms and any Contract incorporating the same.
“Additional Charges" means the charges in accordance with Itek Systems Management Ltd consultancy rates, as set out in the Proposal Schedule, for services supplied by Itek Systems Management Ltd in addition to the Services, and Additional Charges may include Third Party Charges;
“Itek Systems Management Ltd” “We” means Itek Systems Management Ltd Limited or any member of its group;
“Client” means the person, firm or company who contracts to purchase in full or in part the Services from Itek Systems Management Ltd;
“Commencement Date” means the date when the supply of Services is due to commence;
“Computer System” means the combined software and hardware system set out in the Proposal Schedule;
“Contract' means any contract between the Client and Itek Systems Management Ltd;
“Detailed Terms” means the terms contained within the Proposal, or on any other documents signed by Itek Systems Management Ltd and the Client;
“Extra Works” means services provided by Itek Systems Management Ltd to the Client, at the Client’s request and with Itek Systems Management Ltd agreement, relating to hardware or software not forming part of the Computer System or that fall outside the Services deliverable under the Proposal Schedule;
“Man Hour” means an hour during which Extra Works are provided subject to a minimum charge of 1 hour. Where Man Hours exceed 6 hours per day, a charge of 8 hours shall apply;
“Hours of Service” means the total hours carried out by Itek Systems Management Ltd in delivering the Services and/or Extra Works;
“Proposal” means the document supplied by Itek Systems Management Ltd to the Client and detailing the Services and any goods to be supplied by them;
“Services” means the Services provided for the Term by Itek Systems Management Ltd to the Client as set out in the Proposal Schedule;
“Site” means the location consisting of a single continuous area of occupation by the Client at the address set out in Schedule 2 where the Computer System is located;
“Schedule” means a schedule in the Proposal;
“Support and Maintenance Charge" means Itek Systems Management Ltd’s charge for the provision of the Services as may be notified in writing by Itek Systems Management Ltd to the Client from time to time and as set out in the Proposal Schedule;
“Term” means the period from the Commencement Date to termination of the Contract. Notwithstanding, the Client shall be legally bound by these terms from the date of signature or from the date of the first use of the Services, whichever is the sooner;
“Third Party Charges” means such additional third-party fees and expenses as Itek Systems Management Ltd may incur;
“Travel Time” means the period of time set out in the Proposal Schedule.
Created, approved and published - 28/09/2012
Copyright Itek Systems Management Ltd 2012