Application and entire agreement
- These Terms and Conditions apply to the provision of the services detailed in our quotation (Services) by Adept Cloud, Eventus Sunderland Road, Market Deeping, Peterborough, Lincolnshire, PE6 8FD (we or us) to the person buying the services (you).
- You are deemed to have accepted these Terms and Conditions when you accept our quotation or from the date of any performance of the Services (whichever happens earlier) and these Terms and Conditions and our quotation (the Contract) are the entire agreement between us.
- You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Conditions apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- A “business day” means any day other than a Saturday, Sunday, or bank holiday.
- The headings in these Terms and Conditions are for convenience only and do not affect their interpretation.
- Words imparting the singular number shall include the plural and vice-versa. Time and materials mean the Project scope is quoted on a daily rate. The Client agrees to pay the Service Provider for the time taken to perform the work and for materials used in development of the software. User Acceptance Testing means the process of the Client testing the Deliverables to determine whether the Deliverables meet the requirements of the Specification. This process is detailed in provision 5.1 User acceptance testing, below.
- We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the quotation, including any specification in all material respects. We can make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and we will notify you if this is necessary.
- We will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out in the quotation; however, time shall not be of the essence in the performance of our obligations.
- All these Terms and Conditions apply to the supply of any goods as well as Services unless we specify otherwise.
Duties of the Service Provider
- Following the commencement of a Project, the Service Provider will use reasonable endeavours to:
(a) Create, implement, and deliver Deliverables, in accordance with the Specification;
(b) Meet any due dates in respect of the delivery of the Project as specified in the Project Charter; and
(c) Undertake any tasks required of the Service Provider as set out in the Specification and the Project Charter.
Duties of the Client
- The Client agrees that it will:
(a) Undertake any work required of it as specified in the Proposal, the Project Charter or Specification;
(b) Provide the Service Provider with all information and materials requested by the Service Provider which the Service Provider considers necessary for the delivery of a Project and the creation, modification and implementation of the Deliverables;
(c) Provide the Service Provider with access to the Client’s staff which the Service Provider reasonably requests for the purpose of delivering a Project; and
(d) Answer promptly to all queries placed by the Service Provider in relation to a Project. (e) You must obtain any permissions, consents, licences or otherwise that we need and must give us with access to all relevant information, materials, properties, and any other matters which we need to provide the Services. (f) We are not liable for any delay or failure to provide the Services if this is caused by your failure to comply with the provisions of this section (Your obligations).
- The fees (Fees) for the Services are set out in the quotation and are on a time and material basis
- In addition to the Fees, we can recover from you a) reasonable incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, b) the cost of services provided by third parties required by us for the performance of the Services, and c) the cost of any materials require for the provision of the Services.
- You must pay us for any additional services provided by us that are not specified in the quotation in accordance with our then current, applicable hourly rate in effect at the time of performance or such other rate as may be agreed between us. The provisions of clause 14 also apply to these additional services.
- The fees are exclusive of any applicable VAT and other taxes or levies which are imposed or changed by any competent authority.
Cancellation and amendment
- We can withdraw, cancel or amend a quotation if it has not been accepted by you, or if the Services have not started, with a period of 7 days from the date of quotation, (unless the quotation has been withdrawn).
- Either we or you can cancel an order for any reason prior to your acceptance (Or rejection) of the
- If you want to amend any details of the Services, you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and additional costs will be included in the Fees and invoiced to you.
- If, due to circumstances beyond our control, including those set out in the clause below (Circumstances beyond a party’s control), we must make any change in the Services or how they are provided, we will notify you immediately. We will use reasonable endeavours to keep any such changes to a minimum.
- We will invoice you for payment of the Fees either:
- When we have completed the Services; or
- On the invoice dates set out in the quotation.
- You must pay the Fees due within 7 days of the date of our invoice or otherwise in accordance with any credit terms agreed between us.
- Time for payment shall be of the essence of the Contract.
- Without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out above, we will charge you interest at the rate of 8% above the base lending rate of the Bank of England from time to time on the amount outstanding until payment is received in full.
- All payments due under these Terms and Conditions must be made in full without deduction or withholding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other to justify withholding payment of any such amount in whole or in part.
- If you do not pay within the period set out above, we can suspend any further provision of the Services and cancel any future services which have been ordered by, or otherwise arranged with you.
- Receipts for payment will be issued by us only at your request.
- All payment must be made in British Pounds unless otherwise agreed in writing between us.
Sub-Contracting and assignment
- We can at any time assign, transfer, charge, subcontract, or deal in any other manner with all or any of our rights under these Terms and Conditions and can subcontract or delegate in any manner any or all our obligations to any third party.
- You must not, without our prior written consent, assign, transfer, charge, subcontract, or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions.
- We can terminate the provision of the Services immediately if you:
- commit a material breach of your obligations under these Terms and Conditions; or
- fail to make pay any amount due under the Contract on the due date for payment; or
- are or become or, in our reasonable opinion, are about to become, the subject of a bankruptcy order or take advantage of any statutory provision for the relief of insolvent debtor; or
- enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or
- convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets of undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder (as defined in para, 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency.
- We reserve all copyright and any other intellectual property rights which may subsist in any goods supplied in connection with the provision of the Services. We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights.
Liability and indemnity
- Our liability under these Terms and Conditions, and in breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this clause.
- The total amount of liability is limited to the total amount of Fees payable by you under the Contract.
- We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Services or performance of any of our other obligations under these Terms and Conditions of the quotation for: a. any indirect, special or consequential loss, damage, costs, or expense or; b. any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third party claims; or c. any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; or d. any losses caused directly or indirectly by any failure or your breach in relation to your obligations; or e. any losses arising directly or indirectly from the choice of Services and how they will meet your requirements or your use of the Services or ant goods supplied in connection with the Services.
- You must indemnify us against all damage, costs, claims and expenses suffered by us, arising from any loss or damage to any equipment (including that belonging to third parties) caused by you or your agents or employees.
- Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for each it would be unlawful to exclude or limit liability.
Circumstances beyond a party’s control
- Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question. If the delay continues for a period of 90 days, either of us may terminate or cancel the Services to be carried out under these Terms and Conditions.
- All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
- Notices shall be deemed to have been duly given: a. when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; b. when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated; c. on the fifth business day following mailing, if mailed by national ordinary mail; or d. on the tenth business day following mailing, if mailed by airmail.
- All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party.
- No delay, act or omission by a party exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy.
- If one or more of these Terms and Conditions is found to be unlawful, invalid, or otherwise unenforceable, that / those provisions will be deemed severed for the remainder of these Terms and Conditions (which will remain valid and enforceable).
Law and jurisdiction
- These Terms and Conditions are governed by and interpreted according to English law. All disputes arising under these Terms and Conditions are subject to the exclusive jurisdiction of the English courts.
Conflict between these terms and the Proposal
- If there is any conflict between these terms and conditions and the Proposal, then these terms and conditions will prevail to the extent of the conflict. Notwithstanding the forgoing, if any part of a Proposal is expressly stated to override any part of this Agreement, then that part of the Proposal will take precedence over that part of this Agreement.
User Acceptance Testing
- The Client will undertake User Acceptance Testing of the Deliverables upon notification by the Service Provider. Unless specified to the contrary in the Project Charter, the Client will have 10 business days in total to complete User Acceptance Testing over two rounds of review. The first round of User Acceptance Testing is to be completed within 5 business days from initial notification from the Service Provider that the Deliverables are ready for User Acceptance Testing. The Service Provider then has a period of time to complete changes from the first round of testing. This is followed by the second and final round of User Acceptance Testing by the Client, which must be completed within 5 business days of notification by the Service Provider.
(b) For the purposes of this clause, notification of the Deliverables will take place when the Service Provider sends notification via email to the Client that the Deliverables have been set up by the Service Provider for the Client to commence User Acceptance Testing.
Rectification of errors found during User Acceptance Testing
- The Service Provider will, for no charge to the Client, rectify any Reportable Errors which are found by the Client during User Acceptance Testing.
(b) All Reportable Errors must be reported to the Service Provider within 5 business days following the notification of commencement of a round of User Acceptance Testing. Failure to report a Reportable Error within this time frame means that the Reportable Error will not be addressed by the Service Provider during the User Acceptance Testing period.
(c) For the avoidance of doubt, the Service Provider is not under any obligation to rectify any error or defect in the Deliverables which are not Reportable Errors.
- User Acceptance Testing will be deemed to have been passed and completed:
(i) At the conclusion of User Acceptance Testing, if the Client’s User Acceptance Testing finds that there are no Reportable Errors in the Deliverables which the Service Provider is required to rectify under clause 5.2; or
(ii) If there are Reportable Errors notified by the Client under clause 5.2 and the Service Provider accepts that the errors are Reportable Errors, then:
(A) When all Reportable Errors are rectified by the Service Provider; or
(B) If any Reportable Errors are not rectified, if the Client agrees to accept the Deliverables and permit the Service Provider to rectify the Reportable Errors at a later date.
(b) At the completion of User Acceptance Testing, the Client will confirm in writing (or via email) to the Service Provider that the deliverables have passed User Acceptance Testing.
- (a) If included within the Scope of Works, the Service Provider will provide training to the Client in the use of the Deliverables.
(b) The dates, times and content of any training will be separately agreed between the parties and/or may be specified in the Proposal or Project Charter.
When a project is deemed complete
- A Project will be deemed to have been delivered and completed upon the completion of User Acceptance Testing and the provision of training under clause 48.
- If following the completion of a Project, the Client requests that the Service Provider make any further modifications to the Deliverables or perform any further work in relation to the Deliverables or create any new Deliverables then those modifications and/or further work will constitute a new Project, and the parties will:
(a) Sign a new Proposal in respect of the Project; and
(b) Otherwise follow the provisions of this Agreement in relation to the same.
- The Proposal, Specification or the Project Charter may only be changed by agreement between the parties. The Client acknowledges that a change to the Proposal, Specification or Project Charter may result in an increase in the Fees payable to the Service Provider.
The Client agrees that if:
After commencing the Project:
(A) The Service Provider considers that the requirements of the Specification or the Deliverables are not technically feasible;
(B) The Project will require greater work than what was initially represented by the Client; or
(C) Reasonable assumptions made by the Service Provider when agreeing to undertake the Project (including assumptions stated in the Proposal) do not hold true; and
(ii) The Client refuses to agree to:
(A) Any changes in the Project Charter or Specification to make the Project technically feasible or to accommodate extra work required by the Service Provider.
- Where specified in the Proposal, the Service Provider will provide Support Services to the Client (“Supported Works”). The Support Services will be provided in accordance with Adept Cloud support packages which are available at the client’s request.
- All ongoing support options may include a price increase of 3% on 1 April each year.