These Terms and Conditions (“Conditions”) constitute the only basis on which SkillWeb.co.uk Ltd agrees to supply the Products and/or Services.
1.1 In these Conditions the following terms have the following meanings:
”Additional Order Schedule” means confirmation of an order for additional services from the Customer completing an additional order schedule or ordering via the system administrator under these Conditions which extends the Initial Term of this Agreement;
“Associated Companies” means in relation to a party, the holding party or any majority owned subsidiary of such party or holding company;
“Agreement” means these Conditions, the Order Schedule and the SWL Documentation that is expressly incorporated by reference by SWL on the Order Schedule;
“Charges” means the price to be paid for the Services or Products or any other applicable Charges as specified in the Order Schedule, price list, quotation or email update or other SWL Documentation;
“Commencement Date” means the date as contained in the Order Schedule;
“Consultancy” means the technology consultancy services provided by SWL;
“Customer” means the individual, partnership or company and its Associated Companies or other legal entity accepting any SWL Documentation, quotation, proposal or price list as detailed in the Order Schedule;
“SWL Documentation” means the applicable, valid and current quotation, proposal, Statement of Requirements “SOR”, Service Description, and or Additional Order Schedule;
“SWL” means SkillWeb.co.uk Limited, whose registered office is situated at Grafton House, Grafton Street, High Wycombe, Buckinghamshire, HP11 3AJ, UK;
“Initial Term” means the period that Customer orders and SWL agrees to deliver the services as indicated on the Order Schedule starting from Commencement Date or from the commencement of the Services by SWL or from the date of invoice of the Services and for the period of no less than 24 months, the Initial term may be extended by Customer completing an Additional Order Schedule;
“Intellectual Property Rights” means any discovery, invention, improvement, patent, design, process, information, copyright work (including, without limitation, rights in and to technical processes, systems, methods, software designs, algorithms, code, scripts, or other computer software), rights in databases, topography rights (whether capable of being patented or registered or not), or renewals or applications to register any such right and any other intellectual property right of any nature in any part of the world;
“Order Schedule” means the SWL Order Schedule incorporating these Conditions and/or the Customer’s purchase order which may be accepted by SWL provided that these Conditions are automatically incorporated into such purchase order and subject always to clause 2.1;
“Products” means the products supplied by the SWL, in delivering its services herein or other products required for the specific customer requirement;
“SOR” means the Statement of Requirements and is a living document that embodies and describes the daily operational activities for the provision of Consultancy/Services and/or the supply and installation of Products) in combination with Services/Consultancy that shall be agreed with SWL and Customer after the Commencement Date;
“Services” means the SmartTask services SWL shall make available to the customer and are identified in detail in the relevant Service Description as part of the order documentation and service specification in relation to the contract plan chosen by the Customer;
“Service Description” means the description of relevant services and the service specification ordered by the Customer from SWL for the relevant contract plan each as defined in the relevant Service Description attached to these Conditions.
2.1 Notwithstanding a duly executed agreement to the contrary the parties contract on these Conditions which shall prevail over any inconsistent terms which Customer may seek to introduce on any purchase order or any other communication for the supply/purchase of , Products or Services. Such inconsistent terms shall have no effect on any supplies made by SWL to the Customer. Subsequent orders for Products or Service may be provided under Additional Order Schedules.
2.2 SWL shall supply and Customer shall pay the Charges for Products, Consultancy and/or Services as set out in the Order Schedule and on the terms and conditions of this Agreement.
3 Consultancy & Services
3.1 Where Customer engages SWL to provide:
(a) Services: Services shall be provided in accordance with the Service Description for the Charges set out the Order Schedule or as notified to the Customer; and/or
(b) Consultancy: Consultancy shall be provided in accordance with the SOR or work specification at the Charge rates or sum set out in the Order Schedule or SOR.
3.2 Where Services or Consultancy contain elements of project management Customer and SWL shall prior the commencement of Services:
(a) each nominate an authorised representative who will be the prime point of contact (“Project Manager”) for the provision of Services or Consultancy; and
(b) agree the appropriate methods and frequency of monitoring the progress of Services or Consultancy and fulfilment of the Agreement; and
(c) agree and define each respective parties obligations for the Services or Consultancy in the SOR.
3.3 Subject to Customer complying with its obligations of confidentiality and payment under this Agreement, SWL hereby grants a non-exclusive licence in respect of its copyright in the SWL Documentation, to the Customer to use, modify and adapt the same solely for its own internal business use with the intent that such licence shall take effect on any such copyright.
3.4 SWL shall own and be fully entitled to use in any way it deems fit any Intellectual Property Rights, skills, techniques, materials, concepts or know-how acquired, developed or used in the course of performing Consultancy or Services and any improvements made or developed during the course of Consultancy or Services. Nothing herein shall be construed or give effect to any transfer of right, title or interest in SWL’s intellectual property.
3.5 SWL warrants and undertakes to the Customer that:
(a) subject to clauses 4.2 and 5 the Services will be provided in a timely and professional manner and SWL shall use its reasonable endeavours to provide the same in accordance with any time schedules agreed in writing between the parties in the Service Description or SOR; and
(b) the Consultancy will conform to the standards generally observed in the industry for similar services and will be provided with reasonable skill and care.
3.6 The Customer shall indemnify and keep indemnified SWL in respect of any losses, costs, damages, claims and/or expenses incurred by SWL due to any claims by a third party arising out of an action of Customer’s and/or use of the Service supplied to SWL by the Customer. The indemnity in this clause 3.6 shall survive the termination or expiry of this Agreement.
4 Customer Obligations
4.1 Customer agrees to perform in a timely and professional manner all Customer obligations set out in the SWL Documentation that are required for the provision of Consultancy or Services including but not limited to: access to Customer premises and equipment as is necessary; to afford SWL reasonable working conditions and facilities: to promptly furnish the information requested of the Customer in the SWL Documentation and ensure it employees or agents co-operate with SWL.
4.2 If the provision of Consultancy or Service is delayed other than through the fault of SWL Customer shall pay the Charges in respect of idle-time incurred for the delay including delay as a result of Customer’s agents or subcontractors. Any agreed time schedules shall be deferred to a reasonable period of time or no less than the period of the delay.
5 Charges and Payment
5.1 Unless agreed otherwise in writing all Charges shall be paid by Customer: (a) Service Charges by direct debit as set out in the Order Schedule or similar standing order and each case in advance and prior to the commencement or continuation of Services; or (b) as invoiced by SWL and are payable within 7 days of invoice in Sterling without deduction, set off or retention; and (b) on delivery/performance (in whole or in part) of Products or Consultancy/Services.
5.2 SWL shall be entitled at any time and from time to time (subject as mentioned below) to increase/decrease the Charges by giving to the Customer not less than 10 days’ prior written notice (effective on the next collection of the Direct Debit instruction) in accordance with the direct debit guarantee.
5.3 If the Customer at any time permits or suffers more employees than permitted for the relevant contract plan detailed on the Order Schedule to run, access or use the Services and/or, where SWL is providing Services to more employees of the Customer than the permitted under the contract plan on the Order Schedule, then, without prejudice to any other rights or remedies of SWL, the Customer shall, to the extent that is has insufficient contract plan usage allowance and/or has not paid the Charges for such additional usage, on demand pay the relevant additional Charges for such additional employees (determined in the manner set out in the Service Description or price list in force from time to time) and interest both before and after judgement on such Charges on a daily basis from the date of the first unauthorised use at the rate set out in Clause 5.5.
5.4 All Charges and prices stated are exclusive of value added tax, sales tax, gross tax withholding tax any other similar tax which may be applicable thereto and SWL’s reasonable charges e.g. travel, hotel, subsistence, delivery & insurance, cancellation and bank charges and other charges which shall be paid by Customer at the prevailing rates.
5.5 Failure of Customer to pay the Charges or any other sum due under this Agreement shall entitle SWL without prejudice to any other rights and remedies to (a) charge interest on a daily basis from the date due at the rate set under the Late Payment of Commercial Debts (Interest) Act 1998 as amended from time to time; and/or (b) suspend Services or terminate this Agreement, having given Customer written notification of intention to do so and Customer has failed to remedy its payment default within 14 days from the date of such first notification of any overdue amount.
6 Term and Termination
6.1 Notwithstanding earlier termination under clause 6.2, this Agreement shall commence on the Commencement Date and continue in full force and effect for the Initial Term (as set out in the Order Schedule or Additional order Schedule) thereafter this Agreement shall continue for successive 12 month periods , unless a party gives written notice to terminate this Agreement to be received by the other party at least 60 days from the date of expiry and effective at the end of the Initial Term or any renewal or extension thereof.
6.2 Either party may, by written notice terminate this Agreement immediately without prejudice to any other rights or remedies it may otherwise have if (a) the other party is guilty of any material breach, non-observance or non-performance of any of its obligations and does not remedy the same within 14 days of notice of such breach being given by the non-defaulting party; (b) the other party becomes insolvent or makes any special arrangement or any special assignment for the benefit of its creditors, or is the subject of a voluntary or involuntary filing under the bankruptcy laws of any jurisdiction; (c) the other party is adjudicated bankrupt; or (d) a receiver is appointed for the other party’s business. The effective date of termination shall be the date of receipt of such notice.
6.3 Any termination of the Agreement shall discharge SWL from any liability for further performance and shall entitle SWL to enter Customer’s premises and recover any Products and materials which are the property of SWL and Customer shall immediately pay for any unpaid Charges, expenses and a reasonable sum for any work carried out by it prior to such termination.
7 Limitation of liability
7.1 Subject to 7.3, In no event shall SWL be liable in contract, tort (including negligence), breach of statutory duty or otherwise howsoever for: (a) any loss of profit; (b) loss of business; (c) loss of goodwill; (d) loss of contracts; (e) loss of revenues ; (f) or loss of anticipated savings; or (g) any increased costs or expenses; or (h) loss of, damage to or corruption of data; or (i) any special, indirect or consequential loss or damage of any nature whatsoever, whatever the cause thereof arising out of or in connection with this Agreement even if the other has been advised of the possibility of such damages.
7.2 Subject to clause 7.3 and without prejudice to clauses 7.1 and 7.3 and the Customer’s obligations to pay any Charges hereunder, the parties’ maximum liability under this Agreement is limited in respect of each event or series of connected events, as follows: (a) to £100,000 in respect of direct physical damage to or loss of tangible property; (b) to 125% of the Charges paid or payable in respect of all other events but not exceeding £50,000 in any 12 month period from the Commencement Date.
7.3 Nothing in the Agreement excludes or limits the liability of either party for fraudulent misrepresentation, death or personal injury caused by its negligence to the extent that the same is prohibited by UK statute.
7.4 SWL’s sole obligations and liabilities in respect of the provision of the Service or Consultancy are as stated in these Conditions and SWL Documentation and all other representations (innocent or negligent), conditions, warranties and terms express or implied whether by statute, law or otherwise are hereby excluded to the fullest extent permitted by law.
8.1 Each party shall treat as confidential such information obtained from the other pursuant to this Agreement and shall not divulge such information to any person (except to such party’s own employees and then only to those employees who need to know the same) without the other party’s prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party. Each party shall ensure that its employees are aware of and comply with the provisions of this clause.
8.2 The Customer shall not assign the benefit of this Agreement in whole or in part without the prior written consent from Skillweb , such consent not to be unreasonably delayed or refused.
8.3 Neither Party shall be responsible for any failure to perform these obligations for reasons beyond its reasonable control
8.4 Save as expressly stated herein or the enforcement of any Intellectual Property Rights the parties hereby expressly exclude the provisions of the Contracts (Rights of Third Parties) Act 1999.
8.5 The UK shall be considered the principal place of performance of services or publication of material over the Internet and this Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby agree to submit to the exclusive jurisdiction of the English Courts.
8.6 No failure or delay of either Party in exercising any right, power, or privilege under these Conditions (and no course of dealing between the Parties) shall operate as a waiver thereof.
8.7 If any provision of these Conditions or any part of such provision is held invalid or unenforceable, the remainder of the provisions contained herein will not be affected thereby and each remaining provision or part thereof will be valid and enforceable to the full extent permitted by law.
8.8 This Agreement is not intended to create a joint venture or partnership between the Parties and neither Party is authorised to act as the agent of the other.
8.9 This Agreement represents the entire agreement between the parties to exclusion of all other communications and supersedes all other Agreements relating to the subject matter herein.
9 Data Protection
1.1 9.1 Customer irrevocably consents to information regarding any Customer, employee or user data provided to or otherwise obtained by SWL through this Agreement (“Data”) may be processed by SWL, its Sub-contractors and Associated Companies both within and outside Europe. Where Data is obtained in connection with processing Customer’s orders, including the right of SWL, its Sub-contractors and Associated Companies to use Data to market more effectively SWL and its Associated Companies products and services to Customer and /or the users in the future.
9.2 SWL shall at all times seek Customer’s written consent to use the Customers name and experience of the services in any advertising or case studies that SWL wishes to promote via a press release.
9.3 Customer shall employ reasonable endeavours to obtain informed consent from its employees or users, and shall immediately give SWL notice where it has not obtained such consent or where such consent is revoked.
9.4 SWL employ up to date electronic and physical security to try to ensure that Data is kept secure in accordance with the Data Protection Act and Computer Misuse Act. Whilst we use commercially reasonable efforts to check for the most commonly found viruses, worm, and or trojan horses, or other newly created viruses we are not in a position to confirm that the Service or Products and any links to it will be free from such viruses and cannot accept any liability in this regard due to the fast changing nature of such threats. We therefore recommend that Customer carries out its own virus checks, particularly before opening any link or using the Products or Services.
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