1.1 In these conditions the following words have the following meanings:
1.2 Buyer: the person(s), firm or company who purchases the Services from the Company;
1.3 Company: 3Gi Technology Limited a company incorporated in England & Wales under company number 07085607, whose registered office address is at Whitegates Business Centre Alexander Lane, Shenfield, Brentwood, Essex, CM15 8QF.
1.4 Contract: any contract between the Company and the Buyer for the sale and purchase of the Services, incorporating these Conditions
1.5 Delivery Point: the place where delivery of the Services is to take place under condition 3;
1.6 Services: any Services agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them)
1.7 In these conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.8 In these conditions headings will not affect the construction of these conditions.
2 APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract will be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company’s Services and any variation to these conditions and any representations about the Services shall have no effect unless expressly agreed in writing and signed by a director of the Company. Nothing in this condition will exclude or limit the Company's liability for fraudulent misrepresentation.
2.4 Each order for Services by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Services subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company starts to deliver the Services to the Buyer.
2.6 The Buyer must ensure that the terms of its order and any applicable specification or requirements are complete and accurate.
3.1 Unless otherwise agreed in writing by the Company, delivery of the Services shall take place at the Company’s place of business via online service.
3.2 Any dates specified by the Company for delivery of the Services are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
3.3 Subject to the other provisions of these conditions the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Services (even if caused by the Company’s negligence).
4 CHARGES AND PAYMENT
4.1 Condition 4.2 shall apply if the Services are to be provided on a time-and-materials basis. Condition 4.3 and condition 4.3 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 4 shall apply in either case.
4.2 Where the Services are provided on a time-and-materials basis:
4.2.1 the charges payable for the Services shall be calculated in accordance with the Company's standard daily fee rates as amended from time to time;
4.2.2 the Company's standard daily fee rates are calculated on the basis of an eight-hour day worked between 8.00 am and 5.00 pm on weekdays (excluding weekends and public holidays);
4.2.3 the Company shall be entitled to charge at an overtime rate of 150% of the normal rate for part days and for time worked by members of the service team outside the hours referred to in condition 4.2.2 on a pro-rata basis;
4.2.4 the Company shall ensure that all members of the service team log time time spent on your Services, and the Company shall use such time logs to calculate the charges covered by each monthly invoice referred to in condition 4.2.5; and
4.2.5 the Company shall invoice the Buyer in arrear for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition 4. Any expenses, materials and third party services shall be invoiced by the Company.
4.3 Where the Services are provided for a fixed price the total price for the Services shall be the amount set out in the purchase order or as agreed between us.
4.4 Any fixed price contained in a purchase order excludes expenses such as:
4.4.1 the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the service team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by the Company for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Company; and
4.4.2 VAT, which the Company shall add to its invoices at the appropriate rate.
4.5 The Buyer shall pay each invoice submitted to it by the Company in full, and in cleared funds, within 30 days of receipt, unless the invoice specifies otherwise.
4.6 Without prejudice to any other right or remedy that the Company may have, if the Buyer fails to pay the Company on the due date the Company may:
4.6.1 charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and
4.6.2 suspend all Services until payment has been made in full.
4.7 Time for payment shall be of the essence of the Contract.
4.8 All payments payable to the Company under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
4.9 All amounts due under this agreement shall be paid by the Buyer to the Company in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Company may, without prejudice to any other rights it may have, set off any liability of the Buyer to the Company against any liability of the Company to the Buyer.
5.1 The Company shall use reasonable endeavours to manage and deliver the Services to the Buyer, in accordance in all material respects with any specifications agreed between the parties.
5.2 The Company shall use reasonable endeavours to meet the performance dates specified in any purchase order, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
6 BUYER'S OBLIGATIONS
6.1 The Buyer shall:
6.1.1 co-operate with the Company in all matters relating to the Services;
6.1.2 provide in a timely manner such access to the Buyer's premises and data, and such office accommodation and other facilities, as is reasonably required by the Company in order to provide the Services;
6.1.3 provide in a timely manner such information as the Company may reasonably request, and ensure that such information is accurate in all material respects; and
6.1.4 be responsible (at its own cost) for preparing the relevant premises for the supply of the Services (if relevant).
6.2 If the Company's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Buyer or the Buyer's agents, sub-contractors or employees, the Company shall in all circumstances be liable to pay to the Company on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Company confirming such costs, charges and losses to the Buyer in writing.
6.3 The Buyer shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of two years after the completion of the Services, solicit or entice away from the Company or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Company, except that the Buyer shall not be in breach of this condition 6.3 if it hires an employee or sub-contractor of the Company as a result of a recruitment campaign not specifically targeted to any employees or sub-contractors of the Company.
6.4 Any consent given by the Company in accordance with condition 6.3 shall be subject to the Buyer paying to the Company on demand a sum equivalent to 20% of the then current annual remuneration of the Company's employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Buyer to such employee or sub-contractor.
7 CHANGE CONTROL
7.1 If either party requests a change to the scope or execution of the Services, the Company shall, within a reasonable time, provide a written estimate to the Buyer of:
7.1.1 the likely time required to implement the change;
7.1.2 any variations to the Company's charges arising from the change;
7.1.3 the likely effect of the change on the Services; and
7.1.4 any other impact of the change on the terms of the Contract.
7.2 If the Company requests a change to the scope of the Services, the Buyer shall not unreasonably withhold or delay consent to it.
7.3 If the Buyer wishes the Company to proceed with the change, the Company has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Services and any other relevant terms of the Contract to take account of the change.
8 LIMITATION OF LIABILITY
8.1 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
8.1.1 any breach of these conditions; and
8.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
8.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Services Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
8.3 Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
8.4 The Company will not be held liable for the failings of 3rd Party Services, including Cloud Vendors where used, including used at the recommendation of the Company. The Company will also be held under the contract and SLA of the 3rd party vendor.
8.5 Subject to conditions 8.2 and 8.3:
8.5.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the contract price in any one year; and
8.5.2 the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
The Buyer will need to ensure that it requests the Company to regularly test DR and backup / restore capabilities if the Buyer has any concerns. The Company accepts no liability or responsibility for any loss or damage to the Buyer’s business for data loss, whether it be current production data or backup data or system availability whatsoever. This also includes any 3rd party claims against the Buyer for data loss, data leak, backup data loss, systems unavailability. Not testing backup / restore / DR capabilities is not considered to be a fault of the Company and is the responsibility of the Buyer to ensure these are regularly tested, as ignorance of this point by the Buyer will not be constituted as negligence by the Company.
The Company can give its interpretation of regulation and laws that the Buyer may fall under (including GDPR) however this is only as an advisory. If the Buyer would like the Company to be part of meetings / workshops with the Buyer’s regulators, law makers, and policy makers the Company is more than happy to do so, however the Company cannot accept any liability for claims against the Buyer by regulators, law makers and 3rd parties for breach of rules of any kind. The Company can provide on request each Buyer with a governance pack, which can be used as a tool to help the Buyer manage these risks and any other technology risks the Buyer’s business has. However, this is just an aid to help the Buyer better understand risk in general and does not constitute to ownership or liability by the Company of any kind.
11 SECURITY SERVICES
11.1 Security reviews, audits and penetration testing services are provided on an advisory basis only,
11.2 Security reviews and audits are only up to date at the time the report was completed.
11.3 The Company shall in no way be liable for any loss or damage caused by a security incident that occurs at any time, which includes claims made against a Buyer by any third parties.
11.4 To the extent permitted by law, the Company expressly exclude liability for all loss of income or revenue; loss of business; loss of profits or loss of data made at any time during the period which the Company provides security services for the Buyer.
If the Company is just undertaking consultancy services for a Buyer then please understand the Company accepts no liability for issues caused as part of consultancy process. If a Buyer requires any specific insurance for consultancy services the Buyer must ensure it obtains such insurance in advance of the Company providing such consultancy services. The Company shall in no way be liable for any loss or damage caused by a security incident, which includes claims made against a Buyer by any third parties.
13.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
13.1.1 the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
13.1.2 the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
13.1.3 the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
13.1.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
13.1.5 the other party 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 other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.1.7 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 other party;
13.1.8 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
13.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
13.1.10 a creditor or encumbrancer of the other party 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 the other party's assets and such attachment or process is not discharged within 14 days;
13.1.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 13.1.4 to condition 13.1.10 (inclusive).
13.2 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
13.3 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
14 DATA PROTECTION
14.1 We use the information you provide primarily for the provision of our services to you and for related purposes including:
• updating and enhancing client records;
• analysis to help us manage our business;
• statutory returns; and
• legal and regulatory compliance.
14.2 Our use of that information is subject to your instructions, data protection law and our duty of confidentiality.
14.3 Please note that we may give access to such information to others who perform services for us, such as Software and Application Vendors, Cloud Services Providers and Contractors. Our business may be audited or checked by our accountants or by other organisations. We do not normally copy such information to anyone outside the European Economic Area. All such third parties are required to maintain confidentiality in relation to your personal data.
14.4 You have a right of access under data protection law to the personal data that we hold about you. We seek to keep that personal data correct and up to date. You should let us know if you believe the information we hold about you needs to be corrected or updated.
14.5 If you send us personal data about anyone other than yourself you will ensure you have any appropriate consents and notices in place to enable you to transfer that personal data to us, and so that we may use it for the purposes for which you provide it to us.
14.6 We may from time to time send you information which we think might be of interest to you (for example about IT and software developments or our other services). If you do not wish to receive that information please notify us in writing.
14.7 All calls made to and from the Company are recorded for training and quality purposes.
15 FORCE MAJEURE
The Company shall not in any circumstances have any liability to the Buyer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of the Company or its sub-contractors.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17 RIGHTS AND REMEDIES
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
18.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19 ENTIRE AGREEMENT
19.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
20.1 The Buyer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
20.2 The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
21 NO PARTNERSHIP OR AGENCY
21.1 Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22 THIRD PARTY RIGHTS
22.1 No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
23.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
23.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office;23.2 Any notice or communication shall be deemed to have been received:
23.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
23.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting [or at the time recorded by the delivery service;
23.2.3 if sent by fax, at 9.00 am on the next Business Day after transmission.
23.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include email.
24 GOVERNING LAW
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims.