- INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
“Charges” the charges payable by the Client for the supply of the Services in accordance with clause 5.
“Commencement Date” has the meaning given in clause 2.2.
“Conditions” these terms and conditions as amended from time to time in accordance with clause 10.5.
“Contract” the contract between Rainbird and the Client for the supply of Services in accordance with these Conditions.
“Client” the person, firm or company who purchases Services from Rainbird as set out in the Order Form.
“Client Default” has the meaning set out in clause 4.2.
“Deliverables” the deliverables set out in the Order Form produced by Rainbird for the Client.
“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Order” the Client’s order for Services as set out in the Order Form or the Client’s written acceptance of a quotation by Rainbird, as the case may be.
“Order Form” the order form setting out the description or specification of the Services to be provided by Rainbird to the Client.
“Services” the services, including the Deliverables, supplied by Rainbird to the Client as set out in the Order Form.
“Rainbird” Rainbird Technologies Ltd registered in England and Wales with company number 08599568 whose registered office is at Saxon House Hellesdon Park Road, Drayton High Road, Norwich, Norfolk NR6 5DR.
“Rainbird Materials” has the meaning set out in clause 4.1.5.
1.2 Interpretation:
1.2.1 A reference to legislation or a legislative provision:
(a) is a reference to it as it is in force as at the date of this Contract; and
(b) shall include all subordinate legislation made as at the date of this Contract under that legislation or legislative provision.
1.2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3 A reference to writing or written includes email but not fax.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Rainbird issues written acceptance of the Order (including by signing the Order Form), at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3 Any designs, drawings, descriptive matter or advertising issued by Rainbird, and any descriptions or illustrations contained in Rainbird’s promotional materials or on its website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by Rainbird shall not constitute an offer, and is only valid for a period of 20 business days from its date of issue.
3. SUPPLY OF SERVICES
3.1 Rainbird shall supply the Services to the Client in accordance with the specification in the Order Form in all material respects.
3.2 Rainbird shall use all reasonable endeavours to meet any performance dates specified in the Order Form or otherwise agreed in writing with the Client, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Rainbird reserves the right to amend the specification of Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Rainbird shall notify the Client in any such event.
3.4 Rainbird warrants to the Client that the Services will be provided using reasonable care and skill.
4. CLIENT’S OBLIGATIONS
4.1 The Client shall:
4.1.1 ensure that the terms of, and information in, the Order Form are complete and accurate;
4.1.2 co-operate with Rainbird in all matters relating to the Services;
4.1.3 provide Rainbird with such information and materials as Rainbird may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.4 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
4.1.5 keep all materials, equipment, documents and other property of Rainbird (“Rainbird Materials”) under the Client’s possession in safe custody at its own risk, maintain Rainbird Materials in good condition until returned to Rainbird, and not dispose of or use Rainbird Materials other than in accordance with Rainbird’s written instructions or authorisation; and
4.1.6 comply with any additional obligations as set out in the Order Form.
4.2 If Rainbird’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
4.2.1 without limiting or affecting any other right or remedy available to it, Rainbird shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Rainbird’s performance of any of its obligations;
4.2.2 Rainbird shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Rainbird’s failure or delay to perform any of its obligations as set out in this clause 4.2
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be as set out in the Order Form.
5.2 If there are no Charges set out in the Order Form, or the Client requests any additional services, the Charges shall be calculated on a time and materials basis:
5.2.1. the Charges shall be calculated in accordance with Rainbird’s daily fee rates, as set out in its current rate card at the date of the Contract; and
5.2.2 Rainbird’s daily fee rates for each individual are calculated on the basis of an seven-hour day from 9am to 5.00 pm worked on business days;
5.2.3 Rainbird shall be entitled to charge an overtime rate of 150% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.2.2; and
5.2.4 Rainbird shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom Rainbird engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Rainbird for the performance of the Services, and for the cost of any materials. Rainbird shall obtain the Client’s prior approval to incur such expenses in advance, save that no prior approval shall be required from the Client where the expenses do not exceed an aggregate of 10% of the total Charges payable under the Contract.
5.3 Rainbird reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date.
5.4 Rainbird shall invoice the Client on a monthly basis in advance.
5.5 The Client shall pay each invoice submitted by Rainbird:
5.5.1 within 30 days of the date of the invoice; and
5.5.2 in full and in cleared funds to a bank account nominated in writing by Rainbird, and
time for payment shall be of the essence of the Contract.
5.6 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Rainbird to the Client, the Client shall, on receipt of a valid VAT invoice from Rainbird, pay to Rainbird such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7 If the Client fails to make a payment due to Rainbird under the Contract by the due date, then, without limiting Rainbird’s remedies under clause 8, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client), including any software licensed to the Client by Rainbird, shall be owned by Rainbird.
6.2 Rainbird grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to use, copy and modify the Deliverables (excluding materials provided by the Client) for the purpose of receiving and using the Services and the Deliverables.
6.3 The Client grants Rainbird a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to Rainbird for the term of the Contract for the purpose of providing the Services to the Client.
7. LIMITATION OF LIABILITY: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
7.1 Nothing in this clause 7 shall limit the Client’s payment obligations under the Contract.
7.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
7.2.1 death or personal injury caused by negligence;
7.2.2 fraud or fraudulent misrepresentation; and
7.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.3 Subject to clause 7.2, Rainbird’s total liability to the Client for all loss or damage shall not exceed the Charges paid by the Client to Rainbird in the previous 12 months.
7.4 Subject clause 7.2, the following types of loss are wholly excluded: loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill and indirect or consequential loss.
7.5 Rainbird has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.6 This clause 7 shall survive termination of the Contract.
8. TERMINATION
8.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 30 days’ written notice.
8.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
8.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
8.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
8.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
8.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion (acting reasonably) the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.3 Without affecting any other right or remedy available to it, Rainbird may suspend the supply of Services under the Contract (or any other contract between the parties) or terminate the Contract with immediate effect by giving written notice to the Client if:
8.3.1 the Client fails to pay any amount due under the Contract within 14 days of the due date for payment;
8.3.2 the Client becomes subject to any of the events listed in clause 8.2.3 or clause 8.2.4, or Rainbird reasonably believes that the Client is about to become subject to any of them; and
8.3.3 Rainbird reasonably believes that the Client is about to become subject to any of the events listed in clause 8.2.2.
9. CONSEQUENCES OF TERMINATION
9.1 On termination of the Contract:
9.1.1 the Client shall immediately pay to Rainbird all of Rainbird’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Rainbird shall submit an invoice, which shall be payable by the Client immediately on receipt;
9.1.2 the Client shall return all of Rainbird Materials and any Deliverables which have not been fully paid for. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
9.2 Termination of the Contract 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 Contract which existed at or before the date of termination.
9.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
10. GENERAL
10.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.2 Assignment and other dealings.
10.2.1 Rainbird may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
10.2.2 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Rainbird.
10.3 Confidentiality
10.3.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.3.2.
10.3.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
10.4 Entire agreement. The Contract 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.
10.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
10.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Contract deleted under this clause 10.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
10.8 Notices.
10.8.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Order Form.
10.8.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) 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
(c) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
10.8.3 This clause 10.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
10.9 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
10.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
10.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.