Terms & Conditions

1. Charges

1.1 Fees are based on the time spent by Able To Software staff and associates on an assignment at the notified fee rates for the staff concerned.

1.2 Fee rates are revised periodically and when the staff are promoted or new associates appointed. Able To Software will give one month’s notice of such revisions.

1.3 Expenses reasonably incurred (to the extent that they have been incurred reasonably) on report production, travel and subsistence, and on goods and services purchased on the client’s behalf, are charged at cost. Other office costs associated with the project will be charged as an expense (to the extent that they have been incurred reasonably) at a rate of 4% of the fees.

1.4 Charges are based on a standard day of 7.5 hours and a five day week, excluding public holidays. Where overtime is required, additional hours will be charged at the notified fee rates.

 

2. Terms of Reference

2.1 All work by Able To Software for the client will be in accordance with the terms of reference agreed at the outset in the letter accompanying these Terms and Conditions that lays down the parameters or the scope of the project thatAble To Software is to undertake for the client (the “Proposal”), as modified by any subsequent agreed variations. In the event of any conflict between the terms of these conditions and the terms of the Proposal then the terms of the Proposal shall prevail.

2.2 The Proposal and these Terms and Conditions contain all the terms agreed by the parties relating to be the subject matter of the agreement and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing and not representation (unless made fraudulently), undertaking or promise shall be taken to have been given or implied from anything said or written in negotiations between the parties prior to the Proposal being signed except as set out in the Proposal and these Terms and Conditions. In particular, but without prejudice to the generality of the foregoing, the client acknowledges that it has not been induced to enter into the agreement by any representation or warranty other than those referred to herein.

 

3. Staff and Associates

3.1 Able To Software staff and associates undergo periodic training. This, together with the taking of annual holidays, may lead to staff and associates being absent from assignments for short periods. Able To Software will endeavour to avoid any disruption to the progress of the assignment.

3.2 Able To Software may substitute staff or associates at its discretion in such circumstances, but it will endeavour to give reasonable notice, and to provide equivalent replacement staff or associate whom the client will be given the opportunity to approve which approval the client shall not unreasonably withhold or delay.

3.3 The client will not offer employment to any member of Able to Sofwtare staff or associates working on an assignment for him; nor will he use the services of any such member of Able To Software staff or associates as a consultant, either independently or via a third party, for a period of six months following the end of any involvement by the individual concerned with any assignment for the client. Breach of this condition will render the client liable to pay liquidated damages equal to six months fees at the notified rate for the consultant concerned.

 

4. Payment

4.1 Invoices are payable upon receipt and are payable to Able To Software

4.2 Able To Software reserves the right to charge interest on overdue amounts from the date that payment is due at an annual rate of 4% over Barclays Bank Plc base rate prevalent at the time payment is due.

4.3 All deposit payments are non refundable, without exception. Once the work, project or SLA’s have commenced then NO REFUNDS will be given under any circumstances.

4..4 Be aware that the final invoice is payable six weeks after the 50% deposit is received or once the website, newsletter, blog or any other online solution, service or program provided by Able To Software is on the Able To Software development server ready for the content to be added by the client and not when the solution or program goes ‘live’.

4.5 If the online solution or program is deemed to be more than 50% complete by Able To Software then the whole of the final invoice is payable.

4.6 Non Payment – If an invoice is outstanding, longer than the initial fourteen days or other agreed time, and a collection agency is employed to collect the outstanding monies then all incurred fees will be payable by the client

 

5 Confidentiality

5.1 Able To Software often wishes to seek publicity for work undertaken on behalf of a client. Permission to attribute work to a client publicly will always be obtained in advance. Notwithstanding this condition, Able To Software assumes the right to use references in proposals or other similar submissions made to other prospective clients the name of the client and a brief outline of the project thatAble To Software has undertaken on behalf of the client, unless the client expressly prohibits such disclosure.

5.2 Able To Software will keep confidential all information passed to it by the client (unless such information is in the public domain), and all reports, plans, advice and recommendations produced by Able To Software under this agreement for a period of five (5) years.

5.3 Able To Software requires the client to keep confidential any methodologies and technology used to carry out an assignment.

 

6 Ownership and Use of Intellectual Property Rights

6.1 It is intended that the client will be the owner of the copyrights and other intellectual property rights (to the extent that they arise) in or in respect of those aspects of the work undertaken by Able To Software in or in connection with the assignment which are listed below and Able To Software now assigns full legal and beneficial title to the client of such rights as Able To Software may have in and to:

- Business strategy documents;

- Business plans;

- Marketing and trading plans;

- Programme and project plans;

- All training documents and materials;

- The visual appearance, look and feel, but not code of any website or online project (including each of the variations thereto which arise as a result of differing design to enable access through different internet connection means including, but not limited to, personal computers, televisions, mobile telephones, computer game consoles and for the purposes of these Terms and Conditions, shall also be taken to include other assignment outputs including CD ROMs) (“Website”);

- All original art work and content created by Able To Software for the assignment; and

- All bespoke new computer programs and code (including, but not limited to HTML, DHTML, Java etc) written by Able To Software for the assignment (“New Code”).

6.2 For a period of 2 years following completion of the assignment for the client, Able To Software shall on reasonable prior written notice provide the client with such assistance as it may reasonably require in order to effect the transfer to the client of legal and beneficial title to the extent set out in Clause 6.1 above and generally as regards any question or issue relating to such rights, the reasonable costs of Able To Software in respect thereof being borne by the client.

6.3 Where as part of the assignment Able To Software acquires content or artwork from third parties then it will use all reasonable efforts to ensure that either no licence is required in order for that content or artwork to be used on the Website or a suitable licence is obtained from the owner of owners of any intellectual property rights subsisting in or in respect of it with the ability to pass on the benefit of that licence to the client but in both cases limited to the manner and extent of use intended by the assignment.

6..4 Able To Software may incorporate as part of the assignment computer programs and code (including, but not limited to, Flash, HTML, DHTML, Java etc) previously created or acquired by Able To Software (“Old Code”) and to the extent that such Old Code (or adaptations of or variations to it) is incorporated as part of the assignment.

6.5 The client now grants to Able To Software an irrevocable non-exclusive licence to use New Code without further charge in or in respect of it’s business and to licence other clients (or customers) to the same extent and on the same terms in respect of that New Code as the customer is, by these Standard Terms & Conditions, licensed in respect of Old Code.

6.6 For a period of 2 years following completion of the assignment for the client, both Able To Software and the client shall provide to the other, on reasonable prior written notice, all such assistance as may be reasonably required in or in respect of the licences granted under Clauses 6.3, 6.4 and 6.5 above, the reasonable costs in respect of which shall be borne by the other.

6.7 Where, as part of the assignment, third party computer programs are incorporated, Able To Software warrants that, it is aware of no reason why the customer will not be entitled to a licence (subject to the Customer paying any and all licence fees due from time to time in respect of those third party computer programs and for the benefit of a licence for their use and complying, from time to time, with all required registration and Terms and Conditions of use). Able To Software also warrants that it is unaware of any reason why the terms of any such licence to use such computer programs would prevent or materially restrict the customer from using the Website(s) designed, built and delivered by Able To Software in relation to the assignment.

6.8 For the avoidance of doubt, the client accepts that Able To Software excludes all liability whatsoever resulting from use or termination of any rights associated with use of third party computer programs comprised with or delivered as part of the assignment in conjunction with the Website and the Customer acknowledges that its sole rights and remedies in relation to those third party computer programs are as contained in any consent, permission or licence given to the Customer by the proprietor or authorised licensor of the rights in respect thereof.

6.9 The client hereby warrants to Able To Software that it owns the intellectual property rights in any and all information and data (including confidential information and data of third parties), materials and/or designs given to Able To Software by the client in relation to the project ("the Client Material") and the client shall indemnify and keep indemnified Able To Software against any and all losses, expenses, damages and legal costs incurred as a result of any claims or threatened claims alleging infringement of third party rights in or in respect of the Client Material or arising out of Able To Software’s use of that Client Material for the purposes of the assignment PROVIDED THAT

- The client shall be notified promptly by Able To Software of any notice of all claims of infringement;

- The client has sole control of the defence of any action on all claims of infringement and all negotiations for settlement or compromise; and - Able To Software shall allow its name to be used in any proceedings if necessary and provide all reasonable assistance in defending all claims of infringement.

 

7. Liability

7.1 Reports, plans, advice and services provided by Able To Software will be solely for the purpose of the engagement to which they related and will be confidential to the client and shall not be disclosed or provided to any third party without our written permission. Able To Software will not accept any liability to any third party for reports, plans, advice or services whether disclosure or provision is permitted in the manner set out in the preceding sentence or not.

7.2 Able To Software will perform the engagement with reasonable skill and care and acknowledge that it will be liable to the client for all losses, damages, costs or its expenses caused by negligence (including failure to perform its contractual duties with reasonable care and skill but expecting indirect and consequential losses which it excludes entirely) or wilful default of Able To Software, subject to the following provisions:

7.2.1 Able To Software will not be so liable if such losses occur due to the poor provision of false, misleading or incomplete or defective information and/or documentation or due to the acts or omissions of any person other than Able To Software;

7.2.2 Able To Software shall have no other liability of any nature, whether in contract, tort or otherwise, for any losses, whatsoever and howsoever caused arising from or in any way connected with this engagement; and

7.2.3 Able To Software’s aggregate liability of whatsoever nature whether in Contract, tort or otherwise but not including liability for personal injury or Death, for any losses, whatsoever and howsoever caused arising from any act or omission or combination of all acts or omissions in any way connected with this agreement shall not exceed the engagement fee (excluding Interest).

7.3 Unless otherwise expressly and specifically agreed in writing Able To Software shall have no obligation, duty or liability under these terms and conditions or otherwise relating to Year 2000 Conformity or EMU Conformity. In particular but without limitation any advice or recommendation by Able To Software does not involve any commitment by Able To Software as to Year 2000 Conformity or EMU Conformity.

7..4 The client will indemnify and hold harmless Able To Software against any and all costs, claims, proceedings, damages, liabilities, and expenses relating to or arising out of Year 2000 Conformity or EMU Conformity or the failure to achieve such conformity in any respect.

7.5 “Year 2000 Conformity” means, in relation to any computer system, software, equipment or services operated or to be operated by the client that neither its performance nor its functionality is affected adversely affected by dates prior to, during and after the Year 2000.

7.6 ‘EMU Conformity’ means, in relation to any computer system, software, equipment or services operated or to be operated by the client that neither its performance nor functionality shall be adversely affected by a change to or addition of monetary unit representation as a result of European Monetary Union.

 

8. Validity

8.1 Proposals are valid for 28 days from the date of issue, unless otherwise indicated.

8.2 These terms and conditions shall form the sole basis of the contract between the parties notwithstanding anything to the contrary stated in the client’s terms and conditions of business unless the parties agree otherwise in writing.

 

9. Termination

9.1 Able To Software shall be entitled to terminate the agreement forthwith by notice in writing to the client if:-

- the client commits an an irremediable breach of the agreement, persistently repeats a remediable breach or commits any remediable breach and fails to remedy it within 30 days of receipt of notice of the breach requiring remedy of the same; or

- the client makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or

9.2 In the event of termination by Able To Software pursuant to sub-clause 9.1 above then, without prejudice to any other right or remedy available to Able To Software, Able To Software shall be entitled to cancel the agreement or suspend the project being undertaken for the client without any liability to the client and, if the parts of the project have already been delivered but not paid for, the engagement fee shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

9.3 Any notice to be given shall be given to the client at his principle place of business and to Able To Software at that office of Able To Software, which has been responsible for the work under the contract. Any notice shall be deemed to have been served or given when actually received or, if sent by mail to such address and returned marked “gone away” or “not known” or to the like effect, on return of such mail.

9..4 In the event of termination by the client written notice to terminate, either by email, fax or posted letter, must be given one month in advance of the termination date. All monies or invoices outstanding at that date will become immediately payable. We reserve the right to charge a termination fee of £25.00

 

10. General

10.1 The terms in this statement of liability shall be governed by an interpreted and construed in accordance with English law.

10.2 Save as set out below, the courts in England and Wales shall have exclusive jurisdiction to settle any dispute (including claims for set-off and counterclaims), which may arise in connection with the validity, effect, interpretation or performance of the legal relationship established by these terms or otherwise arising in connection with the agreement. The client submits irrevocably to the jurisdiction of the courts of England and Wales.

10.3 The client agrees that these terms and conditions are for Able To Software’s benefit alone and that Able To Software retains the right to bring proceedings against the client in the absolute discretion in the courts of any other country, which may have jurisdiction.

10.4 The failure or delay of Able To Software to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to the agreement does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect Able To Software’s rights later to enforce or exercise it nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.

10.5 The invalidity or unenforceability of any term of, or any right arising pursuant to the agreement shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.

10.6 The agreement is personal to the client and the client may not assign, transfer, sub-contract or otherwise part with the agreement or any right or obligation under it without prior written consent of Able To Software.