KALAMAZOO IT LIMITED
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions are the core terms that apply to all Kalamazoo IT Limited business, which must be read together with the product specific supplemental terms for the business in question and the Quotation.
“Agreement” This agreement between the Company and the Customer for the provision of the Services under these General Terms and Conditions, the relevant product specific supplemental terms and conditions, the Quotation and any schedule and any amendments to any of these made from time to time;
“Business Day” Monday to Friday, other than a bank or public holiday;
“Business Hours” 09:00 to 17:30 on a Business Day;
“Fee” The amounts payable by the Customer to the Company under or in relation to this Agreement;
“Commencement Date” The date upon which the Company commences providing the Services;
“Company” Kalamazoo IT Limited, a company registered in England and Wales with company number 11426562 whose registered office is Morgan Reach House, 136 Hagley Road, Birmingham, B16 9NX;
“Contract” The Agreement;
“Customer” The customer as specified in the quotation;
“Data Protection Act 2018” The United Kingdom Data Protection Act 2018 and all defined terms within that Act.
“Hardware” Physical items of computer equipment;
“Know-how” Information which the Customer owns or possesses, which the Company requires for the provision of the Services;
“Minimum Term” Minimum term is as stated within The Agreement.
“Payment Intervals” The frequency with which payments for the Services are made, as specified in the Agreement
“Services” All services provided under this Agreement.
“Software” Computer instructions and data;
“Effective Date” The date of execution of this Agreement;
“Intellectual Property Rights” All intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
2. Change to Terms
In order to ensure the flexibility of the Company’s business relationship, the Company may amend and update the terms and conditions on giving the Customer not less than 30 days prior written notice. Any such change will only apply to new Agreements entered into on or after the effective date the Company specifies in the notice. Any other variations including variations to existing Agreements shall only be valid if agreed in accordance with clause 15 below.
The Agreement shall, subject to the termination provisions, continue for the Minimum Term following the Commencement date and thereafter shall automatically be extended for twelve months, unless either party gives the other written notice to terminate ninety (90) days prior to the end of the initial term or the end of any extended term. The Customer and Company acknowledge and agree that this notice requirement is a reasonable notice requirement, and that the automatic renewal provision, is, likewise, reasonable.
4.1 The Customer shall pay the Company the Fee (plus VAT) in advance at the Payment Intervals and in accordance with the payment terms detailed in sub-clause 4.5.
4.2 Without prejudice to any of its rights or remedies, the Company reserves the right to suspend the Services if any sum under this agreement has not been received by the Company by the due date, or if there is a substantial or continuing breach of the Customer’s obligations under this agreement.
4.3 The Company shall give the Customer not less than 90 days prior written notice of any increase to the Fee.
4.4 Upon termination of this agreement the Company shall subject to clause 4.2, reimburse the Customer a pro-rata proportion (if any) of the Fee for any period after termination in respect of which the Fee has been paid in advance.
4.5 The Customer shall pay the Company within 30 days of invoice date. If any sum payable under this agreement is overdue for more than 30 days then in addition to the Company’s other rights or remedies, the Customer shall, with effect from the due date, pay daily interest on the amount overdue at the rate of 4 percent per annum above the base lending rate of National Westminster Bank plc from time to time in force.
4.6 The Company may vary the Fee where the price of any items required for performance of the Contract materially changes prior to performance.
5. Disclaimer of Warranties and Conditions.
5.1 Subject to compliance by the Customer with its obligations under this Agreement the Company warrants to perform any Services using reasonable care and skill and that it has good title to anything sold.
5.2 Except for the limited warranties set out in this Agreement, the Company excludes and the Customer waives all other representations, conditions, terms and warranties, express, implied or collateral, arising by operation of law or otherwise, including but not limited to implied warranties, terms or conditions of satisfactory quality or fitness for a particular purpose or conformance to description or sample, except to the extent such representations, conditions, terms or warranties may not be excluded by law.
5.3 The Customer confirms that it has not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
5.4 The Customer confirms that the entire terms and conditions of the contract are contained within this Agreement and any attachments and replaces all prior agreements, representations and understandings between the parties. The Customer acknowledges and agrees that any pre-printed or other terms and conditions contained in the Customer’s purchase orders, or other documents, which conflict with the terms and conditions of this Agreement, or which would increase the scope of the Company’s obligations or its potential liability hereunder, shall be of no force or effect.
5.5 If there is a conflict or inconsistency between the different parts of this Agreement, the order of precedence shall be the product specific supplemental terms for the business in question, these General Terms and Conditions and finally the quotation.
5.6 The Customer is responsible for assessing its own commercial needs and whether goods and services meet their particular requirements.
5.7 The Company does not warrant the form, content or performance of third party software which is supplied “as is”. Third party software may be warranted direct under the terms and conditions of the supplier of such software.
6. Limitation of Liability
6.1 Nothing in this Agreement limits or excludes any liability of the Company for death or personal injury caused by its negligence, for fraud or for any other liability that cannot be lawfully limited or excluded under applicable law.
6.2 The Company’s maximum liability in respect of damage caused to the Customer’s tangible property as a result of its negligence shall not in any event exceed £100,000 per claim or series of connected claims.
6.3 Subject to clauses 6.1 and 6.2, the liability of the Company for damages arising under this Agreement, including but not limited to mistakes, omissions, interruptions, delays, tortious conduct or errors, or other defects, representations, or use of any Services; or arising out of the failure to furnish any Services, whether caused by acts of commission or omission, (including Customer software or hardware failures or any other damage occurring after the provision of any Service) shall be limited to the price paid for any Service.
6.4 Subject to clauses 6.1 and 6.2, in no event shall the Company’s liability for any breach of this Agreement or any other liability howsoever arising (including negligence) exceed the total payments in respect of all business placed by the Customer to the Company over the preceding 12 months to the act or omission giving rise to the liability.
6.5 Subject to clause 6.1, neither party shall be liable to the other for any indirect, incidental, special, consequential, exemplary or punitive damages, including but not limited to damages for lost profits, lost contracts or lost revenues (whether direct or indirect), loss of data or information however caused (including through negligence) and regardless of whether such party has been informed of the possibility or likelihood of such damages arising.
6.6 The provisions of this Agreement set out the maximum liability of the parties under or in connection with this Agreement and all other liability is excluded.
6.7 The Customer agrees that it has accepted these terms and conditions in the knowledge that the Company’s liability is limited and that the prices and charges payable have been calculated accordingly. The Customer is advised to make its own insurance arrangements if it desires to limit further its exposure to risk or if it requires further or different cover.
6.8 The parties agree that the Customer is the best judge of the value and importance of the data held on the Customer’s computer system, and the Customer will be solely responsible for; instituting and operating all necessary back-up procedures, for its own benefit, to ensure that data integrity can be maintained in the event of loss of data for any reason; taking out any insurance policy or other financial cover for loss or damage which may arise from loss of data for any reason.
6.9 If the Company fails to comply with its obligations during the term of this Agreement then it will be entitled to be given a reasonable opportunity to correct any errors and to perform its obligations
Whilst the Company will use reasonable efforts to meet times given or quoted, any times given for delivery of goods or services and for performance of the Company’s obligations are approximate only and time is not, and shall not be made, of the essence for such delivery or performance.
8.Delay Caused by the Customer
If the Company is obliged to spend additional time or incur additional expense in the performance of any of the Company’s obligations to the Customer because of any act or omission by the Customer or any of the Customer’s employees, agents or contractors (including the supply of any incorrect or inadequate data or information) then, notwithstanding anything else contained in these terms and conditions:
8.1 The Company may invoice the Customer as if any resultant delay in the performance of the Company’s obligations had not occurred; and
8.2 The Customer will pay a reasonable sum in respect of any additional time incurred in the performance of the Company’s obligations caused or rendered necessary by such act or omission; and
8.3 The time for performance of the Company’s obligations is extended by a period equal to the length of the delay.
9. Maintenance of Company Systems
9.1 The Company aims to provide any Service continually with as high a level of quality as possible and accordingly must keep the Company systems up to date. The Company and its business partners therefore perform maintenance on the Services and any related hardware and software.
9.2 Planned maintenance shall not accumulate to more than 6 hours per calendar month and shall not take place during normal Business Hours. The Company aims to carry out planned maintenance without affecting the Services.
9.3 Should emergency maintenance be necessary the Company will endeavour to inform the Customer by posting information on the Company website within one hour of the start of the emergency maintenance.
10.1 The Company may terminate this Agreement immediately by written notice to the Customer; (i) if the Customer fails to pay undisputed amounts due under any invoice; (ii) upon any breach of a material provision of this Agreement that if remediable is not remedied by the Customer within 14 days of the Customer’s receipt of written notice from the Company specifying the breach and requiring its remedy; (iii) upon any regulatory decision or governmental order requiring the Company to suspend Service(s), or which is reasonably likely to result in the loss of the Company’s operating authority; or (iv) in an event of insolvency, including but not limited to;
- 10.1.1 A petition is presented, or an order made, for the winding up of the Customer or a resolution is proposed or passed for its winding up.
- 10.1.2 An encumbrancer takes possession or a receiver or manager or administrative receiver is appointed over the whole or any part of the property of the Customer.
- 10.1.3 The Customer stops payment or ceases or threatens to cease to carry on its business or substantially the whole of its business.
- 10.1.4 The Customer is or becomes unable to pay its debts when due within the meaning of Section 123 of The Insolvency Act 1986.
- 10.1.5 If the Company in good faith deems the continued performance of the Customer of this Agreement to be insecure.
10.2 And the Company may then pursue any one or more of the following remedies:
- 10.2.1 Declare all amounts due and to become due, for the remainder of the term of this Agreement, immediately due and payable.
- 10.2.2 Suspend all Services.
- 10.2.3 Demand and receive back all equipment for which the total purchase price for such equipment has not been paid.
- 10.2.4 Terminate this Agreement.
- 10.2.5 Retain all or such portion of payments made by the Customer hereunder as may be necessary to compensate the Company for any damage, loss, liability, cost or expense (including, without limitation, payments to third parties) caused by such breach, default or failure, or, receive any additional payments from the Customer as may be necessary to compensate the Company as described herein.
- 10.2.6 Pursue any additional or alternative remedies available at law or in equity.
10.3 The Customer agrees to reimburse The Company for any and all expenses the Company may incur, including all legal fees, in taking any steps to enforce its rights under this Agreement.
10.4 The Customer may terminate this Agreement immediately by written notice to the Company upon any breach of a material provision of this Agreement that if remediable is not remedied by the Company within 30 days of the Company’s receipt of written notice from the Customer specifying the breach and requiring its remedy.
11. Data Protection
11.1 In providing the Services to the Customer, the Company will comply with all relevant provisions of the Data Protection Act 2018. The Company and Customer agree and acknowledge that the Company is acting as a Data Processor in relation to any Personal Data for and on behalf of the Customer, who remains the Data Controller in relation to such Personal Data, and without limitation to the foregoing, the Company will:
- 11.1.1 process Personal Data only in accordance with the written instructions of the Customer;
- 11.1.2 take all appropriate measures to ensure that the Personal Data is kept secure and is not subject to any unauthorised processing, loss, destruction or damage;
- 11.1.3 ensure that its personnel and contractors are made aware of its obligations under this Agreement with regard to the security and protection of the Personal Data;
11.2 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Company under this Agreement, and that the processing of that Personal Data by the Company for the purposes of and in accordance with the terms of this Agreement will not breach any applicable laws.
11.3 The Company warrants that:
- 11.3.1 it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Company on behalf of the Customer; and
- 11.3.2 it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing, and against loss or corruption, of Personal Data processed by the Company on behalf of the Customer.
12.1 The Company and the Customer shall keep confidential all information of the other obtained under or in connection with this Agreement and shall not divulge the same to any third party without the written consent of the other.
12.2 The provisions of sub-clause 12.1 shall not apply to:-
- 12.2.1 any information in the public domain otherwise than by breach of sub-clause 12.1;
- 12.2.2 information obtained from a third party who is lawfully able to divulge the same;
- 12.2.3 any information a party is required to disclose in order to comply with any law, regulation or direction of a judicial or government authority.
12.3 Each of the parties shall endeavour to procure that their respective employees, agents and sub-contractors comply with this clause 12.
13. Governing Law and Dispute Resolution
13.1 This Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with English law.
13.2 Where there is a dispute the aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other party. A representative from senior management of each party (‘representatives’) shall meet in person or communicate by telephone within 5 business days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by each party. If no agreement is reached on corrective action, a senior manager of each party shall meet in person or communicate by telephone, to facilitate an agreement within 5 business days of a written notice by one to the other. If the dispute cannot be resolved at this level within a further 5 business days, or if the agreed upon completion dates in any written plan of corrective action are exceeded, either party may seek its legal remedies as provided below.
13.3 If the parties cannot resolve a dispute in accordance with the procedure in clause 13.2 above, then they shall with the assistance of the Centre for Effective Dispute Resolution (‘CEDR’), seek to resolve the dispute or difference amicably by using an Alternative Dispute Resolution (‘ADR’) procedure acceptable to both parties before pursuing any other remedies available to them.
14.1 The Customer acknowledges and agrees that the Company’s personnel have been acquired and trained by the Company at considerable expense and that Company personnel are highly skilled.
14.2 The Customer, therefore, agrees that if the Customer, or any affiliated company of the Customer should employ any Company employee, or any employee of an affiliate of the Company (in any capacity, including any rendering of personal services as an employee, contractor, or agent), within one year of such employee leaving the Company or the Company’s affiliate, then the Customer agrees to pay the Company a placement fee of 100% of the former employee’s projected first year earnings (including projected bonuses and commissions) from the Customer. Further, the Customer agrees to pay the Company the placement fee in one lump sum within fifteen days of demand.
This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties.
16. General Terms
16.1 Force majeure. Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than 6 months, the non-affected party may terminate this Agreement by written notice to the other party.
16.2 Indemnification by Customer. The Customer shall indemnify, defend and hold the Company harmless from claims, loss, damage, expense (including reasonable lawyer’s fees and court costs), or liability (including liability for infringement of a third party’s intellectual property rights) arising from:
- 16.2.1 any claims made against the Company by any person or entity in connection with the delivery or consumption of the Service;
- 16.2.2 use of facilities furnished by the Company in a manner inconsistent with the terms of this Agreement or in a manner that the Company did not contemplate and over which the Company exercises no control;
- 16.2.3 the content of any communication transmitted via any Service provided under this Agreement.
16.3 Severability. If any provision of this Agreement is or becomes prohibited by law or is judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of the remainder of this Agreement.
16.4 No Waiver. Unless a party expressly waives its rights in writing no delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
16.5 Third Party Rights. Except as expressly provided otherwise, the parties do not intend any term of this Agreement to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 2001. The parties to this Agreement do not require the consent of any third party to terminate, rescind or to agree any variation, waiver or settlement in relation to it. In this Agreement references to a party or the parties is to a party or the parties (as the case may be) to this Agreement and shall include any permitted assignees of a party.
16.6 Nature of Relationship. This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
16.7 Assignment. This Agreement is personal to the Customer and neither this Agreement nor any rights, licences or obligations under it, may be assigned or transferred by the Customer. The Company may assign its rights and licences and transfer its obligations under this Agreement.
16.8 Successors and Assignees. This Agreement shall be binding upon, and inure to the benefit of the parties and their respective successors and permitted assignees, and references to a party in this Agreement shall include its successors and permitted assignees.
16.9 Equipment Disposal. The Company will accept the return for disposal of any equipment sold under this Agreement. The Company will, upon request by the Customer and at the Customer’s expense, arrange for collection of any equipment sold under this Agreement, to be returned to the Company for disposal.
16.10 Intellectual Property Indemnity
- 16.10.1 The Company shall defend at its expense any claim brought against the Customer alleging that any software provided under and used within the scope of this Agreement infringes the United Kingdom copyright of any third party and shall pay all damages finally awarded and all reasonable costs, provided that the Customer notifies the Company in writing of the claim within 30 days of such claim and provides the Company with information, reasonable assistance and sole authority to defend and settle such claim.
- 16.10.2 The Company shall have no liability under this Agreement for any claim of infringement based on the combination, operation or use of any software or programs furnished under this Agreement with software, hardware or other materials not furnished by the Company if such infringement would have been avoided by the use of the software or programs without such combination, operation or use.
- 16.10.3 In the event that any software is held or is believed by the Company to infringe copyright of a third party, the Company may modify the software to be non-infringing or obtain for the Customer a licence to continue using the software.
16.11 Publicity. The Customer will not make any public disclosure relating to this Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the Company.
16.12 Termination of this Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.
16.13 Interpretation. In this Agreement unless the context otherwise requires:
- 16.13.1 words importing any gender include every gender;
- 16.13.2 words importing the singular number include the plural number and vice versa;
- 16.13.3 words importing persons include firms, companies and corporations and vice versa;
- 16.13.4 references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
- 16.13.5 reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
- 16.13.6 the headings to the clauses, schedules and paragraphs of this Agreement will not affect the interpretation.
- 16.14.1 All notices under this Agreement shall be in writing and must be in English.
16.14.2 Notices shall be deemed to have been duly given:
- 126.96.36.199 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
- 188.8.131.52 when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated; or
- 184.108.40.206 on the fifth business day of the sender following mailing, if mailed by national ordinary mail, postage prepaid; or
- 220.127.116.11 on the tenth business day of the sender following mailing, if mailed by airmail, postage prepaid, in each case addressed to the most recent address, email address, or facsimile number notified to the other party.
General Terms and Conditions