Terms and Conditions

1.1. The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions).
Agreed Functionality: the functionality of the System as described in the Statement of Supply.
Completion Date: the date upon which the Supplier will cease providing the Services to the Customer, as set out in the Statement of Supply.
Computer Equipment: the Hardware and Software.
Contract: the Purchase Order and the Supplier's acceptance of it.
Customer: the person, firm or company as specified as such in the Purchase Order.
Customer's Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
Customer's Manager: the Customer's manager appointed in accordance with condition 5.1(b)
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Hardware: means the hardware, including, without limitation, PCs, servers, networking platforms (including routers and switches), firewalls (another security devices), cables, racks, power supplies (including UPS), testing and diagnostic platforms, processors and memory, additional disk reserve, monitors, keyboards and mice, telephones and video units (and other audiovisual devices), specified in the Statement of Supply as necessary to produce the System.
Installation Services: those services to be provided by the Supplier to the Customer in connection with the installation of the Computer Equipment, as more particularly set out in the Statement of Supply.
Purchase Order: means the order delivered by the Customer to the Supplier for the provision of the Services.
Services: the Installation Services and the Support Services together with any other services which the Supplier provides or agrees to provide to the Customer.
Site: the address for the supply of the Services as specified in the Statement of Supply.
Software: means the computer software (and all related documentation) regardless of format or delivery media, specified in the Statement of Supply as necessary to produce the System.
Start Date: the date on which the Supplier will commence providing the Installation Services, as set out in the Statement of Supply.
Supplier: Nowcomm Ltd
Supplier's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer.
Supplier's Manager: the Supplier's manager appointed in accordance with condition 4.3.
Support Services: any services to be provided by the Supplier to the Customer and set out in the Statement of Supply.
Statement of Supply: means the document prepared by the Supplier, in conjunction with the Customer, detailing, among other things, the Services to be supplied by the Supplier, the Computer Equipment and the Agreed Functionality, annexed to the Purchase Order and comprising part of it.
System: means the computer system formed upon installation of the Computer Equipment by the Supplier.
Tax: all forms of taxation and statutory, governmental, state, federal, provincial, local, government or municipal charges, duties, imposts, contributions, levies, withholdings or liabilities wherever chargeable and whether of the UK or any other jurisdiction; and any penalty, fine, surcharge, interest, charges or costs relating there to.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.

1.2. Condition and paragraph headings shall not affect the interpretation ofthese conditions.

1.3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted
assigns.

1.4. Words in the singular shall include the plural and vice versa.

1.5. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.6. A reference to writing or written includes faxes but not e-mail.

1.7. Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

1.8. Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.9. References to conditions are to the conditions of the Contract.

2. APPLICATION OF CONDITIONS

2.1. These Conditions shall:
(a) apply to and be incorporated into the Contract; and prevail over any inconsistent terms or conditions contained, or referred to, in the Purchase Order, ormplied by law, trade custom, practice or course of
dealing.

2.2. The Purchase Order constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than by a written acknowledgement issued and executed by the Supplier when a contract for the supply of those and Services on these Conditions will be established. The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any Purchase Order or other document shall not govern the Contract.

2.3. Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2

3. COMMENCEMENT AND DURATION OF THE SERVICES

3.1. The Installation Services supplied under the Contract shall commence on the Start Date.

3.2. The Support Services supplied under the Contract shall commence upon completion of the Installation Services and continue to be supplied until the Completion Date.

4. SUPPLIER'S OBLIGATIONS

4.1. The Supplier shall use reasonable endeavors to provide the Services in accordance in all material respects with the Statement of Supply.

4.2. The Supplier shall use reasonable endeavors to meet any performance dates specified in the Statement of Supply, but any such dates shall be estimates only and time shall not be of the essence of the Contract.

4.3. The Supplier shall appoint the Supplier's Manager who shall have authority contractually to bind the Supplier on all matters relating to the Services. The Supplier shall use reasonable endeavors to ensure that the same person acts as the Supplier's Manager throughout the term of the Contract, but may replace him from time to time where reasonably necessary in the interests of the Supplier's business.

5. CUSTOMER'S OBLIGATIONS

5.1. The Customer shall:ensure that, prior to the Start Date, the Customer is in possession of all the Computer Equipment, to enable the Supplier to perform the Installation Services. co-operate with the Supplier in all matters relating to the Services and appoint the Customer's Manager in relation to the Services, who shall have the authority contractually to bind the Customer on matters relating to the
Services; provide, for the Supplier, its agents, sub-contractors and employees, in a timely manner and at no charge, access to the Site, data and other facilities as requested by the Supplier; be responsible (at its own cost) for preparing and maintaining the Site, including identifying, monitoring, removing and disposing of any hazardous materials from the Site in accordance with all applicable laws, before and
during the supply of the Services at the Site, and informing the Supplier of all of it obligations and actions under this condition 5.1(d); inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Site; ensure that all Customer's Equipment is in good working order and suitable
for the purposes for which it is used in conjunction with the System and in relation to the Services and conforms to all relevant United Kingdom standards or requirements; obtain and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the Services before the Start Date; provide access to the Customer’s Equipment or the System through a virtual private network, if requested by the Supplier, to enable the Supplier to provide remotely such of the Services which are capable of being so provided;

5.2. If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.

5.3. The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract.

5.4. The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of six months after the Completion Date or termination of the Contract, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier in the provision of the Services.

5.5. Any consent given by the Supplier in accordance with condition 5.4 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier's employee or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee or sub-contractor.

6. THE SYSTEM
Upon completion of the Installation Services, the System will have the Agreed Functionality.

7. CHANGE CONTROL

7.1. The Customer's Manager and the Supplier's Manager shall meet at least once every [PERIOD OF TIME] to discuss matters relating to the Services. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.

7.2. If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to the Supplier's charges arising from the change; and any other impact of the change on the terms of the Contract.

7.3. The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If the Supplier requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.

7.4. If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges and any other relevant terms of the Contract to take account of the change.

7.5. The Supplier may charge for its time spent in assessing a request for change from the Customer on a time and materials basis in accordance with condition 7.

8. CHARGES AND PAYMENT

8.1. Payment of the price for the Installation Services, as specified in the Statement of Supply, shall be made by the Customer by the earlier of:
(a) 30 days from the date of the Contract; and
(b) the Start Date.

8.2 Condition

8.3. shall apply if the Supplier provides the Support Services on a time and materials basis. Condition

8.4 shall apply if the Supplier provides the Support Services for a fixed price. The remainder of this condition 8 shall apply in either case.

8.3 Where the Support Services are provided on a time and materials basis: the charges payable for the Support Services shall be calculated in accordance with the Supplier's standard daily fee rates, as set out in the Purchase Order and as amended from time to time by the Supplier giving not less than [one] months written notice to the Customer; the Supplier's standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between [9.00 am] and [5.00 pm] on weekdays (excluding public holidays); the Supplier shall be entitled to charge an overtime / out of hours rate on a
pro-rata basis for each part day or for any time worked by individuals whom it engages on the Support Services outside the hours referred to in condition 8.3 calculated in accordance with the Supplier's overtime / out of hours fee rates, as set out in the Purchase Order and as amended from time to time by the Supplier giving not less than [one] months written notice to the Customer; all charges quoted to the Customer shall be exclusive of VAT which the Supplier shall add to its invoices at the appropriate rate; the Supplier shall ensure that every individual whom it engages on the Services completes time sheets recording time spent, and the Supplier shall use such time sheets to calculate the charges covered by each monthly invoice referred to in condition 8.3(f); and the Supplier shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition 8.3.

8.4. Where the Support Services are provided for a fixed price, the total price for the Support Services shall be the amount set out in the Purchase Order. The total price shall be paid to the Supplier (without deduction or set-off) in installments, as set out in the Purchase Order, the Supplier shall invoice the Customer for the charges that are then payable, together with expenses, the
costs of materials and VAT, where appropriate, calculated as provided in condition 8.5.

8.5. Any fixed price and daily rate contained in the Purchase Order excludes: the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier at cost; VAT, which the Supplier shall add to its invoices at the appropriate rate; and Any Tax

8.6. The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within [30] days of receipt.

8.7. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may: charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of HSBC Bank PLC, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and suspend all Services until payment has been made in full.

8.8 .Time for payment shall be of the essence of the Contract.

8.9. All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 8.9 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

8.10 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

9. CONFIDENTIALITY AND THE SUPPLIER'S PROPERTY9.1. The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a
confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents or sub-contractors and any other confidential information concerning the Supplier's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer's obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

9.2. All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including the Supplier's Equipment) shall, at all times, be and remain as between the Supplier and the Customer the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier's written instructions or authorisation.

9.3. This condition 9 shall survive termination of the Contract, however arising.

10. LIMITATION OF LIABILITY - THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION

10.1 This condition 10 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or inconnection with the Contract.

10.2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

10.3 Nothing in these Conditions limits or excludes the liability of the Supplier:
(a) for death or personal injury resulting from negligence; or for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation bythe Supplier; or for any liability incurred by the Customer as a result of any breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982. 10.4
Subject to condition 10.2 and condition 10.3 the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss of corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses. (b) the Supplier'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 the Contract shall be limited to the price paid for the Services.

11. DATA PROTECTION AND USE OF CUSTOMER NAME AND LOGO

11.1.The Customer acknowledges and agrees that details of the Customer's name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier.

11.2. The Customer grants the Supplier, free of charge, a non-exclusive, worldwide license, to use the Customer’s name and any trade mark owned by the Customer, whether registered or unregistered, for the purpose of promoting the business of the Supplier. The license will be granted with effect from the date of the Contract and shall continue for a period of [10] years from that date.

12. TERMINATION

12.1. Subject to conditions

12.2. and 12.3 the Contract shall terminate automatically on the Completion Date.

12.3. Without prejudice to any other rights or remedies which the Supplier may have, the Supplier may terminate the Contract without liability to the Customer on giving the Customer not less than three months written notice.

12.4. On termination of the Contract for any reason: the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; the Customer shall, within a reasonable time, return all of the Supplier's
Equipment. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

13. FORCE MAJEURE
The Supplier shall have no liability to the Customer 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 strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier 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 suppliers or sub-contractors.

14. VARIATION
Subject to condition 7, no variation of the Contract shall be valid unless it is in writing and signed by or on behalf of each of the parties.

15. WAIVER
15.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. 15.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

16. SEVERANCE
16.1. If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.

16.2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.

16.3. The parties agree, in the circumstances referred to in condition 17.1 and if condition 17.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

17. STATUS OF PRE-CONTRACTUAL STATEMENTS
Each of the parties acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract

18. ASSIGNMENT
18.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. 19.2 The Supplier 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.

19. NO PARTNERSHIP OR AGENCY
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 the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

20. RIGHTS OF THIRD PARTIES
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

21. NOTICES
Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address or fax number, given in the Contract (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 21 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

22. GOVERNING LAW AND JURISDICTION

22.1. The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.

22.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.