Full TERMS & CONDITIONS Relating to the supply of goods & services by Adaptai
These are Adaptai’s Full Terms and Conditions of Business and should be read in conjunction with the Order Form agreed between Adaptai and the Customer and the applicable Service Schedule for the service required.
1.1 In the Agreement the following expressions will have the following meanings unless inconsistent with the context:
“Acceptable Use Policy” – the acceptable and fair use policies of Adaptai and any Third Party Services Providers from time to time applicable
“Agreement” – the agreement between Adaptai and the Customer for the provision of Services and/or Products formed by these conditions, the terms of the Order Form and the Service Schedule
“Business Day” – a day which is not a Saturday, Sunday or Public Holiday in England
“Business Hours” – 9am to 5pm on each Business Day
“Confidential Information” – all information in respect of the business of a party including any ideas; business methods; finance; prices, business, financial, marketing, development or manpower plans; customer lists or details; computer systems and software; products or services, including know-how or other matters connected with the products or services manufactured, marketed, provided or obtained by a party, and information concerning a party’s relationships with actual or potential clients, customers or suppliers and any other information which, if disclosed, will be liable to cause harm to that party
“Contract Year” – the period of 12 months from the Effective Date and each successive period of 12 months during the continuance in force of the Agreement or, in respect of the final Contract Year under the Agreement, the period from the end of the penultimate Contract Year to the date of termination of the Agreement, if shorter
“Customer” – as identified on the Order Form
“Customer Personnel” – all employees and other personnel of the Customer and all agents, contractors and other users of the Services
“Effective Date” – the date set out in the Order Form
“Fees” – the charges due to Adaptai as set out in the Order Form or Service Schedule, as may be amended from time to time pursuant to these conditions or the Service Schedule
“Initial Term” – the initial term of the Agreement as set out in the Order Form
“Adaptai” –Adaptai Ltd registered in England, No.11715483, whose registered address is at Pkf Francis Clark, Towngate House 2-8 Parkstone Road, Poole, Dorset, United Kingdom, BH15 2PW together with its associated or subsidiary companies.
“Adaptai Equipment” – any hardware, software, or other equipment provided by Adaptai to the Customer in connection with the provision of the Services or otherwise used by Adaptai to provide the Services
“Order Form” – the order form signed by the Customer detailing the Services and/or Products to be supplied byAdaptai
“Products” – any hardware, software, or other equipment sold or licensed byAdaptai to the Customer as identified in the Order Form, as may be amended from time to time pursuant to paragraph 3.5 of these conditions
“Services” – the service provided byAdaptai as identified in the Order Form, as may be amended from time to time pursuant to paragraph 3.5 of these conditions or the Service Schedule
“Service Schedule” – any service schedule applicable to the particular Services and Products, as identified in the Order Form
“Service Levels” – any service levels applicable to the Services as set out in the Service Schedule
“Third Party Services” – any part of the Services which Adaptai procures from a third party, and any third party services which Adaptai uses in order to provide the Services
“Third Party Services Provider” – the provider of any Third Party Services
1.2 If there is a conflict between any of these conditions, the Order Form and the Service Schedule, the conflict will be resolved according to the following order of priority:
1.2.1 the Order Form,
1.2.2 the Service Schedule, and
1.2.3. these conditions
1.3 The headings to these conditions and in the Order Form and Service Schedule are for convenience only and shall not affect their construction or interpretation.
1.4 Any phrase in the Agreement introduced by the term “include”, “including” “in particular” or any similar expression will be construed as illustrating and will not limit the meaning of the words proceeding that term.
2.1 These conditions, together with the other terms set out in the Agreement, will apply to all contracts and agreements between the parties to the exclusion of all other terms and conditions and all previous oral or written representations, including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the Order Form.
2.2 Each order or acceptance of a quotation for Services or Products will be deemed to be an offer by the Customer to purchase Services or Products upon these conditions. The Agreement is formed when the order is accepted byAdaptai, by way of e-mail confirmation or any other written acknowledgement. No contract will come into existence until such written acknowledgement of the order is issued by Adaptai. 2.3 Any quotation provided by Adaptai is valid for a period of 7 days only from its date, provided Adaptai has not previously withdrawn it.
2.4 All orders are non-cancellable. Without prejudice to this, no Products may be returned by the Customer following delivery unless they fail to comply with their specification due to defects in material or workmanship, and then only in accordance with the provisions of paragraph 7.1.
2.5Adaptai will be entitled to make changes to these conditions at any time and the Customer will be subject to any such amended conditions from the date that such changes are made. The most recent version of these conditions from time to time will be found at www.adaptai.co and the Customer shall check periodically for changes. Posting changes to these conditions atwww.adaptai.co shall be deemed to be sufficient notice to the Customer of such changes.
3.1 The Services and the Products to be provided to the Customer are as described or referred to on the Order Form and the Service Schedule.
3.2 Time for performance or delivery is not of the essence and any timescales for performance or delivery given by Adaptai are estimates only. Adaptai will use its reasonable endeavours to provide the Services and deliver the Products in accordance with any timescale set out on the Order Form, but will not be liable to the Customer where it fails to meet any timescale.
3.3 Adaptai will not be liable for any failure to provide the Services and/or deliver the Products resulting from any breach by the Customer of the Agreement.
3.4 Adaptai will not be obliged to provide any Services or Products not referred to in the Order Form.
3.5 Adaptai may at any time and from time to time improve, correct or otherwise modify all or any of the Services and/or Products (including substituting software and/or Products with software or equipment of similar specification) provided that such modification does not materially adversely affect provision of the Services to the Customer or the functionality of the Products. Adaptai will endeavour to give the Customer reasonable notice of any such modification, where this is reasonably practicable.
3.7 Risk of damage to or loss of the Products or essential program materials will pass to the Customer on delivery.
3.8 Ownership of the Products will not pass to the Customer until Adaptai has received in full (in cash or cleared funds) all sums due to it in respect of:
3.8.1 the Products; and
3.8.2 all other sums which are or which become due to Adaptai from the Customer on any account.
3.9 Until ownership of the Products has passed to the Customer, the Customer must hold the Products on a fiduciary basis as Adaptai’s bailee and maintain the Products in satisfactory condition insured on Adaptai’s behalf for their full price against all risks to the reasonable satisfaction of Adaptai.
3.10 The Customer’s right to possession of the Products will terminate immediately if any of the circumstances set out in paragraph 9.4 occur.
3.11 Adaptai will be entitled to recover payment for the Products notwithstanding that title in any of the Products has not passed from Adaptai.
3.12 On termination of the Agreement, howsoever caused, Adaptai’s rights contained in paragraphs 3.8 to 3.11 will remain in effect.
3.13 Subject to the conditions set out in this clause, all Intellectual Property and Intellectual Property Rights shall remain the property of Adaptai:
3.13.1 All project work, retainer work, fee-paid or free client work provided by or on behalf of Adaptai remains the Intellectual Property of Adaptai and is owned by Adaptai, unless the transfer of IP is agreed in writing at the beginning of a project or agreed during a project phase.
3.13.2 Transfer of the ownership of IP can be quoted on request and is never quoted as a matter of course. Certain aspects (such as illustrations and photographic images etc) provided by third-parties to Adaptai for the purposes of final client delivery may be subject to shared IP, owned jointly between the supplier and Adaptai, with all copyrights recognised. The client may also participate in the ownership of the IP though Intellectual Property Rights agreements.
3.13.3 All client work is subject to Intellectual Property Rights, given by Adaptai to the Client. The term “Intellectual Property Rights” means, copyrights, database rights, rights in logos, content, inventions, trade secrets and know-how, patents, all rights of whatever nature in computer software and data, all rights of privacy and all intangible rights and privileges of a nature similar to any of the above, in every case in any part of the world and whether or not registered; and including all granted or pending registrations, and all rights to make applications for registration in respect of any of the same.
3.13.4 The effect of 3.13.3 above is that a license to use any or all of these elements within the context of normal client business is allowed and conferred to the client as part of the commissioning of and production of client work and assets. This same license is also extended to agencies of the client, whether present or future, who may, in the course of normal client business and support, need to utilise any or all of the assets wherein IP is owned by Adaptai.
3.13.5 All Intellectual Property Rights in the content and design of digital or non-digital assets and any material emailed to the client or otherwise supplied to the client in conjunction with online or offline projects are the property of Adaptai. No use or reproduction of any Adaptai Intellectual Property, including any trademarks, registered or unregistered, for any reason is permitted without written permission from Adaptai or without Intellectual Property Rights being granted.
3.13.6 Any materials supplied by the Client for incorporation in a website or any other materials added by the Client to the contents of a website, together with any associated Intellectual Property Rights attaching thereto shall remain the property of the Client.
3.13.7 The software and codes, which operate prototypes, designed and developed by Adaptai, is proprietary software and coding and may not be used by or on behalf of the Client except as expressly allowed under these Terms. The Client may not copy, reverse engineer, modify or otherwise deal with the software and coding without Intellectual Property Rights first being granted by Adaptai.
4.1 The Customer will provide Adaptai with all the information, instructions and assistance that Adaptai may reasonably require in order to carry out its obligations under the Agreement. The Customer shall co-operate fully and in good faith with Adaptai and with any applicable Third Party Services Provider. The Customer shall provide all reasonably necessary physical access to Customer premises and other sites at all reasonable times as required (including access for the purposes of installation, inspection, maintenance, replacement, upgrade, or removal of Products, Adaptai Equipment and any other equipment associated with the Services), facilities at such premises and sites, assistance with testing and other assistance to Adaptai that Adaptai shall reasonably require to perform its obligations under the Agreement, and the Customer shall comply with any reasonable operating instructions issued by Adaptai from time to time.
4.2 If Adaptai is provided with any incorrect information or instructions in connection with the Services, then the Customer shall pay any reasonable additional and/or wasted costs and expenses incurred or suffered by Adaptai as a result in setting-up and/or providing the Services.
4.3 Where Adaptai or any Third Party Services Provider is working on Customer premises, the Customer shall ensure a safe working environment in compliance with all applicable health and safety laws.
4.4 Adaptai reserves the right to refuse access to its premises and servers to anyone.
4.5 The Customer shall not use the Services, any Adaptai Equipment or any Customer equipment which is located on Adaptai premises:
4.5.1 to provide, store, host, link to or connect to illegal content, content designed to offend or cause needless anxiety to others, any material which is abusive, indecent, defamatory, obscene, threatening, menacing or likely to cause harassment or which is in breach of any copyright, confidence, privacy or any other rights or scanning software;
4.5.2 to distribute illegal, copyright infringing, indecent or offensive material;
4.5.3 to send or procure the sending of any unsolicited e-mail; or
4.5.4 in an unlawful manner or for any illegal purpose.
4.6 Whether or not express reference is made to Customer Personnel in the relevant provision, the Customer will procure that all Customer Personnel comply with all the duties, obligations and restrictions imposed on the Customer by the Agreement, to the extent such duties, obligations and restrictions are applicable to the Customer Personnel. Any act or omission of any Customer Personnel which, if it had been committed or omitted by the Customer, would have been a breach of the Agreement by the Customer will be deemed to be a breach of the Agreement by the Customer who will be liable to Adaptai accordingly.
4.7 Where the Products include any software, the same is provided on a licensed basis in accordance with the licence terms and conditions applicable thereto, which the Customer agrees that it will comply with.
4.8 Sign-off: Following completion of any pre-defined phase or project, the Client is required to check, approve and sign-off any work prior to final production. Any discrepancies, and/or mistakes identified after a successful sign-off are accepted as the responsibility of the Client
5.1 Without prejudice to any other right or remedy that it may have in such circumstances, Adaptai reserves the right to suspend provision of any part of the Services where:
5.1.1 subject to clause 5.1.2 below, the Customer’s use of any of the Services is found to be monopolising the resources available (this policy is only implemented in extreme circumstances and is intended to prevent misuse of the Services); or
5.1.2 the Customer is in breach of the clause 5.1.1 above, or paragraph 4.6, or is otherwise in material breach of the Agreement and fails to rectify such breach within 7 days of a written request from Adaptai requiring the same to be rectified;
6.1 All Fees payable monthly or yearly as indicated in the Service Schedule or Order Form will be paid by the Customer in advance and will not be refundable in whole or part if the Agreement or relevant part is terminated by the Customer during the period to which the payment relates.
6.2 Adaptai reserves the right to require the payment of such Fees as it shall specify in the Order Form upfront prior to the commencement of the provision of the Services or any Products or before any order is progressed.
6.3 All other Fees (unless indicated otherwise in the Service Schedule or Order Form) shall be payable by the Customer following provision of the relevant Services or delivery of the Products, or, where provision of the relevant Services continues for more than one month, monthly in arrears.
6.4 Additional Fees will become payable if the Customer exceeds agreed or stipulated bandwidth or other use levels or restrictions set out in the Service Schedule or Order Form.
6.5 Any total sum for the Fees set out in an Order Form is (unless stated in the Order Form to be a fixed and firm amount) an estimate of the Fees only and not a fixed price quotation.
6.6 Adaptai shall be entitled to increase the Fees at any time, but no such increase may take effect earlier than the end of the Initial Term except where the costs incurred by Adaptai in the provision of the relevant Services or Products increase through factors that are outside of Adaptai’s control, including electricity and bandwidth charges and charges levied by Third Party Services Providers. Adaptai shall give the Customer 30 days’ notice of such increases.
6.7 Any sums payable by the Customer to Adaptai under the Agreement are exclusive of value added tax or any similar taxes, levies or duties, which will be added to such sums and be payable by the Customer at the appropriate rate.
6.8 The Customer will pay invoices within 14 days of the date of the invoice, unless otherwise agreed. Adaptai may charge interest on all overdue amounts from time to time on a daily basis at a rate of 2% above the base rate of The Royal Bank of Scotland PLC, to run from the due date of payment until receipt by Adaptai of the full amount (including any accrued interest) whether before or after judgment in respect of the overdue amount. Should Adaptai refer your account to a collection agency (which may be a firm of solicitors), then Adaptai will also add a referral fee to the amount owing. The current referral fee is £200+VAT. Adaptai also reserves the right to continue to add monthly late payment charges, at the increased rate of 3.5% of the outstanding balance or £30 (whichever is higher), until payment is received for the outstanding debt. Late payment charges will be levied monthly, after, as well as before, any judgment if court proceedings for recovery are instituted.
6.9 The Customer, together with its officers, agrees that Adaptai may make a search in relation to the Customer with a credit reference agency (and make other credit enquiries from time to time), keep a record of that search and enquiries, and share that information with third parties. The Customer also confirms it has the power to consent for Adaptai to make enquiries about the principle directors/proprietors of the Customer with a credit reference agency.
6.10 All Fees shall be paid by such method as determined by Adaptai from time to time (which may include payment by direct debit, BACS, cheque or credit card) to such account as Adaptai may specify from time to time. Where the Customer authorises payment of any of the Fees by credit card then Adaptai may deduct other amounts becoming payable to it under the Agreement under that credit card without obtaining additional authorisation from the Customer
6.11 All payments are due and payable in UK sterling unless otherwise agreed in the contract.
6.12 All payments to be made by the Customer will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Customer is required by law to make any such deduction or withholding.
6.13 Adaptai shall have a lien over and be entitled to retain any equipment and property of the Customer in Adaptai’s possession pending satisfaction in full of the Customer’s payment obligations under the Agreement, including following any termination of the Agreement. This shall include the right to sell the same and set off the proceeds of sale against any sums owing.
7.1 Adaptai without charge and within a period of 12 months from the date of delivery to the Customer of any product agrees that in respect of any product which is proved to the reasonable satisfaction of Adaptai to not comply with specification, due to defects in material or workmanship, it shall repair or at its option replace such Product. Provided that Adaptai complies with this obligation it shall have no further liability to the Customer in connection with such non-compliance. This obligation will not apply where:
7.1.1 the Product has been improperly altered in any way whatsoever, or has been subject to misuse or unauthorised repair;
7.3 Adaptai does not (and nothing in the Agreement shall be construed so as to) exclude its liability (if any) to the Customer:
7.3.1 for breach of Adaptai’s obligations arising under section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982;
7.3.2 for personal injury or death resulting from Adaptai’s negligence;
7.3.3 under section 2(3) Consumer Protection Act 1987;
7.3.4 for any matter for which it would be illegal for Adaptai to exclude or to attempt to exclude its liability; or
7.3.5 for fraud.
7.4 Except as provided in paragraph 7.3, Adaptai will be under no liability to the Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any indirect or consequential loss or for any loss of profits, loss of business, loss of anticipated savings, depletion of goodwill and like loss however caused arising out of or in connection with the Agreement.
7.5 Subject to paragraphs 7.3 and 7.4, Adaptai’s aggregate liability in any Contract Year under the Agreement whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or loss howsoever caused will be limited to the Fees payable in that Contract Year.
7.6 Except as set out in paragraph 7.3, Adaptai hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Agreement) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Customer.
7.7 The Customer acknowledges that the above provisions of this paragraph 7 are reasonable and reflected in the Fees which would be higher without those provisions, and the Customer will accept such risk and/or insure accordingly.
Neither party is under any liability to the other party in respect of anything which, apart from this provision, may constitute a breach of the Agreement arising by reason of force majeure which means, in relation to either party, circumstances beyond the reasonable control of that party including acts of God, acts of any governmental or supra-national authority, war or national emergency, riots, civil commotion, fire, network failure, systems fault, unauthorised use or access to the IT systems of Adaptai or the Customer, explosion, flood, epidemic, lock outs (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, to the extent outside of its reasonable control.
9.1 The Agreement shall commence on the Effective Date and shall continue in force for the Initial Term and thereafter shall continue in force unless or until terminated by one party in accordance with clause 9.
9.2 Unless stated otherwise in the relevant Service Schedule, at the end of the initial term the agreement will renew automatically for an additional Contract Year unless either party gives to the other not less than 90 days’ notice in writing before the contract renewal date.
9.3 Where a customer is terminating a Adaptai service a cancellation form will be raised which will need to be signed by both parties. The notice period will not commence until this is completed.
9.4 Adaptai may by written notice served on the Customer terminate the Agreement immediately if the Customer:
9.4.1 either is in material breach of any of the terms of the Agreement and such breach is incapable of remedy or, where the breach is capable of remedy, fails to remedy such breach within 14 days after service of a written notice from Adaptai specifying the breach and requiring it to be remedied;
9.4.2 is due to make a payment to Adaptai yet fails to make the payment for a period of one month following the due date of payment.
9.4.3 is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, makes a proposal for a voluntary arrangement or convenes a meeting of its creditors to consider such a proposal, becomes subject to any voluntary arrangement, has a receiver, manager, or administrative receiver appointed over any of its assets, undertaking or income, passes a resolution for its winding-up, is subject to a petition presented to any court for its winding-up, has a provisional liquidator appointed, has a proposal made for a compromise or arrangement under Part 26 Companies Act 2006, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator filed at any court by any person or is the subject of a notice to strike off the register at Companies House;
9.4.4 has any distraint, execution or other process levied or enforced on any of its property; or
9.4.5 ceases to trade.
9.5 The termination of the Agreement howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination. The clauses in the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
9.6 Subject to the provisions of paragraph 6.13, on termination of this Agreement howsoever arising each party will return to the other any property of the other in its possession or control.
9.7 Without prejudice to any other of its rights and remedies:
9.7.1 Adaptai will be entitled to remove the Customer’s data from its systems and any daptai Equipment and/or put the Adaptai Equipment to any use other than the Customer’s following termination of the Agreement. Adaptai is not required to back up such data or return the same to the Customer prior to any such removal; and
9.7.2 in the event of any termination by Adaptai pursuant to paragraph 9.4, or by the Customer pursuant to any provision of these conditions, the Customer shall be liable to pay or reimburse Adaptai for any cancellation charges that may be due to any Third Party Services Provider or otherwise due as a consequence of such termination.
10.1 Adaptai reserves the right to hold the names and other information provided by and relating to Customers in a computerised database. This data will be used to enable the provision and maintenance of Services, and may in certain circumstances be supplied Adaptai to Third Party Service Providers and any other suppliers to Adaptai to enable the provision or maintenance of the Services.
10.2 Customers who request an IP address assignment hereby agree to having their contact details added to the WHOIS or other relevant database or registry.
10.3 Where Adaptai is processing any personal data relating to the Customer in connection with the provision of the Services, it is doing so on behalf of the Customer as a “data processor” under the Data Protection Act 1998, and the Customer is the “data controller”. Adaptai will comply with its obligations under the Data Protection Act 1998 as data processor.
10.4 In particular Adaptai will maintain and comply with reasonably appropriate technical and organisational measures against unauthorised or unlawful processing of that personal data and against accidental loss or destruction of, or damage to that personal data.
10.5 Each party will keep confidential:
10.5.1 The terms of the Agreement; and
10.5.2 any and all Confidential Information that it may acquire in relation to the other party.
10.6 Neither party will use the other party’s Confidential Information for any purpose other than to perform its obligations under the Agreement. Each party will ensure that its officers and employees comply with the provisions of paragraphs 10.5 and 10.6.
10.7 The obligations on a party set out in paragraphs 10.5 and 10.6 will not apply to any Confidential Information which:
10.7.1 either of the parties can demonstrate is in the public domain (other than as a result of a breach of paragraph 10.5 or 10.6); or
10.7.2 a party is required to disclose by order of a court of competent jurisdiction but then only to the extent of such required disclosure.
10.8 The provisions of paragraphs 10.5 and 10.6 will survive any termination of the Agreement for a period of Five (5) years from termination.
11.1 Each right or remedy of Adaptai under any agreement is without prejudice to any other right or remedy of Adaptai under this Agreement.
11.2 If any condition or part of the Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Agreement and this will not affect any other provisions of the Agreement which will remain in full force and effect.
11.3 No failure or delay by Adaptai to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
11.4 Adaptai may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under the Agreement.
11.5 The Contract is personal to the Customer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Agreement without Adaptai’s prior written consent.
11.6 The parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
11.7 The Agreement contains all the terms which Adaptai and the Customer have agreed in relation to the Services and Products and supersedes any prior written or oral agreements, representations or understandings between the parties relating thereto. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Adaptai which is not set out in the Agreement. Nothing in this paragraph 12.7 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
Any reference to any law, regulation or statute shall; also mean any amendment, change, substitution or re-enactment thereof. The construction, performance and validity of the Agreement will be governed by English law and the English courts have jurisdiction to settle any disputes which may arise out of or in connection with it.