Chilli IT Standard Terms and Conditions
HARDWARE, SOFTWARE AND THIRD PARTY MAINTENANCE
The Customer acknowledges that Chilli IT, in its capacity as an IBM Premier Partner and Reseller, will supply hardware and software products and maintenance services pursuant to the Terms and Conditions applicable thereto from its suppliers such as IBM and Distributors like Arrow ECS wherefrom various products are sourced on a “Terms and Conditions flow down” basis i.e. the same terms pertaining to detailed specifications, measurements, performance and/or warranties, etc. from our Suppliers will continue to apply “pari passu” to our Customer. The Customer acknowledges that they are proceeding with the purchase of goods or services based solely on their own research, independent check and view about the accuracy or otherwise of any warranties, representation made that may be stated on suppliers’ websites links, catalogues or publicly available materials.
For your convenience a link to the IBM website is listed IBM https://www-01.ibm.com/support/docview.wss?uid=isg3T1025361
Chilli IT may receive incentives from IBM for marketing and selling IBM products or services.
1. PRICE
Prices will be shown without Value Added Tax. Freight, Insurance and other sundry costs associated with storage and delivery may be included.
2. DELIVERY
Delivery times and dates quoted are best estimates and may be subject to change. Goods shall be at the Customer’s risk at the point of delivery. Upon taking delivery, the Customer shall immediately examine the goods and give written notice to Chilli IT of any defect. Failing to do so will mean that the goods will be deemed to have been delivered in good order and condition and be accepted by the Customer.
3. RISK/TITLE
Products are at the risk of the Customer from the time of delivery. Ownership of the Products shall not pass to the Customer until Chilli IT has received in full all sums due in respect of the Products and all other sums which are due to Chilli IT from the Customer on any account.
The Customer’s right to possession of the Products shall terminate immediately if:
The Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(ii) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade.
4. PAYMENT
Payment terms are strictly twenty-eight (28) days from invoice. If payment is not received within 28 days, Chilli IT will be entitled to take possession of all hardware and other materials and commence action to recoup any expenditure incurred in providing the equipment and services already delivered.
5. LIMITATION OF LIABILITY
Chilli IT’s total liability under this agreement shall not exceed the total of any payments received from the Customer. It is expressly agreed that Chilli IT shall not be liable for any loss of profits or goodwill or other consequential loss suffered by the Customer, as a result of provision of the Service.
PROFESSIONAL SERVICES
1. INTRODUCTION
These Standard Terms and Conditions (“STC’s”), govern the provision of Services to the Customer, by Chilli IT. These Terms and Conditions will apply to all work undertaken by Chilli IT unless otherwise varied in a specified Agreement. If such an Agreement exists where terms exist in both the Agreement and the Standard Terms and Conditions, the Agreement Terms shall apply.
Reference to “Relationship” means the Agreement and STC’s. The result of any work performed by Chilli IT, pursuant to the Relationship, is a Deliverable.“Agreement” shall mean the Agreement for the provision of Services to which these terms and conditions apply.Effective Date” shall mean the date upon which the Service is deemed to have started. “Customer” shall mean the party commissioning the work to be undertaken in accordance with the Agreement, whose name and address appears in the Agreement. Customer Information” shall mean any information, verbal, written, electronic, data or otherwise, confidential or otherwise, that shall be received by or come to the knowledge of Chilli IT or its’ staff, from whatever source during the provision of the Service, or is required by Chilli IT or its’ staff in order to carry out its’ obligation under the Agreement. The “Service” shall mean the provision of services as agreed between Chilli IT and the Customer. “Standard Charges” shall mean the charges normally made by Chilli IT, from time to time, for the relevant Service. “Standard Rates” shall mean the charges normally made by Chilli IT, from time to time, for all supplementary and incidental expenses incurred in the provision of the relevant Service, and whose rates are given in section 12 Standard Rates for Expense Reimbursements of the STC’s.
“Additional Expenses” shall mean any reasonable expenditure incurred by Chilli IT in the delivery of the Service, whose rates are given in section 12.
“Standard Rates for Expenses Reimbursements” shall mean those rates given in section 12.
“Premises” shall mean any building or location, at which the Customer has facilities, and which Chilli IT has agreed to provide the Service.
“Equipment” shall mean any device or apparatus, active or passive, electronic or otherwise, any tools, computers or computing peripherals, office fixtures and fittings.
“Office” shall mean any building or location, at which the Customer has facilities, and which Chilli IT has agreed to provide the Service.
“Payment Period” shall mean the intervals at which charges are raised against the Customer by Chilli IT, for delivery of the Service.
“Notice Period” shall have one or more of the meanings as defined in section 6 Term and Termination as required by the circumstances pertaining at that time.
“Chilli IT” shall mean Chilli IT, any of its’ employees, consultants, associate consultants, or subcontractors.
“Staff” shall mean any employees, consultants, associate consultants, or subcontractors of Chilli IT, who are employed in the delivery of the Service to the Customer.
2. SERVICES AND STAFF
Services provided under this Agreement, shall commence on the date of commencement agreed between the Customer and Chilli IT, and shall continue until terminated by either party, in accordance with the terms of the Agreement.The Service shall normally be provided between the hours of 0900 hrs. and 1700 hrs., Monday to Friday, excluding UK Bank and Public holidays. The Service will be deemed to have always commenced from the initial day in any one week. Thereafter, for the remaining days in any one week in which service is provided, the Service will be deemed upon departure from the location of overnight accommodation used by the person providing the Service.Any Service provided outside these hours is subject to the prior agreement of Chilli IT, and will be charged at double the standard charges.Staff who provide the Service shall be entitled to a lunch break of one hour per day to be taken at a time that is acceptable to the Customer.
Chilli IT staff will: (i) comply with all Customer’s reasonable instructions; (ii) adhere to Customer’s management and operational philosophy; (iii) agree with Customer any periods of unavoidable unavailability and (iv) provide the Service at the locations specified by the customer in a professional manner and at a high standard consistent with his/her qualifications and experience and Chilli IT’s reputation and image. Chilli IT will use best efforts to agree to Customer changing (if any) requirements for Services.
3. PRICES PAYMENTS AND EXPENSES
The rates for Staff, exclusive of VAT, are fixed for a period of 6 months from the effective date, unless the contrary is set out in the Agreement. VAT at the Standard Rate in force at the time of Effective Date, (or any changes to the Standard Rate introduced by HM Government during the period of availability), shall be additional to the Standard Rates for Staff and expenses. Unless otherwise agreed, the Customer shall pay Chilli IT for time properly spent by Staff within 30 days of Customers’ receipt of Chilli IT’s invoice. The Customer shall reimburse all reasonable out of pocket expenses incurred by Chilli IT staff in the delivery of the Service, in accordance with the “Standard Rates of Expenses Reimbursements” contained within STC’s.
Save for the foregoing in the paragraph above, Chilli IT is responsible for all the costs such as taxes, governmental levies, National Insurance requirements and payments, etc. incurred in providing Service. Unless otherwise agreed Chilli IT shall invoice the Customer, in arrears, at the end of the month for time and/or materials/expenses incurred in delivering the Service. Fees, rates etc. quoted in any proposal or quotation may be subject to revision by Chilli IT if agreement is not entered into within thirty (30) days of any proposal.Without prejudice to any other remedy, Chilli IT may at time by thirty (30) days written notice to the Customer, vary any or all of its Standard Charges, if for any reason the requirements of the Service, provided to the Customer, are materially changed, by the Customer, during the provision of the Service such that Chilli IT cannot perform its obligations under the Agreement without providing either higher qualified consultant(s) or incurring additional Staff costs. In the event of late payment, Chilli IT reserves the right to charge interest on overdue amounts at an interest rate of 5% above the prevailing base rate of The National Westminster Bank plc. Standard Charges, quoted in this agreement, are applicable to the time element only supplied and consumed by Chilli IT consultants in the delivery of the Service and do not include Value Added Tax for which the Customer is liable. Standard Charges do not include travel, accommodation, and incidental costs, or provision of materials and or equipment, in executing the delivery of the Service. The supplementary charges are given in the Standard Rates for Expenses Reimbursements, in section 12 of the STC’s. If any part of the Service provided under this agreement, requires to be conducted outside of the United Kingdom, then the Standard Charges, previously referred to, do not apply and Chilli IT will make supplementary charges for time, travel and all reasonable expenses incurred, in providing the Service outside of the United Kingdom. Such supplementary charges shall be agreed when the Customer specifies all conditions, locations, and requirements of the Service, outside of the United Kingdom.
4. SECURITY AND CONFIDENTIALITY
All information disclosed or obtained under Relationship is confidential (“Confidential Information”)
Chilli IT shall treat as confidential any information disclosed to them by the Customer, relative to the Customers’ business, and shall not disclose the same to any third party, without the prior permission of the Customer, other than those employees of Chilli IT who require such information in order to provide the Service.Chilli IT shall not disclose any Confidential Information or existence of relationship to any third party without the Customers’ consent. Confidential Information may be disclosed by a receiving party if such party can show that such information is (i) in the public domain or in its possession without breach of Relationship; (ii) independently generated.Chilli IT shall use its best efforts to ensure that any other information, whether confidential or otherwise, relating to the Customers’ business or to the business of any client of the Customer, which comes to the knowledge of Chilli IT, or any of its employees, shall be treated as confidential and shall not be disclosed to any third party, without the prior consent of the Customer. Chilli IT shall at its discretion, and subject to prior notification to and with agreement of the Customer, be entitled to remove to its own premises, data for the purposes of delivering the Services in this Agreement. Chilli IT agrees to return or erase the same (as directed by the Customer), on completion of the necessary work. Chilli IT shall not copy any data so removed, without the prior consent of the Customer.
5. FACILITIES
The Customer shall allow all Chilli IT staff to have full and free access to the Premises, Customer Information, and data, at all reasonable times, that it reasonably deems to be essential or required in order to carry out its obligations to deliver the Service. The Customer shall provide, at its expense, during the period of the agreement, for the use of Chilli IT staff, adequate working space within reasonable distance of the Premises. The Customer shall also make available at the Premises, at its expense, such ventilation, light, telecommunications, and power supplies, as Chilli IT may reasonably require to carry out its’ obligations to deliver the Service.Unless otherwise agreed to the contrary, the Customer shall be responsible for providing, at its expense, such computer hardware and software equipment, as Chilli IT staff may reasonably require to carry out its’ obligations to deliver the Service, and to make provisions for the maintenance of such equipment.
6. TERM AND TERMINATION
Relationship is effective from Effective Date in Section 1 of this contract and shall continue until terminated.Relationship and Agreement shall remain in force until terminated by either party giving fourteen days’ written notice to the other at any time.Termination of the Agreement shall not prejudice the rights of either party, which have arisen on or before the date of termination.
7. LIMITATION OF LIABILITY
Chilli IT’s total liability under this agreement shall not exceed the total of any payments received from the Customer. It is expressly agreed that Chilli IT shall not be liable for any loss of profits or goodwill or other consequential loss suffered by the Customer, as a result of provision of the Service. If it is necessary for any of Chilli IT’s staff to work on any Equipment or Premises belonging to the Customer or any client of the Customer, the Customer accepts that such work is performed entirely at the Customers’ risk. Furthermore, the Customer indemnifies Chilli IT for any claim from the manufacturer of such equipment or any other person or entity, that such work has caused loss or damage.The Customer acknowledges and accepts that it is reasonable, as defined in the Unfair Contract Act 1977, that Chilli IT shall under no circumstances whatsoever, be responsible or liable if : (i) the Customer does not follow the advice and instructions of Chilli IT properly; (ii) the Customer does not provide Chilli IT with accurate information whether in response to Chilli IT’s questions or otherwise so that Chilli IT is unable to provide proper advice or assistance; (iii) the Customer does not comply with the instructions in any instruction manual which may be provided with the Service, unless such instructions are inconsistent with the advice of Chilli IT.
The Customer shall at all time comply with the Health and Safety at Work Act requirements, and all rules and regulations and other requirements imposed by any competent authority. Chilli IT shall not be liable for any damage to Equipment or Premises, or for any losses, costs, or expenses whatsoever, arising out of any failure by the Customer to do so.In no event shall a party be liable to the other party for any consequential losses. Neither party excludes or limits liability for death or personal injury caused by partys’ negligence. A partys’ liability to the other party for direct losses is limited to £1,000,000 per incident or series of related incidents.
8. INDEMNITY
The Customer shall indemnify Chilli IT against any claim or threatened claim and associated expenses, arising by reason of: (i) any infringement of any intellectual property right by Deliverable(s) or Customer exploitation thereof; (ii) Customers’ unauthoriseddisclosure of Chilli IT Confidential Information; (iii) damage to property, personal injury or death caused by negligence of the Customer.
9. FORCE MAJEURE
Chilli IT and the Customer shall be excused from failures or delivery in performance hereunder, if such failure or delay is attributable to causes beyond their control. Such causes may include, but are not limited to, Acts of God, acts of war, riot, epidemic, fire, flood, strikes or labour disputes (except those directly involving Chilli IT or its employees), inability to obtain materials, or failure or delay in transportation. In the event of delay, supply shall take place as soon as is reasonably feasible.
10. MISCELLANEOUS CONDITIONS
The parties are independent contractors. Neither party may act on the other partys’ behalf without the other partys’ written consent.Relationship is the final statement of the partys’ agreement with respect to the subject matter hereof, and supersedes all prior negotiations. The invalidity of any part of the Relationship shall not affect the remaining parts.Relationship is governed by and construed in accordance with English Law, and is subject to the exclusive jurisdiction of the English Courts. Neither party may assign, transfer, or part with possession of its rights and/or obligations under this Agreement, except with the prior written consent of each other, which shall not be unreasonably withheld or delayed. All notices shall be sent by prepaid first class post, or delivered by hand, addressed to the recipient at the address shown in this Agreement, or at any such new address as either party may notify the other of in writing. Such notice if paid by prepaid first class post will be deemed served on the next working day after posting.The failure of either party to enforce or to exercise, at any time for any period of time, any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as a waiver of such term or right, and shall in no way affect that partys’ right later to enforce or to exercise it. Sections 3, 4, 7, 8, 10, and 13 survive termination of Relationship.
11. STANDARD CHARGES AND RATES
All charges are with respect to a “Daily Rate” (7 working hours) and no apportionment of the “Daily Rate” is made for per parts of days consumed, unless otherwise agreed by Chilli IT.Alternatively, charges may be negotiated as a fixed total contract fee based on the daily rate.
12. STANDARD RATES FOR EXPENSES REIMBURSEMENTS
Travel within the UK will be charged out to the Customer at the following rates unless otherwise agreed:
(i) by Company Car @ 50p per mile
(ii) by Rail @ Standard Class ticket cost
(iii) by Air @ Standard or equivalent.
Travel outside the UK will be charged out to the Customer at the following rates:
(i) by Hire Car @ cost
(ii) by Rail @ cost (Standard Class or equivalent)
(iii) by Air @ Standard Class or equivalent
Hotel accommodation within the UK will be charged out to the Customer at the following rates:
3 Star or equivalent @ cost.
Hotel accommodation outside of the UK will be charged out to the Customer at the following rates:
International Hotel Chain Rates or 3 Star local equivalents @ cost
13. INTELLECTUAL PROPERTY
Unless otherwise agreed, or disposed of by the Customer to any other party, all intellectual property rights currently derived and enjoyed by the Customer, shall not be affected by the provision of the Service.
Unless otherwise agreed, no intellectual property rights currently derived and enjoyed by Chilli IT shall pass to the Customer, its agents, or any other third party, as a result of providing the Service.