2. DEFINITIONS
In these conditions:
“Acceptance Date” means the date on which the Customer serves or is deemed to have served an Acceptance Notice in accordance with condition 7.7
“Acceptance Period” means the acceptance period defined in condition 7.4
"Conditions" means these terms and conditions of business
“Delivery Date” means the delivery date defined in condition 7.1
“Fees” means the amount agreed for the work carried out
"Services" means any service requested by the Customer including (but not limited to) the creation and maintenance of websites, IT Support and Network Management, removal of viruses, spyware, malware, adware, or the recovery of information following computer problems and training
"The Customer's Materials" means all materials delivered to Virya Technologies by the Customer
“Specification” means the Technical Specification for the Website set out in Appendix 1 to these Conditions
“Training” means the provision of three hours training to three members of the Customer so that those members understand how to properly use and operate the Website
“Website” means the Customer’s website to be created, developed and maintained by Virya Technologies as a result of the Services and which operates and functions in accordance with the Specification.
3. APPLICATION
3.1. Virya Technologies and the Customer shall contract subject to these Conditions which shall govern their relationship in relation to the Services to the exclusion of any other terms and conditions whether oral, or contained or referred to in the Customer's order, or in correspondence, or elsewhere, or implied by trade custom, practice or course of dealing, or by statute and any purported provisions to the contrary are hereby excluded
3.2. These conditions supersede all previous agreements and understandings (if any) between the parties and all representations made with respect thereto.
3.3. No variation of these Conditions shall be binding upon either party unless made in writing and signed by the duly authorised representatives of each party
3.4. All quotations and tenders are subject to withdrawal or amendment at any time prior to Virya Technologies’ acceptance of the Customer’s order.
3.5. Nothing in this condition 3 excludes or limits the liability of either party for fraud or fraudulent misrepresentation.
4. PRICES – GENERALLY
4.1. Virya Technologies will not be bound by any estimate given until they have received complete instructions and have had sight of and accepted the Customer’s order.
4.2. Neither party shall be bound by any clerical or arithmetical errors in any price list, invoice, statement, quotation or other documentation whatsoever.
4.3. Subject to condition 4.4, unless otherwise agreed in writing by Virya Technologies, payment of Virya Technologies’ invoices shall be made at the time of delivery of the invoice.
4.4. No sums in excess of the Fees shall be invoiced or incurred by Virya Technologies without the express prior written agreement of the Customer. The fees shall be paid as follows (plus VAT at the appropriate rate subject to production of a valid VAT invoice):
4.4.1. Website design projects
4.4.1.1. 50% of the fees on acceptance of Quote
4.4.1.2. 25% of the fees on the Delivery Date
4.4.1.3. 25% of the fees on the Acceptance Date
4.4.2. Website Support Contracts
4.4.2.1. Annual payments – Due on Renewal Date
4.4.2.2. 6 monthly payments – Due on Renewal Date & 6 months following
4.4.2.3. Monthly payments – Due by the 25th of each month in advance
4.4.3. Website Hosting
4.4.3.1. Annual payments – Due on Contract Renewal
4.5. If the Customer fails to make payment on the due date, Virya Technologies shall be entitled to charge interest on the overdue amount at a rate of 4% above the base lending rate of Barclays Bank pls. This sub-condition shall continue to apply notwithstanding that Virya Technologies obtain judgement against the Customer.
4.6. Virya Technologies shall have a lien over the Customer’s Materials against payment of all costs or fees due to her by the Customer from time to time and shall be entitled to withhold all such items until payment in full is made.
5. PRICES
5.1. Subject to condition 5.2 but without prejudice to condition 4 above Virya Technologies reserve the right to increase any part of the costs or fees payable for the services:
5.1.1. Where the Customer’s requirements are not clear or where the Customer’s Materials are poor quality, necessitating the production of additional Services;
5.1.2. Where the Services are ordered more than 30 working days prior to delivery, to reflect any increase in the costs to Virya Technologies which is due to any factor beyond the control of Virya Technologies such as, without limitation, increases in the cost of labour, materials or other costs, any change in delivery dates, quantities or specifications requested by the Customer, any delay caused by any instructions of the Customer, failure for the Customer to give Virya Technologies adequate information or instructions or failure of the Customer to supply clear and legible copy.
5.2. Virya Technologies shall notify the Customer of the amount of any increase prior to carrying out any further work. The Customer shall have the right to cancel the order as soon as reasonably practicable on receiving notification of such increase but shall pay Virya Technologies on a pro rata basis calculated from the costs and fees originally agreed for any part of the Services which had been completed at the time of cancellation of the order.
5.3. Without prejudice to the above, Virya Technologies reserve the right to charge the Customer for all preliminary services carried out, whether experimental or otherwise, at the Customer’s request. In the event that Virya Technologies accept early termination by the Customer of any contract, the Customer shall pay Virya Technologies for the preliminary Services, if any, carried out prior to such termination on a pro rata basis.
6. SERVICE STANDARDS
Virya Technologies shall in consideration of the Fees and subject to and in accordance with these conditions:
6.1. Perform the Services with all due skill, care and diligence;
6.2. Supply the Services in accordance with the Specification;
6.3. Ensure that all staff and sub-contractors assigned to the performance of the Services (if any) possess such skill and expertise necessary for the proper performance of the Services;
6.4. Perform the Services in accordance with all applicable laws and industry codes of practice; and
6.5. Provide the Training at no extra charge to the Customer.
7. DELIVERY AND ACCEPTANCE
7.1. Delivery shall take place when the Customer notifies Virya Technologies in writing that in the Customer’s opinion acting reasonably the Services have been completed in accordance with these Conditions and that the Website at the date of such notification complies with the Specification (the “Delivery Date”).
7.2. Subject to condition 7.4, Virya Technologies shall use all reasonable endeavours to fulfil all orders which may from time to time be placed with it by the Customer and shall use all reasonable endeavours to comply with delivery dates quoted but the time for the delivery shall not be of the essence and failure by Virya Technologies to make delivery on any particular date shall not entitle the Customer to terminate the contract with Virya Technologies or refuse the delivery or to claim for any expenses, loss of profits or other consequential losses whatsoever.
7.3. Where the order is to be delivered in instalments, each delivery shall constitute a separate contract and failure by Virya Technologies to delivery any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of one or more of the instalments shall not entitle the Customer to treat the order as a whole as repudiated or cancelled.
7.4. The Customer shall have a period of 14 days from but excluding the Delivery Date to test and use the Website (the “Acceptance Period”) to ensure that it functions in accordance with the Specification.
7.5. If during the Acceptance Period the Customer determines, acting reasonably, that the Website does not comply with the Specification then the Customer shall notify Virya Technologies of this (providing sufficient detail for Virya Technologies to understand the defect) (a “Rectification Notice”) such Rectification Notice to be served by the fifth working day following the end of the Acceptance Period at the latest.
7.6. If the Customer serves a Rectification Notice then the Customer may require the Supplier to supply, free of charge, such additional services to rectify or work around the defect as may be necessary to enable the Customer to issue a notice stating that it accepts the Website (an “Acceptance Notice”)
7.7. An Acceptance Notice shall be deemed to be served by the Customer if the Customer does not serve a Rectification Notice in accordance with condition 7.5.
7.8. If an Acceptance Notice is not served or deemed to be served by one month following the Delivery Date then the Customer shall not be required to make any further payment to Virya Technologies and the Customer shall be entitled to itself to complete the Services or appoint a third party to do so.
8. CUSTOMER’S MATERIALS
8.1. Whilst Virya Technologies shall use all reasonable endeavours to preserve the Customer’s Materials in good order (subject to such wear and tear as may be incurred in the course of carrying out the Services), they remain at the Customer’s risk and liability for damage to, destruction or loss of such materials is excluded save where such damage, destruction or loss is caused by Virya Technologies’ negligence or wilful default.
8.2. Virya Technologies shall have a lien over the Customer’s Materials against payment of all costs or fees due to her by the Customer from time to time and shall be entitled (if any payment is not made on the due date) to dispose of the Customer’s Materials for such sums (if any) as Virya Technologies may in their discretion think appropriate towards settlement of the amount due.
9. INTERVENING EVENTS
9.1. Neither party shall be liable for any breach of contract caused directly or indirectly by anything outside reasonable control including without limitation to the generality of the foregoing inability to produce materials or articles required for the performance of the contract due to unpreventable third party failures or war, hostilities, government action, breakdown, delay in transportation, any form of labour dispute, fire, flood or act of God.
10. INSOLVENCY AND BREACH
Where
10.1. a party, being a company, makes any arrangement or composition with its creditors or has a receiver or administrator appointed or if a party is unable to pay its debts within meaning of Section 123 of the Insolvency Act 1986 or becomes insolvent or goes into liquidation within the meaning of Section 247 of the Insolvency Act 1986 or an order is made or resolution passed for winding up (except for voluntary amalgamation or reconstruction); or
10.2. a party, being an individual, has a bankruptcy petition presented against him or is unable to pay his debts within the meaning of Section 123 of the Insolvency Act 1986 or becomes insolvent or makes any arrangement or composition with his creditors or takes any similar action in consequence of debt; or
10.3. a party is in breach of any of its obligations under these Conditions then the other may without prejudice to any of their other rights may immediately suspend the performance of any order placed by the Customer and, in the case of Virya Technologies, shall be entitled to charge the Customer, and the Customer shall immediately become liable to pay, for any Services already carried out (whether completed or not) including the cost of any materials purchased on behalf of the Customer.
11. VIRYA TECHNOLOGIES’ LIABILITIES
11.1. Virya Technologies do not seek to exclude the following liabilities:
11.1.1. For negligence causing death or personal injury.
11.1.2. Under third party agreements
11.2. Virya Technologies shall not be liable for any indirect or consequential loss or damage including (without limitation to the foregoing) economic loss, loss of profits, business, operating time or use of any other form of loss or damage of whatsoever nature and howsoever arising.
11.3. The implied conditions set out in the Sales of Goods Act 1979 and the Supply of Goods and Services Act 1982 shall be expressly excluded. Save as provided in these Conditions each and every liability of Virya Technologies is excluded.
11.4. All emails and any attachments, graphics, web pages produced or sent by Virya Technologies have been scanned for viruses, but it is the Customer’s responsibility to conduct their own security measures and no responsibility is accepted by Virya Technologies for loss or damage arising from the receipt or use of any such item.
12. WARRANTY AND INDEMNITY
12.1. Virya Technologies may refuse to work upon any of the Customer’s Materials which in their opinion contains any defamatory or obscene matter or may infringe any Intellectual Property Rights of any third party.
12.2. The Customer warrants to Virya Technologies that it owns or is properly licensed to use the Customer’s Materials and all Intellectual Property Rights in that the Customer’s Materials do not infringe any Intellectual Property Rights of any third party and would not if used in relation to the provision of any Services infringe any Intellectual Property Rights of any third party.
12.3. Virya Technologies warrants to the Customer that it owns or is properly licensed to use in connection with these Conditions all materials other than the Customer’s Materials (the “Supplier Materials”) and that the Supplier Materials do not infringe the Intellectual Property Rights of any third party.
12.4. The Customer shall indemnify Virya Technologies and keep her indemnified in respect of all costs, claims, liabilities and expenses to which Virya Technologies may be subject as a result of any claim that any of the Customer’s Materials contains any defamatory or obscene matter or infringes any Intellectual Property Rights of any third party. The indemnity shall extend (without limitation) to any reasonable amount paid on a lawyer’s advice in settlement of any such claim and to Virya Technologies’ reasonable legal costs.
12.5. Virya Technologies shall indemnify the Customer and keep her indemnified in respect of all costs, claims, liabilities and expenses to which the Customer may be subject as a result of any claim that any of the Supplier Materials infringe any Intellectual Property Rights of any third party. The indemnity shall extend (without limitation) to any reasonable amount paid on a lawyer’s advice in settlement of any such claim and to Virya Technologies’ reasonable legal costs.
12.6. The indemnities set out at conditions 12.3 and 12.4 shall not be subject to any limit or cap save that each party relying on the indemnity shall be under a duty to mitigate its losses and expenses.
12.7. The Customer warrants that it has carried out any reasonable and clear written instructions from Virya Technologies prior to delivery of the Customer’s Materials to Virya Technologies.
13. INVALIDITY OF PART
13.1. In the event of any provision of these Conditions being or becoming legally ineffective or unenforceable either in its entirety or in part this shall be without prejudice to the validity of and shall not invalidate the remaining provisions of these Conditions which shall remain in full force and effect.
14. HEADINGS
14.1. The headings contained in these Conditions do not form part of her and such headings shall be ignored in construing each of the conditions herein contained.
15. PARTIES
15.1. References to the masculine include the feminine and vice versa
15.2. References to the singular include the plural and vice versa
15.3. Virya Technologies shall not, without the prior written consent of the Customer such consent not to be unreasonably withheld or delayed, dispose of or deal in any other manner with these Conditions or any of its rights or beneficial interests under them, or purport to do any of the same, nor sub-contract any or all of its obligations under these Conditions without the prior written consent of the Customer such consent not to be reasonably withheld or delayed.
15.4. Virya Technologies is acting as an independent contractor. Virya Technologies shall have no right, power or authority whatsoever to create any obligation, express or implied, on behalf of the Customer unless the Customer has specifically authorised the same in writing.
15.5. Nothing in these conditions or any arrangement contemplated by them shall constitute either party a partner, agent, fiduciary or employee of the other party and the execution, completion and performance of these conditions shall not confer on any party any power to bind or impose any obligations to any third parties on the other party’s behalf or to pledge the credit of the other party.
16. NOTICES
16.1. Any notice consent or the like required to be given under these Conditions shall be in writing and sent by registered post to the address of the other party as herein set out or at such changed address as shall for that purpose be notified to the other and every such notice consent or the like shall be deemed to have been given three days after transmission at the address to which it was sent.
17. FURTHER ASSURANCES
17.1. Each party shall on demand and at its own expense execute and register or procure to be executed and registered all further deeds and documents and do all acts and things as may be necessary or desirable to give effect to these Conditions or any document executed or to be delivered pursuant to them.
18. JURISDICTION
18.1. These Conditions shall be construed according to and be governed by English law and the parties hereby submit to the non-exclusive jurisdiction of the English Courts.
