Terms and Conditions For Professional Services

*** Terms and Conditions For Professional Services ***

1. Fee Rates and Hours of Work


1. Montego Data Limited's staff provide services to the customer on a non-exclusive daily basis,
   charged at the fee rates quoted in the Contract Letter.
   Fractions of a day are charged on a pro rata basis.
2. Fee rates exclude VAT which will (where appropriate) be added to the amount of an invoice at the prevailing rate.
3. The fee rates quoted will be fixed for the initial period of the assignment, or for [3] months, whichever is the shorter.
   Charge rates will be assessed from time to time.
4. Fees exclude travel or subsistence expenses and the costs of materials and services not provided directly by Montego Data Limited,
   unless stated otherwise on the contract letter.
   Any expenses necessarily incurred in execution of the assignment will be charged at cost.
5. During site work, travelling time in excess of normal travel to work time will be charged at cost;
   where applicable the cost of air travel, rail travel or a car mileage allowance at the prevailing company rate will be charged.
6. During site work involving overnight stays the cost of bed, breakfast and evening meal,
   any incidental expenses such as travel and medical insurance (outside UK only),
   plus the cost of Montego Data Limited's standard employee disturbance allowance will be charged.
7. Assignments will be full time unless otherwise specified.
   The standard working day is seven and a half hours between 8.00am and 7.00pm, Monday to Friday.
   Any additional time worked within these hours will be charged pro-rata.
   This may be subject to alteration by mutual agreement for work carried out on customer premises.
8. Hours worked outside the normal working day are charged at time and a half.
   Work undertaken during week-ends, or public holidays is charged at double time.
   Premium rate charges may be subject to alteration by mutual agreement.
9. Charges will not be made for complete days during the assignment which are not spent directly on the assignment
   such as public and annual holidays, sickness, and temporary absence for any other reason.


10. Fee Rates do not include any premium for employed employee benefits.


2. Payment


1. Invoices are submitted for work undertaken in the previous calendar month. They are accompanied by (and based on) time sheets completed by staff on the assignment, countersigned by the customer's representative. Montego Data Limited reserves the right to submit time sheets which have not been countersigned if the customer withholds authorisation unreasonably.
   Invoices must be paid in full within 30 days of the date of issue.
2. Montego Data Limited may at its discretion charge interest at [2] per cent per annum above [Lloyds Bank]'s base rate on any sum not paid on the due date.
   Such interest shall run from day to day and accrue after as well as before any judgement and shall from time to time be compounded monthly on the amount overdue until payment thereof.
3. If any payment becomes overdue, Montego Data Limited may (without prejudice to its other rights or remedies) suspend work under the contract until payment in full thereof has been made.
4. The Customer shall not be entitled to withhold payment in whole or in part on the ground that it has a claim, counterclaim or set-off against Montego Data Limited.


3. Confidentiality and Ownership


1. Ownership and Intellectual Property Rights of the results of the work undertaken by Montego Data Limited for this assignment shall at all times vest with the customer.
   Information provided by the customer relating to the assignment will be treated as confidential unless specific authorisation to release it is given by the customer or the information comes into the public domain. Montego Data Limited will ensure that its employees and sub-contractors are bound by provisions similar to those contained herein.
   This clause shall survive termination of this assignment for a period of one year.
2. The provisions of clause (3.1) shall not apply to any programming tools or techniques of a general nature acquired or used by Montego Data Limited (Background IPR) in the performance of the contract. Such Background IPR will remain the property of Montego Data Limited, and Montego Data Limited may continue to use the same in any way it thinks fit.
   This shall include (but not be limited to) development using the same software languages, operating systems, development tools, API's, third party libraries and products.
3. The provisions of clause (3.1) shall not apply to any software libraries or components owned by Montego Data Limited that are used in the assignment.
   Ownership and Intellectual property rights for such libraries or components shall remain with Montego Data Limited, and the customer shall receive an unrestricted license to use, modify and distribute these items.


4. Liability


1. Montego Data Limited will undertake the assignment with reasonable care and skill, but shall not under any circumstances in relation to its undertaking the assignment be liable (in contract, tort or otherwise) for any loss or damage of whatsoever nature (including indirect or consequential loss or damage) suffered by the customer whether arising from any act, default or neglect on the part of Montego Data Limited, its employees, agents or sub-contractors or otherwise howsoever, to the extent that the amount of such loss or damage exceeds [£250,000 (two hundred and fifty thousand pounds)] for any one occurrence or series of occurrences arising from the same cause.
2. Montego Data Limited shall not in any event be liable for any indirect or consequential loss.
3. The customer agrees to indemnify Montego Data Limited fully and promptly against all costs, claims, demands, damages and expenses to which Montego Data Limited may become liable or which Montego Data Limited may suffer or incur as a result directly or indirectly of Montego Data Limited's acting in accordance with the customer's instructions, or arising from any act, default or neglect on the part of the customer, its employees, agents or subcontractors.
4. Notwithstanding anything to the contrary, however, nothing in these terms and conditions shall operate to exclude or restrict Montego Data Limited's liability for death or personal injury resulting from negligence within the meaning of the Unfair Contract Terms Act 1977.


5. Transfer of Staff

Except as provided later in this provision, otherwise than by written agreement with each other neither party will, during the term of this Agreement and for a period of [6] months after the termination of this Agreement, intentionally make or seek to make any offer of employment or other contract for services, whether directly or indirectly, to any of the other party's employees or individual contractor suppliers involved in the performance of work under or pursuant to this Agreement or with whom they have become acquainted as a result of this Agreement.
In the event that either party breaches this provision it will be contractually bound to pay the other party the greater of [3] times the person's annual salary inclusive of all benefits at time of their resignation or departure or [3] times the new annual salary or fee inclusive of alt benefits, such being deemed by both parties to this Agreement to be fair compensation for such loss.
This provision shall not apply in respect of any individual who ceased to work for the affected party at least [6] months prior to any approach, nor to any individual who can be proved to have responded to a bona fide published recruitment advertisement where the recruited person is not recruited to work for or with a party's personnel or department involved in this agreement.
In addition, where the party wishing to approach the employee or contractor concerned informs the other party to this Agreement then that other party may either refuse or give such consent, and either waive its right to compensation or seek the full or any alternative amount as compensation for its loss.
Nothing in this clause is intended to prevent the right of any individual to seek employment with whomsoever they wish, but this clause is intended to provide for due compensation where such a situation occurs as a result of entering this Agreement, recognising that loss of experienced personnel can have a serious effect on any employer.

6. Cancellation

If no end date for the assignment has been specified, or if either the customer or Montego Data Limited wishes to terminate an assignment prematurely, the terminating party shall give [4 (four)] weeks written notice to the other.

7. Substitution of Staff

Whilst all reasonable efforts will be made to use the nominated staff on the assignment, Montego Data Limited reserves the right to replace any nominated staff if it becomes necessary or expedient so to do.
If any staff are to be replaced, Montego Data Limited will give to the customer as much advance notice as the circumstances permit.

8. Holidays

Holidays taken by staff during the assignment will be those normally applicable to the assigned staff.
Authorisation for the taking of such holidays will not be unreasonably withheld by the customer.
Additionally, the customer agrees to release Montego Data Limited staff on reasonable notice for up to one day per month, on average, for training and company matters.

9. Termination

The assignment may be terminated by either party by notice in writing to the other having immediate effect if either
the other commits any breach of these Terms together with those in the Contract Letter which breach (if capable of remedy) is not remedied within [14] days of notification, or
the other has a receiver or administrative receiver appointed over it or any part of its undertaking or assets, or passes a resolution for winding up (otherwise than for the purpose of a genuine scheme of solvent reconstruction or amalgamation), or a court of competent jurisdiction makes an order to that effect or if the other party becomes subject to an administration order or enters into voluntary arrangement with its creditors or ceases or threatens to cease to carry on business.
Termination of the assignment shall be without prejudice to the parties' rights accrued prior to termination. Nothing shall prejudice the right of either party to recover any amount outstanding (whether already invoiced or not) at the termination.

10. Exclusions

Except as expressly provided in this Agreement no warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance, merchantability or fitness for purpose of the Sale provided hereunder is given or assumed by Montego Data Limited, and except as expressly provided in this Agreement all such warranties, conditions, undertaking and terms are hereby excluded.

11. Force Majeure

If either party's due performance of the assignment is affected by any accident, event, omission or other matter beyond the party's reasonable control, he shall give prompt notice thereof to the other party and shall be under no liability for any injury, loss, damage or expense (direct or consequential) suffered by the other party due to the affected performance.
Such party shall use reasonable efforts to avoid or overcome the causes affecting performance and shall fulfil outstanding performance when practical so to do.

12. Notices

Notices relating to the contract shall be in writing, and be sent by first-class letter or facsimile or delivered by hand to Montego Data Limited or the customer at their normal working address, or at such other address as each party may from time to time designate.
Proof that an envelope containing a notice was correctly addressed, prepaid and posted, shall be proof that it was sent.

13. Waiver

Should either party fail to enforce any provision of the contract at any time, this shall not affect its right thereafter to require complete performance by the other party.
Waiver of a breach of any provision shall not be taken to be a waiver of any subsequent breach or of the provision itself.
Any waiver will be ineffective unless given in writing.

14. Dispute

Any dispute arising in connection with the contract between the parties shall, after written notice by either party to the other, be referred to a single arbitrator mutually agreed for the purpose, or in default of such agreement, to be appointed at the request of either party by the President of the British Computer Society.

15. Severability

In the event of any clause contained in these Terms and Conditions or in the Contract Letter being declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way impair or affect any other clause all of which shall remain in full force and effect.

16. Whole Agreement

These Terms and Conditions together with those in the Contract Letter shall apply to any contract for the provision by Montego Data Limited to the customer of professional services constitutes the entire contract between Montego Data Limited and the customer and supersedes all previous communications, representations and contracts either written or oral.
In the case of any inconsistency between these Terms and Conditions and those in the Contract Letter, the ones in the Contract Letter shall prevail.
The printed terms and conditions of any purchase order or other correspondence of the Customer in connection with the Contract shall not apply.
The customer acknowledges that it is not entering into the contract in reliance upon any representation not set out in the contract.
No amendment to the contract shall be binding unless in writing, signed by the parties or their duly authorised representatives and expressed to be for the purpose of such amendment.

17. Governing Law

The contract shall be interpreted under English law and each party hereby submits to the non-exclusive jurisdiction of the English Courts.
Headings are for convenience only.