Terms & Conditions
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
Contract: means the agreement incorporating these terms and conditions between Horde and the Customer for the provision of the Services.
Customer: the person, firm or company who purchases Services from Horde.
Documents: all products and materials developed by Horde in relation to the Project in any media, including, without limitation, letters, emails, data, diagrams, reports and forms (including drafts).
Horde: Horde Consultancy Limited a company registered in England and Wales with company number 08378789 whose registered office address is at Unit 20 Zenith Park Network Centre, Whaley Road, Barnsley, S75 1HT.
Initial Advice: means the initial contact between Horde and the Customer upon receipt of an Information Form.
Information Form: means the form the Customer completes to place an Order for a Project.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Project: the project as described in the Project Plan.
Project Milestone: a date by which all or part of the Project is estimated to be completed, as set out in the Project Plan.
Project Plan: the detailed plan describing the Project and setting out the estimated costs, timetable (including without limitation Project Milestones) and responsibilities for the provision of the Services by Horde in accordance with the Contract.
Services: the services to be provided by Horde under the Contract, including (without limitation) the Initial Advice.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Contract.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to writing or written includes faxes and e-mail.
1.9 References to clauses and Schedules are to the clauses and Schedules of this Contract and references to paragraphs are to paragraphs of the relevant Schedule.
2. APPLICATION OF CONDITIONS
2.1 These terms and conditions apply to all dealings in respect of the Services between Horde and any Customer who submits an Information Form in accordance with these terms and conditions.
2.2 These conditions shall:
(a) apply to and be incorporated in the Contract; and
(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.3 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Horde unless in writing and signed by a duly authorised representative of Horde.
2.4 Horde reserves the right to amend these terms from time to time by updating the terms and conditions page on the Horde website. Every time the Customer places an order for Services, the Contract shall be governed by the terms in force at the time the Information Form is submitted.
3. EFFECT OF ACCEPTANCE
By electronically accepting these terms and submitting a completed Information Form, the Customer agrees to be bound by these terms and conditions in relation to the Services. Horde reserves the right to reject any application for Services by the Customer within seven days of receipt.
4. HORDE‘S OBLIGATIONS
4.1 Within a reasonable time of receipt of an Information Form, Horde will contact the Customer to provide the Initial Advice and obtain sufficient information to enable Horde to provide the Customer with a written Project Plan.
4.2 Upon receiving written confirmation of the Customer’s acceptance of the Project Plan, Horde shall use reasonable endeavours to manage and complete the Project, and to deliver the Documents to the Customer, in accordance in all material respects with the Project Plan.
4.3 Horde shall use reasonable endeavours to meet the performance dates specified in the Project Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
5. CUSTOMER‘S OBLIGATIONS
5.1 If the Customer wishes to engage Horde to provide the Services outlined in the Project Plan, the Customer shall notify Horde in writing of its acceptance of the Project Plan upon these terms and conditions within 30 days of receipt of the Project Plan.
5.2 The Customer shall:
(a) co-operate with Horde in all matters relating to the Project; and
(b) provide in a timely manner such information as Horde may request, and ensure that such information is accurate in all material respects.
5.3 If Horde’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall in all circumstances be liable to pay to Horde on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to Horde confirming such costs, charges and losses to the Customer in writing.
5.4 The Customer shall not, without the prior written consent of Horde, at any time from the date of the Contract to the expiry of six months after the completion of the Services, solicit or entice away from Horde or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of Horde.
5.5 Any consent given by Horde in accordance with condition 5.4 shall be subject to the Customer paying to Horde a sum equivalent to 20% of the then current annual remuneration of Horde’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or sub-contractor.
6. CHANGE CONTROL
6.1 If either party requests a change to the scope or execution of the Services, Horde 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 Horde’s charges arising from the change; and (c) any other impact of the change on the terms of the Contract.
6.2 If Horde requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
6.3 If the Customer wishes Horde to proceed with the change, Horde has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of the Contract to take account of the change.
7. CHARGES AND PAYMENT
7.1 Upon submission of an Information Form, the Customer shall be liable to pay the fee for the Initial Advice in addition to the fees incurred for each Project. The fees for the Initial Advice shall be billed monthly in arrears.
7.2 Clause 7.3 shall apply if the Services are to be provided on a time-and-materials basis. Conditions 7.4 and 7.7 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 7 shall apply in either case.
7.3 Where the Services are provided on a time-and-materials basis:
(a) the charges payable for the Services shall be calculated in accordance with Horde’s standard daily fee rates as amended from time to time;
(b) Horde’s standard daily fee rates are calculated on the basis of an eight-hour day worked between 8.00 am and 5.00 pm on weekdays (excluding weekends and public holidays);
(c) Horde shall be entitled to charge at an overtime rate of 150% of the normal rate for part days and for time worked by members of the project team outside the hours referred to in condition 7.3(b) on a pro-rata basis; and
(d) Horde shall ensure that all members of the project team complete time sheets recording time spent on the Project, and Horde shall use such time sheets to calculate the charges covered by each monthly invoice.
7.4 Where the Services are provided for a fixed price the total price for the Services shall, subject to clause 7.7 be the amount set out in the Project Plan. The price shall be paid to Horde calculated and payable monthly in arrears or, if sooner, at the end of any Project Milestone.
7.5 All amounts due under this Contract shall be paid by the Customer to Horde in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.6 On achieving a Project Milestone or at months end, Horde shall invoice the Customer for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in condition 7.7.
7.7 Any price contained in the Project Plan excludes:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by Horde (or its employees agents or sub-contractors) in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by Horde for the supply of the Services. Such expenses, materials and third party services shall be invoiced by Horde at cost; and
(b) VAT, which Horde shall add to its invoices at the appropriate rate.
7.8 The Customer shall pay each invoice submitted to it by Horde in full, and in cleared funds, within 7 days of receipt.
7.9 Without prejudice to any other right or remedy that Horde may have, if the Customer fails to pay Horde on the due date Horde may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and
(b) suspend all Services until payment has been made in full.
7.10 Time for payment shall be of the essence of the Contract.
7.11 All payments payable to Horde under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
7.12 Horde may, without prejudice to any other rights it may have, set off any liability of the Customer to Horde against any liability of Horde to the Customer.
8. INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights and all other rights in the Documents shall be owned by Horde. Horde hereby licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Documents and the Services as is envisaged by the parties for the Project. If Horde terminates the Contract under condition 13.1, this licence will automatically terminate.
9.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients, employees or Hordes of the other party, except as permitted by clause 9.2.
9.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Contract. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this 9; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.
9.4 This condition 9 shall survive termination of the Contract, however arising.
10. HORDE’S WARRANTY
10.1 Horde warrants that:
(a) the Services will be performed with reasonable care and skill; and (b) the provision of the Services will not infringe any third party rights.
10.2 Horde does not warrant that:
(a) save in respect of any issue expressly raised by the Customer in the Information Form, the Services will meet the Customer’s individual requirements or any other third party and the Customer acknowledges that it is the responsibility of the Customer to ensure that the Services meet its requirements; nor that
(b) any information provided will be accurate or complete or in accordance with current employment law and the Customer acknowledges that it is the responsibility of the Customer to seek legal advice from a suitably qualified solicitor in respect of any legal matters.
11. CUSTOMER’S WARRANTY
11.1 The Customer warrants that:
(a) The information supplied by the Customer when completing and submitting the Information Form is true, accurate and complete in all respects and that it will notify the Company in writing of any changes in such information; and (b) That the Customer:
(i) will not allow any third party to use any Documents; and
(ii) is authorised to receive the Services on the terms set out in the Contract; and
(iii) in its use of the Services will comply with all applicable laws, regulations and codes of practice;
(iv) will keep confidential and secure all user names and passwords used in relation to the Services and accepts that use of a user name and password allocated to a Customer shall constitute sufficient authority to Horde to perform the Services and be entitled to payment for so doing; and
(v) will obtain and maintain suitable equipment including hardware, software and communications links necessary to allow the Customer to access the Services and receive electronic communications from the Company.
11.2 The terms set out in this Contract are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are excluded to the fullest extent possible.
12. LIMITATION OF LIABILITY
12.1 The following provisions set out the entire financial liability of Horde (including without limitation any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:
(a) any breach of the Contract howsoever arising;
(b) any use made by the Customer of the Services, the Documents or any part of them; and
(c) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Contract.
12.2 Nothing in these conditions excludes the liability of Horde: (a) for death or personal injury caused by Horde’s negligence; or (b) for fraud or fraudulent misrepresentation.
12.3 Subject to condition 12.1 and condition 12.2:
(a) Horde shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill 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 or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) Horde’s total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), 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.
13.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
(a) the other party fails to pay any amount due under this Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 13.1(d) to condition 13.1(j) (inclusive);
13.2 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.
14. FORCE MAJEURE
Horde shall not in any circumstances have any 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, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Horde 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 Hordes or subcontractors.
No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16. RIGHTS AND REMEDIES
The rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
17.1 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.
17.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18. ENTIRE CONTRACT
18.1 This Contract constitutes the entire Contract between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract.
18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
19.1 The Customer shall not, without the prior written consent of Horde, 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 Horde 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.
20. 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 without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. THIRD PARTY RIGHTS
No one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
22.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
(b) sent by fax to its main fax number.
22.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting [or at the time recorded by the delivery service.
(c) if sent by fax, at 9.00 am on the next Business Day after transmission.
22.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail.
23. GOVERNING LAW
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).