FIRST DIGITAL SOLUTIONS LIMITED – Terms and Conditions of Commercial Engagement
The following terms shall have the meanings set out below
in these Terms or a Statement of Works (SoW).
FDS: First Digital Solutions Ltd. A Company Registered
in England No: 08902404
The change control process set out in Clause 6.
Fees, Extra Fees:
Fees specified in a SoW and including Extra Fees where appropriate.
Expenses: Expenses incurred in the cource of work carried out in
the SoW including travel, communications and third party costs.
Itellectual Property Rights :
All copyrights (including copyright in computer software),
source code, database rights, rights in inventions, patents,
trademarks, trade names, service marks, design rights
(whether registered or unregistered), trade secrets, rights in
confidential information and all other industrial or intellectual
property rights of whatever nature excluding patent
applications and know-how; Customer Materials any text,
graphics or picture files, audio-visual content, data or other
material provided by the Customer.
Any text, graphics or picture files, audio-visual content, data,
source code or other material sourced or created by FDS.
Documentation and Printed Materials:
Any electronic documentation or printed material supplied by
FDS including Proposal Documentation, Responses to client
requests, Proofs, etc.
Services provided by FDS in accordance with these
Terms, SoW or SLA.
Statement of Work (SoW):
A document, including budget cost, timetable & details of the
work to be undertaken.
A Service Level Agreement describing any Maintenance & Support
services provided by FDS.
Terms: these terms;
Any Website developed by FDS in accordance with these terms
and/or a SoW.
2. Agreeing a Statement of Works (SoW)
6. Change Control
9.1 Where Customer & FDS has entered into a SLA, FDS
agreesto provide on-going services.
9.2 Unless otherwise specified the SLA will run for a period of
9.3 Fees due in accordance with the SLA shall be invoiced
and paid for in full prior to the commencement of the SLA.
9.4 Termination of SLA
9.4.1The SLA may be terminated by either party giving three months
notice in writing.
9.5 Refund of payments for SLA in the event of Termination:
9.5.1 Where FDS terminates – FDS will refund fees that havepaid
pro rata from the expiry date of the SLA to the expiry of the notice period.
9.5.2 Where Customer terminates – no refund of fees will be due.
10 Data Protection
10.1 The parties undertake to comply with the provisions of
the Data Protection Act 1998 and any related legislation in
so far as the same relates to a SoW.
10.2 Where FDS collates Personal Data as part of a
Service FDS warrants that any Personal Data collated
shall comply with the eight Data Protection principles and
that all necessary consents have been obtained from
individuals, and FDS shall indemnify the Customer from
and against all costs, claims, liabilities and demands
arising out of any breach.
10.3 The Customer warrants that any Personal Data
provided to FDS for inclusion in the Website or Printed
Materials shall comply with the eight Data Protection
principles and that all necessary consents have been
obtained from individuals, and the Customer shall
indemnify FDS from and against all costs, claims,
liabilities and demands arising out of any breach.
11.1 Where appropriate to the SoW, FDS
warrants, that ;
11.1.2 It has the right to provide Services;
11.1.3 Services will be carried out using reasonable care
and skill and in accordance with good industry practice;
11.1.4 All staff (employees, sub-contractors, consultants)
engaged in the provision of the Services shall be suitably
qualified and/or experienced.
11.2 FDS hereby excludes any implied condition or
warranty concerning the quality or fitness for purpose of
the Services whether such condition or warranty is
implied by statute or common law.
11.3 The Customer warrants that it is the owner of any
Customer Material used in providing the services, or that it
has valid permission to use the material and the Customer
shall fully indemnify FDS in respect of any claims
howsoever arising in respect of the Customer Material.
12 Limitation of Liability
12.1 Nothing in these terms shall operate to exclude or
limit either party’s liability for death or personal injury
caused by its negligence, any breach of the terms implied
by section 12 of the Sale of Goods Act 1979, or section 2 of
the Supply of Goods and services Act 1982,fraud; or, any
other liability which cannot be excluded or limited under
12.2 Neither party shall be liable to the other for any loss
which shall include (but is not limited to) direct, indirect or
consequential loss (all three of which terms include,
without limitation, pure economic loss, loss of profits, loss
of business, loss of revenue) costs, damages, charges or
12.3 Subject to clause 11.1 FDS’s liability in respect of
claims arising out of a SoW (or a series of
related SoWs) shall be limited to the value of
the Fees paid by the Customer at the time that the claim(s)
13.1 Neither party shall, without the authority of the other,
disclose to any third party any confidential information
concerning the products, customers, business, accounts,
finance or contractual arrangements or other dealings,
transactions or affairs of the other which may come to that
party’s knowledge in the course of performing its duties.
14 Termination of SoW
14.1 Unless otherwise agreed, the SoW is valid for 30 days.
14.2 A SoW can be terminated by either party
giving to the other not less than 14 days notice in writing.
Where the Customer terminates, Fees will remain due to
FDS in accordance with clause 5.6 to 5.8 inclusive.
14.3 Either party shall have the right by giving written
notice to the other to terminate ongoing SoWs
immediately if that other party;
14.3.1 Commits any material breach of its duties and fails
to remedy that breach within 30 days of written notice of
that breach, the 30 day period only applies where a breach
is capable of remedy – if it is incapable of remedy. Service
Request may be terminated by written notice straight
14.3.2 Has a winding up petition presented or enters into
liquidation whether compulsorily or voluntarily (otherwise
that for the purposes of amalgamation or reconstruction
without insolvency) or makes an arrangement with its
creditors or petitions for an administration order or has a
receiver or manager appointed over any of its assets or
generally becomes unable to pay its debts within the
meaning of Section 123 of the Insolvency Act 1986.
15. Effect of termination
15.1 On termination of SoWs howsoever
15.1.1 FDS shall return all copies of Customer
Materials provided by the Customer in the provision of
15.1.2 Any rights of either party which arose on or before
termination shall be unaffected.
15.2 The Customer shall not, without the prior written
consent of FDS, actively initiate recruitment of any of
FDS staff who have been actively engaged in the
provision of Services during the life of, or for a period of 6
months from expiry or termination of the SoW.
15.3 If the Customer breaches Clause 14.2, it shall pay
FDS a sum equivalent to half of the individual’s gross
annual salary in recognition of the value of that staff
member to FDS and the inconvenience which would be
caused. The parties agree that this sum is a genuine preestimate
of the loss likely to be suffered by FDS in these
16 Dispute Resolution
16.1 The parties shall attempt to resolve any dispute
arising out of or relating to these Terms through
16.2 If the matter is not resolved at this meeting, the
matter will be referred to the next level of the parties’
management with authority to settle the same, who will
meet within 14 days to attempt to resolve the matter. If the
unresolved matter is having a serious effect on the
Service, Support of a SLA or other elements of the completion of a
SoW, the parties will use best endeavours to
reduce the elapsed time in completing the process.
16.3 If the matter is not resolved through negotiation,
(and further negotiation is not possible under 15.2 due to
lack of management roles) the parties will attempt to
resolve the dispute in good faith through mediation using a
mediator recommended by CEDR- the Centre for Dispute
16.4 If the matter has not been resolved by an ADR
procedure within 30 days of the initiation of that
procedure, or if either party will not participate in an ADR
procedure, the dispute shall be decided by the High Court
of England and Wales and the parties submit to its
exclusive jurisdiction for that purpose.
16.5 These Terms shall be governed by the laws of England
17 General Provisions
17.1 These Terms and each SoW supersedes
any prior agreements, arrangements and undertakings
between the parties in relation to its subject matter and
constitutes the entire agreement between the parties
relating to that subject matter.
17.2 The Customer agrees that it will have no remedy in
respect of any untrue statement made to it upon which it
relied in entering into these Terms or a SoW
and that its only remedies can be for breach contract
(unless the statement was made fraudulently).
17.3 Neither party shall be liable for any delay or failure to
perform its duties caused by any circumstances beyond
its reasonable control.
17.4 The Customer agrees that FDS may acknowledge
this agreement and SoWs in publicity material
and tenders. The Customer hereby grants to FDS a nonexclusive
and perpetual licence to place a link to the
Customer Website developed by FDS from FDS’s
own promotional Website.
17.5 If any part of these Terms is held unlawful or
unenforceable that part shall be struck out and the
remainder of this framework agreement shall remain in
17.6 No delay, neglect or forbearance by either party in
enforcing its rights under this framework agreement shall
be a waiver of or prejudice those rights.
17.7 The Customer may not assign or otherwise transfer
these Terms or any of its rights and duties hereunder
whether in whole or in part.
17.8 FDS may sub-contract the performance of any of
its duties under these Terms and may assign or otherwise
transfer these Terms.
17.9 All notices shall be in writing and shall be sent to the
address of the recipient set out at the top of these Terms or
to such other address as the recipient may have notified
from time to time. Any notice may be delivered personally
or by first-class post, fax or email and shall be deemed to
have been served if by hand when delivered, if by first
class post 48 hours after posting and if by fax or email
when confirmation of transmission is received.
17.10 The parties agree that any person who is not a party
to these Terms shall have no right to enforce any term
against either of the parties under the Contracts (Rights of
Third Parties) Act 1999.