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1.1          The following definitions and rules of interpretation apply in these terms and conditions.

Order of Magnitude: Order of Magnitude is a trading name of Afinite Limited (a company registered in England and Wales under number 04581730) whose registered office is at Round Foundry Media Centre, Foundry Street, Leeds LS11 5QP.

Afinite: Afinite Limited (a company registered in England and Wales under number 04581730) whose registered office is at Round Foundry Media Centre, Foundry Street, Leeds LS11 5QP.

Afinite’s Project Manager: Afinite’s manager for the Project, appointed in accordance with condition 4.3.

Contract: the Customer’s purchase order and Afinite’s acceptance of it under condition 3.

Customer: the person, firm or company who purchases Services from Afinite.

Customer’s Project Manager: the Customer’s manager for the Project appointed in accordance with condition 5.1.1.

Deliverables:all products and materials developed by Afinite in relation to the Project in any media, including, without limitation, computer programs, data, diagrams, reports and specifications (including drafts).

Goods: any equipment or consumables agreed in the Contract to be supplied to the Customer by Afinite (including any part or parts of them).

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 know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including 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.

Pre-existing Materials: materials that existed before the commencement of the Project, including third party software.

Project: the project as described in the Quotation.

Project Milestone: a date by which a part of the Project is estimated to be completed, as set out in the Quotation.

Quotation: the detailed quotation describing the Project and setting out the estimated timetable (including Project Milestones) and responsibilities for the provision of the Goods and Services by Afinite in accordance with the Contract.

Services: the services to be provided by Afinite under the Contract.

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

1.2          Headings do not affect the interpretation of these conditions.

2. Application of conditions

2.1          These conditions shall:

2.1.1      apply to and be incorporated in the Contract; and

2.1.2      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.

2.2          Any variation of the Contract shall be in writing and signed by or on behalf of the parties.

2.3          Any quotation is valid for a period of 30 days only from its date, provided that Afinite has not previously withdrawn it.

3. Effect of purchase order

3.1          Each order or acceptance of a Quotation by the Customer shall be deemed to be an offer by the Customer to purchase the Goods and Services specified in the Quotation.

3.2          The acceptance of the offer, or Afinite’s commencement or execution of work in accordance with the Quotation, shall establish a contract for the supply and purchase of those Goods and Services on these conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.

4. Afinite’s obligations

4.1          Afinite shall use reasonable endeavours to manage and complete the Project, and to deliver the Goods and Deliverables to the Customer, in accordance in all material respects with the Quotation.

4.2          Afinite shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to it in respect of Goods,

4.3          Afinite shall use reasonable endeavours to meet the performance dates specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence of the Contract.

4.4          Afinite shall appoint Afinite’s Project Manager who shall have authority to contractually bind Afinite on all matters relating to the Project. Afinite shall use reasonable endeavours to ensure that the same person acts as Afinite’s Project Manager throughout the Project, but may replace him from time to time where reasonably necessary in the interests of Afinite’s business.

5. Customer’s obligations

5.1          The Customer shall:

5.1.1      co-operate with Afinite in all matters relating to the Project and appoint the Customer’s Project Manager, who shall have the authority to contractually bind the Customer on matters relating to the Project;

5.1.2      provide in a timely manner such access to the Customer’s premises and data, and such office accommodation and other facilities, as is requested by Afinite;

5.1.3      provide in a timely manner such information as Afinite may request, and ensure that such information is accurate in all material respects; and

5.1.4      be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.

5.2          If Afinite’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 be liable to pay to Afinite 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 Afinite confirming such costs, charges and losses to the Customer in writing.

5.3          If the Customer becomes liable to pay any sum to Afinite in accordance with clause 5.2 in relation to any Goods, then risk in those Goods shall also pass to the Customer upon the date the liability arises. In any event, Goods are at the risk of the Customer from the time of delivery, but ownership in the Goods shall not pass to the Customer until Afinite has received in full (in cash or cleared funds) all sums due to it in respect of all sums which are or which become due to Afinite from the Customer on any account. Until ownership in the Goods has passed to the Customer, it shall hold them on a fiduciary basis as Afinite’s bailee and maintain them in satisfactory condition. The Buyer’s right to possession of the Goods shall terminate immediately if the Contract is terminated in accordance with clause 11. The Customer grants Afinite, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.

5.4          The Customer shall not, without the prior written consent of Afinite, 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 Afinite or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of Afinite.

5.5          Any consent given by Afinite in accordance with condition 5.3 shall be subject to the Customer paying to Afinite a sum equivalent to 20% of the then current annual remuneration of Afinite’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          The Customer’s Project Manager and Afinite’s Project Manager shall meet following the reasonable request of either party to discuss matters relating to the Project. If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.

6.2          If either party requests a change to the Goods or scope or execution of the Services, Afinite shall, within a reasonable time, provide a written estimate to the Customer of:

6.2.1      the likely time required to implement the change;

6.2.2      any variations to Afinite’s charges arising from the change;

6.2.3      the likely effect of the change on the Quotation; and

6.2.4      any other impact of the change on the terms of the Contract.

6.3          If Afinite requests a change, the Customer shall not unreasonably withhold or delay consent to it.

6.4          If the Customer wishes Afinite to proceed with the change, Afinite has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Quotation and any other relevant terms of the Contract to take account of the change.

7. Charges and payment

7.1          Condition 7.2 shall apply if the Services are to be provided on a time-and-materials basis. Condition 7.3 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 7 shall apply in either case.

7.2          Where the Services are provided on a time-and-materials basis:

7.2.1      the charges payable for the Services shall be calculated in accordance with Afinite’s standard daily fee rates as amended from time to time;

7.2.2      Afinite’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);

7.2.3      Afinite 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 7.2.2 on a pro-rata basis;

7.2.4      Afinite shall ensure that all members of the project team complete time sheets recording time spent on the Project, and Afinite shall use such time sheets to calculate the charges covered by each monthly invoice referred to in condition 7.2.5; and

7.2.5      Afinite shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition 7. [Each invoice shall set out the time spent by each member of the project team and provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.]

7.3          Where the Services are provided for a fixed price the total price for the Services shall be the amount set out in the Quotation. The total price shall be paid to Afinite (without deduction or set-off) in instalments as set out in the Quotation on its achieving the corresponding Project Milestone. On achieving a Project Milestone, Afinite 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 7.4.

7.4          The total price for the Goods shall be the amount set out in the Quotation, and the price for Goods shall be paid to Afinite (without deduction or set off) on the date set out in the Quotation (or if no date is set out, then before or upon delivery of the Goods).

7.5          Any fixed price contained in the Quotation excludes:

7.5.1      the cost of travelling and any other ancillary expenses reasonably incurred by the project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by Afinite for the supply of the Services. Such expenses, materials and third party services shall be invoiced by Afinite [at cost]; and

7.5.2      VAT, which Afinite shall add to its invoices at the appropriate rate.

7.6          The Customer shall pay each invoice submitted to it by Afinite in full, and in cleared funds, within 30 days of receipt.

7.7          Without prejudice to any other right or remedy that Afinite may have, if the Customer fails to pay Afinite on the due date Afinite may:

7.7.1      charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Yorkshire Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. Afinite may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and

7.7.2      suspend all Services until payment has been made in full.

7.8          Time for payment shall be of the essence of the Contract.

7.9          All payments payable to Afinite 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.

7.10       Afinite may, without prejudice to any other rights it may have, set off any liability of the Customer to Afinite against any liability of Afinite to the Customer.

8. Intellectual Property Rights

8.1          All Intellectual Property Rights and all other rights in the Deliverables shall be owned by Afinite. Afinite 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 Deliverables and the Services as is envisaged by the parties. If Afinite terminates the Contract under condition 11.1, this licence will automatically terminate.

8.2          The Customer acknowledges that the Customer’s use of rights in Pre-existing Materials is conditional on Afinite obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle Afinite to license such rights to the Customer.

9. Confidentiality and Afinite’s property

9.1          The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by Afinite or its agents, and any other confidential information concerning Afinite’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Customer’s obligations to Afinite, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

9.2          All materials, drawings, specifications and data supplied by Afinite to the Customer shall at all times be and remain the exclusive property of Afinite, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Afinite, and shall not be disposed of or used other than in accordance with Afinite’s written instructions or authorisation.

10. Limitation of liability

10.1       The following provisions set out the entire financial liability of Afinite (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

10.1.1   any breach of the Contract;

10.1.2   any use made by the Customer of the Goods, the Services, the Deliverables or any part of them; and

10.1.3   any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

10.2       All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

10.3       Nothing in these conditions excludes the liability of Afinite:

10.3.1   for death or personal injury caused by Afinite’s negligence; or

10.3.2   for fraud or fraudulent misrepresentation.

10.4       Subject to condition 10.2 and condition 10.3:

10.4.1   Afinite shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for: loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

10.4.2   Afinite’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with:  the performance or contemplated performance of the delivery of the Services shall be limited to the price paid for the Services; and  the supply of the Goods shall be limited to the price paid for the Goods.

11. Termination

11.1 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:

11.1.1 the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

11.1.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or

11.1.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

11.1.4 a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or

11.1.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or

11.1.6 the other party ceases, or threatens to cease, to trade; or

11.1.7 there is a change of control of the other party; or

11.1.8 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

11.2 Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination. To avoid doubt, clauses 5.3, 5.4, 5.5 and 9 shall survive termination:

12. Force majeure

Afinite shall have no 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 Afinite 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 suppliers or sub-contractors.

13. General

13.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

13.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

13.3 If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

13.4 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

13.5 Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in the Contract.

13.6 The Customer shall not, without the prior written consent of Afinite, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

13.7 Afinite 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.

13.8 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 but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

13.9 The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.

14. Notices

Any notice under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address as set out in the Contract, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in the Contract. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

15. Governing law and jurisdiction

15.1 The Contract and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law ofEngland.

15.2 The parties irrevocably agree that the courts ofEnglandhave exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract.

16. Refund / cancellation

16.1 Once an order is placed and Afinite have ordered the relevant equipment / parts, this part of the order is binding and can only be refunded less a restocking fee of 25%. Any labour not carried out will not be charged and would therefore be credited / refunded as appropriate.

17. Delivery

17.1 Afinite use 3rd party couriers alongside the Royal Mail, or our own engineers to deliver equipment to site. In either case, Afinite do not provide a regular delivery service and will notify the customer of expected delivery dates for equipment as far as we are reasonably able.

18. Returns

18.1 As per our refund policy, once an order is placed, Afinite have ordered equipment / parts specifically for your order, we will accept returns up to 14 days after supplying the equipment subject to a restocking fee of 25% for the equipment only. Any labour is not refundable if already performed. Any items returned must be in unopened, boxed, as new condition to be accepted for return.

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