Terms and Conditions
1.0 Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Applicable Laws”
means all laws, statutes, regulations, and similar instruments from time to time in force applicable to the Parties, the Services, and to the Contract;
“Business Day”
means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England;
“Business Hours”
means 8:30am to 5:00pm on a Business Day;
“Client”
means the party procuring the Services from the Service Provider under the Contract;
“Commencement Date”
means the date on which the Contract shall enter into effect, as set out in Clause 2 (Basis of Contract);
“Contract”
means the contract entered into by the Service Provider and the Client for the provision of Services in accordance with and on the basis of these Terms and Conditions;
“Deliverables”
means the deliverables set out by the Quotation or Specification produced by the supplier for the Customer.
“Fees”
means any and all sums due under the Contract from the Client to the Service Provider in consideration of the Services, as set out in Clause 5 (Fees, Payment, and Records);
“Intellectual Property Rights”
means patents, rights to inventions, copyright and related rights, trademarks, business names, domain names, rights in get-up and trade dress, goodwill and the right to passing off actions, design rights, database rights, rights to use confidential information and the right to protect the same, and any and all other intellectual property rights, whether registered or unregistered, including applications and the right to apply for (and be granted) renewals or extensions of, and rights to claim priority from, any such rights and any and all equivalent rights or other forms of protection subsisting now or in the future anywhere in the world;
“Order”
means the Client’s order for the Services as set out in the Client’s written acceptance of the Service Provider’s quotation;
“Services”
means the services to be provided by the Service Provider to the Client in accordance with the Contract, as fully defined in the Quotation or Specification;
“Specification”
means the full description and specification of the Services
1.2 A reference to “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time.
1.3 A reference to “the Contract” is a reference to the contract between the Parties as defined above in sub-Clause 1.1 and further set out below in Clause 2 (Basis of Contract).
1.4 A reference to a "Party" or the "Parties" refer to the parties to the Contract.
1.5 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of the Contract.
1.6 References to persons shall include natural persons, corporate, or unincorporated bodies (whether or not the same have a separate legal personality).
1.7 References to a company shall include companies, corporations, or other bodies corporate, however so and wherever incorporated or established.
2. Basis of Contract
2.1 An Order shall constitute a contractual offer by the Client to procure Services from the Service Provider in accordance with and on the basis of these Terms and Conditions.
2.2 An Order shall be deemed to be accepted by the Service Provider upon the Service Provider’s issuing its acceptance of that Order in writing.
2.3 Upon the Service Provider’s issuing of written acceptance under sub-Clause 2.2, a Contract shall come into existence between the Client and the Service Provider. The date of the Service Provider’s written acceptance shall be the Commencement Date of the Contract.
2.4 No advertising, promotional literature, descriptive matter, drawings, samples, catalogues, brochures, or similar material issued or published by the Service Provider in any format or medium shall form part of the Contract or have any contractual force. Such material is provided by the Service Provider only for promotional purposes and for providing an approximate description of the services available from the Service Provider.
2.5 Quotations issued by the Service Provider shall not constitute a contractual offer capable of acceptance. Quotations are valid for a period of 20 Business Days only from the date of issue.
3. Provision of the Services
3.1 The Service Provider shall ensure that the Services conform at all times with the Quotation and/or Specification in all material respects.
3.2 The Service Provider shall provide the Services with reasonable skill and care.
3.3 The Service Provider shall ensure that any and all of its personnel involved in the provision of the Services are suitably skilled, qualified, and experienced to perform the part(s) of the Services to which they are assigned.
3.4 The Service Provider shall use reasonable endeavours to meet any performance dates set out in the Order. Such dates shall be estimates only, however, and time shall not be of the essence in the provision of the Services.
4. Client’s Obligations
4.1 The Client shall ensure that all information that it provides in the Order and the Specification shall be complete and accurate.
4.2 The Client shall provide:
a) all co-operation that is reasonably required by the Service Provider to enable the Service Provider to provide the Services;
b) any and all Client Materials that are agreed upon by the Parties together with any necessary written authorisation and instructions relating to the Client Materials, to enable the Service Provider to provide the Services;
c) where required, access to and availability and use of the Client’s premises and any other facilities that is or are agreed upon by the Parties to enable the Service Provider to provide the Services and shall inform the Service Provider of any applicable health and safety rules and regulations and security requirements.
4.3 The Client may from time to time issue reasonable instructions to the Service Provider in relation to the Service Provider’s provision of the Services. Any such instructions shall be compatible with the Specification.
4.4 In the event that the Service Provider requires the decision, approval, consent, authorisation, or any other communication from the Client in order to continue with the provision of the Services (or any part thereof) at any time, the Client shall provide the same in a reasonable and timely manner.
4.5 Any failure or delay in the provision of the Services by the Service Provider which results from the Client’s failure or delay in complying with any of its obligations under the Contract or any other act or omission of the Client shall not be the responsibility or fault of the Service Provider.
5. Fees and Payment
5.1 The Fees shall be set out in the Order subject to any re-measurement of fees that the Service Provider shall be entitled to reasonably apply having regards to the Services actually provided by it.
5.2 Unless the Parties agree otherwise in writing, the Fees shall include all costs and expenses incurred by the Service Provider, whether directly or indirectly, in connection with the provision of the Services.
5.3 The Service Provider shall have the right to charge the Client for any reasonable expenses incurred by the personnel that it engages in the provision of the Services including, but not limited to, travel expenses, accommodation expenses, subsistence, and any other associated expenses, and for the cost of any services procured from third parties by the Service Provider necessary for the performance of the Services, and for the cost of any materials required.
5.4 The Service Provider shall invoice the Client upon the completion of the Services or, where appropriate, with interim invoices as works progress.
5.5 All payments required to be made pursuant to the Contract in consideration of the Services shall be made within 14 Days of receipt of the relevant invoice by the Client.
5.6 Where any payment is required to be made on a day that is not a Business Day, it may be made on the next following Business Day.
5.7 Any sums which remain unpaid by the due date for payment under the Contract shall incur interest on a daily basis at a rate of 4% per annum above the base rate of the Bank of England from time to time, accruing on a daily basis from the due date for payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.8 If the Client fails to make full payment due to the Service Provider under the Contract by the due date for payment, the Service Provider reserves the right to suspend the Supply of Services.
5.9 If the Client fails to make full payment due to the Service Provider under the contract by the due date for the payment, the Service Provider retains full Intellectual Property Rights of any Deliverables until payment is made in full.
5.10 The Client shall pay all amounts due under the Contract in full without any deduction or withholding and the Client shall not be entitled to assert any credit or counterclaim against the Service Provider in order to justify withholding payment of any such amount in whole or in part. The Service Provider may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Service Provider to the Client. There shall be no main contractor discount or deduction.
5.11 Any Quotation and/or Order are on the basis of there being no reduction made on a retention basis.
6. Intellectual Property Rights
6.1 The Client (and, where applicable, its licensors) shall retain ownership of the Intellectual Property Rights subsisting in any and all Client Materials.
6.2 In respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on the Service Provider obtaining a written licence from the relevant licensor on such terms as will entitle the Service Provider to license such rights to the Client.
7. Confidentiality
7.1 A Receiving Party shall keep in strict confidence all technical or commercial know-how, specifications, inventions or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the Disclosing Party. The Receiving Party shall restrict disclosure of such information to its employees, agents or subcontractors as need to know for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
8. Liability
8.1 Nothing in the Contract shall limit or exclude either Party’s liability under or in relation to the Contract for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, for the wilful misconduct of either Party or that of its employees or agents, for 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 (relating to title and quiet possession), or any other form of liability which cannot be limited or excluded by law.
8.2 Nothing in this Clause 8 shall exclude or limit either Party’s payment obligations under the Contract.
8.3 Subject to clause 8.1 and without affecting clause 8.5:
a) the Service Provider shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any loss arising under or in connection with the Contract; and
b) the Service Provider’s to the Client in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Service Provider, its employees, agents or subcontractors shall not exceed an amount being ten times the total Charges actually paid by the Client under the Contract, subject to a minimum of £250,000 in the aggregate.
8.4. Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.5. Subject to the overall limit in clause 8.3, the Service Provider’s liability to the Client under the Contract shall be further limited to the proportion of the Client’s loss and damage that it would be just and equitable to require the Service Provider to pay, having regard to the extent of the Service Provider’s responsibility for that loss and damage, on the assumptions that all other consultants, contractors, sub-contractors, project managers or advisers engaged in connection with the project to which the Services relate have:
a) entered into an agreement with the Client containing a term no less onerous than clause 3;
b) no exclusions of or limitations of liability nor joint insurance or coinsurance in place between them and the Client and any other party who is responsible to any extent for the loss and damage is contractually liable to the Client for such loss and damage; and
c) paid to the Client the proportion of the Client’s loss and damage that it would be just and equitable to require them to pay, having regard to the extent responsibility for that loss.
8.6 This clause 8 shall survive termination of the Contract.
9. Force Majeure
9.1 For the purposes of the Contract, “Force Majeure Event” means any circumstances beyond reasonable control including, but not limited to, strikes, lockout, or other form of industrial action; shortage of components or raw materials; lack of, interruption to, or failure of any utility service, or lack of available facilities; non-performance by suppliers or sub-contractors; collapse of buildings, fire, explosion, accident, acts of God, storm, flood, drought, earthquake, epidemic, pandemic, or other natural disaster; terrorist attack, civil commotion or riots, war, civil war, threat of preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off diplomatic relations; nuclear, chemical, or biological contamination, or sonic boom; [or] any law or action taken by a government or public authority including, but not limited to, imposing an export or import restriction, quota, or prohibition, or failing to grant a necessary licence or consent, or any similar or dissimilar circumstances.
9.2 If any Force Majeure Event occurs which affects or may affect the performance of obligations under the Contract, the affected Party shall notify the other Party as soon as reasonably possible and practicable of the nature and extent of the circumstances in question. The affected Party shall use reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
9.3 Subject to compliance with sub-Clause 9.2, neither Party shall be deemed to be in breach of the Contract or shall otherwise be liable to the other by reason of any delay in performance or non-performance of any of its obligations under the Contract to the extent that performance of that obligation is prevented, hindered, or delayed by a Force Majeure Event of which it has notified the other Party, and the time for that performance shall be extended accordingly.
9.4 If the performance by either Party of any of its obligations under the Contract is prevented, hindered, or delayed by a Force Majeure Event for a continuous period in excess of twenty four weeks, the other Party shall be entitled to terminate the Contract immediately by giving written notice to the affected Party.
10. Termination
10.1 Without limiting its other rights or remedies, either Party may terminate the Contract immediately by giving written notice to the other Party in the event that:
a) the other Party does not pay any sum due under the Contract when it is due to be paid and such sum remains outstanding for at least thirty days after receiving written notification to pay that sum;
b) the other Party commits a material breach of any term of the Contract and (if that breach is capable of remedy) does not remedy that breach within thirty days after receiving written notification to do so;
c) the other Party threatens to, or does, suspend, payment of its debts as they fall due, admits that it is unable to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (as if the meaning of the words “it is proved to the satisfaction of the courts” contained in sections 123(1)(e) or 123(2) of the Insolvency Act 1986 did not appear in those sections), or (being an individual) is deemed either to be unable to pay its debts or as having no reasonable prospect of paying its debts, in either case, within the meaning of section 268 of the Insolvency act 1986, or (being a partnership) has any partner to whom any of the foregoing applies;
d) the other Party begins negotiations with any class or all of its creditors about the rescheduling of any of its debts, or proposes any compromise or arrangements with any of its creditors.
e) the other Party applies to the court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or otherwise in connection with the winding up of the other Party;
g) an application is made to the court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given, or an administrator is appointed, over the other Party (being a company, limited liability partnership, or a partnership);
h) the holder of a qualifying floating charge over the assets of that other Party (being a company or limited liability partnership) has become entitled to appoint, or has appointed, an administrative receiver;
i) a person becomes entitled to appoint a receiver over any or all of the assets of the other Party, or a receiver is appointed over all or any of the assets of the other Party;
j) the other Party (being an individual) is the subject of a bankruptcy petition, application, or order;
k) the other Party ceases or suspends, or threatens to cease or suspend, carrying on all or a substantial part of its business;
n) the other Party (being an individual) dies, or due to illness or incapacity (whether mental or physical), becomes incapable of managing their own affairs or becomes a patient under any mental health legislation.
10.2 For the purposes of sub-Clause 10.1(b), a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
10.3 Without limiting its other rights, each party shall have the right to terminate the Contract by giving the other party three months' written notice.
10.4 Without limiting its other rights, the Service provider shall have the right to suspend provision of the Services under the Contract if the Client becomes subject to any of the events listed in clause 10.1, or the Service Provider reasonably believes that the Client is about to become subject to them, or fails to pay any amount due under this Contract on the due date.
11. Effects of Termination
11.1 Upon the termination or expiry of the Contract for any reason:
a) any sum owing by either Party to the other Party under the Contract shall become immediately due and payable;
b) the Client shall return all of the Service Provider Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Service Provider may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
c) the accrued rights, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12. Assignment and Sub-Contracting
12.1 The Service Provider may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
12.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in other manner with any of its rights or obligations under the Contract.
13. Notices
13.1 All notices under the Contract shall be in writing and deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
13.2 All notices under the Contract shall be addressed to the most recent postal address or email address given on the Service Provider’s website or as otherwise notified in writing by either Party to the other from time to time.
13.3 Notices shall be deemed to have been duly given:
a) when delivered, if delivered by courier or other messenger during the normal business hours of the recipient, on signature of a delivery receipt; or
b) when sent, if sent by email during the normal business hours of the recipient or, if sent outside the recipient’s normal business hours, when such business hours resume.
13.4 For the purposes of this Clause 13, “normal business hours” shall mean 8.30am to 5.00 p.m., Monday to Friday on a day that is not a public or bank holiday.
14. Waiver
14.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise.
15. Severance
15.1 In the event that one or more of the provisions of the Contract is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed deleted from the remainder of the Contract. The remainder of the Contract shall be valid and enforceable.
16. Relationship of the Parties
16.1 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties. No party shall have authority to act as agent for, or to bind, the other party in any way.
17. Third Party Rights
17.1 A person who is not a party to the Contract shall not have any rights under or in connection with it. For the avoidance of doubt all work carried out by the Service Provider for the Client (including all reports given in connection with the Services) are for the benefit of the Client only.
18. Variation
18.1 Other than as set out in these Terms and Conditions, no variation of the Contract including, but not limited to, the introduction of any additional terms and conditions, shall be effective unless it is made in writing and signed by the Parties (or their authorised representatives).
19. Law and Jurisdiction
19.1 The Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
19.2 Any dispute, controversy, proceedings or claim between the Parties relating to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.