The following definitions and rules of interpretation apply in these Conditions.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, to reflect the Supplier’s changing business needs, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.3 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Customer’s obligations
4.1 The Customer shall:
(a) ensure that the terms of the Order and Specification comprehensively and ensure that all terms are fully understood and seek to clarify any terms which are not; (b) ensure that the terms of the Order are complete and accurate; (c) co-operate with the Supplier in all matters relating to the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; (e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; (f) comply with all applicable laws;
(g) provide the Supplier with constructive feedback in the event of the Customer having any issues with the Services; and (h) not criticise the Services publically or privately or act in breach of the confidentiality obligations set out in clause 15.3; and (i) comply with any additional obligations set out in the Specification.
5.1 In order to protect the confidential information and business connections of the Supplier, the Customer confirms that it shall not:
(a) At any time solicit or endeavour to entice away from the Supplier the business or custom of other customers or potential customers with a view to providing them with services to that customer or potential customer which compete with the Services or the Supplier’s business in any material respect; and
(b) During the Term and for a period of 24 months thereafter be involved in any capacity (whether as member, officer, employee, consultant, partner or agent) with any business concern which is (or intends to be) in competition with the Supplier’s business; and
(c) At any time representing himself as connected with the Supplier or any Investor in any capacity whatsoever.
5.2 The restrictions imposed on the Customer by this clause 5 apply to him acting:
(a) Directly or indirectly; or on his own behalf or on behalf of, or in conjunction with, any firm, company or person.
5.3 Each of the restrictions imposed on the Customer by clause 5.1 is intended to be separate and severable. If any of the restrictions are held to be void but would be valid if part of their wording were deleted, such restriction shall apply with such deletion as may be necessary to make it valid or effective.
6. Supplier’s obligations
If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 6; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9. Charges and payment
9.1 The Customer shall pay the Charges to the Supplier Customer either by:
(a) Paying the Charges via a one off payment; or (b) Paying the Charges in instalments in the manner set out in the Order.
9.2 If the Customer is paying the Charges under clause 9.1(b), full payment of the Charges must be made within 4 months of the Commencement Date.
9.3 The Customer shall make each payment due to the Supplier in full and in cleared funds to a bank account nominated in writing by the Supplier and time for payment shall be of the essence of the Contract.
9.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier.
9.5 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum. Interest under this clause 9.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding.
9. Intellectual property rights
9.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
10. Data protection and data processing
10.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this clause 10,
10.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
10.3 Without prejudice to the generality of clause 10.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract.
11. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
11.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
11.2 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; and (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.3 Subject to clause 11.2, the Supplier’s total liability (includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract) to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed 100 per cent of the total Charges paid by the Customer to the Supplier as at the date when the liability for breach arises.
11.4 This clause 11.4 sets out specific heads of excluded loss:
(a) Subject to clause 11.2, the types of loss listed in clause 11.4(b) are wholly excluded by the parties.
(b) The following types of loss are wholly excluded:
(i) Loss of profits (ii) Loss of sales or business. (iii) Loss of agreements or contracts. (iv) Loss of anticipated savings. (v) Loss of use or corruption of software, data or information. (vi) Loss of or damage to goodwill. (vii) Indirect or consequential loss.
11.5 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
11.6 This clause 11 shall survive termination of the Contract.
12.1 Either party may terminate the Contract by giving the other party three months’ written notice.
12.2 Either party may terminate the Contract with immediate effect by giving written notice to the other party if: ‘(a) The other party commits a material breach of the Contract and (if such breach is remediable) fails to remedy it within 10 days of that party being notified in writing to do so; (b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; (c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or (d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
12.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.2 or the Supplier reasonably believes that the Customer is about to become subject to any of them.
13. Consequences of termination
13.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding
Charges; (b) the Customer shall return all and any materials provided to them by the Supplier which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
13.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
14.1 Refunds of Charges paid will only be given up to 14 days from the Commencement Date.
14.2 In order to request a refund, the Customer must supply a written notice of said request to firstname.lastname@example.org, listing: (a) Detailed reasons for why the request is being made; (b) Proof that the Customer has paid for the Services; and (c) The Customer’s name, address, telephone number and e-mail address.
14.3 All cancellations and refunds are subject to the authorisation of the Supplier.
14.4 All refund payments the Customer receives are subject to a deduction of £250 to represent the Supplier’s administration charges associated with processing the refund.
15.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 15.3(c). (b) The Customer shall not pass on or disclose any strategies, plans, tactics, schemes, systems or information provided to them as part of the Services. (c) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 15.3; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(d) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
15.4 Entire agreement.
(a) The Contract constitutes the entire agreement 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. (b) Each party acknowledges that in entering into the 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
15.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing .
15.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
15.7 Severance. If any provision or part-provision of the 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. 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 the Contract.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company). (b) Any notice shall be deemed to have been received: (i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and (ii) 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) This clause does not apply to the service of any proceedings or other documents in any legal action or where applicable, any other method of dispute resolution.
15.9 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
15.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
15.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.