1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
1.2 Headings in these conditions shall not affect their interpretation.
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 statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.5 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.6 References to conditions are to the conditions of the Contract.
2.1 These Conditions shall:
2.1.1 apply to and be incorporated into the Contract; and
2.1.2 prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Supplier either written or verbal, constitutes an offer by the Customer to purchase the Services specified by the Supplier on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:
2.2.1 by a written acknowledgement, including an invoice, issued and executed by the Supplier;
2.2.2 through signed agreement by both the Customer and Supplier of the SOW; or
2.2.3 (if earlier) by the Supplier starting to provide the Services;
when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Documents shall not govern the Contract.
2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 90 days from its date, provided that the Supplier has not stated otherwise.
3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer from the date of acceptance by the Supplier of the Customer’s offer in accordance with condition 2.2 and according to the SOW.
3.2 Subject to condition 11, the Services supplied under the Contract shall continue to be supplied for the period detailed in the SOW and, after that, if a rolling contract is specified as part of the SOW, shall continue to be supplied unless the Contract is terminated by one of the parties giving to the other not less than 3 months’ notice.
4.1 The Supplier shall use reasonable endeavours to provide the Services in accordance with the SOW.
4.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the SOW, but any such dates are completely reliant on the Customer fulfilling its obligations as specified in the SOW.
4.3 The Supplier shall use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at the Customer’s premises and that have been communicated to it under condition 5.1.5, provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
5.1 The Customer shall:
5.1.1 co-operate with the Supplier in all matters relating to the Services;
5.1.2 provide the Supplier, its employees and its agents, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, employees, data and other facilities as required by the Supplier to complete the project in accordance with the SOW;
5.1.3 provide to the Supplier, in a timely manner, such In-put Material and other information as the Supplier may require and ensure that it is accurate in all material respects;
5.1.4 be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services;
5.1.5 inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises;
5.1.6 ensure that all Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
5.1.7 keep, maintain and insure the Supplier’s Equipment in accordance with the Supplier’s instructions as notified in writing from time to time, and shall not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation;
5.1.8 confirm meetings between Customer and Supplier by email in advance; or acknowledge the Customer’s intended attendance at meetings in reply to the Supplier’s written request. The Customer’s failure to attend or cancel meetings with less than 3 Business Days notice will result in the Customer being charged £500 per meeting per consultant, exclusive of VAT, plus Expenses;
5.1.9 provide to the Supplier, as required, suitably skilled, experienced and qualified people to assist the Supplier with carrying out the Services;
5.1.10 promptly inform the Supplier of the absence (or anticipated absence) of any member of the Customer’s project team. If the Supplier requires, the Customer shall provide a suitably qualified replacement;
5.1.11 allocate sufficient resources to enable it to comply with this clause 5.1;
5.1.12 allow the Supplier direct access to the Project Sponsor at all times;
5.1.13 if the Supplier is leading a project, promptly notify the Supplier of any correspondence (both external and internal) with any third party relating to the Services or the Contract; and
5.1.14 if the Supplier is leading a project, not to approach any of the Supplier’s contacts or relevant third parties directly.
Failure to comply with any of the above obligations may result in the Supplier levying additional charges and extension of Service timescales at its sole discretion.
5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.4 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 12 months after the termination of the Contract, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
5.5 Any consent given by the Supplier in accordance with condition 5.4 shall be subject to the Customer paying to the Supplier a sum equivalent to 75% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor or, if higher, 75% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
6.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in the SOW, which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both. Condition 6.2 shall apply if the Supplier provides Services on a time and materials basis. Condition 6.3 shall apply if the Supplier provides Services for a fixed price. The remainder of this condition 6 shall apply in either case.
6.2 Where Services are provided on a time and materials basis:
6.2.1 the charges payable for the Services shall be calculated in accordance with the Supplier’s standard daily fee rates, or as amended from time to time in accordance with condition 6.6;
6.2.2 the Supplier’s standard daily fee rates for each individual person are £1,500 + VAT and Expenses and are calculated on the basis of a six-hour day, worked between 10.00 and 16.00 hours on weekdays (excluding public holidays);
6.2.3 the Supplier shall be entitled to charge an overtime rate of 25% of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in condition 6.2.2;
6.2.4 all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate;
6.3 Where Services are provided for a fixed price, this shall be confirmed in the invoice issued by the Supplier to the Customer for the provision of the Services. The Customer has five (5) Business Days to query this invoice or its corresponding terms with the Supplier; otherwise the Customer will be bound by both the total price invoiced and the terms stated on the invoice. The total price shall be paid to the Supplier (without deduction or set-off) in advance of the Contract commencing and the Services being delivered, or as otherwise stated in the SOW. If relevant, at the end of a period specified in the SOW, the Supplier shall invoice the Customer for any additional charges that are then payable, together with Expenses, the costs of materials and VAT, where appropriate, calculated as provided in condition 6.4.
6.4 Any fixed price and daily rate excludes:
6.4.1 Expenses, which the Supplier shall add to its invoices; and
6.4.2 VAT, which the Supplier shall add to its invoices at the appropriate rate.
6.5 The Customer shall, unless otherwise confirmed in writing on the invoice issued for the Services, pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of receipt to a bank account nominated in writing by the Supplier.
6.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
6.6.1 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 Barclays Bank PLC, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
6.6.2 suspend all Services until payment has been made in full; and
6.6.3 at its sole discretion delay the delivery of the Services, until a time that it deems suitable, and only once payment has been made in full by the Customer
6.7 Time for payment shall be of the essence of the Contract.
6.8 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 6.8 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
6.9 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
7.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier. The Supplier 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. If the Supplier terminates the Contract under condition 11.1 this licence shall automatically terminate.
8.1 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 the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.
8.2 The Customer may disclose such information:
8.2.1 to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract; and
8.2.2 as may be required by law, court order or any governmental or regulatory authority.
8.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 8.
8.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
8.5 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including Pre-existing Materials and the Supplier’s Equipment) shall, at all times, be and remain as between the Supplier and the Customer the exclusive property of the Supplier, 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 the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
9.1 This condition 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
9.1.1 any breach of the Contract;
9.1.2 any use made by the Customer of the Services, the Deliverables or any part of them; and
9.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these Conditions limits or excludes the liability of the Supplier:
9.3.1 for death or personal injury resulting from negligence; or
9.3.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
9.3.3 for any liability incurred by the Customer as a result of any breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
9.4 Subject to condition 9.2 and condition 9.3
9.4.1 the Supplier shall not be liable for:
22.214.171.124 loss of profits; or
126.96.36.199 loss of business; or
188.8.131.52 depletion of goodwill and/or similar losses; or
184.108.40.206 loss of anticipated savings; or
220.127.116.11 loss of goods; or
18.104.22.168 loss of contract; or
22.214.171.124 loss of use; or
126.96.36.199 loss of corruption of data or information; or
188.8.131.52 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.4.2 the Supplier’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 Contract shall be limited to the price paid for the Services.
The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier in connection with the Services.
11.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other on giving the other not less than three months written notice or immediately on giving notice to the other if:
11.1.1 the other party fails to pay any amount due under the 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; or
11.1.2 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or
11.1.3 the other party repeatedly breaches any of the terms of the 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 the Contract; or
11.1.4 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 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
11.1.5 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; or
11.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party; or
11.1.7 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; or
11.1.8 a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
11.1.9 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; or
11.1.10 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 its assets and such attachment or process is not discharged within 14 days; or
11.1.11 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 11.1.4 to condition 11.1.10 (inclusive); or
11.1.12 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
11.1.13 there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
The Supplier 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 the Supplier 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 subcontractors.
13.1 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If the Supplier requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
13.2 Subject to condition 13.1, no variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
14.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. 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. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
14.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
15.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
15.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
16.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
16.3 Nothing in this condition shall limit or exclude any liability for fraud.
17.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
17.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of 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.
17.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
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, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
20.1 Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party.
20.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address and for the agreed contact, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
20.3 A notice required to be given under the Contract shall not be validly served if sent by e-mail unless an authorised, scanned signature of the Project Sponsor accompanies the email to ratify the content.
21.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
21.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).