1. DEFINITIONS AND INTERPRETATION
1.1 The following definitions and rules of interpretation apply in this agreement (unless the context requires otherwise).
|Commencement Date||The date set out at the front of this agreement. Any day other than a Saturday, Sunday, bank or public holiday in England.
All documents, books, manuals, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the business or affairs of the Client or its customers and business contacts, and any equipment, keys, hardware or software provided for the Company's use by the Client during the Engagement, and any data or documents (including copies) produced, maintained or stored by the Company on the Client or the Company's computer systems or other electronic equipment during the Engagement.
|Confidential Information||Any information relating to the business of the Disclosing Party which is not publicly available including, but not limited to, any information specifically designated by the Disclosing Party as confidential; any information supplied to the Disclosing Party by any third party in relation to which a duty of confidentiality is owed or arises; and any other information which should otherwise be reasonably regarded as possessing a quality of confidence or as having commercial value in relation to the business of the Disclosing Party. A Party that discloses or makes available Confidential Information pursuant to, or in connection with, the Engagement. The engagement of the Company by the Client on the terms of this agreement. The fees detailed in the Service Agreement.|
|Intellectual Property Rights||All intellectual property rights arising anywhere in the world whether registered or unregistered (including any application for registration), including copyright, know-how, confidential information, trade secrets, domain names, trademarks, trade names, patents, design rights, database rights and all rights in the nature of unfair competition rights and rights to sue for passing off. The services provided by the Company in a consultancy capacity for the Client as more particularly described in the Service Agreement. The Service Agreement at the front of this agreement.||Acceptance of Quotation||Documents signed by the Client when accepting quotation for Products and Services. The date of termination of this agreement, howsoever arising. Value added tax as provided for in the Value Added Tax Act 1994 and any equivalent sales tax in any other jurisdiction. All records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared by the Company in the provision of the Services.|
1.2. The headings in this agreement are inserted for convenience only and shall not affect its construction.
1.3. A reference to a particular law 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.
1.4. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2.1. The Client shall engage the Company and the Company shall provide Products and Services on the terms of this agreement.
2.2. The Engagement shall commence on the Commencement Date and shall continue (subject to earlier termination pursuant to clause 11) until:
a) the Services have been performed in accordance with this agreement; or
b) by either party giving to the other not less than four weeks' prior written notice.
3. DUTIES AND OBLIGATIONS
3.1. During the Engagement the Company shall:
3.2. provide the Services with reasonable care, skill and diligence;
a) promptly give to the Client all such information and reports as it may reasonably require in connection with matters relating to the provision of the Services or the Business of the Client.
b) comply with all reasonable standards of safety and comply with the Client's health and safety procedures from time to time in force at the premises where the Services are provided.
4.1. Nothing in this agreement shall create, or be deemed to create, a partnership or the relationship of employer and employee between the Parties.
4.2. Nothing in this agreement shall prevent the Company from being engaged, concerned or having any financial interest in any other business, trade, profession or occupation during the Engagement.
5.1. The Client shall pay the Company for Products and Services listed in the Service Agreement or Acceptance of Quotation. All Quotations and Estimates supplied are exclusive of Value Added Tax which (if applicable) shall be added to the Company's invoice(s) at the appropriate rate.
5.2. The Company shall invoice the Client in accordance with the Service Agreement or Acceptance of Quotation.
5.3. Unless otherwise agreed and subject to clause 5.2, the Company shall, upon completion of works submit to the Client an invoice which gives details of the Products and Services provided as laid out in the Service Agreement or Acceptance of Quotation and the amount payable (plus Value Added Tax, if applicable).
5.4. In consideration of the provision of the Products and Services during the Engagement, the Client shall pay each invoice submitted by the Company in accordance with clause 5.2 or 5.3 within 30 days of the stated date on the invoice.
5.5. In the event that an account is outstanding, the Company will refer the matter to its debt collection agency, which will incur an additional cost. Any costs incurred to collect the debt will be added to the debt, plus VAT at the prevailing rate. The Client agrees that it will be legally liable to pay the Company that surcharge, and that payment of the same can be enforced against the Client in court.
5.6. The Company reserves the right to charge the Client interest at the relevant reference rate provided for under the Late Payment of Commercial Debts (Interest) Act 1988 and subsequent amendments, on outstanding payments. Interest is payable both after and before any judgment of the court and continues to accrue. Interest will accrue on a daily basis until the actual date of payment of the overdue sum. This will not apply if the Client has promptly contacted the Company to dispute the invoice in good faith. No interest will accrue while such a dispute is ongoing.
5.7. All amounts stated or referred to in this Engagement shall be payable in pounds sterling.
5.8. All payments made by the Client to the Company under this agreement shall be made in full without any set-off, withholding, restriction, condition and without any deduction for or on account of any counterclaim.
5.9. The Client shall, unless otherwise agreed in the Service Agreement or Acceptance of Quotation, reimburse all reasonable expenses, including the Company's costs of travel and subsistence or third party disbursements properly and necessarily incurred by the Company in the course of the Engagement, subject to production of receipts or other appropriate evidence of payment.
6. CONFIDENTIAL INFORMATION
6.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement.
6.2. Each Party undertakes to respect and preserve the confidentiality of the other Party'ÃÂ'Ã'Ã'Âs Confidential Information for a period of ten years after the date of such disclosure (subject to clause 6.4 below). Neither Party shall, without the prior written consent of the Disclosing Party:
a) communicate, or otherwise make available, the Confidential Information to any third party; or
b) use the Confidential Information for any commercial, industrial or other purpose whatsoever other than the Objective; or
c) copy, adapt, or otherwise reproduce the Confidential Information except as strictly necessary for the purposes of the Engagement or as permitted by law.
6.3. The Company may disclose the Confidential Information or any part thereof, with the prior consent of the Client, to any employee of the Client who needs access to the Confidential Information in connection with the Engagement. In such an event the Client agrees to ensure, prior to such disclosure, that the employee in question is made aware of the confidential nature of the Confidential Information and understands that he/she is bound by conditions of secrecy no less strict than those set out here. The Company agrees to monitor the use of the Confidential Information by these employees and to enforce their obligations of confidence at the request of the Company.
6.4. The obligations contained in this clause 6 shall not apply or shall cease to apply to such part of the Confidential Information as the Recipient Party can show to the reasonable satisfaction of the Disclosing Party:
a) has become public knowledge other than through the fault of the Recipient Party or an employee or director of the Recipient Party to whom it has been disclosed in accordance with clause 6.3 above; or
b) was already known to the Recipient Party prior to disclosure to it by the Disclosing Party; or
c) is required to be disclosed or announced by law or order of any court, tribunal or agency of competent jurisdiction or by any governmental body, department or agency, or any other public authority (including any supra-national authority) having jurisdiction over it; or
d) it is independently developed without access to the Confidential Information; or
e) has been received from a third party who neither acquired it in confidence from the Disclosing Party, nor owed the Disclosing Party a duty of confidence in respect of it.
7. DATA PROTECTION
7.1. Each Party shall comply with its obligations under the Data Protection Act 1998.
7.2. The Company anticipates that it shall not have access to the personal data of the Client or its personnel under the terms of this Engagement.
7.3. If the Company has access to the personal data of the Client:
a) the Client warrants that it has obtained the consent of the employees to process the personal data; and
b) the Company shall process the personal data only in accordance with instructions from the Client (which may be specific instructions or instructions of a general nature as set out in this Engagement or as otherwise notified by the Client to the Company).
8. INTELLECTUAL PROPERTY
8.1. The Company hereby assigns to the Client all existing and future Intellectual Property Rights in the Works and all materials embodying these rights to the fullest extent permitted by law.
8.2. The Company warrants to the Client that:
a) he has not given and will not give permission to any third party to use any of the Works, nor any of the Intellectual Property Rights in the Works;
b) he is unaware of any use by any third party of any of the Works or Intellectual Property Rights in the Works; and
c) the use of the Works or the Intellectual Property Rights in the Works by the Client will not infringe the rights of any third party.
9. RISK AND RETENTION OF TITLE
9.1. Risk of damage to or loss of the goods shall pass to the Customer at:
9.2. in the case of Goods being installed by the Supplier, the time that the Supplier notifies the Customer that the installation is complete.
9.3. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title to the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods.
9.4. Sub-Clause 10.2 notwithstanding, legal and beneficial title of the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods and any other goods supplied by the Supplier and the Customer has repaid all moneys owed to the Supplier, regardless of how such indebtedness arose.
9.5. Until payment has been made to the Supplier in accordance with these Conditions and title in the Goods has passed to the Customer, the Customer shall be in possession of the Goods as bailee for the Supplier and the Customer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Supplier and shall insure the Goods against all reasonable risks.
9.6. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier, but if the Customer does so all money owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.
9.7. The Supplier reserves the right to repossess any Goods in which the Supplier retains title without notice. The Customer irrevocably authorises the Supplier to enter the Customer's premises during normal business hours for the purpose of repossessing the Goods in which the Supplier retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of sub-Clause 10.4.
9.8. The Customer's right to possession of the Goods in which the Supplier maintains legal and beneficial title shall terminate if:
a) the Customer commits or permits any material breach of his obligations under these Terms and Conditions;
b) the Customer enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986, the Insolvent Partnerships Order 1994 (as amended), or any other scheme or arrangement is made with his creditors;
c) the Customer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
d) the Customer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Customer, notice of intention to appoint an administrator is given by the Customer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer.
10. LIMITATION OF LIABILITY
10.1. This clause 10 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:
a) arising under or in connection with this agreement;
b) in respect of any use made by the Client of the Services and Works or any part of them; and
c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Engagement.
10.2 Nothing in this agreement excludes the liability of the Company for death or personal injury caused by the Company's negligence; or for fraud or fraudulent misrepresentation; or for any other liability that cannot be excluded or limited by law.
10.3. Subject to clause 10.2:
10.4. the Company shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Engagement; and
10.5. the Company's total aggregate 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 this Engagement shall be limited to the total Fees paid by the Client under this Engagement.
11.1. Notwithstanding the provisions of clause 2.2, either Party may terminate the Engagement immediately on notice to the other, and without liability to the other:
a) if the other Party breaches any of the terms of this Engagement and the breach (where the breach is capable of being remedied) has not been remedied within 30 days of a written request to remedy it;
b) if a particular date is agreed with a Client for a project or job and cancellation is made by the Client within 7 days of the work then a minimum aborted visit charge of 25% of the original project or job will be issued;
c) if termination of a materials order is made then there may be a restocking fee applied;
d) if the other Party convenes a meeting of its creditors or if a proposal is made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if it is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any part of its business or assets or if a petition is presented or a meeting is convened for the purposes of considering a resolution or other steps are taken for its winding up or for making of an administration order;
e) if the other Party ceases or threatens to cease business.
11.2. The rights of the Client under clause 11.1 are without prejudice to any other rights that it might have at law to terminate the Engagement or to accept any breach of this agreement on the part of the Company as having brought the agreement to an end. Any delay by the Client in exercising its rights to terminate shall not constitute a waiver of these rights.
12. OBLIGATIONS ON TERMINATION
12.1. On termination or expiry of this Engagement, the Company shall:
a) immediately deliver to the Client all Client Property in his possession or under his control;
b) destroy or expunge such Confidential Information in electronic form from any computer, word processor or other like device in the Recipient Party's possession, custody or control or that of any person to whom Confidential Information is disclosed, without retaining any copies; and
c) provide a signed statement that he has complied fully with his obligations under this clause 12.
13.1. Each Party shall:
a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;
b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
c) Failure to comply with clause 13 may result in the immediate termination of this agreement.
14.1. Any notice given to a party under or in connection with this contract shall be in writing and shall be:
a) delivered by hand or by pre-paid first-class post or other next working day delivery service or registered airmail at its registered office or its principal place of business;
b) sent by email to the email address for notices.
14.2. Any notice shall be deemed to have been received:
a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
b) 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). if sent by pre-paid airmail by a recorded delivery service, at the time recorded by the delivery service; or
d) if sent by email, at the time that the email enters the IT system of the intended recipient provided that no error message indicating failure to deliver has been received by the sender and provided further that within twenty four hours (24) of transmission a hard copy of the email signed by or on behalf of the person giving it is sent by pre-paid first class post, recorded delivery or registered post to the intended recipient.
14.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.1 This agreement 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. Neither Party has been induced to enter into this agreement by a statement or promise which it does not contain, save that this clause shall not exclude any liability which one Party would otherwise have to the other in respect of any statements made fraudulently by that Party.
15.2. No failure or delay by either Party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
15.3. If any clause or part of this agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision shall, to the extent required, be severed from this agreement and shall be ineffective without, as far as is possible, modifying any other clause or part of this agreement and this shall not affect any other provisions of this agreement which shall remain in full force and effect.
15.4. The Parties do not intend that any provisions of this agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
15.5. No variation to this agreement shall be effective unless in writing signed on behalf of the Parties.
15.6. The formation, existence, construction, performance, validity and all aspects whatsoever of this agreement or of any term of this agreement (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each Party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any disputes or claims which may arise out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). This agreement has been entered into on the date stated at the beginning of it.