Terms & Conditions

Definitions

1. Formation of the contract and cancellation
   1. Without prejudice to the generality of the foregoing all other terms and conditions whether or not the same are endorsed upon, delivered with or referred to in any purchase order or any other document delivered or sent by the Client to the Company are expressly excluded.  Any reference in the contract to the Client’s order specification or like document will not be deemed to imply that any terms or conditions endorsed upon, delivered with or referred to in such order, specification or like document will have effect;
   2. The procedure for formation of the contract shall be as follows:
      1. The Company and the Client shall work together to discuss the Services, following which the Company may prepare and issue an estimate or tender;
      2. If the estimate or tender is acceptable to the Client, the Client shall make an offer in writing to purchase the Services from the Company;
      3. The Company shall not be bound by the estimate or tender until it has communicated in writing its acceptance of the Client’s offer.
      4. The Client may cancel this contract at any time before the Services have been provided by giving the Company at least 7 days’ written notice to that effect.
2. Price
   1. The price payable for the provision of the Services shall be as set out in the Schedule of Services;
   2. The Company reserves the right to vary any price stated in the Schedule of Services, in the event that there is a change in the Services to be provided after formation of the contract (and the decision as to whether there has been a change is to be at the sole discretion of the Company) or the Company is required to incur expenses that could not reasonably have been foreseen at the time the contract was made. Any variation in price shall reflect the extent of the change in the services to be provided.
   3. All prices or amounts stated are exclusive of VAT and VAT at the prevailing rate from time to time shall be payable in addition thereto.
   4. The Company reserves the right to increase its fee rates, provided that such charges cannot be increased more than once in any 12 month period. The Company will give the Client written notice of any such increase 3 months before the proposed date of the increase. If such increase is not acceptable to the Client, it shall notify the Company in writing within 2 weeks of the date of the Company’s notice and the Company shall have the right without limiting its other rights or remedies to terminate the contract by giving 4 weeks’ written notice to the Client.
3. Payment
   1. The payment of the price shall be as stated in the Schedule of Services, and if not expressly stated, the Company shall raise a monthly invoice for work carried out to the date of each invoice.  The time stipulated for payment shall be of the essence of the contract;
   2. Invoices shall be due and payable within 14 days of the date of the invoice;
   3. If the Client does not make payment of an invoice by the due date, the Company may:
      1. suspend supply of the Services forthwith;
      2. appropriate any payment actually made by the Client to such Services as the Company shall think fit; and
      3. charge interest as well after as before judgment on any part of the price not paid by its due date from that date until actual payment at the rate of 3 per cent per annum above the Base Lending Rate of Nat West Bank plc prevailing from time to time during such period;
   4. The Company expressly reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998.
4. Ownership of intellectual property
   1. The Client acknowledges that a key part of the Services is essentially Intellectual Property generated by the Company;
   2. For the avoidance of doubt, the Client accepts that the Intellectual Property shall remain the property of the Company until the Company has received the contract price in full;
   3. The Client shall not reproduce, incorporate (in whole or part) or in any other way use, the Intellectual Property until payment for the Services has been made in full;
   4. If the Client does not pay an invoice by the due date, the Company may recover from the Client’s premises any material supplied to the Client and the Client hereby grants the Company (and its authorised representatives) a licence to enter upon the Client’s premises to effect such recovery and to offer such assistance as is necessary for the same;
5. Performance
   1. The Company warrants to the Client that the Services will be provided using reasonable care and skill.
   2. The Company will use its reasonable endeavours to comply with any date or dates for the supply or completion of the services as stated in the Schedule of Services, but such date or dates shall constitute only statements of expectation and shall not be binding.  If the Company having used its reasonable endeavours fails to supply or complete the services by such date or dates, such failure shall not constitute a breach of the contract nor shall the Client be entitled to treat the contract as thereby repudiated or to rescind it or any related contract in whole or in part or claim compensation for such failure or for any consequential loss or damage resulting therefrom;
   3.  If the Company is prevented or hindered from performing the Services or any part thereof by any circumstances beyond its reasonable control including (but without limiting the generality of the foregoing) strikes, lock-outs or other industrial action, inability to obtain materials or labour, power or machinery breakdown or failure, fire, flood, civil commotion or any cause of whatever kind and whenever occurring, further performance of the Services shall be suspended for so long as the Company is so prevented or hindered provided that if the performance of the Services is suspended for more than one calendar month the Client shall be entitled by notice in writing to the Company forthwith to terminate the contract or to cancel any outstanding part thereof and in such circumstances the Client shall pay for all Services supplied and materials used by the Company to the actual date of such termination.  The Company shall not have any liability to the Client for any direct or consequential loss or damage suffered by the Client as a result of the Company’s inability to perform its obligations under the contract by reason of any such circumstances;
   4. When expedited delivery of the Services is agreed with the Client and necessitates overtime or other additional costs, the Client shall reimburse the Company for the amount of such overtime payment or other costs.  Where postponement of Services is agreed by the Company the Client shall, if required by the Company pay all costs and expenses occasioned thereby;
   5. In order that the Company can provide the Services, the Client shall:
      1. co-operate with the Company in all matters relating to the Services;
      2. provide the Company, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities (if necessary) as reasonably required by the Company;
      3. provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects; and
      4. obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
6. Limitation of liability
   1. Subject to Clause 7.4, where Services (or any part thereof) supplied are shown to the reasonable satisfaction of the Company to fall below a reasonable professional standard (having regard to the price paid for the Services) the Company shall at its sole option deliver further services to the Client free of charge, PROVIDED THAT:
      1. the Client notifies the Company within 7 days of the completion of provision of the Services; and
      2. the liability of the Company under condition 7.1 above shall be accepted by the Client in substitution for and to the exclusion of any other claims for direct loss which the Client has or may have.
   2. Subject to clause 7.4, the liability of the Company for any claim or claims other than those falling within condition 7.1 above for direct injury, loss or damage made by the Client against the Company whether in contract or in tort (including negligence on the part of the Company, its servants or agents) arising out of or in connection with any defective performance of the Services or any act, omission, neglect or default (whether or not the same constitutes a fundamental breach of the contract or the breach of a fundamental term thereof) of the Company, its servants or agents in the performance of the contract (including, without limiting the generality of the foregoing, breach of any condition or warranty whether express or implied by statute, common law or otherwise howsoever) shall be limited to the contract price;
   3. Subject to clause 7.4, the Company shall not be liable for any claims for economic loss, loss of production, loss of profit, loss of opportunity, loss of bargain or other indirect or consequential injury loss or damage made by the Client against the Company whether in contract or in tort (including negligence on the part of the Company its servants or agents) arising out of or in connection with any such defect act, omission, neglect or default referred to in condition 7.2;
   4. Nothing in these Conditions shall:
      1. limit or exclude the liability of the Company in respect of death or personal injury resulting from the negligence of the Company, its employees or agents or subcontractors; or
      2.  exclude the conditions and warranties implied by Section 12 of the Sale of Goods Act 1979 (title and quiet possession) or the conditions implied by Section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
      3. fraud or fraudulent misrepresentation
   5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the contract.
   6. This clause 7 shall survive termination of the contract.
7. Termination, insolvency or default of the client
   1. If any of the following events occur, are threatened or in the opinion of the Company are reasonably likely to occur:
      1. the Client shall commit any breach of the contract and shall fail to remedy such breach (if capable of remedy) within a period of seven days from receipt of notice in writing from the Company, requesting such breach to be remedied; or
      2. the Client:
         1. suffers any distress or execution upon any of its assets; or
         2. offers to make any arrangement with its creditors or (in the case of an individual or partnership, he (or one of the partners) commits an act of bankruptcy; or
         3. has presented against it a petition in bankruptcy or in insolvency; or
         4. is a limited company and a resolution or petition to wind up (other than for the purposes of amalgamation or reconstruction without insolvency) shall be passed or presented; o
         5. has a receiver or administrator administrative receiver or manager appointed over the whole or any part of its business or assets; or
         6. shall suffer any analogous proceedings to those stated in Conditions 8.1.2(a) – 8.1.2(f) above in any other jurisdiction; or
         7. suspends or ceases or threatens to suspend or cease, to carry on all or a substantial part of its business; or
         8. the Client’s financial position deteriorates to such an extent that in the Company’s opinion the Client’s capability to adequately fulfil its obligations under the contract has been placed in jeopardy; then all sums outstanding in respect of the Services due to the Company shall become due and payable immediately.
   2. Further if any of the events specified in Condition 8.1 should occur, the Company may in its absolute discretion and without prejudice to any other rights it may have:
   3. suspend all future supply of the Services to the Client (either as arising under this contract or elsewhere) and/or terminate the relevant contract without liability on its part; and/or
   4. exercise its rights pursuant to condition 5 above.
   5. Without limiting it other rights or remedies, either party may terminate the contract by giving the      other party 6 months’ notice in writing.
   6. Without limiting its other rights or remedies, the Company may terminate the contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the contract on the due date for payment.
8. Data protection
   1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this clause 9, “Applicable Laws” means (for so long as and to the extent that they apply to the Company) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and “Domestic UK Law” means the UK Data Protection Legislation and any other law that applies in the UK.
   2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Company is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The Schedule of Services sets out the scope, nature and purpose of processing by the Company.  The processing shall continue for the duration of this agreement.  The types of personal data (as defined in the Data Protection Legislation, “Personal Data”) are name, address, email address and telephone number.  The categories of Data Subject are prospective customers of the Client.
   3. Without prejudice to the generality of clause 9.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Company for the duration and purposes of this agreement.
   4. Without prejudice to the generality of clause 9.1, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of its obligations under this agreement:
      1. process that Personal Data only on the written instructions of the Client unless the Company is required by Applicable Laws to otherwise process that Personal Data. Where the Company is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Company shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Company from so notifying the Client;
      2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
      3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
      4. not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
         (a) the Client or the Company has provided appropriate safeguards in relation to the transfer;
         (b) the data subject has enforceable rights and effective legal remedies;
         (c) the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
         (d) the Company complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
      5. assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      6. notify the Client without undue delay on becoming aware of a Personal Data breach;
      7. at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data; and
      8. maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and allow for audits by the Client or the Client’s designated auditor.
   5. The Client consents to the Company appointing a third-party processor of Personal Data under this agreement. The Company confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business. As between the Client and the Company, the Company shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 9.
   6. Either party may, at any time on not less than 30 days’ notice, revise this clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
9. Confidentiality
   A party (“receiving party”) 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 receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This Condition 10 shall survive termination of the contract.
10. General
    1. The Company shall be entitled without the prior approval of the Client to assign, sub-contract or sub-let performance of constituent elements of the contract or any part thereof, but the Client shall not be so entitled without the prior written approval of the Company.
    2. The rights and remedies of the Company under the contract shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company nor by any failure of or delay by the Company in asserting or exercising any such rights or remedies.
    3. If at any time any one or more of these Conditions (or any sub-condition or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted herefrom and the validity and or enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired thereby.
    4. Any notice required to be given under the Contract shall be deemed to be received: if delivered personally, at the time of delivery, if delivered by facsimile or e-mail, at the time of transmission (if between 9 am – 5 pm Monday-Friday (except public holidays), otherwise 9 am the next working day) and if posted, 72 hours after posting (with proof of posting).
    5. These Conditions and each and every contract made pursuant thereto and any dispute or claim arising out of or in connection with its subject matter or formation (including non contractual disputes or claims) shall be governed by and construed in all respects in accordance with the laws of England and Wales and the Company and the Client irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.