1.1 The following definitions apply in this Agreement:
means the organisation named in "you" or "your" in the Schedule including any affiliate or group company which may exist from time to time;
means "we" "us" or "our" in the Schedule;
means the charges set out and calculated in the Schedule;
means the date shown in the Schedule upon which the Services start;
means information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, products, affairs and finances of either party whether or not such information (if in anything other than oral form) is marked confidential;
means copies or records of any Confidential Information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located);
means the services shown in the Schedule.
1.2 Any reference in this Agreement to any statute or statutory provision shall be construed as including a reference to that statute or statutory provision as from time to time amended extended or re-enacted whether before or after the date of this Agreement and to all statutory instruments orders and regulations for the time being made pursuant to it or deriving validity from it.
1.3 Except so far as the context otherwise requires words denoting the singular include the plural and vice versa and words denoting any one gender include all genders and words denoting persons include bodies corporate unincorporated associations and partnerships as well as individuals.
1.4 Unless otherwise stated references to clauses are to clauses of this Agreement.
1.5 Clause headings do not affect the interpretation of this Agreement.
2.1 The Client hereby appoints the Company to provide the Services upon and subject to the terms and conditions hereafter set out which appointment the Company hereby accepts.
3.1 In consideration of the provision by the Company of the Services the Client shall pay to the Company the Charges at the times and in the amounts shown overleaf.
3.2 All annual Charges are subject to an annual increase in line with the prevailing RPI percentage, which shall be applied on an annual basis.
3.3 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Company on the due date, the Company may:
3.3.1 charge interest on such sum from the due date for payment at the annual rate of 4% above the base rate 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 Client shall pay the interest immediately on demand; and/or
3.3.2 suspend all Services until payment has been made in full (and for the avoidance of doubt, such suspension shall be at no cost or penalty to the Company).
3.4 The Client shall have responsibility in full for ISDN or PSTN or any other phone or data billing (call charges) that the Client incurs, whether as a result of fault, usage or inaccurate configuration by the Company.
4.1 The Company shall provide the Services to the Client in accordance with the Service Specification in all material respects.
4.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Schedule, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
4.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Client in any such event.
4.4 The Company warrants to the Client that the Services will be provided using reasonable care and skill.
4.5 The Company will advise the Client which data should be selected for the Services, but the final decision and responsibility is that of the Client. In the event that the Company is found in any way culpable for loss of data under this Agreement its maximum liability will the greater of the sum of the Charges for the previous twelve months or twelve times the Charge for the month in which the loss occurred.
5.1 The Client shall:
5.1.1 ensure that the terms of the Schedule and (if submitted by the Client) the Goods Specification and Service Specification are complete and accurate;
5.1.2 co-operate with the Company in all matters relating to the Services;
5.1.3 provide the Company, its employees, agents, consultants and subcontractors, with access to the Client's premises, office accommodation and other facilities as reasonably required by the Company to provide the Services;
5.1.4 provide the Company with such information and materials as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
5.1.5 prepare the Client’s premises for the supply of the Services;
5.1.6 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;
5.1.7 keep and maintain all materials, equipment, documents and other property of the Company (Supplier Materials) at the Client’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Company, and not dispose of or use the Supplier Materials other than in accordance with the Company’s written instructions or authorisation.
5.2 If the Company’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
5.2.1 the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Company’s performance of any of its obligations;
5.2.2 the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
5.3 the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.
6.1 The Goods are described in the Schedule.
6.2 The Company reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
7.1 The Company shall ensure that each delivery of the Goods is made in accordance with the Schedule.
7.2 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by a force majeure event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.3 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a force majeure event the Client’s failure to provide the Company with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
7.4 The Client shall not be entitled to reject the Goods if the Company delivers up to and including 5 per cent more or less than the quantity of Goods ordered and the Company may deliver the Goods by instalments.
8.1 The Company warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods shall:
8.1.1 conform in all material respects with their description and the Goods Specification;
8.1.2 be free from material defects in design, material and workmanship;
8.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
8.1.4 Subject to clause 8.1.2, if:
(a) the Client gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 8.1;
(b) the Company is given a reasonable opportunity of examining such Goods; and
(c) the Client (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Client’s cost,
the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
8.2 The Company shall not be liable for the Goods’ failure to comply with the warranty in clause 8.1 if:
8.2.1 the Client makes any further use of such Goods after giving a notice in accordance with clause 8.1.1;
8.2.2 the defect arises because the Client failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
8.2.3 the defect arises as a result of the Company following any drawing, design or Goods Specification supplied by the Client;
8.2.4 the Client alters or repairs such Goods without the written consent of the Company;
8.2.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
8.2.6 the Goods differ from their description or the Goods Specification or the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
8.3 Except as provided in this clause 8, the Company shall have no liability to the Client in respect of the Goods’ failure to comply with the warranty set out in clause 8.1.
8.4 The terms of this Agreement shall apply to any repaired or replacement Goods supplied by the Company under clause 8.1.1.
9.1 The risk in the Goods shall pass to the Client on completion of delivery.
9.2 Title to the Goods shall not pass to the Client until the Company has received payment in full (in cash or cleared funds) for:
9.2.1 the Goods; and
9.2.2 any other goods that the Company has supplied to the Client in respect of which payment has become due.
9.3 Until title to the Goods has passed to the Client, the Client shall:
9.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
9.3.2 store the Goods separately from all other goods held by the Client so that they remain readily identifiable as the Company’s property;
9.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
9.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Company’s behalf from the date of delivery;
9.3.5 notify the Company immediately if it becomes subject to any of the events listed in clause 13; and
9.3.6 give the Company such information relating to the Goods as the Company may require from time to time, but the Client may resell or use the Goods in the ordinary course of its business.
9.4 If before title to the Goods passes to the Client the Client becomes subject to any of the events listed in clause 13, or the Company reasonably believes that any such event is about to happen and notifies the Client accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Client to deliver up the Goods and, if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Goods are stored in order to recover them.
10.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
10.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
10.1.5 defective products under the Consumer Protection Act 1987.
10.2 Subject to clause 16.1:
10.2.1 the Company shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Agreement; and
10.2.2 the Company’s total liability to the Client in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 85% of the Company's insurance cover.
10.3 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 Agreement.
10.4 This clause 10 shall survive termination of the Agreement.
10.5 The Client shall arrange to have suitable insurance cover in place to protect itself from losses noted in this Agreement and against claims from Company personnel for accidents and injuries incurred on the Client’s premises and in respect of all its obligations under the Agreement.
11.1 The Client shall not during the period of this Agreement and for a period of one year thereafter solicit (whether unknowingly or consciously) the services of any employee of the Company who has been engaged in the provision of services under this Agreement other than by means of a national campaign and not specifically aimed at the employees of the Company. In the event of a breach of this provision the Company shall have the right to require the employee to serve out his/her notice period and the Client shall pay to the Company liquidated damages of £10,000 to cover lost revenues, recruitment, training and administration costs that the Company would incur in replacing the employee (Damages). Both parties shall at all times act in good faith towards the other.
11.2 Any payment due under this clause 11 shall be payable within 30 days of the receipt by the Client of the Company's invoice.
11.3 Notwithstanding the provisions of this clause 11, in the event that the Company ceases to trade, the Client is granted the right to employ the Company’s employees that are performing contracted services to the Client on the day that the Company ceases to trade.
12.1 The Company shall not (except in the proper course of its duties, as authorised or required by law or as authorised by the Client) either during the term of this Agreement or at any time after termination of this Agreement howsoever arising:
12.1.1 use any Confidential Information; or
12.1.2 make or use any Copies; or
12.1.3 disclose any Confidential Information to any person, company or other organisation whatsoever.
12.2 The above restriction does not apply to any Confidential Information which is or becomes in the public domain other than through unauthorised disclosure by the Company.
13.1 The duration of this Agreement and any notice period shall be set out in the Schedule.
13.2 Without limiting its other rights or remedies, either party may terminate this Agreement with immediate effect by giving written notice to the other if:
13.2.1 the other party commits a material or persistent breach of this Agreement and (if such a breach is remediable) fails to remedy that breach within seven days of receipt of notice in writing of the breach;
13.2.2 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;
13.2.3 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;
13.2.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company);
13.2.5 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 (being a company);
13.2.6 a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
13.2.7 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 clause 13.2.2 to clause 13.2.6 (inclusive);
13.2.8 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.
14.1 On termination of this Agreement or any part of it for any reason:
14.1.1 all sums shall become due and payable immediately and any material of the Company shall be returned.
14.1.2 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination; and
14.1.3 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15.1 For the purposes of this Agreement, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party 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.
15.2 The Company shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.
15.3 If the Force Majeure Event prevents the Company from providing any of the Services and/or Goods for more than 12 weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the Client.
16.1 Time or indulgence may be given in respect of any liability of the Company to the Client or of the Client to the Company hereunder without in any way prejudicing or affecting the rights of the Client or the Company in respect thereof.
17.1 Neither party shall without the prior written consent of the other (which it may in its absolute discretion refuse) assign or transfer or purport to assign or transfer all or any of its rights or obligations herein contained provided that nothing herein contained shall prevent or restrict the Company from subcontracting all or any part of the Services and provided further that the Client shall not be entitled unreasonably to refuse a written request from the Company that the Company be permitted to perform its obligations hereunder through another company which is a holding company of the Company or a subsidiary of the Company or its holding company provided that the Company shall guarantee the Company’s performance of its obligations under this Agreement and pay any expenses that the Client may incur in connection with the granting of such permission.
18.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company.
18.2 The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Client’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Client.
18.3 All supplier materials are the exclusive property of the Company.
19.1 Nothing herein contained shall constitute or create or be deemed to constitute or create a Partnership or Joint Venture or agency or the relationship of employer/employee or principal/agent between the Company and the Client.
20.1 Any notice to be given hereunder shall be in writing and be sufficiently served in the case of the Client by being delivered either personally to him or sent by registered post or recorded delivery addressed to him at his last address known to the Company and in the case of the Company by being delivered at or sent by registered post or recorded delivery addressed to its registered office and marked for the attention of the Company Secretary or sent by e-mail to email@example.com and any such notice so posted shall be deemed to be served on the next business day occurring two days after the date of posting, if sent by email a delivery receipt must be obtained.
21.1 Wherever this Agreement refers to the consent of the Company this means the consent of any person appointed by the Company for the specific purpose or failing such appointment the Company Secretary.
22.1 No failure or delay on the part of any party to this Agreement relating to the exercise of any right power privilege or remedy provided under this Agreement shall operate as a waiver of such right power privilege or remedy or as a waiver of any preceding or succeeding breach by any other party to this Agreement nor shall any single or partial exercise of any right power privilege or remedy preclude any other or further exercise of such or any other right power privilege or remedy provided in this Agreement all of which are several and cumulative and are not exclusive of each other or of any other rights or remedies otherwise available to a party at law or in equity.
23.1 This Agreement supersedes any previous agreement between the parties hereto relating to such a transaction.
24.1 If any provision of this Agreement is or becomes unlawful void or unenforceable in any respect under the law of any jurisdiction such provision shall to the extent required be severed from this Agreement and rendered ineffective as far as possible for the purposes of construing performing or enforcing this Agreement pursuant to the laws of such jurisdiction without prejudice to the validity or enforcement of such provision pursuant to the laws of any other jurisdiction and without modifying the remaining provisions of this Agreement or in any way affecting any other circumstances or the validity or enforceability of this Agreement pursuant to the laws of such jurisdiction.
25.1 A person who is not a party to the Agreement shall not have any rights under or in connection with it.
26.1 Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Agreement shall only be binding when agreed in writing and signed by the Company.
27.1 This Agreement shall be governed by and construed and interpreted in accordance with the laws of England whose exclusive courts shall be courts of competent jurisdiction.