Standard Terms & Conditions for the Supply of Services
System Concepts Ltd (“SCL”)
(A) SCL provides consultancy services in relation to usability, ergonomics and health and safety.
(B) The Client wishes to purchase and SCL wishes to supply certain services subject to the following terms and conditions.
In these terms and conditions the following words and expressions shall have the following meanings:
|Agreement||an agreement for the supply of services consisting of a written Proposal, any Statement of Work, these terms and conditions and any Schedules thereto;|
|Client||a person to whom SCL agrees to provide services for a Project;|
|Commencement Date||the date of the Agreement;|
|Confidential Information||all information disclosed by or on behalf of a party (in whatever medium including in written, oral, visual or electronic form and whether before or after the date of the Agreement) including all business, financial, commercial, technical, operational, organisational, legal, management and marketing information;|
|Deliverables||any documents, products and materials to be developed and provided by SCL as part of or in connection with the Project;|
|Fees||SCL’s charges for the Project as set out in the Proposal and/or Statement of Work, including SCL’s expenses and any other sums or consideration due to SCL under the Agreement;|
|Intellectual Property||all inventions, patents, utility models, designs (including rights relating to semi-conductor topographies), database rights, copyright and related rights, rights in get up and trade marks (in each case whether registered or unregistered), together with all rights to the grant of and applications for the same and including all similar or analogous rights and all other rights in the nature of intellectual and industrial property throughout the world and all future rights of such nature;|
|Project||the services described in the Proposal and/or Statement of Work, including the development and provision of any Deliverables;|
|Proposal||a proposal issued by SCL to the Client and valid for 3 months from the date of such proposal;|
|Statement of Work||a written statement detailing the services to be provided which may be agreed by the parties in respect of a Project.|
In these conditions, unless otherwise specified or the context otherwise requires:
1.2.1 Any phrase in the Agreement introduced by the term “include”, “including”, “in particular” or similar expression shall be construed as illustrative and shall not limit the sense of the words preceding that term.
1.2.2 Headings used in these conditions are for reference purposes only and should not be incorporated into the Agreement and shall not be deemed to be any indication of the meaning of the clauses to which they relate.
1.2.3 All agreements on the part of either of the parties which comprise more than one person or entity shall be joint and several.
1.2.4 The neuter singular gender throughout the Agreement shall include all genders and the plural.
1.2.5 A reference to a party shall include that party’s successors in title.
If there is an inconsistency between any of the provisions of the Proposal and any Statement of Work respectively, the provisions of the Statement of Work shall prevail in preference to the provisions of the Proposal.
2. Application of terms and conditions
2.1 The Client’s acceptance of the Proposal constitutes acceptance by the Client of these terms and conditions.
2.2 Quotations are given by SCL on the basis that no agreement shall come into existence except in accordance with condition 1. Any quotation is valid for a period of 3 months from its date, provided that SCL has not previously withdrawn it.
2.3 SCL shall not be bound by and reserves the right to correct, before and after the Agreement is made, any typographical, clerical or other obvious error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by SCL.
2.4 Once incorporated, these conditions shall apply to and be incorporated into the Agreement and prevail over any terms or conditions contained, or referred to, in the Client’s purchase order, confirmation of order, acceptance of a quotation or specification, or any inconsistent terms or conditions implied by law, trade custom, practice or course of dealing.
2.5 These terms and conditions shall continue to apply to all services provided by SCL to the Client until terminated in accordance with the Agreement.
2.6 SCL requires a purchase order number or written confirmation from the Client before SCL can confirm and schedule work.
The Agreement shall come into effect on the Commencement Date and, subject to provisions for earlier termination, shall continue unless and until terminated by SCL giving to the Client at least three months’ notice in writing.
4. Cancellation charges
4.1 The following cancellation charges apply once a Proposal, including (but not limited to) public and in-house training courses, hire of our facilities and consultancy projects, has been accepted by the Client and a start date has been agreed.
4.2 All direct costs already incurred by SCL in relation to the Project will be re-charged in full to the Client. This could include, for example, recruitment, facility hire or printing costs.
4.3 If the Project is cancelled or postponed up to and including 5 working days before the scheduled start date, the Client will be liable for to 60% of the Fees.
4.4 If the Project is cancelled or postponed less than 5 working days before the scheduled start date the Client will be liable for 100% of the Fees.
5. Project services
5.1 SCL agrees to carry out the Project in accordance with the Proposal and any Statement of Work.
5.2 The Client agrees to cooperate with SCL in the performance of the Project and to give such support, facilities, access to premises and information as may be required by SCL to perform its obligation under the Agreement.
5.3 SCL shall have discretion as to which of its employees are assigned to the Project but shall consult with the Client concerning any significant changes.
5.4 If, as a result of any act or omission by the Client which is not directly and wholly caused by SCL (including the provision of any incorrect or inadequate information or data by the Client), SCL is prevented or delayed from performing any of its obligations under the Agreement or the cost of such performance increases, then:
5.4.1 the time for performance of SCL’s obligations shall be extended for a reasonable period;
5.4.2 the Client shall pay SCL at SCL’s standard time and materials rates for any additional time spent and materials used by it with respect to any delays or extra work caused by such act or omission of the Client; and
5.4.3 SCL may recover all other reasonable costs, loss or damage from the Client which it sustains as a direct result of such act or omission.
5.5 SCL may charge at its standard time and materials rates for the time it spends assessing and responding to requests from the Client for a change to the Project.
6. Charges and Payments
6.1 In consideration of the provision of SCL’s services, the Client agrees to pay to SCL the Fees in accordance with the provisions of the Agreement.
6.2 As part of the Fees the Client shall reimburse to SCL all agreed costs and expenses incurred by SCL in the performance of the Project. Travel and subsistence expenses are re-charged at cost.
6.3 SCL may from time to time increase the hourly rates of those employees and contractors assigned to the Project. This will be agreed in advance with the Client in writing.
6.4 All Fees are expressed exclusive of VAT. The Client shall pay to SCL, in addition to the Fees, the amount of VAT (if any) which is properly chargeable by SCL to the Client on or in respect of the Fees.
6.5 Invoices will be issued to the Client by SCL at pre-agreed milestones or dates as described in the Proposal and/or Statement of Work. Payment is due within 30 days of the date of the invoice.
6.6 If payment of an invoice is not made in full by the due date, SCL shall, without prejudice to any other rights or remedies, have the right to:
6.6.1 cancel the Agreement or suspend the Project; and
6.6.2 charge the Client interest (both before and after any judgment) on the amount unpaid at the same annual rate as is prescribed from time to time pursuant to section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 with a minimum rate of 10% per annum.
6.7 The Client shall not be entitled to withhold payment of any sum otherwise payable to SCL by reason of any claim, set-off or for damages in relation hereto.
7. Risk and title in the deliverables
7.1 Risk of damage to or loss of any Deliverables shall pass to the Client on delivery.
7.2 Title to any Deliverables that are goods and in any physical media on which Deliverables are stored shall pass to the Client on the later of delivery or payment of the Fees for them.
8.1 Each party shall use the Confidential Information of the other party whether disclosed before or after the date of the Agreement only for the proper performance of its duties under the Agreement and shall not without the disclosing party’s written consent disclose or permit the disclosure of the confidential information except in confidence for the proper performance of its duties under this Agreement to those of its employees, sub-contractors, officers and professional advisers who need to have access to it.
8.2 The provisions of clause 1 shall not apply to Confidential Information which: (i) the receiving party can prove was known to the receiving party before receipt; (ii) is in or enters the public domain through no wrongful default by or on behalf of the receiving party with effect from the date when that information enters the public domain; (iii) was received from a third party without obligations of confidence owed directly or indirectly to the disclosing party; or (iv) is required to be disclosed in order to comply with applicable law, to the extent of the required disclosure.
9. Intellectual Property
9.1 All Intellectual Property created by SCL pursuant to the Agreement (including in any documents, computer software or Deliverables) which subsists now or at any time in the future shall be and remain the exclusive property of SCL.
9.2 Any materials produced or supplied to the Client by SCL in which Intellectual Property rights are capable of subsisting shall be licensed to the Client for internal use only in connection with the purposes of the Agreement and such licence shall terminate immediately on termination or expiry of the Agreement. The Client shall not distribute any Deliverables provided under the Agreement to any third party without SCL’s prior written consent.
9.3 The Client undertakes not to cause or permit anything which may infringe the Intellectual Property of SCL or SCL’s title to it or assist or allow others to do so.
10. Data protection
10.1 Each party warrants that it has made all relevant notifications in accordance with its obligations under the Data Protection Act 1998 to the extent required for the processing of personal data (as defined under that Act) in the performance of its obligations and exercise of its rights under the Agreement.
10.2 The parties agree to comply with the relevant provisions of the Data Protection Act 1998 in its processing of such personal data.
11.1 Nothing in the Agreement shall limit the liability of SCL to the Client for:
11.1.1 death or personal injury resulting from its negligence (as defined in the Unfair Contract Terms Act 1977);
11.1.2 fraudulent misrepresentation; or
11.1.3 any other liability which cannot be excluded or limited by applicable law.
11.2 Subject to clause 11.1:
11.2.1 SCL shall not be liable to the Client for loss or damage to the Client’s property unless due to the negligence of the SCL staff;
11.2.2 SCL’s maximum aggregate liability under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed the total remuneration payable to SCL under the Agreement during the preceding 12 months; and
11.2.3 SCL will not be liable under the Agreement for any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.
11.3 Except as expressly set forth in the Agreement, all conditions, warranties and other terms and all representations expressed or implied by statute common law or otherwise with respect to the Project are excluded to the fullest extent permitted by law.
12.1 Without prejudice to any other rights or remedies of SCL, the Agreement may be terminated immediately by SCL on written notice if:
12.1.1 the Client fails to pay all or any Fees by the due date (save to the extent that there is a bona fide dispute in relation to the whole of the amount unpaid) and continues to fail to pay such sums for 14 days after receipt of written notice to do so from SCL;
12.1.2 the Client does or permits any act by which SCL’s rights in any Intellectual Property may be infringed.
12.2 The Agreement may be terminated immediately by either party on written notice if:
12.2.1 the other is in material breach of an obligation under the Agreement (other than as mentioned in clause 1) and in the case of any such breach capable of remedy has failed to remedy the breach within a period of 30 days after receipt of written notice to do so;
12.2.2 the other party has any order made or resolution passed for their winding up or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt.
13. Effects of termination
13.1 On termination or expiry of the Agreement for any reason and without prejudice to any other remedy available to SCL the Client shall immediately pay to SCL:
13.1.1 any sums due to date under the terms of the Agreement; and
13.1.2 in the event of termination by reason of the Client’s breach of the Agreement, any further sums which would but for the termination of the Agreement have fallen due by the end of SCL’s engagement less a discount for any accelerated payment at the rate of 5% per annum.
13.2 Termination or expiry of the Agreement for any reason shall not affect the accrued rights and liabilities of the parties to the Agreement on the date of termination or expiry.
14.1 The Client undertakes that it will not (and it will ensure that any subsidiary, associated company of the Client or any person connected with it will not) directly or indirectly recruit as an employee or engage as an independent contractor any person employed or so engaged by SCL in connection with the services provided hereunder for a period of six months after such person last provided services to the Client.
14.2 In the event that the Client is in breach of the undertaking in clause 1, the Client and SCL agree and the Client will pay liquidated damages of a sum equal to 75% of the annual remuneration or payment and any other benefits payable to the relevant individual by SCL at the rate payable during the week immediately prior to such individual ceasing to provide services to SCL.
Subject to clause 8, SCL shall be entitled to refer to its provision of services to the Client for any purpose in connection with SCL’s business or otherwise publicise the existence of the Agreement or use or refer to the name, trade mark or trade name of the Client in any disclosure provided that SCL has obtained the prior consent of the Client. In the event of objection by the Client on reasonable grounds, SCL shall not refer to the Client or make the announcement as proposed.
16. dispute resolution
In the event of any dispute arising between the parties in connection with the Agreement, the parties will in good faith seek to resolve that dispute through mediation. The mediator shall be agreed upon within seven days of one party requesting mediation. Unless otherwise agreed, the parties shall share equally the costs of the mediation. If the dispute is not resolved within 30 days or one of the parties refuses to participate in mediation, the dispute shall be resolved by way of litigation. Nothing in this clause shall prevent either party seeking a preliminary injunction or other judicial relief at any time if in its judgment such action is necessary nor shall SCL be precluded from issuing proceedings or taking any other step in relation to the non-payment of monies due.
No amendment of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties.
17.2 Sub-contracting and assignment
17.2.1 SCL may sub-contract to any other person the performance of any of the obligations undertaken by it and exercise any of the rights granted to it under the Agreement.
17.2.2 SCL may assign, transfer (in whole or in part), charge, declare a trust over or deal in any manner with the Agreement or the benefit or burden of or the rights under the Agreement.
17.2.3 The Client may not without the prior written consent of SCL assign, transfer (in whole or in part), charge, declare a trust over or deal in any manner with the Agreement or the benefit or burden of or the rights under the Agreement.
17.3 Force Majeure
17.3.1 Neither party shall be liable to the other party for any delay or non‑performance of its obligations under the Agreement to the extent that its performance is interrupted or prevented by any act or omission beyond its reasonable control including an act of God, national emergency, war, prohibitive governmental regulation or any other cause beyond the reasonable control of the parties.
17.3.2 Where performance of the obligations under the Agreement is rendered impossible by a force majeure event, the parties shall be released from their obligations whereupon all money due under the Agreement shall be paid.
17.4 Warranty of authority
Each of the parties warrants its power to enter into the Agreement and that it has obtained all necessary approvals to do so.
Except as otherwise stated in the Agreement, the rights and remedies of each party under the Agreement are in addition to any other rights or remedies under the Agreement or the general law, and may be waived only in writing and specifically. Failure by either party to enforce at any time or for any period any one or more of the terms or conditions of the Agreement shall not be a waiver of them or the right at any time subsequently to enforce all terms and conditions of the Agreement.
17.6 Entire agreement
Each party acknowledges that the Agreement (as varied) contains the entire agreement between the parties with respect to the subject matter of the Agreement and supersedes and extinguishes any prior drafts, agreements, undertakings, understandings, promises or conditions, whether oral or written, express or implied between the parties relating to such subject matter.
17.7 No reliance
Each party acknowledges that it has not relied upon any oral or written representations made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
17.8 No partnership or agency
Nothing in the Agreement is intended to or shall operate to create a partnership between the parties or to authorise either party to act as agent for the other.
17.9 Rights of third parties
A person who is not a party to the Agreement has no rights under the Contracts (Rights of Third parties) Act 1999 to enforce, or to enjoy the benefit of, any provision of the Agreement.
17.10.1 Any notice to be served on either of the parties by the other shall be sent by pre-paid recorded delivery or registered post to the registered office address of the relevant party or such other address substituted in writing (and if more than one address any such address) and shall be deemed to have been received by the addressee within 72 hours of posting.
17.10.2 Any notice of proceedings or other notices in connection with or which would give effect to such proceedings may without prejudice to any other method of service be served upon any party in accordance with clause 10.1.
17.10.3 In the event that the Client is resident outside England, its address for service in England shall be the address for service nominated by the Client and notified to SCL and any time limits in any proceedings shall not be extended by virtue only of the foreign residence of the Client.
17.11 Survival of obligations
The provisions of clauses 4, 6, 8, 9, 11, 12, 13, 14, 17 and any other clauses which expressly or impliedly survive expiry or termination of the Agreement for any reason whatsoever shall continue in full force and effect after expiry or termination.
17.12 Governing law and jurisdiction
17.12.1 The Agreement and any dispute or claim arising out of or in connection with it (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and Wales and any proceedings arising out of or in connection with the Agreement may be brought in any court of competent jurisdiction in England or Wales.
17.12.2 The submission by the parties to such jurisdiction shall not limit the right of SCL to commence any proceedings arising out of the Agreement in any other jurisdiction it may consider appropriate.