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Standard Terms and Conditions
Train Grow Profit Ltd
(Company number: 487005)
1. INTERPRETATION
In these terms and
conditions the following words and expressions shall have the
following
meanings:-
“Client” means [CLIENT NAME],
a party who engages the Company to carry out Contract Work;
“Company”
means Train Grow Profit Limited, a
company incorporated in England with registration number 4587005
whose registered office is at Atherton House, 13 Lower Southend
Road, Wickford, Essex, SS11 8AB its servants and agents;
"Conditions"
means the standard terms and conditions set
out in this document which (unless the context otherwise requires)
includes any special terms and conditions agreed in writing pursuant
to Condition 2.3;
“Confidential
Information” means all information of whatever nature relating
to the business Of the Company and any of its clients including
without prejudice to the generality of the foregoing, all business
plans, financial, technical, commercial, management, employee or
other information, data, data base, computer program, computer
software, and expertise of whatever kind including all readable or
computer or other machine readable information and all other
information in a written or oral form disclosed directly or
indirectly to the Client;
“Consultancy Work”
means work carried out by the Company in its
creation of a Specification;
“Consultant”
means any employee, agent, personnel,
or sub-contractor of the Company that carries out the Contract Work
for the Client on behalf of the Company;
“Charges”
means any Consultancy Charges,
Development Charges or Training Charges;
“Contract Price”
means the price for which the Company agrees
to carry out the Contract Work including all Charges together with
any additional costs payable by the Client;
“Contract Work”
means any Consultancy Work, Development Work,
Training Work or other work the Company agrees to carry out for the
Client;
“Development Work”
means any and all database, information technology,
computer programming or software creation, development, adaptation
or modification work carried out by the Company pursuant to a
Specification;
“Document”
includes, in addition to a document in
writing, any map, plan, graph, drawing or photograph, film,
negative, pictures, designs, manuals, specifications, tape,
electronic message or other device embodying visual images and any
disk, tape or device embodying any other data;
“Input Material”
means any Documents or other goods and
materials, and any data, 1 database, computer software or program or
other information provided by the Client relating to the Contract
Work;
“Output Material”
means any Document, Specification, computer
software or program, source code or object code or other goods and
materials, and any data or other information provided or produced,
designed, provided or created by the Company as part of the Contract
Work;
"Premises"
means the Premises at which the
Contract Work is to be performed;
“Specification”
means any specification or other similar
proposal for Development Work submitted to the Client by the
Company;
“Training Work”
means any and all database, software,
PowerPoint, or other computer or information technology training
provided by the Company;
"Writing"
means letter, telex, cable,
facsimile transmission, electronic message or any comparable means
of communication.
2. PERFORMANCE OF CONTRACT WORK – GENERAL PROVISIONS
2.1 The
Company shall provide Contract Work to the Client in accordance with
these Conditions.
2.2 These
Conditions shall govern the Contract Work to the exclusion of any
other terms and conditions, including any terms and conditions on
which the Client may purport to rely. The Client’s signature at the
end of these Conditions or the commencement of the Contract Work
(whichever is earlier) shall be deemed conclusive evidence of the
Client’s acceptance of these Conditions which shall be construed so
as to apply to any additional work arising out of the Contract Work.
2.3 No
variation or addition to these Conditions including any special
conditions shall be binding unless agreed in writing by an
authorised representative of the Company. No variation to the
Contract Work by way of addition, omission or other change shall in
any way affect or alter these Conditions. The Company's employees,
agents or sub-contractors are not authorised to make any
representations concerning the Contract Work unless confirmed by the
Company in writing. Upon commencement of the Contract Work the
Client acknowledges that they waive any claim for breach of any such
representations which are not made or confirmed in writing.
2.4 The
Client shall at its own expense supply the Company with all
necessary Documents or other materials, and all necessary data or
other information relating to the Contract Work within sufficient
time to enable the Company to provide the Contract Work. The Client
shall ensure the accuracy of all Input Material and shall at its own
cost retain duplicate copies of all Input Material and insure
against its accidental loss or damage for which the Company shall
have no liability however caused.
2.5 Any
typographical, clerical or other similar error or omission in any
sales literature, quotation, acceptance of offer, invoice,
Specification or other document or information issued by the Company
shall be subject to correction by the Company without any liability
on the part of the Company.
2.6 The
Company may at any time without notifying the Client make any change
to the Contract Work which is necessary to comply with any
applicable safety or other statutory requirements or which does not
materially affect the nature or quality of the Contract Work.
2.7 The
Client agrees to appoint an appropriately senior and qualified
project manager who shall be available to liaise with the Company in
respect of any Contract Work.
2.8 The
Client hereby agrees and acknowledges that the Contract Work does
not involve or place any obligation whatsoever on the Company to
provide any maintenance or support services, or any manuals or
guidance Documents whatsoever to the Client.
3. CONSULTANCY WORK AND SPECIFICATIONS
3.1 If the
Client wishes to engage the Company to carry out Consultancy Work to
produce a Specification for the Client, the Client shall send a
request in Writing to the Company for it to carry out such
Consultancy Work (“a Consultancy Purchase Order”). The Company shall
have a discretion as to whether to agree to carry out any
Consultancy Work requested in a Consultancy Purchase Order.
3.2 The
Client undertakes and agrees to pay the Company all of the Company’s
charges for any and all Consultancy Work carried out by the Company
(“Consultancy Charges”). The Consultancy Charges shall comprise of:-
3.2.1 the
Company’s charges for time spent by the Company’s Consultants in
carrying out the Consultancy Work charged to the Client at the
Company’s daily consultancy rate (as notified from time to time by
the Company to the Client) for each day and for each Consultant
engaged by the Client (“the Consultancy Fees”); and
3.2.2 any and
all travel, accommodation, email, and internet costs and similar
expenses and disbursements incurred by the Company through or as a
result of the Consultancy Work (“Consultancy Expenses”); and
3.2.3 any and
all applicable value added tax or other sales tax on the Consultancy
Fees and Consultancy Expenses.
3.3.1 such use
and access to the Premises as the Company may require, and at such
times as the Company may require; and
3.3.2 such use
and access to such equipment as the Company may require, and at such
times as the Company may require; and
3.3 The
Client shall at its own expense promptly provide the Company with
all co-operation and assistance required or deemed appropriate by
the Company for the Company to carry out any Consultancy Work
including but not limited to the following:-
3.3.3 such
email and internet facilities and access as the Company may require
at the Premises; and
3.3.4 such
details, specifications, data or other information of the Client’s
database, software, computer, information technology, or other
systems or practices as the Company may require; and
3.3.5 access to
and the services of such employees, personnel, agents or contractors
of the Client that are involved in the information technology,
database or computer systems of the Client or otherwise as the
Company deems appropriate.
3.4 A
Specification will be in such format and shall include such
information as the Company may decide, but shall in the usual
circumstances include:-
3.4.1 a
description of the Development Work that the Specification relates
to; and
3.4.2
confirmation of the Company’s daily charge to the Client for the
Company to carry out Development Work referred to in the
Specification; and
3.4.3 the
estimated duration for the Company to carry out the development
activities of the Development Work referred to in the Specification
(“the Development Duration Estimate”) together with a percentage
estimate by the Company as to the extent to which the Development
Duration Estimate may change. The Client hereby agrees and
acknowledges that the Development Duration Estimate is the Company’s
estimate of time that the Consultant will require to spend on
development activities in the Development Work for the Client, and
does not include any additional time which the Consultant may be
required to spend in meetings with the Client, or in altering,
adapting, testing or debugging the Development Work for the Client
(“Additional Work”). Any such Additional Work that the Consultant is
required to spend will be additionally charged to the Client at the
Company’s daily charge for Development Work as may be notified to
the Client by the Company.
3.5 The
Consultancy Work shall be carried out by the Company at such times
and on such dates as the Company may in its sole and absolute
discretion may decide or agree from time to time.
3.6 If the
Client wishes to engage the Company to carry out Development Work
contained in a Specification, the Client shall sign the
Specification and deliver it to the Company, and such signature and
delivery shall be deemed to be a request by the Client for the
Company to carry out the Development Work contained in the
Specification (“a Development Purchase Order”).
4. DEVELOPMENT WORK
4.1 The
Client shall be responsible to the Company for ensuring the accuracy
of the terms of any Development Purchase Order submitted by the
Client (including its Specification) and for giving the Company all
necessary information relating to the Development Work within a
sufficient time to enable the Company to provide the Development
Work in accordance with its Specification. No Development Purchase
Order which has been accepted by the Company may be cancelled by the
Client, except with the agreement in writing of the Company and on
terms that the Client shall immediately indemnify the Company in
full against all loss (including loss of profit), costs (including
the cost of all labour and materials used), damages, charges and
expenses incurred by the Company as a result of the cancellation.
4.2 The
Company shall commence and carry out any Development Work at such
times and on such dates as the Company in its sole and absolute
discretion may agree or decide from time to time.
4.3 The
Client acknowledges and agrees that Development Work provided by the
Company is reliant and based upon the Specification to which such
Development Work relates. The Client agrees that if following the
Company’s acceptance of a Development Purchase Order, the Client’s
requirements differ or are altered in any way whatsoever from the
Specification (or the requirements upon which the Specification is
based) the Company shall have a sole and absolute right and
discretion to do the following:-
4.3.1 to
terminate immediately any agreement between the Client and the
Company to carry out the Development Work (and any other Contract
Work) without liability to the Client, whereupon any Charges payable
by the Client in respect of any Contract Work carried out by the
Company shall be immediately payable; or
4.3.2 carry out
such Consultancy Work as may be required for the Company to create a
replacement Specification for the Development Work (“a
Respecification”), provided that:-
4.3.2.1 the Client
shall be obliged to comply with the provisions of these Conditions
relating to Consultancy Work (including being obliged be deemed to
pay the Consultancy Fees of the Company) in the Company’s creation
of any such Respecification; and
4.3.2.2 the Client
shall be deemed to have accepted such Respecification as the ongoing
Specification for the Development Work being carried out by the
Company unless otherwise agreed by the Company.
4.4 The
Client undertakes and agrees to pay the Company all of the Company’s
charges for any and all Development Work carried out by the Company
(“Development Charges”). The Development Charges shall comprise of:-
4.4.1 the
Company’s charges for time spent by the Company’s Consultants in
carrying out the Development Work and any Additional Work charged at
the Company’s daily development rate as notified from time to time
by the Company to the Client (“Development Fees”); and
4.4.2 all
travel, accommodation, email, and internet costs and similar
expenses and disbursements incurred by the Company through or as a
result of the Development Work (“Development Expenses”); and
4.4.3 any and
all applicable value added tax or other sales tax on the Development
Fees and Development Expenses.
4.5 The
Client shall at its own expense promptly provide the Company with
all co-operation and assistance required or deemed appropriate by
the Company for the Company to carry out any Development Work
including but not limited to the following:-
4.5.1 providing
the Company with such use and access to the Premises as the Company
may require, at such times as the Company may require; and
4.5.2 providing
the Company with such use and access to such equipment, database,
software or other technology of the Client as the Company may
require, and at such times as the Company may require; and
4.5.3 providing
the Company with such email and internet facilities and access as
the Company may require at the Premises; and
4.5.4 providing
the Company with such details, specifications, data or other
information of the Client’s computer, information technology, or
other systems or practices as the Company may require for it to
carry out the Development Work; and
4.5.5 providing
the Company with access to and the services of such employees,
personnel, agents or contractors of the Client that are involved in
the information technology, data base or computer systems of the
Client or otherwise as the Company deems appropriate.
4.6 The
Client agrees that it will not ‘go live’ and implement any
Development Work carried out by the Company, until such time as the
Company has expressly confirmed to the Client that the Company
considers that the Development Work and any necessary Additional
Work is complete (“Express Clearance”). In the event that the Client
‘goes live’ or implements any Development Work before the Company
has given Express Clearance, in no event will the Company be liable
to the Client, or any third party whatsoever (and the Client agrees
to hold the Company harmless) for any failure, malfunction, or
effect of the Development Work or for any damages including any lost
profits, lost revenue, lost data, lost clients, lost savings or any
indirect, special, incidental or consequential damages arising out
of the Development Work.
5. TRAINING WORK
5.1 If the
Client wishes to engage the Company to carry out Training Work, the
Client warrants that it shall accurately complete in Writing a
training questionnaire (which shall be provided to the Client by the
Company on the Client’s request) for each person whom the Client
wishes to have trained by the Company and send any such training
questionnaire to the Company.
5.2 After
the Company’s receipt of the Client’s training questionnaires in
accordance with clause 5.1 above, the Company shall provide the
Client with the Company’s estimate (“a Training Proposal”)
containing a quotation of the Company’s charges for providing the
Training Work requested by the Client or the daily rate at which the
Company is prepared to provide the Training Work (“Training Fees”).
5.3 The
Company shall commence and carry out any Training Work at such times
and on such dates as the Company in its sole and absolute discretion
may agree or decide from time to time.
5.4 The
Client undertakes and agrees to pay the Company all of the Company’s
charges for any and all Training Work carried out by the Company
(“Training Charges”). The Training Charges payable by the Client
shall comprise of:-
5.4.1 the
Training Fees for each Consultant engaged by the Client; and
5.4.2 all
travel (outside the M25 area), accommodation, and similar expenses
and disbursements incurred by the Company through or as a result of
the Training Work (“Training Expenses”); and
5.4.3 any and
all applicable value added tax or other sales tax on the Training
Fees and Training Expenses.
5.5 The
Client shall at its own expense promptly provide the Company with
all co-operation and assistance required or deemed appropriate by
the Company for the Company to carry out any Training Work including
but not limited to the following:-
5.5.1 providing
the Company with such use and access to the Premises as the Company
may require, and at such times as the Company may require; and
5.5.2 providing
the Company with such use and access to such equipment as the
Company may require, and at such times as the Company may require;
and
5.5.3 providing
the Company with such email and internet facilities and access as
the Company may require at the Premises; and
5.5.4 providing
the Company with such details, specifications, data or other
information of the Client’s computer, information technology, or
other systems or practices as the Company; and
5.5.5 providing
the Company with access to and the services of such employees,
personnel, agents or contractors of the Client that are involved in
the Training Work or otherwise as the Company deems appropriate.
6. PRICE OF THE CONTRACT WORK
6.1 The
Company reserves the right by giving notice to the Client at any
time before completion of the Contract Work to increase the Contract
Price to reflect:-
a) any
increase in the cost to the Company which is due to any factor
beyond the control of the Company such as, without limitation, any
foreign exchange fluctuation, currency regulation or alteration,
alternation of duty, significant increase in the costs of labour,
transport or facilities at the Premises;
b) any
change in the Contract Work which is requested by the Client;
c) any
additional costs which in the Company’s sole discretion have been
incurred as a result of instructions of the Client or failure of the
Client to give the Company adequate information or instructions or
any inaccuracy of the Input Material or other cause attributable to
the Client.
7. TERMS OF PAYMENT
7.1 Unless
otherwise agreed in writing by the Company, payment by the Client
for any Contract Work shall be made by the Client to the Company
within 14 days of the date of any invoice from the Company (“an
Invoice”). Invoices will be raised at such times and at such
intervals as the Company in its discretion may decide. The Company
reserves the right to invoice in advance. Time of payment of any
Invoice shall be of the essence. Charges shall not be subject to any
set off or deduction by the Client.
7.2 Interest
shall be charged to the Client on any Invoice which remains unpaid
14 days after the Invoice date at a rate of 5% per annum above the
base rate from time to time of National Westminster Bank Plc. Such
interest shall accrue on a day to day basis and shall be compounded
monthly and shall continue to accrue after as well as before any
judgment.
7.3 If the
Client fails to make payment in full in accordance with Condition
7.1 above then, without prejudice to any other right or remedy
available to the Company, the Company shall be entitled to:-
7.3.1 cancel or
suspend all Contract Work and terminate any agreement between the
Client and the Company without the Company having any liability to
the Client; and/or
7.3.2 Charge
interest under Condition 7.2 above; and/or
7.3.3 recover
all Output Material and other goods and materials forming part or
all of the Contract Work wherever the same may be located and the
Client shall be responsible for the costs of recovery in addition to
any other sum. The Company shall have the right to enter onto the
Client’s or any other premises for the purpose of recovering Output
Material or other goods or materials pursuant to this clause; and
7.3.4 an
indemnity from the Client for all losses, costs and liabilities
suffered or incurred by the Company as a result of any action taken
by the Company in consequence of the Client’s failure to make due
payment of the Contract Price in accordance with Condition 7.1
above.
8. DELAY OR NON COMPLETION OF THE CONTRACT WORK
8.1 The
Company shall not be liable for any delay, non-performance,
non-provision or non completion of the Contract Work that is due to
the acts or omissions of the Client or that is beyond the Company’s
reasonable control nor for any consequence thereof howsoever caused.
The time for the provision of the Contract Work shall not be of the
essence unless previously agreed by the Company in writing.
8.2 A charge
will be incurred by the Client in respect of any delays caused at
the Premises to any Contract Work by persons other than the Company.
Any such delay will be charged to the Client at the hourly rate per
person, (a part of an hour being treated as a whole hour for the
purpose of calculating the charge) appropriate to the type of
Contract Work delayed. Details of hourly rates are available from
the Company at the Client's request.
9. MATERIALS
9.1 All
Output Material shall, unless specifically agreed in writing
otherwise, remain the property of the Company and shall be deemed to
be on hire to the Client and the Client shall keep the same in good
and safe condition at all times and not remove the same from the
Premises except with the Company’s written consent. In the event of
the Client or any person removing, repositioning or otherwise
altering the goods and materials in whatever way the Client shall be
fully responsible for the same and shall indemnify the Company
against any damage or loss howsoever incurred.
9.2 If the
parties agree in writing that on completion of the Contract Work,
any Output Material shall become the property of the Client (whether
or not subject to further payment) the said goods and materials
shall immediately become the sole responsibility and risk of the
Client whether or not entrusted to the Company for transportation
and/or storage. Property in such Output Material shall not pass to
the Client until the Company has received in cash or cleared funds
payment of the Contract Price and any additional costs in full.
10. CLIENT’S MATERIALS
10.1 The
Client shall be fully responsible for the addition or incorporation
of all Input Material into the Contract Work as the Client requires.
10.2 The
Client warrants that it is either the owner or agent of any Input
Material supplied through or on behalf of the Client for use by the
Company in connection with the Contract Work and that such Input
Material is of sound construction and is fit and proper for such use
as is anticipated in the Contract Work. The Company does not warrant
that any Output Material or other goods and materials comprising the
Contract Work are fit or suitable for the addition or incorporation
of any other materials of any form.
10.3 All
Client’s materials or property held by the Company wherever and for
whatever duration shall unless otherwise agreed remain at all times
the responsibility of the Client who shall keep the same suitably
insured. The Client will indemnify the Company in respect of any
loss or liability arising or incurred in respect of or as a
consequence of the storage of the Client’s goods howsoever caused.
11. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
11.1 All
Intellectual Property rights (including without limitation,
trademark, copyright, patent, moral rights, performance rights, data
and archive rights, design rights, rights to confidential
information, broadcasting and publishing rights and advertising,
sponsorship or endorsement rights) (“Intellectual Property Rights”)
created by or arising out of the Contract Work or the Output
Material shall, unless otherwise agreed in writing between the
Client and Company shall vest in and belong to the Company, subject
only to the right of the Client to use the Output Material for the
purposes of the Contract Work. The Client shall not copy, reproduce
or divulge in whole or in part any Output Material to any person and
any such items coming into the possession of the Client shall be
returned to the Company on or before completion of the Contract Work
or on demand. The Client shall at any time at the request of the
Company and without being entitled to any payment therefor sign all
documents and provide any other co-operation reasonably required by
the Company to vest or otherwise perfect the ownership of such
Intellectual Property in the Company.
11.2 In the
event that the Contract Work includes the creation, design,
provision or production by the Company of any work in which any
Intellectual Property Rights or any right of ownership is capable of
existing including the creation of slogans and logos, (and all
goodwill attached thereto) they shall at all times belong to the
Company irrespective of whether the Input Material belongs to the
Client and the Client shall not exploit or utilise in any way the
Intellectual Property Rights unless the Company shall agree in
writing.
11.3 The
Client warrants that any Input Material and its use by the Company
for the purpose of providing the Contract Work will not infringe the
Intellectual Property Rights or any other rights of any third party
and the Client shall indemnify the Company against loss, damages,
costs, expenses or other claims arising from any such infringement.
11.4 The
Client undertakes to the Company to keep confidential all
Confidential Information. The Client shall not use without the prior
written consent of the Company any Confidential Information other
than for the purposes of the agreement between them nor disclose the
Confidential Information to any personnel (meaning any director,
officer, employee, agent (and their officers, employees, and agents)
and any subcontractor of the Client) other than personnel who for
the purposes of the agreement between the Company and the Client
need to receive the Confidential Information.
11.5 The
Client agrees to destroy upon demand at any time and without delay
any Confidential Information (and confirm in writing that they have
done so) or upon request at any time immediately return any
Confidential Information to the Company.
12. WARRANTIES AND LIABILITIES
12.1 The
Company shall be under no liability arising from any drawing,
design, instruction or specification supplied by the Client
including the Input Material. The Company shall be under no
liability arising from any goods or materials belonging to the
Client used by the Company in the Contract Work.
12.2 Subject
to the other provisions of this Condition 12, the entire liability
of the Company under or in connection with the Contract Work
(whether in contract, tort, breach of statutory duty or otherwise)
shall not exceed the Contract Price (except as expressly provided in
these Conditions) or such sum as may in all the circumstances be
reasonable having regard to any insurance policy the Company has in
place and which it is able to obtain payment from, in respect of
such liability (“the Insurance Limit”) in the event that the
Insurance Limit is greater than the Contract Price. If the Company
is liable (whether in tort, contract or otherwise) to the Client,
the Client shall mitigate their loss.
12.3
Notwithstanding the above and subject to Condition 12.4, the Company
shall not be liable for:-
12.3.1 any
indirect, special, incidental, consequential, economic or business
loss or damage or punitive damage (including without limitation any
loss of profits, loss of savings, loss of data, loss of revenue,
loss or business, loss or damage to reputation, or loss or damage as
a result of an action brought by a third party) suffered by the
Client; or
12.3.2 any
infringement of any third party rights (including any intellectual
property rights) caused by any Output Material or the Contract Work;
or
12.3.3 any delay
or failure by the Company to carry out any obligations it has to the
Client if such delay or failure is due to any cause (whatsoever)
beyond the Company’s reasonable control; or
12.3.4 any errors
or defects in or any loss caused by any Contract Work or Output
Material which is accepted by the Client, and for the purpose of
this Condition, the Client shall be deemed to have accepted all
Contract Work and Output Material unless written notice of any error
or defect has been served on the Company within 5 days of the
Client’s receipt of such Contract Work or Output Material; or
12.3.5 any
computer viruses, logic bombs or any other invasive programmes which
may be introduced to the Client’s (or any third party’s) computer
system from or through the Contract Work.
12.4 Nothing
in this Condition 12 shall have the effect of, or be read as
attempting to have the effect of excluding or restricting any
liability which the Company may have for death or personal injury
caused by any negligence of the Company.
12.5 The
Company does not provide any warranty or any other contractual
obligation as to the accuracy or quality of any information, data or
content that is received by or transmitted to the Client in the
Company’s provision of the Contract Work. The Company excludes all
conditions, terms, representations and warranties relating to the
Contract Work whether imposed by statute or operation of law
otherwise, that are not expressly stated in these Conditions
including, without limitation, any implied warranty of standard,
quality and fitness for a particular purpose.
12.6 The
Company shall not be liable to the Client or be deemed to be in
breach of the Contract by reason of any delay in performing, or any
failure to perform, any of the Company’s obligations in relation to
Contract Work, if the delay or failure was due to any cause beyond
the Company’s reasonable control. Without prejudice to the
generality of the foregoing, the following shall be regarded as
causes beyond the Company’s reasonable control:-
12.6.1 Act of
God, abnormal weather conditions, explosion, flood, tempest, fire or
accident;
12.6.2 War or
threat of war, sabotage, insurrection, riot, civil disturbance or
requisition including the overthrowing of the existing government or
regime, nuclear explosions whether accidental or deliberate;
12.6.3 Acts,
restrictions, regulations, bylaws, prohibitions or measures of any
kind on the part of any Governmental, Parliamentary or Local
Authority;
12.6.4 Import or
export regulations or embargoes;
12.6.5 Strikes,
embargoes, lockouts or other industrial actions or trade disputes
(whether involving employees of the Company or of a third party);
12.6.6
Difficulties in obtaining materials, labour, fuel, parts or
machinery;
12.6.7 Power
failure or breakdown in any machinery.
13. CLIENT’S INSURANCE AND CONSENTS
13.1 The
Client shall be responsible for effecting all necessary insurances,
including adequate public liability insurances of the goods,
materials and equipment forming or used in connection with the
Contract Work except when at the Company’s premises including
insurance of the Premises and such other insurance as is required.
The Company shall not have any obligation to effect any such
insurance unless agreed to by the Company. It is specifically drawn
to the Client’s attention that the Company will not accept
responsibility for any losses, including any consequential losses,
arising as a result of delay in the completion of or damage to or
loss of the Contract Work or any Output Material or other goods or
materials forming the Contract Work except as provided herein.
13.2 The
Client shall indemnify the Company in respect of all losses or
liabilities (including legal costs)
suffered or
incurred in the event of any failure of the Client to comply with
any condition imposed in respect of the Premises by the owners of
the Premises or by local or other authorities or such other persons
whose consent or authorities may be required prior to or during the
Contract Work and ensure that all necessary licences have been
obtained and ensure that the Premises are suitable for the purpose
of the Contract Work and that there is suitable access and egress
from the Premises.
13.3 The
Client shall ensure that access to the Premises is given in
sufficient time to enable the Company to complete the Contract Work
and it shall be the responsibility of the Client to enquire of the
Company as to the time required for completion of the Contract Work.
14. INSOLVENCY OF OR BREACH OF THE CONDITIONS BY THE CLIENT
14.1 This
Condition 14.1 shall apply if:-
14.1.1 The Client
makes any voluntary arrangement with its creditors or (being an
individual or firm) becomes bankrupt or (being a company) becomes
subject to an administration order or goes into liquidation
(otherwise than for the purposes of amalgamation or reconstruction);
or
14.1.2 The Client
ceases, or threatens to cease, to carry on business; or
14.1.3 The
Company reasonably apprehends that any of the events mentioned above
is about to occur in relation to the Client and notifies the Client
accordingly; or
14.1.4 If the
Client commits any breach of these Conditions.
14.2 If
Condition 14.1 applies then, without prejudice to any other right or
remedy available to the Company, the Company shall be entitled to
cancel the Contract Work or suspend any further work on the Contract
Work without any liability to the Client, and if the Contract Work
has commenced or been completed the Contract Price shall become
immediately due and payable notwithstanding any previous agreement
or arrangement to the contrary.
14.3 The
Client shall indemnify the Company and keep the Company indemnified
against all claims, demand, damages, liability, costs, loss
(including any and all economic, indirect, or consequential loss, or
loss of profits, business or revenue) and expenses of whatever
nature suffered or incurred by the Company arising (directly or
indirectly) out of or from:-
14.3.1 the
Client’s breach of any Conditions; or
14.3.2 any
negligence of or breach of statutory duty by the Client; or
14.3.3 any damage
to any property of the Company or any Consultant or any death or
personal injury suffered by the Company or any Consultant at the
Premises; or
14.3.4 any claim
brought against the Company by any third party as a result of the
Client’s application or use of any Contract Work or Output Material.
15. GENERAL
15.1 Unless
any complaint is made to the Company as soon is reasonably possible
and in any case not later than 21 working days after the date that
the cause of the complaint arising comes to the attention of the
Client and is confirmed to the Company in writing within a further
10 working days the Contract Work will be deemed to have been
satisfactorily undertaken and the Client shall have no rights
against the Company in respect of any defects in the Contract Work.
15.2 Unless
otherwise agreed all goods and materials used in connection with the
Contract Work shall be transported by the Company at the risk of the
Client and where transported by the Client or on the Client’s behalf
other than by the Company the Client shall indemnify the Company
against any and all consequences arising from loss, delay or other
mishap and the Client shall ensure that the property of the Company
placed in the possession of the third party in connection with the
execution of the Contract Work is kept safe and shall indemnify the
Company against loss of damage and any consequence thereof.
15.3 The
Client is bound in all respects by these conditions and in addition
shall be bound by and be deemed to have full knowledge of any
additional conditions and regulations of the Company.
15.4 The
parties agree that these Conditions constitute the entire agreement
between the parties and supersede any previous agreement. All other
terms and conditions express or implied by statute or otherwise are
excluded to the fullest extent permitted by law.
15.5 The
disclaimers, exclusions and indemnities set forth herein are
considered reasonable by the parties at the time of agreement. In
the event such disclaimers, exclusions or indemnities are held not
to be enforceable or available by any competent authority but would
be enforceable or available in whole or in part if the language
thereof was amended or restricted then the parties agree the
language thereof may be so amended or restricted as to give the
maximum benefit thereof to the Company as is then permitted by law.
15.6 No waiver
by the Company of any breach of the Conditions by the Client shall
be considered as a waiver of any subsequent breach of the same or
any other Condition.
15.7 The
Contract shall be governed by the laws of England and the parties
agree to submit to the non-exclusive jurisdiction of the English
Courts.
15.8 Nothing
in these Conditions shall constitute or be deemed to constitute a
partnership between the Company and the Client and nothing in these
Conditions shall be deemed to constitute either the Company or the
Client as the agent of the other and neither of them shall have any
authority to bind the other in any way.
15.9 The
Client will comply with all relevant UK data protection legislation
(including without limitation the Data Protection Act 1998 and all
subordinate legislation) (“Data Protection Legislation”) in respect
of any data provided by it to the Company under the terms of or in
connection to any agreement between the Client and the Company. The
Client shall indemnify the Company against any loss or damage that
the Company may suffer or incur as a result of any breach by the
Client of any Data Protection Legislation including (without
limitation) any loss or damage that the Company may suffer or incur
as a result of the failure of the Client to obtain any appropriate
consents from any data subjects to the transfer or use by it or the
Company of data relating to them (whether contained in the Output
Material or otherwise).
15.10 For the
purposes of the Contracts (Rights of Third Parties) Act 1999 these
Conditions are not intended to and do not give any person who is not
a party to them any right to enforce any of their provisions other
than an Affiliate of the Company that has a right (of indemnity or
otherwise) under these Conditions in respect of the actions of the
Client.
15.11 The Client
undertakes and agrees with the Company that except as otherwise
agreed in writing by the Company, that the Client shall not directly
or indirectly solicit the employment or engagement of, or employ or
engage any Consultant who carries out any Contract Work for the
Client for or on behalf of the Company.
15.12 The
Company has the right to assign, transfer, sub-contract or otherwise
delegate any of its rights and obligations in the Contract Work or
these Conditions. The Client shall not without the Company’s prior
consent in writing assign or sub-contract any of its rights or
obligations under these Conditions.
These Conditions are hereby accepted and agreed to by the following
Client:
…………………………. ………………………………
Client name
Signed for an on behalf of the Client: …………………………………………………
Print name: . . . . . . . . . . . . . . . . . . …………………………………
Title: . . . . . . . . . . . . . . . . . . …………………………….
Date: . . . . . . . . . . . . . . . . . . …………………………….
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