In these Conditions the following words have the following meanings:
“Conditions” the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) including any special terms agreed in writing between the Supplier and the Customer.
“Customer” the person named in the Confirmation as the Customer or customer.
“Confirmation” the Supplier’s confirmation of sales order, agreed between the Supplier and the Customer from time to time, which shall include a description the Services and setting out the Services timetable and responsibilities for the provision of the Services.
“Contract” these terms and conditions together with any Confirmation agreed from time to time.
“Deliverables” the deliverables as set out in a Confirmation.
“Documentation” any document, digital data, plan or drawing or information made or compiled by the Supplier in connection with the Services.
“Related Third Party” any third party that is related to or engaged by the Customer including but not limited to those identified specifically as such in a Confirmation.
“Services” the services rendered by the Supplier (or by its authorised agents) as more particularly described and specified in the Confirmation.
“Supplier” Custerian Limited.
Words using the singular include the plural and vice versa. Words denoting the masculine include the feminine and neuter and words denoting natural persons include corporations and firms and all such words shall be construed interchangeably in that manner.
2. FORMATION OF THE CONTRACT
2.1 These Conditions shall govern the Contract to the exclusion of any other general conditions or other terms of business, unless otherwise agreed in writing between the Supplier & Customer.
2.2 No agent or employee of the Supplier has authority to vary or waive any of these Conditions except a director of the Supplier doing so in writing.
2.3 No order shall be deemed accepted by the Supplier until it has confirmed its acceptance of the order in writing or by issuing a purchase order.
2.4 No verbal estimate or quotation given by the Supplier shall form the basis of any Contract unless confirmed in a Confirmation. The Customer shall not be entitled to rely for any purpose upon any representation made by the Supplier or any of its agents or employees except any which may be contained or expressly referred to in the Contract.
2.5 Any written quotation given by the Supplier shall be valid for a period of eight weeks from its date and if not accepted within that period shall be deemed withdrawn.
2.6 Any typographical, clerical or other error or omission in any sales or marketing literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without notice and without any liability on the part of the Supplier.
3.1 The description of any Services provided, shall be set out in or attached to the Confirmation.
3.2 The Customer acknowledges that in order for the Supplier to meet its obligations such that the Customer derives the benefit of the Services and that Deliverables are delivered within any anticipated timeframe, the Customer must comply with its obligations pursuant to these Conditions.
3.3 The Supplier shall supply the Services to the Customer in accordance with the Confirmation. The Supplier shall be entitled to employ sub-contractors (associates) to carry out its obligations under the Contract.
3.4 Time is not of the essence of the Contract, except in relation to payment.
3.5 The Customer shall:
3.5.1 ensure that the terms of the Confirmation reflect its best understanding of the requirements;
3.5.2 ensure any information reasonably required by the Supplier for the performance by the Supplier of its obligations is complete, accurate and provided in a timely manner in order for the Supplier to be able to meet its obligations;
3.5.3 co-operate with the Supplier in all matters relating to the Services;
3.5.4 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
3.5.5 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
3.5.6 keep and maintain all materials, equipment, documents and other property of the Supplier (“Supplier Materials”) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
3.5.7 comply with any additional obligations as set out in the Confirmation.
3.6 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer (or any Related Third Party) or failure by the Customer (or any Related Third Party) to perform any relevant obligation (Customer Default) then the Supplier shall not be treated as being in breach of this Contract shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations.
3.7 Each party warrants that its ability to perform fully its obligations under this Agreement will not be materially affected by the United Kingdom ceasing to be a Member State of the European Union or of the European Economic Area.
4. CHANGE CONTROL
4.1 If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other. Agreed changes shall be documented by way of a written change order or addendum executed by the parties.
4.2 The Supplier shall be entitled to changes to the Charges and/or the time for delivery provided in any Confirmation if the same results from any of the following causes:
4.2.1 the failure of the Customer to fulfil any of his obligations under this Agreement or an act of prevention by the Customer or a Related Third Party;
4.2.2 Customer Default;
4.2.3 the acts or omissions of a Related Third Party;
4.2.4 extra or additional work ordered by the Customer; or
4.2.5 Customer’s instructions, otherwise than by reason of the Supplier’s default.
5.1 The price for the Services is set out in the Confirmation (“the Charges”).
5.2 Unless otherwise stipulated in the Confirmation, the Charges for the Services shall be on a time and materials basis:
5.2.1 the Charges shall be calculated in accordance with the Supplier’s standard daily fee rates, as set out in the Confirmation;
5.2.2 the Supplier’s standard daily fee rates for each individual are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days (though the Supplier acknowledges that individuals supplied will be required to work such additional hours (without further remuneration) as are reasonably necessary for the proper performance of any obligations pursuant to this agreement); and
5.2.3 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third Parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
5.3 The Supplier shall invoice the Customer monthly in arrears.
5.4 The Customer shall pay each invoice submitted by the Supplier:
5.4.1 within 30 days of the date of the invoice;
5.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier; and
5.4.3 time for payment shall be of the essence.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 For Services or individuals provided in any overseas jurisdiction, the Charges shall be converted into Great British Pound Sterling at an official exchange rate to be mutually agreed between the parties, acting reasonably, at the date of the invoice.
5.7 The Supplier may, in addition to its other rights, charge interest on the overdue amount at the rate of 2% per cent per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
6. INTELLECTUAL PROPERTY
6.1 Nothing in this agreement affects either party’s rights in pre-existing Intellectual Property Rights (including pre-existing Intellectual Property Rights of either party contained in or relating to Confidential Information) (Pre-Existing IPR). For the avoidance of doubt, the Supplier shall own and retain without limitation all rights, title and interest in all templates, consulting methodologies and attendant tools that are used or developed during delivery of the Services, as well as any enhancements or improvements to these methodologies and tools but grants and shall procure that any relevant third party shall grant a non-exclusive, revocable, royalty free licence to the Customer to use, copy or modify any Pre-Existing IPR insofar as it is included as part of any Deliverable and provided that it is used solely to enable the Customer to derive the benefit of the Deliverables in the course of the Customer’s business activities.
6.2 The Customer shall own and retain all rights, title and interest in Deliverables that are authored, produced, created, conceived, collected, developed, discovered or made by the Supplier which result specifically and exclusively from provision of the Services and which relate specifically and exclusively to the Customer’s business.
6.3 The Supplier reserves all rights not expressly granted herein.
7 RESTRICTIONS ON THE PARTIES
7.1 The Customer shall not for a period of 12 months after termination or completion of the Contract:
7.1.1 in the same area of business in which the Supplier operates, deal with or seek the custom of any person that is, or was within the 12 months prior to the date of commencement of the Contract, a client or customer of the Supplier;
7.1.2 offer employment to, enter into a contract for the services of, or attempt to solicit or seek to entice away from the Supplier any individual or company who is at the time of the offer, or attempt, a consultant, director, officer or employee with the Supplier or procure or facilitate the making of any such offer or attempt by any other person.
7.1.3 solicit or endeavour to entice away from the Supplier any supplier who supplies, or has supplied within the previous 12 months goods AND/OR services to the Supplier if that solicitation or enticement causes or would cause such supplier to cease supplying, or materially reduce its supply of, those goods AND/OR services to the Supplier.
7.1.4 The undertakings in this clause are given by the Customer to the Supplier and apply to actions carried out in any capacity and whether directly or indirectly, on the Customer’s own behalf, on behalf of any other person or jointly with any other person.
8 LIMITATIONS OF LIABILITY
8.1 Nothing in the Contract shall limit or exclude the Supplier’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors, bribery or fraud by it or its employees, or any liability to the extent it cannot be excluded or limited by law.
8.2 Subject to clause 8.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
8.2.1 loss of profits;
8.2.2 loss of sales or business;
8.2.3 loss of agreements or contracts;
8.2.4 loss of anticipated savings;
8.2.5 loss of use or corruption of software, data or information;
8.2.6 loss of damage to goodwill; and
8.2.7 any indirect or consequential loss.
8.3 Subject to clause 8.1, the total liability of the Supplier to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total value of the Confirmation in respect of which the liability has arisen.
8.4 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.
8.5 This clause 7 shall survive termination of the Contract.
8.6 The Customer shall fully, promptly and effectively indemnify the Supplier against all expenses and liabilities whatsoever directly or indirectly relating to:
8.6.1 Any cancellation or other breach of contract by the Customer;
8.6.2 Any negligent or wilful act or omission of the Customer;
8.6.3 Any claims brought against the Supplier by a third party in connection with the Services unless such claim has been brought about by the Supplier’s own default or breach of duty.
9.1 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.1.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
9.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.3 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; or
9.1.4 the other party’s financial position deteriorates to such an extent that in the reasonable opinion of the terminating party the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract if the Customer becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4, or where the Customer has not paid any amount due under the Contract and such amount remains outstanding for more than two (2) business days after receiving notice in writing (including by email) of a failure to meet its obligations in accordance with clause 5.
10 CONSEQUENCES OF TERMINATION
10.1 On termination of the Contract for any reason:
10.1.1 the Customer shall pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest (if applicable) in accordance with clause 8.3 and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer in accordance with clause 5;
10.1.2 the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
10.1.3 subject to clause 10.1.2 the Supplier shall deliver to the Customer all completed, draft and part completed Deliverables including any notes drafts or workings;
10.1.4 the accrued rights, remedies, obligations and liabilities of the Parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
10.1.5 clauses which expressly or by implication survive termination shall continue in full force and effect.
11.1 Conflict. If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.
11.2.1 Each party agrees that it may use the other party’s confidential information only in the performance of its rights and obligations under this Agreement and that during the term of this Agreement and for a period of five years following termination of this Agreement it shall not disclose the other party’s confidential information including all knowhow, trade secrets, financial, commercial, technical, tactical or strategic information of any kind except in accordance with this clause 11.2.
11.2.2 Each party may disclose the other party’s confidential information to those of its employees, officers, advisers, agents or representatives who need to know the other party’s confidential information in order to perform the disclosing party’s rights and obligations under this Agreement provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom confidential information is disclosed is aware of its confidential nature and complies with this clause 11.2 as if it were a party.
11.2.3 Each party may disclose any confidential information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.
11.2.4 Each party (the Indemnifier) shall indemnify and keep indemnified and hold harmless the other (the Indemnitee) from and against any losses, damages, liability, costs (including legal fees) and expenses which the Indemnitee may incur or suffer as a result of or arising from any breach by the Indemnifier of its obligations under this clause.
11.3 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.4 Assignment and other dealings.
11.4.1 The Supplier shall not, without the Customer’s prior written consent (not to be unreasonably withheld or delayed), at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
11.4.2 The Customer shall not, without the prior written consent of the Supplier (not to be unreasonably withheld or delayed), assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
11.5 Entire agreement.
11.5.1 This agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.5.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
11.6 Counterparts. This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
11.7 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
11.8 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
11.8.1 waive that or any other right or remedy; or
11.8.2 prevent or restrict the further exercise of that or any other right or remedy.
11.9 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.10.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
11.10.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.10.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
11.10.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.11 Third Parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
11.12 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.13 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Email: email@example.com Tel: +01925 607060 Custerian Limited: Registered No. 5715857 VAT No. 970337515
Registered Address: Custerian Limited, Innovation Centre, Keckwick Lane, Darebury. WA4 4FS.