Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 10.5.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 4.2.
Deliverables: the deliverables set out in the Scope of Work produced by the Supplier for the Customer.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Scope of Work: the Customer’s order for Services as set out in the quotation contained within the Scope of Work document provided to the Customer by the Supplier, the Customer’s written acceptance of a quotation contained within the Scope of Work document by the Supplier.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Scope of Work.
Supplier: Invinci Ltd registered in England and Wales with company number XXXXXXXX.
Supplier Materials: All materials, equipment, documents and other property of the Supplier.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Scope of Work constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Scope of Work shall only be deemed to be accepted when the Supplier issues written acceptance (which can be by email) of the Scope of Work at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 3 months from its date of issue.
3. Supply of services
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Scope of Work, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier 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 Supplier shall notify the Customer in any such event.
3.4 The Customer may request an alteration to the Services to be provided within the Scope of Work by providing a written request by way of email to the Supplier. Until such time as any alteration if formally agreed, the parties will, unless otherwise agreed, continue as if such alteration had not been requested. The Customer will have to pay any reasonable administration charge for each such alteration which is agreed by the Supplier and the Customer, in respect of the Scope of work or Services provided by the Supplier. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Customer’s obligations
4.1 The Customer shall:
(a) ensure that the terms of the Scope of Work and any information it provides in the Scope of Work are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) 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;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the Customer’s premises for the supply of the Services;
(f) obtain and maintain and provide to the Supplier at least 1 week before the commencement of the supply of Services copies of all necessary licences, permissions and consents which may be required before the date on which the Services are to start and indemnify the and hold harmless the Supplier and any of its employees, agents, subcontractors from and against all claims, losses, liabilities and damages (including reasonable attorneys’ fees and costs) arising from or in connection with any claims (including patent and copyright infringement) made against the Supplier, alleged to have occurred as a result of the Customer’s failure to obtain all necessary licences, permissions and consents; and
(g) comply with any additional obligations as set out in the Specification.
4.2 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 failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) in the event the Supplier is required (at the sole discretion of the Supplier) to carry out works to remedy the Customers Default, the Supplier shall be able to invoice the time spent carrying out the remedy works at a rate of £90 per hour;
(c) the Supplier 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 as set out in this clause 4.2; and
(d) in the event of a Customer Default, the Customer will be immediately liable to pay the Supplier’s the standard daily fee immediately on demand; and
(e) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. Charges and payment
5.1 The Charges for the Services shall be on a time and materials basis:
(a) the Charges shall be calculated in accordance with the Supplier’s quote as set out in the Scope of Work;
(b) the Supplier’s standard daily fee rates are calculated on the basis of a 8 hour day from 9.00 am to 6.00 pm worked on Business Days;
(c) 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.
5.2 The Supplier reserves the right to increase its standard daily fee rates, provided that such charges cannot be increased more than once during any order within the Scope of Work. The Supplier will give the Customer written notice of any such increase as soon as reasonably practicable before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within 7 days of the date of the Supplier’s notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving written notice to the Customer.
5.3 The Customer shall pay for each invoice properly submitted by the Supplier. The Supplier shall submit invoices to the Customer in accordance with the payment proposal set out in the Scope of Work.
5.4 The Customer shall promptly pay each invoice submitted by the Supplier within 30 days of delivery of the invoice. Payment shall be made in full and in cleared funds to a bank account nominated in writing from time to time by the Supplier, and time for payment shall be of the essence of the Contract.
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 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 9% per cent per annum above the Bank of England 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.
5.7 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). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier unless it is stated in the Scope of Work such ownership shall pass to the Customer on the termination of and following the payment in full of all the Supplier’s invoices.
6.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Customer obtaining a written licence from the relevant licensor on such terms as will entitle the Customer to use such Intellectual Property Rights.
6.3 All Supplier Materials are the exclusive property of the Supplier.
7. Limitation of liability
7.1 Nothing in the Contract shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
7.2 Subject to clause 7.1, 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:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect or consequential loss.
7.3 Subject to clause 7.1, the Supplier’s total liability 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 £10,000
7.4 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.
7.5 This clause 7 shall survive termination of the Contract.
8.1 Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party 30 days’ written notice, PROVIDED ALWAYS such notice shall not be valid if delivered within the first 12 month period of the Commencement Date.
8.2 In the event the Customer terminates the provision of services (howsoever determined), the Customer will become immediately liable on demand of pay for the remainder of the Charges due, or anticipated under the Scope of Work.
8.3 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:
(a) 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;
(b) 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;
(c) 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
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.4 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment; or
(b) there is a change of Control of the Customer.
8.5 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.3(b) to clause 9.3(d) or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9. Consequences of termination
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest 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 immediately on receipt;
(b) the Customer shall return all of the Supplier Materials
(c) and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. 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;
(d) 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
(e) clauses which expressly or by implication survive termination shall continue in full force and effect.
10.1 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.
10.2 Assignment and other dealings.
(a) The Supplier may 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.
(b) The Customer shall not, without the prior written consent of the Supplier, 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.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
10.4 Entire agreement.
(a) 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.
(b) 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.
10.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 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:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
10.7 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.
(a) 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 or commercial courier.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.8(a); 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.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.9 Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
10.10 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.
10.11 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.