TERMS AND CONDITIONS OF BUSINESS
1. Definitions and Preliminary
1.1. 'Contract' means a contract between the Contractor and the Client for specific services to be performed, and comprising of the Sales Order, any other document expressly referred to therein, and these Terms. A Contract referencing these terms is governed only by these terms and by no others, except where both parties expressly agree in writing. All changes must be agreed in writing.
1.2. ‘Contractor’ means Peel & Shaw Consulting Limited, its associates, sub-contractors and employees.
1.3. Unless otherwise clear from the context, references to ‘Client’ (other than where contractual obligations are imposed) include any named End-Client.
1.4. ‘Services’ means any goods or services which the Contractor agrees in writing to provide to the Client.
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2. Service Provider Responsibilities
2.1. The Contractor will deliver the Services using reasonable skill and care, and so far as is reasonably practicable, within any timescales previously agreed in writing with the Client.
2.2. The Contractor is responsible for:
2.2.1. Maintaining a minimum Professional Indemnity insurance (£250,000 per claim per annum), Employer's Liability insurance (£10,000,000), and Public Liability insurance (£2,000,000), and for providing evidence thereof on request.
2.2.2. Providing its own reference materials, administrative support, and equipment where required (other than where use of the Client’s equipment is required for reasons of security, because it is specialised, or because the Client’s equipment is itself the object of the Services).
2.2.3. Devising appropriate working strategies and providing the Services independently, in a professional manner, with all proper skill and care, and in accordance with accepted professional standards methodologies and guidelines, and with all agreed specifications and procedural requirements for the Project.
2.2.4. Rectifying any defective Services at its own cost, provided they are notified within the Defect Warranty Period and further provided such defect is not caused or contributed to by the Client.
2.2.5. Maintaining and providing any necessary qualifications, authorisations, and training.
2.2.6. Complying with all agreed IT, telecommunications, security, and Health and Safety policies and with any other relevant legislative requirements.
2.2.7. Giving the Client reasonable notice of any periods when the Services will not be provided.
2.2.8. Taking and being accountable for all its decisions in relation to all aspects of the performance of the Services based on information or directions from the Client.
2.3. Where this agreement names any personnel who are to provide the Services, the Contractor will use its reasonable endeavours to maintain continuity, but reserves the right under its contract with the Client to substitute other personnel of equivalent expertise. The Client has the right to refuse to accept Services from substitute personnel on reasonable grounds related to security, qualifications or expertise. No additional charge will be made for any handover period, and the Contractor remains responsible for Services performed on its behalf. The Contractor reserves the right to sub-contract all or any part of the Services.
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3. Client Responsibilities
3.1. The Client has no responsibility to the Contractor or any person engaged on the Services, other than (a) as specifically provided for under a Contract, and (b) such responsibilities as are generally owed to the public at large.
3.2. The Client is responsible for:
3.2.1. Giving the Contractor such cooperation, access and prompt answers to requests for information and answers to queries as are reasonably necessary for the proper performance of the Services.
3.2.2. Informing The Contractor if on any day the Services are not required.
3.2.3. Ensuring that all relevant Health & Safety policies and Risk Assessments are disclosed to the Contractor.
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4. Copyright and Intellectual Property Rights
4.1. Deliverable’ means a work produced by the Contractor in the course of Services for delivery to the Client. It is the Contractor’s responsibility to clarify with the Client whether in the interests of saving time and cost any pre-existing works are to be used in the production of any Deliverable. Where pre-existing works are incorporated in any Deliverable, the Client has non-exclusive irrevocable world-wide royalty free licence to use modify and distribute such pre-existing works, but only as part of the Deliverable; all other rights in the pre-existing works are reserved. Subject thereto, all rights in any Deliverable will pass to the Client, and it is the Contractor’s responsibility to provide a formal assignment thereof on request by the Client but at the Client’s cost.
4.2. It is the Contractor’s responsibility to indemnify the Client against liability as a result of alleged infringement of third party rights by a Deliverable, provided the Client notifies the Contractor of any relevant third party rights promptly on such rights becoming known to or suspected by the Client.
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5. Confidentiality
5.1. Each party will keep any confidential information disclosed by the other secret. Neither party may use or take advantage of any such confidential information without the discloser’s consent, even after the end of this Agreement. This obligation does not apply to (i) information known to the receiver before disclosure by the other party, or (ii) information which becomes public knowledge without fault on the part of the receiver, or (iii) disclosures made to the extent required by some applicable legal or regulatory requirement. It is the Contractor’s responsibility to provide any reasonable confidentiality agreement required by the Client.
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6. Charges and Payment
6.1. The Contractor’s standard payments terms require the receipt of monies due, either by BACS transfer or crossed Cheque, no later than 28 days from date of invoice and invoices may be rendered weekly or monthly at the Contractor’s discretion. A £25.00 administration fee is payable for cheque payments. A £100 fee is payable by the Client each time a cheque has to be re-presented by the Contractor.
6.2. Clients should ensure they make the following allowances for receipt of intended payments ahead of the 28 day period in 6.1 above in order to avoid interest charges:
6.2.1. Four (4) working days for electronic BACS transactions.
6.2.2. Five (5) working days for the postage and depositing of cheque payments.
6.3. Interest on late payments will be charged, in all cases, under the Late Payment of Commercial Debts (Interest) Act 1998 from the 29th day of the date of invoice, until the debt is settled. Calculation of the accruing interest will be on a daily basis, on a simple interest basis, using the Treasury’s notified rates and calculation methodology prevailing at the time.
6.4. The Contractor may suspend provision of Services whilst any payment is overdue, and where more than 28 days overdue may also terminate for material breach.
6.5. The Contractor will, in all cases, attempt to recover unpaid debts through a registered Debt Collection Agency.
6.6. Where the Agreement requires Service Reports, a Client authorised representative must authorise by signing (or electronically, where such procedures have been agreed) Service Reports every Invoicing Period. If the Client has any cause for dissatisfaction with performance of the Services it must note the relevant Service Report accordingly, and promptly provide any requested further details. The Contractor may invoice on the basis of authorised Service Reports.
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7. Termination
7.1. Any contract between the Contractor and the Client may be terminated:
7.1.1. By either party giving the other written notice of the Notice Period (for the purposes of these Terms such period is 2 calendar months).
7.1.2. by the Client by Immediate Notice, if the Contractor fails to provide the Services in accordance with these terms, provided the Client gives full written details and such further cooperation as the Contractor reasonably requires; the Client acknowledges that such right to terminate is the Client’s sole remedy against the Contractor for any such failure, without prejudice to any rights it may have against the Contractor.
7.1.3. by either party by Immediate Notice, if the other is in material breach of contract, or is in breach of contract and fails to remedy the breach within fourteen days of being required in writing to do so, or if the other becomes insolvent or ceases to carry on business, or if any preliminary step is taken towards the other’s liquidation winding up receivership or administration (other than for bona fide reconstruction or amalgamation).
7.1.4. by the Contractor by Immediate Notice, if the contract which has engaged the Contractor’s services terminates (for whatever reason), or if in the Contractor’s reasonable opinion it is under a legal obligation to terminate.
7.2. Immediate Notice means notice to terminate with immediate effect, and shall be effective however communicated, provided confirmed in writing as soon as reasonably practicable.
7.3. Any rights or obligations of a continuing nature shall survive termination.
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8. Liability
8.1. The Contractor will take reasonable care in selection for any particular engagement, and the Contractor has no reason to believe any information presented to the Client to be untrue. The parties agree that the Client’s own knowledge of its requirements is greater, and that it is therefore the Client’s sole responsibility to satisfy itself as to skills and suitability of the Contractor. By allowing the commencement of services the Client acknowledges that it has satisfied itself as to such skills and suitability.
8.2. Neither party enters a Contract on the basis of or relying on any representation, warranty or other provision except as expressly provided in writing, and all other terms implied by statute or common law are excluded so far as legally permitted. Liability or remedy for innocent or negligent misrepresentation is excluded.
8.3. Liability is neither limited nor excluded for death or personal injury, or otherwise where it would be unlawful to do so. Subject thereto:
8.3.1. Liability is excluded for consequential loss or damage of any kind or for loss of profit, business, revenue, goodwill or anticipated savings whether caused by negligence or breach of contract.
8.3.2. The total liability of The Contractor and any person providing Services on its behalf in respect of a risk required by a Contract to be insured is limited to the amount of the Specified Insurance Cover (in section 2.2.1 above) in respect of that risk.
8.3.3. These limitation and exclusion provisions shall operate for the benefit of all potentially liable persons.
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9. Employment obligations and third party rights
9.1. The relationship governed by a Contract is neither that of agent-principal, nor that of employer-employee; no person providing Services will be the employee of the Client.
9.2. The Contractor will keep the Client indemnified (a) in respect of any legitimate claim or demand made by the proper authorities for all taxes, national insurance or social security contributions, in respect of payments made for the services performed by the Contractor, and (b) against any claims that may be made by any person providing Services under employment-related legislation, unless the Client has sought to exercise the rights of an employer towards such person or unless the Client has caused or contributed to such claims by its acts or omissions, for example discrimination or harassment.
9.3. The terms of the Contractor’s contract expressly provide for the Client (but not an End-Client or any other third party) to have the benefit of the Contractor’s commitments therein and (where appropriate) to take legal action directly against the Contractor.
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10. General
10.1. Force majeure: If a party is obstructed in performing any of its obligations by an event outside its reasonable control or effort, then performance to the extent obstructed is suspended for so long as the obstruction continues. If contractual performance is suspended for more than 7 days, either party may terminate the Contract by immediate written notice.
10.2. Waiver: Failure to enforce any of these terms is not a waiver of a party’s rights and shall not prejudice its rights to take action in respect of the same or any later breach.
10.3. Severability: Any part of a term which is wholly or partially void, invalid, or unenforceable shall be severed from the remainder (which remains enforceable).
10.4. Notices: Any notice to be given by either party to the other shall be in writing, may be sent by recorded delivery, and shall be deemed served 2 days after posting
10.5. Law: These terms are governed by the laws of England & Wales whose courts shall have sole jurisdiction in relation to all matters arising.
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