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Terms and Conditions for the Supply of Services

Clark Business Development Limited Trading as www.onlyexcel.com

1 Definitions

1.1 In these terms and conditions the following definitions apply:

‘Affiliate’

of a party means any entity which directly or indirectly owns or controls, is directly or indirectly owned or controlled by, or is in common ownership or control with, that party;

‘Supplier Materials’

means all documents, materials, data, proprietary software (and the media on which they are each recorded), which are owned by the Supplier at the date of the Contract or which are subsequently created by the Supplier independently of the Contract, or which are subsequently created by the Supplier as a result of performing the Services;

‘Business Day’

means a day other than Saturday, Sunday and public holidays when clearing banks generally are open for non-automated business in Edinburgh;

‘Commencement Date’

means the date on which provision of the Services shall commence as specified in the Order;

‘Confidential Information’

means any commercial, financial or technical information relating to the products, services, plans, know-how or trade secrets, which is obviously confidential or commercially sensitive or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;

‘Contract’

means the agreement between the Supplier and the Customer for the supply and purchase of the Services and the Deliverables incorporating these Terms and the Order and its schedule (if any);

‘Customer Materials’

means all documents, materials, data, proprietary software (and the media on which they are each recorded), supplied by the Customer to the Supplier;

‘Deliverables’

means all documents, products and materials produced by the Supplier or its agents in relation to the Services and to be supplied to the Customer including any data, programs, reports, software and specifications, as set out in the Order;

‘Intellectual Property Rights’

means copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case:

(a) whether registered or not;

(b) including any applications to protect or register such rights;

(c) including all renewals and extensions of such rights or applications;

(d) whether vested, contingent or future;

(e) to which the Supplier is or may be entitled; and

(f) in whichever part of the world existing;

‘Order’

means the Customer’s order for the Services from the Supplier as set out in the Customer’s acceptance in writing of the Supplier’s quotation for the supply of Services;

‘Services’

means the services and other Deliverables set out in the Order to be supplied by the Supplier to the Customer;

‘Specification’

means the description or specification for the Services set out in the Order;

‘Supply Location’

means the address for provision of the Services (if any) as set out in the Order;

‘Terms’

means the standard terms and conditions of business of the Supplier set out in this document;

‘Value Added Tax or VAT’

means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the supply of the Services;

‘Warranty Period’

means the period referred to in clause 7.1.

1.2 Unless the context otherwise requires:

1.2.1 each gender includes the others;

1.2.2 the singular includes the plural and vice versa;

1.2.3 references to the Contract includes the agreement between the Supplier and the Customer for the supply and purchase of the Services and the Deliverables, the Terms, any Order and its schedule (if any);

1.2.4 references to persons include individuals, unincorporated bodies, partnerships (whether or not having separate legal personality), government entities, companies and corporations;

1.2.5 clause headings do not affect their interpretation;

1.2.6 general words are not limited by example; and

1.2.7 references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

2 The Order and incorporation of the Terms

2.1 An Order will be deemed to be an offer to purchase Services from the Supplier on the Terms of the Contract.

2.2 Orders are not binding until accepted by the Supplier in writing. The Supplier reserves the right at all times to reject any Order, in whole or in part, at its sole discretion.

2.3 Quotations issued by the Supplier are valid for ten (10) Business Days from date of issue. Quotations will be deemed to be an invitation to treat by the Supplier to supply Services on and subject to the Terms, and do not constitute an offer to sell or supply. If the Customer wishes to purchase Services the subject of a quotation, it will need to place an Order.

2.4 Marketing and other descriptive matter relating to Services are illustrative only, and do not form part of the Contract. The Customer agrees that, in placing an Order, it has not relied on any representation or statement by the Supplier not set out in the Contract.

2.5 These Terms apply to and form part of the Contract for the supply of the Services by the Supplier to the Customer. They supersede any previously issued terms and conditions of supply.

2.6 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract.

2.7 No variation of the Terms or to an Order, or to a quotation from the Supplier will be binding unless expressly agreed in writing and executed by a duly authorised signatory of the Supplier.

2.8 A contract will be formed upon the earlier to occur of:

2.8.1 written acceptance by the Supplier of the Customer’s Order; or

2.8.2 the execution of a specific written agreement by both the Supplier and the Customer.

3 Price and payment

3.1 The price for the Services will be as set out in the Order or in default of such provision will be calculated in accordance with the Supplier’s standard scale of charges in force on the date of formation of the Contract.

3.2 The price:

3.2.1 includes the costs and expenses of or arising in connection with any items listed in the Order which will be charged in addition; and

3.2.2 does not include Value Added Tax which will be charged in addition at the then applicable rate.

3.3 The price is payable as set out in the Order.

3.4 Services will be charged as set out in the Order and this may include fixed project fees and costs and/or prices on a time and materials basis at the Supplier’s then-current daily rates. The rates calculated on a time basis are based on an eight (8) hour day on a Business Day. For Services provided outside those times, the Supplier’s then current overtime rates will apply on the basis set out in the Order.

3.5 The Supplier may vary its rates and/or prices for Services at any time and from time to time. The Supplier will give the Customer not less than thirty (30) days’ written notice of such variations.

3.6 Orders accepted by the Supplier at the time of notification of price variations under clause 3.5 will be fulfilled at the original prices quoted.

3.7 The Supplier will invoice the Customer monthly in advance or as otherwise set out in the Order. Invoices will include all information necessary to enable the Customer to check their accuracy.

3.8 The Customer will pay all invoices (unless disputed in good faith):

3.8.1 in full, without deduction or set-off other than as required by law, in cleared funds within fourteen (14) days of date of receipt of invoice;

3.8.2 to the Supplier’s nominated bank account specified in the Order.

Time of payment is of the essence.

3.9 Where sums due hereunder are not disputed in good faith and are not paid in full by the due date:

3.9.1 the Supplier may, without limiting its other rights, charge interest on such sums at four per cent (4%) a year above the base rate of Bank of England from time to time in force;

3.9.2 interest will accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

3.10 VAT will be charged additionally by the Supplier and paid by the Customer at the then applicable rate.

4 Provision of services

4.1 The Supplier will provide the Services to the Customer in accordance with the Contract and the Specification.

4.2 The Services will begin on the Commencement Date and be performed for the period set out in the Order or, if no period is stated, until provision is complete or earlier termination of the Contract.

4.3 Whilst the Supplier will use its reasonable endeavours to meet any milestone dates set out in the Order, such dates are approximate only, and time of performance is not of the essence.

4.4 The Supplier will not be liable for any delay in or failure of performance of the Services (including any failure to achieve any milestone or other date) so far as caused by an event of Force Majeure or the Customer’s failure to perform its obligations under the Contract.

4.5 The Supplier may make any changes to the Services:

4.5.1 needed to comply with applicable law or safety requirements; or

4.5.2 which do not materially affect the nature or quality of the Services;

and will notify the Customer in advance of such changes.

5 Supplier’s obligations

5.1 The Supplier will:

5.1.1 perform the Services using reasonable care and skill;

5.1.2 provide and use sufficient and appropriate equipment and materials required to provide the Services;

5.1.3 ensure that the Services comply with the Specification for the Warranty Period;

5.1.4 obtain and maintain all licences, permits and other consents required for its performance of the Services;

5.1.5 comply with all applicable laws and regulations;

5.1.6 observe all rules and regulations notified to the Supplier and in force at the Supply Location and other Customer sites; and

5.1.7 on completion of the Services or earlier termination of the Contract return all Customer Materials.

6 Customer’s obligations

6.1 The Customer will pay the price for the Services in accordance with the Contract.

6.2 The Customer will:

6.2.1 afford the Supplier access to the Supply Location and other Customer sites and prepare them for supply of the Services;

6.2.2 afford the Supplier reasonable access to the Customer personnel and others to assist the Supplier in connection with the supply of the Services; and

6.2.3 provide the Supplier such facilities, information and assistance (ensuring that information is complete and accurate);
in each case as required to allow the Supplier to perform the Services.

6.3 The Customer will also:

6.3.1 co-operate fully with the Supplier and follow the Supplier’s reasonable instructions in relation to the performance of the Services;

6.3.2 obtain and maintain all necessary licences and consents for the performance of the Services;

6.3.3 keep all documents, equipment, materials and other Supplier property (Supplier Materials) at the Supply Location or other Customer premises safely and at its own risk and in the same condition as they were in when supplied (fair wear and tear excepted); and

6.3.4 not dispose of or use any Supplier Materials without the Supplier’s prior written agreement.

6.4 The Services are provided at the Customer’s request and the Customer is responsible for verifying that the Services are suitable for its own needs.

7 Warranty

7.1 The Supplier warrants that:

7.1.1 for a period of six (6) months from completion of the Services (the Warranty Period), the Services will comply with the Specification;

7.1.2 At the time of delivery to the Customer the Services will be of satisfactory quality; and

7.1.3 it has clear title to the Deliverables and the right to provide or transfer them to the Customer; and

7.1.4 that the documentation provided by the Supplier will give adequate instructions to users to enable them to effectively use the Deliverables.

7.2 Where Services fail to comply with clause 7.1, the Supplier will, at its option, re-perform them to comply with the Contract, provided that:

7.2.1 the Customer informs the Supplier in writing during the Warranty Period and within ten (10) Business Days of discovery that the Services do not comply with clause 7.1; and

7.2.2 the Customer gives the Supplier a reasonable opportunity to investigate any defective Services.

7.3 The Terms of the Contract will apply to any re-performed Services.

7.4 The Supplier will not be liable for any failure of any Services to comply with clause 7.1 to the extent:

7.4.1 caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Services;

7.4.2 caused by the Supplier following any Specification or other document supplied by or instruction from the Customer;

7.4.3 where the Customer alters the Services or the results of the Services without the Supplier’s prior written agreement; or

7.4.4 where the Customer uses the Services or the results of the Services after notifying the Supplier that the Services do not comply with clause 7.1.

7.5 Except as set out in this clause 7:

7.5.1 the Supplier gives no warranty in relation to the Services; and

7.5.2 will be under no liability for their failure to comply with the warranty in clause 7.1.

In particular, the terms implied by sections 13, 14 and 15 of the Supply of Goods and Services Act 1982 are expressly excluded.

8 Failure of or delay in performance

8.1 If the Supplier is prevented or delayed in performing the Services by any cause attributable to the Customer, the Supplier (without prejudice to its other rights):

8.1.1 may suspend performance of the Services until the Customer remedies its default;

8.1.2 will not be liable for any costs or losses sustained by the Customer as a result of such suspension; and

8.1.3 may charge the Customer (and the Customer will pay in accordance with the Contract) costs or losses incurred by the Supplier arising from the Customer’s default, subject to clause 9.

9 Liability

9.1 The Supplier does not exclude its liability:

9.1.1 for death or personal injury caused by its negligence; or

9.1.2 for breach of the term implied by s 11B of the Supply of Goods and Services Act 1982;

9.1.3 for defective products under the Consumer Protection Act 1987;

9.1.4 for fraud or fraudulent misrepresentation;

9.1.5 under any indemnity given by it hereunder.

9.2 The Supplier will be liable to the Customer for direct damage to tangible property in an amount which will not exceed twenty five per cent (25%) of the total price of the Services under the Contract per incident or series of related incidents caused by the failure of any Services, as supplied by the Supplier to the Customer, to comply with the Specification.

9.3 Neither party will be liable for:

9.3.1 loss of data or use;

9.3.2 any form of indirect, consequential or special loss; or

9.3.3 any loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect;

and, in each case, however arising.

9.4 Other than as set out above, the Supplier limits its liability (however arising) in respect of or in connection with the Services, and otherwise in connection with the Contract, to fifty per cent (50%) of the total price of the Services under the Contract.

10 Intellectual Property Rights

10.1 Nothing in the Contract will affect the rights (including Intellectual Property Rights) in the Supplier Materials which are and shall remain vested in the Supplier.

10.2 To the extent that the Supplier Materials are used or incorporated into the Services or any part of the Deliverables then the Parties acknowledge and agree that the Customer is licensed to use the same upon the terms set out in clause 10.3.

10.3 The Supplier hereby grants to the Customer a royalty-free, worldwide, non-exclusive licence, revocable only for breach by the Customer of the terms of the Contract, to use the Supplier Materials solely to the extent necessary to use the results of the Services. The Customer:

10.3.1 will not use the Supplier Materials for any other purpose;

10.3.2 will not modify disassemble reverse assemble or reverse engineer or take any similar action in relation to any proprietary software of the Supplier (except so far as required for interoperability);

10.3.3 may sublicense its Affiliates to use the Supplier Materials on the terms of this clause 10.3, and provided that the Customer is liable for any breaches by them of such terms, but will not otherwise assign, sublicense or deal with the Supplier Materials;

10.3.4 hereby assigns to the Supplier, on their creation, all Intellectual Property Rights which arise or are created by any use by it of, or work done by it on, the Supplier Materials or the results of the Services.

10.3.5 The Supplier will defend or, at its option, settle any action brought against the Customer arising from any claim that the receipt by the Customer of the Services or use by it of the results of the Services, in both cases in accordance with the Contract, infringes any third party intellectual property right, and indemnify the Customer against all reasonable costs and expenses incurred by the Customer in connection with such claim.

10.3.6 The Supplier’s obligations under clause 10.3.5 will not apply to Services received, or where their results are modified or used, by the Customer other than in accordance with the Contract. The Customer will indemnify the Supplier against all reasonable costs and expenses incurred by the Supplier in connection with any claim arising from such receipt, modification or use.

10.3.7 The Supplier’s obligations under clause 10.3.5 are conditional on the Customer:

(a) promptly advising the Supplier in writing of any claim or action;

(b) making no admission as to, or settlement or compromise of any claim or action without the Supplier’s prior written consent;

(c) giving the Supplier sole conduct of any defence and any settlement negotiations; and

(d) co-operating fully with the Supplier at the Supplier’s expense and providing the Supplier with all reasonable assistance in the defence or settlement of such claim or action.

10.3.8 The Customer’s reasonable costs of compliance with clauses 10.3.7(c) and 10.3.7(d) will be paid by the Supplier.

10.3.9 The provisions of this clause 10 set out the Supplier’s entire liability and the Customer’s sole right in respect of third party infringement of any intellectual property right.

11 Confidentiality

11.1 Each party shall keep confidential all Confidential Information of the other party and will only use the other’s Confidential Information as required to perform the Contract. The provisions of this clause will not apply to:

11.1.1 any information which was in the public domain at the date of the Contract;

11.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;

11.1.3 is independently developed by the other party without using information supplied by the first party; or

11.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.

11.2 This clause 11 will remain in force for a period of five (5) years from the date of termination of the Contract.

12 Force Majeure

12.1 Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required by or for performance of the Contract (Force Majeure). Failure to pay or be paid is not Force Majeure.

12.2 A party will not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:

12.2.1 promptly notifies the other party of the Force Majeure event and its expected duration; and

12.2.2 uses its reasonable endeavours to minimise the effects of that event.

12.3 If, due to Force Majeure, a party:

12.3.1 is or will be unable to perform a material obligation; or

12.3.2 is delayed in or prevented from performing its obligations for a continuous period exceeding [30] days or a total of more than [60] days in any Year;

the parties will, within thirty (30) days, renegotiate the Agreement to achieve, as nearly as possible, the original commercial intent.

13 Termination

13.1 The Contract may be terminated forthwith at any time by either party on written notice to the other if:

13.1.1 the other commits a material breach, or series of breaches resulting in a material breach, of the Contract and such breach is not remediable or is not remedied within ten (10) days of written notice requiring that party to do so;

13.1.2 the other: (i) suspends or threatens to suspend payment of its debts, (ii) is unable to pay its debts as they fall due or (iii) is unable to pay its debts (being a company) within the meaning of s 123 of the Insolvency Act 1986 or (being an individual) within the meaning of s 268 of the Insolvency Act 1986 or (being a partnership) there is any partner to whom any of the foregoing applies;

13.1.3 the other: (i) negotiates with its creditors for rescheduling of its debts, (ii) makes a proposal to or compounds with its creditors in respect of its debts other than solely by way of solvent amalgamation or reconstruction or (iii) makes an application to court for protection from its creditors generally;

13.1.4 the other passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or administrator or similar officer is appointed in relation to the other, or a winding-up or similar order is made in relation to the other, other than solely in relation to a solvent amalgamation or reconstruction;

13.1.5 a receiver or administrative receiver or similar officer may be or is appointed in relation to the other or any of its assets;

13.1.6 any creditor of the other attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the other’s assets, and such attachment or process is not discharged within [14] days;

13.1.7 the other takes or suffers any action similar to any of the above in any jurisdiction;

13.1.8 the other suspends trading, ceases to carry on business, or threatens to do either;

13.1.9 the other (being an individual) dies or ceases to be capable of managing his own affairs; or

13.1.10 the other is subject to an event of Force Majeure under clause 12.

13.2 In addition to its rights under clause 13.1, the Supplier may terminate the Contract at any time:

13.2.1 on thirty (30) days’ written notice to the Customer;

13.2.2 immediately on written notice to the Customer if the Customer has failed to pay any amount due under the Contract within three (3) Business Days of the due date.

13.3 On termination of the Contract for any reason:

13.3.1 the Customer will immediately pay all invoices of the Supplier then outstanding and not disputed in good faith;

13.3.2 the Supplier will, within ten (10) Business Days, invoice the Customer for all Services provided but not yet invoiced and the Customer will pay such invoice within a further ten (10) Business Days (unless the invoice is disputed in good faith);

13.3.3 each party will within fifteen (15) Business Days return any materials of the other then in its possession or control; if it fails to do so, the other may enter onto any premises of the first party and take possession of them. Pending such return or taking possession, the first party will be responsible for such materials and will not use them for any purpose not connected with the Contract;

13.3.4 the accrued rights and liabilities of the parties will not be affected; and

13.3.5 any clauses which expressly or by implication are to survive termination will do so.

14 General

14.1 Time

Unless stated otherwise, time is not of the essence of any date or period specified in these Terms.

14.2 No set-off

All payments by the Customer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.

14.3 Relationship

The parties are independent businesses and not principal and agent, partners, or employer and employee.

14.4 Severability

If any part of these Terms is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Terms and the remaining provisions of the Terms will otherwise remain in full force.

14.5 Notices

Notices under the Contract will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:

14.5.1 by first-class post: two Business Days after posting;

14.5.2 by airmail: seven Business Days after posting;

14.5.3 by hand: on delivery;

14.5.4 by facsimile: on receipt of a successful transmission report from the correct number, and

14.5.5 by e-mail: on receipt of a delivery or read receipt mail from the correct address.

14.6 Waiver

No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

14.7 Rights of Third Parties

Save as provided by law, the Contract is not enforceable by any third party.

14.8 Priority

These Terms prevail over those of the Order or Schedule (if any).

14.9 Entire Agreement

The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.

14.10 Assignment

The Supplier may subcontract work to be carried out by it under the Contract in connection with the Services or any part thereof without the approval of the Customer. Without prejudice to the right of the Supplier to subcontract work under the Contract as aforesaid, neither party may assign its rights or obligations under this Agreement without the prior written consent of the other.

14.11 Succession

The Contract will bind and benefit each party’s successors permitted assignees and personal representatives.

14.12 Governing Law and Jurisdiction

14.12.1 The Contract will be governed by the law of Scotland.

14.12.2 Disputes will be submitted to the non-exclusive jurisdiction of the courts of Scotland.