ASPINALL CONSULTANTS LIMITED
TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
The Client's attention is particularly drawn to the provisions of clause 7 limiting liability
1. INTERPRETATION
1.1 Definitions. In these terms and conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Fee: the fee payable by the Client for the supply of the Services as set out in the Proposal
Contract: the contract between the Consultant and the Client for the supply of Services in accordance with these terms and conditions.
Client: the person or firm who purchases Services from the Consultant including their successor or assigns.
Confidential Information: All information relating to the business affairs and financial arrangements of the Client or any person or company dealing with or connected to the Client which the Consultant acquires during the Contract, other than information which was at the time of disclosure in the public domain or subsequently comes into the public domain
Intellectual Property Rights: copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill, design rights, database rights, patents, inventions, confidential information, know-how, and all other intellectual property rights registered or not.
Proposal: the proposal relating to the Services provided in writing by the Consultant to the Client.
Services: the services referred to in the Proposal
Consultant: Aspinall Consultants Limited registered in England and Wales with company number 09316646.
Consultant Materials: all material and content or other intellectual property conceived, discovered, developed, improved, or created by the Consultant before or during the delivery of the Services whether alone or with others
2. BASIS OF CONTRACT
2.1 The Client engages the Consultant and the Consultant agrees to provide Services in accordance with these terms and conditions when the Client accepts the Proposal and on that date the Contract shall come into existence.
2.2 Any additional services agreed to by the parties shall be subject to the same terms and conditions
2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Consultant which is not set out in the Contract.
3. OBLIGATIONS
3.1 The Consultant shall supply the Services to the Client using reasonable care and skill
3.2 The Consultant shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. If the Consultant is unable to perform the Services on a scheduled date as a result of illness or injury the parties will reschedule to an acceptable alternative date
3.3 The Client agrees to do all things reasonably required by the Consultant to enable the Consultant to perform its obligations under the Contract and ensure that any information it provides which is incorporated into the Proposal is complete and accurate.
4. FEE
4.1 The Fee for the Services shall be as set out in the Proposal.
4.2 The Consultant shall render invoices to the Client at the times and for the amounts set out in the Proposal and the Client shall pay each invoice electronically as soon as it is received. Interest shall be payable by the Client on any late payment at the rate of 4% per cent per annum above HSBC’s base rate from time to time.
4.3 The Consultant shall be entitled to charge the Client for any expenses reasonably incurred in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses.
4.4 The Client 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).
5. INTELLECTUAL PROPERTY RIGHTS
5.1 All Consultant Materials are the exclusive property of the Consultant and all Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Consultant.
5.2 The Consultant Materials that the Consultant provides to the Client for the purpose of delivering the Services may be used by the Client internally in connection with its business but ownership will not pass to the Client.
6. CONFIDENTIALITY
6.1 The Consultant shall not use copy or disclose any Confidential Information to a 3rd party save as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction
6.2 The Client shall allow the Consultant to place the Client’s name and logo on the Consultants website and other marketing material to indicate that the Client is a client of the Consultant
7. LIMITATION OF LIABILITY: THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1 Nothing in these Conditions shall limit or exclude the Consultant's liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.2 The Consultant shall subject to clause 7.1 not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and the Consultant's total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Fee.
7.3 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.
7.4 This clause shall survive termination of the Contract.
8. TERMINATION
8.1 Either party may terminate the Contract with immediate effect by giving written notice to the other party if:
8.1.1 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 20 Business Days of that party being notified in writing to do so;
8.1.2 the other party has a liquidator or administrator appointed, or a receiver of its assets appointed, or enters into an arrangement with its creditors, or ceases to carry on business, or threatens to do so.
8.2 The Consultant may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 10 Business Days after being notified in writing to do so.
9. CONSEQUENCES OF TERMINATION
9.1 On termination of the Contract for any reason:
9.1.1 the Client shall immediately pay to the Consultant all of the Consultant's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Consultant shall submit an invoice, which shall be payable by the Client immediately on receipt;
9.1.2 the Client shall return all of the Consultant Materials which have not been fully paid for. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
9.1.3 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
9.1.4 clauses which expressly or by implication survive termination shall continue in full force and effect.
10. FORCE MAJEURE
10.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Consultant including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Consultant or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Consultants or subcontractors.
10.2 The Consultant shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
10.3 If the Force Majeure Event prevents the Consultant from providing any of the Services for more than 8 weeks, the Consultant shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
10.4 Notices.
10.4.1 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 (if it is a company) or its principal place of business (in any other case) and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.
10.4.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to above; if sent by pre-paid first class post or other next working day delivery service, at 10.00 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 e-mail one Business Day after transmission.
10.4.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.5 Severance.
10.5.1 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.
10.6 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
10.7 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
10.8 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
10.9 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Consultant.
10.10 Governing law and Disputes. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales. The parties agree to try and resolve any differences between them amicably and by negotiation but if this is not possible by mediation.
10.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
April 2015