TERMS AND CONDITIONS OF SERVICE
1. Application
1.1 These Terms and Conditions shall apply to the provision of Services by the Supplier to the Client.
1.2 In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Client or otherwise), the former shall prevail unless expressly otherwise agreed by the Supplier in writing.
2. Definitions and Interpretation
2.3 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
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“Business Day” |
means a day (excluding Saturdays) on which banks generally are open for the transaction of normal banking business (other than solely for trading and settlement in Euros); |
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“Client” |
means any individual, firm or corporate body (which expression shall, where the context so admits, include its successors and assigns) which purchases services from the Supplier; |
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“Commencement Date” |
means the commencement date for the agreement as set out in the Schedule; |
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“Fees” |
means the fees payable by the Client under Clause 4 in accordance with the Terms of Payment; |
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“Services” |
means the services to be provided by the Supplier to the Client as set out in the Schedule; |
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“Supplier” |
means Export Support Partnership Ltd; and |
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“Terms of Payment” |
means the terms of payment of Fees as set out in the Schedule. |
2.4 Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.4.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2.4.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
2.4.3 “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
2.4.4 a Schedule is a schedule to these Terms and Conditions; and
2.4.5 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
2.4.6 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
2.5 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.6 Words imparting the singular number shall include the plural and vice versa.
2.7 References to any gender shall include the other gender.
3. The Services
3.8 With effect from the Commencement Date the Supplier shall, in consideration of the Fees being paid in accordance with the Terms of Payment, provide the Services to the Client.
3.9 The Supplier will use reasonable care and skill to perform the Services.
3.10 The Supplier shall use all reasonable endeavours to complete its obligations under these Terms and Conditions, but time will not be of the essence in the performance of these obligations.
4. Fees
4.11 The Client agrees to pay the Fees in accordance with the Terms of Payment.
4.12 In addition the Supplier shall be entitled to recover from the Client his reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services.
4.13 The Client will pay the Supplier for any additional services provided by the Supplier that are not specified in the Schedule in accordance with the Supplier's then current, applicable daily rate in effect at the time of the performance or such other rate as may be agreed. Any charge for additional services will be supplemental to the amounts that may be due for expenses.
4.14 All sums payable by either Party pursuant to these Terms and Conditions are exclusive of any value added or other tax (except corporation tax) or other taxes on profit, for which that Party shall be additionally liable.
5. Payment
5.15 All payments required to be made pursuant to these Terms and Conditions by either Party shall be made within 30 days of the date of the relevant invoice in sterling in cleared funds to such bank in the United Kingdom as the other Party may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as that Party is required to deduct or withhold by law.
5.16 The time of payment shall be of the essence. If the Client fails to make any payment on the due date then the Supplier shall, without prejudice to any right which the Supplier may have pursuant to any statutory provision in force from time to time, have the right to charge the Client interest on a daily basis at an annual rate equal to the aggregate of 4% and the base rate of Lloyds TSB from time to time on any sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgement.
5.17 Payment terms for the provision of training services will differ from the normal payment terms as follows:
All charges for training courses will be set out in the proposal.
Training dates and costs will become fixed on return of the signed proposal.
50% of the total cost will be invoiced on acceptance of the proposal for payment 28 days prior to the delivery of the training.
The remaining 50% will be invoiced for payment 14 days prior to the proposed delivery date.
Cancellation of the training programme before 14 days prior to the planned delivery date will be subject to a cancellation fee equivalent to 50% of the agreed total amount.
Cancellation up to 14 days prior to the planned date of delivery will be subject to a cancellation fee of 100% of the agreed total amount.
Additional cancellation charges relating to travel, accommodation, venue and hiring of additional resources will also be levied if applicable.
6. Variation and Amendments
6.18 If the Client wishes to vary any details of the Schedule he must notify the Supplier in writing as soon as possible. The Supplier shall endeavour to make any required changes and any additional costs thereby incurred shall be invoiced to the Client.
6.19 If, due to circumstances beyond the Supplier’s control, it has to make any change in the arrangements relating to the provision of the Services it shall notify the Client immediately. The Supplier shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possible in the circumstances.
7. Termination
7.20 The Supplier may terminate the agreement immediately if:
7.20.7 the Client is in breach of any of his obligations hereunder;
7.20.8 the Client has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with his creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of his undertakings or assets;
7.20.9 the Client has become bankrupt or shall be deemed unable to pay his debts by virtue of Section 123 of the Insolvency Act 1986;
7.20.10 the Client ceases or threatens to cease to carry on business; or
7.20.11 any circumstances whatsoever beyond the reasonable control of the Supplier (including but not limited to the termination of the service through no fault of the Supplier) arise that necessitate for whatever reason the termination of the provision of services.
7.21 In the event of termination under sub-Clause 7.1 the Supplier shall retain any sums already paid to it by the Client without prejudice to any other rights the Supplier may have whether at law or otherwise.
8. Sub-Contracting
Either Party may sub-contract the performance of any of its obligations under these Terms and Conditions without the prior written consent of the other Party. Where either Party sub-contracts the performance of any of its obligations under these Terms and Conditions to any person with the prior consent of the other Party, that Party shall be responsible for every act or omission of the sub-contractor as if it were an act or omission of the Party itself.
9. Liability and Indemnity
9.22 Except in respect of death or personal injury caused by the Supplier’s negligence, the Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under the express terms contained herein, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s servants or agents or otherwise) in connection with the performance of its obligations under these Terms and Conditions or with the use by the Client of the Services supplied.
9.23 The Client shall indemnify the Supplier against all damages, costs, claims and expenses suffered by the Supplier arising from loss or damage to any equipment (including that of third parties) caused by the Client, or his agents or employees.
9.24 The Supplier shall not be liable to the Client or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier's obligations if the delay or failure was due to any cause beyond the Supplier's reasonable control.
10. Force Majeure
Neither the Client nor the Supplier shall be liable for any failure or delay in performing their obligations under these Terms and Conditions where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
11. Waiver
11.25 No waiver by the Supplier of any breach of these Terms and Conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of these Terms and Conditions shall be effective only if given in writing and signed by the waiving Party and then only in the instance and for the purpose for which the waiver is given.
11.26 No failure or delay on the part of any Party in exercising any right, power or privilege under these Terms and Conditions shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude, any other or further exercise of any other right, power or privilege.
12. Severance
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.
13. Copyright
The Supplier reserves all copyright and any other rights (if any) which may subsist in the products of, or in connection with, the provision of the Services or facilities. The Supplier reserves the right to take such actions as may be appropriate to restrain or prevent infringement of such copyright.
14. Notices
14.27 All notices under these Terms and Conditions shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
14.28 Notices shall be deemed to have been duly given:
14.28.12 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
14.28.13 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
14.28.14 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
14.28.15 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
14.29 Service of any document for the purposes of any legal proceedings concerning or arising out of these Terms and Conditions shall be effected by either Party by causing such document to be delivered to the other Party at its registered or principal office, or to such other address as may be notified to one Party by the other Party in writing from time to time.
15. Law and Jurisdiction
15.30 These Terms and Conditions shall be governed by the laws of England and Wales.
15.31 Any dispute between the Parties relating to these Terms and Conditions shall fall within the jurisdiction of the courts of England and Wales.
16. Confidential Information
16.1 The supplier agrees to treat as secret and confidential and not at any time for any reason to disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any information relating to the Client’s technology, technical processes, business affairs or finances or any such information relating to a subsidiary, supplier, customer or client of the Client where knowledge or details of the information was received during the period of this agreement and upon termination of this agreement for whatever reason the Company will deliver up to the client all working papers or other material and copies provided to him pursuant to this agreement or prepared by him either in pursuance of this agreement or previously.
