The following definitions and rules of interpretation apply in these Conditions.
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 Client for the supply of the Services in accordance with clause 5.
Client: the person or firm who purchases Services from the Supplier as detailed in the Proposal and the Supplier’s Invoice.
Client Default: has the meaning set out in clause 4.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.5.
Consultant: a person(s) supplied by the Supplier to the Client to provide the Services.
Contract: the contract between the Supplier and the Client for the supply of Services in accordance with these Conditions.
Contract Commencement Date: has the meaning given in clause 2.2.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Client: the person or firm who purchases Services from the Supplier as detailed in the Order.
Deliverables: any materials, reports, products or other deliverables produced by the Supplier for the Client.
Force Majeure: shall have the meaning set out in clause 14.1.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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.
Milestone: the completion of a specific task or a passage of time whereby part of or all of the Charges will be payable on receipt of a Supplier’s Invoice as detailed in the Proposal.
Order: the Client’s purchase order for Services as also set out in Client’s written acceptance of the Proposal.
Proposal: the Supplier’s written proposal detailing the Services and may also include the names and number of the Consultants to be provided, the estimated duration of the Services, the Milestones and the Charges.
Services: the supply of Consultants and other related services, including the Deliverables, supplied by the Supplier to the Client as set out in the Proposal.
Supplier: Iter Limited a company registered in England and Wales with company number 10731748 whose registered office is at Old Chambers, 93 – 94 West Street, Farnham, United Kingdom, GU9 7EB.
Supplier’s Invoice: an invoice sent by the Supplier for payment of the Charges.
Supplier Materials: has the meaning set out in clause 4.1(g).
Term: the length of time whereby the Supplier will provide the Services to the Client, as detailed in the Proposal.
1.3 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 all subordinate legislation made under that statute or statutory provision.
1.4 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.5 A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Proposal shall be deemed to be accepted when the Supplier issues written acceptance of the Proposal and/or supplies the Client with a Purchase Order, at which point and on which date the Contract shall come into existence.
2.3 Any samples, descriptions or advertising issued by the Supplier other than the Proposal 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 Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, unless otherwise agreed.
2.5 Any quotation or Proposal given by the Supplier shall not constitute an offer, and is only valid for a period of 30 days from its date of issue unless otherwise agreed in writing by the Supplier before this period expires.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Client.
3.2 The Supplier shall use all reasonable endeavours supply and complete the Services by any dates given in the Proposal or as may otherwise be agreed between the parties or within a reasonable time thereafter. Any such dates shall be estimates only, may be delayed by Force Majeure and time shall not be of the essence for performance of the Services.
3.3 The Supplier shall be entitled to amend the Services, including the use, addition, removal and/or replacement of any Consultant by providing the Client with reasonable written notice of the same.
3.4 The Supplier reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.
3.5 The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.
3.6 The Supplier shall, at its option, remedy, re-perform or refund the Services that do not comply with clause 3.5 provided that:
(a) the Client serves a written notice on the Supplier not later than 5 Business Days from performance of the Services; and
(b) such notice specifies that some or all of the Services do not comply with clause 3.5 and identifies in sufficient detail the nature and extent of the defects; and
(c) the Client gives the Supplier a reasonable opportunity to examine the claim of the defective Services.
3.7 The provisions of these conditions shall apply to any Services that are remedied or re-performed.
3.8 The Client warrants to the Supplier that it has provided the Supplier will all relevant, full and accurate information as to the Client’s business and needs.
4. Client’s obligations
4.1 The Client shall:
(a) ensure that the terms of the Proposal and any information it provides to the Supplier are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) 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 complete and accurate in all material respects;
(d) prepare the Client’s premises, equipment, documents and other property as the Supplier may require for the supply of the Services;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(f) comply with all applicable laws, including health and safety laws;
(g) keep all materials, equipment, documents and other property of the Supplier and its employees, agents, Consultants and subcontractors (Supplier Materials) at the Client’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
(h) comply with any and all obligations contained or referred to in these terms, including but not limited to paying the Charges; and
(i) not approach, engage, entice or offer a Consultant any form of employment during the Term and for a period of twelve months after termination or expiry of the term without either the written consent of the Supplier or payment of a fee in accordance with clause 5.8.
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 Client or failure by the Client to perform any relevant obligation:
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Client Default; and
(c) the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.
5. Charges and payment
5.1 The Charges for the Services, along with the applicability of any overtime and/or expenses shall be calculated on a fixed price or time and materials basis as set out in the Supplier’s Invoice and Proposal.
5.2 The Supplier shall invoice the Client in accordance with the Proposal. The Charges will be paid in instalments and at the Milestones set out in the Proposal.
5.3 Payment of the Charges should be made in accordance with the terms of the Supplier’s Invoice and payment should be made in full and cleared funds and no later than 30 days after receipt of the same unless agreed in writing with the Supplier. Time is of the essence for paying the Charges.
5.4 In the event that the Client terminates the Contract in accordance with clause 8.1, the Client shall:
(a) forfeit any monies paid in accordance with clause 5.2; and
(b) pay a Cancellation Fee equivalent to 20% of the Charges.
5.5 In the event that the Client terminates the Contract before the end of the Term and unless terminated in accordance with clauses 8.1, the Client shall pay upon written demand by the Supplier:
(a) the full amount of any outstanding Charges due up to the date of termination; and
(b) a sum equivalent to 50% of the Charges that would have been payable by the Client for the Services provided in respect of any Milestone, Phase or Stage of work within the Proposal that has been started but uncompleted at the date of termination.
5.6 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client 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.
5.7 If the Client fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 8, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.8 In the event that clause 4.1(j) applies, in addition to paying the Charges the Client shall pay an additional fee equivalent to 50% of the total Charges due to the Supplier under the Contract.
5.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by the Supplier, who in turn shall give upon request by the Client a fully paid-up, royalty-free and non-transferable licence to use such Intellectual Property Rights.
6.2 The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Supplier for the Term for the purpose of providing the Services to the Client.
6.3 Unless otherwise stated in clause 6.1, nothing in these terms shall grant the Client any licence to use the Supplier’s Intellectual Property Rights.
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 Client for any loss, damage, costs or expenses, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise as a result of the implementation of any recommendations, controls, procedures or other actions put in place by the Customer after the provision of the Services.
7.3 Subject to clause 7.1, the Supplier’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Charges paid under the Contract.
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 The Client may terminate the Contract after the Contract Commencement Date but before the Supplier begins to provide the Services, provided the Client pays the Charges set out in clause 5.4.
8.2 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 10 Business Days notice.
8.3 Without affecting any other right or remedy available to it, 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 20 Business 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 petition presented for his bankruptcy, 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 affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any of the Charges in accordance with clause 5; or
(b) there is a change of control of the Client.
8.5 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Client and the Supplier if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 8.3, or the Supplier reasonably believes that the Client is about to become subject to any of them.
9. Consequences of termination
9.1 On termination of the Contract:
(a) the Client 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 Client immediately on receipt;
(b) the Client shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Supplier may enter the Client’s premises and take possession of them. 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 the Contract;
(c) the Supplier shall invite the Client to collect all correspondence documents, Specifications and other property belonging to the Client following provision of the Services, provided the same have been paid for at the date termination or collection.
9.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.
9.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
10.1 For the purposes of this clause 10 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
10.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use reasonable endeavours to ensure that all of that party’s officers, agents, employees and subcontractors shall also apply.
10.3 Without limitation to clause 10.2, neither party shall make or receive any bribe or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
10.4 Each party shall immediately notify the other as soon as it becomes aware of a breach or possible breach of any of the requirements in this clause 10.
11.1 The Client undertakes, warrants and represents that:
(a) neither it or any of its officers, employees, agents or subcontractors have committed an offence under the Modern Slavery Act 2015;
(b) it has not been notified that it is subject to an investigation or prosecution under the Modern Slavery Act 2015;
(c) it is not aware if any circumstances within its supply chain that could give rise to an investigation or prosecution under clause 11.1(b).;
(d) it shall comply with the Modern Slavery Act 2015 at all times; and
(e) it shall notify the Supplier immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Client’s obligations under clause 11.1. Such notice shall set out full details of the circumstances concerning the breach or potential breach of the Client’s obligations.
11.2 Any breach of clause 11.1 by the Client shall be deemed a material breach of the Contract and shall entitle the Supplier to terminate the contract with immediate effect.
12. Indemnity and Insurance
12.1 The Client shall indemnify, and keep indemnified, the Supplier from and against all losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Client’s breach of any of it’s obligations under clause 4.
12.2 The Client shall have in place insurance policies with reputable insurers to cover its obligations under these Conditions and may disclose copies of the same to the Supplier, so far as reasonable, upon request by the Supplier.
13. Dispute Resolution
13.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause.
13.2 The dispute resolution process may be initiated at any time by either party serving notice on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute and the remedy or action required.
13.3 The parties shall use their reasonable endeavours to reach a negotiated resolution and within 7 days of service of the notice, the parties shall meet to discuss the dispute and attempt to resolve it.
13.4 If the dispute has not been resolved within 10 Business Days of the first meeting then the dispute may be referred to another form of alternative dispute resolution as either party may propose or in the alternative, either party may issue formal legal proceedings or arbitration.
13.5 Until the parties have completed the steps referred to in clause 13.3 and have failed to resolve the dispute, neither party shall be entitled to commence legal proceedings or arbitration except that either party may at any time seek urgent interim relief from the courts or emergency arbitrator relief.
14.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. A party shall notify the other party if it becomes aware of, or the possible occurrence of, Force Majeure and the provision of the Services will be suspended until such an event has finished.
14.2 Assignment and other dealings.
(a) The Supplier may not at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior consent of the Client, which is not to be unreasonably withheld.
(b) The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
(a) Each party undertakes that it shall not at any time, and for a period of three years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by clause 14.3(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 14.3; 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.
14.4 Entire agreement.
(a) The Contract 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 acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
14.5 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.6 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.7 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 and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at the addresses contained in the Proposal or otherwise its registered office address or sent by email to any address as agreed in writing between the parties.
(b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; 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 or at the time recorded by the delivery service; or, if sent by email, at 9.00 am on the next Business Day after transmission.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
14.9 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
14.10 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.
14.11 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.