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1 DEFINITIONS
In this document the following words shall have the
following meanings:
1.1 "Agreement" means these Terms and
Conditions together with the terms of any applicable
Service Specification;
1.2 "Customer" means the organisation or
person who purchases services from the Supplier;
1.3 "Intellectual Property Rights" means all
patents, registered and unregistered designs, copyright,
trade marks, know-how and all other forms of
intellectual property wherever in the world enforceable;
1.4 "Service Specification" means a statement
of work, quotation or other similar document describing
the services to be provided by the Supplier;
1.5 "Supplier" means The Clear Thinking
Partnership Limited.
2 GENERAL
2.1 These Terms and Conditions shall apply to
all contracts for the supply of services by the Supplier
to the Customer.
2.2 Before the commencement of the services
the Supplier shall submit to the Customer a Service
Specification which shall specify the services to be
performed and the fees payable. The Customer shall
notify the Supplier immediately if the Customer does not
agree with the contents of the Service Specification.
All Service Specifications shall be subject to these
Terms and Conditions.
2.3 The Supplier shall use all reasonable
endeavours to complete the services within estimated
time frames but time shall not be of the essence in the
performance of any services.
3 FEES AND PAYMENT
3.1 The fees for the performance of the
services are as set out in the Service Specification.
The Supplier shall invoice the Customer for services as
follows.
The client will be invoiced for 50% of the project price
at the commencement of the programme as indicated by the
programme delivery start date. The remaining 50% of the
project price will be invoiced on the completion of the
project as indicated by the programme delivery end date.
3.2 Invoiced amounts shall be due and payable
within 30 days of receipt of invoice. The Supplier shall
be entitled to charge interest on overdue invoices from
the date when payment becomes due from day to day until
the date of payment at a rate of 5%
per annum above the base rate of
the Bank of England. In the event that the
Customer’s procedures require that an invoice be
submitted against a purchase order to payment, the
Customer shall be responsible for issuing such purchase
order before the services are rendered.
4 CUSTOMER’S OBLIGATIONS
4.1
To enable the Supplier to perform its obligations
under this Agreement the Customer shall:
4.1.1 co-operate with the
Supplier;
4.1.2
provide the Supplier with any information reasonably
required by the Supplier;
4.1.3
obtain all necessary permissions and consents which may
be required before the commencement of the services; and
4.1.4
comply with such other requirements as may be set out in
the Service Specification or otherwise agreed between
the parties.
4.2 The Customer shall be liable to compensate
the Supplier for any expenses incurred by the Supplier
as a result of the Customer’s failure to comply with
Clause 4.1.
4.3 Without prejudice to any other rights to
which the Supplier may be entitled, in the event that
the Customer unlawfully terminates or cancels the
services agreed to in the Service Specification, the
Customer shall be required to pay to the Supplier as
agreed damages and not as a penalty the full amount of
any third party costs to which the Supplier has
committed and in respect of cancellations on less than
seven working days’ written notice the full amount of
the services contracted for as set out in the Service
Specification, and the Customer agrees this is a genuine
pre-estimate of the Supplier’s losses in such a case.
The following charges will be applied in respect to
cancellations made more than seven days prior to the
agreed start date, 8-31 days prior = 75% of the full
amount, 32-62 days prior = 50% of the full amount, 63
days prior = no charge.
For the avoidance of doubt, the Customer’s failure to
comply with any obligations under Clause 4.1
shall be deemed to be a cancellation of the
services and subject to the payment of the damages set
out in this Clause.
4.4 In the event that the Customer or any
third party, not being a sub-contractor of the Supplier,
shall omit or commit anything which prevents or delays
the Supplier from undertaking or complying with any of
its obligations under this Agreement, then the Supplier
shall notify the Customer as soon as possible and:
4.4.1
the Supplier shall have no liability in respect of any
delay to the completion of any project;
4.4.2 if applicable, the timetable for the
project will be modified accordingly;
4.4.3
the Supplier shall notify the Customer at the same time
if it intends to make any claim for additional costs.
5 ALTERATIONS TO THE SERVICE SPECIFICATION
5.1 The parties may at any time mutually agree
upon and execute new Service Specifications. Any
alterations in the scope of services to be provided
under this Agreement shall be set out in the Service
Specification, which shall reflect the changed services
and fees and any other terms agreed between the parties.
5.2 The Customer may at any time request
alterations to the Service Specification by notice in
writing to the Supplier. On receipt of the request for
alterations the Supplier shall, within 5 working days or
such other period as may be agreed between the parties,
advise the Customer by notice in writing of the effect
of such alterations, if any, on the fees and any other
terms already agreed between the parties.
5.3 Where the Supplier gives written notice to
the Customer agreeing to perform any alterations on
terms different to those already agreed between the
parties, the Customer shall, within 5 working days of
receipt of such notice or such other period as may be
agreed between the parties, advise the Supplier by
notice in writing whether or not it wishes the
alterations to proceed.
5.4 Where the Supplier gives written notice to
the Customer agreeing to perform alterations on terms
different to those already agreed between the parties,
and the Customer confirms in writing that it wishes the
alterations to proceed on those terms, the Service
Specification shall be amended to reflect such
alterations and thereafter the Supplier shall perform
this Agreement upon the basis of such amended terms.
6 WARRANTY
6.1 The Supplier warrants that the services
performed under this Agreement shall be performed using
reasonable skill and care, and of a quality conforming
to generally accepted industry standards and practices.
6.2 Without prejudice to Clause 6.1, and
except as expressly stated in this Agreement, all
warranties whether express or implied, by operation of
law or otherwise, are hereby excluded in relation to the
services to be provided by the Supplier.
7 INDEMNIFICATION
The Customer shall indemnify the Supplier against all
claims, costs and expenses which the Supplier may incur
and which arise, directly or indirectly, from the
Customer’s breach of any of its obligations under this
Agreement, including any claims brought against the
Supplier alleging that any services provided by the
Supplier in accordance with the Service Specification
infringes a patent, copyright or trade secret or other
similar right of a third party.
8 LIMITATION OF LIABILITY
8.1
Except in respect of death or personal injury due to
negligence for which no limit applies, the entire
liability of the Supplier to the Customer in respect of
any claim whatsoever or breach of this Agreement,
whether or not arising out of negligence, shall be
limited to the fees paid by the Customer to which the
claim relates.
8.2 In no event shall the Supplier be liable
to the Customer for any loss of business, loss of
opportunity or loss of profits or for any other indirect
or consequential loss or damage whatsoever. This shall
apply even where such a loss was reasonably foreseeable
or the Supplier had been made aware of the possibility
of the Customer incurring such a loss.
8.3 Nothing in these Terms and Conditions
shall exclude or limit the Supplier’s liability for
death or personal injury resulting from the Supplier’s
negligence or that of its employees, agents or
sub-contractors.
9 TERMINATION
Either party may terminate this
Agreement forthwith by notice in writing to the other
if:
9.1 the other party commits a material breach
of this Agreement and, in the case of a breach capable
of being remedied, fails to remedy it within 30 calendar
days of being given written notice from the other party
to do so;
9.2 the other party commits a material breach
of this Agreement which cannot be remedied under any
circumstances;
9.3 the other party passes a resolution for
winding up (other than for the purpose of solvent
amalgamation or reconstruction), or a court of competent
jurisdiction makes an order to that effect;
9.4 the other party ceases to carry on its
business or substantially the whole of its business; or
9.5 the other party is declared insolvent, or
convenes a meeting of or makes or proposes to make any
arrangement or composition with its creditors; or a
liquidator, receiver, administrative receiver, manager,
trustee or similar officer is appointed over any of its
assets.
10 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or
arising as a result of the performance of this Agreement
shall, so far as not already vested, become the absolute
property of the Supplier, and the Customer shall do all
that is reasonably necessary to ensure that such rights
vest in the Supplier by the execution of appropriate
instruments or the making of agreements with third
parties.
11 FORCE MAJEURE
Neither party shall be liable for any
delay or failure to perform any of its obligations if
the delay or failure results from events or
circumstances outside its reasonable control, including
but not limited to acts of God, strikes, lock outs,
accidents, war, fire, the act or omission of government,
highway authorities or any telecommunications carrier,
operator or administration or other competent authority,
or the delay or failure in manufacture, production, or
supply by third parties of equipment or services, and
the party shall be entitled to a reasonable extension of
its obligations after notifying the other party of the
nature and extent of such events.
12 INDEPENDENT CONTRACTORS
The Supplier and the Customer are
contractors independent of each other, and neither has
the authority to bind the other to any third party or
act in any way as the representative of the other,
unless otherwise expressly agreed to in writing by both
parties. The Supplier may, in addition to its own
employees, engage sub-contractors to provide all or part
of the services being provided to the Customer and such
engagement shall not relieve the Supplier of its
obligations under this Agreement.
13 ASSIGNMENT
The Customer shall not be entitled to assign its rights
or obligations or delegate its duties under this
Agreement without the prior written consent of the
Supplier.
14 SEVERABILITY
If any provision of this Agreement is
held invalid, illegal or unenforceable for any reason by
any Court of competent jurisdiction such provision shall
be severed and the remainder of the provisions herein
shall continue in full force and effect as if this
Agreement had been agreed with the invalid illegal or
unenforceable provision eliminated.
15 WAIVER
The failure by either party to enforce at any time or
for any period any one or more of the Terms and
Conditions herein shall not be a waiver of them or of
the right at any time subsequently to enforce all Terms
and Conditions of this Agreement.
16 NOTICES
Any notice to be given by either party to the other may
be served by email, fax, personal service or by post to
the address of the other party given in the Service
Specification or such other address as such party may
from time to time have communicated to the other in
writing, and if sent by email shall unless the contrary
is proved be deemed to be received on the day it was
sent, if sent by fax shall be deemed to be served on
receipt of an error free transmission report, if given
by letter shall be deemed to have been served at the
time at which the letter was delivered personally or if
sent by post shall be deemed to have been delivered in
the ordinary course of post.
17 ENTIRE AGREEMENT
This Agreement contains the entire
agreement between the parties relating to the subject
matter and supersedes any previous agreements,
arrangements, undertakings or proposals, oral or
written. Unless expressly provided elsewhere in this
Agreement, this Agreement may be varied only by a
document signed by both parties.
18 NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it
confer any rights on a third party.
19 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and
construed in accordance with the law of England
and the parties hereby submit to the exclusive
jurisdiction of the English
courts.
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