TERMS AND CONDITIONS OF
BUSINESS
OF
SMARTSPEED CONSULTING LIMITED
1 DEFINITIONS
The following expressions shall have
the following meanings:
1.1 “Consultant”
means Smartspeed Consulting Limited of 6 Linton,
Killingworth, Tyne and Wear, NE12 5BH;
1.2
“Client” means
any person who purchases Products and/or Services from the Consultant;
1.3
“Products” means
Workbooks produced in electronic, digital or hard copy format and all and any
other software or materials sold or delivered by the Consultant to the Client.
1.4
“Proposal” means
a quotation or other similar document describing the Services or Products;
1.5 “Services”
means the consultancy services as described in the Proposal;
1.6 “Terms
and Conditions” means the terms and conditions of supply of Products and/or Services as set out in this
document and any subsequent terms and conditions agreed in writing by the Consultant;
1.7 “Agreement”
means the contract between the Consultant and the Client for the provision of
the Services incorporating these Terms and Conditions;
1.8 “Intellectual Property Rights” means
any patent, trademark, service mark, registered design, copyright, design
right, right to extract or exploit information from a database, database
rights, know-how, confidential information or process, any application for any
of the above, and any other Intellectual Property Right recognised in any part
of the world whether or not presently existing or applied for;
1.9 “Arbitrator”
is the party nominated to resolve a dispute between the Consultant and the
Client.
2 GENERAL
2.1 These
Terms and Conditions shall apply to the Agreement for the supply of Services by
the Consultant to the Client and shall supersede any other documentation or
communication between parties.
2.2 Any
variation to these Terms and Conditions must be agreed in writing by the Consultant.
2.3 Nothing
in these Terms and Conditions shall prejudice any condition or warranty,
express or implied, or any legal remedy to which the Consultant may be entitled
in relation to the Services, by virtue of any statute, law or regulation.
3 PROPOSAL
3.1 The
Proposal for Products and/or Services is attached to these Terms and
Conditions.
3.2 The
Proposal for Products and/or Services shall remain valid for a period of 7 days.
3.3 The
Proposal must be accepted by the Client in its entirety.
3.4 The
Agreement between the Consultant and the Client, incorporating these Terms and
Conditions, shall only come into force when the Consultant confirms acceptance
in writing to the Client.
4 PRODUCTS SERVICES AND DELIVERY
4.1 The
Products and/or Services are as described in the Proposal.
4.2 Any
variation to the Products and/or Services must be agreed by the Consultant in
writing.
4.3 The
Services shall commence on the date agreed between the Parties and continue until the Products and/or Services have
been provided or delivered unless terminated according to the terms of this
Agreement.
4.4 The
Services shall be carried out at the place of work of the Consultant or the
Client or any other location that the Consultant deems appropriate.
4.5 Dates
given for the delivery of Services are estimates only and not guaranteed. Time
for delivery shall not be of the essence of the Agreement and the Consultant
shall not be held liable for any loss, costs, damages, charges or expenses
caused directly or indirectly by any delay in the delivery.
4.6 If
the Agreement between the Consultant and Client is for the provision of
Products only then the Consultant shall use his best endeavours to ensure the Products
are delivered by the date agreed between the Parties for delivery. Time for
delivery shall not be of the essence of the Agreement and the Consultant shall
not be held liable for any loss, costs, damages, charges or expenses caused
directly or indirectly by any delay in the delivery.
5 PRICE AND PAYMENT
5.1 The
price for the Products and/or Services is as specified in the Proposal and is
inclusive of VAT and any other charges as
outlined in the Proposal.
5.2 The
terms for payment are as specified in the Proposal.
5.3 All
direct costs and expenses incurred by the Consultant in connection with the
provision of the Services will be re-charged at cost or according to standard
charges as described in the Proposal and are payable by the Client on production
of the appropriate receipts.
5.4 The Client must settle all payments for
Products and/or Services within 14 days from the invoice date.
5.5 The
Client will pay interest on all late payments at a rate of 8% per annum above
the base lending rate of Lloyds TSB Plc.
5.6 The
Consultant is also entitled to recover all reasonable expenses incurred in
obtaining payment from the Client where any payment due to the Consultant is
late.
5.7 The
Client is not entitled to withhold any monies due to the Consultant.
5.8 The
Consultant is entitled to vary the price to take account of:
5.8.1 any
additional Products and/or Services requested by the Client which were not
included in the original Proposal;
5.8.2 any
additional work required to complete the Services which was not anticipated at
the time of the Proposal;
5.8.3 any
reasonable increase in hourly rate, if applicable; and any
variation must be intimated to the Client in writing by the Consultant.
5.9 The
Consultant shall be responsible for the payment of National Insurance
contributions as a self-employed person and for the payment of any Income Tax,
VAT or other liabilities arising out of remuneration for providing the
Services.
6 CLIENT OBLIGATIONS
6.1 The
Client agrees to cooperate with the Consultant and shall provide any support,
information and facilities to the Consultant as may be required.
6.2 The
Client agrees to refrain from directly or indirectly recruiting any person
employed or engaged by the Consultant for the purpose of providing the Services
for a period of six months following completion of the Services.
7 CONSULTANT
OBLIGATIONS
7.1 The
Consultant shall supply the Products and/or Services as specified in the
Proposal.
7.2 The
Consultant shall perform the Services with reasonable skill and care and to a
reasonable standard and in accordance with recognised codes of practice.
7.3 The
Consultant shall have the authority to delegate any obligations to other
employees or subcontractors but undertakes to notify the Client of any significant
changes to personnel.
8 CONFIDENTIALITY
8.1 The
Consultant shall keep secret and confidential all information relating to the
business or affairs of the Client, the Clients subsidiaries and the Clients
customers.
8.2 The
Consultant shall ensure that any other parties to whom work has been delegated
will sign an appropriate secrecy undertaking.
9 INTELLECTUAL
PROPERTY RIGHTS
9.1 The
Consultant shall take all reasonable steps to ensure that they, or others to
whom work has been delegated, refrain from causing damage to the Intellectual
Property Rights belonging to the Client.
9.2 The
Client shall not distribute or infringe upon any Intellectual Property Rights
belonging to the Consultant to any third party without the written consent of
the Consultant.
9.3 Any
Intellectual Property Rights created as a result of the Products and/or Services
shall belong to the Consultant unless provision has been made to the contrary
in the Proposal.
9.4 The
Client and the Consultant shall not infringe the Intellectual Property Rights
of any third party during the term of this Agreement.
9.5 Ownership
in the Product materials shall always remain with the Consultant including but
not limited to all Intellectual Property Rights.
9.6 The
Consultant shall grant to the Client a licence to use any of the Products
provided always that the Client shall agree to the terms of any Licence
Agreement granting such use to the Client.
10 TERMINATION
10.1 The
Agreement shall continue until the Services have been provided in terms of the
Proposal or any subsequent date as mutually agreed in writing by both parties
or until terminated by either party in accordance with these Terms and
Conditions.
10.2 If
the Agreement is for the provision of Products only the Agreement shall continue
until delivery of the Products has been made to the Client and the Client has
paid for the Products in full. Ownership in the Product materials shall always
remain with the Consultant.
10.2 The
Client may terminate the Agreement if the Consultant fails to comply with any
aspect of these Terms and Conditions and this failure continues for a period of
4 weeks after notification of non-compliance is given.
10.3 The
Consultant may terminate the Agreement if the Client has failed to make over
any payment due within 14 days of the sum being
requested.
10.4 Either party may terminate the Agreement
by notice in writing to the other if:
10.4.1 the other party commits a material breach of these Terms and
Conditions and, in the case of a breach capable of being remedied, fails to
remedy it within a reasonable time of being given written notice from the other
party to do so; or
10.4.2 the other party commits a material breach of these Terms and
Conditions which cannot be remedied under any circumstances; or
10.4.3 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;
or
10.4.4 the other party ceases to carry on its business or substantially
the whole of its business; or
10.4.5 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.
10.5 In
the event of termination the Client must make over to the Consultant any
payment for work done or Products received or ordered and expenses incurred up
to the date of termination.
10.6 Any
rights to terminate the Agreement shall be without prejudice to any other
accrued rights and liabilities of the parties arising in any way out of the
Agreement as at the date of termination.
11 ARBITRATION
11.1 Any
dispute arising under this Agreement will be referred to and decided by the Arbitrator.
11.2 The
Arbitrator will be appointed by application to ACAS.
11.3 A
party wishing to refer a dispute to the Arbitrator shall advise the other party
of this intention in writing at any time during the term of this Agreement. The
dispute must then be referred to the Arbitrator within seven (7) days of this
intention being intimated.
11.4 The
Arbitrator shall act impartially and be free to take the initiative in
ascertaining the facts and the law. The Arbitrator must reach a decision within
twenty eight (28) days of referral or such longer period as the parties may
agree.
11.5 During
the period of arbitration both parties must continue with their obligations as
stated in this Agreement.
11.6 The
decision of the Arbitrator is binding on both parties unless and until revised
by legal proceedings or agreement by both parties.
12 WARRANTY
Both
parties warrant their authority to enter into this Agreement and have obtained
all necessary approvals to do so.
13 LIMITATION
OF LIABILITY
13.1 The Consultant shall not be liable under any
circumstances to the Client or any third party for any indirect or
consequential loss of profit, consequential or other economic loss suffered by
the Client howsoever caused, as a result of any negligence, breach of contract,
misrepresentation or otherwise.
13.2 Nothing
in these Terms and Conditions shall exclude or limit the liability of the Consultant
for death or personal injury, however the Consultant shall not be liable for
any direct loss or damage suffered by the Client howsoever caused, as a result
of any negligence, breach of contract or otherwise in excess of the sum insured
under the professional indemnity insurance policy held by the Consultant in the
insurance year in which the Clients claim is first notified.
14 INDEMNITY
The Client shall indemnify the Consultant against
all claims, costs and expenses which the Consultant may incur and which arise
directly or indirectly from the Clients breach of any of its obligations under
these Terms and Conditions.
15 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, breakdown of
plant or machinery or shortage or unavailability of raw materials from a
natural source of supply, and the party shall be entitled to a reasonable extension
of its obligations.
16 ASSIGNMENT
The Client shall not be entitled to assign its rights or
obligations or delegate its duties under this Agreement without the prior
written consent of the Consultant.
17 RELATIONSHIP
OF PARTIES
Nothing in the Agreement shall be construed as
establishing or implying a partnership or joint venture between the parties or
suggest that either of the parties are agent for the other.
18 THIRD PARTY RIGHTS
Nothing in these
Terms and Conditions intend to or confer any rights on a third party.
19 SEVERANCE
If any term or provision of these Terms and
Conditions 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 hereof shall continue in full force and effect as
if these Terms and Conditions had been agreed with the invalid, illegal or
unenforceable provision eliminated.
20 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.
21 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 Proposal 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.
22 ENTIRE AGREEMENT
These Terms and
Conditions supersede any previous agreements, arrangements, documents or other
undertakings either written or oral.
23 GOVERNING
LAW
These Terms and Conditions 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.
