Conditions of Contract
Unless otherwise agreed, these are our conditions of contract.
In these conditions:-
A. “The Client” means the addressee of the Proposal.
B. “The Unit” means ISVR Consulting or any person subcontracted by them to carry out work in connection with the project.
C. “The Project” means the consulting work, the Title, nature and scope of which are set out in the proposal.
D. “The Proposal” shall mean the technical proposal as detailed in the Agreement and on any supporting documents referred to thereon together with The Unit’s price estimate set out therein. Unless otherwise agreed in writing, “The Proposal” is valid for acceptance by The Client for a period of 30 days from the date thereof and no longer. The Unit’s price is chargeable in accordance with Clause 4 below.
E. “The Contract” means the Agreement formed between The Unit and The Client.
(a) The conditions set out below shall, with the proposal, constitute the terms of the Contract.
The Contract shall be formed by The Client returning to The Unit a copy of The Proposal duly signed by or on behalf of The Client.
(b) No other conditions or terms shall be incorporated in The Contract. An acceptance by
The Unit of an order of The Client shall be exclusively upon these terms.
3. Client’s property
The Unit shall not be liable for any loss, destruction of, theft of or damage to items or property owned, leased or loaned by The Client and supplied to The Unit in connection with The Project, except to the extent that the same can be shown to be due to negligent acts or omissions of The Unit or anyone employed by them.
(a) The Price shall be exclusive of Value Added Tax.
(b) Subject to (c) and (d) below The Price will be as stated in the attached Proposal.
(c) Before carrying out any alterations or additions to The Contract, The Unit shall advise The Client in writing of the estimated price and effect on the programme and completion date. The Client shall then have an opportunity to consider the said estimated price and effect and if acceptable will provide written authority within 30 days of the written notification to The Unit for any alterations or additions to The Contract.
(d) The Unit reserves the right to vary The Price on the happening of any of the following:
(i) Any increase in costs arising after submission of The Proposal and during the period of The Contract due to factors outside The Unit’s control including without prejudice to the generality of the foregoing; changes in taxation affecting the services, purchase of additional equipment, bought out material and consumables.
(ii) Any variation in, delay, interruption or suspension of work due to instructions from or lack of information or decision on the part of The Client or any additional work caused by alterations in The Client’s instructions.
(a) All payments shall be made by The Client within 30 days of the date of The Unit’s invoice. In the case of projects which extend beyond 3 months from the date of commencement, progress payments at monthly intervals may be required at the discretion of The Unit. For certain projects where major test facilities are required a sum of 50% of the facility use may be payable in advance and will be non returnable in the event of cancellation by The Client.
(b) Where any payment due has not been received by The Unit 30 days after the date of an invoice, The Unit shall (without prejudice to its other rights howsoever arising) be entitled to charge interest on the amount outstanding from the date of the invoice at a rate per annum equal to 2% above Lloyds Bank PLC base rate for the time being in force.
(c) In the case of projects terminated by either party after full discussion with the other party, The Client is responsible for paying in full within 30 days of the termination all payments due to the date of termination.
Work by The Unit may be wholly or partly suspended and the time of such suspension may be added to the original period of The Project in the event of overdue payments, stoppage, delay or interruption of work during the period of The Project as a result of strikes, other industrial disputes, breakdowns, accident, sickness, failure by The Client to give adequate instructions or approvals, or any cause whatsoever beyond the control of The Unit. The Client shall pay all accounts in full and shall not exercise any rights of set-off or counterclaims against invoices submitted.
7. Duration and delivery
(a) The Unit will make every reasonable effort to perform and carry out The Project from the Commencement Date until the Completion Date specified.
(b) No extension of the duration of The Project may be made by The Unit other than arising out of the events specified in 5(b), and clause 6 above unless agreed in writing by The Client.
(c) Delays in delivery shall not render The Unit liable under any circumstances for damages, consequential loss or loss of profits.
The Client or The Unit may terminate The Agreement by giving three months written notice by recorded or registered post to the other party where it considers termination justified on the grounds that no further purpose would be served by continuing The Project. Notice of termination will only be given by either party after full discussion with the other party of the reasons for the proposal to give such notice.
9. Exclusions and indemnity
(a) The liability of The Unit to the client for any loss, damage or expense arising from any cause whatsoever and whether in contract or negligence (other than negligence covering death, or personal injury) shall not, in any one contract exceed the sum of £2m.
(b) The Unit cannot guarantee that the objectives set out in The Proposal will be attained, but will use every reasonable effort to do so.
(c) The Client shall at all times indemnify and keep indemnified The Unit in respect of all loss or damage or expense suffered by any third party for which The Unit may become liable in connection with the carrying out of The Project.
(d) The obligations of The Unit shall cease upon delivery of any reports information or device. No liability whatsoever either direct or indirect shall rest upon The Unit for the effects of any product or process that may be produced by The Client or any other party, notwithstanding that the formulation of such product or process or commercial transaction may be based on the findings of The Project.
10. Technical information
(a) The Client shall supply free of charge all pertinent data and information and give such assistance as shall be required by The Unit for the carrying out of The Project.
(b) Any drawings, models, samples, or other matter submitted by The Unit to The Client and vice versa with the proposal and used during the course of The Project are confidential and must not be copied or transmitted to any third party, excepting those advising The Client on matters pertaining directly to the contract, or used for any other purpose whatsoever. The drawings, models, samples and other matter remain the property of whichever party supplies them unless specifically agreed otherwise in writing and must be returned on request.
(c) The Unit shall be entitled to make, use and return copies of the technical information
referred to above (but specifically excluding technical information acquired from The Client) free of charge for its own purposes.
11. Confidentiality of information
(a) Any information relating to The Client’s operations shall be regarded as confidential and will not without the prior written consent of The Client be used (except in connection with The Project), published or disclosed by The Unit. This restriction does not apply to information which is, or at the time of publication or disclosure, has become public knowledge through no act or default of The Unit.
(b) The project shall be maintained on a confidential basis between The Unit and The Client and no information shall be released during The Project to any third party except by mutual consent of both The Unit and The Client.
(c) Findings arising out of a project relating specifically to The Client’s product or design will not be published except by mutual consent of both The Unit and The Client.
12. Intellectual property
(a) Copyright in all original drawings, designs, proposals, reports, and other written matter originating from The Unit whether made pursuant to The Proposal or otherwise shall remain vested in The Unit at all times.
(b) All Intellectual Property developed by The Unit during The Project other than in clause (a) above shall belong to The Unit. In the case of projects terminated as a result of liquidation, bankruptcy or receivership, all patentable inventions, drawing designs, proposals, reports and other written matter submitted to The Client with The Proposal and used during the course of The Project remain the property of The Unit and must be returned on request.
(c) All patentable inventions, non-patentable processes, designs, copyrights, improvements or know-how originating from The Unit arising wholly and exclusively from this Agreement and relating to its objectives shall be the property of The Unit. Terms for assignment to The Client or joint exploitation shall be the subject of negotiation between The Unit and The Client upon completion of the Services. Any Licence granted to The Client under this sub-clause shall be on the basis of the payment of a reasonable royalty and other reasonable conditions to be agreed between the parties. On payment of all sums due to The Unit from The Client in respect of the assignment or otherwise and upon mutual agreement that all phases of the assignment and licensing agreement have been completed, The Unit shall execute and do all things reasonably necessary to enable The Client to protect any patents and other intellectual property rights. Prior to such payment or agreement, The Unit does not authorise The Client to deal in, apply or use any such goods, information, designs and know-how.
Any dispute or difference arising out of The Agreement shall be referred to the arbitration of a person to be mutually agreed upon or failing agreement to some person nominated by the President of the Law Society. The decision by the Arbitrator shall be final and binding upon and enforceable against the parties.
The Conditions together with The Proposal shall be read, construed and governed by The Laws of England.
15. Existence of contract
Terminations by notice of this agreement by whatever means shall not affect the provisions of Clauses 5, 6, 10, 11, 12, hereof.
All communications to The Client shall be sent to the address appearing in The Proposal unless some other address has been notified in writing to The Unit. All communications to The Unit shall be sent to the address of The Unit set out in the Proposal or such other as may be properly notified.
17. Force majeure
In the event that either party is delayed or impeded in the performance of its obligations hereunder by any cause beyond its reasonable control it shall be entitled to such extension or time for such performance as may be fair and reasonable in all the circumstances.