The NAV People, trading name of Vedbaek Limited (company registration number 06858712)
Standard Terms & Conditions for the supply of Services (August 2015 Edition) (“the Conditions”)
In these Conditions:
‘Acknowledgement’ the Seller’s acknowledgement of the Order, as detailed in clause 1.2.
‘Contract’ means the contract between the Seller and the Purchaser for the Supply of Services and/or Deliverables which comprises the Quotation and these Conditions.
‘Deliverables’ means the deliverables set out in the Quotation.
‘Intellectual Property Rights’ means patents, registered and unregistered design rights, registered and unregistered trade marks and copyright, having effect in the United Kingdom.
‘Order’ means the Purchaser’s order for the Services and the Deliverables, as set out in the Purchaser’s purchase order form
‘Quotation’ the proposal or quotation supplied by the Seller to the Purchaser, containing details of the Services and Deliverables to be supplied.
‘Purchaser’ means the person or firm who purchases Services from the Seller, detailed in the Quotation. ‘Seller’ means Vedbaek Limited trading as ‘The NAV People’.
‘Services’ means the services, including the Deliverables (where applicable), supplied by the Seller to the Purchaser as set out in the Quotation and any specification agreed between the parties.
1. How the contract is formed
1.1 The Order constitutes an offer by the Purchaser to purchase Services in accordance with these Conditions.
1.2 The Order shall only be accepted when the Seller acknowledges the Order in writing (which includes by email) (the ‘Acknowledgement’) at which point and on which date the Contract shall commence.
1.3 The Contract constitutes the entire agreement between the parties. The Purchaser acknowledges that it has not relied on any statement, representation, or warranty made or given by or on behalf of the Seller which is not set out in the Contract. The parties may agree to enter into a more formal agreement regarding the contractual arrangements in place. However, the parties agree that until such time as the formal agreement is signed, the Contract shall be the legally binding agreement in place between the parties. These Conditions apply to the Contract to the exclusion of any other terms which the Purchaser may seek to impose or which are implied by trade or course of dealing.
1.4 Any Quotation given by the Seller shall not constitute an offer and is only valid for 30 days or such other period as stipulated in the Quotation from the date of issue.
1.5 No amendments to these terms will bind the Seller unless such amendments have been accepted in writing by a duly authorised representative of the Seller.
1.6 No specification, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature shall form part of the Contract.
2. Supply of Services
2.1 The Seller shall provide the Services and the Deliverables in a professional manner using reasonable skill and care.
2.2 The Seller shall use reasonable endeavours to meet any performance dates for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
2.3 The Seller shall have the right to make changes to the Services which are necessary to comply with applicable laws or safety requirements.
3. Purchaser's obligations
3.1 The Purchaser shall:
3.1.1 ensure that the terms of the Quotation and the Order and any specification submitted by the Purchaser are complete and accurate;
3.1.2 co-operate with the Seller in all matters relating to the Services and Deliverables;
3.1.3 provide the Seller, its employees, agents, consultants and subcontractors, with access to the Purchaser's premises, office accommodation and other facilities as reasonably required by the Seller to provide the Services and Deliverables;
3.1.4 provide the Seller with such information and materials as the Seller may reasonably require to supply the Services and Deliverables, and ensure that such information is accurate in all material respects;
3.1.5 prepare the Purchaser's premises for the supply of the Services and Deliverables;
3.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services and the Deliverables before the date on which the Services are to start; and
3.1.7 keep and maintain all materials, equipment, documents and other property of the Seller (‘Seller Materials’) at the Purchaser's premises in safe custody at its own risk, maintain the Seller Materials in good condition until returned to the Seller, and not dispose of or use the Seller Materials other than in accordance with the Seller's written instructions or authorisation.
3.2 If the Seller cannot perform or is delayed in performing any of its obligations in respect of the Services and Deliverables due to an act or omission by the Purchaser or failure by the Purchaser to perform any relevant obligation (‘Purchaser Default’):
3.2.1 the Seller shall (without limiting its other rights or remedies) have the right to suspend supply of the Services and Deliverables until the Purchaser remedies the Purchaser Default, and until the Purchaser Default is remedied the Seller shall be relieved from performing any of its obligations under the Conditions, if such obligations cannot be performed due to the Purchaser Default;
3.2.2 the Seller shall have no liability for any costs or losses incurred by the Purchaser which arise directly or indirectly from the Seller's failure or delay to perform any of its obligations as set out in this clause 3.2; and
3.2.3 the Purchaser shall reimburse the Seller for any costs or losses arising directly or indirectly from the Purchaser Default.
4.1 The charges for the Deliverables shall be as set out in the Quotation. The charges for Services shall be on a time and materials basis:
4.1.1 the charges shall be calculated in accordance with the Seller's standard daily fee rates, as set out in the Quotation;
4.1.2 the Seller can charge an overtime at the rates agreed between the parties for any time worked by individuals engaged on the Services outside the hours of 9.00am-5.30pm Monday to Friday (excluding UK bank holidays); and
4.1.3 the Seller shall be entitled to charge the Purchaser for any expenses reasonably incurred in the provision of the Services and Deliverables, subject to the prior approval of the Purchaser.
4.2 The Seller reserves the right to:
4.2.1 increase its standard daily fee rates for the charges for the Services, provided that such charges cannot be increased more than once in any 12 month period.
4.2.2 increase the price of the Deliverables, by giving notice to the Purchaser at any time before delivery, to reflect any increase in the cost of the Deliverables to the Seller that is due to:
(a) any factor beyond the control of the Seller (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Purchaser to change the delivery date(s), quantities of Deliverables , or the specification for the Deliverables; or
(c) any delay caused by the Purchaser or any failure on the part of the Purchaser to provide adequate or accurate information or instructions in respect of the Services and/or the Deliverables.
4.3 The Seller shall invoice the Purchaser for the Services and the Deliverables as agreed in the Quotation.
4.4 The Purchaser shall pay each invoice submitted by the Seller within 15 days of the date of the invoice and in full and in cleared funds to a bank account nominated in writing by the Seller. Time for payment shall be of the essence of the Contract.
4.5 All amounts payable by the Purchaser under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time which shall be added to the invoice where applicable.
4.6 Failure to pay on the due date shall entitle the Seller to charge the Purchaser interest on the overdue amount at the rate of 4%above the base lending rate of the Bank of England from time to time. Interest shall accrue on a daily basis from the due date until the date of payment.
4.7 The Purchaser shall pay all amounts due under the Contract in full without any set-off.
5. Intellectual Property Rights
5.1 All Intellectual Property Rights in or arising out of or in connection with the Services and the Deliverables shall be owned by the Seller (except in respect of any third party software comprised in the Deliverables, where the Seller shall be licensee of such Intellectual Property Rights therein).
5.2 The Purchaser acknowledges that, in respect of any third party Intellectual Property Rights in the Services and/or Deliverables, the Purchaser's use of any such Intellectual Property Rights is conditional on the Seller obtaining a written licence from the relevant licensor on such terms as will entitle the Seller to license such rights to the Purchaser.
5.3 Subject to clauses 5.4 and 5.5, if any claim is made against the Purchaser for infringement of Intellectual Property Rights arising directly from the use of the Deliverables, the Seller at its own expense shall take control of and conduct any litigation in relation to such claim and all negotiations for settlement of the claim shall be dealt with by the Seller. The Seller shall be responsible for any payments in relation to the claim (either by way of a lump sum or a continuing royalty payment) made in settlement, or as a result of an award in a judgment against the Seller.
5.4 Subject to clause 5.5, the Purchaser shall only have the rights granted by clause 5.3 if the Purchaser gives the Seller the earliest possible notice in writing of any such claim being made or action threatened or brought against it, and the Purchaser shall make no admission of liability or take any other action in connection with the claim. The Purchaser shall permit the Seller to have the conduct of the claim pursuant to clause 5.3, and shall (at the Seller’s expense) give all reasonable information, co-operation and assistance to the Seller (including without limitation lending its name to proceedings) in relation to the conduct of the claim.
5.5 The provisions of clause 5.3 shall not apply to any infringement caused by the Seller having followed any specification or instructions given by the Purchaser or use of the Deliverables for a purpose prohibited by the Seller, or to any infringement which is due to the use of the Deliverables in association or combination with any other software or product (other than any software which is supplied by the Seller as part of the Deliverables).
5.6 The foregoing states the Seller’s entire liability to the Purchaser and the Purchaser’s sole and exclusive remedies against the Supplier in connection with claims based on or resulting from the infringement of Intellectual Property Rights, of any kind whatsoever, of third parties.
6. Limitation of liability: THE PURCHASER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
6.1 Nothing in these Conditions shall limit or exclude the Seller's liability for (1) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (2) fraud or fraudulent misrepresentation; (3) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); (4) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or (5) defective products under the Consumer Protection Act 1987.
6.2 Subject to clause 6.1:
6.2.1 the Seller shall under no circumstances whatever be liable to the Purchaser, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any other indirect or consequential loss arising under or in connection with the Contract; and
6.2.2 the Seller's total liability to the Purchaser in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Contract.
6.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and 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.
6.4 This clause 6 shall survive termination of the Contract.
7.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
7.1.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so; or
7.2.2 the other party is unable to pay its debts as they fall due or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; the other party commences negotiations with any its creditors with a view to rescheduling any of its debts; a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company); an application is made or notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause 7.2.2; or
7.2.3 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business.
7.3 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Purchaser if the Purchaser fails to pay any amount due under this Contract on the due date for payment.
7.4 Without limiting its other rights or remedies, the Seller may suspend the supply of Services and/or Deliverables under the Contract or any other contract between the Purchaser and the Seller if the Purchaser fails to pay any amount due under this Contract on the due date for payment, the Purchaser becomes subject to any of the events listed in clause 7.2.2 to clause 7.2.3, or the Seller reasonably believes that the Purchaser is about to become subject to any of them.
7.5 On termination of the Contract for any reason:
7.5.1 the Purchaser shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest and, in respect of Services and/or Deliverables supplied but for which no invoice has yet been submitted, the Seller shall submit an invoice, which shall be payable by the Purchaser immediately on receipt;
7.5.2 the Purchaser shall return any Deliverables which have not been fully paid for. If the Purchaser fails to do so, then the Seller may enter the Purchaser's premises and take possession of them. Until they have been returned, the Purchaser shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
7.5.3 the accrued rights and remedies of the parties as at termination shall not be affected, 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; and
7.5.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
8. Force Majeure
8.1 The Seller shall not be under any liability for any failure to perform any of its obligations under the Contract due to Force Majeure. Following notification by the Seller to the Purchaser of such cause, the Seller shall be allowed a reasonable extension of time for the performance of its obligations.
8.2 For the purposes of this Condition, ’Force Majeure’ means fire, explosion, flood, lightning, Act of God, act of government, terrorism, war, rebellion, riot, sabotage, or official strike or similar official labour dispute, or any events or circumstances outside the reasonable control of the Seller.
Both the Seller and the Purchaser shall each keep confidential and shall not without the prior consent in writing of the other disclose to any third party any technical or commercial information which it has acquired from the other as a result of discussions, negotiations and other communications between them relating to the Contract and the supply of the Services and Deliverables.
10.1 The Seller may at any time assign, charge, subcontract or deal in any other manner with all or any of its rights under the Contract. The Purchaser shall not, without the prior written consent of the Seller, assign, charge, subcontract, or deal in any other manner with all or any of its rights or obligations under the Contract.
10.2 Any notice given to a party in connection with this Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post, or by commercial courier or fax. A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in this; if sent by pre-paid first class post, at 9.00 am on the second working day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax, one working day after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
10.3 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be modified to the extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be 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.
10.4 No failure or delay by a party to exercise any right or remedy under the Contract or by law shall amount to a waiver of that right or remedy, and shall not prevent or restrict it been exercised in future.
10.5 Nothing in the Contract is intended to establish any partnership or joint venture between any of the parties. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
10.6 A person who is not a party to the Contract shall not have any rights to enforce its terms.
10.7 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by an authorised representative of the Seller.
11. Applicable law
The contract is made in England and shall be governed in all respects by the law of England and the parties agree to submit to the exclusive jurisdiction of the English courts.