TERMS OF CONSULTANCY
1 Definitions and interpretation
1.1 In these Conditions the following definitions apply:
means the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption;
means a day other than a Saturday, Sunday or bank or public holiday;
means CSRB Limited’s terms and conditions of supply set out in this document;
means any commercial, financial or technical information, information relating to the Services, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
means the agreement between CSRB Limited and the Customer for the supply and purchase of Services incorporating these Conditions and the Order;
means CSRB Limited whose registered office is 160 Aztec West, Almondsbury, Bristol, BS32 4TU
means the person who purchases the Services from CSRB Limited and whose details are set out in the Order;
means an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving CSRB Limited’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
Intellectual Property Rights
means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future;
(e) to which the relevant party is or may be entitled, and
(f) in whichever part of the world existing;
means the address(es) for performance of the Services as set out in the Order;
means the order for the Services from CSRB Limited placed by the Customer in substantially the same form as set out in the Schedule overleaf;
has the meaning set out in clause 3.1;
means the Services set out in the Order and to be performed by CSRB Limited for the Customer;
means the description or specification of the Services set out or referred to in the Order; and
means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.
1.2 In these Conditions, unless the context requires otherwise:
1.2.1 any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
1.2.2 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.3 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.5 a reference to a gender includes each other gender;
1.2.6 words in the singular include the plural and vice versa;
1.2.7 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.8 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (excluding email);
1.2.9 a reference to legislation is a reference to that legislation amended, extended, re-enacted or consolidated from time to time; and
1.2.10 a reference to legislation includes all subordinate legislation made from time to time under that legislation.
2 Application of these Conditions
2.1 These Conditions apply to and form part of the Contract between CSRB Limited and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that CSRB Limited otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of CSRB Limited.
2.4 Each Order by the Customer to CSRB Limited shall be an offer to purchase Services subject to these Conditions.
2.5 An Order may be withdrawn or amended by the Customer at any time before acceptance by CSRB Limited. If CSRB Limited is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable.
2.6 The offer constituted by an Order shall remain in effect and be capable of being accepted by CSRB Limited for 10 Business Days from the date on which the Customer submitted the Order, after which time it shall automatically lapse and be withdrawn.
2.7 CSRB Limited may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:
2.7.1 CSRB Limited’s written acceptance of the Order; or
2.7.2 CSRB Limited performing the Services or notifying the Customer that they are ready to be performed (as the case may be).
2.8 Rejection by CSRB Limited of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.9 CSRB Limited may issue quotations to the Customer from time to time. Any quotation given by CSRB Limited is only valid for a period of 30 days from its date of issue. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
2.10 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
3.1 The price for the Services shall be as set out in the Order or, in default of such provision, shall be calculated in accordance with CSRB Limited’s scale of charges in force from time to time (Price).
3.2 The Prices are exclusive of:
3.2.1 travel to and from any client address, subsistence, supply of material goods & out of business hours working which shall be charged in addition at CSRB Limited’s standard rates, and
3.2.2 VAT (or equivalent sales tax).
3.3 The Customer shall pay any applicable VAT to CSRB Limited on receipt of a valid VAT invoice.
3.4 CSRB Limited may increase the Prices at any time by giving the Customer not less than 20 Business Days’ notice in writing provided that the increase does not exceed 10% of the Prices in effect immediately prior to the increase.
3.5 Notwithstanding clause 3.4, CSRB Limited may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to CSRB Limited of supplying the relevant Services which exceeds 5% and which is due to any factor beyond the control of CSRB Limited.
4.1 CSRB Limited shall invoice the Customer for the Services at any time both before, during or after performance of the Services.
4.2 The Customer shall pay all invoices:
4.2.1 in full without deduction or set-off, in cleared funds within 14 days of the date of each invoice; and
4.2.2 to the bank account nominated by CSRB Limited, by bank transfer or GoCardless direct debit
4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
4.3.1 CSRB Limited may, without limiting its other rights, charge interest on such sums at 5% a year above the base rate of Barclays Bank from time to time in force, and
4.3.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
5.1 An Order shall specify whether the Services are to be:
5.1.1 performed at the Location on the date(s) specified in the Order; or
5.1.2 performed at an alternative premises set out in the Order (as the case may be). The Customer shall make such premises available for CSRB Limited so that CSRB Limited is able to make the Services available to be performed within the period set out in the Order.
5.2 The Services shall be deemed performed on completion of the performance of the Services as specified in the Order.
5.3 Time of performance of the Services is not of the essence. CSRB Limited shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are approximate only.
5.4 CSRB Limited shall not be liable for any delay in or failure of performance caused by:
5.4.1 the Customer’s failure to: (i) make the Location available, (ii) prepare the Location in accordance with CSRB Limited’s instructions or (iii) provide CSRB Limited with adequate instructions for performance;
5.4.2 Force Majeure.
6.1 CSRB Limited warrants that, for a period of three months from performance (the Warranty Period), the Services shall:
6.1.1 conform in all material respects to their description and the Specification;
6.1.2 be free from material defects;
6.1.3 be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13; and
6.1.4 in the case of media on which the results of the Services are supplied, be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
6.2 The Customer warrants that it has provided CSRB Limited with all relevant, full and accurate information as to the Customer’s business and needs.
6.3 CSRB Limited shall, at its option, remedy, re-perform or refund the Services that do not comply with clause 6.1, provided that:
6.3.1 the Customer serves a written notice on CSRB Limited not later than five Business Days from performance; and
6.3.2 such notice specifies that some or all of the Services do not comply with clause 6.1 and identifies in sufficient detail the nature and extent of the defects; and
6.3.3 the Customer gives CSRB Limited a reasonable opportunity to examine the claim of the defective Services.
6.4 The provisions of these Conditions shall apply to any Services that are remedied or re-performed with effect from performance of the remedied or re-performed Services.
6.5 Except as set out in this clause 6:
6.5.1 CSRB Limited gives no warranties and makes no representations in relation to the Services; and
6.5.2 shall have no liability for their failure to comply with the warranty in clause 6.1,
and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
6.6 The Customer shall be entitled to exercise its rights under clause 6 notwithstanding that the Services were not rejected following any initial inspection.
7.1 For the purposes of this clause 7 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
7.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and ensure that:
7.2.1 all of that party’s personnel;
7.2.2 all others associated with that party; and
7.2.3 all of that party’s subcontractors;
involved in performing the Contract so comply.
7.3 Without limitation to clause 7.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) 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.
7.4 Each party shall immediately notify the other as soon as it becomes aware of a breach of any of the requirements in this clause 7.
8 Indemnity and insurance
8.1 The Customer shall indemnify, and keep indemnified, CSRB Limited from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by CSRB Limited as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
8.2 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under these Conditions. On request, the Customer shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Customer shall on request assign to CSRB Limited the benefit of such insurance.
9 Limitation of liability
9.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 9.
9.2 Subject to clauses 9.5 and 9.6, CSRB Limited’s total liability shall not exceed the Price.
9.3 Subject to clauses 9.5 and 9.6, CSRB Limited shall not be liable for consequential, indirect or special losses.
9.4 Subject to clauses 9.5 and 9.6, CSRB Limited shall not be liable for any of the following (whether direct or indirect):
9.4.1 loss of profit;
9.4.2 loss of data;
9.4.3 loss of use;
9.4.4 loss of production;
9.4.5 loss of contract;
9.4.6 loss of opportunity;
9.4.7 loss of savings, discount or rebate (whether actual or anticipated);
9.4.8 harm to reputation or loss of goodwill.
9.5 The limitations of liability set out in clauses 9.2 to 9.4 shall not apply in respect of any indemnities given by either party under the Contract.
9.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
9.6.1 death or personal injury caused by negligence;
9.6.2 fraud or fraudulent misrepresentation;
9.6.3 any other losses which cannot be excluded or limited by applicable law.
10 Intellectual property
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by CSRB Limited.
10.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on CSRB Limited obtaining a written licence from the relevant licensor on such terms as will entitle CSRB Limited to license such rights to the Customer. The Customer will indemnify CSRB Limited against any claim for breach of Intellectual Property Rights arising as a result of a supply of such licence to the Customer.
11 Confidentiality and announcements
11.1 The Customer shall keep confidential all Confidential Information of CSRB Limited and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
11.1.1 any information which was in the public domain at the date of the Contract;
11.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
11.1.3 any information which is independently developed by the Customer without using information supplied by CSRB Limited; or
11.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
11.2 This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.
11.3 The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
12 Force Majeure
12.1 A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
12.1.1 promptly notifies the other of the Force Majeure event and its expected duration; and
12.1.2 uses best endeavours to minimise the effects of that event.
12.2 If, due to Force Majeure, a party:
12.2.1 is or shall be unable to perform a material obligation; or
12.2.2 is delayed in or prevented from performing its obligations for a total of more than 30 days in any consecutive period of 60 days;
the other party may, within 30 days, terminate the Contract on immediate notice.
13.1 CSRB Limited may terminate the Contract at any time by giving notice in writing to the Customer if:
13.1.1 the Customer commits a material breach of Contract and such breach is not remediable;
13.1.2 the Customer commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach;
13.1.3 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after CSRB Limited has given notification that the payment is overdue; or
13.1.4 any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
13.2 CSRB Limited may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
13.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
13.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if CSRB Limited reasonably believes that to be the case;
13.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
13.2.4 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
13.2.5 has a resolution passed for its winding up;
13.2.6 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
13.2.7 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within [seven] days of that procedure being commenced;
13.2.8 has a freezing order made against it;
13.2.9 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
13.2.10 is subject to any events or circumstances analogous to those in clauses 13.2.1 to 13.2.9 in any jurisdiction.
13.3 CSRB Limited may terminate the Contract any time by giving not less than four weeks’ notice in writing to the Customer if the Customer undergoes a change of Control.
13.4 If CSRB Limited becomes aware that any event has occurred, or circumstances exist, which may entitle the Customer to terminate the Contract under this clause 14, it shall immediately notify the Customer in writing.
13.5 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of CSRB Limited at any time up to the date of termination.
13.6 On termination of the Contract for any reason:
13.6.1 the Client shall immediately pay to CSRB Limited all of CSRB Limited’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, CSRB Limited shall submit an invoice, which shall be payable by the Customer immediately on receipt;
13.6.2 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
13.6.3 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
Notices under a Contract will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:
14.1.1 by first-class post: two Business Days after posting;
14.1.2 by airmail: seven Business Days after posting;
14.1.3 by hand: on delivery;
14.1.4 by facsimile: on receipt of a successful transmission report from the correct number; and
14.1.5 by e-mail: on receipt of a delivery or read receipt mail from the correct address.
15 Cumulative remedies
The rights and remedies provided in the Contract for CSRB Limited only are cumulative and not exclusive of any rights and remedies provided by law.
Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.
17 Further assurance
The Customer shall at the request of CSRB Limited, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
18 Entire agreement
18.1 The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
18.2 Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
18.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, CSRB Limited.
20.1 The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without CSRB Limited’s prior written consent, such consent not to be unreasonably withheld or delayed.
20.2 CSRB Limited may at any time assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, to any third party.
21 Set off
21.1 CSRB Limited shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract.
21.2 The Customer shall pay all sums that it owes to CSRB Limited under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
22 No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
23 Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause CSRB Limited irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to CSRB Limited, the Customer acknowledges and agrees that CSRB Limited is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
24.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
24.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
25.1 No failure, delay or omission by CSRB Limited in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
25.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by CSRB Limited shall prevent any future exercise of it or the exercise of any other right, power or remedy by CSRB Limited.
26 Compliance with law
The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
27 Conflicts within contract
If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail.
28 Costs and expenses
The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
29 Third party rights
29.1 A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
30 Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).