The following definitions and rules of interpretation apply to these terms and conditions.
Customer: the person or firm who purchases the Services from the Supplier.
Contract: the agreement or contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer's Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
Deliverables: the deliverables set out in the Supplier’s quotation.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off [or unfair competition], rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for the supply of Services, as set out in the Customer’s written acceptance of the Supplier’s quotation.
Services: the services to be provided by the Supplier under these terms and conditions, as agreed with the Customer.
Scope of Works: the description or specification for the Services provided in writing by the Supplier to the Customer.
Supplier: Digital Reflow Limited registered in England and Wales under company number 08545953.
Supplier's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
1.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6. A reference to writing or written includes email.
1.7. A reference to these terms and conditions or to any other agreement or document referred to in these terms and conditions is a reference of these terms and conditions or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of these terms and conditions) from time to time.
2. Basis of Contract
2.1. Where the Supplier and the Customer enter into a Contract, if there is a conflict between the Contract and these Conditions, the Contract shall prevail.
2.2. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
3. Commencement and Duration
3.1. The Supplier shall provide the Services to the Customer in accordance with these terms and conditions.
3.2. The Supplier shall provide the Services from the date specified in the relevant Contract.
4. Supplier's Responsibilities
4.1. The Supplier shall use reasonable endeavours to provide the Services, and deliver the Deliverables to the Customer, in accordance with the Scope of Works in all material respects.
4.2. The Supplier shall use reasonable endeavours to meet any performance dates specified in the Scope of Works but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of these terms and conditions.
4.3. The Supplier shall comply with any additional responsibilities as set out in the relevant Scope of Works.
5. Customers Obligations
5.1. The Customer shall:
- co-operate with the Supplier in all matters relating to the Services;
- provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer's premises, office accommodation, data and other facilities as required by the Supplier;
- provide, in a timely manner, such In-put Material and other information as the Supplier may require, and ensure that it is accurate in all material respects;
- inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer's premises;
- comply with any additional responsibilities as set out in the relevant Scope of Works.
5.2. If the Supplier's performance of its obligations under these terms and conditions is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.
5.3. The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under these terms and conditions, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.4. The Customer shall not, without the prior written consent of the Supplier, at any time from the date of these terms and conditions to the expiry of twelve months after the completion of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
5.5. Any consent given by the Supplier in accordance with clause 5.4 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier's employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
6. Change Control
6.1. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other party in writing (Change Request).
6.2. If the Supplier originates a Change Request, it shall provide, with the Change Request, written details of the impact which the proposed change will have on:
- the Services;
- the Supplier's existing charges;
- the timetable of the Services; and
- any of the terms of these terms and conditions and any relevant Scope of Works.
6.3. If the Customer originates a Change Request, the Supplier shall, as soon as reasonably practicable after receiving the Change Request, provide a written estimate to the Customer setting out:
- the likely time required to implement the proposed change;
- the likely time required to implement the proposed change;
- the Services;
- the Supplier’s existing charges;
- the timetable of the Services; and
- any of the terms of these terms and conditions and any relevant Scope of Works.
6.4. Unless both parties consent to a Change Request, there shall be no change to the Services and any other terms of these terms and conditions and any other relevant Scope of Works.
6.5. If both parties consent to a Change Request, it shall be signed by the authorised representatives of both parties, upon which the Change Request becomes a Change Order.
6.6. The Supplier may charge for the time it spends on dealing with Change Requests originating from the Customer on a time and materials basis in accordance with clause 7.
7. Charges and Payment
7.1. In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in the Supplier’s quotation.
7.2. The Contract shall specify whether the charges shall be on a time and materials basis, a fixed price basis or a combination of both.
7.3. Where the Services are provided on a time and materials basis:
- the charges payable for the Services shall be calculated in accordance with the Supplier's standard daily fee rates as amended from time to time;
- the Supplier's standard daily fee rates for each individual person are calculated on the basis of an eight-hour day;
- all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate;
- the Supplier shall invoice the Customer monthly in arrear for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause.
7.4. Where the Services are provided for a fixed price:
- The total price for the Services shall be the amount set out in the Supplier’s quotation as amended from time to time.
- The Customer shall pay the total price to the Supplier (without deduction or set-off) in instalments, as set out in the Supplier’s quotation.
7.5. Any fixed price and daily rate contained in the Contract excludes:
- the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier at cost; and
- VAT, which the Supplier shall add to its invoices at the appropriate rate.
7.6. The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of receipt to a bank account nominated in writing by the Supplier.
7.7. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date:
- the Customer shall pay interest on the overdue amount at the rate allowed under the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
- the Supplier may suspend all Services until payment has been made in full.
7.8. All sums payable to the Supplier under these terms and conditions shall become due immediately on its termination, despite any other provision.
7.9. All amounts due under these terms and conditions shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Intellectual Property Rights
8.1. All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
8.2. The Customer acknowledges that, where the Supplier supplies a third party product, the Customer's use of rights in the third party product is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
9. Confidentiality and the Supplier's Property
9.1. The Customer undertakes that it shall not at any time at any time disclose to any person technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier's business or its products which the Customer may obtain, except as permitted by clause 9.2(a).
9.2. The Customer may disclose the Supplier's confidential information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with these terms and conditions. The Customer shall ensure that its employees, officers, representatives or advisers to whom it discloses the Supplier's confidential information comply with this clause 9; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3. The Customer shall not use the Supplier's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with these terms and conditions.
9.4. All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall, at all times:
- be and remain the exclusive property of the Supplier;
- be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier; and
- not be disposed of or used other than in accordance with the Supplier's written instructions or authorisation.
10. Limitation of liability
10.1. Nothing in these terms and conditions shall limit or exclude the Supplier's liability for:
- death or personal injury caused by its negligence;
- fraud or fraudulent misrepresentation; or
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
10.2. Subject to clause 10.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these terms and conditions for:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of or damage to goodwill;
- loss of use or corruption of software, data or information; and
- any indirect or consequential loss.
10.3. Subject to clause 10.1, the Supplier's total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these terms and conditions shall be limited to the value of the order
10.4. The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these terms and conditions.
11.1. Without affecting any other right or remedy available to it, either party may terminate these terms and conditions with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of these terms and conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the other party repeatedly breaches any of the terms of these terms and conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these terms and conditions;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors [other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- 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 that other party (being a company);
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
- the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.2. Without affecting any other right or remedy available to it, the Supplier may terminate these terms and conditions with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under these terms and conditions on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or
12. Consequences of Termination
12.1. The termination of these terms and conditions pursuant to this clause shall result in the automatic termination of all Contracts in place at the time of termination.
12.2. On termination or expiry of these terms and conditions the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt.
12.3. Termination or expiry of these terms and conditions shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
13. Force Majeure
13.1. For the purposes of these terms and conditions, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13.2. The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
13.3. If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 12 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
14. Assignment and Other Dealings
14.1. These terms and conditions is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under these terms and conditions.
14.2. The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under these terms and conditions.
No variation of these terms and conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.1. A waiver of any right or remedy under these terms and conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
A failure or delay by a party to exercise any right or remedy provided under these terms and conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these terms and conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17. Rights and Remedies
The rights and remedies provided under these terms and conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
18.1. If any provision or part-provision of these terms and conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed 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 these terms and conditions.
18.2. If any provision or part-provision of these terms and conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19. Entire Agreement
These terms and conditions constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
If there is an inconsistency between any of the provisions of these terms and conditions and the provisions of the Contract, the provisions of these terms and conditions shall prevail.
21. No Partnership or Agency
21.1. Nothing in these terms and conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
21.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
22. Third Party Rights
No one other than a party to these terms and conditions shall have any right to enforce any of its terms.
23. Governing Law
These terms and conditions and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these terms and conditions or its subject matter or formation.