TERMS AND CONDITIONS OF BUSINESS
1. Definitions and Structure
In this agreement:
(a) "Client" means the person, company, partnership or undertaking to whom these terms and conditions are sent.
(b) ”Contract” the contract between Subteno and the Client for the supply of Services in accordance with these Conditions.
(c) ”Fee Proposal” the fee proposal for the Services provided to the Client by Subteno.
(d) "Intellectual Property Rights" means all rights in the nature of patents, designs, copyright, trademarks, utility models and all other rights of a similar nature (whether registered or unregistered and whether capable of registration or not) arising out of the performance of the Services.
(e) "Subteno" means Subteno Ltd Limited (a company registered in England under number 10891962) whose registered office is at Suite FF1, Crafton House, Rosebery Business Park, Mentmore Way, Poringland, Norwich, NR14 7XP.
(f) "Services" means the work and services to be performed by Subteno for the Client as set out in the Fee Proposal or, where no Fee Proposal has been provided, in the accompanying letter.
2. Formation of contract
2.1 These terms and conditions shall be deemed incorporated in all orders placed by Clients for the provision of Services. The order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The order shall only be deemed to be accepted when Subteno issues written acceptance of the order at which point and on which date the Contract shall come into existence.
2.3 The Contract constitutes the entire agreement between the parties, unless Subteno agrees in writing to any amendments proposed by the Client. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Subteno which is not set out in the Contract.
2.4 Any Fee Proposal given by Subteno shall not constitute an offer, and is only valid for a period of 60 days from its date of issue.
2.5 Any descriptions, illustrations, samples, descriptive matter or advertising of the Services contained in Subteno’s literature and other advertisement material are intended merely to present a general idea of Subteno’s Services and no representation contained in that material shall form part of this agreement or have any contractual force.
This agreement shall be construed in accordance with the Laws of England and the parties hereby agree to the exclusive jurisdiction of the English courts.
4. Price and Payment
4.1 The price to be charged by Subteno for the Services shall be in accordance with Subteno's Fee Proposal. Where there is no Fee Proposal, the price shall be as per the estimate of fees set out in the accompanying letter addressing your specific matter.
4.2 The price to be charged by Subteno may be fixed or calculable at a rate according to the number of man days or man hours, as indicated in either Subteno’s Fee Proposal or as set out in the accompanying letter. Where it is so calculable then:
any estimate given by Subteno as to the number of man days or man hours required by Subteno to undertake the whole or any part of the Services shall be taken as a guide only and should not be regarded as being a fixed fee and shall not be binding on Subteno;
the daily or hourly charges can be substantiated by timesheet summaries if required; and
time spent travelling is also charged for at the daily or hourly rates indicated by Subteno. Where there is no Fee Proposal, the charges shall be calculable at Subteno’s charges per man hour from time to time prevailing and the provisions of clauses 4.2. (a) to 4.2 (c) above shall apply.
4.3 The prices provided by Subteno do not include the cost of value added tax and like taxes which shall be payable in addition by the Client.
4.4 Subteno shall be entitled to increase the price estimated on account of any interruptions or delays in the provision of the Services caused by the Client and any overtime or unusual hours or any additional services provided by Subteno as a result of any act or omission on the part of the Client.
4.5 Where Subteno undertakes any variation or modification to the Services upon the request of the Client, Subteno shall be entitled to increase the price estimate accordingly.
4.6 All travel, accommodation and subsistence expenses are charged in addition to the price estimate at cost plus a 10% handling charge unless the Fee Proposal states otherwise.
4.7 Subteno shall invoice the Client at monthly intervals in accordance with the work completed to date. The Client shall pay each invoice submitted by Subteno within twenty-eight (28) days of the date of the invoice in full and in cleared funds to a bank account nominated in writing by Subteno from time to time.
4.8 If the Client fails to pay any monies on the due date then, without prejudice to any other right or remedy available to Subteno, Subteno shall be entitled to:
(a) suspend the supply of any Services; and/or
(b) charge the Client interest calculated on a daily basis (from the due date until actual payment of the overdue amount, whether before or after any judgement) on the outstanding monies at a rate equal to eight (8) per cent per annum above the Bank Of England base rate from time to time prevailing.
4.9 The Client may not claim to be entitled to exercise any set-off, counterclaim or lien over or against the monies due to Subteno under this agreement.
5. Supply of Information
5.1 The Client shall promptly provide Subteno with all information, materials and assistance (including without limitation where Subteno attends at the Client's site, provision of electricity, telephones and other consumables and access to storage, workspace and car parking) that Subteno may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects.
5.2 The Client shall ensure that the terms of the order are complete and accurate.
5.3 The Client shall obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start
6. Intellectual Property Rights
6.1 The Intellectual Property Rights shall remain the property of Subteno. So long as the Client makes full payment of all fees due to Subteno under this Contract, Subteno grants a non-exclusive licence to the Client to use the Intellectual Property Rights to such extent as is necessary to enable the Client to make reasonable use of the Service and for the purpose for which that supply was envisaged by Subteno. If the Contract is terminated, this licence will automatically terminate. Without limitation the Client shall not, save as may be permitted by law, copy or reproduce the process as used by Subteno to the extent that the same is protected by Subteno’s intellectual property rights.
6.2 All copyrights and other intellectual property in the specifications, drawings, illustrations, descriptions and documentation submitted by Subteno pursuant to this Contract shall remain the property of and vest automatically in Subteno, and the Client shall not, save as may be permitted by law, copy, reproduce or reverse engineer the same. Insofar as they do not vest automatically by operation of law or under this Contract, the Client hereby agrees to assign to Subteno absolutely all copyrights and all other intellectual property rights subsisting in the specifications, drawings, illustrations, descriptions and documentation and prior to such assignment holds the legal title in these rights on trust for Subteno.
6.3 Where any software (including without limitation any bespoke software) is provided under this Contract:
the copyright in the same shall remain the property of Subteno and the Client shall use the same only as provided in Subteno’s software licence to be entered into by the Client upon demand;
the Client shall not copy, translate, reverse engineer or adapt the software for the purpose of error correction; and
the information necessary to achieve the interoperability of an independent program which can be operated with the software may be requested in writing from Subteno by the Client.
7. Supply of Services
7.1 Subteno shall supply the Services as set out in the accompanying letter.
7.2 Subteno warrants to the Client that the Services will be provided using reasonable care, skill and diligence.
7.3 Subteno shall use reasonable endeavours to meet any performance dates set out in the accompanying letter, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
7.4 Where a defect occurs in the Services:
(a) within a period of six months after the completion of the provision of the Services; and
(b) the defect arises solely from the faulty design of Subteno (Subteno shall have no liability where a defect has arisen due to an error or defect in the building process or the materials used in the building process); and
(c) the Client promptly brings such defect to the attention of Subteno;
then Subteno shall re-perform the Services so affected, provided always that (upon request from Subteno) relevant documentation is returned to Subteno at the cost of the Client if so required. Subteno shall not be obliged to attend at the Client's site for the purposes of any such re-performance.
8. Limitation of Liability
8.1 The following provisions set out Subteno’s entire liability to the Client (including any liability for the acts and omissions of its employees, agents or sub-contractors) in respect of:
any breach of contractual obligations;
any tortious act or omission;
arising out of or in connection with this Contract.
8.2 To the maximum extent permissible in law all conditions and warranties which are to be implied by statute or common law or otherwise into this Contract or relating to any reports or software supplied by Subteno pursuant to the Services and the Services are hereby excluded.
8.3 Subteno shall not be liable in contract or tort or otherwise to the extent that such liability arises as a result of any of the following:
(a) inaccuracies or omissions in any data, drawings, calculations, specifications, information (including any misleading items therein) supplied to Subteno by the Client or by a third party (other than a third party which is a subcontractor of Subteno) for the purposes of enabling it to perform the Services; and
(b) any errors or omissions in instructions given by the Client, its agents, consultants or sub-contractors in connection with the Services.
8.4 The liability of Subteno under or in connection with this Contract whether in contract or in tort, in negligence or for breach of statutory duty or otherwise for any claims which may arise out of or in connection with any pollution or contamination is specifically excluded to the maximum extent permissible in law.
8.5 Neither party shall bear any liability to the other for loss of production, loss of profits, loss of business, or any like form of direct or consequential loss.
8.6 Without prejudice to any other exclusion or limitation of liability, damage, loss, expense or costs the liability of Subteno for any claim or claims under this Contract shall be further limited to such sum as it would be just and equitable for Subteno to pay having regard to the extent of its responsibility for the loss or damage giving rise to such claim or claims (“the loss and damage”) and on the assumptions that:
all other consultants, contractors, sub-contractors, project managers or advisors engaged in connection with the project have provided contractual undertakings on terms no less onerous than those set out in Condition 8.7 in respect of the carrying out of the their obligations; and
there are no exclusions of or limitations of liability nor joint insurance or co-insurance provisions between the Client and other consultants, contractors, sub-contractors, project managers or advisors for the loss and damage; and
all such other consultants, contractors, sub-contractors, project managers or advisors have paid to the Client such sum as it would be just and equitable for them to pay having regard to the extent of their responsibility for the loss and damage.
8.7 Subteno’s aggregate liability for all claims arising out of this Contract, in any event, in total shall not in any event exceed an amount being ten times the total fees actually paid by the Client under this Contract, subject to a minimum of £100,000 in the aggregate. Notwithstanding the above, Subteno’s aggregate liability for all claims arising out of this Contract in total shall not in any event exceed the value of our Professional Indemnity Insurance from time to time.
8.8 Nothing in these Conditions shall limit or exclude Subteno’s liability to the Client for:
death or personal injury caused by the negligence of Subteno, its employees, agents or sub-contractors;
fraud or fraudulent misrepresentation; or
damage suffered by the Client as a result of any breach by Subteno of the condition as to title or the warranty as to quiet possession implied by Section 2 of the Supply of Goods and Services Act 1982.
8.8 Nothing in this clause 8 shall confer any right or remedy upon the Client to which it would not otherwise be entitled. The provisions of this clause 8 shall survive any termination of the Contract.
9. Force Majeure
9.1 A party shall not be liable for any delay in or failure of performance by either party of any obligation (other than an obligation to pay monies) to the extent that the delay or failure is caused by circumstances beyond the reasonable control of that party and which, by exercise of reasonable diligence, that party is unable to prevent, mitigate, or remove; including but not limited to: acts of God, floods, acts of war or a public enemy, riots, rebellion, sabotage or strikes, lockouts and other forms of industrial action (including where that industrial action is by the work force of that party).
9.2 In the event that the cause continues for more than 6 months, either party may, without limiting its other rights or remedies, terminate this Contract by giving the other party 30 days' notice prior written notice.
Where the Client uses the results of the Services in the construction of a building or part of a building, then the Client shall indemnify and hold harmless Subteno from and against all liability, loss, damages, costs and expenses awarded against or incurred by Subteno in respect of or in connection with such use by the Client or arising out of the construction of a building or part of a building.
11.1 Each party agrees that it shall maintain as confidential the proprietary information of the other party, will not publish or disclose such information to any third party, and shall not use that proprietary information other than as expressly permitted in writing by the other party.
11.2 In this context, proprietary information includes (without limitation) all technical data and specifications supplied by Subteno and in respect of software includes (without limitation) the source code, structure and algorithms of the software
11.3 The above obligations shall not apply to a part of the proprietary information that is already or becomes commonly known to the public (except through a breach of the obligations imposed under this Contract).
11.4 This obligation of confidentiality shall survive any termination of this agreement.
12.1 Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party 3 months' written notice.
12.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
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 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
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 its creditors;
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) other than 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;
the other party (being an individual) is the subject of a bankruptcy petition or order;
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 its assets and such attachment or process is not discharged within 14 days;
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 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 clause 12.2(b) to clause 12.2(i) (inclusive);
the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
the Client's financial position deteriorates to such an extent that in Subteno's opinion the Client's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
12.3 Without limiting its other rights or remedies, Subteno may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 90 days after being notified in writing to do so.
12.4 Without limiting its other rights or remedies, Subteno may suspend provision of the Services under the Contract or any other contract between the Client and Subteno if the Client becomes subject to any of the events listed in clause 12.2(b) to clause 12.2(m), or Subteno reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
13. Consequences of termination
13.1 On termination of the Contract for any reason:
the Client shall immediately pay to Subteno all of Subteno's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Subteno shall submit an invoice, which shall be payable by the Client immediately on receipt;
the Client shall return to Subteno all specifications, drawings, illustrations, descriptions and documentation which have not been fully paid for. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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
clauses which expressly or by implication survive termination shall continue in full force and effect.
14.1 In this agreement:-
the singular includes the plural.
the use of one gender includes the use of the masculine and feminine and neuter gender.
the headings are for convenience only and shall not affect the construction of this agreement.
15. Assignment and Agreement
15.1 The Client shall not assign this Contract in whole or in part save with the prior written consent of Subteno (such consent not to be unreasonably withheld). Subteno shall be free as it sees fit from time to time to assign the whole of this agreement, or to sub-contract the undertaking of the whole or any part of the Services.
15.2 Each party acknowledges that it has not been induced to enter into this Contract by any representation other than those representations (if any) that have been reduced to writing in this Contract.
15.3 No modification or amendment to this Contract shall be binding unless executed in writing by persons who have full power and authority so to do. Nevertheless:-
(a) the failure of either party at any time to enforce any provision of this Contract shall not be deemed a waiver of any such provision or of any other provision hereof or of such party's right thereafter to enforce any provision hereof;
(b) where Subteno undertakes any variation or modification at the Client’s request then such variation or modification may be undertaken by Subteno and shall be paid for by the Client as provided for in condition 4.5 above even where not agreed in writing.
16. Contracts (Rights of Third Parties) Act 1999
Nothing in this Contract confers or purports to confer on any third party any benefit or any right to enforce any term of this contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
17.1 Any notice given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) 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, sent by pre-paid first class post or other next working day delivery service or commercial courier.
17.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 17.1; if sent by pre-paid first class post or other next working day delivery service, 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.
17.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
18. General Data Protection Regulation (GDPR)