Terms of Business Agreement
1.1 In these Conditions:
“Client” means the person named on the Specification Sheet for whom the Supplier has agreed to provide the Specified Service in accordance with these Terms;
“Contract” means the contract for the provision of the Specified Service;
“Document” includes, in addition to a document in Writing, a map, plan, design, drawing, picture or other image, or any other record of any information in any form;
“Force Majeure” means, in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, any strike, lock-out or other industrial action);
“Input Material” means any Documents or other materials, and any data or other information provided by the Client relating to the Specified Service;
“Output Material” means any Documents or other materials, and any data or other information provided by the Supplier relating to the Specified Service;
“Specification Sheet” means the sheet to which these Terms are appended;
“Specified Service” means the service to be provided by the Supplier for the Client and referred to in the Specification Sheet;
“Supplier’ means Kalogram Ltd. of 2 Queens Avenue, Portishead, Bristol, BS20 6NH;
1.2 The headings in these Terms are for convenience only and shall not affect their interpretation.
This Agreement shall commence upon the signing of the Kalogram order form and shall (subject to earlier termination pursuant to Clause 8.) terminate on the delivery of the final results.
3 Supply of the Specified Service
3.1 The Supplier shall provide the Specified Service to the Client subject to these Terms. Any changes or additions to the Specified Service or these Terms must be agreed in Writing by the Supplier and the Client.
3.2 The Client shall at its own expense supply the Supplier with all necessary Documents or other materials, and all necessary data or other information relating to the Specified Service, within sufficient time to enable the Supplier to provide the Specified Service in accordance with the Contract. The Client shall ensure the accuracy of all Input Material.
3.3 The Specified Service shall be provided in accordance with the Specification Sheet and otherwise in accordance with the Supplier’s current brochure or other published literature relating to the Specified Service from time to time, subject to these Terms.
3.4 Further details about the Specified Service, and advice or recommendations about its provision or utilisation, which are not given in the Supplier’s brochure or other promotional literature, may be made available on Written request.
3.5 The Supplier may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Specified Service without any liability to the Client.
4 Agreement of service performance
4.1 On completion of the specification document the Supplier shall obtain the written acceptance of the Client prior to proceeding with the compilation of the questions that shall form the basis of the survey.
4.2 The Supplier will present the questions to the Client and obtain the Client’s acceptance prior to proceeding with the design of the survey.
4.3 The design of the survey shall be agreed in writing with the Client prior to issuing the survey.
5.1 Subject to any special terms agreed, the Client shall pay 70% of the Supplier’s Standard Charges at point of order, and any additional sums on delivery of the results, which are agreed between the Supplier and the Client for the provision of the Specified Service or which, in the Supplier’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Client.
5.2 All charges quoted to the Client for the provision of the Specified Service are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
5.3 The Supplier’s Standard Charges and any additional sums payable shall be paid by the Client (together with any applicable Value Added Tax, and without any set-off or other deduction) on receipt of the Supplier’s invoice.
5.4 If payment is not made on the due date, the Supplier shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 8 per cent above the base rate from time to time of the Bank of England from the due date until the outstanding amount is paid in full in accordance with Late Payment of Commercial Debts (Interest) Act 1998.
5.5 Any recovery costs incurred by the Supplier through the use of a third party will be the responsibility of the debtor to pay in full.
6 Rights in Input Material and Output Material
6.1 The property and any copyright or other intellectual property rights in:
6.1.1 any Input Material shall belong to the Client
6.1.2 any Output Material shall, unless otherwise agreed in Writing between the Client and the Supplier, belong to the Supplier, but the Client shall be entitled to use the Output Material for the purposes of utilising the Specified Service by way of a non-exclusive licence, subject to payment in full of all sums payable under the Contract.
6.2 Any Input Material or other information provided by the Client which is so designated by the Client and any Output Material shall be kept confidential by the Supplier but the foregoing shall not apply to any Documents or other materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
6.3 The Client warrants that any Input Material and its use by the Supplier for the purpose of providing the Specified Service will not infringe the copyright or other rights of any third party, and the Client shall indemnify the Supplier against any loss, damages, costs, expenses or other claims arising from any such infringement.
6.4 Subject to paragraph 6.3, the Supplier warrants that any Output Material and its use by the Client for the purposes of utilising the Specified Service will not infringe the copyright or other rights of any third party, and the Supplier shall indemnify the Client against any loss, damages, costs, expenses or other claims arising from any such infringement.
7 Warranties and Liability
7.1 The Supplier warrants to the Client that the Specified Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Specification and at the intervals and within the times referred to in the Specification Sheet. Where the Supplier supplies in connection with the provision of the Specified Service any goods (including Output Material) supplied by a third party, the Supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Supplier.
7.2 The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
7.3 Except in respect of death or personal injury caused by the Supplier’s negligence, or as expressly provided in these Terms, the Supplier shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its servants or agents or otherwise) which arise out of or in connection with the provision of the Specified Service (including any delay in providing or failure to provide the Specified Service) or their use by the Client, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the amount of the Supplier’s charges for the provision of the Specified Service, except as expressly provided in these Terms.
7.4 The Supplier shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to the Specified Service, if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
8.1 The Client may terminate the Contract at any time by giving not less than 4 weeks written notice to the Supplier.
8.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving Written notice to the other if the other commits any breach of these Terms and (if capable of remedy) fails to remedy the breach within 30 days after being required by Written notice to do so, or if the other goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed.
9.1 These Terms (together with the terms, if any, set out in the Specification Sheet) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in Writing between the parties. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
9.2 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
9.3 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
9.4 Neither party shall be deemed to be in breach of this agreement, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under this agreement, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.
9.5 If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
9.6 English law shall apply to the Contract, and the parties agree to submit to the exclusive jurisdiction of the English and Welsh courts.