Terms and Conditions

TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES

1 Basis of contract

1.1 Unless either stated otherwise by the Supplier or agreed otherwise by the Supplier and the Customer in writing, these Conditions Shall apply to and bind the parties in respect of the supply of the Services by the Supplier to the Customer.

1.2 Where the Customer requires any Services to be provided by the Supplier it shall notify the Supplier either in writing or (where applicable) via the Portal. The Supplier may in its sole and absolute discretion refuse to accept any request to provide Services. Where the Supplier agrees to provide the requested Services it shall notify the Customer in writing or (where applicable) via the Portal stating the Services it is willing to provide and once the parties agree the scope of Services then at that point a binding Contract shall be formed for the provision of the relevant Services to which these Conditions shall apply. The Supplier shall not be obliged to provide any Services unless and until it has confirmed in writing that it is willing and able to provide the requested Services and the parties have agreed the scope of the Services.

2 Supply of Services

2.1 Subject to payment of the Fees in accordance with the requirements of these Conditions the Supplier shall supply the Services to the Customer in accordance with these Conditions.

2.2 The Supplier shall use reasonable endeavours to meet any performance dates agreed between the Supplier and the Customer, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

2.3 The Supplier reserves the right to amend the Services if necessary to comply with any applicable law, or if any inaccurate, incomplete or misleading information is supplied to the Supplier in relation to the Services or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

2.4 The Supplier may suggest a change to the scope of the Services if it considers it to be in the best interests of the Customer or the Customer may request a change to the Services or the provision of additional Services. Where any such suggestion or request is made the parties will discuss and agree to a revised or new scope of Services to be provided and if they can agree then the Supplier shall provide those Services in accordance with the terms of these Conditions provided always that, subject to clause 3.3, the Supplier shall be under no obligation to provide any such new or amended Services until the Supplier and the Customer have each agreed to the provision of such Services.

3 Customer’s obligations

3.1 The Customer shall at all times fully co-operate with the Supplier in all matters relating to the Services, including providing in a timely manner such information, materials, documents and samples as requested by the Supplier to perform the Services from time to time.

3.2 The Customer must at all times comply with all applicable laws and hold and maintain all necessary licences and consents in respect of its activities under or in connection with the Contract, including (without limitation) ensuring that any products to be marketed, sold, manufactured, distributed or made available by the Customer in respect of which the Supplier is to provide any Services comply with all applicable laws.

3.3 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to comply with this clause 3 without affecting any other remedies and rights available to it, the Supplier shall be entitled to suspend performance of the Services and the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as a result of either (i) the Supplier exercising its rights as set out in this clause 3.3 or (ii) the relevant act or omission of the Customer of its failure to comply with this clause 3.

4 Fees and payment

4.1 The Fees for the Services shall either be (i) such amounts as agreed between the parties for the relevant Services or (ii) where the parties have not agreed any particular fees for some or all of the Services then the Supplier shall charge on a time and materials basis for such Services in accordance with its applicable rates from time to time.

4.2 The Supplier reserves the right to amend the Fees as a result of or in connection with any change in applicable law or if any inaccurate, incomplete or misleading information is supplied to the Supplier.

4.3 If the Supplier agrees to provide any further or additional Services or agrees (and the Supplier may reject any requests for any such change in its sole and absolute discretion) to change the scope of the Services then any additional or amended Services will either (i) be subject to new or revised Fees or (ii) be charged on a time and materials basis in accordance with its applicable rates from time to time.

4.4 The Supplier may at its discretion (unless otherwise agreed in writing with the Customer) invoice the Customer either (i) monthly in arrears in respect of Services provided in the previous month or (ii) upon conclusion of any particular Services (or part thereof). Where applicable, all amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time.

4.5 The Customer shall pay each invoice submitted by the Supplier:

4.5.1 within 30 days of the date of the invoice; and

4.5.2 in full and in cleared funds, without set-off, deduction or counterclaim, to a bank account nominated in writing by the Supplier.

5 Intellectual property rights

5.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.

5.2 The Supplier grants to the Customer, or shall use reasonable endeavours to procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence to use the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.

5.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in 5.2.

5.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

6 Data protection

For the purposes of the Data Protection Legislation, the Supplier and Customer shall each be Controllers of any Personal Data provided to it by the other party. The parties each warrant to each other that they shall comply with all obligations imposed on them as Controllers under the Data Protection Legislation.

7 Confidentiality

The parties have entered into a separate non-disclosure agreement relating to the Confidential Information (“Non-Disclosure Agreement”) which the parties agree shall apply to and bind the parties in respect of any Confidential Information disclosed under or in connection with this Agreement. In the event of a conflict between the Non-Disclosure Agreement and this Agreement, the terms providing greater protection to the Supplier and its Confidential Information shall prevail.

8 Limitation of liability:

8.1 Nothing in this Agreement limits any liability which cannot legally be limited, including but not limited to liability for:

8.1.1 death or personal injury caused by negligence;

8.1.2 fraud or fraudulent misrepresentation; and

8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

8.2 Subject to clause 8.1 the Supplier’s total aggregate liability to the Customer in each Year for claims arising in that Year (for the purposes of this clause, a claim arises when the event giving rise to the relevant claim arises) shall not exceed (i) the total value of the Fees paid by the Customer to the Supplier in the relevant Year or (ii) where this Agreement has been in effect for less than an entire Year or terminates part way through a Year, the average of the Fees paid by the Customer to the Supplier per month during the relevant Year multiplied by 12 (twelve).

8.3 Subject to clause 8.1 (Liabilities which cannot legally be limited), this clause 8.3 sets out the types of loss for which the Supplier shall have no liability to the Customer:

8.3.1 loss of profits;

8.3.2 loss of sales or business;

8.3.3 loss of agreements or contracts;

8.3.4 loss of anticipated savings;

8.3.5 loss of use or corruption of software, data or information;

8.3.6 loss of or damage to goodwill; and

8.3.7 indirect or consequential loss.

8.4 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

8.5 This clause 8 shall survive termination of this Agreement.

9 Termination

9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than 2 months’ written notice.

9.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and fails to make such payment within 14 days of a reminder from the Supplier to make such payment.

10 Consequences of termination

10.1 On termination of the Contract:

10.1.1 the Supplier shall, unless the parties agree otherwise in writing, immediately cease providing any Services; and

10.1.2 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt. Where any such Services are the subject of a fixed fee then the value of the invoice raised shall be of such value as to ensure that the total value of all invoices raised in respect of the relevant Services are equivalent in value to the proportion of the Services completed as at the date of termination of the Agreement;

10.2 On termination of the Contract, the following clauses shall continue in force: clause 4 (Fees and payment), clause 5.2, clause 5.3, clause 7 (Confidentiality), clause 8 (Limitation of Liability), this clause 10 (Consequences of termination), clause

11 (General) and clause 12 (Interpretation).

11 General

11.1 Force majeure. The Supplier shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control whether or not such events, circumstances or causes were reasonably foreseeable.

11.2 Assignment and other dealings.

11.2.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

11.2.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier which it may in its sole and absolute discretion refuse.

11.3 Variation.

11.3.1 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.3.2 The Supplier may vary these terms in such manner and with such frequency as it decides in its sole and absolute discretion. Any such variation shall take effect immediately upon the Supplier giving the Customer written notice of such change.

11.4 Entire agreement.

11.4.1 Subject to clause 11.4.2, the Contract and the Non-Disclosure Agreement constitute the entire agreement between the parties in relation to its subject matter and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. These Conditions shall apply in lieu of and prevail over any alternative terms and conditions provided to the Supplier or made available to the Supplier by the Customer.

11.4.2 Where the parties have a separate agreement in place in respect of either (i) any specific services to be provided by the Supplier whereby the Supplier agrees to act as responsible person pursuant to EC Regulation 1223/2009 or The Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019) or (ii) the Supplier’s engagement letter agreement entitled “supply of services agreement” then in each case (i) and (ii) the Contract and these Conditions shall not supersede such separate agreement(s) and clause 11.4.1 shall not apply to such separate agreement(s) provided always that nothing in this clause 11.4.2 shall cause any terms and conditions provided by the Customer to prevail over these Conditions or any other agreement entered into by the parties.

11.4.3 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

11.4.4 Nothing in this clause shall limit or exclude any liability for fraud.

11.5 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract 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 the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

11.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deleted under this clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.7 Notices.

11.7.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or by email.

11.7.2 Any notice shall be deemed to have been received:

11.7.2.1 if delivered by hand, at the time the notice is left at the proper address;

11.7.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

11.7.2.3 if given by email at the time of transmission unless that falls outside of 9:00-17:30 (UK time) on a Business Day in which case it shall be deemed received at 9:00am (UK time) on either (i) that Business Day (where the email is sent prior to 9:00am UK time) or (ii) the next Business Day (where the email is sent after 17:30pm (UK time)).

11.7.3 This clause 11.7 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

11.8 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

11.9 Governing law. The Contract, 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.

11.10 Jurisdiction. 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 the Contract or its subject matter or formation.

12 Interpretation

The following definitions and rules of interpretation apply in these Terms and Conditions.

12.1 Definitions:

“Business Day” means a day other than a Saturday, Sunday, bank or public holiday in England.
“Conditions” means these terms and conditions as amended from time to time in accordance with clause 11.3.2.
“Confidential Information” has the meaning as set out in the Non-Disclosure Agreement.
“Contract” means the contract between the Supplier and the Customer for the supply of Services to which these Conditions shall apply.
“Controller”, “process”, “Personal Data” shall each have the meaning ascribed to them in the UK Data Protection Legislation.
“Customer” means the person or firm who purchases Services from the Supplier.
“Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to Personal Data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).
“Deliverables” means any physical output of the Services such as reports, checklists, assessments or training materials which the Supplier provides as part of the Services.
“Fees” means the fees payable by the Customer to the Supplier for the Services as stated by the Supplier from time to time or as determined in accordance with these Conditions where not so stated by the Supplier.
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring 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.
“Non-Disclosure Agreement” has the meaning ascribed to it in clause 7.
“Portal” means the online ordering portal provided or made available by the Supplier from time to time.
“Services” means the services, including the provision of any Deliverables, supplied by the Supplier to the Customer as agreed between the Supplier and the Customer from time to time pursuant to or in connection with the Contract.
“Supplier” means Delphic HSE Solutions Limited registered in England and Wales with company number 05520846.
“UK Data Protection Legislation” means applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
“Year” means a calendar year.

12.2 Interpretation:

12.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

12.2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

12.2.3 A reference to writing or written includes email but not fax unless expressly stated otherwise in these Conditions.

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