PARTIES
Supplier: BI-Zen Limited (company number 10215256) whose registered office is at Unit 2B Oak Tree Business Park, Austin Close, Kingskerswell, Newton Abbot, Devon, TQ12 5GJ.
Customer: the person, company or legal entity who purchases the Services from the Supplier, as detailed in the Proposal.
1. Interpretation
1.1. Definitions. In these Conditions and the Contract, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6.
Conditions: these terms and conditions, as amended from time to time in accordance with clause 12.7.
Contract: the contract that is created between the Supplier and the Customer for the supply of Services, incorporating the Proposal, the Purchase Order and these Conditions.
Deliverables: any deliverables specifically set out in the Proposal.
Input Materials: any information, data, samples and other materials provided by the Customer to the Supplier in connection with the Contract.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.
Proposal: the proposal or quotation document for the supply of Services prepared by the Supplier for the Customer.
Purchase Order: the Customer’s purchase order in respect of the Services.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Proposal.
Site: the location(s) set out in the Proposal or such other locations as the Parties may agree in writing.
Specification: any specification for the Services, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
Supplier Materials: all materials, equipment, documents and other property of the Supplier that are left with the Customer including at the Site.
1.2. Construction. In these Conditions, the following rules apply:
a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
b) a reference to a party includes its successors or permitted assigns;
c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted, including any subordinate legislation made under it;
d) any phrase preceded by the term including or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
e) a reference to writing or written includes email from persons with sufficient authority to bind a party.
2. Formation
2.1. The Customer's Purchase Order, which shall refer to the Proposal and these Conditions, shall constitute an offer to purchase the Services.
2.2. The Purchase Order shall only be deemed to be accepted when the Supplier confirms its acceptance in writing or begins to provide the Services, whichever happens first, at which point and on which date the Contract shall come into existence. An automatic or administrative acknowledgement of receipt of a Purchase Order does not constitute acceptance.
2.3. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not expressly set out in the Contract.
2.4. Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Services contained in the Supplier's catalogues, brochures or other literature are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract.
2.5. The Contract excludes all other terms and conditions including without limit any terms and conditions which the Customer purports to apply under any Purchase Order, specification or any similar document whether or not such document is referred to in the Contract.
2.6. If there is any conflict between these Conditions and the Proposal, the terms of the Proposal shall prevail.
2.7. These Conditions apply to business customers only. They are not intended for use with consumers.
3. Title and risk
3.1. For the avoidance of doubt, title to the Supplier Materials shall remain with the Supplier at all times.
3.2. The risk in the Supplier Materials shall pass to the Customer on their arrival at the Site and remain with the Customer until removal from the Site.
3.3. The Customer shall maintain the Supplier Materials in satisfactory condition and keep them insured against all risks for their full replacement value on the Supplier's behalf from their arrival at the Site. The Customer shall not be liable for any damage to the Supplier Materials as a result of any act, error or omission of the Supplier.
4. Supply of Services
4.1. The Supplier shall provide the Services to the Customer in accordance with the Proposal in all material respects.
4.2. The Supplier shall use reasonable endeavours to meet any performance dates for the Services specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
4.3. If the Supplier fails to deliver Services in accordance with any performance dates agreed in writing, the Supplier is entitled to remedy such failure by delivering such Services as soon as is reasonably possible. If such delivery is completed within a reasonable amount of time from the original agreed delivery date, the Supplier will incur no liability to the Customer. If such delivery is not completed within a reasonable amount of time from the original agreed delivery date, the Customer's remedy will be to terminate the Contract in accordance with clause 10.2(a).
4.4. The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law, regulation or safety requirement, or which do not materially affect the nature or quality of the Services and the Supplier shall notify the Customer in any such event.
4.5. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4.6. The Customer acknowledges that the purpose of the Services is for the Supplier to provide information, data and recommendations based upon such data and information. The Customer remains responsible for its own operational, investment and compliance decisions and for how it uses the Deliverables. Subject to clause 4.5 and clause 9, the Supplier shall not be liable for any loss arising from the Customer's use of such information, data or recommendations, except to the extent that the loss results from the Supplier's failure to provide the Services using reasonable care and skill.
5. Customer's obligations
5.1. The Customer shall:
a) ensure that the terms of the Proposal and the Specification are complete and accurate;
b) co-operate with the Supplier in all matters relating to the Services and comply with any requirements set out in the Proposal;
c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Site and any other Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
d) provide the Supplier with such Input Materials as the Supplier may reasonably require to supply the Services and ensure that such Input Materials are complete and accurate in all material respects;
e) prepare the Site or other Customer premises for the supply of the Services; and
f) keep and maintain any Supplier Materials at the Customer's premises in safe custody at its own risk and maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation.
5.2. If the Supplier's performance of any of its obligations in respect of the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Contract until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
b) 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 set out in this clause 5.2; and
c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
6. Charges and payment
6.1. The charges for Services shall be the price set out in the Proposal.
6.2. The Customer shall pay each invoice submitted by the Supplier:
a) within 30 days of the date of the invoice;
b) in GBP unless otherwise agreed; and
c) in full and in cleared funds to a bank account nominated in writing by the Supplier.
6.3. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of Value Added Tax chargeable from time to time (VAT). The Customer shall pay any VAT required upon receipt of a valid VAT invoice from the Supplier.
6.4. If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 5% per annum above the Bank of England Base Rate from time to time. 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.
6.5. The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7. Intellectual property rights
7.1. Subject to clauses 7.2 and 7.3, all Intellectual Property Rights in or arising out of or in connection with the Services, including in the Supplier’s methods, know-how, software, sensors and data platforms, shall be owned by the Supplier.
7.2. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Input Materials. The Customer grants the Supplier a non-exclusive, royalty-free licence to use the Input Materials for the purpose of providing the Services.
7.3. Subject to payment of the Charges in full, the Supplier grants the Customer a non-exclusive, perpetual, royalty-free licence to use the Deliverables for its internal business purposes.
8. Confidentiality
8.1. A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain (Confidential Information). The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 8 shall survive termination of the Contract.
8.2. A Receiving Party acknowledges that Confidential Information is proprietary to the Disclosing Party and of great value and agrees that a breach by the Receiving Party of any of the terms of this clause 8 at any time may result in damage to the Disclosing Party for which there may or will be no adequate remedy in law, and recognises that money damages would not be a sufficient remedy for breach and that in the event of such breach, the Disclosing Party shall be entitled to apply for injunctive relief in addition to monetary damages. In the event of such a breach, the Disclosing Party shall also be entitled to recover its costs incurred in such dispute including without limitation its reasonable legal fees.
8.3. The obligations contained in this Clause 8 shall cease ten (10) years after the last piece of Confidential Information has been received by the Receiving Party.
9. Limitation of liability
9.1. Nothing in these Conditions shall limit or exclude the Supplier's liability for:
a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
b) fraud or fraudulent misrepresentation; or
c) any other liability which cannot be excluded by law.
9.2. Subject to clause 9.1:
a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;
b) the Supplier's total liability to the Customer in respect of all losses arising under or in connection with the Contract relating to property damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £1 million; and
c) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total Charges paid or payable by the Customer under the Contract in the 12 months preceding the event giving rise to the liability.
9.3. This clause 9 shall survive termination of the Contract.
10. Termination
10.1. The Supplier may terminate the Contract on providing the Customer with at least one month’s notice in writing.
10.2. 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:
a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
b) 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction;
c) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
d) the other party's financial position deteriorates to such an extent that in the reasonable opinion of the terminating party the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.3. On termination of the Contract for any reason:
a) 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 yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt, the Supplier may also invoice the Customer for all reasonable direct costs of cancellation;
b) the Customer shall return all of the Supplier Materials. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they
have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
c) 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
d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11. Force majeure
11.1. For the purposes of this Contract, 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, fire, flood, storm or default of suppliers or subcontractors.
11.2. 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.
11.3. If the Force Majeure Event prevents the Supplier from providing any of the Services for more than five 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.
12. General
12.1. Assignment and other dealings.
a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
12.2. Notices
a) Any notice or other communication given to a party under or in connection with this 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 or sent by prepaid first-class post or other next working day delivery service, or by commercial courier or email.
b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.
c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.3. Severance.
a) If any provision or part-provision of the Contract 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 the Contract.
b) If any provision or part-provision of this Contract 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.
12.4. Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
12.6. Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.7. Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
12.8. Governing law & Jurisdiction. This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and any dispute or claim arising out of or in connection with it shall be subject to the exclusive jurisdiction of the English courts.