GENERAL CONDITIONS OF CONTRACT FOR PROFESSIONAL SERVICES
In these Conditions (unless the context otherwise requires) the following terms have the meanings set out below:
Envantage Limited (registered number 5065617) whose principal place of business is at 8 Grange Lane, Didsbury, Manchester M20 6RW;
the terms and conditions of contract for professional services set out in this document;
the agreement between the Company and the Buyer for the supply of the Service;
the person who agrees to purchase the Service from the Company subject to these Conditions whose details are set out in the Proposal;
the proposal for the Service executed by or on behalf of the Company and the Customer;
the services set out in the Proposal under the heading “deliverables” but excluding any service, matter or thing set out in the Proposal under the heading “exclusions”.
2. Basis of contract
2.1 These Conditions apply to all contracts for the provision of Services entered into by the Company. By instructing the Company to proceed or accepting the Company’s quotation, the Customer agrees to deal with the Company on these Conditions to the exclusion of all other terms, conditions, warranties or representations with the exception of any terms specified in writing in the Proposal.
2.2 No variation to these Conditions shall be binding unless made in writing specifying both which clause is to be varied and full details of such variation and signed on behalf of each of the Buyer and the Company.
2.3 The Company’s employees or agents are not authorised to make any representations concerning the Service unless confirmed by the Company in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed. The Buyer irrevocably and unconditionally waives any right it may have to claim damages for and/or to rescind the Contract as a result of any misrepresentation whether or not contained in the Contract unless such misrepresentation was made fraudulently.
2.4 Any typographical, clerical or other error or omission in the Proposal or any sales literature, quotation, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3. Sale and purchase
3.1 The Buyer agrees to purchase the Service from the Company and the Company agrees to supply the Service to the Buyer in each case in accordance with the Proposal.
3.2 The Buyer shall not be entitled to cancel in whole or in part any Proposal which the Company has accepted or any quotation of the Company which the Customer has accepted in either case whether orally or in writing.
4. Prices and payment
4.1 The price of the Service shall be the price set out in the Proposal or, if not specified, the price quoted by the Company.
4.2 The price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to the Company.
4.3 The Buyer shall make payment to the Company in respect of all invoices in full and without any deduction or set off (whether in relation to such invoice or otherwise) within 14 days of the date of the invoice. Time of payment shall be of the essence.
4.4 All payments shall be applied to invoices and to Services listed in such invoices in the order determined in its discretion by the Company.
4.5 If full payment is not received by the Company by the due date then without prejudice to its rights the Company shall be entitled:-
4.5.1 to sue for the entire price; and/or
4.5.2 to charge interest (both before and after any judgment) at the rate of 4% over the base rate from time to time of Santander UK PLC on the outstanding balance.
4.6 Until full payment together with interest (if applicable) is received by the Company in respect of all outstanding invoices, the Company shall be entitled:
4.6.1 to retain all and any documents of the Customer, the Company or any third party and to withhold copies thereof; and/or
4.6.2 to withhold further work in respect of any Services.
5. Warranty and liability
5.1 The Company warrants that the Service will correspond with the Proposal provided that the Company shall be under no liability in respect of any defects in the Service arising from any failure, action, communication, negligence, default, breach of Contract or omission by the Customer or by a third party including but not limited to:
5.1.1 a failure by the Customer to provide information to the Company by the date requested;
5.1.2 a failure by the Customer to inform the Company of relevant information which the Customer knew or had been informed was relevant information (including but not limited to the identities of energy suppliers to the Customer); or
5.1.3 a failure by the Customer to retain copies of documents supplied to the Company.
5.2 There are no warranties, conditions, guarantees or representations made by the Company about the Service whether express or implied, oral or in writing, except as expressly stated in the Contract.
5.3 The Company does not seek to exclude or limit its liability for death or personal injury resulting from negligence of the Company or its employees.
5.4 Except pursuant to sub-clause 5.3 above, the Company shall not in any event be liable for any indirect, special or consequential loss or damages, howsoever arising or in respect of any loss of anticipated profits or wasted overheads or similar costs in connection with or arising out of the Service, or any item or service provided, and shall not be liable for any other damages except as provided in the Contract.
5.5 Except pursuant to sub-clauses 5.3 above in no event shall the Company’s liability in respect of the Service exceed the sum of £500,000.
6. The Customer’s Obligations
In further consideration for the supply of the Service, the Customer agrees as follows:-
6.1 to allow timely access at reasonable times and to a reasonable extent to its premises and staff for the proper and timely performance of the Service by the Company and its staff;
6.2 where information and/or documents are supplied by the Customer to the Company or its staff, to indemnify the Company against any claims by third parties for breach of intellectual property, confidentiality or other rights; and
6.3 not to solicit, induce or endeavour to entice to leave the service or employment of the Company or employ or otherwise engage the services of any person employed by or acting for or on behalf of the Company with whom the Customer comes into contact during the provision of the Service.
7.1 The Company shall be entitled to terminate the Contract forthwith by notice in writing to the Buyer if:-
7.1.1 the Buyer commits an irremediable breach of the Contract, persistently repeats a remediable breach or commits any remediable breach and fails to remedy it within 30 days of receipt of notice of the breach requiring remedy of the same; or
7.1.2 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a Company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or
7.1.3 the Buyer ceases or threatens to cease to carry on business; or
7.1.4 the Buyer is resident in a jurisdiction other than England and Wales, if an event similar to any of those specified in clause 7.1.2 occurs to or in relation to the Buyer; or
7.1.5 if the Company reasonably apprehends that any of the events specified in clause 7.1.2 is about to occur in relation to the Customer and notifies the Customer accordingly.
7.2 In the event of termination by the Company pursuant to clause 7.1 above then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further work due under the Contract without any liability to the Buyer.
The remedies available to the Company under the Contract shall be without prejudice to any other rights, either at common law or under statute, which it may have against the Buyer.
The failure or delay of the Company to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect either party’s right later to enforce or exercise it nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
The invalidity or unenforceability of any term of, or any right arising pursuant to the Contract shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
Any notice or written communication required or permitted to be served on or given to either party under the Contract shall be delivered by hand or sent by recorded delivery mail to the other party at its address set out above or to such other address which it has previously notified to the sending party or sent by fax to such fax number as it has previously notified to the sending party and shall be deemed to have been given when actually received or, if sent by recorded delivery mail and returned marked “gone away” or to the like effect, on return of such recorded delivery mail or, if sent by fax, upon receipt of the relevant fax confirmation sheet.
The Contract is personal to the Buyer and the Buyer may not assign, transfer, sub-contract or otherwise part with the Contract or any right or obligation under it without the prior written consent of the Company.
13. Force Majeure
Neither party shall be liable to the other if its performance of its obligations under the Contract (other than an obligation to pay money) is prevented or hindered due to any circumstances outside its control.
The Company and the Customer undertake to each other that they will not at any time after the date of the Contract use or divulge or communicate any confidential information concerning the business, accounts, finance or contractual arrangements or other dealings, transactions or affairs of the other (including but not limited to details of the Service).
Clause headings are purely for ease of reference and do not form part of or affect the interpretation of the Contract.
16. Entire agreement
The Contract contains all the terms agreed by the parties relating to the subject matter of the Contract and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing, and no representation (unless made fraudulently), undertaking or promise shall be taken to have been given or been implied from anything said or written in negotiations between the parties prior to the Contract except as set out in the Contract.
No variation or amendment to the Contract shall be effective unless in writing signed by authorised representatives of the parties.
18. Law and Jurisdiction
The construction, validity and performance of the Contract is governed by the law of England and the parties accept the jurisdiction of the English Courts.