Opius Solutions Ltd terms and conditions run along side any other tender contract document terms and conditions the company submit to clients / customers.
| 1.1 |
The following definitions and rules of interpretation apply in these Conditions. |
| 1.2 |
Definitions:
| "Business Day" |
a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. |
| "Commencement Date" |
has the meaning given in clause 2.2. |
| "Conditions" |
these terms and conditions as amended from time to time in accordance with clause 15.8. |
| "Contract" |
the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions. |
| "Customer" |
the person or firm who purchases the Goods and/or Services from the Supplier. |
| "Deliverables" |
the deliverables set out in the Order produced by the Supplier for the Customer. |
| "Delivery Location" |
has the meaning given in clause 4.1. |
| "Force Majeure Event" |
has the meaning given to it in clause 14. |
| "Goods" |
the goods / materials / labour, including third party contractors (or any part of them) set out in the Order. |
| "Intellectual Property Rights" |
patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, 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. |
| "Order" |
the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form, or the Customer's written acceptance of the Supplier's quotation, or overleaf, as the case may be. |
| "Services" |
the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification. |
| "Supplier" |
Opius Solutions Ltd Ltd registered in England and Wales with company number 08730346 |
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| 1.3 |
Interpretation:
| 1.3.1 |
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). |
| 1.3.2 |
A reference to a party includes its successors and permitted assigns. |
| 1.3.3 |
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision. |
| 1.3.4 |
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. |
| 1.3.5 |
A reference to writing or written includes email but not fax. |
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| 2.1 |
The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions. |
| 2.2 |
The Order shall only be deemed to be accepted when the Supplier confirms acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”). |
| 2.3 |
Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force. |
| 2.4 |
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. |
| 2.5 |
Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue. |
| 2.6 |
All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified. |
| 5.1 |
The Supplier warrants that on delivery the Goods shall:
| 5.1.1 |
conform in all material respects with their description in the Order; |
| 5.1.2 |
be free from material defects in design, material and workmanship; and |
| 5.1.3 |
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979). |
|
| 5.2 |
Subject to clause 5.3, if:
| 5.2.1 |
the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; |
| 5.2.2 |
the Supplier is given a reasonable opportunity of examining such Goods; and |
| 5.2.3 |
the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost, |
| the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. |
|
| 5.3 |
The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:
| 5.3.1 |
the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2; |
| 5.3.2 |
the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same; |
| 5.3.3 |
the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer; |
| 5.3.4 |
the Customer alters or repairs such Goods without the written consent of the Supplier; |
| 5.3.5 |
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or |
| 5.3.6 |
the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards. |
|
| 5.4 |
Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1. |
| 5.5 |
These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier. |
| 8.1 |
The Customer shall:
| 8.1.1 |
ensure that the terms of the Order are complete and accurate; |
| 8.1.2 |
co-operate with the Supplier in all matters relating to the Services; |
| 8.1.3 |
provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services; |
| 8.1.4 |
provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; |
| 8.1.5 |
prepare the Customer's premises for the supply of the Services; |
| 8.1.6 |
obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and |
| 8.1.7 |
comply with all applicable laws, including health and safety laws. |
|
| 8.2 |
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 perform any relevant obligation (“Customer Default”):
| 8.2.1 |
without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services 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 in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations; |
| 8.2.2 |
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 8.2; and |
| 8.2.3 |
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. |
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| 9.1 |
The price for Goods:
| 9.1.1 |
shall be the price set out in the Order; and |
| 9.1.2 |
shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer. |
|
| 9.2 |
The charges for Services shall be calculated on a time and materials basis:
| 9.2.1 |
shall be the price set out in the Order; and |
| 9.2.2 |
the charges shall be calculated in accordance with the Supplier's daily fee rates,; |
| 9.2.3 |
the Supplier's daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days; note – times and rates may change depending on contract and tender documents supplied. |
| 9.2.4 |
the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials. |
|
| 9.3 |
In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services. |
| 9.4 |
The Customer shall pay each invoice submitted by the Supplier:
| 9.4.1 |
within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and |
| 9.4.2 |
in full and in cleared funds to a bank account nominated in writing by the Supplier, and |
| time for payment shall be of the essence of the Contract. |
|
| 9.5 |
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”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods. |
| 9.6 |
If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%. |
| 9.7 |
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). |
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.
| 11.1 |
The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5m per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss. |
| 11.2 |
The restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise. |
| 11.3 |
Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
| 11.3.1 |
death or personal injury caused by negligence; |
| 11.3.2 |
fraud or fraudulent misrepresentation; |
| 11.3.3 |
breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and |
| 11.3.4 |
defective products under the Consumer Protection Act 1987. |
|
| 11.4 |
Subject to clause 11.3, the Supplier's total liability to the Customer shall not exceed £50,000. |
| 11.5 |
This clause 11.5 sets out specific heads of excluded loss:
| 11.5.1 |
The following types of loss are wholly excluded:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill; and
- indirect or consequential loss.
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| 11.6 |
The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract. |
| 11.7 |
This clause 11 shall survive termination of the Contract. |
| 12.1 |
Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
| 12.1.1 |
the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 10 days after receipt of notice in writing to do so; |
| 12.1.2 |
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; |
| 12.1.3 |
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or |
| 12.1.4 |
the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy. |
|
| 12.2 |
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. |
| 12.3 |
Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.1.2 to clause 12.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them. |
| 13.1 |
On termination of the Contract:
| 13.1.1 |
the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and Goods 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; |
| 13.1.2 |
the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. 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. |
|
| 13.2 |
Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination. |
| 13.3 |
Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect. |
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a “Force Majeure Event”). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 8 weeks, the party not affected may terminate the Contract by giving 7 days' written notice to the affected party.
| 15.1 |
Assignment and other dealings
| 15.1.1 |
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. |
| 15.1.2 |
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. |
|
| 15.2 |
Notices.
| 15.2.1 |
Any notice or other communication 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
- sent by email to the address specified in the Order.
|
| 15.2.2 |
Any notice or communication shall be deemed to have been received:
- if delivered by hand, at the time the notice is left at the proper address;
- 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
- if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 15.2.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
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| 15.2.3 |
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. |
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| 15.3 |
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 deemed deleted under this clause 15.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision. |
| 15.4 |
Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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. |
| 15.5 |
No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party. |
| 15.6 |
Entire agreement.
| 15.6.1 |
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. |
| 15.6.2 |
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 misrepresentation based on any statement in the Contract. |
| 15.6.3 |
Nothing in this clause shall limit or exclude any liability for fraud. |
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| 15.7 |
Third party rights.
| 15.7.1 |
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. |
| 15.7.2 |
The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person. |
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| 15.8 |
Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives). |
| 15.9 |
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. |
| 15.10 |
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. |