Terms and Conditions
INTRODUCTION
Please read these Terms and Conditions carefully as they set out the agreement between you – the customer or client, and us – LEXXER Solutions.
In all we do, we aim to keep you in the know, and help you understand just how things work. Terms and Conditions are simply the rules we both agree to abide by when we do business.
Hopefully at some point you would like us to help you out, and at that point as we agree what we will be doing together and how much that will cost those arrangements will become an agreement or contract.
Some clients like the certainty of a traditional written and signed contract, others are less formal and prefer what is defined as contract by conduct. Whichever you prefer we feel it is best to establish some general rules, which allows us both to see what we can expect and what needs to be done.
On our part we publish our terms and conditions, they are pretty standard and are hopefully easy to understand and apply. However if you have any questions or would like to discuss changing certain aspects we are happy to have a chat. Once we reach a certain point and are talking about doing business we would urge you to take time and read and consider our Terms and Conditions and point us to any which you might have.
It is not necessary to physically sign an acceptance of these terms and conditions for them to apply. If a Client accepts a quote, or a tender response or other offer from us, then the Client will be deemed to have satisfied themselves as to the terms applying and have accepted these terms and conditions in full.
That is why it is important to read these terms and conditions carefully. Any purchase or use of our services implies that you have read and accepted our terms and conditions.
In our experience again some clients rely on a tender document to define the task and we often respond with a plan or methodology often including a schedule defining costs and timescales. This represents an offer and acceptance with the next stage being a clear understanding of what needs to be done and how much that will cost.
Charges for services to be provided by LEXXER Solutions are defined in the project quotation that you receive often via e-mail. Quotations are valid for a period of 30 days. We reserve the right to alter or decline to provide a quotation after expiry of the 30 days, but before we begin you will always have a clear idea of what things will cost.
Since we often have to invest time, or engage other people there is a cost to us and in order to complete the contract we require a retainer or deposit. This depends on the size of the project or the timescale or setup costs and will be agreed beforehand and detailed on your invoice.
When we receive that retainer you will have our receipt and the terms and conditions as a guarantee that we are already at work for you. The information you have provided in the tender document or other briefing material and our response to you in terms of how we will do it, how long it will take and how much it will cost form the basis of our agreement or contract.
The following sections are the rules which will government our working arrangement. They are there to protect us both, to help us understand who is responsible for certain aspects of the work and will help us work better together, and ensure a successful outcome.
PREFACE
LEXXER Solutions shall provide the Specified Service to the Client subject to these Terms and Conditions. Any changes or additions to the Specified Consultancy Service, the Specification, the Conditions or any Special and Overriding Terms and Conditions must be agreed in writing by LEXXER Solutions and the Client.
The Specified Service shall be provided in accordance with the Specification provided by LEXXER Solutions and otherwise in accordance with LEXXER Solution’s current brochure or other published literature or online information relating to the Consultancy Services from time to time, subject to these Terms and Conditions.
LEXXER Solutions may correct any typographical or other errors or omissions in any quotation, brochure, promotional literature or other Document relating to the provision of the Specified Service without any liability to the Client.
LEXXER Solutions may at any time without notifying the Client make any changes to the Specified Service which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Specified Service.
No order or commission submitted by the Client shall be deemed to be accepted by LEXXER Solutions unless and until confirmed in writing by LEXXER Solutions or by acceptance of a retainer.
Our standard terms and conditions are as follows, they are engaged upon completion of a written or verbal contract:
DEFINITIONS
Unless the context otherwise requires the following words and expressions have the following meanings:
“Business Day” – A day other than a Saturday or Sunday when the main clearing banks in London are open for a full range of business banking transactions;
“Data Protection Legislation” – the General Data Protection Regulation (EU 2016/679) and any amendment of replacement of it in force in Northern Ireland from time to time;
“Deliverables” – the outputs from the provision of the Services including those described in Schedules or in any Statement of Works;
“Intellectual Property Rights” – all patents, rights to inventions, utility models, copyright and related rights, trademarks, trade, business and domain names, rights in goodwill and to sue for passing off, rights in design, rights in computer software, database right, moral rights and other intellectual property rights, in each case whether registered or unregistered and including all applications for and all renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world;
“Services” – the services to be provided by the Company including those specified in Schedules or in any Statement of Works;
“Statement of Works” – a statement agreed between the Company and the Client from time to time specifying works to be carried out by and deliverables to be provided by the Company.
1. Interpretation
1.1 Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.2 The headings in this Agreement are for convenience only and shall not affect its interpretation.
1.3 Any reference to a clause or Schedule shall be construed as a reference to a clause of or schedule to this Agreement unless expressly stated to the contrary.
1.4 Any reference to a statute or statutory provision is to it as from time to time in force as amended or re-enacted.
1.5 Use of the word “including” is without prejudice to the generality.
2. Provision of the Services
The Company shall provide and perform the Services on the terms and conditions of this Agreement and will do so:
2.1 in compliance with all applicable laws, regulations, codes of practice and professional standards;
2.2 with reasonable skill and care;
2.3 in accordance with the terms of this Agreement, including the timescales specified in Schedules or any Statement of Works;
2.4 in accordance with good professional practice.
3. Personnel
3.1 The Company shall use its reasonable endeavours to ensure that the same personnel provide the Services in order to maintain consistency and build a relationship with the Client.
3.2 The Company shall use its reasonable endeavours to ensure that its personnel comply with the Client’s site regulations when the Company’s personnel are on the Client’s premises.
3.3 The Client shall not at any time during the term of this Agreement or for a period of 6 months following its expiry or termination employ or solicit for employment or engage on any basis any member of the Company’s personnel (whether employed or engaged on some other basis by the Company).
3.4 The Client acknowledges the cost to the Company of losing and replacing any such person and the Client agrees that if it breaches the provisions of clause 4.3, the Client shall pay to the Company by way of liquidated damages a sum equal to the greater of (i) £50,000; and (ii) an amount equal to the person’s aggregate annual gross remuneration package.
4. Obligations of the Client
4.1 The Client shall provide the Company with such information, assistance and access to such facilities, items, archives and personnel as the Company shall reasonably require in order to provide the Services.
4.2 The Client shall make such decisions and provide such instructions, information, and input as the Company shall require and at the time that the Company requires to enable the Company to provide the Services.
4.3 The Client acknowledges that the Company’s ability to provide the Services and to meet any timeframe agreed for the provision of the Services is dependent on the Client providing that information and access and providing those decisions and instructions at the times required by the Company.
5. Intellectual Property
5.1 Any pre-existing Intellectual Property Rights of either party that are made available for use in connection with the provision of the Services shall remain vested in that party; the other party shall have a licence to use those rights so far as may be necessary to enable that party to provide or to enjoy the benefit of the Services.
5.2 All Intellectual Property Rights that are created in the course of the provision of the Services and in the Deliverables shall belong to the Company; the Client shall have a royalty free, perpetual licence to use those rights as envisaged by this Agreement to enable the Client to have the benefit of the Services and the Deliverables for use within the Client’s own business, organisation or project.
5.3 The Company shall have no liability where alleged Intellectual Property infringement arises from the Client using the Deliverables in any manner or for any purpose other than those for which they were provided, and the Client warrants that any Input Material and its use by the company 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 company against any loss, damages costs expenses or other claims arising from any such infringement.
6. Confidentiality
6.1 The Company and the Client may during the course of this Agreement and in connection with the Services obtain information relating to the other party which is not made available generally by that other party (“Confidential Information”) or not related directly to the contracted work (“Personal Information”).
6.2 The receiving party shall:
6.2.1 keep all such Information confidential and not disclose it to any person (save as required by law);
6.2.2 refrain from the use of such information to vary the nature of the agreement between parties
6.2.3 use the Information only for the purpose for which it was provided and for no other purpose.
6.3 The Client 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 Client by the Company or its agents and any other confidential information concerning the company’s business or its products, or personnel, which the Client may obtain and the Client shall restrict disclosure or such confidential or personal material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Client’s obligations to the Company and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Client.
7. Data Protection
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Company is the data processor (where “Data Controller” and
“Data Processor” have the meanings as defined in the Data Protection Legislation).
7.3 The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Company for the duration and purposes of
this agreement.
7.4 The Company shall, in relation to any personal data processed in connection with the performance by the Company of its obligations under this agreement:
7.4.1 process that personal data only for the purposes of this agreement or on the Client’s written instructions;
7.4.2 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
7.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
7.4.4 not transfer any personal data outside of the European Economic Area unless the following conditions are fulfilled:
7.4.4.1 the Company has provided appropriate safeguards in relation to the transfer;
7.4.4.2 the data subject has enforceable rights and effective legal remedies;
7.4.4.3 the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
7.4.4.4 the Company complies with the Client’s reasonable instructions notified to it in advance with respect to the processing of the Personal Data;
7.4.5 assist the Client in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security,
breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.4.6 notify the Client without undue delay on becoming aware of a personal data breach;
7.4.7 at the Client’s written direction, delete or return personal data and copies thereof to the Client on termination of this agreement unless required by applicable law to store the
personal data;
7.4.8 maintain records and information to demonstrate its compliance with these provisions.
8. Fees
8.1 The Company shall charge and the Client shall pay the amounts set out or calculated in accordance with Tenders, letters of Offer, Schedules and/or the relevant Statement of Works.
8.2 Where the fees are to be calculated on a time and materials basis, the Company may increase those fees on giving not less than one month’s written notice to the Client.
8.3 Any sums stated (including in the Schedule and in any Statement of Works) are expressed inclusive of VAT and all other taxes.
8.4 The Client shall in addition reimburse the Company for expenses including those that are specified in Schedules or the relevant Statement of Works provided they are reasonable and properly incurred.
9. Payment
9.1 The Company shall invoice the Client on the basis set out in the relevant Invoice, Schedule or in the relevant Statement of Works or, if payment details are not set out, monthly in arrears.
9.2 The Client shall pay all valid and properly submitted invoices not later than 30 days after they are received or at such other times as may be specified in the Invoice, Schedule or the relevant Statement of Works.
9.3 If the Client does not pay any invoice by the due date for payment the Company may, without prejudice to any other rights and remedies that it may have:
9.3.1 suspend provision of the Services until payment in full including any interest is received; and/or
9.3.2 charge interest on the sum outstanding at the rate set by the Late Payment of Commercial Debts (Interest) Act 1998.
9.4 The Client shall pay all invoices in full without any set-off or deduction.
9.5 Where the Goods or Services provided are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these conditions or any claim by the Client in respect of any one or more instalment shall not entitle the Client to treat the Contract as a whole as repudiated.
10. Duration
This Agreement shall commence on the date stated at the beginning and shall continue in force, subject to early termination in accordance with the next following clause, until terminated by either party giving to the other not less than two months’ notice, such notice to expire at any time.
11. Termination
Either party may terminate this Agreement forthwith on notice to the other party if that other party:
11.1 is in material breach of any of the terms of this Agreement and, where the breach is capable of being remedied, fails to remedy the breach within 20 Business Days of service of notice specifying the breach and requiring it to be remedied;
11.2 has a petition granted for its winding up or has a liquidator, administrator, receiver or administrator appointed in respect of it, enters into an arrangement with its creditors or ceases, or threatens to cease, trading or operations in the case of a charity or other association.
12. Consequences of Termination
12.1 Termination under clause 10 or clause 11 may be in respect of any individual Statement of Works or in respect of this Agreement including all Statements of Works.
12.2 On termination of this Agreement for any reason and at the end of the provision of the Services, the Company shall return all property, equipment, documentation and other things provided to it by the Client in connection with the provision of the Services upon receipt of all money owed for the work completed.
12.3 Termination of this Agreement or any Statement of Works shall not affect any right or remedy which has accrued due at the time of termination.
12.4 The cost of all and any work completed by the Company up to the date of termination and any costs incurred by the Company as a result of a cancellation by the Client will be payable by the Client to the Company.
13. Liability
13.1 Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury caused by the negligence of that party, its employees, agents or sub-contractors, or for fraud.
13.2 Subject to clause 13.1, the Company shall have no liability to the Client in connection with this Agreement for any loss of profits, loss of revenue, loss of business, loss of contract, loss of goodwill, loss of data or failure to make anticipated savings or any indirect or consequential loss, whether this results from breach of contract, negligence or otherwise.
13.3 Subject to clauses 13.1 and 13.2 the maximum aggregate liability of the Company to the Client under or in connection with this Agreement and whether resulting from breach of contract, negligence or otherwise shall not exceed the amount payable by the Client under this Agreement prior to the date on which such liability arises, and shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.
13.4 The Company shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from their failure to provide the Company with such information, assistance and access to such facilities, items, archives and personnel as the Company shall reasonably require in order to provide the Services. A failure by the Client to make such decisions and provide such instructions, information, and input as the Company shall require and at the time that the Company requires to enable the Company to provide the Services, or any Input Material, information 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 will further remove liability.
13.4 Any claim by the Client of any breach of the Contract or these Conditions, must be notified to the Company within 30 days of the alleged breach. If the Client does not notify the Company accordingly, the Client will be deemed to have accepted the Specified Service and the Company shall have no liability in relation to the provision of the Specified Service and the Client shall be bound to pay the Price in full. Where the Client has made a valid claim, the Company will at its sole discretion either re-perform the part of the Specified Service which does not comply with the Contract or refund the Client of such amount of the Price as is reasonable on a quantum meruit basis.
14. Force majeure
14.1 The company shall not have any liability for any failure to perform or delay in performing any of its obligations under this Agreement if and to the extent that such failure or delay is caused
by reasons, circumstances or events beyond the reasonable control of that party.
14.2 If a party is affected by any circumstance or event of the type described in clause 14.1, that party shall notify the other party as soon as reasonably practicable and the parties shall each use all reasonable endeavours to minimise the impact on the obligations that are affected. If a default due to any of these matters shall continue for 90 days, the Company shall have the right to terminate the Contract without liability to the Client by serving written notice on the Client.
15. Personal Agreement
15.1 This Agreement is personal to the Company and the Client and neither of them shall assign any of their rights under this Agreement without the prior written consent of the other.
15.2 The Company may sub-contract part or parts of its obligations under this Agreement but shall remain liable for the performance of those parts that have been sub-contracted.
15.3 The parties do not intend any person who is not a party to this Agreement to have any rights under it whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
16. Entire Agreement
The terms and conditions, together with any agreed Schedules, Statements of Works and other relevant material including verbal or written contracts, accepted tenders or permission to start instructions are seen to constitute the agreement between the parties in respect of the subject matter to which it relates and supersedes all prior correspondence, agreements and understandings. The contract is deemed complete by the offering by the Client and acceptance of a retainer or deposit by the Company.
17. Status
17.1 The Company and the Client are each independent contractors and nothing contained in this Agreement shall or shall be capable of creating or constituting between them any partnership or joint venture or any relationship of employment or agency.
17.2 The Company shall have no authority to incur any liability or expense on behalf of the Client or to make any promise, representation or commitment that might be binding on the Client without the prior written consent of the Client.
18. Notices
18.1 Any notices that are required under this Agreement shall be in writing and shall be served on the relevant party at its registered office address.
18.2 Notices may be served by:
18.2.1 personal delivery, in which case they shall be deemed to be served when delivered; or
18.2.2 first class pre-paid post, in which case they shall be deemed to be served on the second Business Day after the day of posting.
19. Resolution of Disputes
If any differences or disputes arise between the Company and the Client in connection with this Agreement, they shall use all reasonable endeavours to resolve them by discussions between themselves, escalating the issues through their respective management structures up to their chief executive officers if necessary.
19.1 Where public money is involved, partner organisations, funders or other stakeholders the Company reserves the right to engage with them in order to resolve any dispute or progress work to a successful conclusion.
20. Changes, Variations and Waiver
20.1 If either party wishes to propose a change to the Services or any other provision of this Agreement, that party shall inform the other party of the proposed change and the parties shall work together to determine whether they are willing and able to agree the terms that are necessary to implement the change.
20.2 This Agreement may only be varied or any right under this Agreement waived by a written document signed by authorised representatives of both parties.
20.3 If a party does not on any occasion insist on the strict observance or performance of any rights under or of any provision of this Agreement, that will not amount to a waiver of those
rights or that provision.
21. Severability
21.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
21.2 If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
21.3 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 this Agreement.
22. Law and Jurisdiction
This Agreement and everything arising in connection with it, including non-contractual matters, shall be governed by Northern Ireland Law and the parties submit to the exclusive jurisdiction of
the courts of Northern Ireland.