Terms and conditions
Russell McLeod Limited
1 Definitions and interpretation
1.1 In these Conditions the following definitions apply:
"Additional Services" means any Services not forming part of the Services which the Customer requests from the Supplier;
"Business Day" means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in Glasgow;
"Commencement Date" means the date set out in the Proposal or such other date as may be agreed in writing between the Supplier and the Customer;
"Conditions" means the Supplier’s terms and conditions of supply set out in this document;
"Confidential Information" means all information relating to the business and affairs of a Party, including but not limited to trade secrets or proprietary information, research, drawings, know-how, techniques, source and object code, business and marketing plans or identified business and opportunities or growth opportunities and projections, arrangements and agreements with third parties, customer information and information proprietary to customers, formulae, suppliers, concepts not reduced to material form, designs, plans and models, whether written, oral or in electronic format;
"Consequential Loss" means (i) pure economic loss (ii) losses incurred by any third party (iii) loss of profits (whether categorised as direct or indirect) (iv) losses arising from business interruption (v) loss of business revenue, goodwill, anticipated savings (vi) losses occurring in the normal course of business, or pertaining to wasted management or staff time, and (vii) loss or corruption of data;
"Customer" means the person who purchases the Services from the Supplier and whose details are set out in the Order;
"Deliverables" means the written documentation which is provided by the Supplier to the Customer as set out in the Proposal;
"Fees" means the fees of the Supplier for the provision of the Services as specified in the Proposal (together with any other charges including Further Fees made in accordance with these Conditions where the context permits or requires);
"Force Majeure" means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limitation where deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve of any government or government agency) but for the avoidance of doubt, the term Force Majeure shall exclude any obligations of the Customer to pay the Fee, any Further Fees or other sums;
"Further Fees" means the standard fees of the Supplier from time to time;
"Intellectual Property Rights" means all intellectual property rights anywhere in the world (including present and future intellectual property rights) relating to any Confidential Information, business and trade names and logos or domain names, or subsisting within any website look and feel, and including get up rights, copyright, database rights, rights in patents, trade or service marks and designs, design rights, rights in software or computer data, generic rights, rights in software programmes and source code, and all other proprietary rights and privileges, along with the right to sue for damages for infringement thereof (including past infringement) and all variations, modifications or enhancements to each of them together with any application, extension, renewal or right to apply for registration or protection of those rights;
"Party" means either the Supplier or the Customer and "Parties" shall mean both the Supplier and the Customer;
"Proposal" means the proposal provided by the Supplier to the Customer;
"Services" means the Services set out in the Proposal and to be performed by the Supplier for the Customer;
"Supplier" means Russell McLeod Limited, a company incorporated in Scotland with registered number SC292246 and having its registered office at 32 Inverary Drive, Bishopbriggs, Glasgow, G64 3HZ;
"Third Party" means the owner of the Third Party Materials;
"Third Party Agreement" means any licence or supply agreement covering the supply or use of the Third Party Material;
"Third Party Material" means software owner by a Third Party identified as such in the Proposal; and
"VAT" means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.
1.2 In these Conditions, unless the context requires otherwise:
1.2.1 any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
1.2.2 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assignees;
1.2.3 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assignees;
1.2.4 a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.5 a reference to a gender includes each other gender;
1.2.6 words in the singular include the plural and vice versa;
1.2.7 any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.8 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (excluding email);
1.2.9 a reference to legislation is a reference to that legislation as at the Commencement Date; and
1.2.10 a reference to legislation includes all subordinate legislation made as at the Commencement Date under that legislation.
2 Application of these Conditions
2.1 The Supplier shall provide the Services subject to and in accordance with these Conditions.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer's purchase conditions, order, confirmation of order, specification or other document shall form part of these Conditions except to the extent that the Supplier otherwise agrees in writing (which shall include email).
2.3 No variation of these Conditions shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier.
3 Fees
3.1 In respect of its provision of the Services the Supplier shall be entitled to charge the Fees. The Supplier shall be entitled to invoice the Fees to the Customer as stated in the Proposal and the Supplier reserves the right to be placed in funds in advance of delivery of any Services.
3.2 All Fees shall be inclusive of any VAT to be charged.
3.3 In respect of its provision of any Additional Services the Supplier shall be entitled to charge the Further Fees. The Supplier shall be entitled to invoice any Further Fees on undertaking to provide the Additional Services.
3.4 All reasonable expenses incurred in delivering the Services, shall be included in the Fees, unless the Proposal states otherwise.
3.5 In respect of any other sums becoming due hereunder the Supplier shall be entitled to invoice such sums as and when such sums become due.
3.6 The Customer undertakes to pay any invoices submitted hereunder within thirty (30) days of the date of such invoice without any set off or other deduction. If payment of any sum due under this Agreement is not received by any due date specified for that sum, the Supplier may charge interest on the outstanding amount at the rate of 4% per annum above the base lending rate of Royal Bank of Scotland plc, accruing daily.
4 Performance
4.1 Time of performance of the Services is not of the essence. The Supplier shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are approximate only.
4.2 The Supplier shall not be liable for any delay in or failure of performance caused by:
4.2.1 Force Majeure;
4.2.2 where the Supplier has instructed a sub-contractor to carry out work; or
4.2.3 Third Party Materials, where the Customer has opted to use these as set out in the Proposal.
4.3 All Deliverables shall be provided to the Customer for approval. Once the Customer has approved the Deliverables, the Supplier shall have no liability for any errors or omissions within the Deliverables.
4.4 The Supplier undertakes that a reasonable number of amendments may be requested to be made to any Deliverables prior to the completion of the Services, but any further amendments shall be treated as Additional Services.
4.5 Any Additional Services shall be agreed between the Parties and performed by the Supplier at its sole discretion.
4.6 All Additional Services shall be performed subject to these Conditions expect where specified otherwise under these Conditions as if they formed part of the Services.
4.7 The Customer promptly provide the Supplier with access to such of its employees, agents, contractors, consultants, professional advisors and other personnel as the Supplier may reasonably require in order to perform the Services. The Customer shall promptly obtain all necessary consents for such access.
4.8 The Customer warrants and undertakes to ensure that any instructions supplied by the Customer to the Supplier shall be complete, correct, accurate, legible, in sequence and in the correct form.
4.9 If the performance of the Supplier of any of the Services is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
4.9.1 the Supplier shall without limiting its other rights or remedies 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 to the extent the Customer Default prevents or delays the performance of the Supplier of any of its obligations;
4.9.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the failure or delay of the Supplier to perform any of its obligations as set out in this clause 4.9; and
4.9.3 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.
5 Warranty
5.1 Each Party warrants to the other that it has authority to enter and to perform its obligations under these Conditions and it has the ability to perform its obligations under these Conditions.
5.2 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill. Except where specified hereunder the Supplier does not give any warranty, guarantee or other term as to the quality, fitness for purpose or otherwise in respect of the Services. All other warranties, conditions and other terms implied by statute or common law applicable to the Supplier are excluded from these Conditions to the fullest extent permitted by law.
5.3 No warranty is given by the Supplier in respect of any Third Party Materials and the Customer acknowledges its rights in respect of any Third Party Materials are limited to those provided by the Third Party as set out in any Third Party Agreements, and that it has no claim against the Supplier.
6 Indemnity and insurance
6.1 The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under these Conditions.
6.2 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under these Conditions. On request, the Customer shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Customer shall on request assign to the Supplier the benefit of such insurance.
7 Liability
7.1 The Supplier shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any exercise of the Supplier's rights or remedies under these Conditions.
7.2 The Supplier's total liability in contract, delict, (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Services shall be limited to an amount equal to the Fees and any Further Fees payable hereunder.
7.3 Except where specified hereunder, in no event shall the Supplier be liable to the Customer whether arising under these Conditions or in delict (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss.
7.4 Nothing in these Conditions excludes or limits the liability of either Party for fraud, fraudulent misrepresentation or for death or personal injury caused by their negligence.
8 Intellectual property
8.1 The Supplier shall indemnify the Customer from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that performance of benefit of the Services infringes the Intellectual Property Rights of any third party ("IPR Claim"), provided that the Supplier shall have no such liability if the Customer:
8.1.1 does not notify the Supplier in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
8.1.2 makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Supplier;
8.1.3 does not let the Supplier at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim at its sole discretion;
8.1.4 does not take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the IPR Claim;
8.1.5 does not, at the Supplier's request, provide the Supplier with all reasonable assistance in relation to the IPR Claim (at the Customer’s expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Customer.
8.2 If any IPR Claim is made or is reasonably likely to be made, the Supplier may at its option:
8.2.1 procure for the Customer the right to continue receiving the benefit of the relevant Services; or
8.2.2 modify or replace the infringing part of the Services so as to avoid the infringement or alleged infringement, provided the Services remain in material conformance to their Specification.
8.3 The Supplier's obligations under clause 8.1 shall not apply to Third Party Material or to Services modified or used by the Customer other than in accordance with these Conditions or the Supplier’s instructions. The Customer shall indemnify the Supplier against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by the Supplier in connection with any claim arising from such modification or use.
9 Confidentiality and announcements
9.1 Each Party may use the Confidential Information of the other Party only for the purposes of these Conditions and shall keep confidential all Confidential Information of the other Party except as provided for hereunder.
9.2 Either Party may disclose Confidential Information of the other Party to those of its employees and agents (including professional advisers) who have a need to know the Confidential Information for the purposes of these Conditions provided always that such employees and agents are bound to use and maintain the confidentiality of such Confidential Information on terms no less onerous than those provided hereunder.
9.3 The Supplier may disclose Confidential Information of the Customer to any sub-contractors who are appointed by the Supplier to assist with the Services.
9.4 Each Party undertakes to return to the other Party all Confidential Information of that Party within seven (7) days of a request from that Party. Notwithstanding the foregoing should the Customer request the return of Confidential Information from the Supplier preventing the Supplier from providing the Services the Supplier shall be deemed not to be in breach of these Conditions as a consequence thereof.
9.5 The obligations contained within Clause 9.1 to Clause 9.3 shall not extend to any Confidential Information:
9.5.1 which can be proven by the Party to whom such Confidential Information is disclosed to have been rightfully in the possession of that Party and at its free disposal prior to any negotiations in respect of the provision of the Services;
9.5.2 is or becomes public knowledge (otherwise than as a result of a breach of these Conditions); or
9.5.3 is required under law or by order of any competent authority to be disclosed (but only to the extent of such law or order).
10 Force Majeure
10.1 If a Party is wholly or partially precluded from complying with its obligations under these Conditions by Force Majeure, then that Party’s obligation to perform in accordance with these Conditions will be suspended for the duration of the Force Majeure.
10.2 As soon as reasonably practicable after an event of Force Majeure arises, the Party affected by Force Majeure must notify the other Party of the extent to which the notifying Party is unable to perform its obligations under this Agreement.
10.3 If the inability to perform obligations continues for a period in excess of three (3) calendar months, as a result of the Force Majeure event, then the Party who is not precluded from complying with its obligations shall be entitled forthwith to terminate these Conditions by service of notice in writing to the other Party.
11 Termination
11.1 These Conditions may be terminated by either Party immediately if the other Party breaches any provision of these Conditions and fails to remedy the breach within fourteen (14) days after receiving a written notice requiring it to remedy the breach, or by written notice to the other Party if the other Party breaches a material provision of these Conditions and that breach is not capable of being remedied.
11.2 A Party will be deemed to be in default of these Conditions if:
11.2.1 it ceases to carry on business, ceases to be able to pay its debts as they become due, passes a resolution or a court makes an order that it be wound up, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
11.2.2 it has an administrator appointed or documents filed with the court in respect of such appointment or notice is served of an intention to appoint an administrator by that Party or its directors or by a qualifying floating charge holder as provided in the Insolvency Act 1986, paragraph 14 Schedule B1;
11.2.3 a receiver, manager, encumbrancer or other similar official on behalf of a creditor is appointed in respect of the business or any part thereof of that Party; or
11.2.4 any similar event occurs under the law of any other jurisdiction in respect of that Party,
in each case otherwise than for the purpose of a bona fide reconstruction or amalgamation.
11.3 Any termination of these Conditions shall be without prejudice to any other rights or remedies a Party may be entitled to under these Conditions or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision thereof which is expressly or by implication intended to come into or continue in force on or after such termination.
11.4 Upon termination of these Conditions for whatever reason all outstanding Fees and other sums due by the Customer to the Supplier shall immediately become due and payable, and subject as otherwise provided by these Conditions to any rights or obligations which have accrued prior to termination, neither Party shall have any further obligation to the other under these Conditions.
12 Notices
13 A notice served under these Conditions shall be in writing; signed by or on behalf of the Party giving it; sent for the attention of the relevant Party to the address specified at the beginning of these Conditions (or such other addressed as notified by either party to the other from time to time); and delivered personally or sent by commercial courier. A notice or any other communication given in connection with these Conditions is deemed to have been received if delivered personally, at the time of delivery, or if sent by commercial courier forty eight (48) hours into despatch of the care of such courier. For the purposes of this clause if deemed receipt under this clause is not within Normal Working Hours on any Business Day, the notice shall be deemed to have been received at 0900 on the next Business Day.
14 Further assurance
The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to these Conditions.
15 Entire agreement
15.1 The parties agree that these Conditions constitute the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
15.2 Each party acknowledges that it has not entered into these Conditions in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in these Conditions. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in these Conditions.
15.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.
16 Variation
No variation of these Conditions shall be valid or effective unless it is in writing, refers to these Conditions and is duly signed or executed by, or on behalf of, the Supplier.
17 Assignation
The Customer may not assign, subcontract or encumber any right or obligation under the Conditions in whole or in part, without the Supplier’s prior written consent.
The Supplier may in its absolute discretion subcontract the performance of any of its obligations under these Conditions.
18 No partnership or agency
The Supplier and the Customer expressly acknowledge and agree that in performance of the Services, the Supplier is an independent contractor and not an employee, partner, joint author or a joint venture partner of the Customer.
19 Severance
19.1 If any provision of these Conditions (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Conditions shall not be affected.
19.2 If any provision of the Conditions (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
20 Compliance with law
The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Conditions.
21 Law
21.1 These Conditions shall be governed by the laws of Scotland and the parties submit to the jurisdiction of the Scottish courts to determine any disputes arising hereunder subject to the foregoing provision.
21.2 Nothing in this Agreement shall prevent the Supplier from commencing or pursuing proceedings against the Customer in any other jurisdiction, whether concurrently or not, in respect of the breach by the Customer of these Conditions.