1.1 Definitions. In these Conditions, the following definitions apply:
Business Day:a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges:the charges payable by the Customer for the supply of the Scope of Services in accordance with clause 5.
Commencement Date:has the meaning set out in clause 2.2.
Conditions:these terms and conditions as amended from time to time in accordance with clause 12.7.
Contract:the contract between Darren Broadhead Consulting and the Customer for the supply of the Scope of Services in accordance with these Conditions.
Customer:the person or firm who purchases the Scope of Services from Darren Broadhead Consulting.
Darren Broadhead Consulting:Darren Broadhead Consulting Limited registered in England and Wales. Company number 09742672.
Darren Broadhead Consulting Training Materials:has the meaning set out in clause 4.1(g).
Deliverables:the deliverables set out in the Order produced by Darren Broadhead Consulting for the Customer.
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 Scope of Services as set out the Customer’s written acceptance of Darren Broadhead Consulting’s quotation.
Proposal:the description or specification of the Scope of Services and payment schedule provided in writing by Darren Broadhead Consulting to the Customer.
Scope of Services:the services, including the Deliverables, supplied by Darren Broadhead Consulting to the Customer as set out in the Proposal.
1.2 Construction. In these Conditions, the following rules apply:
(a)a personincludes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b)a reference to a party includes its personal representatives, 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. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;any phrase introduced by the terms including, include, in particularor any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(d) a reference to writingor writtenincludes e-mails.
2 Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase the Scope of Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Darren Broadhead Consulting issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
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 Darren Broadhead Consulting which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by Darren Broadhead Consulting, and any descriptions or illustrations contained in Darren Broadhead Consulting’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Scope of Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 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 trade, custom, practice or course of dealing
2.6 Any quotation given by Darren Broadhead Consulting shall not constitute an offer, and is only valid for a period of 90 Business Days from its date of issue.
3 Supply of Services
3.1 Darren Broadhead Consulting shall supply the Scope of Services to the Customer in accordance with the Proposal in all material respects.
3.2 Darren Broadhead Consulting shall use all reasonable endeavours to meet any performance dates specified in the Proposal but any such dates shall be estimates only and time shall not be of the essence for performance of the Scope of Services.
3.3 Darren Broadhead Consulting shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Scope of Services, and Darren Broadhead Consulting shall notify the Customer in any such event.
3.4 Darren Broadhead Consulting warrants to the Customer that the Scope of Services will be provided using reasonable care and skill.
3.5 If Darren Broadhead Consulting become aware of any matter which has changed the Scope of Services, or any performance dates specified in the Proposal, Darren Broadhead Consulting will notify the Customer within a reasonable time period. The Customer acknowledges that this may lead to an amendment of the Charges in the Proposal
4 Customer’s obligations
4.1 The Customer shall:
(a)ensure that the terms of the Order and any information it provides in the Proposal are complete and accurate;
(b)co-operate with Darren Broadhead Consulting in all matters relating to the Scope of Services;
(c)provide Darren Broadhead Consulting, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Darren Broadhead Consulting;
(d)provide Darren Broadhead Consulting with such information and materials as Darren Broadhead Consulting may reasonably require in order to supply the Scope of Services, and ensure that such information is accurate in all material respects;
(e)prepare the Customer’s premises for the supply of the Scope of Services;
(f)obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Scope of Services are to start; and
(g)keep and maintain all materials, equipment, documents and other property of Darren Broadhead Consulting (Darren Broadhead Consulting Training Materials) at the Customer’s premises in safe custody at its own risk, maintain Darren Broadhead Consulting Training Materials in good condition until returned to Darren Broadhead Consulting, and not dispose of or use Darren Broadhead Consulting Training Materials other than in accordance with Darren Broadhead Consulting’s written instructions or authorisation.
4.2 If Darren Broadhead Consulting’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):
(a)Darren Broadhead Consulting shall, without limiting its other rights or remedies, have the right to suspend performance of the Scope of 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 Darren Broadhead Consulting’s performance of any of its obligations;
(b)Darren Broadhead Consulting shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Darren Broadhead Consulting’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c)the Customer shall reimburse Darren Broadhead Consulting on written demand for any costs or losses sustained or incurred by Darren Broadhead Consulting arising directly or indirectly from the Customer Default
5 Charges and payment
5.1 The Charges for the Scope of Services shall be set out in the Proposal.
5.2 Darren Broadhead Consulting shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Darren Broadhead Consulting engages in connection with the Scope of Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Darren Broadhead Consulting for the performance of the Scope of Services, and for the cost of any materials.
5.3 Darren Broadhead Consulting shall invoice the Customer in line with the payment schedule in the Proposal.
5.4 The Customer shall pay each invoice submitted by Darren Broadhead Consulting:
(a)in line with the payment schedule in the Proposal; and
(b)in full and in cleared funds to a bank account nominated in writing by Darren Broadhead Consulting, and time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Darren Broadhead Consulting to the Customer, the Customer shall, on receipt of a valid VAT invoice from Darren Broadhead Consulting, pay to Darren Broadhead Consulting such additional amounts in respect of VAT as are chargeable on the supply of the Scope of Services at the same time as payment is due for the supply of the Scope of Services.
5.6 If the Customer fails to make any payment due to Darren Broadhead Consulting under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per cent per annum above Bank of England’s 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.
5.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Darren Broadhead Consulting may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Darren Broadhead Consulting to the Customer.
5.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of any other applicable taxes chargeable in the country where that Customer is domiciled.
5.9 If the Contract is terminated in line with clause 9, the Customer shall immediately pay the termination charges outlined in the payment schedule in the Proposal
6 Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Scope of Services shall be owned by Darren Broadhead Consulting.
6.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on Darren Broadhead Consulting obtaining a written licence from the relevant licensor on such terms as will entitle Darren Broadhead Consulting to license such rights to the Customer.
6.3 All Darren Broadhead Consulting Training Materials are the exclusive property of Darren Broadhead Consulting.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, Proposals, 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. 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 7 shall survive termination of the Contract.
8 Limitation of liability
8.1 Nothing in these Conditions shall limit or exclude Darren Broadhead Consulting’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) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
(a)Darren Broadhead Consulting 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 Scope of Services provided by Darren Broadhead Consulting do not have any effect in terms of substituting Darren Broadhead Consulting in the Customer’s place, or reducing the Customer’s liability in any way, in respect of conducting its business in accordance with all applicable laws and regulations; and
(c)Darren Broadhead Consulting’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 value of the Contract.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party four weeks’ written notice.
9.2 Without limiting its other rights or remedies, Darren Broadhead Consulting may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b) the Customer 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that Customer with one or more other companies or the solvent reconstruction of that other party;
(e) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);
(g) the holder of a qualifying floating charge over the assets of that Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
(i) any event occurs or proceeding is taken with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2(b) to clause 9.2(i) (inclusive);
(j) the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(k) the Customer’s financial position deteriorates to such an extent that in Darren Broadhead Consulting’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without limiting its other rights or remedies, Darren Broadhead Consulting may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 30 days after being notified in writing to do so.
9.4 Without limiting its other rights or remedies, Darren Broadhead Consulting may suspend provision of the Services under the Contract or any other contract between the Customer and Darren Broadhead Consulting if the Customer becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(k), or Darren Broadhead Consulting reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
Consequences of termination
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to Darren Broadhead Consulting all of Darren Broadhead Consulting’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Darren Broadhead Consulting shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of Darren Broadhead Consulting Training Materials and any Deliverables which have not been fully paid for. 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, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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 survive termination shall continue in full force and effect.
11 Force majeure
11.1 For the purposes of this Contract, Force Majeure Eventmeans an event beyond the reasonable control of Darren Broadhead Consulting including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Darren Broadhead Consulting 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, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
11.2 Darren Broadhead Consulting 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 Darren Broadhead Consulting from providing any of the Services for more than four weeks, Darren Broadhead Consulting shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer
12.1 Assignment and other dealings.
(a) Darren Broadhead Consulting 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 or agent.
(b) The Customer shall not, without the prior written consent of Darren Broadhead Consulting, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
(a)Any notice or other communication given to a party under or in connection with the 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, sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.
(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 9.00am 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 or e-mail, one Business Day after transmission.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(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 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 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 the parties, nor constitute either party the agent of the other 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 Darren Broadhead Consulting.
12.8 Governing law. 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.
12.9 Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).