Terms of Business
1.1The definitions and rules of interpretation in this condition apply in these terms and conditions:
this Agreement: means these terms and conditions
and the Booking Form;
Avocet: means Avocet Services Ltd, a company registered
in England whose registered number is 05109841;
Booking Form: means the form to be completed and
signed by the parties when booking the Services.
Client: a Person who signed the Booking Form and/or
to whom Avocet supplies the Services.
Deliverables: all Documents, produced by Avocet or
its agents, subcontractors, consultants and employees in relation
to the Services in any form, including data, reports, assessments
and specifications (including drafts)electronically or otherwise.
Document: includes, without limitation, in addition
to any document in writing, any drawing, map, plan, diagram, design,
picture or other image, tape, disk or other device or record embodying
information in any form.
In-put Material: all Documents, information and materials
provided by the Client relating to the Services including (without
limitation),case history, assessments, data, reports and specifications.
Intellectual Property Rights: all patents, rights
to inventions, utility models, copyright and related rights, trade
marks, service marks, trade, business and domain names, rights in
trade dress or get-up, rights in goodwill or to sue for passing off,
unfair competition rights, rights in designs, rights in computer software,
database rights, topography rights, moral rights, rights in confidential
information (including know-how and trade secrets) and any other intellectual
property rights, in each case whether registered or unregistered and
including all applications for and renewals or extensions of such
rights, and all similar or equivalent rights or forms of protection
in any part of the world.
Person: any individual, firm, partnership, association,
company incorporated or unincorporated body, organisation, local authority
and any other such body.
Pre-existing Materials: all Documents, information
and materials provided by Avocet relating to the Services which existed
prior to the commencement of this Agreement including case history,
assessments, data, reports and specifications.
Service Fee: the service fee to be charged to the
Client by Avocet for the provision of the Services as set out in the
Services: the services to be provided by Avocet under
this Agreement as set out in the Booking Form together with any other
services which Avocet may from time to time provide, or agrees to
provide, to the Client.
VAT: value added tax chargeable under English law
for the time being and any similar additional tax.
1.2Headings in these conditions shall not affect their interpretation.
1.3A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking
account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4A reference to writing or written includes faxes and e-mail.
2.APPLICATION OF CONDITIONS
2.1This Agreement shall prevail over any inconsistent terms or conditions contained, or referred to, in the
Client's purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Client, or implied by law, trade custom, practice or course of dealing.
2.2The Client's purchase order,
or the Client's acceptance of a quotation for Services by Avocet, constitutes
an offer by the Client to purchase the Services. No offer placed by the Client shall be accepted by Avocet other than:
(a)co-operate with Avocet in all matters relating
to the Services
(b)(if earlier) by Avocet starting to provide the Services
when a contract for the supply and purchase of
the Services on this Agreement will be established. The Client's standard
terms and conditions (if any) attached to, enclosed with or referred
to in any purchase order or other Document shall not govern this Agreement.
2.3Quotations are given by Avocet on the basis that no Contract shall come into existence except in accor
-dance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that Avocet has not previously withdrawn it.
3.COMMENCEMENT AND DURATION
3.1The Services supplied under this Agreement shall be as set out in the Booking Form.
3.2Subject to condition 11, the Services supplied under this Agreement shall continue to be supplied for the
period specified in the Booking Form and, after that, shall continue to be supplied unless this Agreement is terminated by one of the parties giving to the other not less than three months' notice.
4.1Avocet shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the
Client, in accordance in all material respects with the Booking Form or any specifications attached to the Booking Form initialled by the parties.
4.2Avocet shall use reasonable endeavours to meet any performance dates specified in the Booking Form,
but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
5.1The Client shall:
(a)co-operate with Avocet in all matters relating
to the Services
(b)provide Avocet, in
a timely manner, such In-put Material and other information as Avocet
reasonably require and ensure that it is accurate
in all material respects to ensure timely Delivery of the Services the
Client shall undertake to co-operate and use their best endeavours to
provide all In-Put Material and other information in good time to avoid
any delay in the Delivery of such Services
(c)obtain and maintain
all necessary licences and consents and comply with all relevant legisla
-tion in relation to the Services, the use of In-put Material
insofar as such licences, consents and legislation relate to the Client's
business, premises, staff and equipment, in all cases before the date
on which the Services are to start
(d)inform Avocet of any
known or potential risks, dangerous situations, threats or any other
circumstances which may be hazardous in any way to Avocet, its agents, subcontractors, consultants or employees in relation to the Services before the commencement of the Services or as they may occur or become apparent from time to time.
5.2If Avocet's performance of its obligations under this Agreement is prevented or delayed by any act or
omission of the Client, its agents, subcontractors, consultants or employees, Avocet shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
5.3The Client shall be liable to pay to Avocet, on demand, all reasonable costs, charges or losses
sustained or incurred by Avocet (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client's fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Agreement, subject to Avocet confirming such costs, charges and losses to the Client in writing.
5.4The Client shall not, without the prior written consent of Avocet, during the time of this agreement and at
any time from the date of this Agreement to the expiry of 12 months after the last date of supply of the Services, solicit or entice away from Avocet or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of Avocet in the provision of the Services.
5.5Any consent given by Avocet in accordance with condition 5.4 shall be subject to the Client paying to
Avocet a sum equivalent to 15% of the then current annual remuneration of Avocet's employee, consultant or subcontractor or, if higher, 15% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.
6.SERVICE FEE AND PAYMENT
6.1In consideration of the provision of the Services by Avocet, the Client shall pay the Service Fee as
specified and in the manner set out in the Booking Form.
6.2All charges quoted to the Client shall be exclusive of VAT, which Avocet shall add to its invoices at the
6.3Avocet shall invoice the Client as set out in the Booking Form for its charges for time, expenses and
materials (together with VAT where appropriate) for the month concerned, calculated as provided in the Booking Form. Each invoice shall set out the time spent by each individual whom it engages on the Services and provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.
6.4The Client shall pay each invoice submitted to it by Avocet in the manner prescribed in the Booking Form.
6.5Without prejudice to any other right or remedy that it may have, if the Client fails to pay Avocet on the due
date, Avocet may:
(a)charge interest on such sum from the due date for payment at the annual rate of (up to 4%)
above the base lending rate from time to time of Abbey, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Client shall pay the interest immediately on demand. Avocet may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(a)suspend all Services until payment has been made in full.
6.6Time for payment shall be of the essence of this Agreement.
6.7All sums payable to Avocet under this Agreement shall become due immediately on its termination,
despite any other provision. This condition 6.8 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
6.8Avocet may, without prejudice to any other rights it may have, set off any liability of the Client to Avocet
against any liability of Avocet to the Client.
6.9The Service Fee as detailed in the Booking Form shall be chargeable to Client for all failed appointments
or those cancelled within 48 hours whether cancelled by the Client or any other person.
7.INTELLECTUAL PROPERTY RIGHTS
7.1As between the Client and Avocet, all Intellectual Property Rights and all other rights in the Deliverables
and the Pre-existing Materials shall be owned by Avocet. Subject to condition 7.2, Avocet licenses all such rights to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and the Services. If this Agreement terminates, this licence shall automatically terminate.
7.2The Client acknowledges that, where Avocet does not own any Pre-existing Materials, the Client's use of
rights in Pre-existing Materials is conditional on Avocet obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle Avocet to license such rights to the Client.
8.CONFIDENTIALITY AND AVOCET'S PROPERTY
8.1The Client shall keep in strict confidence all findings, results, advice and opinion found in the
Deliverables which are of a confidential nature and have been disclosed to the Client by Avocet, its employees, agents, consultants or subcontractors.
8.2The Client may disclose such information:
(a)to its employees, officers, representatives, advisers, agents or subcontractors who need to
know such information for the purposes of carrying out the Client's obligations under this Agreement; and
(b)as may be required by law, court order or any governmental or regulatory authority
8.3The Client shall ensure that its employees, officers, representatives, advisers, agents or subcontractors
to whom it discloses such information comply with this condition 8.
8.4The Client shall not use any such information for any purpose other than to perform its obligations under
this Agreement without the written authorisation of Avocet.
8.5All materials, drawings, specifications and data supplied by Avocet to the Client (including Pre-existing
Materials) shall, at all times, be and remain as between Avocet and the Client the exclusive property of Avocet, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to Avocet, and shall not be disposed of or used other than in accordance with Avocet's written instructions or authorisation.
9.LIMITATION OF LIABILITY - THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
9.1This condition 9 sets out the entire liability of Avocet (including any liability for the acts or omissions of its
employees, agents, consultants, and subcontractors) to the Client in respect of:
(a)any breach of this Agreement;
(b)any use made by the Client of the Services, the Deliverables or any part of them; and
(b)any representation, statement or tortious act or omission (including negligence) arising under
or in connection with this Agreement.
9.2All warranties, conditions and other terms implied by statute or common law are, to the fullest extent
permitted by law, excluded from this Agreement.
9.3Nothing in this Agreement limits or excludes the liability of Avocet:
(a)for death or personal injury resulting from negligence; or
(b)for any damage or liability incurred by the Client as a result of fraud or fraudulent
misrepresentation by Avocet; or
9.4Subject to condition 9.2 and condition 9.3
(a)late or non delivery
of Documents, Deliverables or Pre-existing Materials; or
(i)late or non delivery
of Documents, Deliverables or Pre-existing Materials; or
(ii)injury to feelings that arise as a natural consequence of Avocet providing the Services; or
(iii)any decisions made subject to the information provided to Avocet at the time of the Services; or
(iv)loss of corruption of data or information; or
(v)complaints arising from carrying out the work; or
(vi)any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b)Avocet's total liability in contract, tort (including negligence or breach of statutory duty),
misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of this Agreement shall be limited to limit of liability in Avocet's professional indemnity policy or the price paid for the Services.
9.5The Client acknowledges and
agrees that the content of all Deliverables in respect of the Services
provided by Avocet are recommendations only and are provided to the Client on an advisory basis. Any aspects of the results, findings, opinions and advice contained in the Deliverables subsequently acted upon by the Client are done so entirely at the Client's discretion and Avocet will not be held responsible for the outcome of any such actions.
The Client acknowledges and agrees that details of the Client's name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of Avocet in connection with the Services.
11.1Without prejudice to any other rights or remedies which the parties may have, either party may terminate
this Agreement without liability to the other on giving the other not less than 1 months written notice or immediately on giving notice to the other if:
(a)the other party fails to pay any amount due under this Agreement on the due date for payment
and remains in default not less than seven days after being notified in writing to make such payment; or
(b)the other party commits a material breach of any of the terms of this Agreement and (if such a
breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c)the other party repeatedly breaches any of the terms of this Agreement in such a manner as to
reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
(d)a situation arises which causes harm or perceived harm to Avocet or any employee, agent,
subcontractor or consultant thereof thus rendering the provision of Services unworkable.
11.2On termination of this Agreement for any reason:
(a)the Client shall immediately pay to Avocet all of Avocet's outstanding unpaid invoices and
interest and, in respect of Services supplied but for which no invoice has been submitted, Avocet may submit an invoice, which shall be payable immediately on receipt;
(b)the Client shall return all of Avocet's Pre-existing Materials and Deliverables in relation to the
Deliverables for which there is an outstanding payment. If the Client fails to do so, then Avocet may enter the Client's premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping; and
(c)the accrued rights and liabilities of the parties as at termination and the continuation of any
provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11.3On termination of this Agreement (however arising), the following conditions shall survive and continue in
full force and effect:
(a)condition 11; and
Avocet shall have no liability to the Client under this Agreement if it is prevented from, or delayed in performing, its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of Avocet or any other party), failure of a utility service, bank 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 Avocets or subcontractors.
13.1Avocet may, from time to time and without notice, change the Services in order to comply with any
applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If Avocet requests a change to the scope of the Services for any other reason, the Client shall not unreasonably withhold or delay consent to it.
13.2Subject to condition 13.1, no variation of this Agreement or of any of the documents referred to in them
shall be valid unless it is in writing and signed by or on behalf of each of the parties.
14.1A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the circum
-stances for which it is given. No failure or delay by a party in exercising any right or remedy under this Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
14.2Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not
exclude rights provided by law.
15.1If any provision of this
Agreement (or part of any provision) is found by any court or other
authority of the
competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
15.2If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the
provision shall apply with the minimum modification necessary to make it legal, valid and enforceable
16.1This Agreement constitutes
the whole agreement between the parties and supersedes all previous
agreements between the parties relating to its subject matter.
16.2Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no
right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
16.3Nothing in this condition shall limit or exclude any liability for fraud.
17.1The Client shall not, without the prior written consent of Avocet, assign, transfer, charge, mortgage,
subcontract, declare a trust of or deal in any manner with all or any of its rights or obligations under this Agreement.
17.2Avocet may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any
other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.
17.3Each party that has rights under this Agreement is acting on its own behalf and not for the benefit of
18.NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
19.RIGHTS OF THIRD PARTIES
shall not be binding unless in writing and may be given by hand delivery
first class post only;
or other communication given or made under this Agreement shall
be in writing
and may be given by either hand delivery, prepaid first class post, facsimile transmission or electronic mail.
20.2Any such notice which is given in accordance with condition 17.1 above, shall be deemed to have been
received with the other party in accordance with the contact details set out in the Booking Form or at any such address or contact details as shall be provided by the parties in writing from time to time:
(a)at the time of delivery if delivered by hand;
(b)on the second working day following the day of sending the notice by prepaid first class post; or
(c)on despatch in the case of a facsimile transmission or electronic mail, provided that the sender
does not receive any indication that the electronic mail message or facsimile transmission has not been successfully transmitted to the intended recipient.
21.GOVERNING LAW AND JURISDICTION
21.1This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter,
shall be governed by, and construed in accordance with, the law of England and Wales.
21.2The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to
settle any dispute or claim that arises out of, or in connection with, this Agreement or its subject matter.