E-Tabs Terms of Service
Standard Terms and Conditions
for the Supply of Services
of E-Tabs Limited
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 7.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business
Fees: the fees to be paid by the Customer for the supply of the Services in accordance with clause 5 and the Contract
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 10.4
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions and which is attached to these Conditions
Customer: the person or firm who purchases Services from the Supplier and whose details are set out in the Contract
Customer Default: has the meaning set out in clause 4.2
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
Pre-Contract Information: means any information (in whatever form) provided by the Customer to the Supplier
Services: the services agreed to be supplied by the Supplier to the Customer as set out in the Contract
Specification: the description or specification for the Services as set out in the Contract
Supplier: E-Tabs Limited whose details are set out in the Contract
(a) A reference to a statute or statutory provision is a reference to it 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.
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(d) A reference to writing or written includes email.
(e) These terms and conditions are drafted in the English language. If they are translated into any other languages, the English language version shall prevail.
(f) References to any English legal term or concept shall, in respect of any jurisdiction other than England be deemed to include what most nearly approximates in that jurisdiction to the English legal term or concept.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms and conditions that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The terms set out in the Contract prevail over any terms set out in email correspondences between the Customer and the Supplier (and any of its employees, agents, consultants and subcontractors) and the Contract supersedes and replaces any and all previous agreements, arrangements and contracts (whether in writing, email or otherwise) between the parties.
2.3 The Customer is responsible for ensuring that all Pre-Contract Information, the terms in the Contract and any applicable Specification are correct, complete and accurate and the Supplier is entering into the Contract on that basis.
2.4 The Contract will come into effect when it has been signed by both parties.
2.5 Any drawings, data sheets, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures or on its website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.6 The Contract constitutes the entire agreement between the parties relating to its subject matter. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.7 Any quotation for the Services given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Customer in accordance with any Specification set out in the Contract.
3.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement.
3.4 The Supplier shall provide the Services using reasonable care and skill but in reliance on all the information and Specification given by the Customer being correct.
4. Customer's obligations: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE 4
4.1 The Customer:
(a) shall ensure that the terms in the Contract, the Pre-Contract Information and any information (in whatever form) it provides to the Supplier are correct, complete and accurate;
(b) warrants that he will immediately inform the Supplier in writing of any change or proposed change to the matters referred to under clause 4.1(a);
(c) shall be responsible for checking any reports, dashboards or other documents and materials produced by the Supplier before using or relying on them in any way;
(d) shall co-operate with the Supplier in all matters relating to the Services;
(e) shall provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation, computer and other facilities as reasonably required by the Supplier;
(f) shall provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(g) shall obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and
(h) shall comply with any additional obligations as set out in the Specification.
4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligations as set out in clauses 2.3 and 4.1 (Customer Default):
(a) 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 Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) 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. Fees and payment
5.1 The fees and currency for the Services shall be the fees and currency set out in the Contract
5.2 The Customer shall pay the Fees on the dates for payment set out in the Contract.
5.3 Any request for additions, extensions or changes to the Services has to be made in writing to the Supplier. The Supplier is free to reject the request anytime and without giving any reason. Any additions, extensions or changes accepted by the Supplier shall be subject to these Conditions. An additional fee may be payable.
5.4 The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, 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 the Supplier for the performance of the Services, and for the cost of any materials.
In the case of contracts where the Services are of a continuing nature, the Supplier reserves the right to increase its Fees. The Supplier will give the Customer written notice of any such increase two months before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within two weeks of the date of the Supplier's notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving three months’ written notice to the Customer.
5.5 The Supplier shall invoice the Customer in accordance with the terms set out in the Contract.
5.6 The Customer shall pay each invoice submitted by the Supplier:
(a) as per the terms set out in the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
5.7 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 the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above the 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.
5.9 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). The Supplier 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 the Supplier to the Customer.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
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 the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
7. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE 7
7.1 Nothing in the Contract shall limit or exclude the Supplier'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)
(d) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
7.2 Subject to clause 7.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect or consequential loss.
7.3 The Supplier's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the maximum annual Fees.
7.4 This clause 7 shall survive termination of the Contract.
8.1 Without limiting its other rights or remedies, either party may terminate the Contract:
(a) by giving the other party three months' written notice; or
(b) on completion of the Services.
8.2 If the Customer becomes subject to any of the events listed in clause 8.3, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
8.3 For the purposes of clause 8.2, the relevant events are:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 15 Business Days after being notified in writing to make such payment;
(b) the Customer commits a breach of any term of the Contract and of these Conditions and (if such a breach is remediable) fails to remedy that breach within 15 Business Days of him being notified in writing to do so;
(c) 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 is deemed unable to pay its debts;
(d) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(e) the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(f) the Customer’s financial position deteriorates to such an extent that in the Suppliers’ opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9. Consequences of termination
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall not be granted any further access to the Services of the Supplier;
(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.
10.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.2 Assignment and other dealings.
(a) The Supplier 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 the Supplier, 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) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 10.3 and are subject to these Conditions; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
10.4 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 in writing and signed by both parties.
10.5 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy; or prevent or restrict the further exercise of that or any other right or remedy.
10.6 Severance. 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.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in English, in writing, addressed to that party as set out in the Contract, and/or at its registered office (if it is a company) 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, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
(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 10.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; 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 email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.