TERMS AND CONDITIONS OF CONTRACT
(A) These Terms and Conditions shall be deemed to be incorporated into every Contract entered into between the VetSens (trading name of Cascom Ltd) (“the company”) and a Client on acceptance by the Client of a proposal issued by the company in relation to the applicable Contract (“the Proposal”).
(B) These Terms and Conditions shall (subject to any variations set out in writing in the Proposal) govern the Contract to the exclusion of any other terms, conditions of purchase or other trading conditions of the Client and any such conditions whether already drawn to the attention of the company or not shall be of no binding effect unless the company shall expressly agree in writing.
(C) These Terms and Conditions may only be varied by agreement in writing signed by a duly authorised signatory of the company and a duly authorised signatory of the Client, such authorisation itself to be incorporated into the Proposal.
1. Extent of Contract
1.1 In these Terms and Conditions, “the Work” shall mean both the work to be done as specified in the Proposal and any part thereof and any work done in substitution therefore or in addition thereto and shall extend to all goods, services, documents and information, including software and data, supplied by the company in connection therewith.
1.2 Any acceptance or purported acceptance of the Proposal shall have effect as an acceptance of the offer therein contained and the Client shall thereby be deemed to have waived any term or condition of the acceptance which is in addition to or in derogation of variation of these Terms and Conditions.
1.3 Other than the company’s authorised signatories, the employees or agents of the company are not authorised to make any representation with regard to the subject matter of the Contract. In entering into the Contract the Client acknowledges that if it relies on any representation, advice or recommendation given by the company, its employees or agents to the Client as to the Works it does so entirely at the Client’s own risk.
2. Variations and Additions
2.1 The Client shall notify the company in writing in the event that any variation or addition to the Work is required by the Client. However, nothing in these Terms and Conditions shall oblige the company to agree to effect any such variation and/or addition.
2.2 Before carrying out any work in variation of or in addition to the Work the company will advise the Client of the estimated additional cost thereof and the effect on the programme and the completion date of the Work and will proceed with such variation or addition to the Work upon receiving the written authority of the Client to do so.
3.1 In the event of any postponement, interruption or suspension of the Work due to instructions from, or lack of instruction, information or decision on the part of the Client or in the event that the Client authorises any variation or addition in accordance with Clause 2.2 of these Terms and Conditions then the company shall be entitled to require the Client to pay an additional reasonable sum to cover any expenses or increase in cost incurred by the company. The Price shall be deemed to be increased by such additional sums and payable by the Client accordingly.
3.2 The Price excludes Value Added Tax, which shall be charged at the prevailing rate and which the Client agrees to pay the company in addition.
3.3 In the event that the Price excludes expenses, the Client will, in accordance with the provisions of these Terms and Conditions, reimburse the company with all reasonable expenses incurred by the company in carrying out the Work, including travel, petrol, accommodation, meals and subsistence, on vouchers relating to such expenses being provided by the company to the Client.
4. Terms of Payment
4.1 Payment for the Work shall be made by the Client in sterling. The company shall be entitled to invoice the Client for the Price in accordance with the payment schedule set out in the proposal and the Client agrees to pay the same within 30 days of the date of the company’s invoice.
4.2 In the event of any payments not being made when due or if the company at its reasonable discretion at any time considers the financial circumstances of the Client have ceased to justify the terms allowed, the company reserves the right to suspend further Work, to cancel allowance of further credit or to demand security for payment before continuing with the Work.
The company will make reasonable efforts to meet the estimated date for completion of the Work referred to in the Proposal but will in no circumstances be liable for any loss, damage or expense incurred directly or indirectly by the Client by any non-delivery or delay in completion of the Work. Any period, date or time for delivery provided by the company is given and intended as an estimate only.
6.1 Unless otherwise agreed or where the Work is supplied to a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by law are excluded to the extent permitted by law.
7.1 The company shall indemnify the Client against personal injury to or the death of any person or loss or damage to any property, real or personal, insofar as such injury, death, loss or damage arises in the course of or by reason of the company carrying out its obligations under the Contract incorporating these Terms and Conditions and provided always and only to the extent that the same is due to the negligence on the part of the company, its employees, servants or agents.
7.2 Except in respect of death or personal injury caused by the company’s negligence, the aggregate liability of the company to the Client in respects of loss or damage to any property, real or personal (whether such liability arises under the indemnity in this Clause 7, in contract, in tort (including negligence) or otherwise) shall not exceed £1,000,000.
7.3 Save as otherwise provided in this Clause 7, the company, its employees, servants and agents shall not be liable to the Client in contract, tort, for breach of statutory duty, by reason of any representation (unless fraudulent) or otherwise including any liability for negligence, or for any loss of revenue, business, anticipated savings and profits or any loss of use or value of any equipment or for any indirect, special or consequential loss howsoever arising and the entire liability of the company under or in connection with the Contract shall not (save as otherwise expressly provided in these Terms and Conditions) exceed the price.
7.4 The Client agrees to indemnify the company against any loss, damages, costs, claims or expenses incurred by the company in respect of any legal liabilities established against the company by a third party arising out of or in connection with any instructions of the Client in relation to the Work or any other work or services supplied by the company.
8. Client’s Property
The company will take all reasonable precautions for the security of documents and equipment supplied by or belonging to the Client but the same will only be held by the company at the risk of the Client and no liability is accepted by the company for the loss, destruction or disposal thereof or damage thereto. It is the responsibility of the Client to insure the same.
9. Confidential Information
The company will take all reasonable precautions to ensure that no person engaged upon the Work on behalf of the company shall disclose to any third party details of the Work, information obtained by the company from the Client which relates in any way to the Work or any reports to the Client, unless the Client gives consent to such disclosure or the company is required to disclose the same by law. The Client shall not unreasonably withhold consent to disclosure of the fact that the company has agreed to carry out the Work for the Client.
10. Reservation of Title and IPR
The risk in the Work passes to the Client upon delivery. Full legal and equitable title in the Work and (where it is agreed that the Intellectual Property Rights shall pass to the Client), the Intellectual Property Rights in the Work remains vested in the company and shall only pass from the company to the Client upon full payment being made by the Client of all sums (due on whatsoever account or grounds) to the company.
11. Acceptance of the Work
Upon delivery of the Work the Client shall inspect the Work and report any defects or non-conformity to the company within 30 days. If a response is not received within this time the Client shall be deemed to have unconditionally accepted the Work.
12. Intellectual Property Rights
12.1 Nothing in these Terms and Conditions shall affect the ownership of Intellectual Property Rights existing prior to the date of the Contract.
12.2 Nothing in these Terms and Conditions shall affect the ownership of any Intellectual Property Rights developed independently of the Contract.
12.3 Unless otherwise stated in the Proposal, all Intellectual Property Rights (including patent, copyright, design or trade mark rights) that are created or arise as a result of the Contract shall vest in the company.
12.4 Where the company and the Client have agreed that Intellectual Property Rights shall vest in the Client and the Work has been published or has become public knowledge, the company shall at any time be entitled to use the Work free of charge in pursuit of its research and teaching activities. Where the Work has not been published, should the company wish to use the Work to further its research activities, such use will be subject to the consent of the Client in writing, such consent not to be unreasonably withheld but may be granted subject to such reasonable conditions as the Client may specify. If full payment for the Work in accordance with Clause 4 is not made, the company may treat the results of the Work as its own and be free to use or otherwise exploit the said results without further reference to the Client.
13. Infringement of Patents, Designs, Copyright and Trade Marks
The company, its employees, servants and agents shall not in any circumstances be liable for any loss, liability, penalty or expense suffered or incurred by the Client by reason of any sale, disposition, use or adoption of the Work which constitutes an alleged or actual infringement of a patent, design, copyright or trade mark, foreign or domestic, vested in a third party and the company gives no warranty that the Works will not infringe as aforesaid. The Client shall indemnify the company, its employees, servants and agents against any loss, liability, penalty or expense suffered or incurred by the company, its employees, servants or agents by reason of any work requiring to be done in accordance with the Client’s instructions or the Proposal which constitutes or is alleged to constitute such an infringement.
14. Termination of Contract
14.1 The company may at any time by written notice given to the Client terminate the Contract if in the opinion of the company bona fide formed upon reasonable grounds the objects of the Work shall:-
(a) prove to be impossible or impractical of completion; or
(b) prove impossible to achieve within the Price provided that such impossibility is not due to any fault or default on the part of the company.
14.2 Either party shall be entitled forthwith to terminate the Contract by written notice to the other if that other party fails to perform or commits any breach of any of the provisions of these Terms and Conditions or the Contract and, in the case of a breach capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied.
14.3 The company shall be entitled forthwith to terminate the Contract if:-
(a) an incumbrancer takes possession or a receiver is appointed over any of the property or assets of the Client;
(b) the Client makes any voluntary arrangement with its Creditors or becomes subject to an Administration Order;
(c) the Client goes into Liquidation (except for the purposes of amalgamation or reconstruction and in such a manner that the Company resulting there from effectively agrees to be bound by or assume the obligations imposed on that other party under these Terms and Conditions) or (if an individual) has a Bankruptcy Order made against him; or
(d) the Client ceases, or threatens to cease, to carry on business.
15. Consequences of Termination
15.1 Immediately following termination of the Contract, the company shall be entitled to be paid a fair proportion of the Price pro-rata to the proportion of the total amount of the Work which has been completed at the date of termination, the amount of which in the absence of agreement will be determined by an Arbitrator appointed under Clause 20.
15.2 Termination shall not affect or discharge any rights or liability of the company or the Client arising prior to the date of termination.
15.3 As soon as practicable after the date of termination the Client shall return to the company any equipment, documents
or other property of whatever kind belonging to the company which is then in its possession and, subject to all outstanding sums being paid, the company shall return to the Client any such equipment, document or other products as are in its possession belonging to the Client.
Neither party shall assign or otherwise transfer or purport to assign or transfer all or any of its rights, interests or obligations under the Contract without the prior written consent of the other party save that the company shall be entitled to have the whole or part of the Work performed by any sub-contractor(s) without the Client’s consent.
No exercise, or failure to exercise, or delay in exercising any right or remedy by either Party shall constitute a waiver by that party of that or any other right or remedy.
18. English Law and Jurisdiction
The formation, construction and performance of the Contract shall be governed in all respects by English Law. The Client and the company hereby agree to submit to the jurisdiction of the English Courts.
19. Whole Agreement
Each party acknowledges that the Contract contains the whole agreement between the parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
If at any time any question, dispute or difference whatsoever shall arise as to the formation, meaning, operation, validity or effect of the Contract or the rights, duties or liabilities of the parties under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of the Contract, either party may give to the other notice in writing of the existence of such question, dispute or difference and the same shall be referred to the arbitration of a single arbitrator to be agreed upon by the parties or, in default of agreement within 14 days of such notice, to be nominated by the President for the time being of the Law Society of England and Wales such arbitration to be conducted in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment of it for the time being in force.
21. Rights of Third Parties
No term of the Contract is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
If any part of the Contract is held to be unlawful or unenforceable then the part shall be severed and the validity or enforceability of the remainder of this contract shall not be affected thereby. The parties shall negotiate in good faith in order to agree the terms of a mutually acceptable and satisfactory alternative in place of the severed part.
The headings in these Terms and Conditions are for convenience only and are not intended to have any legal effect.
24. Force Majeure
Neither party shall be liable to the other for delays in performance attributable to acts, occurrences, events or illnesses beyond the reasonable control of such party.
All notices shall be in writing and shall be delivered by hand, posted by recorded delivery post or sent by fax or email to the intended recipient at the address, fax number or email address stated in the Proposal or as otherwise notified. Notices delivered by hand shall be deemed received on the day of delivery. Notices sent by fax shall be deemed received on the first working day following sending. Notices posted as above shall be deemed received on the second working day following posting. Notices sent by email shall be deemed received on the first working day following sending.