Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Client for the supply of the Services as stated in the Order.
Client: the person or firm who purchases Services from XCellR8.
Client Default: has the meaning set out in clause 4.2.
Client Materials: has the meaning set out in clause 4.1(b).
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 10.5.
Contract: the contract between XCellR8 and the Client for the supply of Services in accordance with these Conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
Deliverables: the deliverables set out in the Order.
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 Client’s order for Services as set out either in the Client’s purchase order form; or in the Client’s written or electronic acceptance of XCellR8’s quotation; as applicable.
Services: the services, including the Deliverables, supplied by XCellR8 to the Client as set out in the Specification.
Specification: the description or specification of the Services provided in writing by XCellR8 to the Client.
XCellR8: XCellR8 Limited registered in England and Wales with company number 06489519 whose registered office address is The Innovation Centre, Sci-Tech Daresbury, Keckwick Lane, Daresbury, Cheshire WA4 4FS, England.
(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) 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.
(c) A reference to writing or written includes email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when XCellR8 issues written acceptance of the Order, or the Client confirms the Order electronically on XCellR8’s website, at which point and on which date the Contract shall come into existence.
2.3 Any samples, drawings, descriptive matter or advertising issued by XCellR8, and any descriptions or illustrations contained in XCellR8’s catalogues or brochures, 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.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate (whether included on the Client’s purchase order or otherwise), or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by XCellR8 shall not constitute an offer, and is only valid for a period of 60 days from its date of issue.
3. SUPPLY OF SERVICES
3.1 In supplying the Services, XCellR8 shall:
(a) perform the Services with reasonable care and skill;
(b) use reasonable endeavours to perform the Services in accordance with the Specification;
(c) ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;
(d) comply with all applicable laws, statutes and regulations from time to time in force provided that XCellR8 shall not be liable under this agreement if, as a result of such compliance, it is in breach of any of its obligations under this agreement; and
(e) take reasonable care of all Client Materials in its possession and make them available for collection by the Client on reasonable notice and request, always provided that XCellR8 may destroy the Client Materials if the Client fails to collect the Client Materials within a reasonable period after termination of this Contract.
3.2 XCellR8 shall use all reasonable endeavours to meet any performance dates specified in any quotation or Order, but (unless specifically stated otherwise in the Order) any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 XCellR8 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 Services, and XCellR8 shall notify the Client in any such event.
4. CLIENT’S OBLIGATIONS
4.1 The Client shall:
(a) co-operate with XCellR8 in all matters relating to the Services;
(b) provide XCellR8 with such information and materials as XCellR8 may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(c) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
(d) provide XCellR8, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by XCellR8; and
(e) comply with any additional obligations as set out in the Specification.
4.2 If XCellR8’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation:
(a) XCellR8 shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays XCellR8’s performance of any of its obligations;
(b) XCellR8 shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from XCellR8’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Client shall reimburse XCellR8 on written demand for any costs or losses sustained or incurred by XCellR8 arising directly or indirectly from the Client Default.
5. CHARGES AND PAYMENT
5.1 In consideration for the provision of the Services, the Client shall pay XCellR8 the Charges in accordance with this clause 5.
5.2 XCellR8 shall be entitled to:
(a) invoice the Client on completion of the Services unless a payment in advance or other payment schedule is stated in the quotation or the Order; and
(b) require a fee for early termination of the Services by the Client, and any such fee will be set out in the XCellR8’s quotation.
5.3 The Client shall pay each invoice submitted by XCellR8:
(b) in full and in cleared funds to a bank account nominated in writing by XCellR8, and
time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to XCellR8 at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
5.5 If the Client fails to make any payment due to XCellR8 under the Contract by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 4% 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 Client shall pay the interest together with the overdue amount.
5.6 The Client 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). XCellR8 may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by XCellR8 to the Client.
5.7 If XCellR8 has agreed to payment in a currency other than sterling then the following conditions shall apply:
(a) if non-sterling to sterling fluctuates by more than 5% between quotation and Order or receipt of samples from the Client (whichever is the later), XCellR8 reserves the right to adjust prices in line with the exchange rate fluctuation;
(b) if non-sterling to sterling fluctuates by more than 5% between quotation and invoicing, XCellR8 reserves the right to adjust prices in line with the exchange rate fluctuation;
(c) payment shall be due within 15 days from the date of the invoice; and
(d) if the payment terms are exceeded, XCellR8 reserves the right to adjust pricing in line with the exchange rate fluctuation by issuing a debit note.
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 XCellR8, except for the Deliverables, which shall be owned by the Client.
6.2 All Client Materials are the exclusive property of the Client.
7. LIMITATION OF LIABILITY:
7.1 Nothing in the Contract shall limit or exclude XCellR8’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) any other liability which cannot be limited or excluded by applicable law.
7.2 Subject to clause 7.1, XCellR8 shall not be liable to the Client, 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 Subject to clause 8.1, XCellR8’s total liability to the Client, 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 total Charges paid under the Contract.
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 with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty days of that party being notified in writing to do so;
(b) the other party 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;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
8.2 Without limiting its other rights or remedies, XCellR8 may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than fourteen days after being notified in writing to make such payment; or
(b) there is a change of Control of the Client.
8.3 Without limiting its other rights or remedies, XCellR8 may suspend provision of the Services under the Contract or any other contract between the Client and XCellR8 if any of the events listed in clauses 8.1(b) or 8.1(c) apply to the Client or XCellR8 reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
9. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Client shall immediately pay to XCellR8 all of XCellR8’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, XCellR8 shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the Client shall return all of the Client Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then XCellR8 may enter the Client’s premises and take possession of them. Until they have been returned, the Client 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.
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) XCellR8 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 Client shall not, without the prior written consent of XCellR8, 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, clients, 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
(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 Entire agreement.
(a) This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
10.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 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:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
10.7 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 writing, addressed to that party at its registered office 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 10.8(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, on the Business Day of transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.9 Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
10.11 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the laws of England and Wales.
10.12 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.