Terms and conditions
- 1.1 The definitions and rules of interpretation in this clause apply throughout these terms and conditions.
- Additional Services: any other services which echelon provides or agrees to provide to the Client from time to time.
- Client's Equipment: any equipment, systems, cabling or facilities provided by the Client and used directly or indirectly in the supply of the Services.
- Client Manager: the individual appointed on behalf of the Client in accordance with clause 4.
Consultant: the individual appointed by echelon with primary responsibility for the delivery of the Services and Deliverables.
- Deliverables: all Documents, products and materials developed by echelon in relation to the Services in any form, including, but without limitation, printed matter, computer programs, data, reports and specifications, and all drafts.
Document: includes, 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.
- Expenses: any expenses incurred will be charged in addition where appropriate. Expenses include accommodation, living expenses (meals etc) and travel costs. Travel costs include charges of £0.50 per mile when Consultant uses their own personal car or all the costs for a hire car whichever is applicable. Air flights will utilise Business Class tickets if the journey is over three hours in duration, otherwise economy tickets will be purchased. Travel will incur a charge of 50% of the Consultant’s daily rate for every day in travel.
- 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 right, 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.
- Input Material: all Documents, background information or other material relevant to the Project and or the provision of the Services provided by the Client.
- echelon's Equipment: any equipment, including tools, systems, cabling or facilities, provided by echelon or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Client.
- echelon's Manager: the individual appointed on behalf of echelon in accordance with clause 3.
Pre-Existing Materials: all Documents, Intellectual Property Rights or other materials owned, provided or utilised by echelon in the provision of the Services or the production of the Deliverables.
- Project: the project agreed in the letter of specification, and set out in section 2 of Schedule 1.
- Services: the services to be provided by echelon under this Agreement as more specifically set out in Part 1 of Schedule 1.
- VAT: value added tax chargeable under English law for the time being and any similar additional tax.
- 1.2 Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.
- 1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) [and that person's legal and personal representatives, successors and permitted assigns].
- 1.4 The schedules form part of this Agreement and shall have effect as if set out in full in the body of the same and any reference to this Agreement includes the schedules.
- 1.5 Words in the singular shall include the plural and vice versa.
- 1.6 A 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.
- 1.7 A reference to writing or written includes faxes but not e-mail.
- 1.8 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
- 1.9 Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
- 1.10 References to conditions and schedules are to the conditions and schedules of this agreement.
- 1.11 The terms of this Agreement shall prevail over any inconsistent terms or conditions contained, or referred to, in any quotation or specification, or implied by law, trade custom, practice or course of dealing.
2. Commencement and duration
- 2.1 The Services and Deliverables shall be provided by the Consultant, echelon’s Manager or any other suitably qualified individual appointed by echelon from time to time.
- 2.2 The Services supplied under this Agreement from time to time be supplied materially in accordance with the Project Plan. echelon will continue to provide the Services unless this Agreement is terminated by one of the parties giving to the other not less than 3 months' notice or is terminated in accordance with clause 11.
3. echelon's obligations
- 3.1 echelon shall use reasonable endeavours to manage and provide the Services and to deliver the Deliverables to the Client.
- 3.2 echelon shall use reasonable endeavours to meet any performance dates specified in Schedule 1, but any such dates shall be estimates only and time shall not be of the essence.
- 3.3 echelon shall appoint echelon's Manager who shall have authority contractually to bind echelon on all matters relating to the Services.
- 3.4 echelon shall use reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Client's premises, provided these have been communicated to echelon under clause 4.4 below.
4. Client's obligations
- 4.1 The Client shall:
- 4.1.1 co-operate with echelon in all matters relating to the Services and appoint a Client Manager, who shall have the authority contractually to bind the Client on matters relating to the Services;
- 4.1.2 provide, for echelon, its agents, sub-contractors and employees, in a timely manner and at no charge, access to the Client's premises, office accommodation, data and other facilities as requested by echelon;
- 4.1.3 provide, in a timely manner, such In-put Material and other information as echelon may request and ensure that it is accurate in all material respects;
- 4.1.4 inform echelon of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client's premises;
- 4.1.5 ensure that all Client's Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
- 4.1.6 obtain and maintain all necessary or appropriate insurance relevant to the Project.
- 4.2 If echelon's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, echelon 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.
- 4.3 The Client shall be liable to pay to echelon, on demand, all reasonable costs, charges or losses sustained or incurred by echelon (including 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 echelon confirming and evidencing such costs, charges and losses to the Client in writing.
- 4.4 The Client shall not, without the prior written consent of echelon, at any time from the date of this Agreement to the expiry of nine months after the last date of supply of the Services or termination of this Agreement solicit or entice away from echelon or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of echelon in the provision of the Services.
- 4.5 Any consent given by echelon in accordance with condition Clause 4.4 shall be subject to the Client paying to echelon a sum equivalent to 20% of the then current annual remuneration of echelon's employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee or sub-contractor.
- 4.6 At the complete discretion of echelon, the Client will provide and request a guarantor for their obligations under this agreement, such to provide security for any payments due under the same, on account if so required.
- 5.1 The Client's Manager and echelon's Manager shall meet at least once every month to discuss matters relating to the Services. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
- 5.2 If either party requests a change to the scope or execution of the Services, echelon shall, within a reasonable time, provide a written estimate to the Client of:
- 5.2.1 the likely time required to implement the change;
- 5.2.2 any variations to echelon's charges arising from the change;
- 5.2.3 the likely effect of the change on the Project Plan; and
- 5.2.4 any other impact of the change on the terms of this Agreement.
- 5.3 echelon 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. echelon may, from time to time and subject to Client's prior written consent, which shall not be unreasonably withheld or delayed change the Services, provided that such where practicable, it will give the Client at least 3 months notice of any such change.
- 5.4 If the Client wishes echelon to proceed with a change referred to above, echelon has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of this Agreement to take account of such change.
- 5.5 echelon may charge for its time spent in assessing a request for change from the Client on a time and materials basis in accordance with clause 6.
6. Charges and payment
- 6.1 Clause 6.1 shall apply if echelon provides the Services on a time and materials basis. Clause 6.3 shall apply if echelon provides the Services for a fixed price. The remainder of this condition 6 shall apply in either case.
- 6.2 Where the Services are provided on a time and materials basis:
- 6.2.1 the charges payable for the Services shall be calculated in accordance with echelon's standard daily fee rates, as amended from time to time;
- 6.2.2 echelon's standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between [8.00 am and 5.00 pm] on weekdays (excluding public holidays);
- 6.2.3 echelon shall be entitled to charge an overtime rate of 50% of the normal daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to above;
- 6.2.4 all charges quoted to the Client shall be exclusive of VAT which echelon shall add to its invoices at the appropriate rate;
- 6.2.5 echelon shall invoice the Client monthly in arrears for its charges for time, expenses and materials together with VAT where appropriate for the month concerned, calculated as provided in this Clause 6 and subject to Schedule 2, as amended from time to time.
- 6.3 Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in Schedule 2. The total price shall be paid to echelon (without deduction or set-off) in instalments, as set out in Error! Reference source not found. of Schedule 2, at the end of a period specified. In respect of any instalment echelon shall invoice the Client for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate.
- 6.4 Any fixed price and daily rate contained in Schedule 2 excludes:
- 6.4.1 the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom echelon engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by echelon for the supply of the Services. Such expenses, materials and third party services shall be invoiced by echelon; and
- 6.4.2 VAT, which echelon shall add to its invoices at the appropriate rate.
- 6.5 The Client shall pay each invoice submitted to it by echelon, in full and in cleared funds, within 14 days of receipt.
- 6.6 Without prejudice to any other right or remedy that it may have, if the Client fails to pay echelon on the due date, echelon may:
- 6.6.1 charge interest on such sum from the due date for payment at the annual rate of 10% above the Bank of England base lending rate from time to being compounded quarterly until payment is made, whether before or after any judgment and echelon may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
- 6.6.2 suspend all Services until payment has been made in full.
- 6.7 Time for payment shall be of the essence of this Agreement.
- 6.8 All sums payable to echelon under this Agreement shall become due immediately on its termination, despite any other provision. This clause 6 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
- 6.9 echelon may, without prejudice to any other rights it may have, set off any liability of the Client to echelon against any liability of echelon to the Client.
7. Intellecutual property rights
- 7.1 As between the Client and echelon, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by [echelon]. Subject to clause 7.2 echelon 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. On the termination of this Agreement such licence will automatically terminate.
- 7.2 The Client acknowledges that, where echelon does not own any part of the Pre-existing Materials, the Client's use of rights in Pre-existing Materials is conditional on echelon obtaining a licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle echelon to license such rights to the Client.
8. Confidentiality and the echelon's property
- 8.1 Each Party shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the other, its employees, agents or sub-contractors and any other confidential information concerning their business or products which that Party may obtain. Each Party shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging their obligations to the other, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind them.
- 8.2 All materials, equipment and tools, drawings, specifications and data supplied by the echelon to the Client (including Pre-existing Materials and echelon's Equipment) shall, at all times, be and remain the exclusive property of echelon, 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 echelon, and shall not be disposed of or used other than in accordance with echelon's written instructions or authorisation.
- 8.3 This condition 8 shall survive termination of this Agreement, however arising.
9. Limitation of liability
- 9.1 This Clause 9 sets out the entire financial liability of echelon (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
- 9.1.1 any breach of this Agreement;
- 9.1.2 any use made by the Client of the Services, the Deliverables or any part of them; and
- 9.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
- 9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
- 9.3 Nothing in these Conditions limits or excludes the liability of echelon:
- 9.3.1 for death or personal injury resulting from negligence; or
- 9.3.2 for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the echelon; or
- 9.4 Subject to the above;
- 9.4.1 echelon shall not be liable, whether in tort, contract, misrepresentation or otherwise for:
- loss of profits; or
- loss of business; or
- depletion of goodwill and/or similar losses; or
- loss of anticipated savings; or
- loss of goods; or
- loss of contract; or
- loss of use; or
- loss of corruption of data or information; or
- any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
- 9.4.2 echelon'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 the price paid for the Services.
- 9.4.1 echelon shall not be liable, whether in tort, contract, misrepresentation or otherwise for:
10. Data protection
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 may be processed by and on behalf of echelon in connection with the Services.
- 11.1 Without 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 [three] months written notice or immediately on giving notice to the other if:
- 11.1.1 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
- 11.1.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
- 11.1.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
- 11.1.4 a receiver is appointed of any of the other party's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
11.1.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
11.1.6 the other party ceases, or threatens to cease, to trade; or
11.1.7 there is a change of control of the other party (as defined in [section 574 of the Capital Allowances Act 2001]); or
- 11.1.8 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
- 11.2 On termination of this Agreement for any reason:
- 11.2.1 the Client shall immediately pay to echelon all of their outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, echelon may submit an invoice, which shall be payable immediately on receipt;
- 11.2.2 the Client shall return all of echelon's Equipment, Pre-existing Materials and the Deliverables. If the Client fails to do so, then echelon 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
- 11.2.3 the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
12. Force majeure
echelon 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 strikes, lock-outs or other industrial disputes (whether involving the workforce of the echelon 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 echelons or sub-contractors.
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.
- 14.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
- 14.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
- 15.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
- 15.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
- 15.3 The parties agree, in the circumstances referred to in clause 15.2 to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
16. Status of pre-contractual statements
Each of the parties acknowledges and agrees that, in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of this Agreement other than as expressly set out in this Agreement.
- 17.1 The Client shall not, without the prior written consent of echelon, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
- 17.2 echelon may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
18. No partnership or agency
Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power)
19. Rights of third parties
This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
Notice given under this Agreement shall be in writing, sent for the attention of the person, and to the address or fax number, given in this Agreement (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 20 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
21. Governing law and jurisdiction
- 21.1 This 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.
- 21.2 The 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.