General Terms & Conditions of Business
Last Updated on Wednesday, 14 October 2009 11:29
- 1. Definitions
1.1 The definitions and rules of interpretation in this condition apply in these conditions:
“Claritas” means Claritas Solutions Ltd, a company registered in
“Client” means the person, firm or company with whom the Contract is made by Claritas, whether directly or indirectly, through an agent or factor who is acting for or instructed by Claritas;
“Contract” means the Client's purchase order and Claritas’ acceptance of it, or the Client's acceptance of a quotation for Services and/ or Goods by Claritas, under condition 2.3;
“Development Services” means bespoke software and application development;
“Goods” means the articles or things to be supplied by Claritas to the Client under the terms of the Contract;
“Services” means the services to be provided by Claritas to the Client under the terms of the Contract including but not limited to the Development Services and “service” shall be construed accordingly.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 Condition headings do not affect the interpretation of these conditions.
- 2. General
2.1 Subject to any variation under condition 2.2 these conditions shall be incorporated into the Contract to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 These conditions apply to all Claritas' sales of Services and/ or Goods and any variation to these conditions and any representations about the Services and/ or Goods shall have no effect unless expressly agreed in writing and signed by an authorised signatory of Claritas. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Claritas which is not set out in the Contract.
2.3 The Client's purchase order, or the Client's acceptance of a quotation for Services by Claritas, constitutes an offer by the Client to purchase the Services and/ or Goods on these Conditions. No offer placed by the Client shall be accepted by Claritas other than:
2.3.1 by a written acknowledgement issued and executed by Claritas; or
2.3.2 (if earlier) by Claritas starting to provide the Services and/ or Goods,
when a Contract on these Conditions will be established.
2.4 Quotations are given by Claritas on the basis that no Contract shall come into existence except in accordance with condition 2.3. Any quotation is valid for a period of 30 days from its date, provided that Claritas has not previously withdrawn it.
2.5 All quotes are subject to a satisfactory credit rating being applied to the Client. Upon request, the Client will provide Claritas with information describing the Client’s financial condition as part of this and ongoing credit control monitoring.
2.6 The Client shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Since under normal circumstances Services and/ or Goods may be ordered the same day on receipt of the Client’s order, Claritas reserves the right to refuse to accept cancellation of orders. Where such cancellation is accepted, the Client indemnifies Claritas for any resultant losses, costs or expenses.
2.8 If any of these conditions shall be held to be invalid or shall not apply to the Contract the other Conditions shall continue in full force and effect.
- Service term
3.1 Services supplied under the Contract shall be provided by Claritas to the Client from the date of Claritas’ acceptance of the Client's offer in accordance with condition 2.3.
3.2 Subject to condition 11, the Services supplied under the Contract shall continue to be supplied for the period specified in Claritas’ quotation (the “Initial Period”) and, after that, shall continue to be supplied for successive periods equivalent to the Initial Period (the “Equivalent Periods”) unless terminated by the Client by giving Claritas at least 3 months notice, such notice to expire at the end of the Initial Period or at the end of any Equivalent Period.
- 4. Prices
4.1 The price payable for the Services shall, unless otherwise stated in the Contract, be the fee chargeable by Claritas for such Services current at the date of the provision of the Services.
4.2 The price payable for the Services shall not include any expenses incurred by Claritas when travelling to the Client’s premises. Any such expenses shall be charged to the Client separately.
4.3 The price payable for the Goods shall, unless otherwise stated in the Contract, be the list price of Claritas current at the date of dispatch.
4.4 Unless otherwise expressly stated to be fixed for a specified period Claritas’ charges in respect of the Services and/or Goods are subject to amendment by Claritas from time to time.
4.5 All prices are exclusive of Value Added Tax (VAT) and any other taxation that may be applicable. The Client shall pay the VAT and any additional taxes as set out on the invoice.
- 5. Client Obligations
5.1 The Client shall:
5.1.1 co-operate with Claritas in all matters relating to provision of the Services and/or the Goods;
5.1.2 provide Claritas, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Client's premises, data and other facilities as reasonably required by Claritas for its provision of the Services and/ or Goods; and
5.1.3 provide to Claritas, in a timely manner, such information or other in-put material specified in the Contract or as Claritas may reasonably require from time to time and ensure that it is accurate in all material respects.
5.2 If Claritas' performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Claritas 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.
5.3 The Client shall be liable to pay to Claritas, on demand, all reasonable costs, charges or losses sustained or incurred by Claritas (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 the Contract, subject to Claritas confirming such costs, charges and losses to the Client in writing.
5.4 The Client shall not, without the prior written consent of Claritas, at any time from the date of the Contract to the expiry of 6 months after termination of the Contract, solicit or entice away from Claritas or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of Claritas in the provision of the Services and/ or Goods.
- 6. Terms of Payment
6.1 Unless otherwise agreed between the parties in writing, payment for Goods shall be due 30 days from the date of Claritas’ invoice for them.
6.2 Without prejudice to any contrary provisions in this condition 6, Claritas shall be entitled to invoice the Client at any time.
6.3 Unless agreed otherwise in writing between the parties, 50% of the fees for Development Services shall be due 30 days from the date of Claritas’ invoice for them. The remaining 50% shall be invoiced on Claritas’ conclusion of the Development Services and payment shall be due 30 from the date of Claritas’ invoice.
6.4 Unless agreed otherwise in writing, Claritas shall invoice the Client for all other Services quarterly in advance and the Client shall pay such invoices within 30 days of the date of invoice.
6.5 Any credit terms offered by Claritas to the Client are subject to review by Claritas from time to time and Claritas may at its absolute discretion suspend or vary any credit terms granted.
6.6 If at any time the Client should default on any credit terms, or payment obligations all sums due under the Contract shall immediately become repayable.
6.7 Claritas may add an advance late payment fee of 5% to every invoice, which Claritas shall:
6.7.1 repay to the Client if the Client pays within the agreed payment terms; or
6.7.2 retain if the Client fails to pay within the agreed payment terms
and the Client acknowledges that the advance late payment fee is reasonable, not a penalty and represents a genuine attempt to pre-estimate Claritas’ loss in the event that the Client fails to make payment within the agreed payment terms.
6.8 Time for payment of all sums due to Claritas under the Contract shall be of the essence and the Client shall indemnify Claritas against all expenses and legal costs incurred by Claritas in recovering overdue amounts. Interest shall be payable by the Client on amounts which have been overdue for more then 1 year (before as well as after judgement) at the annual rate of 5% above the base lending rate of Lloyds TSB Bank from time to time on the outstanding amount until the fees and/or expenses are paid in full. Claritas reserves the right to claim interest on amounts which have been overdue for more then 1 year under the Late Payment of Commercial Debts (Interest) Act 1998.
6.9 If the Client fails to pay any amount payable by it under the Contract, Claritas may suspend the Services until the overdue amount has been paid in full.
6.10 The Client shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by Claritas to the Client.
6.11 Claritas may, without prejudice to any other rights it may have, set off any liability of the Client to Claritas against any liability of Claritas to the Client.
- 7. Intellectual Property Rights
7.1 The Client shall indemnify Claritas against all costs, claims and damages incurred or threatened arising out of any alleged infringements of patents, trademarks, registered designs, design right, copyright or any other intellectual property right occasioned by the provision of the Services and or/ Goods where such Services and/ or Goods are provided to the specification or special requirements of the Client.
7.2 All intellectual property rights in the Goods or arising from the Claritas’ delivery of the Services shall remain the property of Claritas. All such intellectual property rights shall be treated as
7.3 The Client shall ensure that its employees and all other parties under the Client’s control and supervision shall comply with the obligations of confidentiality contained in clause 7.2
- 8. Return of Goods
Goods supplied in accordance with the Contract cannot be returned without Claritas’ prior written authorisation and in any event must be returned in a re-saleable condition in the undamaged original packaging and at the Client’s expense. Goods returned which do not comply with these conditions of return will not be accepted by Claritas and must be paid for in full.
- REASONABLE VARIATIONS
Claritas may make reasonable variations to the Goods and or Services, to be provided under the Contract, prior to delivery to the Client and without notice to the Client and any such variations shall not constitute a variation to the Contract.
- RISK AND TITLE
10.1 The Goods are at the risk of the Client from the time of delivery.
10.2 Ownership of the Goods shall not pass to the Client until Claritas has received in full (in cash or cleared funds) all sums due to it in respect of:
10.2.1 the Goods; and
10.2.2 all other sums which are or which become due to Claritas from the Client on any account.
10.3 Until ownership of the Goods has passed to the Client, the Client shall:
10.3.1 hold the Goods on a fiduciary basis as Claritas’ bailee;
10.3.2 store the Goods (at no cost to Claritas) separately from all other goods of the Client or any third party in such a way that they remain readily identifiable as Claritas’ property;
10.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
10.3.4 maintain the Goods in satisfactory condition and keep them insured on Claritas’ behalf for their full price against all risks to the reasonable satisfaction of Claritas. On request the Client shall produce the policy of insurance to Claritas.
10.4 The Client may resell the Goods before ownership has passed to it solely on the following conditions:
10.4.1 any sale shall be effected in the ordinary course of the Client's business at full market value; and
10.4.2 any such sale shall be a sale of Claritas’ property on the Client's own behalf and the Client shall deal as principal when making such a sale.
The Client's right to possession of the Goods shall terminate immediately if any of the events described in clause 11.2.2 to 11.2.5 occurs.
- 11. Termination
11.1 Claritas shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Client 30 days written notice.
11.2 Claritas shall have the right at any time by giving notice in writing to the Client to terminate the Contract forthwith if:
11.2.1 the Client commits a material breach of any of the terms and conditions of the Contract; or
11.2.2 any distress, execution or other process is levied upon any of the assets of the Client; or
11.2.3 the Client has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Client or notice of intention to appoint an administrator is given by the Client or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Client or for the granting of an administration order in respect of the Client, or any proceedings are commenced relating to the insolvency or possible insolvency of the Client; or
11.2.4 the Client ceases or threatens to cease to carry on its business; or
11.2.5 the financial position of the Client deteriorates to such an extent that in the opinion of Claritas the capability of the Client adequately to fulfil its obligations under the Contract has been placed in jeopardy.
11.3 On termination of the Contract for any reason:
11.3.1 the Client shall immediately pay to Claritas all of Claritas’ outstanding unpaid invoices and interest and, in respect of Goods and or Services supplied but for which no invoice has been submitted, Claritas may submit an invoice, which shall be payable immediately on receipt; and
11.3.2 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.
- 12. Limitations of Liability
12.1 This condition 12 sets out the entire financial liability of Claritas (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Client in respect of:
12.1.1 any breach of the Contract;
12.1.2 any use made by the Client of the Services, the Goods, or any part of either of them; and
12.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these Conditions limits or excludes the liability of Claritas:
12.3.1 for death or personal injury resulting from negligence; or
12.3.2 for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by Claritas; or
12.3.3 for any liability incurred by the Client as a result of any breach by Claritas of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
12.4 Subject to condition 12.2 and condition 12.3 Claritas shall not be liable for:
12.4.1 loss of profits; or
12.4.2 loss of business; or
12.4.3 depletion of goodwill and/or similar losses; or
12.4.4 loss of anticipated savings; or
12.4.5 loss of goods; or
12.4.6 loss of contract; or
12.4.7 loss of use; or
12.4.8 loss of corruption of data or information; or
12.4.9 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
12.5 Claritas’ 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 the Contract shall be limited to the price paid for the Services and/ or Goods.
12.6 Claritas shall not be liable for imperfect work caused by and inaccuracies on diagrams, information or specifications supplied by the Client.
12.7 The parties recognise that neither party has control over how foreign administrations of third party clients establish their rule and conditions pertaining to international telecommunications services. The Parties agree that neither party shall be liable for any loss or damage sustained by the other party, its interconnecting carriers or its end users due to any failure in, or breakdown the communications facilities associated with providing services hereunder, or for any interruption or degradation of such services whatsoever.
- 13. Force Majeure
Claritas shall not be liable nor in breach of its obligations under the Contract for any failure due to a cause beyond its reasonable control, including, but not limited to, acts of God, inclement or severe weather, industrial disputes, failure or shortage of power supplies, lightening or fire, acts of local or central government or other competent authorities, war, civil disorder, or acts or omissions of any telecommunications operators.
- 14. CONFIDENTIAL INFORMATION
The Client 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 Client by Claritas or its agents and any other confidential information concerning Claritas’ business or its products which the Client may obtain.
- 15. NoticeS
Any notice or communication given pursuant to the Contract shall be in writing and shall be delivered personally or by pre-paid first class post, recorded delivery, facsimile, e-mail or by commercial courier to the respective parties at their respective registered offices.
- 16. ASSIGNMENT
16.1 The Client shall not, without the prior written consent of Claritas, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
16.2 Claritas 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 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.
- 17. NO PARTNERSHIP OR AGENCY
Nothing in the Contract 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
- 18. RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
- 19. Waiver
The failure to exercise or delay in exercising a right or remedy provided by any Contract or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies.
- 20. Governing Law
20.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
20.2 The parties irrevocably agree that the courts of
Claritas Solutions Limited, Bowcliffe Hall, Bramham, Wetherby LS23 6LP.
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