1 - Definitions
Acknowledgement means PSE 2 written acknowledgement of Client’s Order, confirming supply of Services subject to these terms and Conditions.
Client means the party to whom the Proposal is addressed
Contract means the written agreement between PSE 2 limited and the Client for the supply of Services which incorporates in order of precedence: the Acknowledgement (if applicable), these terms and conditions, the Proposal and the Order (excluding any terms and conditions contained therein).
Contract Price means the total price of the Services.
Deliverable(s) means any products, reports, results, designs or other items to be provided to the Client resulting from the Services. PSE 2 Limited means the supplier of the Services: PSE 2 Limited whose registered address is C/O Bishop Fleming, 16, Queen Square, Bristol, United Kingdom, BS1 4NT.
PSE 2 Limited Employees means employees, consultants and subcontractors of PSE 2 Limited.
IPR means all patterns, trademarks, trade/business names, copyright, rights in designs, database rights, software rights, trade secrets, rights to know-how and confidential information and all intellectual property rights (whether or not registered), together with rights to apply for any of these globally.
Order means Client's purchase order, Proposal acceptance, request to proceed or other communication requesting the supply of Services.
Proposal means PSE 2 Limited's written quotation or tender inviting a Client to place an Order.
Services means any Services to be supplied by PSE 2 Limited under the Contract.Definition.
2 - The Contract
2.1 - Any Order, whether or not in response to a Proposal shall be deemed an offer subject to PSE 2 Limited’s acceptance by means of an Acknowledgement. In the event PSE 2 Limited commences Services in advance of sending an Acknowledgement, such services shall be governed by these terms and conditions.
2.2 - Notwithstanding clause 2.1, if a Client unconditionally accepts PSE 2 Limited's unedited Proposal, the signed Proposal/unconditional acceptance of these terms and conditions shall form entire Contract, no Acknowledgement being necessary.
2.3 - Any Contract between the parties shall be on the basis of these terms and conditions not withstanding any Contract terms and conditions sought to be applied by the Client, which PSE 2 Limited hereby rejects. These terms and conditions prevail over any terms implied by custom, practice or otherwise supplied.
2.4 - PSE 2 Limited shall provide Services and the Client shall pay the Contract Price in respect of the Services.
2.5 - Unless otherwise noted herein, this Contract may only be amended, modified or waived by written agreement of the parties. Any additional work performed shall be governed by these terms and conditions.
3 - Price
3.1 - The Contract Price and all other amounts payable under this Contract or exclusive of VAT, sales tax and all other duties and taxes, which shall be payable in addition by the Client.
3.2 - Upon notice to the Client, PSE 2 Limited may vary the Contract Price if following the date of this Proposal there is any change in applicable rate of exchange or taxes.
3.3 - If withholding taxes are imposed by any authority in respect of payments due, the Client shall deduct and pay such withholding taxes on a timely basis (unless PSE 2 Limited has previously provided the Client with evidence satisfactory to the applicable authority that tax is not applicable to such payments). If withholding taxes are deducted, the Client shall pay a grossed up amount to PSE 2 Limited such that the net amount, after such deduction is equal to the amount that the PSE 2 Limited would have received from the Client had withholding been applicable.
4 - Payment
4.1 - PSE 2 Limited shall invoice the Client in accordance with the payment plan set out in its Proposal or, if none, monthly. Payment of invoices shall be made by the Client in full, without deduction or set off, within 30 days of the date of invoice, in the currency invoiced. PSE 2 Limited may require an upfront payment or a revocable letter of credit, and shall not be obliged to commence the Services until this is received.
4.2 - In the event of late payments, PSE 2 Limited shall be entitled to:
(i) charge interest at the rate of 8% per annum and calculated on a daily basis until the payment is received in clear funds, and recover any administrative cost;
(ii) suspended further Services with no liability to the Client as a result of such suspension. The Client shall be liable to pay PSE 2 Limited costs of such suspension.
5 - Delivery and title
5.1 - PSE 2 Limited shall endeavour to achieve any agreed dates for performance or delivery, but all such dates are estimates and PSE shall have no liability to the Client in the event of the failure to achieve such dates.
5.2 - Unless stated otherwise in the Proposal, the Contract Price is based on Services carried out within PSE 2 Limited's usual business hours and on PSE 2 Limited's premises.
5.3 - PSE 2 Limited may vary or cancel the Contract if PSE 2 Limited is unable to proceed as anticipated through and availability of equipment, personnel or other reason.
5.4 - Unless the Client provides PSE 2 Limited with notice within seven days of receipt of the Deliverable, the Client shall be deemed to have accepted the Deliverable.
Notwithstanding delivery, title in any Deliverables shall not pass to the Client until payment of the Contract Price has been received by PSE 2 Limited together with all of the sums which are or become due from the Client.
6 - Warranty
6.1 - Services shall be provided by such PSE 2 Limited employees as PSE 2 Limited considers suitable to undertake the work. PSE 2 Limited warrants that Services shall be undertaken using reasonable skill and care and any Deliverables generated as a result shall be free from material errors or omissions, subject to:
(i) Quality and accuracy of the information and order materials provided by the Client;
(ii) correct installation and maintenance in respect of any design Deliverables;
(iii) for distribution of newsletters, updates or similar information, PSE shall take reasonable care to ensure the information contained is accurate. However, PSE relies on third-party sources and therefore, does not warrant or represents that such information is complete or free from errors or inaccuracies.
6.2 - PSE 2 Limited's liability is limited to the provision of Services of the same nature as those originally provided to correct errors or omissions, subject to notice being given by the Client within three months from the completion of Services.
7 - Liability
7.1 - Save as stated in clause 6.1, to the extent permissible at law, all warranties, condition, guarantees or representations as to satisfactory quality, performance, merchantability, fitness for particular purpose or otherwise, whether express or implied by statute or otherwise, oral or in writing are hereby excluded.
7.2 - PSE 2 Limited shall in no circumstance be liable for:
i) Any indirect, special or consequential loss
ii) Loss of profits
iii) Loss of business
iv) Loss of product
v) Loss of use
vi) Loss of Contract
vii) Loss of goodwill
viii) Punitive and/or exemplary damages; even if such loss was or should have been in PSE 2 Limited's contemplation up on entering the Contract.
7.3 - Notwithstanding anything else contained herein, PSE does not exclude (a) liability for death or personal injury resulting from negligence; or (b) fraudulent misrepresentation.
7.4 - PSE 2 Limited's liability, whether in breach of Contract and tort (including without limitation negligence) shall not exceed in the aggregate of 120% of the Contract Price.
7.5 - The Client is advised to insure any other losses excluded all limited by clause 7
7.6 - PSE 2 Limited’s shall not be liable for any claim or court proceedings which are brought against it more than 12 months after the event which is the subject of these proceedings.
8 - IPR and License
8.1 - All IPR in any Deliverables and other items produced as a result of Services shall be exclusive property of PSE 2 Limited. PSE 2 Limited grants Clients a non-exclusive, non-transferable, non-sublicensable, personal license to use the Deliverables for its internal business purposes as anticipated by the Proposal only.
8.2 - Any software provided to the Client under the Contract shall be, subject to the rights of third parties, remain the property of PSE 2 Limited and use therefore by the Client shall be subject to the terms of PSE 2 Limited’s applicable software license and any third party software license.
8.3 - If the Services include any modelling, simulation or software modelling, all Deliverables and other items produced as a result of the Services shall be the exclusive property of PSE 2 Limited. Any software used by PSE 2 Limited, shall be for PSE 2 Limited’s employees use only and shall remain PSE 2 Limited’s exclusive property.
9 - Client obligations
9.1 - The Client shall provide PSE 2 Limited with access, free of charge, to its personnel, premises, transport, accommodation, office facilities, suitable storage space for PSE 2 Limited's equipment, documentation, data, information and any other material set out in the Proposal or otherwise upon the reasonable request of PSE 2 Limited.
9.2 - PSE 2 Limited shall not be liable in respect of any damage to the Client provided material which appears as a result of the proper performance of PSE 2 Limited
9.3 - Following completion of the Services under the Contract, or upon PSE 2 limited request, all Clients provided materials and equipment shall be collected from PSE 2 Limited within a period of 2 months. If not collected, PSE 2 Limited shall be entitled to give the Client 1 month’s written notice after which PSE 2 Limited shall have the right to dispose of the materials and equipment by sale or otherwise. The Client shall be liable to PSE 2 Limited for all reasonable storage and disposal costs (less the proceeds from any sales made).
9.4 - Where meetings are requested by PSE 2 Limited, the Client shall make the correct people (with decision-making authority) available to attend on a timely basis.
9.5 - Where PSE 2 Limited request accurate information and this is not provided in a timely manner by the Client, PSE 2 Limited may make assumptions based on its own knowledge. Any assumptions shall be documented and where appropriate agreed with the Client. PSE 2 Limited shall not be held liable for any delay or error caused by relying on an assumption.
9.6 - The Client undertakes to provide a suitable and safe working environment for PSE 2 Limited’s Employees. PSE 2 Limited’s Employees shall observe the Client’s reasonable site regulations, as notified by PSE 2 Limited.
9.7 - The Client shall obtain all import / export licenses, visas or other consents required, or where required to be applied for in PSE 2 Limited’s name, the Client shall provide assistance where required. Any delay or denial of such consents shall be subject to Clause 11.
9.8 - The Client shall indemnify PSE 2 Limited from any and all claims and losses, including but not limited to claims by a third party, which arise as a result of the wilful, reckless or negligent act or omission of the Client or its employees, agents or sub-contractors or as a result of any breach by the Client or its employees, agents or subcontractors of any of its obligations under the Contract.
9.9 - The Client warrants that no bribes (as defined under the Bribery Act 2010 and similar legislation including but not limited to the US Foreign Corrupt Practices Act, the UK Anti-terrorism, Crime and Security Act 2001 and legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention Against Corruption) have been or shall be offered to, paid to or received from any party or third party in connection with the Contract. The Client warrants that no other offences have been or shall be committed in connection with the Contract. The Client warrants that is has proper procedures and policies in place in compliance with the Bribery Act 2010 and similar legislation
9.10 - When representatives of PSE 2 Limited visit Client premises or third party premises at the direct or indirect request of the Client (i.e. where such visits are necessary to perform its obligations under the Contract), any delay or additional costs including but necessarily limited to site specific inductions, safety passports or other industry standard certifications, where such requirements were not notified in advance of the Contract agreement, shall be paid by the Client. Any consequential delay shall be added pro-rata to the time agreed for provision of Services under the Contract.
10 - Term and Termination
10.1 - The Contract is valid until completion of the Services
10.2 - Without prejudice to any other right or remedy, either party may terminate the Contract and any associated licenses immediately upon giving notice, if the other party:
i) Commits a breach of the Contract, that is capable of remedy, and fails to remedy the breach within 30 days of receipt of notice requesting remedy;
ii) Commits a material breach of the Contract, which cannot be remedied;
iii) Is repeatedly in breach of the Contract provided notice has been given of breaches;
iv) Commits any act or omission which contravenes any relevant laws;
v) Is the subject of a bankruptcy order, becomes insolvent, makes any arrangement or composition with or assignment for the benefit of creditors, goes into either voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, has a receiver or administrator appointed over its assets or any similar event.
10.3 - In any event of termination, all sums to PSE 2 Limited shall be payable immediately (including but not limited to Services performed up to the date of termination and any costs incurred or committed to). Any termination or expiry of this Contract shall not affect the accrued rights or liabilities of either party nor shall it affect any provision hereof which is intended to continue in force on or after such termination.
11 - Force Majeure
PSE 2 Limited shall not be liable to the Client for failure to perform any of its obligations under the Contract to the extent that such failure is a result of circumstances beyond its reasonable control. Should such circumstances continue for more than 21 days, PSE 2 Limited may terminate the Contract.
12 - Confidentiality
Each part shall keep strictly confidential all information disclosed or otherwise discovered regarding the other and its products, software, know-how, the Deliverables and Services except any part of such disclosed information or data which
a) Is in or comes into the public domain without breach of this Contract;
b) The party under obligation can show:
i) Was in possession or known it prior to receipt from the other party;
ii) Was independently developed by or for it without use of such information;
iii) Was obtained by it or made available from a source other than the disclosing party without breach of any confidentiality obligations, or;
iv) Is disclosed by it with the prior written authority of the disclosing party.
13 - Assignment and Subcontracting
The Client shall not assign, subcontract or otherwise transfer any right or obligation of the Contract whether whole or in part, without the consent in writing of PSE 2 Limited.
14 - Non-Solicitation
While this Contract is in force and for a period of 12 months after completion, the Client shall not, directly or indirectly, seek to employ or otherwise engage the Services of any PSE 2 Limited employees, who have been involved in the Contract of performance of Services.
15 - Entire Agreement
Except for any applicable license agreements between the parties, the Contract contains the whole agreement between the parties and supersedes any previous agreements, communications and representations. No oral representations made by PSE 2 Limited or PSE 2 Limited Employees are binding. Neither part has relied on any representations or collateral warranty which is not set out in the Contract. All other terms and conditions are expressly excluded except those prohibited by statute.
16 - Waiver
No waiver of any breach of any provision of the Contract shall be held as a waiver of any other subsequent breach and the failure of a party to enforce any provision shall not be a waiver of any right subsequently to enforce any other provision.
17 - Severability
If any of the words or provision of this Contract is deemed invalid, illegal or unenforceable for any reason, then the Contract shall be read as if the relevant words or provisions are, the extent required, deleted and the validity of the remaining provisions shall not be affected.
18 - Notices
Any notice required to be given by either party under this Contract shall be deemed to have been given if in writing and sent by post to the other party’s trading address (where the trading address is that address specified in the Contract). Notices are deemed served 24 hours after posting. Any other communication may be by post, email or fax
19 - Rights of Third Parties
No person who not a party to the Contract shall have rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of the Contract.
20 - Governing Law and Jurisdiction
The Contract shall be governed, construed and shall take effect in accordance with the laws of England and Wales, and all disputes arising shall be subject to the exclusive jurisdiction of the Courts of England and Wales to which the Client and PSE 2 Limited irrevocably submit.