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The Client shall provide to the Company access to such resources during normal business hours and shall procure all licences as the Company shall require to perform its obligations under the Agreement.
In consideration of payment of the fees set out in the Statement of Work the Company shall provide the Services in accordance with the Statement of Work and these terms and conditions.
Payment of Fee:
The Company shall invoice the Client for payment of the fees and the Client shall pay them to the Company as specified and at the time stated in the Statement of Work (the “Due Date”).
Where the payment of any invoice or any part of an invoice is not made in accordance with this Agreement, the Company, without prejudice to its other rights under this Agreement or in law, shall be entitled to:- Charge interest ( both before and after judgement) on the outstanding amount at the rate of 4 per cent per annum above the Company’s bank’s base rate from the Due Date until the date of payment in full; Suspend / Termination any services to be performed by the Company for the Client under this Agreement or any other arrangement;
In addition to the fees for Services the Client shall reimburse all expenses reasonably and properly incurred by the Company in the performance of the Services at any location including but not limited to travel, subsistence and accommodation expenses. Such expenses will be recharged at cost. The Company shall maintain adequate records of such expenses and, at the Client’s reasonable request, shall produce copies for inspection. These expenses may be invoiced monthly in arrears detailing the nature of the expense incurred and the person who incurred the expense. The Company will agree with the Client in advance the nature and scope of these expenses.
The Company and the Client agree that when the Company’s staff including its agents and sub-contractors, are present on the Client’s premises they shall be fully appraised by the Client of all rules, regulations and policies relating to the health and safety of personnel and security on those premises and they shall comply with such rules, regulations, procedures and policies. The Client is entitled to deny access to the Site to any of the Company’s staff who in the Client’s reasonable opinion constitute a threat to the Client’s security or that of its Site, systems or equipment.
Each of the Client and the Company agrees that for the period of the Agreement and until expiry of twelve months after termination of the Agreement it shall not without the prior written agreement of the other party knowingly employ or engage on any basis or offer employment or engagement to any staff of the other party who have been associated with the provision of the Services to the Client.
During the provision of the Services the Company shall provide periodic status reports setting out the progress of the Services at intervals agreed by the parties. The parties shall hold progress meetings if one of the parties requests this by giving at least one week’s prior written notice.
The Company shall perform the Services with reasonable care and skill. The Client will promptly notify the Company of any breach of the warranties contained in the Agreement as soon as practicable upon becoming aware of it and use reasonable endeavours to do so within 14 days. The Company will be entitled and obliged to remedy such breach within a reasonable time from receipt of notification (which shall not be greater than 30 days unless otherwise agreed between the parties). This Clause 14 states the Company’s entire liability with regard to any breach of the warranties contained in the Agreement.
No implied terms
Except as expressly stated in these terms and conditions, all warranties, undertakings, duties, terms and conditions, whether express or implied by statute, common law or otherwise (including but not limited to fitness for purpose) are excluded to the fullest extent permitted by law.
The successful and timely performance by the Company of the Services is dependent upon the Client’s prompt performance of its obligations under the Agreement. The Client agrees to make available to the Company an authorised representative who will: Be authorised to make binding decisions for the Client with regard to the Agreement, including any change to the Services; Review all documents, including the draft Deliverables, provided by the Company for review so that corrections or changes may be made by the Company; and Provide the Company with all reasonable information and documentation concerning the Client’s operations and activities which may be required by the Company for the performance of the Services. The Client will be responsible and liable for all third party actions or omissions where such third party are under the control of the Client.
The Client and the Company shall retain all right, title and interest (including all Intellectual Property Rights) in all documents, software, data or other materials which constitute the pre-existing works or proprietary items belonging to them respectively and which are provided for use in connection with the performance of the Services. The Client grants to the Company a non-exclusive royalty free licence to use these items belonging to the Client to perform the Services. Upon termination of the Agreement the Company shall return to the Client or destroy, at the Client’s option, such documents, software, data or other materials, provided that if the Client does not notify the Company of its election within one (1) month following termination, the Company shall be entitled to dispose of those items in any reasonably appropriate manner.
Neither party excludes or limits liability to the other party for: Death or personal injury caused by its negligence or that of its subcontractors or agents; Fraud; or breach of the implied terms as to title as set out in section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982.
Limitation of liability
Subject always to clause 22, the entire aggregate liability of the Company under or in connection with the Agreement, whether for tort (including negligence) misrepresentation, breach of contract, breach of common law or otherwise, shall not exceed one hundred percent (100%) of the fees paid to the Company by the Client in any twelve month period prior to the relevant claim arising.
The Company shall effect and maintain adequate insurance cover at its own cost with a reputable insurance company to cover the liability accepted by it under the terms of the Agreement and shall, at the Client’s reasonable request, produce reasonable evidence of the insurance policy.
The client shall be responsible for IT security in accordance with industry best practices including the ISO27000 Series in connection with the performance of its obligations.
Unless already known or in the public domain or required by law the parties undertake at all times to keep confidential and not to use or to disclose to any third party without the other party’s prior written consent any confidential information supplied by the other party or obtained as a result of the Agreement (or any discussions prior to execution of the Agreement) including all information (in whatever form) relating to the other party’s business, technology and customers and the terms of the Agreement. The parties shall procure that any third party or subcontractor to whom information is disclosed pursuant to the Agreement is made aware of and complies with obligations of confidentiality equivalent to those set out in these terms and conditions.
Termination – Default
Either party may terminate the Agreement forthwith by notice in writing to the other party where the other Party has committed a material Default and where such Default is capable of remedy has failed to remedy such Default within thirty (30) days of receiving notice specifying the Default and requiring its remedy. Unless terminated earlier the Agreement shall continue until the Services have been fully performed and all fees and expenses have been paid.
Consequences of termination
Termination of the Agreement shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue to either party and all provisions which are to survive this agreement or impliedly do so shall remain in force and in effect.
Neither party shall be liable for any delay or failure to perform its obligations under the Agreement where such delay or failure is due to circumstances beyond its control (“Force Majeure Event”) provided that as soon as reasonably possible after the start of the Force Majeure Event, the affected party notifies the other party of the Force Majeure Event, the date on which it started, its anticipated duration and the anticipated effect of the Force Majeure Event on the affected party’s ability to perform its obligations.
Each party undertakes to the other party to comply with the Data Protection Act 1998 and shall procure that its employees, agents and subcontractors shall observe the provisions of that Act.
A person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of the Agreement.
Any notice to be given under the Agreement must be in writing and delivered to the registered office address or principal place of business of the party to be served and shall be deemed served two days after despatch by first class post or immediately on delivery if hand delivered.
Variation and waiver
No failure, delay, relaxation or forbearance on the part of either party in exercising any power or right under the Agreement shall operate as a waiver of such power or right or of any other power or right. Any change to the Agreement shall only be valid if it is in writing and signed by the parties.
The Agreement is personal to the Client and the Client shall not assign the benefit of or any interest in or subcontract any obligation under the Agreement.
Except to the extent of any misrepresentation or breach of warranty which constitutes fraud, these terms and conditions and the Statement of Work together constitute the entire agreement between the parties relating to the subject matter of the Agreement.
Law and Jurisdiction
The Agreement shall be governed by and construed in accordance with Laws of England and Wales and each party agrees to submit to the exclusive jurisdiction of the English Courts.