AGREED TERMS OF SALE
1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
Contract:The Customer’s purchase order and Apex Ideas’ written acceptance of it, or the Customer’s acceptance of an Order Form for Services provided by Apex Ideas, or the Customer’s acceptance of a Contract Proposal issued by Apex Ideas under condition 2.2.
Customer: the person, firm or company who purchases Services from Apex Ideas.
Customer’s Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
Deliverables: all documents, products and materials developed by Apex Ideas or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
Document: includes, without limitation, 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.
In-put Material: all Documents, information and materials provided by the Customer relating to the Services including (without limitation), computer programs, data, reports and specifications, images and past design work.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, 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.
Apex Ideas: Apex Ideas a sole trader trading at 55 Kingston Road, Oxford, OX2 6RH
Pre-existing Materials: all Documents, information and materials provided by Apex Ideas relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications.
Services: the services to be provided by Apex Ideas under the Contract as set out in the Order Form, together with any other services which Apex Ideas provides, or agrees to provide, to the Customer.
VAT: value added tax chargeable under English law at the percentage rate applicable at the time invoices are raised or any similar additional tax.
Order Form: the document issued to the customer by Apex Ideas before any work commences and which details the work proposed to be carried out by Apex Ideas, the approximate time for completion of each work stage, the costs, invoice points and payment terms.
1.2 Headings in these conditions shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The schedules form part of the Contract.
1.5 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.
1.6 A reference to writing or written includes faxes and e-mail.
1.7 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.8 References to conditions and schedules are to the conditions and schedules of the Contract.
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall:
apply to and be incorporated into the Contract; and
prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer’s acceptance of the Order Form for Services provided by Apex Ideas constitutes a legally binding agreement by the Customer to purchase the Services in accordance with these specific Conditions. No alternative terms or conditions generated or communicated by the Customer through their purchase order or related communications shall be accepted by Apex Ideas other than when a written acknowledgement issued and executed by the Proprietor of Apex Ideas.
Specifically when a contract for the supply and purchase of the Services on these Conditions will be established, the Customer’s standard terms and conditions (if any) attached to; enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3 Order Forms are issued by Apex Ideas on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that Apex Ideas has not previously withdrawn it.
3. COMMENCEMENT AND DURATION
3.1 The Services supplied under the Contract shall be provided by Apex Ideas to the Customer from the date of acceptance by Apex Ideas of the Customer’s offer and agreement in accordance with condition 2.2.
3.2 Subject to condition 11, the Services supplied under the Contract shall continue to be supplied unless the Contract is terminated by one of the parties giving to the other not less than 1 months’ written notice or until the brief detailed in the Order Form is complete.
4. SUPPLIER’S OBLIGATIONS
4.1 Apex Ideas shall use reasonable endeavors to provide the Services, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Order Form.
4.2 Apex Ideas shall use reasonable endeavors to meet any performance dates specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 Apex Ideas shall use reasonable endeavors to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at any of the Customer’s premises and that have been communicated to it under condition 5.1(e), provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
co-operate with Apex Ideas in all matters relating to the Services;
provide Apex Ideas, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by Apex Ideas;
provide to Apex Ideas, in a timely manner, such
In-put Material and other information as Apex Ideas may reasonably require and ensure that it is accurate in all material respects;
be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services, including identifying, monitoring, removing and disposing of any hazardous materials from any of its premises in accordance with all applicable laws, before and during the supply of the Services at those premises, and informing Apex Ideas of all of the Customer’s obligations and actions under this condition 5.1(d);
inform Apex Ideas of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises;
ensure that all Customer’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; and
obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and the use of In-put Material insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the Services are to start.
5.2 If Apex Ideas’ performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Apex Ideas shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.3 The Customer shall be liable to pay to Apex Ideas, on demand, all reasonable costs, charges or losses sustained or incurred by Apex Ideas (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 Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to Apex Ideas confirming such costs, charges and losses to the Customer in writing.
6. CHARGES AND PAYMENT
6.1 In consideration of the provision of the Services by Apex Ideas, the Customer shall pay the charges as set out in the Order Form.
6.2 The total price for the Services shall be the amount set out in the Order Form. The total price shall be paid to Apex Ideas without deduction or set-off as detailed in the payment terms section of the Order Form.
6.3 The parties agree that Apex Ideas may review and increase the charges in the Order Form, giving reasonable notice to the Customer and an explanation of why the charges will be increased.
6.4 The Customer shall pay each invoice submitted to it by Apex Ideas, in full and in cleared funds, within 14 days of receipt to a bank account nominated by Apex Ideas.
6.5 The Customers payment of any invoice for goods or services delivered by Apex Ideas, confirms the customers full acceptance that invoiced goods or services have been successfully delivered to the customers satisfaction and effectively terminates the contractual agreement in accordance with clause 11.
6.6 Subject to clause 6.5, Apex Ideas shall not make any refund nor issue any credit in relation to the completed Contract.
6.7 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Apex Ideas on the due date, Apex Ideas may:
charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. Apex Ideas may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and suspend all Services until payment has been made in full.
6.8 Time for payment shall be of the essence of the Contract.
6.9 All sums payable to Apex Ideas under the Contract shall become due immediately on its termination, despite any other provision. This condition 6.9 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
6.10 Apex Ideas may, without prejudice to any other rights it may have, set off any liability of the Customer to Apex Ideas against any liability of Apex Ideas to the Customer.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 As between the Customer and Apex Ideas, all Intellectual Property Rights and all other rights in the Pre-existing Materials shall be owned by Apex Ideas. Apex Ideas will own all Intellectual Property Rights in the Deliverables unless a written license or assignment of Intellectual Property Rights is entered into by the parties. Subject to condition 7.2, Apex Ideas licenses all such rights to the Customer free of charge and on a non-exclusive basis in the country that the product is intended for use to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Contract terminates, this licence will automatically terminate.
7.2 The Customer acknowledges that, where Apex Ideas does not own any Pre-existing Materials, the Customer’s use of rights in Pre-existing Materials is conditional on Apex Ideas obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle Apex Ideas to license such rights to the Customer.
7.3 After any Intellectual Property is licensed or assigned by Apex Ideas to the Customer, Apex Ideas may cooperate with the Customer in taking all reasonable steps required by the Customer in connection with any infringement of the Intellectual Property. The Customer will be responsible for the payment of costs of any legal proceedings it requires, and all costs incurred by Apex Ideas.
8. CONFIDENTIALITY AND APEX IDEAS’ PROPERTY
8.1 The Customer 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 Customer by Apex Ideas, its employees, agents, consultants or subcontractors and any other confidential information concerning Apex Ideas’ business or its products which the Customer may obtain.
8.2 The Customer may disclose such information:
to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract; and as may be required by law, court order or any governmental or regulatory authority.
8.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 8.
8.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
8.5 All materials, equipment and tools, drawings, specifications and data supplied by Apex Ideas to the Customer (including Pre-existing Materials) shall, at all times, be and remain as between Apex Ideas and the Customer the exclusive property of Apex Ideas, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Apex Ideas, and shall not be disposed of or used other than in accordance with Apex Ideas’ written instructions or authorization.
9 LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
9.1 This condition 9 sets out the entire financial liability of Apex Ideas (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
any breach of the Contract;
any use made by the Customer of the Services, the Deliverables or any part of them; and
any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these Conditions limits or excludes the liability of Apex Ideas:
for death or personal injury resulting from negligence; or
for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Apex Ideas.
9.4 Subject to condition 9.2 and condition 9.3 Apex Ideas shall not be liable 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.
Apex Ideas’ 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 in any 1-month period.
The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of Apex Ideas in connection with the Services.
11.1 The Contract between the parties will terminate when all services as specified in the itemised section of the Order Form have been supplied as confirmed by the customers payment of completion invoice.
11.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
the other party commits a material breach of any of the terms of the Contract 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
the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
a creditor or encumbrance of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
any event occurs, or proceeding is taken, with respect to the other
party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 11.1(d) to condition 11.1(j) (inclusive); or
the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
11.3 The parties acknowledge and agree that any breach of conditions 11.2 shall constitute a material breach for the purposes of this condition 11.
11.3 On termination of the Contract for any reason:
the Customer shall immediately pay to Apex Ideas all of Apex Ideas’ outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Apex Ideas may submit an invoice, which shall be payable immediately on receipt;
the Customer shall, within a reasonable time, return all of Apex Ideas’ Pre-existing Materials and Deliverables. If the Customer fails to do so, then Apex Ideas may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
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.
11.5 On termination of the Contract (however arising), conditions 6,7,8,9,11 and 21 shall survive and continue in full force and effect.
12. FORCE MAJEURE
Apex Ideas shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of Apex Ideas 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 suppliers or subcontractors.
13.1 Apex Ideas 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. If Apex Ideas requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
13.2 Subject to condition 13.1, no variation of the Contract or these Conditions 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 the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
14.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
15.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
15.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16. ENTIRE AGREEMENT
16.1 The Contract constitutes the whole agreement between the parties with exception to clauses in the Contract Proposal that conflict with this and supersedes all previous agreements between the parties relating to its subject matter.
16.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), as expressly provided in the Contract.
16.3 Nothing in this condition shall limit or exclude any liability for fraud.
17.1 The Customer shall not, without the prior written consent of Apex Ideas, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
17.2 Apex Ideas may at any time assign, transfer, charge, mortgage, 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.
17.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
18. 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.
19. 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.
20.1 Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of Apex Ideas at 55 Kingston Road, Oxford, OX2 6RHand in the case of the Customer, its nominated representatives, or as otherwise specified by the relevant party by notice in writing to the other party.
20.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address and for the contact referred to in clause 20.1 or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
20.3 This condition 20 shall not apply to the service of any notice in any proceedings or other documents in any legal action.
20.4 A notice or other communication required to be given under or in connection with the Contract shall not be validly served if sent by e-mail.
21. GOVERNING LAW AND JURISDICTION
21.1 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.
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, the Contract or its subject matter or formation (including non-contractual disputes or claims).