Terms & conditions
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Definitions
In this agreement the following terms have the following meanings:-
- “Agreement” means these terms and conditions and the appendices referred to in these terms and conditions together with any amendments which may be made from time to time.
- “Associates” means those persons, firms and/or companies who or which are providing RSQA with certain specialist expertise for the Services.
- “Confidential information” means information (whether in oral, written, electronic or any other form) which is marked or notified as being proprietary or confidential or which, in the normal course of business, would be considered to be proprietary or confidential.
- “Consultants” means the personnel providing the services.
- “Contract Currency” means the currency in which the Client is to make payment, as more particularly referred to in Appendix 2 of this agreement.
- “Party” means either RSQA or the Client and “Parties” means RSQA and the Client.
- “Services” means the services/work set out in Appendix 1 of this agreement.
- “Site” means any site or premises on or in which the Consultants provide the Services excluding any site or premises owned or leased by or rented to RSQA or the Consultants or any of them.
- “Third Parties” means those persons, firms or companies who or which may be the subject or receiver of the services and Third Party shall be interpreted accordingly.
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Scope of Agreement
The Services shall be provided by the Consultants on the terms and conditions contained in this agreement. RSQA shall be responsible for the provision of the Services, not withstanding the use of Associates.
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Remuneration and Payment
- The Client shall pay RSQA for the services in the amount and manner provided for in Appendix 2 of this Agreement.
- RSQA shall invoice the Client each time a payment is to be made and the Client shall pay each invoice within twenty eight days of the date of the relevant invoice.
- Unless otherwise agreed or otherwise set out in Appendix 2 of this agreement all payments shall be made to RSQA:
- by telegraphic transfer to such bank and account as shall be nominated from time to time by RSQA and
- the contract currency and
- free of any cost of transmission or exchange of currency.
- If the Client does not pay within the the twenty eight day period referred to in sub-clause 3.2, then RSQA reserves the right to charge interest on any overdue amount on a daily basis at a rate of five per cent over the base rate from the time that the payment is due to the time that the payment is made. The base rate shall be that published from time to time by the bank nominated by RSQA under the provisions of sub-clause 3.3. The Client shall pay any interest so charged.
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Intellectual Property Rights
- Copyright in all training material prepared as part of the Services shall remain vested in RSQA unless otherwise agreed in writing.
- Copyright in those parts of reports and documentation which show the Client’s Confidential Information shall vest in the Client when payment for such reports and/or documentation has been received by RSQA.
- Neither Party shall use any copyright, trade mark, patent, design or other intellectual property right which belongs to the other Party without the prior written agreement of that other Party.
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Confidentiality
Each Party shall keep confidential the Confidential Information it receives or obtains as a result of this Agreement and/or the provision of the Services to such extent as is consistent with the nature and content of the Services.
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Client’s Responsibilities
The Client shall be responsible for ensuring that:-
- the Consultants are provided promptly with all responses, information and documentation reasonably required for the Services and
- where the consultants are working on Site:
- they are provided free of charge with such office equipment and facilities (including protective clothing) as are reasonably required by them for the provision of the Services and
- they have been made aware of any possible risks to their health and safety prior to their arrival on Site.
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Provision of the Services
- Where the Services are to be provided with reference to days, then “day” shall mean seven and a half hours of work on days other than Saturdays, Sundays and English bank and public holidays, unless otherwise agreed in writing.
- Each Consultant shall have the expertise appropriate to that part of the Services which s/he is providing and shall exercise reasonable skill, care and diligence in the provision of that part of the Services.
- RSQA will use all reasonable endeavours to ensure that, prior to commencement of work on the Services, no Consultant has
- any conflict of interest in relation to the Services or the Client and
- any previous involvement with the subject matter of the Services which would affect his/her impartiality and independence.
- Each Consultant shall abide by the reasonable and lawful directions given by the Client or any relevant Third Party in relation to the Consultant’s presence on Site. If such direction results in unforeseen cost to RSQA then the direction shall be deemed to be a request for a variation and dealt with in accordance with clause 9.
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Replacement of Consultant
The Client acknowledges that each Consultant is chosen by RSQA for his/her particular expertise. If, at any time and for any reason beyond the control of RSQA or the Consultant, a Consultant is unable to perform his/her part of the Services then RSQA shall notify the Client as soon as reasonably practicable and the Parties shall agree such variation to the Services as is reasonable in the circumstances.
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Variations to Services
- At any time during the provision of the Services the Client may request, and/or RSQA may recommend, a variation to the scope or timetable of the Services. Where RSQA makes a recommendation which is accepted in principle by the Client, then it shall be treated as if it were a request for a variation by the Client. If a Third Party requests RSQA for a variation then RSQA shall refer such request to the Client and shall take no further action unless the Client so instructs.
- Within five days (or such other reasonable period of time as is agreed between the Parties) of the Client’s request for a variation RSQA shall provide the Client with a written notification of the effect which the proposed variation will have on the scope of the Services, the timetable, the charges and the payment schedule. Unless otherwise agreed, the Client shall be responsible for the cost to RSQA of investigating the effect of the proposed variation and of providing the notification. The Client shall instruct RSQA in writing within five days of receipt of the notification whether it wishes RSQA to proceed with the proposed variation.
- If the Client instructs RSQA to proceed with a proposed variation then this Agreement shall be deemed to be amended accordingly.
- Until RSQA receives instructions to proceed with a variation the Consultants shall continue to provide the Services and the Client shall continue to fulfil its responsibilities as if the variation was not being considered.
- Any act or omission of the Client, a Third Party or the employees, agents or subcontractors of the Client or any Third Party, which results in extra costs being incurred by RSQA or in any change to the Services, shall deemed to be a variation instructed by the Client and this Agreement shall be deemed to be amended accordingly.
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Liability
- Where the Consultants are working on Site:-
- RSQA shall be responsible for any death of or injury to persons to the extent that any such death or injury is due to the negligence of RSQA or the Consultants.
- RSQA shall be responsible for any loss of or damage to the tangible property of the Client or any Third Party to the extent that such loss or damage is due to the negligence of RSQA or the Consultants. Under this paragraph 10.1(b) RSQA’s aggregate liability to the Client and/or Third Parties (whether such liability arises in contract, tort (including negligence) or for breach of statutory or other duty) shall be £500,000.
- The Client shall be responsible for the death of or injury to any of the Consultants and for the loss of or damage to the Consultants tangible property to the extent that such death or injury, loss or damage, is due to the negligence of the Client, and/or any Third Party and/or any of their respective employees, agents and/or subcontractors.
- Unless the nature of the advice clearly indicates otherwise, RSQA shall have no responsibility for the way in which the Client or any Third Party acts on any advice which it may be given as part of the Services.
For any liabilities in respect of the Services, whether arising in contract, tort (including negligence) or for breach of statutory or other duty, RSQA’s total aggregate liability to the Client and/or Third Parties in respect of the Services (excluding the liability referred to in paragraphs 10.1(a) and 10.1(b)) shall be limited to £500,000.
- where there are Third Parties, then the Client shall indemnify RSQA against all liability to such Third Parties which RSQA may incur as a result of this agreement and/or the provision of the Services and which is in excess of those limits expressly set out in this clause 10.
- Where Consultants are Associates or provided by Associates, then those Associates are covered by the limitations of liability set out in this agreement.
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Termination
- Either Party may terminate the Services immediately by written notice to the other Party if that other Party:
- is insolvent or has a receiver, administration receiver, liquidator or trustee in bankruptcy appointed or
- is in material breach of this Agreement and has failed to remedy the breach despite being reasonable notice to do so.
- If RSQA terminates the Services then the Client shall pay RSQA for that part of the Services provided up to the date of termination and for any losses suffered or costs and expenses reasonably incurred by RSQA due to the early termination of the Services.
- If the Client terminates the Services then the Client shall pay RSQA within twenty eight days of termination such monies as are outstanding to RSQA as at the date of termination.
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Force Majeure
Neither Party shall be responsible for any failure in the performance of any of its obligations under this agreement where such failure is caused by factors which are not reasonably within that Party’s control.
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Assignment of Agreement
Neither Party may assign the whole or any part of this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
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Severability
If any provision of this Agreement is held to be unenforceable or illegal and such provision is not fundamental to this Agreement, then such provision shall be deemed severed from the Agreement and the enforceability and validity of the remainder of this agreement shall not be affected.
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Communications
All communications between the Parties (and between RSQA or the Consultants and any Third Parties) which concern the Services or any variation in the Services, or which relate to the operation and administration of this Agreement, shall be in English language and directed through the representatives referred to in Appendix 3.
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Governing Law and Jurisdiction
This Agreement shall be governed by and interpreted in accordance with the law of England and the English courts shall have exclusive jurisdiction.
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Russell Square Quality Associates Ltd.