1. INTERPRETATION

1.1  Definitions

In these Conditions, the following definitions apply:

• Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
• Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6.
• Commencement Date: has the meaning set out in clause 2.2.
• Conditions: these terms and conditions as amended from time to time in accordance with clause 16.7.
• Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
• Customer: the person or firm who purchases Services from the Supplier.
• Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
• Lost Days: means days where one or more Resource having been scheduled to deliver Services to the Customer but who is/are not able to provide those Services on those days due to rescheduling requested by the Customer.
• Location: means the agreed location for the provision of the Services from time to time.
• Order: the Customer’s order for Services pursuant to clause 2.2.
• Resource: means any of the Supplier’s staff, officers, representatives or any contractor or third party engaged by the Supplier and involved in the delivery of the Services.
• Services: the services supplied by the Supplier to the Customer as set out in the Specification.
• Specification: the description or specification of the Services provided in writing by the Supplier to the Customer, which for the avoidance of doubt includes information supplied in any quotation provided by the Supplier in respect of the Services.
• Supplier: RFL Systems Ltd registered in England and Wales with company number 08054813.
• Supplier Materials: has the meaning set out in clause 5.1(g).

1.2 Construction

In these Conditions, the following rules apply:

• (a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
• (b) a reference to a party includes its successors or permitted assigns;
• (c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
• (d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
• (e) a reference to writing or written includes faxes and e-mails.

2. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted on the earlier of:

• (a) the Supplier issuing written acceptance of the Order; or
• (b) the Supplier allowing the provision of Services to commence in accordance with the Specification,

nat which point and on which date the Contract shall come into existence (Commencement Date).

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.

2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

3. SUPPLY OF SERVICES

3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.

3.2 The Supplier shall use all reasonable endeavours to meet any performance dates set out in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

4. RESOURCES

4.1 The Services shall, subject to the prior approval of the Customer, be performed by such Resource(s) as the Supplier may from time to time determine. The Supplier shall be permitted to replace or substitute any individuals involved in the delivery of the Services by giving not less than 2 days prior written notice to the Customer.

4.2 The Customer shall notify the Supplier immediately if it reasonably believes that any Resource is unsuitable to provide the Services or becomes aware of any other matter that indicates a Resource may be unsuitable. Such notification shall be made in writing and shall include the grounds for the Customer’s dissatisfaction with the Resource.

5. CUSTOMER’S OBLIGATIONS

5.1 The Customer shall:

• (a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
• (b) co-operate with the Supplier in all matters relating to the Services;
• (c) provide the Supplier and its Resources with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier
• (d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
• (e) where necessary prepare the Customer’s premises for the supply of the Services;
• (f) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and
• (g) keep and maintain all materials, equipment, documents and other property of the Supplier (<strong>Supplier Materials</strong>) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation.

5.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

• (a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
• (b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
• (c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

6. CHARGES AND PAYMENT

6.1 Unless the Specification states otherwise, the Charges for the Services shall be on a time and materials basis:

• (a) the Charges shall be calculated in accordance with the Supplier’s daily fee rates as set out in the Specification;
• (b) the Supplier’s standard daily fee rates for each individual are calculated on the basis of a seven-hour day from 9.00am to 5.00pm on a Business Day;
• (c) any attendance required to perform the Services by the Supplier or any Resource at any location other than the Location shall be charged by the hour on a pro-rata basis calculated by reference to the full daily rate;
• (d) services delivered at the Location will be charged by the day or half day. For the avoidance of doubt, a half day unit will be 3.5 hours and will be calculated by reference to the full daily rate;
• (e) weekend working is solely at the discretion of the Resource. Weekend charges will be at the standard daily fee rate plus 50% calculated on a pro-rata basis for each part day or for any time worked during the weekend;
• (f) the Supplier shall be entitled to charge an overtime rate of the standard daily fee rate plus 50% calculated on a pro-rata basis for each part day or for any time worked by a Resource outside the hours referred to in clause 6.1(b);
• (g) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by any Resource including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials. All Resources will be instructed to follow the Customer’s travel and expenses policies; and
• (h) the Supplier shall allow 2 hours travel time per day per Resource. Any additional travelling time shall charged on a pro-rata basis calculated by reference to the standard daily rate.

6.2 The Supplier reserves the right to increase its daily fee rates, provided that such charges cannot be increased more than once in any 12 month period. The Supplier will give the Customer written notice of any such increase 6 weeks before the proposed date of the increase.

6.3 If the Customer wishes to book or schedule a particular Resource in advance, the Supplier reserves the right to require payment of the Charges in advance or payment of a deposit of such percentage of the Charges as may be determined by the Supplier in its absolute discretion.

6.4 If the scheduling of any Resource is varied, amended, changed, or modified by the Customer then the following will apply:

• (a) no charge will be applied where the Customer gives 21 or more days prior written notice of the required changes;
• (b) if the Customer gives prior written notice of between 6 days and 20 days of the required changes a charge of 50% of the value of any Lost Days will be applied to the Customer; and
• (c) if the Customer gives prior notice of up to 5 days of the required changes a charge of 100% of the value of any Lost Days will be applied to the Customer.

6.5 The Supplier shall be permitted to charge an administration fee of £100 in respect of the processing and implementation of any material contractual variations requested by the Customer.

6.6 Unless the Specification states otherwise, the Supplier shall invoice the Customer monthly in advance.

6.7 The Customer shall pay each invoice submitted by the Supplier:

• (a) on or before the 14th day after the date of the invoice; and
• (b) in full and in cleared funds by direct bank transfer to a bank account nominated in writing by the Supplier,

time for payment shall be of the essence of the Contract.

6.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

6.9 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per cent per annum above the Bank of England’s base rate from time to time until the debt falls within the scope of the Late Payment of Commercial Debts Regulations 2013 (as may be amended from time to time), at such point interest shall be charged at the prevailing statutory rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

6.10 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.

7.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

7.3 All Supplier Materials are the exclusive property of the Supplier.

8. CONFIDENTIALITY

8.1 A party (receiving party) 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 receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 8 shall survive termination of the Contract.

8.2 The Customer agrees not to discuss the details of Charges, pricing, or fees with any Resource involved in the provision of the Services.

9. DATA SECURITY

9.1 The Supplier acknowledges that, in the course of its engagement by the Customer, the Supplier may receive or have access to confidential information belonging to the Customer which is kept in electronic format (Customer Data).

9.2 The Supplier confirms that its collection, access, use, storage, disposal and disclosure of the Customer Data does and will comply with applicable data protection laws, as well as all other applicable legislation.

9.3 The Supplier shall implement administrative, physical and technical safeguards to protect Customer Data that are no less rigorous than accepted industry practices, and shall ensure that all such safeguards, including the manner in which Customer Data is collected, accessed, used, stored, processed, disposed of and disclosed, comply with applicable legislation.

9.4 At a minimum, the Supplier’s safeguards for the protection of Customer Data shall include:

• (a) limiting access to Customer Data to authorised Resources;
• (b) securing business facilities, data centres, paper files, servers, back-up systems and computing equipment, including, but not limited to, all mobile devices and other equipment with information storage capability;
• (c) implementing network, device application, database and platform security;
• (d) securing information transmission, storage and disposal;
• (e) implementing authentication and access controls within media, applications, operating systems and equipment;
• (f) encrypting sensitive confidential information stored on any mobile media;
• (g) encrypting sensitive confidential information transmitted over public or wireless networks; and
• (h) implementing appropriate personnel security and integrity procedures and practices

10. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

10.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

• (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
• (b) fraud or fraudulent misrepresentation; or
• (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

10.2 Subject to clause 10.1:

• (a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
• (b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 25% of the total amount payable by the Customer to the Supplier under the Contract in any 12 month period.

10.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

10.4 This clause 10 shall survive termination of the Contract.

11. TERMINATION

11.1 Unless the Specification states otherwise, and without limiting its other rights or remedies, either party may terminate the Contract by giving the other party 3 months’ written notice.

11.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

• (a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
• (b) 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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
• (c) 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;
• (d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) 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;
• (e) the other party (being an individual) is the subject of a bankruptcy petition or order;
• (f) 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 (being a company);
• (g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
• (h) 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;
• (i) 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 clause 11.2(b) to clause 11.2(h) (inclusive);
• (j) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;\r\n\r\n(k) the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
• (l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

11.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 3 Business Days after being notified in writing to do so.

11.4 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 11.2(b)) to clause 11.2(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

12. CONSEQUENCES OF TERMINATION

On termination of the Contract for any reason:

• (a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
• (b) the Customer shall return all of the Supplier Materials which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
• (c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
• (d) clauses which expressly or by implication survive termination shall continue in full force and effect.

13. NON-SOLICITATION

The parties agree that neither of them will, without the written permission of the other party, either on their own account or in partnership or association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during, or for a period of twelve months from, the end of the term of this agreement, solicit, entice away, attempt to entice away, employ, engage directly, contract with, contract through a third party, or authorise the taking of such action by any other person, any key executive or (in the case of the Supplier) any Resource of the other party who has been involved in the provision of the Services during the term of the Contract.

14. AUDIT AND RECORD KEEPING

14.1 The Supplier shall keep and maintain for a period of one year after the agreement has been completed, or as long a period as may be agreed between the parties, full and accurate records of the agreement including, in particular:

• (a) the services provided by the Supplier under this agreement;
• (b) all expenditure reimbursed by the Customer; and
• (c) all payments made by the Customer.

14.2 The Supplier shall on request provide the Customer such access, on reasonable notice and within normal working hours, to those records as may be reasonably required in connection with this agreement.

15. FORCE MAJEURE

15.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier 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.

15.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

15.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 2 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

16. GENERAL

16.1 Assignment and other dealings:

• (a) The Supplier may at any time assign, transfer, mortgage, charge, 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.
• (b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

16.2 Notices:

• (a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
• (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
• (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

16.3 Severance:

• (a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
• (b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

16.4 Waiver: A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.5 No partnership or agency: Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

16.6 Third parties: A person who is not a party to the Contract shall not have any rights to enforce its terms.

16.7 Variation: Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Supplier.

16.8 Governing law: This 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.

16.9 Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).