Terms and Conditions
Apendix1: Terms and Conditions for the Supply of Services
The Customer’s attention is particularly drawn to the provisions of clause 10.
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 5.
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 14.7.
Contract: the contract between Nexus and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from Nexus.
Customer Materials: all materials, equipment, documents and other property supplied by the Customer, including the Customer’s design pack.
Deliverables: the deliverables set out in the Proposal produced by Nexus for the Customer.
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.
Nexus: Nexus IE Limited registered in England and Wales with company number 08103112.
Nexus Materials: has the meaning set out in clause 8.6.
Order: the Customer’s order for Services.
Proposal: the description or specification of the Services provided in writing by Nexus to the Customer, as may be updated from time to time by written agreement of the parties.
Services: the services, including the Testing and the Deliverables, supplied by Nexus to the Customer as set out in the Proposal.
Tests (and Testing shall be construed accordingly): the test regime set out in the Proposal.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its successors or permitted assigns;
1.2.3 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;
1.2.4 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
1.2.5 a reference to writing or written includes 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 when Nexus issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract, including the Proposal, 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 Nexus which is not set out in the Contract or the Proposal.
2.4 Any samples, drawings, descriptive matter or advertising issued by Nexus, and any descriptions or illustrations contained in Nexus’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.
3. SUPPLY OF SERVICES AND DELIVERABLES
3.1 Nexus shall supply the Services to the Customer in accordance with the Proposal in all material respects.
3.2 Nexus shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Nexus shall carry out the Tests in accordance with the Proposal.
3.4 In the event that the Deliverable (or any part of it) fails the Tests:
3.4.1 Nexus shall not manufacture the Deliverable (unless and until the Deliverable passes any further Tests carried out by Nexus); and
3.4.2 Nexus shall have the right to immediately terminate the agreement, without liability, in accordance with clause 11.1.1.
3.5 Nexus may, at its absolute discretion, agree to conduct further Tests on the Deliverable. Any such further testing shall be done on agreement by the parties as to the nature of the Tests and the costs of the Tests.
3.6 Nexus 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 Nexus shall notify the Customer in any such event.
3.7 Nexus warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order and any information it provides in the Proposal are complete and accurate;
4.1.2 co-operate with Nexus in all matters relating to the Services;
4.1.3 if applicable, provide Nexus, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Nexus;
4.1.4 provide Nexus with such information and materials, including the Customer Materials, as Nexus may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
4.1.5 if applicable, prepare the Customer’s premises for the supply of the Services; and
4.1.6 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
4.2 If Nexus’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):
4.2.1 Nexus 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 Nexus’s performance of any of its obligations;
4.2.2 Nexus shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Nexus’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Customer shall reimburse Nexus on written demand for any costs or losses sustained or incurred by Nexus arising directly or indirectly from the Customer Default.
5. DELIVERY OF THE DELIVERABLES
5.1 Nexus shall deliver the Deliverables using the method and to the location set out in the Proposal or as the parties may agree at any time after Nexus notifies the Customer that the Deliverables are ready.
5.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Nexus shall not be liable for any delay in delivery of the Deliverables that is caused by a Force Majeure Event or the Customer’s failure to provide Nexus with adequate delivery instructions or any other instructions that are relevant to the supply of the Deliverable.
5.3 Risk in Deliverables shall pass to the Customer on delivery.
5.4 Title to Deliverables shall not pass to the Customer until the earlier of:
5.4.1 Nexus receives payment in full (in cash or cleared funds) for such Deliverables; and
5.4.2 the Customer resells those Deliverables, in which case title to such Deliverables shall pass to the Customer at the time specified in clause 5.6.
5.5 Until title to Deliverables has passed to the Customer, the Customer shall:
5.5.1 store such Deliverables separately from all other goods held by the Customer so that they remain readily identifiable as Nexus’ property;
5.5.2 not remove, deface or obscure any identifying mark or packaging on or relating to such Deliverables; and
5.5.3 maintain such Deliverables in satisfactory condition. On request the Customer shall allow Nexus to inspect such Deliverables.
5.6 Subject to clause 5.7, the Customer may resell or use Deliverables in the ordinary course of its business (but not otherwise) before Nexus receives payment for the Deliverables. However, if the Customer resells the Deliverables before that time:
5.6.1 it does so as principal and not as Nexus’ agent; and
5.6.2 title to those Deliverables shall pass from Nexus to the Customer immediately before the time at which resale by the Customer occurs.
5.7 If before title to the Deliverables passes to the Customer the Customer becomes subject to any of the events listed in clause 11.2.2 to clause 11.2.12 inclusive, then, without limiting any other right or remedy Nexus may have:
5.7.1 the Customer’s right to resell Deliverables or use them in the ordinary course of its business ceases immediately; and
5.7.2 Nexus may at any time:
18.104.22.168 require the Customer to deliver up all Deliverables in its possession which have not been resold, or irrevocably incorporated into another product; and
22.214.171.124 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the relevant Deliverables are stored in order to recover them.
6. QUALITY OF THE DELIVERABLES AND TESTING
6.1 The Deliverables have been manufactured and produced in accordance with the Customer Materials. On this basis, the Deliverables are provided “as is”. Subject to clause 6.3, Nexus makes no representations and gives no warranties as to the quality, condition, state or description of the Deliverables, or their fitness or suitability for any purpose. All implied statutory or common law terms, conditions and warranties as to the Deliverables are excluded to the fullest extent permitted by law.
6.2 The Customer acknowledges that:
6.2.1 Nexus has given the Customer a reasonable opportunity to inspect and test the Deliverables; and
6.2.2 the Customer has satisfied itself as to the quality and condition of the Deliverables.
6.3 Nexus warrants that it workmanship in assembly and the parts that are supplied by Nexus will be of satisfactory quality for a period of 12 months after delivery.
7. CHARGES AND PAYMENT
7.1 In consideration of the provision of the Services by Nexus, the Customer shall pay the charges as set out in the Proposal.
7.2 Nexus shall invoice the Customer as set out in the Proposal.
7.3 The Customer shall pay each invoice submitted by Nexus:
7.3.1 within 30 days of the date of the invoice; and
7.3.2 in full and in cleared funds to a bank account nominated in writing by Nexus, and
time for payment shall be of the essence of the Contract.
7.4 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 Nexus to the Customer, the Customer shall, on receipt of a valid VAT invoice from Nexus, pay to Nexus 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.
7.5 If the Customer fails to make any payment due to Nexus under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 2% per cent per annum above Nat West PLC’s base rate from time to time. 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.
7.6 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). Nexus 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 Nexus to the Customer.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 All Customer Materials are the exclusive property of the Customer.
8.2 The Customer grants to Nexus a licence to use the Customer Materials to the extent necessary to provide the Services during the term.
8.3 The Customer shall indemnify Nexus against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Nexus in connection with any claim made against Nexus for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Nexus’ use of the Customer Materials. This clause 8.3 shall survive termination of the Contract.
8.4 Nexus assigns to the Customer, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables.
8.5 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 Nexus obtaining a written licence from the relevant licensor on such terms as will entitle Nexus to license such rights to the Customer.
8.6 All Nexus Materials are the exclusive property of Nexus.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, Proposals, 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 9 shall survive termination of the Contract.
10. LIMITATION OF LIABILITY: The Customer’s Attention Is Particularly Drawn to this Clause
10.1 Nothing in these Conditions shall limit or exclude Nexus’s liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
10.1.2 fraud or fraudulent misrepresentation; or
10.1.3 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:
10.2.1 Nexus 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
10.2.2 Nexus’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 £500,000 (five hundred thousand pounds).
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.
11.1 Without affecting any other right or remedy available to it:
11.1.1 Nexus may terminate this agreement in the event that the Deliverable fails the Tests: and/or
11.1.2 Nexus may terminate this agreement in the event that, in its reasonable opinion, there are health & safety reasons to do so, which directly relate to the Deliverable.
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:
11.2.1 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 30 days of that party being notified in writing to do so;
11.2.2 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;
11.2.3 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 (where a company) 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;
11.2.4 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;
11.2.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
11.2.6 a creditor or encumbrancer 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;
11.2.7 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);
11.2.8 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;
11.2.9 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;
11.2.10 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 11.2.2 to clause 11.2.9 (inclusive);
11.2.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
11.2.12 the other party’s financial position deteriorates to such an extent that in Nexus’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
11.2.13 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, Nexus 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 30 days after being notified in writing to do so.
11.4 Without limiting its other rights or remedies, Nexus may suspend provision of the Services under the Contract or any other contract between the Customer and Nexus if the Customer becomes subject to any of the events listed in clause 11.2.2) to clause 11.2.13, or Nexus 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
12.1 On termination of the Contract for any reason:
12.1.1 the Customer shall immediately pay to Nexus all of Nexus’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Nexus shall submit an invoice, which shall be payable by the Customer immediately on receipt;
12.1.2 the Customer shall return all of Nexus Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Nexus 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;
12.1.3 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
12.1.4 clauses which expressly or by implication survive termination shall continue in full force and effect.
13. FORCE MAJEURE
13.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Nexus including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Nexus 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.
13.2 Nexus 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.
13.3 If the Force Majeure Event prevents Nexus from providing any of the Services for more than 12 weeks, Nexus shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
14.1 Assignment and other dealings.
14.1.1 Nexus 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.
14.1.2 The Customer shall not, without the prior written consent of Nexus, 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.
14.2.1 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 or commercial courier.
14.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.2.1; 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.
14.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14.3.1 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.
14.3.2 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.
14.4 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.
14.5 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.
14.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
14.7 Variation. Except as set out in these Conditions, no variation of the Contract, including th
Introduction of any additional terms and conditions, shall be effective unless it is agreed in
writing and signed by Nexus.
14.8 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.
14.9 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).