Standard Commercial Terms

Services

a. Elementary Business Solutions Ltd (EBS) shall provide the services set out in the estimate to the Customer (“Services”);

b. EBS shall provide additional services provided the said additional services are agreed in writing by way of an additional estimate and signed by both Parties.

c. EBS shall use all reasonable endeavours to complete the Services by the agreed completion date;

 

Payments:

a. Fixed amounts: In consideration for the Services, the Customer shall pay the fees described in the schedule 14 days after the invoice date. 

b. All reasonable expenses properly and necessarily incurred by EBS, such as delivery, travel and overnight accommodation, shall be reimbursed by the Customer upon request.

c. All sums under this Agreement are exclusive of Value Added Tax which where applicable will be paid by the Customer to EBS in addition, shall be paid in pound sterling by bank transfer and without deduction of income tax or other taxes charges or duties that may be imposed, except insofar as the Customer is required to deduct the same to comply with applicable laws.

 

4. Warranties, liability and indemnities:

a. Each of the Parties warrants that it has the power to enter into this Agreement and has obtained the necessary approvals to do so.

b. Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.

c. Except in the case of death or personal injury caused by EBS’s negligence, EBS’s liability under or in connection with this Agreement, whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the sum of the total monies paid to EBS hereunder in aggregate.

d. Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs, or expenses or any nature whatsoever incurred or suffered by that other Party that (a) are of an indirect or consequential nature or (b) consist of any economic loss or loss of turnover, profits, business or goodwill.

 

5. Confidentiality

a. Each Party shall:

i. Maintain in confidence any information provided to it directly or indirectly by the other Party under, or in anticipation of, this Agreement, taking such reasonable security measures as it takes to protect its own confidential information and trade secrets;

ii. Use such information only for the purposes of performing its obligations under this Agreement; and

iii. Not disclose such information to any other person, other than to employees and consultants who (in each case) have accepted obligations of confidentiality and non-use equivalent to the provisions of this Clause 5 and who need to have access to such information in connection with the performance of this Agreement.

b. The obligations set out in 5 a. above shall not apply to any information which the Party receiving the information (“Receiving Party”) can prove by written records:

i. Was already lawfully in its possession prior to receiving it from the other Party;

ii. Was already in the public domain when it was provided by the other Party;

iii. Subsequently enters the public domain through no fault of the Receiving Party;

iv. Is received from a third party who has the lawful right to provide it to the Receiving Party without imposing obligations of confidentiality;

v. Is required to be disclosed by an order or any court of competent jurisdiction or governmental authority provided that reasonable efforts shall be used by the Receiving Party to secure a protective order or equivalent over such information and provided further that the other Party shall be informed as soon as possible and be given an opportunity, if time permits, to make an appropriate representation to such court or authority to attempt to secure that the information is kept confidential.

 

6. Duration and Termination:

a. This Agreement shall come into effect on the agreement date and unless terminated earlier in accordance with this Clause 6, shall continue in force until all obligations on either Party under this Agreement have been fulfilled.

7. Force Majeure and Delay: Neither Party shall have any liability or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party, such as delays caused by 3 rd Party vendors. In the event of delays howsoever caused by Customer or 3 rd Party vendors ES reserves the right to invoice for the additional costs reasonably incurred by ES as a direct or indirect result of said delays. ES reserves the right to invoice for the full amount of the Fees in the event the Practical Completion and/or Go Live Dates are delayed as if those dates were not delayed provided the delay is not caused by ES’s own breach of this Agreement or wilful or gross negligence.

8. Amendment: This Agreement may only be amended by way of amendment agreement in writing signed by duly authorised representatives of EBS and the Customer.

9. Assignment: Neither Party shall assign, mortgage, charge or otherwise transfer any rights or obligations under this Agreement without the prior written consent of the other Party.

10. No failure or delay on the part of either Party to exercise any right or remedy under this Agreement shall be construed or operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy.

11. If the provision or part of this Agreement is held to be invalid, amendments to this Agreement may be made by the addition or deletion of wording as appropriate to remove the invalid part or provision but otherwise retain the provision and the other provisions of this Agreement to the maximum extent permissible under applicable law.

12. Neither Party shall act or describe itself as the agent of the other, nor shall it make or represent that it has authority to make any commitments on the other’s behalf.

13. The Schedule to this Agreement shall form part of this Agreement as if set out here.

14. Any notice shall be in writing and shall be sent by first class mail or email to the address of the relevant Party set out at the head of this Agreement or Schedule.

15. This Agreement, including its Schedules, sets out the entire agreement between the Parties and supersedes all prior oral or written agreements, arrangements or understandings between them. The Parties acknowledge they are not relying on any representation, agreement, term or condition which is not set out in this Agreement.

16. The validity, construction and performance of this Agreement shall be governed by English Law and shall be subject to the exclusive jurisdiction of the English courts to which the parties hereby submit.

17. This Agreement does not create any right enforceable by any person who is not a party to it under the Contracts (Rights of Third Parties) Act 1999.