IMechE Fife NDT Limited
Standard Terms and Conditions for the Supply of Services
The following definitions and rules of interpretation apply in these Conditions:
|“Business Day”||means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;|
|“Charges”||means the charges payable by the Customer for the supply of the Services in accordance with Clause 5 (Charges and Payment);|
|“Conditions”||means these terms and conditions;|
|“Customer”||means the individual or entity identified as the Customer placing the Order;|
|“Fife”||means IMechE Fife NDT Limited registered in England and Wales with company number 1917207;|
|“Intellectual Property Rights”||means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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;|
|“Order”||means collectively the terms of the order agreed between the Customer and Fife and these Conditions; and|
|“Services”||means the services supplied by Fife to the Customer.|
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- A reference to writing or written includes email.
2. Applicability of Terms
- The Order shall commence on acceptance of the Order by Fife, and shall expire (subject to earlier termination in accordance with the Order) once Fife has provided the Services.
- Termination or expiration of the Order shall not limit the Customer’s obligation to make payment of Charges, or any other sums due in accordance with the Order, whether such sum becomes due before or after the date of termination (and accordingly, Clause 5 shall be deemed to survive termination or expiration of the Order).
- Any samples, drawings, descriptive matter or advertising issued by Fife, and any descriptions or illustrations contained in Fife’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 Order or have any contractual force.
- These Conditions are incorporated into the Order 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
- Fife shall supply the Services to the Customer in all material respects in accordance with the requirements set out in the Order.
- Fife shall use all reasonable endeavours to meet any agreed dates for the provision of Services specified in the Order.
- Fife reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Fife shall notify the Customer in any such event.
- Fife warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Customer’s Obligations
- The Customer shall:
- ensure that the terms of the Order are complete and accurate;
- co-operate with Fife in all matters relating to the Services;
- provide Fife, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Fife where required to provide the Services;
- provide Fife with such information and materials as Fife may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
- prepare the Customer’s premises for the supply of the Services;
- obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
- comply with all applicable laws, including health and safety laws;
- keep all materials, equipment, documents and other property of Fife (“Fife Materials”) at the Customer’s premises in safe custody at its own risk, maintain Fife Materials in good condition until returned to Fife, and not dispose of or use Fife Materials other than in accordance with Fife’s written instructions or authorisation; and
- comply with all additional obligations as set out in the Order.
- If Fife’s performance of any of its obligations under the Order is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
- without limiting or affecting any other right or remedy available to it, Fife shall 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 in each case to the extent the Customer Default prevents or delays Fife’s performance of any of its obligations;
- Fife shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Fife’s failure or delay to perform any of its obligations as set out in this Clause 4.2; and
- the Customer shall reimburse Fife on written demand for any costs or losses sustained or incurred by Fife arising directly or indirectly from the Customer Default.
5. Charges and Payment
- The Charges for the Services shall be set out in the Order.
- The Customer shall pay each invoice submitted by Fife:
- within thirty (30) days of the date of the invoice (the Due Date); and
- in full and in cleared funds to a bank account nominated in writing by Fife.
- All amounts payable by the Customer under the Order are exclusive of amounts in respect of value added tax or any other sales taxes chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Order by Fife to the Customer, the Customer shall, on receipt of a valid VAT invoice from Fife, pay to Fife 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.
- If the Customer fails to make a payment due to Fife under the Order by the Due Date, then, without limiting Fife’s remedies under Clause 10, the Customer shall pay interest on the overdue sum from the Due Date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.4 will accrue each day at one percent (1%) a month.
- If the Customer fails to make a payment due to Fife under the Order by the Due Date, then, Fife will not release exam results to the Customer. If an extended Due Date is agreed in the Order, exam results will not be issued if credit terms go beyond 60 days of the date of the invoice and will be released once payment is received.
- All amounts due under the Order shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law provided in such
a case the amount of any invoice is grossed up to allow Fife to recover the full amount of the invoice and then the grossed up amount is subject to the withholding).
- With the exception of examinations, if the Services are cancelled by the Customer 14 days or more before the start date of their delivery, the Order can be transferred to alternative Services provided the Services are booked within one month of the cancellation date and delivered within six months of the cancellation date, otherwise a fee of 10% will be charged.
- With the exception of examinations, if the Services are cancelled by the Customer less than 14 days before the start date of their delivery the full fee will be charged.
- If an examination is cancelled by the Customer 48 hours or more before the time of the examination, the Order can be transferred to an alternative examination provided the examination is booked within one month of the cancellation date and the examination is within six months of the cancellation date, otherwise a fee of 10% will be charged.
- If an examination is cancelled less than 48 hours before the time of the examination a fee of 50% will be charged.
7 Intellectual Property Rights
- All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Fife.
- Fife grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Order to copy those materials (if any) specifically identified as being subject to this clause in the Order (the “Reusable Materials”) for the purpose of receiving and using the Services in its business.
- The Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 7.2.
- The Customer grants Fife a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Fife for the term of the Order for the purpose of providing the Services to the Customer.
8 Data Protection
- In this Clause 7, “Data Protection Legislation” means the UK Data Protection Act 2018 and any other applicable data protection laws and regulations in any jurisdiction from time to time.
- The Customer and Fife acknowledge that for the purposes of the Data Protection Legislation, Customer is the Data Controller and Fife is the Data Processor in respect of any Personal Data.
- Each of the parties shall comply with the requirements of the Data Protection Legislation when processing Personal Data in connection with this Agreement.
- The Personal Data that may be processed by Fife in connection with an Order and the nature of the processing activities shall be:
|Categories of data||Personal identification data Training course assessment and examination marks|
|Categories of Data Subjects||Training course attendees and examination candidates|
|Processing Operations||Recording of course assessment and examination results Passing data to IMechE Argyll Ruane and certification bodies|
|Location of Processing Operations||14 Pitreavie Court Pitreavie Business Park Dunfermline KY11 8UU United Kingdom|
|Purposes||To conduct training and examinations|
|Duration||Data will be held for the time required by the certification organisations|
- Fife shall process the Personal Data only in accordance with the Customer’s instructions (which may be specific instructions or instructions of a general nature as set out in the Order or as otherwise notified by Customer to Fife). Fife shall not be liable for any claim brought by a Data Subject arising from any action or omission by the Customer or Fife, to the extent that such action or omission resulted directly from the Customer’s instructions.
- The Customer shall indemnify Fife against all liabilities, costs, expenses, damages and losses and all other professional costs and expenses suffered or incurred by Fife arising out of or in connection with any claims made against Fife as a result of Fife processing the Personal Data in accordance with the Customer’s instructions.
- The Customer authorises Fife to transfer Personal Data outside the European Economic Area where such transfers are necessary in order to perform the Services, subject to Fife ensuring, where necessary, that a data transfer mechanism provided for by the applicable Data Protection Legislation applies and/or has been implemented to allow for the transfer of Personal Data without breach of Data Protection Legislation. The Customer consents to Fife’s use of subprocessors to assist Fife.
- Taking into account the nature of the data processing activities undertaken by Fife, Fife shall provide reasonable assistance and co-operation (at the Customer’s cost) to enable the Customer to fulfil its obligations to respond to requests from individuals exercising their rights under the Data Protection Legislation.
- Fife shall ensure that any persons used by Fife to process Personal Data are subject to legally binding obligations of confidentiality in relation to the Personal Data.
- Fife warrants that, having regard to the state of technological development and the costs of implementing any measures, it will take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to: (i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; (ii) the nature of the data to be protected; and (iii) take reasonable steps to ensure compliance with those measures.
- Taking into account the nature of the processing carried out by Fife, Fife shall assist the Customer in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the General Data Protection Regulation. The Customer will pay Fife’s reasonable costs incurred in providing such assistance.
- Fife shall make available to the Customer all information necessary to demonstrate compliance with the obligations set out in this Clause 7 and allow for and contribute to audits, including inspections, conducted by or on behalf of the Customer, provided that: (i) the Customer shall provide not less than seven (7) days’ written notice prior to carrying out an audit or inspection; (ii) the scope of the audit or inspection shall be agreed by the parties; (iii) the Customer shall use all reasonable endeavours to minimise disruption to Fife when conducting an audit or inspection; and (iv) audits shall not be undertaken more than once in any calendar year, unless required by law.
- Fife is authorised to engage third parties (subcontractor) to process the Personal Data provided that the subcontractor’s contract is on terms which are substantially the same as those set out in
the Order. For the purpose of this Clause 7.13, Fife shall remain fully liable to the Customer for the performance of its subcontractor’s data protection obligations.
- Fife shall, upon termination of the Agreement, at the choice of the Customer, delete or return all relevant Personal Data to Customer and delete all existing copies of the Personal Data unless and to the extent that Fife is required to retain copies of the Personal Data in accordance with applicable laws.
9 Limitation of Liability
- Nothing in these Conditions or any Order limits any liability which cannot legally be limited, including but not limited to liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; and
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
- Subject to Clauses 9.1 and 9.3, Fife’s total aggregate liability to the Customer shall not exceed 100% of the Charges paid by the Customer under the Order. Fife’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Order.
- Subject to Clause 9.1, the following types of loss are wholly excluded:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill;
in each case howsoever arising and whether direct or indirect, and
- indirect or consequential loss.
- Fife has given commitments in relation to the Services in Clause 3. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Conditions.
- Unless the Customer notifies Fife that it intends to make a claim in respect of an event within the notice period, Fife shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
- This Clause 9 shall survive termination or expiration of the Order.
- Without affecting any other right or remedy available to it, either party may terminate the Order with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of the Order and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of that party being notified in writing to do so;
- the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Order has been placed in jeopardy.
- Without affecting any other right or remedy available to it, Fife may terminate the Order with immediate effect by giving written notice to the Customer if:
- the Customer fails to pay any amount due under the Order on the due date for payment; or
- there is a change of control of the Customer.
- Without affecting any other right or remedy available to it, Fife may suspend the supply of Services under the Order or any other contract between the Customer and Fife if the Customer fails to pay any amount due under the Order on the due date for payment, the Customer becomes subject to any of the events listed in Clause 10.1(b) to Clause 10.1(d), or Fife reasonably believes that the Customer is about to become subject to any of them.
11 Consequences of Termination
- On termination of the Order in accordance with Clause 10:
- the Customer shall immediately pay to Fife all of Fife’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Fife shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- the Customer shall return all of Fife Materials (including any Reusable Materials). If the Customer fails to do so, then Fife 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 the Order.
- Termination or expiry of the Order shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Order which existed at or before the date of termination or expiry.
- Any provision of the Order that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Order shall remain in full force and effect.
- Force majeure. Neither party shall be in breach of the Order nor liable for delay in performing, or failure to perform, any of its obligations under the Order if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2 Assignment and other dealings.
- Subject to Clause 12.2(b) below, neither party shall be entitled to assign, novate or otherwise transfer any of its rights, benefits or obligations under the Order without the prior written consent of the other party.
- Fife may subcontract any or all of its rights, benefits or obligations under this Agreement without the prior written consent of the Customer.
- Each party undertakes that it shall not at any time during the Order, and for a period of five
(5) years after termination of the Order, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 12.3(b).
- Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Order. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 12.3; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Order.
12.4 Entire agreement.
- The Order constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party acknowledges that in entering into the Order it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Order. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Order.
- Nothing in this clause shall limit or exclude any liability for fraud.
- Variation. Except as set out in these Conditions, no variation of the Order shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- Waiver. A waiver of any right or remedy under the Order or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Order or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Order or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- Severance. If any provision or part-provision of the Order 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 Order.
- Any notice or other communication given to a party under or in connection with the Order shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Order.
- Any notice or communication shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
- 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 or at the time recorded by the delivery service; and
- if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 12.8(b)(iii), business hours means 8.45am to 5.15pm Monday to Friday on a day that is not a public holiday in the place of receipt.
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
- Any written notice sent by a party that is actually received by the intended other party shall be deemed to have been properly given and received irrespective of whether or not the delivery requirements of Clause 12.8 have been complied with.
12.9 Third party rights.
- Unless it expressly states otherwise, the Order does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Order.
- The rights of the parties to rescind or vary the Order are not subject to the consent of any other person.
- Precedence. To the extent of any inconsistencies or conflicts between the terms of the Order and these Conditions, the term of the Order shall prevail to the extent of such inconsistency or conflict.
- Governing law. The Order, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.
- Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Order or its subject matter or formation.