Batty France Terms and Conditions [02/17]
Supply of Services
“Business Day” Means a day other than a Saturday, Sunday or a public holiday.
‘Contract’ – Means the contract between Batty France and the Client for the supply of Services in accordance with these Conditions
‘Client’ – means the person, company or other entity who purchases the Services from Batty France
‘Batty France’ – means Batty France Consultancy which is the trading name of YBA Consultancy a partnership based at 1 Cross Rosse Street, Shipley, BD18 3SX
‘Quote’ – any quote for Services provided by Batty France
In these Conditions, the following rules apply :
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- A reference to a party includes its personal representatives, successors or permitted assignees;
- 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;
- 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
- A reference to writing or written includes e-mails.
Basis of Contract
These Conditions shall apply to each Contract made between the Client and Batty France.
The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Batty France which is not set out in the Contract.
These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Any Quote given by Batty France shall not constitute an offer, and the prices and other specifications identified on it will be current for the number of days specified on the face of the Quote.
The Services are as described in the Quote.
Batty France reserves the right to amend the services if required.
The Client shall:
- Ensure that the terms of the Order are complete and accurate;
- Provide Batty France, its employees, agents, consultants and subcontractors, with unrestricted and continuous access to the Client’s site, premises, office accommodation and other facilities as reasonably required by Batty France;
- Provide Batty France with such information and materials as Batty France may reasonably require, and ensure that such information is accurate in all material respects;
Charges and payment
The price for services shall be the price set out in the Quote (“the Price”).
The Price shall be paid (in cleared funds) in accordance with the terms set out in the Quote or in the absence of any relevant terms in the Quote, monthly and within 14 days of the date of invoice.
Time for payment shall be of the essence of the Contract.
All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (‘VAT’). Where any taxable supply for VAT purposes is made under the Contract by Batty France to the Client, the Client shall, on receipt of a valid VAT invoice from Batty France, pay to Batty France such additional amounts in respect of VAT as are chargeable on the supply of the Goods at the same time as payment is due for the supply of the Goods.
Without limiting any other right or remedy of Batty France, if the Client fails to make any payment due to Batty France under the Contract by the due date for payment (‘Due Date’), Batty France shall have the right to charge interest on the overdue amount at the rate of 8 per cent per annum accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Batty France in order to justify withholding payment of any such amount in whole or in part. Batty France may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Batty France to the Client.
Intellectual Property Rights
All Intellectual Property Rights in or arising out of or in connection with the Goods shall be owned by Batty France.
All Batty Frances’ Materials are the exclusive property of Batty France.
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 or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
Limitation of liability
Nothing in these Conditions shall limit or exclude Batty Frances’ liability for:
- Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
- Fraud or fraudulent misrepresentation;
- Breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
- Breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
Subject to the above:
- Batty France shall under no circumstances whatever be liable to the Client, 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
- Batty Frances’ total liability to the Client 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 the Price.
- Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
This clause shall survive termination of the Contract.
Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
- The other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 60 days after receipt of notice in writing of the breach;
- 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) 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;
- 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];
- 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 the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
- The other party (being an individual) is the subject of a bankruptcy petition or order;
- 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 7 days;
- 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);
- A floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
- 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;
- The other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
- 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.
Without limiting its other rights or remedies, Batty France may terminate the Contract with immediate effect:
- If the Client has failed to comply with the above clauses;
- Effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
Without limiting its other rights or remedies, Batty France shall have the right to suspend all further deliveries of Services under the Contract or any other contract between the Client and Services if:
- The Client fails to make pay any amount due under this Contract on the due date for payment; or
- The Client becomes subject to any of the breach events listed above, or Batty France reasonably believes that the Client is about to become subject to any of them
Consequences of Termination
On termination of the Contract for any reason:
- The Client shall immediately pay to Batty France all of Batty Frances’ outstanding unpaid invoices and interest and, in respect of Services provided but for which no invoice has yet been submitted, Batty France shall submit an invoice, which shall be payable by the Client immediately on receipt;
- The accrued rights and remedies of the parties as at termination shall not be affected, 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
- Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
- For the purposes of this Contract, ‘Force Majeure’ Event means an event beyond the reasonable control of Batty France including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party 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, lack of supplies of materials, fire, flood, storm, adverse weather or default of Batty France or subcontractors.
- Batty France shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
- Batty France may at any time assign, transfer, charge or subcontract 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.
- The Client shall, without the prior written consent of Batty France (not to be unreasonably withheld), assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
- Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business or communicated by e-Mail
- This clause shall not apply to the service of any proceedings or other documents in any legal action which shall be issued by regiwstered post only
Waiver and cumulative remedies:
- A waiver of any right under the Contract 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 under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
- If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
- If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
Variation: Except as set out in the Order and these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Batty France.
Governing law and jurisdiction: 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.