2.1 The Contractor shall provide the Services to the Client in consideration for the Client paying the Charge to the Contractor, subject to the provisions of these Terms and Conditions.
2.2 These Terms and Conditions may be extended to cover additional documents not referred to in the Quotation if the Parties agree in writing and also agree any additional Charge in respect of those additional documents. If so agreed the Contractor shall perform the Services in respect of such additional documents and such additional documents shall be deemed to form part of the Original Documents for the purposes of these Conditions.
3. Location and time for completion of the Services
3.1 Unless otherwise agreed the Contractor shall provide the Services at such premises under the Contractor's control or ownership as the Contractor may in its discretion select provided always that none of the Services shall be performed or provided outside the United Kingdom.
3.2 Where the Contractor is responsible for collecting the Original Documents from the Client, unless expressly stated otherwise in the Quotation neither the Contractor nor any of its employees or agents shall be required to sign any detailed receipt for the Original Documents. In the event that the Client, Contractor or any of its employees or agents do sign a detailed receipt for the Original Documents it is acknowledged that the that Contractor, its employees and agents are unlikely to have had sufficient time to check and verify such detailed receipt and that therefore signature of a detailed receipt shall not be conclusive evidence that each and every one the documents detailed in that receipt were collected. Similarly, where the Client has arranged delivery of Original Documents to the Contractor, either directly themselves or through a third party, it is acknowledged that the that Contractor, its employees and agents are unable to verify the specific content of documents until the data/documents has been scanned or processed.
3.3 The Contractor shall use reasonable endeavours to collect the Original Documents from the Client on or by the date indicated in the Quotation or in any subsequent written communication between the Parties but such date shall be treated as being indicative only. The Client shall co-operate in enabling the Original Documents to be collected.
3.4 The Services will usually be completed within the timescale stated in the Quotation or, if no timescale is mentioned in the Quotation, within 30 days of the Original Documents being collected from the Client, but time shall not be of the essence in this respect. For the purposes of these Terms and Conditions the Services shall be deemed to have been completed once the Contractor has delivered to the Client that number of copies of electronically scanned copies of the Original Document by such method and/or on such media as set out in the Quotation.
3.5 In the event that the Contractor shall fail to complete the Services within any stated time period the Client shall be entitled to serve notice on the Contracting making time of the essence. All notices making time of the essence shall allow the Contractor a minimum of 30 days from the date of that notice to complete the Services. In the event that the Contractor shall fail to complete the Services within the time scale mentioned in that notice the Client shall be entitled to terminate the Agreement. In the event of termination in such circumstances:
(i) the Client shall be released from the obligation to pay for the Services provided always that where a separate date is set out in the Quotation for completion of different parts of the Services such release shall not apply to any part of the Services which have been completed prior to such termination; and
(ii) the Contractor shall have no further liability to the Client in respect of its failure to complete the Services by the due date.
3.6 Following delivery of electronically scanned copies of the Original Document to the Client either by USB drive or secure upload the Contractor shall confidentially destroy the Original Documents, where agreed in the Quotation, by shredding the same and disposing of the shredded documents at an authorised commercial waste disposal or recycling site. The Contractor shall not shred the Original Documents prior to the expiration of a minimum of 14 days from the date that the electronically scanned copies of the Original Documents have been delivered to the Client. Such minimum period of 14 days may be extended at the request of the Client for a further period not exceeding 28 days provided that such request is communicated in writing to the Contractor in good time prior to the expiration of the initial period of 14 days and provided also that the Contactor has acknowledged that request. In such circumstances the Original Documents shall not be destroyed until the expiration of that extended period. The Contractor shall however be entitled to charge reasonable storage charges for storing all Original Documents after the initial period of 14 days. The Contractor will provide a Certificate of Destruction upon request. The Contractor will retain an electronic copy of scanned data for a period of 30 days after delivery of such data, after 30 days all electronic data will be permanently deleted unless specifically requested by the Client to retain such data. The Contractor may make an additional charge for back up of such data but the Client accepts it is their responsibility to ensure all data is securely backed up through other means and the Contractor is not liable for loss of such additional back up of data.
4. Charges and payment
4.1 The Contractor shall invoice the Charges to the Client following completion of the Services, or where a separate Charge is set out in the Quotation for different parts of the Services, following completion of that part of the Services. Such Charges shall be payable within 30 days of the date of the invoice and before delivery for new Clients or those who present a credit risk to the Contractor. The Client shall not be entitled to deduct or set off any amount from the Charges without the written consent of the Contractor.
4.2 The Quotation (and in particular the Charges detailed therein) shall be valid for 30 days from the date of the Quotation unless stated otherwise. If the Quotation is not accepted by the Client within that period it shall irrevocably lapse.
4.3 All Charges set out in the Quotation are exclusive of VAT, which will be charged in addition at the rate in force at the time the Client is required to make payment.
4.4 If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in these Terms and Conditions then the Contractor shall be entitled to:
(i) charge interest on the outstanding amount at the rate of 5% a year above the base lending rate of HSBC Bank plc, accruing daily;
(ii) require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and
(iii) not perform any further Services (or any part of the Services).
4.5 When making a payment the Client shall quote relevant reference numbers and the invoice number.
4.6 If upon receipt of the Original Documents the Contractor determines, in its discretion, that the process of scanning the same will be substantially hampered by the poor quality of the Original Documents it shall notify the Client of the same and shall at the same time indicate to the Client the additional cost that will be incurred because the process of scanning the same will be so hampered. Upon receipt of such notice the parties will negotiate in good faith in order to agree a revised amount of the Charges and if such revised amount is agreed it shall become ‘the Charge's for the purposes of the Agreement. If such revised amount is not agreed the Contractor shall be entitled either:
4.6.1 to perform the Services for the Charges originally agreed; or
4.6.2 terminate the Agreement pursuant to clause 10.2.2.
5. The Client's obligations
5.1 The Client shall:
5.1.1 co-operate with the Contractor, as the Contractor reasonably requires, regarding the collection of the Original Documents and in answering any queries that the Contractor may have regarding the Original Documents; and
5.1.2 ensure that the Client's staff and agents co-operate and assist the Contractor as may be reasonably required.
6.1 The Client shall review the electronically scanned copies of the Original Document within 3 days of receipt of the same and shall inform the Contractor within that period whether any documents contained in the Original Documents have either not been scanned or if the quality of such scan means that the electronic copy of the same is illegible. If the Client informs the Contractor within that period that any such documents have not been scanned or that the electronic copy of the same is illegible then the Contractor re-scan the same at no extra charge.
6.2 The Client acknowledges that where the quality of any document contained in the Original Documents is of poor quality that the electronic copy of the same is also likely to be of poor quality and the Contractor shall not be liable for the poor quality of the electronic copy in such circumstances.
6.3 The Client acknowledges that following delivery of the electronic copies of the Original Documents to the Client that the Original Documents will be destroyed following the expiration of the time period set out in clause 3.6. The Contractor shall have no liability to the Client for any losses (of whatever type) that the Client may suffer as a consequence of the Original Documents being destroyed after the expiration of that said period.
6.4 The Contractor reserves to terminate these Terms and Conditions by written notice to the Client for any of the following reasons:
6.4.1 if upon receiving the Original Documents the Contractor is of the opinion that it will not be able to make legible electronic copies of the same or a substantial part of the same; or
6.5.2 if the Client is in breach of any of the terms of the Agreement including any term set out in these Terms and Conditions.
7.1 The Contractor shall keep the confidential information of the Client (including but not limited to any confidential information contained in the Original Documents) confidential and secret. The Contractor shall inform its officers, employees and agents of the Contractor's obligations under the provisions of this clause 7.1, and ensure that its officers, employees and agents meet such obligations.
7.2 The obligations set out in clause 7.1 shall not apply to any information that:
7.2.1 was known by or in the possession of the Contractor before it was provided to the Contractor by the Client;
7.2.2 is, or becomes, publicly available through no fault on the part of the Contractor;
7.2.3 is provided to the Contractor, without restriction or disclosure, by a third party who did not breach any confidentiality obligations by making such a disclosure; or
7.2.4 is required to be disclosed by order of a court of competent jurisdiction.
7.3 This clause 7 shall survive for a period of 7 years from the date on which the Services are completed or, if earlier, the date on which the Agreement is terminated for any reason.
8. Use of sub-contractors
8.1 The Contractor is permitted to use other persons to provide some or all of the Services. The contractor currently uses Restore Plc to assist with shredding and/or recycling. Should the Contractor choose to change or add sub-contractors they will endeavour to update these Terms and Conditions.
8.2 The Contractor shall be responsible for the work of a sub-contractor to the same standard as stated in these Terms and Conditions.
9. Warranties, liability and indemnities
9.1 Subject as set out in clause 6, the Contractor warrants that it will use reasonable care and skill in performing the Services to the standard generally accepted within the industry.
9.2 If the Contractor performs the Services (or any part of the Services) negligently or materially] in breach of the Agreement, then, if requested by the Client, the Contractor will (if possible) attempt to re-perform the relevant part of the Services, subject to clauses 9.3 and 9.4 below. The Client's request must be made within 7 days of the date on which the electronic copies of the Original Documents are delivered to the Client.
9.3 Except in the case of death or personal injury caused by the Contractor's negligence, the liability of the Contractor under or in connection with the Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever shall not exceed the Charge(s) paid by the Client to the Contractor under the Agreement.
9.4 The Contractor shall not be liable to the Client in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.
9.5 Each of the Parties acknowledges that, in entering into these Terms and Conditions, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in the Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from the Agreement to the fullest extent permitted by law. Nothing in these Terms and Conditions excludes liability for fraud.
10.1 Without prejudice to the other remedies or rights a Party may have, either Party may terminate the Agreement, at any time, on written notice to the other Party (Other Party) if:
10.1.1 the Other Party is in breach of any of its material obligations under the Agreement and, if the breach is capable of remedy within 7 days, the breach is not remedied with 7 days of the Other Party receiving notice which specifies the breach and requiring the breach to be remedied; or
10.1.2 if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party's assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt provided always that the Client shall only be entitled to terminate the Agreement pursuant to this clause 10.2.2 if any of the matters referred to in this clause occur prior to completion of the Services.
10.2 The Contractor may terminate the Agreement within 14 days of collecting the Original Documents if the Contractor determines, in its absolute discretion, that the quality of the Original Documents is such that:
10.2.1 it will be unable to provide electronic copies of the same which will be legible; or
10.2.2 the process of scanning the same will be substantially hampered by the poor quality of the Original Documents and no agreement is reached pursuant to clause 4.6 to increase the Charges to compensate the Contractor for the extra time that will be spent in scanning the same.
10.3 If the Agreement is properly terminated by the Contractor, the Client shall pay for all Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by the Contractor for the performance of the Services prior to the date of termination. In particular where the Agreement is terminated in accordance with clause 10.2 the Client shall pay the Contractor such proportion of the Charges (not exceeding 25% of the total amount of the Charges) as reasonably reflects the time spent by the Contractor in reviewing or preparing the Original Documents and attempting to scan the same
10.4 If the Agreement is properly terminated by the Client, the Client shall be released from the obligation to pay all or any part of the Charges.
11.1 Force majeure
Neither Party shall have any liability under or be deemed to be in breach of the Agreement for any delays or failures in performance of the Agreement that result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances exist for a continuous period of more than 14 days, either Party may terminate the Agreement by written notice to the other Party.
The Agreement (including these Terms and Conditions) may only be amended in writing signed by duly authorised representatives of the Parties.
Subject to the following two sentences, neither Party may assign or otherwise transfer any or all of its rights and obligations under the Agreement without the prior written agreement of the other Party. The Contractor shall be entitled to assign its right to receive the Charges to a third party without the consent of the Client. A Party may assign and transfer all its rights and obligations under these Terms and Conditions to any person to whom it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under the Agreement.
11.4 Entire agreement
The Agreement (including these Terms and Conditions) contains the whole agreement between the Parties in respect of the subject matter of the Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter. The Parties confirm that they have not entered into the Agreement on the basis of any representation that is not expressly incorporated into the Agreement. Nothing in these Terms and Conditions excludes liability for fraud.
No failure or delay by either Party in exercising any right, power or privilege under the Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in the Agreement are cumulative and not exclusive of any rights and remedies provided by law.
11.6 Agency, partnership etc
The Agreement and these Terms and Conditions shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in the Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
If any provision of the Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, that provision shall, to the extent required, be severed from the Agreement and rendered ineffective as far as possible without modifying the remaining provisions of the Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of the Agreement.
No Party shall issue or make any public announcement or disclose any information regarding the Agreement without the consent of the other Party. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
In these Terms and Conditions unless the context otherwise requires:
11.9.1 words importing any gender include every gender;
11.9.2 words importing the singular number include the plural number and vice versa;
11.9.3 words importing persons include firms, companies and corporations and vice versa;
11.9.4 references to numbered clauses are references to the relevant clause in these Terms and Conditions;
11.9.5 any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
11.9.6 the headings to the clauses, schedules and paragraphs of these Terms and Conditions are not to affect the interpretation;
11.9.7 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
11.9.8 where the word ‘including' is used in these Terms and Conditions, it shall be understood as meaning ‘including without limitation'.
Any notice to be given under these Terms and Conditions shall be in writing and shall be sent by first class mail or delivered personally to the address of the relevant Party set out in the Quotation.
11.11 Law and jurisdiction
The validity, construction and performance of the Agreement and these Terms and Conditions shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
11.12 Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of these Terms and Conditions, these Terms and Conditions are not intended to, and do not, give any person who is not a party to it any right to enforce any of its provisions.