Terms of Service

PART A

INTERPRETATION

In these “Conditions”:

“Client” means the buyer of Services from VERBITECH;

“Contract” means the agreement between the Client and VERBITECH for the supply of Services;

“Force Majeure Event” shall have the meaning given in paragraph 1.4 of Part C;

“liability in relation to”shall mean “liabilities, losses, damages, costs (including without limitation legal costs on a full indemnity basis and value added tax and other applicable taxation), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with”;

“Order” means the order form, including any applicable specification, submitted by the Client to VERBITECH for Services;

“Services” means the services agreed to be provided to the Client by VERBITECH;

“VERBITECH” means Verbitech Limited;

“Supplies” means the Services to be supplied under the Contract; and

“Working Day” means a day which is not a Saturday, Sunday or public holiday in London, England.

 

 

PART B

SERVICES

1.         APPLICABILITY

1.1                 The Conditions shall apply without variation to every Contract entered into by VERBITECH for the supply of Services to the Client unless a variation thereto is expressly agreed in writing by a director of VERBITECH. These Conditions shall apply notwithstanding any inconsistency between them and the terms and conditions of any form of contract sent by a Client of VERBITECH.

 

2.                  ORDERS

2.1                 A quotation for the Services given by VERBITECH shall not constitute an offer. A quotation shall only be valid for a period of twenty (20) Business Days from its date of issue.

2.2                The Client’s order for Services constitutes an offer by the Client to purchase the Service in accordance with these Conditions. The Client is responsible for ensuring that the terms of the order and any applicable specification submitted by the Client are complete and accurate.

2.3                VERBITECH shall not be obliged to accept any order from the Client.

2.4                The Client’s order shall only be deemed to be accepted when VERBITECH issues a written acceptance of the order, or, if earlier, when VERBITECH commences work on Services, at which point the Contract shall come into existence.

2.5                The Contract constitutes the entire agreement between the parties and the Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of VERBITECH which is not set out in the Contract.

 

3.                  COMPLETION

3.1                 Where an order is accepted, VERBITECH will endeavour to adhere to any completion dates agreed but does not guarantee that any Services will be delivered by such dates and VERBITECH shall not be liable for any loss or damage of any kind howsoever arising by reason of any failure on the part of VERBITECH to deliver at such stated dates.

3.2                VERBITECH shall not be liable for any delay in completion of the Services that is caused by a Force Majeure Event or the Client’s failure to provide VERBITECH with adequate delivery instructions or any other instructions that are relevant to the supply of the Services.

 

4.                  INVOICES

4.1                 VERBITECH may invoice the Client for the Services on or at any time after the completion or as otherwise contemplated in the Order.

4.2                An invoice shall be deemed conclusively correct and binding on the Client in respect of the Services to which the invoice relates if the Client has not in good faith queried the invoice by notice in writing to VERBITECH within the applicable credit period as defined in paragraph 5.1of this Part C, such notice specifying the reason claimed for non-payment together with reasonable evidence to authenticate that claim. 

4.3                Invoices shall be subject to correction or amendment by VERBITECH at any time.

 

5.                  PAYMENT

5.1                 Subject to Paragraph 5.2 of this Part B, the Client shall pay all invoices in pounds sterling to such bank account as VERBITECH from time to time specifies, in full and cleared funds within the terms stated on the face of the invoice and, if not so stated, within twenty Business Days of the date of the invoice (“the Credit Period”).

5.2                If the Client has a bona fide reason to dispute any invoice:

5.2.1                the Client shall notify VERBITECH in writing within the credit period stated on the face of the invoice, such notice specifying in reasonable detail the reason for the dispute; and

5.2.2                each of VERBITECH and the Client shall use its reasonable endeavours in good faith promptly to resolve a dispute concerning any invoice; and

5.2.3                the Client shall pay the undisputed amount of such invoice in accordance with paragraph 6.1 of this Part C.

5.3                Without limiting VERBITECH's remedies if payment is overdue, the Client shall indemnify VERBITECH against any legal fees and other costs of collection and (as well after as before judgment) shall pay to it a sum equal to any loss suffered by VERBITECH arising from exchange rate fluctuations and interest on such sum and on the amount overdue at the then current statutory rate, calculated from the date payment fell due until the date of actual payment and VERBITECH may cancel the Contract and any other contracts with, and suspend deliveries to, the Client.

5.4                VERBITECH shall be entitled at its discretion to charge interest on any overdue amount at a rate equal to 4% above the base rate of NatWest Bank plc from time to time in force. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.

5.5                If the Agreement is a Consumer Transaction within paragraph 2(i) Consumer Transactions (Restrictions on Statements) Order 1976 (as amended) nothing in this clause 9 or otherwise in the Contract affects or will affect the statutory rights of the Client.

5.6                No statutory or other warranty, condition or representation of any kind whatsoever (including without limitation any relating to satisfactory quality, suitability or fitness for any purpose of the Client) is given or to be implied.  The only warranties, conditions or representations made are those expressly stated to be such and contained within the Contract documents.

 

6.                  PRICE

6.1                 The price of Services sold and purchased hereunder shall be fixed from time to time by VERBITECH as quoted to the Client or, if no price is quoted, the price shall be the price set out in VERBITECH’s published price list in force as at the date of delivery.

6.2                Prices are shown on invoice net of all discounts given and are exclusive of VAT and all other tax and duty which, if applicable, will be charged at the applicable rate. All invoices must be paid in full without deduction, withholding, counter-claim, credit or set off.

 

7.                   NON COMPLIANCE

If the Client becomes subject to any of the following events, or VERBITECH reasonably believes that the Client is about to become subject to any of them and notifies the Client accordingly, then, without limiting any other right or remedy available to VERBITECH, VERBITECH may cancel or suspend all further performance of any Services under any contract between the Client and VERBITECH without incurring any liability to the Client, and all outstanding sums in respect of Services provided to the Client shall become immediately due:

7.1.1                the Client fails to pay any invoice on or before the due date for such invoice;

7.1.2                the Client is in material breach of any of these Conditions;

7.1.3                the Client 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;

7.1.4                the Client 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;

7.1.5                (being a company) 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 Client, other than for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;

7.1.6                a creditor or encumbrancer of the Client 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;

7.1.7                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 Client;

7.1.8                a floating charge holder over the Client's assets has become entitled to appoint or has appointed an administrative receiver;

7.1.9                a person becomes entitled to appoint a receiver over the Client's assets or a receiver is appointed over the Client's assets;

7.1.10               any event occurs, or proceeding is taken, with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in paragraph 7.1.3 to clause 7.1.9 (inclusive) of this Part B;

7.1.11               the Client suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;

7.1.12               the Client's financial position deteriorates to such an extent that in VERBITECH's opinion the Client's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

7.1.13               any act or conduct of the Client and/or its employees, agents or sub-contractors, in the reasonable opinion of VERBITECH, interferes with or threatens any of VERBITECH’s and/or its suppliers’ rights, or is in breach of any applicable law, or materially and/or adversely affect the interests and/or reputation of VERBITECH and/or its suppliers.

  

PART C

LIABILITY

1.         LIMITATIONS AND/OR EXCLUSIONS OF LIABILITY

1.1                Nothing in these Conditions shall limit or exclude VERBITECH's liability for:

1.1.1                death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

1.1.2                fraud or fraudulent misrepresentation;

1.1.3                breach of the terms implied by section 12 of the Sale of Goods Act 1979;

1.1.4                defective products under the Consumer Protection Act 1987; or

1.1.5                any matter in respect of which it would be unlawful for VERBITECH to exclude or restrict liability.

1.2                Subject to paragraph 1.1 of this Part C, VERBITECH’s liability to the Client for breach of any Contract, these Conditions or otherwise in connection with the supply of Services (arising for whatever reason including without limitation by way of negligence or any other tort, breach of contract, misrepresentation, breach of statutory duty, indemnity or otherwise) shall be limited to the price paid by the Client for the Services to which such liability relates or (as applicable) shall be limited to their repair or, replacement or if this is not possible.  Without limiting the foregoing VERBITECH shall not be liable for any lost or anticipated profits or savings or any special incidental or consequential losses or damages (including without limitation loss of data, loss of use of any asset, loss of revenue, profit or goodwill, business interruption, management costs or third party liability).

1.3               Subject to paragraph 1.1 of this Part C, VERBITECH shall not be liable for any loss of general profit, loss of anticipated benefit, loss of revenue, damage to reputation, loss of goodwill, business interruption, management time, third party liability, loss of use of any asset or for any consequential, special, punitive or indirect loss.

1.4                Subject to paragraph 1.1 of this Part C, neither party shall be liable for any failure or delay in performing its obligations under any Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes, failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors caused by an event described in this paragraph 1.4 of this Part C.

 

PART D

MISCELLANEOUS

1.         General Provisions

1.1                In the event of a Force Majeure Event, VERBITECH may terminate the Contract whereupon the Client shall pay a sum equal to the costs to VERBITECH to date of performing the Contract and VERBITECH’s liability shall be limited to repayment of any sums paid for unperformed Services, less such costs

1.2                VERBITECH’s rights shall not be prejudiced by any indulgence, forbearance or previous waiver extended to the Client. The Client shall not assign, charge, or otherwise dispose of any Contract or any of its rights thereunder without VERBITECH’s prior written consent

1.3               All notices or other communications under a Contract shall be in writing in English addressed to the addressee’s registered office or address stated in the Order (or other address notified to the other party) and shall be sent by hand (and thereby be deemed served when properly left at such address) or by first class pre-paid post (and thereby be deemed served 48 hours after posting)

1.4                No person who is not a party to the Contract shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy which is available apart from that Act     

1.5              Whenever the due date for payment of any amount under this Agreement is not a Working Day that payment shall instead be due on the next following day which is a Working Day

1.6              Not more frequently than once in any calendar year VERBITECH by written notice to the Client may change any provisions of these Conditions; any such change will have effect in respect of all Orders issued more than thirty (30) days after the date upon which such notice is given by VERBITECH to the Client. 

1.7               The obligations of the Client and the rights of VERBITECH under these Conditions are independent of and shall not be affected by any other rights or securities from time to time held by VERBITECH or any affiliate of VERBITECH from the Client or any other person

1.8               The Contract shall be governed and construed in all respects in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the courts of England provided that (and without prejudice thereto) VERBITECH shall be entitled to apply for any provision of conservatory measures or interim relief in any other court having jurisdiction