Terms & Conditions

1. Application

The following terms and conditions apply to all orders accepted by Intend Business Development Ltd.  All work carried out is subject to these terms and conditions except where changes are expressly agreed in writing.  These terms and conditions should be read together with the Proposal Letter.  If there is any conflict between the Proposal Letter and these terms and conditions, the provisions of the Proposal Letter shall prevail.

2. Definitions and Interpretation

2.1  In this Agreement:-

“Agreement” means these terms and conditions together with the Proposal Letter.

“Bid Plan” means the schedule of events and timescales required for the Project, as annexed to the Proposal Letter and updated from time to time.

“the Client” and “You / Your” refers to the party identified in the Proposal Letter as purchasing Services from the Consultant.

“the Consultant” and “We / Us / Our” means Intend Business Development Ltd, a Company incorporated in Scotland (Company Number SC406570) and with its Registered Office at Henderson Black & Co, Edenbank House 22 Crossgate Cupar Fife KY15 5HW.

“Dependencies” means anything which the Consultant requires from or to be done by the Client or a third party to enable the Consultant to perform its obligations, as identified in the Proposal Letter;

“Input Materials” means any documents, data, drafts, concepts, text, graphics, logos, photographs, images, moving images, sound, illustrations, prototypes and other materials and information provided by the Client which is required for the ITT or otherwise related to the Services.

“Intellectual Property Rights” means patents, trademarks and service marks, database rights, design rights (whether registerable or not), application for any of the foregoing, copyright, know-how, trade or business names and other similar rights or obligations whether registerable or not in any country including but not limited to the United Kingdom.

“Issuing Authority” means the customer or procurement agency which has issued the Invitation to Tender or request for a proposal (“ITT”) to which the Project relates’

“Order Confirmation” means the email sent to the Client by the Company confirming the Client’s order and detailing any changes to the details set out in the Proposal Letter.

“Project” means the tender or bid submission identified in the Proposal Letter.

“Price”

“Proposal Letter” means the quotation or proposal issued by the Company which sets out the Services to be provided by the Consultant and other information specific to the Project, subject to any modifications set out in the Order Confirmation.

“Services” means the services specified in the Proposal Letter.

“Working Day” means 8.30 am to 5.00 pm on days when the banks in Scotland are open for business and excludes weekends and public holidays.

“Writing” includes any written paper document, any fax and any email correspondence.

2.2  In this Agreement, unless the context requires otherwise:-

words denoting any gender include all genders and words denoting the singular include the plural and vice versa; references to clauses are unless the contrary intention appears references to clauses of  this Agreement; and the headings and sub-headings of this Agreement are inserted for convenience only and shall not affect the construction thereof.

3. This Agreement

3.1 No binding contract shall exist between the Consultant and the Client until the Order Confirmation has been issued by the Consultant.

3.2 No variation to these terms and conditions shall be binding unless agreed in writing to between the authorised representatives of the Consultant and the Client.

3.3 The Consultant’s employees, agents, associates, consultants or sub-contractors are not authorised to make any representations concerning the Services or any other aspect of this Agreement unless such authority is confirmed by the Consultant in advance in writing.  In entering into the Agreement the Client acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.

3.4 Nothing in this Agreement and no action taken by the parties pursuant to this

agreement shall constitute, or be deemed to constitute a partnership, association, joint venture, agency or any other co-operative entity.

4. Performance

4.1 The Consultant warrants to the Client that the Service will be provided using reasonable care and skill.

4.2 The Consultant will use reasonable endeavours to carry out the Services by the date set out in the agreed timescale or such other date as may be mutually agreed. However any date or period for performance of the Services by the Consultant whether stated in the Agreement or otherwise is only approximate and shall not be an essential term of the Agreement unless the Consultant expressly agrees in writing to guarantee particular performance dates.

4.3 The scope of the Services set out in the Proposal  Letter, the Bid Plan and the Price are predicated on the information provided by the Client. This applies particularly to the Client’s representatons regarding the availability and the quality of Input Materials and other information or materials required for the Project. In the event that the Consultant (acting reasonably) considers that such Input Materials are insufficient or inadequate for the purposes of the Project, the Consultant shall endeavour to provide or augment such Input Materials as are required, subject to agreement with the Client as to effects on the Price and other aspects of the Services to be provided.

4.4 The Consultant will not be responsible for any delays or failure to meet ITT timescales caused by the above Input Materials deficiences.

5. Client Obligations

5.1 The Client acknowledges that the Consultant’s ability to provide the Services is dependent, in addition to the Dependencies, upon the full and prompt co-operation of the Client (which the Client agrees to provide) as well as the accuracy and completeness of Input Materials. Accordingly, the Client agrees to cooperate with the Consultant and shall:-

5.1.1   provide any support, information and facilities as may be required by the Consultant; and

5.1.2    provide all Input Materials, information, decisions and approvals in a timely manner and in accordance with the Bid Plan as it may be amended from time to time.

5.2 The Client shall at its own expense retain duplicate copies of all Input Materials and insure the same against its accidental loss or damage. The Company shall have no liability for any such loss or damage, howsoever caused.

6. Changes

6.1 Should the Client decide that changes are required after work commences, the Consultant will wherever reasonably possible accept these changes subject to agreement regarding any changes to the Price which may be required.

6.2 If provision of the Services is impeded or delayed by the Client, it’s contractors or third parties so as to change the scope of the Services, the Company shall advise the Client of the effects including any increase in the Price and the Agreement shall be modified to reflect such changes.

6.3 In the event that the Issuing Authority makes or causes changes to the ITT requirements, the Consultant shall endeavout to accommodate such changes, subject to any agreed amendments to the Price, timescales and other Project details.

7. Professional Obligations

The Consultant reserves the right to act during this engagement for other clients whose interests may be adverse to yours.  The Consultant will notify you immediately should we become aware of any conflict of interest to which we are subject in relation to you.

8. Price and Payment

8.1 Unless otherwise set out in the Proposal Letter, the Price will be calculated on the basis of the number of hours worked multiplied by the agreed hourly rate, together with any additional costs which have been agreed in writing.

8.2 If due to unforeseen circumstances the number of hours required to complete the Services appears to the consultant to be likely to exceed the agreed budget, the Consultant will advise the Client in writing as soon as possible.

8.3 Any expenses made on behalf of the Client, such as travel, courier services and printing costs are included in the Price proposal and shall be payable by the Client.

8.4 For urgent Services where an immediate start by the Consultant is required, the Consultant applies hourly rates of 135% of the regular fees.

8.5 The Price set out in the Proposal Letter assumes that the Services are carried out during Working Days, unless otherwise specified in the Proposal Letter or agreed in writing, Should, due to:-

8.5.1    actions or omissions of the Client or third parties; or

8.5.2    other factors outwith the Consultant’s control

work be required outwith Working Days or such other times as have been agreed, the Consultant’s hourly rates of 135% of the regular fees shall be applied.

8.6 Unless stated otherwise, all prices are exclusive of VAT which shall be added to invoices at the prevailing rate.

8.7 Invoices will be issued as per the proposed schedule in the Proposal Letter. Payment of any balance will be due within 14 days of the invoice date. The Client agrees that time of payment of the Consultant’s invoices shall be an essential term of the Agreement. All payments should be made electronically. Cheques are only accepted by prior agreement.

8.8 Should payment not be made within 14 days we shall be entitled to charge you interest on the amount unpaid, at the rate of 8 per cent per annum above the Royal Bank of Scotland plc base rate from time to time, until payment is made. We will also charge an administration fee of £40 in line with statutory late payment legislation.

9. Duration

This Agreement shall subsist for the period specified in the Proposal Letter unless earlier terminated in terms of clause 10 hereof, or where no period is specified by either party giving at least one month prior written notice of termination. In the event of termination in whole or in part the Consultant shall be entitled to be paid for all work which has been carried out prior to termination and the Client shall remain liable therefore.

10. Termination

A party (‘the Initiating Party’) may terminate this Agreement with immediate effect by written notice to the other party (‘the Breaching Party’) on or at any time after the occurrence of one or more of the following events:-

10.1      the Breaching Party committing a material breach of this Agreement and failing to remedy the breach within 30 days starting on the day after receipt of notice from the Initiating Party giving details of the breach and requiring the Breaching Party to remedy it;

10.2      the Breaching Party passing a resolution for winding up, a court of competent jurisdiction making an order for the Breaching Party’s winding up or the presentation of a petition for the Breaching Party’s winding up that is not dismissed within seven days, in each case other than for the purposes of solvent amalgamation or reconstruction in such manner that the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the Breaching Party’s obligations under this agreement;

10.3      the making of an administration order in relation to the Breaching Party or the appointment of a receiver over, or an encumbrancer taking possession of or selling any asset of, the Breaching Party;
or
10.4      the Breaching Party making an arrangement or composition with his creditors generally or making an application to a court of competent jurisdiction for protection from his creditors generally.

11. Intellectual Property

Unless otherwise agreed in writing, all Intellectual Property Rights arising out of this Agreement shall vest in the Consultant.

12. Confidentiality

12.1     The Consultant and the Client shall keep confidential all information of the other party, whether designated as confidential or not, obtained under or in connection with the Agreement and shall not divulge the same to any third party without the written consent of the other party. The provisions of this clause shall not apply to any information in the public domain otherwise than by breach of the Agreement; or information obtained from a third party who is free to divulge the same.

12.2     The Consultant may refer to the Agreement or to the fact that the Client is the Consultant’s customer with the prior consent of the Client which shall not be unreasonably withheld.

13. No Waiver

Failure or delay by either party in enforcing or partially enforcing any provision of the Agreement will not be construed as a waiver of any of its rights under the Agreement. Any waiver by a party of any breach of, or any default under, any provision of the Agreement by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Agreement.

14. Force Majeure

Neither party shall be liable for any breach of these terms cause by matters beyond their reasonable control, including but not limited to, Acts of God, fire, lightening, explosion, war, disorder, flood, industrial dispute (whether or not involving our employees), failures or interruptions of electricity supplies, weather of exceptional severity or acts of local or central government or other authorities.

15. Indemnity

15.1 The Client agrees that it shall indemnify and keep indemnified the Consultant against all claims, demands, losses, damage, costs or expenses incurred by the Consultant as a result of a breach by the Client of any provision of this Agreement, law or regulation and as a result of any third party legal action or threatened action in relation to Intellectual Property Rights infringement whatsoever and howsoever arising.

15.2 Without limiting the generality of the foregoing, the Client warrants that to the best of its knowledge, information and belief all Input Materials and other information supplied to the Consultant before, during and after the Agreement is and shall be accurate and not in any way illegal and that it is entitled to provide such information to the Consultant without recourse to any third party. The Client hereby indemnifies and holds harmless the Consultant against all claims, demands, losses, damages, costs or expenses (including legal costs and expenses) and liability whether civil or criminal which the Consultant may incur or suffer as a result of any act, neglect or default of the Client or its agents, employees or licensees, or the infringement of the Intellectual Property rights of any third party, or any successful claim for defamation, provided that such liability was not incurred by the Consultant through any default in performing its obligations under the Agreement.

16. Liability

• Notwithstanding any other provision in this agreement, the Consultant’s liability

to the Client for death or injury resulting from his own negligence or that of his employees, agents or sub-contractors shall not be limited.

• The Consultant’s entire liability to the Client in respect of any breach of

contractual obligations, any breach of warranty, any representation, statement or delictual act or omission including negligence arising under or in connection with this Agreement shall be limited to an amount equal to the Price quoted in the Proposal Letter.

• The Consultant shall not be liable to the Client for any indirect or consequential

loss the Client may suffer, even if the loss is reasonably foreseeable or the Consultant has been advised of the possibility of the Client incurring it.

• Without prejudice to the foregoing generalities, the Consultant will not be held

responsible for any losses arising from the supply by the Client or others of incorrect or incomplete information, or your or others’ failure to supply any appropriate information or your failure to act on our advice or respond promptly to communications from us or other relevant authorities.

• You agree to hold harmless and indemnify the Consultant against any

misrepresentation, whether intentional or unintentional, supplied to us orally or in writing in connection with this Agreement.

16.6      The Consultant shall not be liable for any loss, costs or damage howsoever arising from errors or omissions by third parties.

17. Assignment and Subcontracting

17.1 It is expressly agreed by the Client that the Consultant may subcontract or otherwise employ the services of third party providers to perform any part of the Services. By engaging third parties the Consultant will exercise due care.

17.2 Except insofar as agreed in sub-clause 17.1, neither party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.

18. Remedies

The rights and remedies provided for by this Agreement are cumulative with and not exclusive of any rights or remedies provided by law.

19. Severability

If any provision of this Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.

20. Data Protection

20.1 For the purposes of this clause 20, “Data Protection Laws” means all applicable laws in relation to (a) data protection; (b) privacy; (c) interception and monitoring of communications; (d) restrictions on or requirements relating to the Processing of Personal Data of any kind including laws addressing identity theft or security breach; “Data Controller”, “Data Processor”, “Data Protection Commissioner”, “Data Subject” “Personal Data” and “Processing” shall each have the meaning set out in the UK Data Protection Acts.

20.2 Both parties shall observe all their obligations under the Data Protection Laws which arise out of or in connection with this Agreement, including but not limited to the provision or use of the Services.

20.3 The Consultant acknowledges that, in the course of the provision of the Services, it may have access to and may be required to process data comprising Personal Data for and on behalf of the Client. It is the responsibility of the Client to ensure that the Personal Data provided to the Consultant is adequate, relevant and limited to what is necessary for Processing for the purpose of delivering the Services (“the Purpose”). Any Personal Data provided to the Consultant which is deemed to be inadequate, not relevant or not necessary for the Purpose will be deleted and the Client informed accordingly.

20.4 The Consultant shall only process such Personal Data in accordance with the instructions and authorisations of the Client and solely as strictly necessary for the performance of its obligations under this Agreement.

20.5 The Consultant shall take appropriate technical and organisational security measures in respect of such Personal Data (including against the unauthorised or unlawful processing, access or disclosure of the Personal Data and against accidental loss or destruction of, or damage to the Personal Data).

20.6 Without prejudice to any other right or remedy the Consultant may have, the Consultant shall inform the Client forthwith (and in any event within 24 hours of becoming aware of the event) in writing upon becoming aware of any unauthorised or unlawful processing of such Personal Data and/or accidental loss or destruction of, or damage to such Personal Data (a “Data Breach”) or suspected Data Breach. In the event of a Data Breach arising from the Consultant’s failure to comply with the provisions of this clause 16, the Consultant shall upon request:

20.6.1 provide such information relating to the event as the Client may reasonably require; and

20.6.2 use all reasonable endeavours to take such corrective and other reasonable action as the Client may require in relation to the event.

20.7 The Consultant agrees it will not transfer the whole or any part of such Personal Data outside the United Kingdom or the European Economic Area.

20.8 The Consultant shall promptly notify the Client if:

20.8.1 it receives an access, modification or erasure request from a Data Subject in relation to such Personal Data; or

20.8.2 it receives any communication or notification from the Data Protection Commissioner or from any third party in relation to such Personal Data.

20.9 The Consultant warrants and represents that it shall not subcontract or outsource any aspects of the Services as they relate to data protection and/or Personal Data without:

20.9.1 the prior written consent of the Client; and

20.9.2 ensuring that the subcontractor or outsourced supplier enters into a legally binding agreement with the Consultant requiring that the subcontractor abide by terms for the protection of Personal Data not less protective than those in this Agreement.

21. Entire Agreement

This Agreement set out the entire understanding of the parties with respect to their subject matter and replaces any prior agreements or understandings or representations (unless fraudulent), whether written or oral.

22. Disputes

Satisfaction with the quality of the Services provided is of paramount importance to us. Should disputes however arise from the legal relationship between the Client and Intend, the Intend Business Development Complaints Procedure applies.

23. Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of Scotland the courts of which shall have non-exclusive jurisdiction.