TERMS AND CONDITIONS FOR SERVICE AND GOODS
BACKGROUND:
RBR Engineering Solutions Limited trading as 3D Printing and Engineering (“3DPE”) and 3D Consultancy (“3D”) a business registered in England number 09418298 whose registered address is at 138-144 London Road, Wheatley, Oxford, OX33 1JH (the “Provider”) provides 3D printing goods, advice, and works to business clients. The Provider has reasonable skill, knowledge and experience in that field. These Terms and Conditions shall apply to the provision of goods, advice, and works by the Provider to its clients.
1 Definitions and Interpretation
In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Agreement”
means the Quotation entered into by the Provider and the Client and signed by both Parties’ duly authorised representatives and which will impliedly incorporate these Terms and Conditions (or any variation agreed in writing by both Parties) which shall govern provision of the works (as defined below);
“Business Day”
means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England;
“Client”
means the party procuring the works from the Provider which must be a business and shall be identified in the Agreement;
“Commencement Date”
means the date on which provision of the works will commence, as defined in the Quotation
“Commodity Material Surcharge”
means that the Provider may apply an additional charge to current contracts in the event that war or political instability significantly impacts the input costs of the Provider. The surcharge will be limited to the difference between the budgeted cost of the material and the actual cost of the material as determined by the Provider. Commodity materials so effected include raw materials, basic resources including fuel and energy or mining products, including ores and metals.
“Confidential Information”
means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Data Protection Legislation”
means 1) unless and until EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations, and secondary legislation (as amended from time to time), in the UK and subsequently 2) any UK Data Protection legislation which succeeds the GDPR;
“Fees”
means any and all sums due, as specified in the Agreement, written Quotation, or Invoice.
“Intellectual Property”
means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade-marks 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, 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.
“Intellectual Property Rights”
means (a) any and all rights in any patents, trademarks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trademarks and service marks, copyrights, database rights, know-how, rights in designs and inventions;
(b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a); (c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and
(d) the right to sue for past infringements of any of the foregoing rights;
“Quotation”
means the quotation delivered by the Provider to the Client, and which specifies the works, minimum term, timescales, and which, together with these terms and conditions forms the entire Agreement between the Parties.
“works”
means the work to be provided by the Provider to the Client in accordance with the Agreement, as fully defined in the Agreement and any specification set out in the quotation or elsewhere and agreed in writing between the Parties to this Agreement, and subject to the terms and conditions of the Agreement, and
“Term”
means the term of the Agreement as defined in it.
Unless the context otherwise requires, each reference in these Terms and Conditions to:
“writing”, and any cognate expression, includes a reference to any communication effected by electronic transmission;
a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
“these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
a Clause or paragraph is a reference to a Clause of these Terms and Conditions or to a Clause of the Agreement, as appropriate; and
a “Party” or the “Parties” refer to the parties to the Agreement.
The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
Words imparting the singular number shall include the plural and vice versa.
References to any gender shall include the other gender.
References to persons shall include corporations.
2 Provision of the works
a) With effect from the Commencement Date, the Provider shall, throughout the Term of the Agreement, provide the works to the Client.
b) The Provider shall provide the works with reasonable skill and care, commensurate with prevailing standards in the industry.
c) The Provider shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of works provided in the Agreement.
d) The Provider shall use reasonable endeavours to ensure that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the works.
e) The Provider may, in relation to certain specified matters related to the works, act on the Client’s behalf. Such matters shall not be set out in the Agreement but shall be agreed between the Parties as they arise from time to time.
f) The Provider shall use all reasonable endeavours to accommodate any reasonable changes in the works that may be requested by the Client, subject to the Client’s acceptance of any related reasonable changes to the Fees that may be due as a result of such changes.
g) The Client accepts that by placing an order with the Provider, and subsequently accepting in writing the Quotation it is bound by these terms and conditions without variation, unless such variation is agreed in writing by a Director of the Provider.
3 Intellectual Property Rights
The Provider shall retain the ownership of any and all Intellectual Property Rights that may subsist in anything produced by the Provider in the course of providing the works. Throughout the Term of the Agreement, the Provider shall be deemed to automatically grant a royalty-free, exclusive licence of any and all such rights to the Client to use the same in accordance with the terms of the Agreement and the works.
4 Client’s Obligations
a) The Client shall use all reasonable endeavours to provide all pertinent information to the Provider that is necessary for the Provider’s provision of the works.
b) The Client may, from time to time, issue reasonable instructions to the Provider in relation to the Provider’s provision of the works. Any such instructions should be compatible with the specification of the works provided in the Agreement.
c) If the Provider requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the works or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner.
d) If any consents, licences or other permissions are needed from any third parties, it shall be the Client’s responsibility to obtain the same in advance of the provision of the works (or the relevant part thereof).
e) If the nature of the works requires that the Provider has access to the Client’s premises or any other location, access to which is lawfully controlled by the Client, the Client shall ensure that the Provider has access to the same at the times to be agreed between the Provider and the Client as required.
f) Any delay in the provision of the works resulting from the Client’s failure or delay in complying with any of the provisions of this Clause 4 of the Agreement shall not be the responsibility or fault of the Provider.
g) The Client shall ensure that they have the right to use any and all information, specifications, drawings, materials and indemnify the Provider against any and all actions which may arise
h) From time to time the Provider may enter into agreements with customers active in the FIA Formula One World Championship not to engage in activities which may be considered to be in competition with that customer. The Provider will make all reasonable endeavours to ensure that it complies fully with these agreements. However in certain circumstances the Provider is not aware that a customer is reselling its products and services. Therefore if you are reselling the Provider’s products and services to a customer active in the FIA Formula One World Championship you are required to notify the Provider so that it can comply with its agreements. If you fail to notify the Provider then you will fully indemnify the Provider in relation to any and all claims and direct consequential losses arising from your failure.
5 Fees, Payment and Records
a) The Client shall pay the Fees to the Provider in accordance with the provisions of the Agreement. The Provider reserves the right to request stage payments.
b) The Provider shall invoice the Client for Fees due upon completion in accordance with the provisions of the Agreement and this may require stage payments.
c) All payments required to be made pursuant to the Agreement by the Client shall be made on receipt by the Client of the relevant invoice.
d) All payments required to be made pursuant to the Agreement by the Client shall be made in Sterling in cleared funds to such bank as the Provider may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as the Client is required to deduct or withhold by law.
e) Where any payment pursuant to the Agreement is required to be made on a day that is not a Business Day, it may be made on the next following Business Day.
f) Any sums which remain unpaid following the expiry of seven days of the delivery of the invoice shall incur interest on a daily basis at eight percentage points above the base rate of The Bank of England from time to time until payment is made in full of any such outstanding sums.
g) The Provider shall be entitled to choose whether to claim interest at the rate specified in the immediately preceding Clause or to rely on the interest (and compensation) payable under the Late Payment of Commercial Debts (Interest) Act 1998.
h) In event of war or political instability that significantly impacts prices the Provider reserves the right to implement with five working days notice a Commodity Material Surcharge. This may be applied to current contracts. If applied to current contracts the Client will be given the option of paying the Commodity Material Surcharge or requesting that work is stopped. The Client will be liable for all costs incurred by the Provider up to the point that work is stopped.
6 Liability, Indemnity and Insurance
a) The Provider shall ensure that it has in place at all times suitable and valid professional indemnity insurance and public liability insurance.
b) The Provider’s total liability for any loss or damage caused as a result of its negligence or breach of the Agreement shall be limited to the sum defined as payable for the works and shall not include consequential losses.
c) The Provider shall not be liable for any loss or damage suffered by the Client that results from the Client’s failure to follow any instructions given by the Provider.
d) Nothing in these Terms and Conditions nor in the Agreement shall limit or exclude the Provider’s liability for death or personal injury.
e) The Provider shall not be obliged to indemnify the Client against any costs, liability, damages, loss, claims or proceedings arising out of the Provider’s breach of the Agreement.
f) The Client agrees to take out appropriate insurance cover to protect itself against all risks, and to be responsible for the payment of the premiums, and to ensure that the payment of the premiums does not lapse.
g) The Client shall indemnify the Provider against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including that belonging to any third parties appointed by the Provider) caused by the Client or its agents or employees.
h) Neither Party shall be liable to the other or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.
7 Guarantee
The Provider will use its reasonable endeavours to ensure that the goods will be free from any and all defects for a period of three months from the date of delivery.
The Client accepts that it shall have no remedy against the Provider where the Works have been carried out using reasonable skill and care, and in accordance with industry standard criteria.
The Client accepts that it shall have no remedy against the Provider where the Works have not been stored and or used in the manner intended in the Agreement or where the Agreement states no Guarantee is provided due to the trial and or prototype nature of the Works or where the Client has modified the Works in any way.
The Client will notify the provider of a defect within 3 days of such defect being identified.
8 Romalpa Clause
Title and ownership of any goods shall only pass to the Client upon full payment of the agreed sum to the Provider. Until title and ownership passes to the Client it should not make use of advice, goods, services and Works unless agreed in writing by the Provider.
9 Confidentiality
a) Each Party shall undertake that, except as required by Statute or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and for three years after its termination:
i. keep confidential all Confidential Information;
ii. not disclose any Confidential Information to any other party;
iii. not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;
iv. not make any copies of, record in any way or part with possession of any Confidential Information; and
v. ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of any part of this Agreement.
b) Either Party may disclose any Confidential Information to: any sub-contractor or supplier of that Party; any governmental or other authority or regulatory body; or any employee or officer of that Party or of any of the aforementioned persons, parties or bodies; to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the works), or as required by law.
c) In each case of a disclosure required under Statute each Party shall first inform the person, party or body in question that the Confidential Information is confidential.
d) The provisions of this Clause shall continue in force in accordance with its terms, notwithstanding the termination of the Agreement for any reason.
10 Force Majeure
a) No Party to the Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
b) In the event that a Party to the Agreement cannot perform their obligations hereunder as a result of force majeure for a continuous period of sixty days, the other Party may at its discretion terminate the Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all works provided up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of the Agreement.
11 Term and Termination
The Agreement shall begin on the Commencement Date (as specified in the Quotation) and shall continue for the Term specified in the Quotation from that date, subject to the provisions of Clause 9 and 10 of these terms and conditions.
Either Party shall have the right, subject to the agreement and consent of the other Party and exercisable by giving not less than fourteen days written notice to the other at any time prior to the expiry of the Term specified in this Clause of the Agreement (or any further period for which the Agreement is extended) to extend the Agreement for a further period of thirty days.
Either Party may terminate the Agreement by giving to the other not less than thirty days written notice, to expire on or at any time after the minimum term of the Agreement (which shall be defined in the Quotation.
Either Party may immediately terminate the Agreement by giving written notice to the other Party if:
any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within seven Business Days of the due date for payment;
the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within fourteen Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);
anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
the other Party ceases, or threatens to cease, to carry on business; or
control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement.
For the purposes of this Clause 11, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
For the purposes of this Clause, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach, save as provided for in this Agreement.
12 Effects of Termination
Upon the termination of the Agreement for any reason:
any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable;
all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect;
termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which existed at or before the date of termination;
subject as provided for in the Confidentiality clause of this Agreement and except in respect of any accrued rights neither Party shall be under any further obligation to the other;
each Party shall immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information; and
the Intellectual Property Rights licence granted under this Agreement shall terminate and the Client shall forthwith cease to use, either directly or indirectly, any such Intellectual Property Rights, and shall forthwith return to the Provider any such material in its possession or control.
13 Data Protection
All personal information that the Provider may use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and any subsequent Data Protection legislation from time to time in force in the United Kingdom.
For complete details of the Provider’s collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of the Client’s rights and how to exercise them, and personal data sharing (where applicable), please refer to the Provider’s Privacy Policy on www.3d-consultancy.com
14 Data Processing
Both Parties shall comply with all applicable data protection requirements set out in the Data Protection Legislation. Neither this Clause nor the Agreement shall relieve either Party of any obligations set out in the Data Protection Legislation and shall not remove or replace any of those obligations.
For the purposes of the Data Protection Legislation and for this Clause and the Agreement, the Provider is the “Data Processor” and the Client is the “Data Controller”.
The type(s) of personal data, the scope, nature and purpose of the processing, and the duration of the processing may, if the Parties agree, be set out in a Schedule to the Agreement.
The Data Controller shall ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to the Data Processor for the purposes described in these Terms and Conditions AND/OR the Agreement and to any Schedule to the Agreement if such exists.
The Data Processor shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under these Terms and Conditions AND/OR the Agreement:
Process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by law.
Ensure that it has in place suitable technical and organisational measures (as specified by the Data Controller) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures. Measures to be taken shall be agreed between the Data Controller and the Data Processor and set out by the Data Controller in the Agreement AND/OR a Schedule to the Agreement;
Ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential;
Not transfer any personal data outside of the European Economic Area without the prior written consent of the Data Controller and only if the following conditions are satisfied;
The Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;
Affected data subjects have enforceable rights and effective legal remedies;
The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and
The Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data;
Assist the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);
Notify the Data Controller without undue delay of a personal data breach;
On the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of the Agreement unless it is required to retain any of the personal data by law; and
Maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this Clause;
The Data Processor may sub-contract any of its obligations with respect to the processing of personal data under this Clause 14 AND/OR the Agreement.
15 Costs
Subject to any provisions to the contrary each Party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.
16 Set-Off
The Client shall not be entitled to set-off any sums in any manner from payments due in respect of any claim under the Agreement.
17 Assignment and Sub-Contracting
The Agreement shall be personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, without the written consent of the other Party, such consent not to be unreasonably withheld.
The Provider shall be entitled to perform any of the obligations undertaken by it through associates or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall not, for the purposes of the Agreement, be deemed to be an act or omission of the Provider if this act or omission is a breach of the contract between the Provider and the sub-contractor.
18 Time
The times and dates referred to in the Agreement shall be for guidance only and shall not be of the essence of the Agreement and may be varied by mutual agreement between the Parties evidenced in writing.
19 Relationship of the Parties
Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
20 Non-Solicitation
Neither Party shall, for the Term of the Agreement and for a period of two years after its termination or expiry, employ or contract the works of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Agreement without the express written consent of that Party.
Neither Party shall, for the Term of the Agreement and for a period of two years after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.
Neither Party shall, solicit business and contracts from sources not their own which have been made available to them through Agreements, without the express permission of the Party who made the original introduction, for the duration of and for a period of five years after the date of the Agreement.
21 Third Party Rights
No part of the Agreement shall confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
The Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
22 Notices
All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
Notices shall be deemed to have been duly given:
when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
when sent, if transmitted by e-mail and a successful transmission report or return receipt is generated; or
on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address, or e-mail address, notified to the other Party, and in any event, if an incorporated entity, to its registered office.
23 Entire Agreement
This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
24 Counterparts
The Agreement may be entered into and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but the counterparts together shall constitute one and the same instrument.
25 Severance
In the event that one or more of the provisions of the Agreement and/or of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement and/or these Terms and Conditions. The remainder of the Agreement and/or these Terms and Conditions shall be valid and enforceable.
26 Law and Jurisdiction
The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
Any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.