Terms & Conditions for the Delivery of Services
RECORD UK LIMITED
TERMS AND CONDITIONS FOR SUPPLY OF SERVICES
1 INTERPRETATION
1.1 Definitions
In these Conditions, the following definitions apply:
“Business Day” means a day (other than a Saturday, Sunday or a public holiday) when banks in Glasgow are open for business.
“Charges” means the charges payable by record for the supply of the Services in accordance with clause 7.
“Commencement Date” has the meaning set out in clause 2.2.
“Conditions” means these terms and conditions as amended from time to time in accordance with clause 14.8.
“Contract” means the contract between record and the Supplier for the supply of Services in accordance with these Conditions.
“Delay” has the meaning set out in Clause 6.2
“Deliverables” means all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Order” means record's order for the supply of Services, as set out in record's purchase order form, or in record's written acceptance of the Supplier's quotation, or overleaf, as the case may be.
“record” means record UK Limited registered in Scotland with company number SC124392.
“record Group Company” means record, any subsidiary or holding company of record and any subsidiary of such holding company from time to time.
“record Materials” has the meaning set out in clause 3.3.9.
“record’s Fitting Charter” means the statement of rules and procedures described as such and attached as a schedule to these Conditions
“record’s Health and Safety Policy” means the Health and Safety Policy implemented and observed by record, details of which have been provided to the Supplier.
“Services” means the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Specification.
“Specification” means the description or specification for the Services agreed in writing by record and the Supplier.
“Supplier” means the person or firm from whom record purchases the Services.
“Working Day” means any day other than a Saturday or Sunday or public holiday in Scotland.
1.2 Construction
In these Conditions, the following rules apply:
1.2.1 a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assignees;
1.2.3 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;
1.2.4 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
1.2.5 a reference to “writing” or “written” includes faxes but excludes e-mails.
2 BASIS OF CONTRACT
2.1 The Order constitutes an offer by record to purchase Services in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of:
2.2.1 the Supplier issuing written acceptance of the Order; or
2.2.2 any act by the Supplier consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3 SUPPLY OF SERVICES
3.1 The Supplier shall from the date set in the Order and for the duration of this Contract provide the Services to record in accordance with the terms of the Contract.
3.2 The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by record.
3.3 In providing the Services, the Supplier shall:
3.3.1 co-operate with record in all matters relating to the Services, and comply with all instructions of record;
3.3.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
3.3.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with this Contract;
3.3.4 ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by record;
3.3.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
3.3.6 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to record, will be free from defects in workmanship, installation and design;
3.3.7 obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;
3.3.8 observe record’s health and Safety Policy and all other health and safety rules and regulations and any other security requirements that apply at any of record's premises or which record advise must be observed by the Supplier when providing the Services;
3.3.9 hold all materials, equipment and tools, drawings, specifications and data supplied by record to the Supplier (“record Materials”) in safe custody at its own risk, maintain record Materials in good condition until returned to record, and not dispose or use record Materials other than in accordance with record's written instructions or authorisation;
3.3.10 not do or omit to do anything which may cause record to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that record may rely or act on the Services.
3.3.11 observe and comply with the terms of record’s Fitting Charter and,] observe and comply with any specific requirements of record in relation to the Provision of the Services, including observing and complying with the terms of any Charters, rules and regulations or similar procedures, adopted by record and a copy of which has been provided to the Supplier.
3.3.12 hold any parts replaced by the Supplier in the course of providing the Services in safe custody for and on behalf of record, not dispose of such parts other than in accordance with record’s written instructions or authorisation and return or deliver such replaced parts to record as soon as reasonably practicable.
4 RECORD’S REMEDIES
4.1 If the Supplier fails to perform the Services by the applicable dates, record shall, without limiting its other rights or remedies, have one or more of the following rights:
4.1.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
4.1.2 to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
4.1.3 to recover from the Supplier any costs incurred by record in obtaining substitute services from a third party;
4.1.4 where Record has paid in advance for Services that have not been provided by the Supplier, to have such sums refunded by the Supplier; or
4.1.5 to claim damages for any additional costs, loss or expenses incurred by record which are in any way attributable to the Supplier's failure to meet such dates.
4.2 These Conditions shall extend to any substituted or remedial services provided by the Supplier.
4.3 record's rights under this Contract are in addition to its rights and remedies implied by statute and common law.
5 RECORD’S OBLIGATIONS
record shall:
5.1 provide the Supplier with reasonable access at reasonable times to record's premises for the purpose of providing the Services; and
5.2 provide such information to the Supplier as the Supplier may reasonably request and record considers reasonably necessary for the purpose of providing the Services.
6 PROGRESS AND COMPLETION OF THE SERVICES
6.1 The Supplier shall carry out and complete the Services in accordance with the Specification and shall observe the particular timescales, milestones and/or schedule(s) for completion of the Services set out in the Specification.
6.2 If at any time the Supplier becomes aware that it will not (or is unlikely to) be able to comply with any of the timescales and/or schedule(s) and/or milestones set out in the Specification or that the supply of the Services will otherwise be subject to delay (hereinafter referred to as “a Delay”), the Supplier shall as soon as reasonably practicable and in any event not more than 5 Working Days following the occurrence of the event giving rise to the Delay notify record of the fact of the Delay and summarise the reasons for it.
6.3 The Supplier shall as soon as reasonably practicable and in any event not later than 5 Working Days after the initial notification under clause 6.2 give record full details in writing of:
6.3.1 the reasons for the Delay;
6.3.2 the anticipated consequences of the Delay;
6.3.3 whether the Supplier properly considers that the Delay is attributable wholly or partly to an act, omission, or default of record.
6.3.4 the Suppliers’ reasonable estimate of the duration of the anticipated Delay beyond the period or periods stated in the Specification (or beyond the expiry of any extended period or periods previously fixed under clause 6.5 below);
6.4 At the same time as submitting details of the Delay pursuant to clause 6.3 above, the Supplier shall provide its proposal for dealing with the Delay and detail the steps which it proposes to take to resolve the causes of and mitigate the effects of the Delay.
6.5 Within a period of 5 working days following its receipt of the proposal referred to in clause 6.4 above, record may (in its sole discretion) grant such extension of time to the Supplier for completion of the Services as record considers to be reasonable in all the circumstances.
7 CHARGES AND PAYMENT
7.1 The Charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by record, the Charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
7.2 The Supplier shall invoice record on completion of the Services. Each invoice shall include such supporting information required by record to verify the accuracy of the invoice, including but not limited to the relevant purchase order number and evidence that the Services have been completed in accordance with the Specification.
7.3 In consideration of the supply of the Services by the Supplier, record shall pay the invoiced amounts within 35 days of the last day of the month in which the invoice is correctly rendered to a bank account nominated in writing by the Supplier.
7.4 All amounts payable by record under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to record, record shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.5 If record fails to pay any amount properly due and payable by it under the Contract, the Supplier shall have the right to charge interest on the overdue amount at the rate of 2 per cent per annum accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgment. This clause shall not apply to payments that record disputes in good faith.
7.6 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and shall allow record to inspect such records at all reasonable times on request.
7.7 record may, without limiting its other rights or remedies, set off any amount owed to it by the Supplier under the Contract or otherwise against any amount payable by record to the Supplier under the Contract.
8 INTELLECTUAL PROPERTY RIGHTS
8.1 In respect of any goods that are transferred to record under this Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to record, it will have full and unrestricted rights to transfer all such items to record.
8.2 The Supplier assigns to record, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables.
8.3 The Supplier shall obtain waivers of all moral rights in the products, including for the avoidance of doubt the Deliverables, of the Services to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
8.4 The Supplier shall, promptly at record's request, do (or procure to be done) all such further acts and things and the execution of all such other documents as record may from time to time require for the purpose of securing for record the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to record in accordance with clause 8.2.
8.5 All Record Materials are the exclusive property of record.
9 INDEMNITY
9.1 The Supplier shall keep record indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by record as a result of or in connection with:
9.1.1 any claim made against record by a third party arising out of, or in connection with, the supply of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and
9.1.2 any claim brought against record for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Services.
9.2 For the duration of the Contract and for a period of 12 months thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract and shall, on record's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
9.3 This clause 9 shall survive termination of the Contract.
10 CONFIDENTIALITY
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, or otherwise obtained by, 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 10 shall survive termination of the Contract.
11 NON SOLICITATION
For the duration of the Contract and for a period of 12 months following its termination (“the Restricted Period”) the Supplier shall not either on its own account or for any person, firm or company directly or indirectly
11.1 solicit or interfere with or endeavour to entice away from record or any record Group Company the custom of, or
11.2 provide services similar to or the same as the Services or otherwise in competition with record
to any person, firm or company who or which is or was at any time during the Restricted Period or was in the period of 12 months immediately prior to termination of the Contract a customer or prospective customer of Rrcord or any Record Group Company and to whom or which the Supplier provided or was to provide Services in its capacity as a sub-contractor of record or otherwise.
12 TERMINATION
12.1 Without limiting its other rights or remedies, record may terminate the Contract with immediate effect by giving written notice to the Supplier if:
12.1.1 the Supplier commits a material or persistent breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 28 days of receipt of notice in writing of the breach;
12.1.2 the Supplier 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;
12.1.3 the Supplier 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;
12.1.4 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 Supplier (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
12.1.5 the Supplier (being an individual) is the subject of a bankruptcy petition order;
12.1.6 a creditor or encumbrancer of the Supplier 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;
12.1.7 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 Supplier (being a company);
12.1.8 a floating charge holder over the assets of the Supplier (being a company) has become entitled to appoint or has appointed an administrative receiver;
12.1.9 a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
12.1.10 any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1.2 to clause 12.1.9 (inclusive);
12.1.11 the Supplier suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business; or
12.1.12 the Supplier (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.
12.2 Without limiting its other rights or remedies, record may terminate the Contract by giving the Supplier 1 month’s written notice.
13 CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
13.1 the Supplier shall immediately deliver to record all Deliverables whether or not then complete, and return all record Materials. If the Supplier fails to do so, then record may enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
13.2 the accrued rights, remedies, obligations and liabilities 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; and
13.3 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14 GENERAL
14.1 Force majeure
Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party which by its nature could not have been foreseen by such a party or if it could have been foreseen was unavoidable. If such event or circumstances prevent the Supplier from providing any of the Services for more than 2 weeks, record shall have the right, without limiting its other rights or remedies, to terminate this Contract with immediate effect by giving written notice to the Supplier.
14.2 Assignment and subcontracting
14.2.1 The Supplier shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of record.
14.2.2 record may at any time assign, transfer, charge, subcontract or deal in 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 or agent.
14.3 Notices
14.3.1 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 sent by fax to the other party's main fax number.
14.3.2 Any notice or communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
14.3.3 This clause 14.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
14.4 Waiver and cumulative remedies
14.4.1 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.
14.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.5 Severance
14.5.1 If a court or any other competent authority finds that any provision (or part of any provision) of the Contract 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.
14.5.2 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.
14.6 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.
14.7 Third parties
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.8 Variation
Any variation, including any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by record.
14.9 Governing law and jurisdiction
The 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, Scots law, and the parties irrevocably submit to the exclusive jurisdiction of the Scottish courts.
