Terms and Conditions - Unless agreed in writing to the contrary the following terms and
conditions shall apply to all transactions with Ben Cave Associates Ltd
“BCA” means Ben Cave Associates Ltd
“The Client” means the purchaser of BCA’s services.
1. BCA shall provide services to the Client subject to these terms and conditions
2. The Parties shall agree the time and place for performance of the services, subject to
the availability of BCA's staff and agents.
3. BCA shall use reasonable endeavours to complete the services by any agreed
timescale or meet such other dates as are agreed by the Parties. Time shall not be of
the essence for any times for when the services are to be performed, whether given
or agreed to by BCA; or for the length of time that any of the services are to take,
whether specified in writing or otherwise; or for the production of the final report or
such other date as is agreed by the Parties.
4. The time for payment of the fee for BCA’s services shall be as agreed between the
parties or within 14 days of BCA’s invoice date. Unless agreed otherwise the fee is
exclusive of VAT and other taxes which shall, where applicable, be due at the rate in
force on the date of BCA’s invoice.
5. If the Client fails to make any payment on the due date then, without prejudice to
any of BCA's other rights, BCA may suspend or cancel work or delivery of any
services, reports or other material due to the Client and BCA shall not be obliged to
comply with any of its obligations under the agreement until full payment is made.
The time for payment shall always be of the essence. Late or non payment of any
sum shall constitute a material and fundamental breach of the agreement.
6. Interest on unpaid sums shall accrue from the date when payment becomes due
from day to day until the date of full payment at a rate of 10% above the Bank of
England's base rate from time to time in force and shall accrue at such a rate after as
well as before any judgment, provided that BCA may at its election claim statutory
interest and/or compensation pursuant to the Late Payment legislation in the
alternative.
7. The Client may not withhold payment of any amount due to BCA by reason of any
right of set off or counter claim which the Client may have or alleges to have for any
reason whatsoever.
8. For work undertaken by BCA which falls outside the scope of any agreed services, in
addition to any cost or expenses which may be incurred by BCA, the Client agrees to
pay BCA for work undertaken on a time charge basis at BCA’s current hourly rates
(exclusive of VAT), available upon request.
9. The Client acknowledges and agrees that for BCA to be able to provide the services
the Client shall co-operate with BCA as BCA reasonably requires, provide to BCA such
information and documentation as BCA reasonably requires, make available to BCA
the facilities, resources, working space and staff as has been agreed and/or as BCA
reasonably requires from time-to-time; and instruct the Client's staff and agents to
co-operate and assist BCA.
10. BCA may charge the Client for any additional reasonable costs and expenses incurred
by BCA caused by the Client's instructions, failure to provide instructions, or failure to
comply with its obligations.
11. Where required to provide reports, BCA shall supply one copy to the Client. Subject
to any agreement to the contrary, BCA grants to the Client a non-exclusive licence
(without the right to sub-licence) to reproduce a report for the stated purpose for
which it was obtained. BCA shall own all copyright, database and other intellectual
property rights in any reports.
12. No copyright work which the Client has been licenced to reproduce may be sold, sublicenced or given away to any third party whether or not for gain. The Client shall not
seek to profit from any use of the copyright work, mislead or impose or create any
liability on BCA, devalue any reports or any other of BCA’s work or damage or conflict
with the good name and reputation of BCA. The Client shall not assert any claim as
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13.
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15.
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proprietor, author or owner of any right, title or interest and recognises BCA’s title to
the copyright work and shall promptly call to the attention of BCA any use of any of
copyright work by any other person or activity of any person which may or does
amount to infringement or is not compliant with any other terms that may have been
prescribed.
BCA asserts its right to be identified as the author of the reports and the Client shall
include the name of BCA (and/or whomever BCA notifies the Client to include) and a
notice to such effect with due prominence on the reports, howsoever reproduced.
The Client acknowledges that the reports are the exclusive property of BCA, and that
it will not assert any claim of ownership to the reports, or to the goodwill or
reputation thereof, by virtue of the Client's use of the reports, or otherwise.
BCA is the registered proprietor and owner of a number of Trade Marks, Trade
Names, domain names and Logos, (“Trade Marks”). Trade Marks of which BCA is the
proprietor, owner or registered user may not be used without its prior written
permission. Any use of any Trade Mark must not damage or be likely to damage the
goodwill in any Trade Mark, be misleading and must not impose or create any liability
on BCA, devalue any Trade Mark or damage or conflict with the good name and
reputation of BCA, bring any Trade Mark into disrepute in any way whatsoever and
none of the Client's activities or activities of persons under their control are or will be
harmful to the activities of BCA.
The Client undertakes not to apply to register or otherwise seek to obtain any trade
mark which are or may in BCA's view be identical or confusingly similar to any Trade
Mark (which includes domain or other names) without the prior written consent of
BCA. The Client shall not at any future time register or use any of the Trade Marks in
its own name as proprietor.
The Client recognises BCA's title to the Trade Marks and shall not claim any right title
or interest in the Trade Marks or any of them. The Client shall promptly call to the
attention of BCA any use of any of the Trade Marks by any person or any activity of
any person which may or does amount to infringement and/or passing off.
The Client shall hold all goodwill and any other intellectual property rights generated
by its use of any of the Trade Marks as bare trustee for the benefit of BCA and shall
do all such things necessary to ensure any goodwill or intellectual property rights are
transferred or assigned absolutely to BCA.
Confidential information (whether provided in writing or orally) is that which by its
nature is confidential to either or both of the parties (whether commercial, financial,
technical or otherwise) including any information that would be regarded as
confidential by a reasonable business person, information relating to the business,
affairs, trade secrets, customers, clients, suppliers, plans, intentions, or market
opportunities of the disclosing party or of any member of the group of companies to
which the disclosing party belongs and the operations, processes, product
information, know-how, designs, trade secrets or software of the disclosing party (or
of any member of the group of companies to which the disclosing party belongs).
Each party shall keep the confidential information of the other party confidential and
secret, whether disclosed to or received by the receiving party. The receiving party
shall only use the confidential information of the supplying party for performing the
receiving party's obligations under the agreement. The receiving party shall inform its
officers, employees and agents of its obligations, and ensure that the receiving
party's officers, employees and agents meet the obligations.
The obligations in respect of confidential information shall not apply to any
information which was known or in the possession of the receiving party before it
was provided to the receiving party by the supplying party; is, or becomes, publicly
available through no fault of the receiving party; is provided to the receiving party
without restriction or disclosure by a third party, who did not breach any
confidentiality obligations by making such a disclosure; was developed by the
receiving party (or on its behalf) who had no direct access to, or use or knowledge of
the confidential information supplied by the supplying party; or is required to be
disclosed by order of a court of competent jurisdiction.
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20. BCA will use reasonable care and skill in performing the services and to a standard
which conforms to generally accepted industry standards and practices.
21. BCA expressly does not warrant that any result or objective whether stated or not
shall be achieved, be achievable or be attained at all or by any date.
22. Except in the case of death or personal injury caused by BCA's negligence, BCA's
liability under or in connection whether arising in contract, tort, negligence, breach of
statutory duty or otherwise howsoever, shall not exceed the fee paid to BCA.
23. BCA shall not be liable to the Client in contract, tort, negligence, breach of statutory
duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever
incurred or suffered by the Client of an indirect or consequential nature including
without limitation any economic loss or other loss of turnover, profits, business or
goodwill.
24. The Client shall indemnify and hold harmless BCA from and against all claims and
losses arising from loss, damage, liability, injury to BCA, including its officers and
employees or consultants and third parties, infringement of third party intellectual
property, or third party losses arising in consequence of any breach by the Client or
arising out of any information supplied to the Client by BCA, its officers, employees or
consultants, or supplied to BCA by the Client. 'Claims' shall mean all demands, claims,
proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or
otherwise), and 'Losses' shall mean all losses including without limitation financial
losses, damages, legal costs and other expenses of any nature whatsoever.
25. The Client acknowledges that, in instructing BCA it has not done so in reliance on any
representation or warranty, and any conditions, warranties or other terms implied by
statute or common law which the Client may seek to rely on are excluded from the
agreement to the fullest extent permitted by law. Nothing in the agreement excludes
liability for fraud.
26. Without prejudice to other remedies or rights, either party may terminate the
relationship at any time by giving written notice to the other party ('Other Party') and
the notice taking effect as specified in the notice:
• if the Other Party is in material breach of an obligation, and where a breach is
capable of remedy, the breach is not remedied with in 30 days by the Other Party
receiving notice which specifies the breach and requiring the breach to be
remedied; or
• if the Other Party becomes insolvent or if an order is made or a resolution is
passed for the winding up of the Other Party (other than voluntarily for the
purpose of solvent amalgamation or re-construction), or if an administrator,
administrative receiver or receiver is appointed in respect of the whole or any
part of the Other Party's assets or business, or if the Other Party makes any
composition with its creditors or takes or suffers any similar or analogous action
in consequence of debt.
27. All terms that are necessary to give effect to those Clauses shall survive termination
or expiry of the agreement.
28. Neither party shall have any liability under or be deemed to be in breach for any
delays or failures in its performance which result from circumstances beyond the
reasonable control of that party, namely fire, flood, earthquake, windstorm or other
natural disaster; war, threat of or preparation for war, armed conflict, imposition of
sanctions, embargo, breaking off of diplomatic relations or similar actions; terrorist
attack, civil war, civil commotion or riots; nuclear, chemical or biological
contamination or sonic boom; mandatory compliance with any new law; fire,
explosion or accidental damage; extreme weather conditions; collapse of building
structures, failure of machinery, computers or vehicles; interruption or failure of
utility service, including but not limited to electric power, gas or water where such
interruption is beyond the party's control. Each party shall promptly notify the other
party in writing when such circumstances cause a delay or failure in performance and
when they cease to do so.
29. These terms and conditions may only be amended in writing signed by duly
authorised representatives of BCA.
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30. The Client may not assign, delegate, sub-contract, mortgage, charge or otherwise
transfer any or all of its rights and obligations without the prior written agreement of
BCA. BCA may, however, delegate, sub-contract, mortgage, assign and/or transfer
all its rights and obligations to any person.
31. Save where agreed otherwise in writing, these terms and conditions contain the
whole agreement between the parties and supersedes and replaces any prior written
or oral agreements, representations or understandings between them relating to such
subject-matter. The Client confirms that it has not entered into the agreement on the
basis of any representation that is not expressly incorporated into these terms.
32. No failure or delay by BCA in exercising any right, power or privilege under the
agreement shall impair the same or operate as a waiver of the same nor shall any
single or partial exercise of any right, power or privilege preclude any further exercise
of the same or the exercise of any other right, power or privilege. The rights and
remedies provided in the agreement are cumulative and not exclusive of any rights
and remedies provided by law.
33. The arrangements between the parties shall not constitute or imply any partnership,
joint venture, agency, fiduciary relationship or other relationship other than the
contractual relationship expressly provided for herein. Neither party shall have, nor
represent that it has, any authority to make any commitments on the other party's
behalf.
34. The validity, construction and performance of these terms and conditions shall be
governed by English law and shall be subject to the exclusive jurisdiction of the
English courts to which the parties submit.
35. For the purposes of the Contracts (Rights of Third Parties) Act 1999 and
notwithstanding any other provisions, these terms and conditions are not intended
to, and do not, give any person who is not a party to them any right to enforce any
provisions.
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