These terms apply whenever we work with you, unless otherwise agreed in writing by the Managing Partner of MDV Consulting Limited.
Please read them carefully before placing your order.
1.1 References to “you” in these terms and conditions (“Conditions”) are to the person who purchases Services from MDV Consulting Limited. References to “we” or “us” are to MDV Consulting Limited (Company No. 08842526) of Innovation House, Molly Millars Close, Wokingham, Berkshire RG41 2RX.
1.2 The following definitions apply in these Conditions:
Contract: the contract agreed between the parties in accordance with condition 2.2.
Deliverables: all Documents, products and materials developed by us or our agents, subcontractors, consultants and employees in relation to the Services in any form, including, without limitation, computer programs, data, cognitive or other tests (in electronic or paper format) and reports (including drafts).
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device, or record embodying information in any form.
Intellectual Property Rights: 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 rights, topography rights, moral 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.
Pre-existing Materials: all Documents, information and materials provided by us relating to the Services which existed prior to the commencement of the Contract including, without limitation, computer programs, data, cognitive or other tests (in electronic or paper format) and reports (including drafts).
Services: the services to be provided by us under the Contract as set out in the Contract, together with any other services which we provide, or agree to provide, to you.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.3 Headings in these conditions shall not affect their interpretation.
1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.5 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in your purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by you, or implied by law, trade custom, practice or course of dealing.
2.2 Your purchase order, or your acceptance of a quotation for Services from us, constitutes an offer by you to purchase the Services on these Conditions. No offer placed by you shall be accepted by us other than:
(a) by a written acknowledgement issued by us; or
(b) (if earlier) by us starting to provide the Services,
when a contract for the supply and purchase of the Services on these Conditions will be established. Your standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3 Quotations are given by us on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that we have not previously withdrawn it.
3. COMMENCEMENT AND DURATION
3.1 The Services supplied under the Contract shall be provided by us to you from the date specified in the Contract.
3.2 Subject to condition 11, the Services supplied under the Contract shall continue to be supplied for the period described in the Contract or, if no such period is described, shall continue to be supplied unless the Contract is terminated by one of the parties giving to the other not less than one month’s written notice.
4. OUR OBLIGATIONS
4.1 We shall use reasonable endeavours to provide the Services in accordance in all material respects with the description in the Contract. However, we cannot guarantee that a particular employee, consultant or subcontractor will carry out all or any part of the Services and we reserve the right to change the person carrying out the Services without notice.
4.2 We shall use reasonable endeavours to meet any performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 We will exercise reasonable skill and care in the provision of the Services.
5. YOUR OBLIGATIONS
5.1 You shall:
(a) co-operate with us in all matters relating to the Services;
(b) provide us, in a timely manner, such Documents, information and materials relating to the Services as we may reasonably require and ensure that they are accurate in all material respects;
(c) provide us, our agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to your premises, office accommodation, data and other facilities as required by us; and
(d) inform us of all health and safety rules and regulations and any other reasonable security requirements that apply at any of your premises.
5.2 If our performance of our obligations under the Contract is prevented or delayed by any act or omission by you, your agents, subcontractors, consultants or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay.
5.3 You shall not, without our prior written consent, at any time from the date of the Contract to the expiry of 12 months after the termination of the Contract, solicit or entice away from us or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor by us in the provision of the Services.
5.4 Any consent given by us in accordance with condition 5.3 shall be subject to you paying to us a sum equivalent to 25% of the then current annual remuneration of our employee, consultant or subcontractor or, if higher, 25% of the annual remuneration to be paid by you to that employee, consultant or subcontractor.
5.5 You acknowledge that the Services are intended to provide a guide only to you of the suitability, capability and aptitude of potential and/or existing employees, consultants or subcontractors. Accordingly, you agree that that you shall be solely responsible for all decisions taken or not taken in respect of such persons and shall indemnify us for any losses, damages, costs (including legal fees) and expenses incurred by or awarded against us which arise out of such decisions taken by you. Any reports prepared by us for you represent opinions based on test results and cannot be relied upon as statements of fact.
6. CHARGES AND PAYMENT
6.1 In consideration of the provision of the Services by us, you shall pay the charges as set out in the Contract which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both. Condition 6.2 shall apply if we provide the Services on a time and materials basis. Condition 6.3 shall apply if we provide the Services for a fixed price. The remainder of this condition 6 shall apply in either case.
6.2 Where Services are provided on a time and materials basis:
(a) the charges payable for the Services shall be calculated in accordance with our daily fee rates, as set out in the Contract;
(b) our daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between 8.00 am and 5.00 pm on weekdays (excluding public holidays);
(c) we shall be entitled to charge an overtime rate of 150% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals on the Services on weekends or bank holidays;
(d) all charges quoted to you shall be exclusive of VAT, which we shall add to our invoices at the appropriate rate;
(e) we shall invoice you monthly in arrears for our charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition 6.2.
6.3 Where the Contract provides that the Services are to be provided for a fixed price, the total price shall be paid to us (without deduction or set-off) in instalments or in one lump sum, as specified in the Contract. On the date or dates specified the Contract, we shall invoice you for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in condition 6.4.
6.4 Any fixed price and daily rate contained in the Contract excludes:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom we engage in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by us for the supply of the Services. Such expenses, materials and third party services shall be invoiced by us; and
(b) VAT, which we shall add to our invoices at the appropriate rate.
6.5 Travel within the EEA shall be via standard / economy class unless in exceptional circumstances, agreed in advance with the MDV Managing Partner. Travel time within the EEA may be charged. Intercontinental travel shall be via Business Class and travel time will be charged.
6.6 You shall pay each invoice submitted to you by us, in full and in cleared funds, within 30 days of receipt to a bank account nominated in writing by us.
6.7 Without prejudice to any other right or remedy that we may have, if you fail to pay us on the due date, we may:
(a) charge interest on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of Barclays Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and you shall pay the interest immediately on demand. We may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
6.8 Time for payment shall be of the essence of the Contract.
6.9 All sums payable to us under the Contract shall become due immediately on its termination, despite any other provision. This condition 6.8 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
6.10 We may, without prejudice to any other rights we may have, set off any liability you owe to us against any liability we owe to you.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 As between you and us, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by us. Subject to condition 7.2, we license all such rights to you free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable you to make reasonable use of the Deliverables and the Services. If the Contract terminates, this licence shall automatically terminate.
7.2 You acknowledge that, where we do not own any Pre-existing Materials, your use of rights in Pre-existing Materials is conditional on us obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle us to license such rights to you.
8.1 You 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 you by us, our employees, agents, consultants or subcontractors and any other confidential information concerning our business or its products which you may obtain.
8.2 You may disclose such information:
(a) to your employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out your obligations under the Contract; and
(b) as may be required by law, court order or any governmental or regulatory authority.
8.3 You shall ensure that your employees, officers, representatives, advisers, agents or subcontractors to whom you disclose such information comply with this condition 8.
8.4 You shall not use any such information for any purpose other than to perform your obligations under the Contract.
9. LIMITATION OF LIABILITY
YOUR ATTENTION IS DRAWN TO THIS CONDITION IN PARTICULAR
9.1 This condition 9 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents, consultants and subcontractors) to you in respect of:
(a) any breach of the Contract, including any deliberate breach of the Contract by us, or our employees, agents or subcontractors;
(b) any use made by you of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these Conditions limits or excludes our liability for:
(a) death or personal injury resulting from negligence; or
(b) any damage or liability incurred by you as a result of fraud or fraudulent misrepresentation by us; or
(c) any other liability which cannot be limited or excluded as a matter of law
9.4 We have given commitments as the standard of care we will exercise in connection with the Services in clause 4. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
9.5 Subject to condition 9.2 and condition 9.3, our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid for the Services.
If you wish to cancel or postpone the dates specified in the Contract for performance of the Services or any part of the Services, we will discuss with you whether substitute work to replace the work that has been cancelled or postponed can be carried out on the dates arranged for performance of the Services (or part thereof). If the parties do not agree to the performance of any substitute work within 3 working days, you shall pay the following cancellation charges to us immediately on demand, unless otherwise agreed in writing by us:
(a) Within 5 working days of the start date: 100% of the charges for the Services cancelled or postponed, calculated in accordance with condition 6.
(b) Within 10 working days of the start date: 50% of the charges for the Services cancelled or postponed, calculated in accordance with condition 6.
(c) Within 15 working days of the start date: 25% of the charges for the Services cancelled or postponed, calculated in accordance with condition 6.
11.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other on giving the other not less than one month’s written notice or if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
(d) the other party becomes or is reasonably likely to become insolvent, enters into administration, bankruptcy or compromises any debts with creditors.
11.2 On termination of the Contract for any reason:
(a) you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt;
(b) you shall return all of our Pre-existing Materials and Deliverables. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned or repossessed, you shall be solely responsible for their safe keeping; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11.3 On termination of the Contract (however arising), the conditions 7, 8, 9, 11 and 22 shall survive and continue in full force and effect.
12. FORCE MAJEURE
We shall have no liability to you under the Contract if we are prevented from, or delayed in performing, our obligations under the Contract or from carrying on our business by acts, events, omissions or accidents beyond our reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13.1 We may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If we request a change to the scope of the Services for any other reason, you shall not unreasonably withhold or delay consent to it.
13.2 Subject to condition 13.1, no variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
14. DATA PROTECTION
14.2 We will each provide the other with reasonable assistance for the purposes of ensuring the use and processing of personal data in connection with the Services is conducted in compliance with all applicable data protection rules and legislation.
14.3 You acknowledge that we are reliant on you alone for direction as to the extent that we are entitled to use and process personal data about your staff, employees, prospective employees and other third parties received from you. Consequently, you warrant that you have complied in all respects with your obligations under all relevant data protection rules and legislation and all other applicable laws (including but not limited to obtaining consents where required, and providing information when required) such that you are lawfully able to provide the personal data to us to use for the purposes of us providing services to you.
14.4 You indemnify us against all and any losses, damages, costs (including legal fees) and expenses incurred by or awarded against us which arise out of or in connection with any breach or alleged breach of the warranty given by you in clause 14.2, or any breach of applicable data protection legislation.
14.5 In certain circumstances, we will act as a “data processor” of personal data that you provide to us (for example, data about your employees). Our Data Processor Addendum is incorporated into this agreement and will apply in such circumstances. Our Data Processor Addendum can be found at www.mdvconsulting.co/data-processor-addendum/ or is available on request.
15.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. 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.
15.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
16.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
16.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17. ENTIRE AGREEMENT
17.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
17.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently).
17.3 Nothing in this condition shall limit or exclude any liability for fraud.
18.1 Neither party shall assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any manner with all or any of its rights or obligations under the Contract without the other party’s prior written consent.
18.2 We may subcontract our duties to our group companies, partners, associates or other qualified subcontractors but we will remain at all times responsible to you for their performance.
19. NO PARTNERSHIP OR AGENCY
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.
20. RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the registered address of the other party
22. GOVERNING LAW AND JURISDICTION
22.1 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, the law of England and Wales.
22.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).