Terms & Conditions

1 – Definitions

Acknowledgement means Sharon Porter Consulting (SPC) written acknowledgement of Client’s Order, confirming supply of Services subject to these terms and Conditions.

Client means the party to whom the Proposal is addressed

Contract means the written agreement between SPC and the Client for the supply of Services which incorporates in order of precedence: the Acknowledgement (if applicable), these terms and conditions, the Proposal and the Order (excluding any terms and conditions contained therein).

Contract Price means the total price of the Services.

Deliverable(s) means any products, reports, results, designs or other items to be provided to the Client resulting from the Services. SPC means the supplier of the Services.  SPC whose trading address is 303 Ridgeway Road, Fishponds, Bristol, BS16 3JZ.

SPC Employees means employees, consultants and subcontractors of SPC.

IPR means all patterns, trademarks, trade/business names, copyright, rights in designs, database rights, software rights, trade secrets, rights to know-how and confidential information and all intellectual property rights (whether or not registered), together with rights to apply for any of these globally.

Order means Client’s purchase order, Proposal acceptance, request to proceed or other communication requesting the supply of Services.

Proposal means SPC’s written quotation or tender inviting a Client to place an Order.

Services means any Services to be supplied by SPC under the Contract. Definition.

2 – The Contract

2.1 – Any Order, whether or not in response to a Proposal shall be deemed an offer subject to SPC’s acceptance by means of an Acknowledgement. In the event SPC commences Services in advance of sending an Acknowledgement, such services shall be governed by these terms and conditions.

2.2 – Notwithstanding clause 2.1, if a Client unconditionally accepts SPC’s unedited Proposal, the signed Proposal/unconditional acceptance of these terms and conditions shall form entire Contract, no Acknowledgement being necessary.

2.3 – Any Contract between the parties shall be on the basis of these terms and conditions not withstanding any Contract terms and conditions sought to be applied by the Client, which SPC hereby rejects. These terms and conditions prevail over any terms implied by custom, practice or otherwise supplied.

2.4 – SPC shall provide Services and the Client shall pay the Contract Price in respect of the Services.

2.5 – Unless otherwise noted herein, this Contract may only be amended, modified or waived by written agreement of the parties. Any additional work performed shall be governed by these terms and conditions.

3 – Price

3.1 – The Contract Price and all other amounts payable under this Contract or exclusive of VAT, sales tax and all other duties and taxes, which shall be payable in addition by the Client.

3.2 – Upon notice to the Client, SPC may vary the Contract Price if following the date of this Proposal there is any change in applicable rate of exchange or taxes.

3.3 – If withholding taxes are imposed by any authority in respect of payments due, the Client shall deduct and pay such withholding taxes on a timely basis (unless SPC has previously provided the Client with evidence satisfactory to the applicable authority that tax is not applicable to such payments). If withholding taxes are deducted, the Client shall pay a grossed up amount to SPC such that the net amount, after such deduction is equal to the amount that the SPC would have received from the Client had withholding been applicable.

4 – Payment

4.1 – SPC shall invoice the Client in accordance with the payment plan set out in its Proposal or, if none, monthly. Payment of invoices shall be made by the Client in full, without deduction or set off, within 30 days of the date of invoice, in the currency invoiced. SPC may require an upfront payment or a revocable letter of credit, and shall not be obliged to commence the Services until this is received.

4.2 – In the event of late payments, SPC shall be entitled to:

(i) charge interest at the rate of 8% per annum and calculated on a daily basis until the payment is received in clear funds, and recover any administrative cost;
(ii) suspended further Services with no liability to the Client as a result of such suspension. The Client shall be liable to pay SPC costs of such suspension.

5 – Delivery and title

5.1 – SPC shall endeavour to achieve any agreed dates for performance or delivery, but all such dates are estimates and SPC shall have no liability to the Client in the event of the failure to achieve such dates.

5.2 – Unless stated otherwise in the Proposal, the Contract Price is based on Services carried out within SPC’s usual business hours and on SPC’s premises.

5.3 – Unless the Client provides SPC with notice within seven days of receipt of the Deliverable, the Client shall be deemed to have accepted the Deliverable.
Notwithstanding delivery, title in any Deliverables shall not pass to the Client until payment of the Contract Price has been received by SPC together with all of the sums which are or become due from the Client.

6 – Warranty

6.1 – Services shall be provided by such SPC employees as SPC considers suitable to undertake the work. SPC warrants that Services shall be undertaken using reasonable skill and care and any Deliverables generated as a result shall be free from material errors or omissions, subject to:

(i) Quality and accuracy of the information and order materials provided by the Client;
(ii) For distribution of newsletters, updates or similar information, SPC shall take reasonable care to ensure the information contained is accurate. However, SPC relies on third-party sources and therefore, does not warrant or represents that such information is complete or free from errors or inaccuracies.

7 – Liability

7.1 – Save as stated in clause 6.1, to the extent permissible at law, all warranties, condition, guarantees or representations as to satisfactory quality, performance, merchantability, fitness for particular purpose or otherwise, whether express or implied by statute or otherwise, oral or in writing are hereby excluded.

7.2 – SPC shall in no circumstance be liable for:

i) Any indirect, special or consequential loss
ii) Loss of profits
iii) Loss of business
iv) Loss of product
v) Loss of use
vi) Loss of Contract
vii) Loss of goodwill
viii) Punitive and/or exemplary damages; even if such loss was or should have been in SPC’s contemplation up on entering the Contract.

7.3 – Notwithstanding anything else contained herein, SPC does not exclude (a) liability for death or personal injury resulting from negligence; or (b) fraudulent misrepresentation.

7.4 – SPC’s liability, whether in breach of Contract and tort (including without limitation negligence) shall not exceed in the aggregate of 120% of the Contract Price.

7.5 – The Client is advised to insure any other losses excluded all limited by clause 7

7.6 – SPC shall not be liable for any claim or court proceedings which are brought against it more than 12 months after the event which is the subject of these proceedings.

8 – IPR and License

8.1 – All IPR in any Deliverables and other items produced as a result of Services shall be exclusive property of SPC. SPC grants Clients a non-exclusive, non-transferable, non-sublicensable, personal license to use the Deliverables for its internal business purposes as anticipated by the Proposal only.

8.2 – Any software provided to the Client under the Contract shall be, subject to the rights of third parties, remain the property of SPC and use therefore by the Client shall be subject to the terms of SPC’s applicable software license and any third party software license.

8.3 – If the Services include any modelling, simulation or software modelling, all Deliverables and other items produced as a result of the Services shall be the exclusive property of SPC. Any software used by SPC, shall be for SPC’s employees use only and shall remain SPC’s exclusive property.

9 – Client obligations

9.1 – The Client shall provide SPC with access, free of charge, to its personnel, premises, office facilities, suitable storage space for SPC’s equipment, documentation, data, information and any other material set out in the Proposal or otherwise upon the reasonable request of SPC.

9.2 – SPC shall not be liable in respect of any damage to the Client provided material which appears as a result of the proper performance of SPC.

9.3 – Following completion of the Services under the Contract, or upon SPC request, all Clients provided materials and equipment shall be returned from SPC within a period of 2 months upon request. If not collected, SPC shall dispose of items in line with SPC GDPR policy.

9.4 – Where meetings are requested by SPC, the Client shall make the correct people (with decision-making authority) available to attend on a timely basis.

9.5 – Where SPC request accurate information and this is not provided in a timely manner by the Client, SPC may make assumptions based on its own knowledge. Any assumptions shall be documented and where appropriate agreed with the Client. SPC shall not be held liable for any delay or error caused by relying on an assumption.

9.6 – The Client undertakes to provide a suitable and safe working environment for SPC’s Employees. SPC’s Employees shall observe the Client’s reasonable site regulations, as notified by SPC.

9.7 – The Client shall obtain all import / export licenses, visas or other consents required, or where required to be applied for in SPC’s name, the Client shall provide assistance where required. Any delay or denial of such consents shall be subject to Clause 11.

9.8 – The Client shall indemnify SPC from any and all claims and losses, including but not limited to claims by a third party, which arise as a result of the wilful, reckless or negligent act or omission of the Client or its employees, agents or sub-contractors or as a result of any breach by the Client or its employees, agents or subcontractors of any of its obligations under the Contract.

9.9 – The Client warrants that no bribes (as defined under the Bribery Act 2010 and similar legislation including but not limited to the US Foreign Corrupt Practices Act, the UK Anti-terrorism, Crime and Security Act 2001 and legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention Against Corruption) have been or shall be offered to, paid to or received from any party or third party in connection with the Contract. The Client warrants that no other offences have been or shall be committed in connection with the Contract. The Client warrants that is has proper procedures and policies in place in compliance with the Bribery Act 2010 and similar legislation

9.10 – When representatives of SPC visit Client premises or third party premises at the direct or indirect request of the Client (i.e. where such visits are necessary to perform its obligations under the Contract), any delay or additional costs including but necessarily limited to site specific inductions, safety passports or other industry standard certifications, where such requirements were not notified in advance of the Contract agreement, shall be paid by the Client. Any consequential delay shall be added pro-rata to the time agreed for provision of Services under the Contract.

10 – Term and Termination

10.1 – The Contract is valid until completion of the Services

10.2 – Without prejudice to any other right or remedy, either party may terminate the Contract and any associated licenses immediately upon giving notice, if the other party:

i) Commits a breach of the Contract, that is capable of remedy, and fails to remedy the breach within 30 days of receipt of notice requesting remedy;
ii) Commits a material breach of the Contract, which cannot be remedied;
iii) Is repeatedly in breach of the Contract provided notice has been given of breaches;
iv) Commits any act or omission which contravenes any relevant laws;
v) Is the subject of a bankruptcy order, becomes insolvent, makes any arrangement or composition with or assignment for the benefit of creditors, goes into either voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, has a receiver or administrator appointed over its assets or any similar event.

10.3 – In any event of termination, all sums to SPC shall be payable immediately (including but not limited to Services performed up to the date of termination and any costs incurred or committed to). Any termination or expiry of this Contract shall not affect the accrued rights or liabilities of either party nor shall it affect any provision hereof which is intended to continue in force on or after such termination.

11 – Force Majeure

SPC shall not be liable to the Client for failure to perform any of its obligations under the Contract to the extent that such failure is a result of circumstances beyond its reasonable control. Should such circumstances continue for more than 21 days, SPC may terminate the Contract.

12 – Confidentiality

Each part shall keep strictly confidential all information disclosed or otherwise discovered regarding the other and its products, software, know-how, the Deliverables and Services except any part of such disclosed information or data which

a) Is in or comes into the public domain without breach of this Contract;
b) The party under obligation can show:

i) Was in possession or known it prior to receipt from the other party;
ii) Was independently developed by or for it without use of such information;
iii) Was obtained by it or made available from a source other than the disclosing party without breach of any confidentiality obligations, or;
iv) Is disclosed by it with the prior written authority of the disclosing party.

13 – Assignment and Subcontracting

The Client shall not assign, subcontract or otherwise transfer any right or obligation of the Contract whether whole or in part, without the consent in writing of SPC.

14 – Non-Solicitation

While this Contract is in force and for a period of 12 months after completion, the Client shall not, directly, or indirectly, seek to employ or otherwise engage the Services of any SPC employees, who have been involved in the Contract of performance of Services.

15 – Entire Agreement

Except for any applicable license agreements between the parties, the Contract contains the whole agreement between the parties and supersedes any previous agreements, communications and representations. No oral representations made by SPC or SPC Employees are binding. Neither part has relied on any representations or collateral warranty which is not set out in the Contract. All other terms and conditions are expressly excluded except those prohibited by statute.

16 – Waiver

No waiver of any breach of any provision of the Contract shall be held as a waiver of any other subsequent breach and the failure of a party to enforce any provision shall not be a waiver of any right subsequently to enforce any other provision.

17 – Severability

If any of the words or provision of this Contract is deemed invalid, illegal or unenforceable for any reason, then the Contract shall be read as if the relevant words or provisions are, the extent required, deleted and the validity of the remaining provisions shall not be affected.

18 – Notices

Any notice required to be given by either party under this Contract shall be deemed to have been given if in writing and sent by post to the other party’s trading address (where the trading address is that address specified in the Contract). Notices are deemed served 24 hours after posting. Any other communication may be by post, email or fax

19 – Rights of Third Parties

No person who not a party to the Contract shall have rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of the Contract.

20 – Governing Law and Jurisdiction

The Contract shall be governed, construed and shall take effect in accordance with the laws of England and Wales, and all disputes arising shall be subject to the exclusive jurisdiction of the Courts of England and Wales to which the Client and SPC irrevocably submit.