STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following definitions apply:
“Business Day” means any day other than weekends, or bank or public holiday in England between the hours of 08:30-17:00;
“Charges” has the meaning given to it in clause 4.1;
“Conditions” means the terms and conditions set out in this document;
“Confidential Information” means any commercial, financial or technical information, information relating to the Services, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
“Contract” means the agreement between Nexus and the User for the supply and purchase of Services subject to these Conditions;
“Force Majeure” means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving Nexus’s or its suppliers’ workforce, but excluding the User’s inability to pay or circumstances resulting in the User’s inability to pay;
“Nexus” means Nexus Leeds Limited, a company registered in England and Wales with company number 11099539 and whose registered office is The Company Secretariat 11/75 E C Stoner Building, University Of Leeds, Leeds, LS2 9JT;
“Nexus Building” means the Nexus Building, Discovery Way, Leeds LS2 3AA;
“Nexus Personnel” means all employees, officers, staff, other workers, agents and consultants of Nexus, its affiliates and any of their sub-contractors who are engaged in the performance of the Services from time to time;
“Services” means the Services performed by Nexus in consideration of the payment of the Charges and as agreed in writing between the parties and any additional services purchased by the User and to be performed by Nexus for the User from time to time;
“Specification” means the description or specification of the Services as agreed in writing between the parties;
“User” means the person who purchases the Services from Nexus; and
“VAT” means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.
1.2 In these Conditions, unless the context requires otherwise:
1.2.1 any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
1.2.2 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.3 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.4 words in the singular include the plural and vice versa;
1.2.5 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.6 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form; and
1.2.7 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made under that legislation.
2. APPLICATION OF THESE CONDITIONS
2.1 These Conditions apply to and form part of the Contract between Nexus and the User. They supersede any previously issued terms and conditions of purchase or supply. No terms or conditions endorsed on, delivered with, or contained in the User’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that Nexus otherwise agrees in writing.
2.2 No variation of these Conditions or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of Nexus.
2.3 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
3. PROVISION OF SERVICES
3.1 Nexus shall provide the Services to the User in accordance with these Conditions.
3.2 Nexus shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are approximate only. Time of performance of the Services is not of the essence.
3.3 Nexus warrants that at the time of performance, the Services shall:
3.3.1 conform in all material respects to their description; and
3.3.2 be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13.
3.4 Nexus shall, at its option, remedy, re-perform or refund the Services that do not comply with clause 3.3.
3.5 The provisions of these Conditions shall apply to any Services that are remedied or re-performed with effect from performance of the remedied or re-performed Services.
3.6 Except as set out in this clause 3:
3.6.1 Nexus gives no warranties and makes no representations in relation to the Services; and
3.6.2 shall have no liability for their failure to comply with the warranty in clause 3.3, and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
3.7 Each party shall comply and shall (at its own expense) ensure that in the performance of its duties under the Contract, its employees, agents and representatives will comply with all applicable laws and regulations.
3.8 Subject to clauses 8 and 9, the User shall promptly provide to Nexus such data and information as Nexus may request from time to time in order for Nexus to analyse and understand how the Nexus Building is being used. Such data and information will only be shared by Nexus with the University of Leeds and other relevant professional partners and shall otherwise be kept confidential.
4. CHARGES AND PAYMENT
4.1 In consideration of the provision of the Services, the User shall pay the Charges calculated in accordance with Nexus’s scale of charges in force from time to time.
4.2 The Charges are exclusive of VAT (or equivalent sales tax) and the User shall pay any applicable VAT to Nexus on receipt of a valid VAT invoice.
4.3 Nexus shall invoice the User in accordance with the timetable agreed in writing with the User, or, where no timetable is agreed, at any time after performance of the Services.
4.4 The User shall pay all invoices in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice and to the bank account nominated by Nexus.
4.5 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date, Nexus may, without limiting its other rights or remedies, charge interest on such sums at 4% a year above the base rate of the Bank of England from time to time in force, and interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment and/or suspend provision of the Services until such time as the sums due to Nexus have been paid in full.
5. COMPLIANCE WITH LAW
Each party warrants that it shall comply with all applicable laws and regulations as are required of it from time to time to perform its obligations under or in connection with the Contract including the Bribery Act 2010, Modern Slavery Act 2015 and the Criminal Finances Act 2017.
6. INDEMNITY FOR PROPERTY DAMAGE
The User shall indemnify, and keep indemnified, Nexus from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Nexus as a result of or in connection with (i) the User’s breach of any of the User’s obligations under the Contract and (ii) the User’s use of the Services.
7. LIMITATION OF LIABILITY
7.1 Subject to clauses 7.2 and 7.3, Nexus’s total liability to the User in any period of 12 months in respect of all claims arising out of or in connection with the Services (whether for breach of contract, in negligence or any other tort, under statute or otherwise) will be limited to a sum equal to 100% of the aggregate amount paid by the User to Nexus in such 12 month period.
7.2 Subject to clause 7.3, Nexus shall not be liable for consequential, indirect or special losses, loss of profit, loss or corruption of data, loss of use, loss of production, loss of contract, loss of opportunity, loss of savings, discount or rebate (whether actual or anticipated), and/or harm to reputation or loss of goodwill.
7.3 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
7.3.1 death or personal injury caused by negligence;
7.3.2 fraud or fraudulent misrepresentation; or
7.3.3 any other losses which cannot be excluded or limited by applicable law.
7.4 Nexus shall not be liable for any delay in or failure of performance caused by Force Majeure.
8. CONFIDENTIALITY AND ANNOUNCEMENTS
8.1 The User shall keep confidential all Confidential Information of Nexus and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
8.1.1 any information which was in the public domain at the date of the Contract;
8.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement; or
8.1.3 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
8.2 This clause shall remain in force in perpetuity.
9. DATA PROTECTION
9.1 For the purpose of this clause 9 “Data Controller”, “Data Processor”, “Personal Data” “Process”, “Processed”, “Processing”, and “Data Processor” shall have the meanings given to them in the Data Protection Legislation. “Data Protection Legislation” means any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction as updated and amended from time to time which relates to the protection of individuals with regards to the Processing of Personal Data to which a party is subject, including the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016 (“GDPR”) and the Data Protection Act 2018.
9.2 The parties each acknowledge and agree that they may need to Process Personal Data relating to each party’s representatives (in their respective capacities as Data Controllers) in order to (as appropriate): (a) administer and provide the Services; (b) request and receive the Services; (c) compile, dispatch and manage the payment of invoices relating to the Services; (d) compile, dispatch and manage the payment of invoices relating to the Services; (e) manage the Contract and resolve any disputes relating to it; (f) respond and/or raise general queries relating to the Services.
9.3 Each party shall Process such Personal Data relating to each party’s representatives for the purposes set out in clause 9.2 in accordance with their respective privacy policies as updated from time to time. The parties acknowledge that they may be required to share Personal Data with their affiliates, group companies and other relevant parties, within the EEA, in order to carry out the activities listed in clause 9.1, and in doing so each party will ensure that the sharing and use of this Personal Data complies with applicable Data Protection Legislation.
10. DISPUTE RESOLUTION
10.1 The parties shall use all reasonable endeavours to reach a negotiated resolution of any dispute arising between the parties out of or in connection with the Contract through the following procedures: (i) within 7 days of service of the notice, the contract manager of the parties shall meet to discuss the dispute and attempt to resolve it and (ii) if the dispute has not been resolved within 7 days of the first meeting of the contract managers, then the matter shall be referred to the chief executives (or persons of equivalent seniority). The chief executives (or equivalent) shall meet within 7 days to discuss the dispute and attempt to resolve it.
10.2 Until the parties have completed the steps referred to in clause 10.1, and have failed to resolve the dispute, neither party shall commence formal legal proceedings or arbitration except that either party may at any time seek urgent interim relief from the courts or emergency arbitrator relief.
11.1 Conflict: If there is an inconsistency between any of the provisions in these Conditions, the agreement between the parties in writing and the other documents incorporated into the Contract as described in these Conditions, the provisions in the agreement in writing between the parties shall prevail, followed by the these Conditions and then the other documents incorporated into the Contract as described in these Conditions.
11.2 Update to Terms: Nexus may update and vary these Conditions from time to time by giving to the User at least 30 days’ notice in writing.
11.3 Waiver: No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.4 Rights and remedies: Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
11.5 Severance: If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
11.6 Entire agreement: The Contract, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
11.7 Assignment: The User shall not, without the prior written consent of Nexus, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. Nexus may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.8 No partnership or agency: Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
11.9 Third party rights: The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
11.10 Notices: Any notice required to be given under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in writing between the parties, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in writing between the parties, or by email, provided confirmation is sent by first class post on receipt of a delivery receipt email from the correct address. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender) provided a hard copy is sent by post to the recipient within one Business Day. A notice sent by email, shall be deemed to be received on receipt of a delivery receipt email from the correct address provided a hard copy is sent by post to the recipient within one Business Day. Any change to the contact details of a party as set out in writing between the parties shall be notified to the other party in accordance with this clause 11.10.
11.11 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 the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).