Service Supplier Terms & Conditions
The following provisions set out the terms and conditions upon which Lineside Logistics (Southern) Ltd of 177 – 185 Hornchurch Road, Hornchurch, Essex RM12 4TE (the 'Client') contracts for the supply of services with the supplier of such services (the 'Service Partner') and the Service Partner agrees that these terms and conditions form a binding legal contract (the Agreement') between the parties. For the avoidance of doubt, full or part performance of the Services by the Service Partner will be deemed to be acceptance of these terms and conditions.
The Client and its client ('Main Client') entered into a contract (the 'Main Contract') whereby the Client will provide or engage for the provision of certain services for the Main Client. The Main Contract provides that all or part of the services will be performed by a sub-contractor ('Specified Services'). The Main Client and the Client have agreed that the Specified Services will be performed by the Service Partner and the Service Partner is willing to perform the Specified Services, all in accordance with the provisions of this Agreement.
1 Definitions
In this Agreement, the following words shall have the following meanings:
'Acceptance Criteria'
the acceptance standards and criteria for each element of the Specified Services and Deliverables to be provided;
'Deliverables'
the goals, targets or results that the Service Partner shall be required to reach or achieve and as specified in the Specification;
'Fee(s)'
the amount(s) set out in the Specification that the Client shall pay to the Service Partner subject to the provisions of the clause 3;
'Notification'
the meaning given in clause 2.5;
'Parties'
the Fee chargeable for a particular time period spent in performing the Specified Services and as set out in the Specification;
'Rate'
the Fee chargeable for a particular time period spent in performing the Specified Services and as set out in the Specification;
'Specification'
the Specified Services to be provided by the Service Partner under this Agreement including as appropriate when such Specified Services will be provided, the length of time they will take to perform and the human and other resources and facilities which are to be supplied by the Service Partner. The Specification is set out in Schedule 1 to this Agreement;
'Specified Services'
the meaning given in Recital B; and
'Timescales'
the dates and times at which or by when the Service Partner shall carry out the Specified Services.
2 Provision of services
2.1 The Service Partner shall carry out the provision of the Specified Services in accordance with:
2.1.1 the provisions of this Agreement;
2.1.2 the Specification;
2.1.3 the provisions of the Main Contract (as far as they relate to the provision of the Specified Services by the Service Partner); and
2.1.4 any direction(s) given by the Client and/or the Main Client from time to time.
2.2 The relevant part of the Main Contract (as set out in Schedule 2) shall be incorporated into this Agreement. Where there is a conflict between the provisions of this Agreement and the provisions of the Main Contract, the provisions of this Agreement shall prevail.
2.3 The Specification shall set out the Specified Services to be performed by the Service Partner, the Deliverables that the Service Partner is to supply, the Timescales and the Rate and costs.
2.4 Without limiting the generality of clause 2.1 the Service Partner shall provide the Specified Services as set out the Specification and provide the Deliverables within the Timescales.
2.5 The Specification sets out the Acceptance Criteria. Upon completion by the Service Partner of each element of the Specified Services and the Deliverables:
2.5.1 the Service Partner shall notify the Client that it has completed such Specified Services or Deliverables ('Notification');
2.5.2 the Client shall have 30 days from the date of receiving the Notification to evaluate whether the completed Specified Services or provided Deliverables are in accordance with the Acceptance Criteria;
2.5.3 if the completed Specified Services or provided Deliverables are not in accordance with the Acceptance Criteria, the Client shall notify the Service Partner, and at the discretion of the Client require the Service Partner:
2.5.3.1 to re-perform those Specified Services or provide again those Deliverables (within such timescale as the Client shall specify); or
2.5.3.2 to carry out such other actions as the Client may specify which the Client considers necessary to perform the Specified Services specified in the Specification, provide the Deliverables and meet the Acceptance Criteria.
For the avoidance of doubt, any Specified Services or other activities carried out by the Service Partner under this clause 2.5.3 shall be without charge to the Client.
2.5.4 If at the end of 30 days the Client has not notified the Service Partner as to whether or not the Specified Services or the Deliverables are in accordance with the Acceptance Criteria then the Service Partner shall be entitled to regard those Specified Services or Deliverables as being in accordance with the Acceptance Criteria.
3 Payment
3.1 The Client shall pay the Service Partner the Fee set out in the Specification, subject to any variation in the Fee due to changes in the amount of Specified Services that the Service Partner shall provide.
3.2 If the Fee is linked, but not limited, to the Service Partner achieving particular results, providing Deliverables or meeting any Acceptance Criteria or Timescales ('Results'), then the Service Partner shall only submit an invoice on the satisfactory achievement of the Results. If the Fee is not linked to the achievement of any Result, the Service Partner shall submit invoices to the Service Partner at the end of each calendar month for work carried out by the Service Partner during the previous month.
3.3 All payments to be made by the Client to the Service Partner shall be subject to the provisions of this clause 3.3. Payments are subject to the Client being paid by the Main Client. If the Client does not receive payment from the Main Client, or does not expect payment from the Main Client, for any work which is to be performed or has been performed by the Service Partner ('Non Payment Amount'), then the Service Partner acknowledges and agrees that the Client shall have no obligation to make payment to the Service Partner for any work that relates to the Non Payment Amount.
3.4 The payment of the Fee shall be made by the Client to the Service Partner 60 days after the date of the Service Partner's invoice based on the submission such an invoice on the last day of the month in which the services have been rendered.
3.5 For Fees calculated on the basis of the amount of work carried out by the Service Partner in performing the Specified Services, the rate and the method of calculation is set out in the Specification.
3.6 The Service Partner shall not charge, and the Client shall not be liable, for any expenses, charges, costs, fees except the Fees and costs as set out in the Specification.
3.7 If any of the Specified Services have not been performed by the Timescales, or in accordance the Specification, or have not resulted in the provision of the Deliverables, or have not met the Acceptance Criteria, the Client shall be entitled not to make any outstanding payments until the Specified Services have been performed (or re-performed) if such performance or re-performance is required. For the avoidance of doubt, where the Client withholds payment under clause 3.3 the Service Partner shall not be relieved from the obligation to carry out any unperformed Specified Services.
3.8 The Client may withhold payment of, or make any deduction from, any invoice or other amount due to the Service Partner by reason of any right of set-off or counterclaim which the Client may have or allege to have or for any reason whatsoever
3.9 All amounts stated are exclusive of VAT which will be charged in addition at the rate in force at the time the Client is required to make payment.
3.10 When making a payment the Client shall quote relevant reference numbers and the invoice number.
4 Records
4.1 The Service Partner shall keep records of its work under this Agreement and the Main Contract in the form as specified in the Specification and shall includes records of time spent, work carried out, employees and representatives who performed the work and accounting and financial records.
4.2 The Client and the Main Client shall have the right to inspect such records on one working day's notice at the address of the Service Partner during the existence of this Agreement and for a period of 3 years following termination of this Agreement. The Client and the Main Client shall also have the right to require the Service Partner make and provide copies of such records (without charge to the Client and the Main Client).
5 Use of Client's or Main Client's equipment, facilities or computer software
5.1 If the Service Partner requires access to or use of the Client or Main Client's equipment or facilities in order to perform the Specified Services, and such use is permitted by the Client or the Main Client as the case may be, the Service Partner shall:
5.1.1 comply with all requirements as to health and safety and use and operation of any equipment or facilities which are provided or notified to the Service Partner;
5.1.2 comply with all security measures of the Client and the Main Client (including, but not limited, to providing such information or carrying out on or permitting checking of the Service Partner's employees or representatives as the Client or Main Client require); and
5.1.3 ensure that all of the Service Partner's staff and representatives shall have received proper and adequate instruction in the use of the Client's or Main Client's equipment or facilities.
5.2 Where the Service Partner is required to use any computer software of the Client or Main Client in order to perform the Specified Services, the Client or Main Client shall:
5.2.1 provide sufficient copies of the computer software for the Service Partner to perform the Specified Services; and
5.2.2 grant a non-exclusive, royalty free, non-transferable license in order for the Service Partner to perform the Specified Services.
Any license granted under the provisions of this clause 5.2 shall automatically terminate when the Specified Services are completed, or any Acceptance Criteria are satisfied, or on termination of this Agreement.
5.3 Where the license for a computer software supplied by the Client or Main Client is terminated, the Service Partner shall immediately return any copies supplied (including any documentation, manuals etc) to the Client or Main Client or destroy the copies, at the direction of the Client or Main Client.
6 Use of sub-contractors
6.1 The Service Partner is permitted to use other persons to provide some or all of the Specified Services only with the express prior written permission of the Client.
6.2 The Service Partner shall be responsible for the work of a sub-contractor whose work shall be undertaken to the same standard [as stated in this Agreement [and the Specification] (or) as agreed by the Parties]. However, the Parties acknowledge and agree that some sub-contractors have their own terms and conditions and which are more restrictive than those in this Agreement. For example, without limiting the generality of the foregoing, a sub-contractor may have more restrictive wording as to the standard it will reach in work it performs (as to timing or quality), what is to happen if that standard is not reached or met, issues concerning the restriction and exclusion of liability, and so on). Where the terms and conditions of a sub-contractor or more restrictive or exclusory than the provisions of this Agreement, the Parties agree that work provided by a sub-contractor will be governed by the terms and conditions of the sub-contractor rather than the provisions of this Agreement.
7 Warranties, liability and indemnities
7.1 The Service Partner warrants, represents and undertakes that:
7.1.1 it will carry out the work within and by the Timescales;
7.1.2 it will perform the Specified Services in accordance with the Specification;
7.1.3 it will carry out the Specified Services with all due skill and diligence and in a good and workmanlike manner, and in accordance with the best practice within the industry of the Service Partner ('Best Practice');
7.1.4 it will use its best endeavours to meet all the Acceptance Criteria and provide the Deliverables;
7.1.5 the Service Partner's employees and agents will have the necessary skills, professional qualifications and experience to perform the Specified Services in accordance with the Specification and Best Practice;
7.1.6 it has full capacity and authority to enter into this Agreement;
7.1.7 it has obtained all necessary and required licenses, consents and permits to perform the Specified Services;
7.1.8 it shall be responsible for all costs, fees, expenses and charges for training necessary or required for the Service Partner's employee and agents to perform the Specified Services;
7.1.9 it shall maintain adequate insurance in its own name to the reasonable satisfaction of the Client against £5 Million pounds sterling public liability and in respect of any liability of the Service Partner to the Client to a value which shall not be less than 10 Million pounds sterling;
7.1.10 it will comply, and ensure that its employees, contractors and agents comply, with all rules, policies, practices and requirements of the Main Client, including health and safety rules, especially when such persons are on or at the Main Client's premises or premises under the Main Client's control.
7.2 If the Service Partner performs the Specified Services (or any part of the Specified Services) negligently or in breach of this Agreement, then if requested by the Client or the Main Client, the Service Partner will re-perform the relevant part of the Specified Services. The Client's or Main Client's request must be made within 6 months of the date on which the Service Partner completes performing the Specified Services.
7.3 Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law. Nothing in this Agreement excludes liability for fraud.
7.4 The Service Partner hereby indemnifies the Client and will keep Client indemnified on a continuing basis from and against any and all loss, damage or liability (whether criminal or civil) suffered and legal fees and costs incurred by the Client resulting from a breach of this agreement by the Service Partner and/or any act, neglect or default of Service Partner's employees or agents and/or breaches in respect of any matter arising from the supply of the services resulting in any successful claim by any third party.
7.5 The Service Partner hereby indemnifies the Client and will keep the Client indemnified on a continuing basis against any costs and/or liabilities including any contractual entitlements in respect of salary, wages or other emoluments, employer's national insurance contributions, pay-as-you-earn tax deductions, pension contributions or payments, any reimbursement of employee expenses and any settlements, awards, costs (including legal costs) or penalties in respect of all and any claims made by or in relation to any employee of the Service Partner engaged in carrying out the Specified Services or in respect of whom, pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006, liabilities transfer or are deemed to transfer the Client by reason of the Service Partner providing the Specified Services under this Agreement or the termination of this Agreement for any reason.
8 Termination
8.1 The Client may terminate this Agreement forthwith where the Service Partner fails to meet the Acceptance Criteria or where the Main Client terminates the Main Contract.
8.2 Without prejudice to the other remedies or rights a Party may have, either Party may terminate this Agreement, at any time, on written notice to the other Party ('Other Party'). The notice will take effect as specified in the notice:
8.2.1 if the Other Party is in material breach of its obligations under this Agreement and where the breach is capable of remedy within 30 days, the Other Party has not remedied the breach within 30 days of receiving written notice which specifies the breach and requires the breach to be remedied; or
8.2.2 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.
8.3 Upon termination of this Agreement for any reason, the Service Partner shall deliver, and require that its employees or representatives deliver to the Client all materials and any other property of the Client which are in the possession or control of the Service Partner or the Service Partner's employees, agents or sub-contractors at the date of termination.
9 General
9.1 Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the control of that Party. The Party affected by such circumstances 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. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
9.2 Amendments
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
9.3 Assignment
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
9.4 Entire agreement
This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
9.5 Waiver
No failure or delay by the Service Partner in exercising any right, power or privilege under this 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 this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
9.6 Agency, partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
9.7 Further assurance
Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
9.8 Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
9.9 Announcements
No Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes all the Parties with a copy of such announcement or information and obtains the approval of such persons to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
9.10 Interpretation
In this Agreement unless the context otherwise requires:
9.10.1 words importing any gender include every gender;
9.10.2 words importing the singular number include the plural number and vice versa;
9.10.3 words importing persons include firms, companies and corporations and vice versa;
9.10.4 references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
9.10.5 reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
9.10.6 any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
9.10.7 the headings to the clauses, schedules and paragraphs of this Agreement are not to affect the interpretation;
9.10.8 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
9.10.9 where the word 'including' is used in this Agreement, it shall be understood as meaning 'including without limitation'.
9.11 Notices
9.11.1 Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail, or by facsimile or e-mail to the address, facsimile number or email address of the relevant Party or such other address, facsimile number or email address as that Party may from time to time notify to the other Party in accordance with this clause
9.11.2 Notices sent as above shall be deemed to have been received 3 working days after the day of posting (in the case of inland first class mail) or on the next working day after transmission (in the case of facsimile messages, but only if a transmission report is generated by the sender's facsimile machine recording a message from the recipient's facsimile machine, confirming that the facsimile was sent to the number indicated above and confirming that all pages were successfully transmitted), or next working day after sending (in the case of e-mail).
9.11.3 In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.
9.12 Law and jurisdiction
The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
9.13 Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.