Application and entire agreement
- These Terms and Conditions apply to the provision of the services detailed in our quotation (Services) by Wild Herbert Ltd a company registered in England and Wales under number 11125340 whose registered office is 4 Heath Drive, Knutsford, United Kingdom, WA16 0WS (we or us or Service Provider) to the person buying the services (you or Customer).
- You are deemed to have accepted these Terms and Conditions when you accept our quotation or from the date of any performance of the Services (whichever happens earlier) and these terms and conditions (Terms and Conditions) together with our quotation shall form the contract between us and you (Contract).
- Acceptance of our quotation by you constitutes an offer by you to purchase the Services in accordance with these Terms and Conditions (Order).
- The Order shall only be deemed to be accepted by us, when we issue written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
- Any quotation given by us shall not constitute an offer, and is only valid for a period of 10 business days from its date of issue.
- The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Terms and Conditions apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- A “business day” means any day other than a Saturday, Sunday or bank holiday in England and Wales.
- “Services” means the services, as more particularly set out in our quotation.
- The headings in these Terms and Conditions are for convenience only and do not affect their interpretation.
- Words imparting the singular number shall include the plural and vice-versa.
- A reference to writing or written includes email.
- We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the quotation, including any specification in all material respects. We can make any changes to the Services which are necessary to comply with any applicable law or safety requirement or if the amendment will not materially affect the nature or quality of the Services, and we will notify you if this is necessary.
- We will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out in the quotation; however, time shall not be of the essence in the performance of our obligations.
- All of these Terms and Conditions apply to the supply of any goods as well as Services unless we specify otherwise.
- If you do not comply with clause 15:
- without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Services until you remedy your default, and to rely on your default to relieve us from the performance of any of our obligations in each case to the extent your default prevents or delays our performance of any of our obligations;
- we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out above; and
- you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from your default.
- If you fail to remedy your default within 10 business days of us having notified you in writing of your default then we reserve the right to terminate the Contract with immediate effect.
- We are not liable for any delay or failure to provide the Services if this is caused by your failure to comply with the provisions of this section (Your obligations).
Fees and Deposit
- The fees (Fees) for the Services are set out in the quotation and are on a time and materials basis.
- In addition to the Fees, we can recover from you a) reasonable incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, b) the cost of services provided by third parties and required by us for the performance of the Services, and c) the cost of any materials required for the provision of the Services.
- You must pay us for any additional services provided by us that are not specified in the quotation in accordance with our then current, applicable hourly rate in effect at the time of performance or such other rate as may be agreed between us. The provisions of clause 20 also apply to these additional services.
- The Fees are exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.
- You must pay a deposit (Deposit) as detailed in the quotation at the time of accepting the quotation.
- If you do not pay the Deposit to us according to the clause above, we can either withhold provision of the Services until the Deposit is received or can terminate under the clause below (Termination)
- The Deposit is non-refundable unless we fail to provide the Services and are at fault for such failure (where the failure is not our fault, no refund will be made).
Cancellation and amendment
- Either we or you can cancel an Order for any reason prior to your acceptance (or rejection) of the quotation.
- If you want to amend any details of the Services you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and additional costs will be included in the Fees and invoiced to you.
- If, due to circumstances beyond our control, including those set out in the clause below (Circumstances beyond a party’s control), we have to make any change in the Services or how they are provided, we will notify you immediately. We will use reasonable endeavours to keep any such changes to a minimum.
- We will invoice you for payment of the Fees either:
a. when we have completed the Services; or
b. on the invoice dates set out in the quotation.
- You must pay the Fees due within 14 days of the date of our invoice or otherwise in accordance with any credit terms agreed between us.
- Time for payment shall be of the essence of the Contract.
- All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.
- if you do not pay within the period set out above then we shall charge you statutory interest on the amount outstanding until payment is received in full.
- Receipts for payment will be issued by us only at your request.
- All payments must be made in British Pounds unless otherwise agreed in writing between us.
Sub-Contracting and assignment
- We can at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under these Terms and Conditions and can subcontract or delegate in any manner any or all of our obligations to any third party.
- You must not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions.
- We can terminate the provision of the Services immediately if you:
- commit a material breach of your obligations under these Terms and Conditions; or
- fail to make pay any amount due under the Contract on the due date for payment; or
- are or become or, in our reasonable opinion, are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor; or
- enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or
- convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency.
- On termination or expiry of the Contract:
- 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 shall submit an invoice, which shall be payable by you immediately on receipt;
- termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
- any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect
- Unless, otherwise agreed in writing with you, we reserve all copyright and any other intellectual property rights which may subsist in any goods supplied in connection with the provision of the Services. We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights.
- Any assignment or licence to you of the above referred to intellectual property rights, will only be effective when you have paid all Fees due to us.
Liability and indemnity
The Customer’s attention is specifically drawn to this clause:
- Our liability under or in connection with the Contract, and in breach of statutory duty, and in tort, misrepresentation, contract or restitution or otherwise, shall be limited as set out in this section.
- The total amount of our liability is limited to the total amount of Fees payable by you during the 12 month period prior to such liability arising.
- The provisions of these paragraphs (Liability and Indemnity) do not limit the Customer’s payment obligations under the Contract.
- We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Services or the performance of any of our other obligations under the Contract for:
- any indirect, special or consequential loss, damage, costs, or expenses or;
- any loss of profits; loss of anticipated profits; loss of business; loss of use or corruption of software, data or information; loss of reputation or goodwill; loss of sales; loss of agreements or contracts; business interruption; or, other third party claims; or
- any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; or
- any losses caused directly or indirectly by any failure or your breach in relation to your obligations; or
- any losses arising directly or indirectly from the choice of Services and how they will meet your requirements or your use of the Services or any goods supplied in connection with the Services.
- You must indemnify us against all damages, costs, claims and expenses suffered by us arising from any loss or damage to any equipment (including that belonging to third parties) caused by you or your agents or employees.
- Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability.
- Unless you notify us that that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
- The provisions of these paragraphs (Liability and Indemnity) shall survive termination and or expiry of the Contract.
For the purpose of this clause: UK Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679)(GDPR); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
- Both parties will comply with all applicable requirements of the UK Data Protection Legislation. This paragraph is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the UK Data Protection Legislation.
- When supplying the Services to the Customer, the Service Provider may gain access to and/or acquire the ability to transfer, store or process the personal data of customers or employees of the Customer.
- The parties agree that where such processing of personal data takes place, the Customer shall be the ‘data controller’ and the Service Provider shall be the ‘data processor’ as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time.
- For the avoidance of doubt, ‘Personal Data’, ‘Processing’, ‘Data Controller’, ‘Data Processor’ and ‘Data Subject’ shall have the same meaning as in the GDPR.
- The Service Provider shall only Process Personal Data to the extent reasonably required to enable it to supply the Services as mentioned in these Terms and Conditions or as requested by and agreed with the Customer and shall not retain any Personal Data longer than necessary for the Processing.
- The Service Provider shall not disclose Personal Data to any third parties other than employees, directors, agents, sub- contractors, third party service providers and partners or advisors on a strict ‘need-to-know’ basis and only under the same (or more extensive) conditions as set out in these Terms and Conditions or to the extent required by applicable legislation and/or regulations.
- The Service Provider shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
- You warrant to us that all relevant data subjects whose personal data is supplied or made available to us (Customer Personal Data), have given their informed consent for us to:
- Process their personal data in accordance with our GDPR policy; and
- transfer the Customer Personal Data to destinations outside the EEA which may have lower standards of data protection than those applicable in the EEA.
- You consent to us:
- Collecting the above referred to personal data to enable us to provide the Services;
- using software tools to collect, aggregate and anonymise personal data;
- retaining anonymised data to analyse certain sector specific trends and provide market analytics data to our customers;
- transfer anonymised personal data to destinations outside the EEA which may have lower standards of data protection than those applicable in the EEA.
- You shall indemnify us for any cost, claim or expense arising in respect of any Customer Personal Data under this Contract as a result of:
- you breaching the UK Data Protection Legislation; or
- you causing us to be in breach of the UK Data Protection Legislation.
- Further information about the Service Provider’s approach to data protection are specified in its Data Protection Policy, which can be found On our website (https://www.wildherbert.co.uk/privacy-policy). For any enquiries or complaints regarding data privacy, you can contact our Data Protection Officer at the following e-mail address: firstname.lastname@example.org.
Circumstances beyond a party’s control
- Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question. If the delay continues for a period of 90 days, either of us may terminate or cancel the Services to be carried out under these Terms and Conditions.
- All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
- Notices shall be deemed to have been duly given:
- when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
- when sent, if transmitted by email and a successful transmission report or return receipt is generated;
- on the fifth business day following mailing, if mailed by national ordinary mail; or
- on the tenth business day following mailing, if mailed by airmail.
- All notices under these Terms and Conditions must be addressed to the most recent address or email address notified to the other party.
- Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 66.
- to its employees, officers, partners, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority
- No delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy.
- Except as set out in these Terms and Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).
Law and jurisdiction
- This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.