1.1 These Terms and Conditions shall apply to all aspects of the provision of Services (as hereinafter defined) by Clyde Resources Limited, trading as Call Assistant and/or Time Assistant, a company incorporated under the Companies Acts (registered number SC353174) and having its registered office at Clyde Offices, 48 West George Street, Glasgow, G2 1BP(“the Service Provider”) to the Client (as hereinafter defined). No amendments to these terms and conditions shall be effective unless agreed to in writing by the Service Provider.
2.1 In these Terms and Conditions the following words shall have the following meanings unless the context otherwise requires:
Agreement means these Terms and Conditions together with the Client Work Order between the Service Provider and the Client;
Client means any person, business or partnership to whom the Service Provider delivers the Services as more particularly described in the Client Work Order;
Client Work Order means the document signed by the Service Provider and the Client setting out the details of the supply of the Services by the Service Provider to the Client;
Commencement Date means the date on which the Service Provider commences the provision of the Services to the Client as more fully described in the Client Work Order;
Monthly Period means the calendar month period running from the Commencement Date, and each calendar month thereafter
Services means the services which the Service Provider has agreed to provide to the Client as more fully described in the Client Work Order;
Price means the price (which is quoted exclusive of Value Added Tax or other indirect taxes or duties which shall be payable in addition thereto where such is applicable) payable by the Client in Sterling to the Service Provider as more fully described in the Client Work Order, or such other amount as may be agreed between the parties; and
2.2 The provisions of the Interpretation Act 1978 with respect to interpretation and construction shall apply mutatis mutandis.
2.3 The headings contained herein are for convenience only and shall not be construed as forming part of this Agreement or be taken into account in the interpretation hereof.
2.4 Reference to any section of, or part of, or schedule to, any Act of Parliament shall include any re-enactment or modification thereof.
2.5 The singular includes the plural and vice versa and any gender includes all genders.
2.6 If any term in these Terms and Conditions cannot be enforced or is no longer enforceable, this will not affect the remaining terms.
3.1 The Client shall engage the Service Provider to provide the Services as set out in the Client Work Order.
3.2 The Services shall begin on the Commencement Date and run on a month-to-month basis, as set out in the Client Work Order. Unless terminated by either Party, the Services shall continue on a rolling month-month basis.
3.3 The Service Provider may terminate this Agreement at any time by giving to the Client not less than one weeks’ notice in writing.
3.4 The Client may terminate this Agreement at any time by giving to the Client not less than one months’ notice in writing
3.5 The Client accepts and hereby agrees that the Service Provider shall be and is entitled to seek, apply for and accept contracts to supply services to third parties during the term of this Agreement and the arrangements herein are provided on a non-exclusive basis.
4. Duties of the Service Provider
4.1 The Service Provider shall use all reasonable endeavours to provide the Services to the Client as set out in the Client Work Order. The Service Provider shall notify the Client as quickly as possible if it cannot supply the Services.
4.2 The Service Provider shall competently and diligently perform such duties and exercise such powers in providing the Services as it may from time to time require.
4.3 The Service Provider shall not during the operation of this Agreement hold itself out or permit itself to be held out as having any authority to do or say anything on behalf of the Client unless the Client shall have consented in writing in advance to it doing or saying.
5. Duties of the Client
5.1 The Client shall register a valid credit or debit card with the Service Provider where requested to enable the Service Provider to charge the Client monthly in advance for the Services and in arrears for any additional charges due.
5.2 The Client shall provide the Service Provider with such information and / or facilities that the Service Provider may require to undertake the Services. The Service Provider shall accept no liability whatsoever for the failure to deliver the Services as a result of any failure on the part of the Client to observe any terms of this Agreement.
6.1 The Price is payable in pounds Sterling (£), is exclusive of VAT and is as set out in the Client Work Order.
6.2 The Price may only be varied by mutual agreement in writing between the Client and the Service Provider.
6.3 The Price shall be paid monthly in advance by credit or debit card on the date set out in the Client Work Order (and, for the avoidance of doubt, shall be paid monthly thereafter) and the Client hereby authorises the Service Provider to charge such card for the Price.
6.4 Any failure to make payment in advance days shall entitle the Service Provider to terminate at its option, or suspend, this Agreement without liability. If any part of the Price payable is not received by the due date thereon, without prejudice to any other rights and remedies of the Service Provider, the Service Provider shall be entitled to:-
6.4.1 charge interest to the Client on any portion of the Price not paid at the rate of 5% per annum above the base rate of the Royal Bank of Scotland plc as applying from time to time (or if higher the rate prescribed in terms of the Late Payment of Commercial Debts (Interest) Act 1996) to run from the due date for payment until receipt by the Service Provider of the full amount whether or not after judgement and without prejudice to any other right or remedy of the Service Provider; and/or
6.4.2 refuse to make any supply of the Services to the Client whilst payment remains outstanding; and / or
6.4.3 terminate this Agreement.
6.5 If the Price (as set out in the Client Work Order) has not been agreed prior to the commencement of the Services then the Services shall be charged at the normal hourly rate of £27 per hour for all Services carried out.
6.6 Any Services carried out by the Service Provider over and above those agreed in the Client Work Order (“the Additional Services“) shall be charged to the Client at the normal hourly rate of £27 per hour.
6.7 In the event that any Additional Services are carried out by the Service Provider in accordance with clause 6.6 above, the Service Provider shall raise an invoice (“Additional Services Invoice“) for these Additional Services as soon as possible following the expiry of the Monthly Period during which the Additional Services were carried out.
6.8 Within 3 working days after issue of an Additional Services Invoice the Service Provider shall be entitled to charge the credit or debit card referred to in clause 5.1 for the full amount of the Additional Services Invoice.. In the event of failure by the Client to make payment, the Service Provider shall have the same rights available to him as in clause 6.4 above.
7.1 The entire liability of the Service Provider is as set out in this Clause 7 (including any omissions of its employees, agents, and sub-contractors) to the Client in respect of:
(a) any breach of the Agreement;
(b) any use made by the Client of the Services;
(c) any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Agreement.
7.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
7.3 Nothing in this Agreement excludes or limits the liability of the Service Provider:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Service Provider.
7.4 Subject to Clauses 7.2 and 7.3:
(a) The Service Provider shall not be liable:
(i) for loss of profits;
(ii) for loss of business;
(iii) for depletion of goodwill and / or similar losses;
(iv) for loss of anticipated savings;
(v) for loss of goods;
(vi) for loss of contract;
(vii) for loss of use;
(viii) for loss or corruption of data or information;
(ix) for special, interdict, consequential or pure economic loss, costs, damages, charges or expenses;
(x) where an incorrect telephone number were recorded for a Call Assistant client.
(b) The Service Provider’s total liability in contract, delict (including negligence or breach or statutory duty), misrepresentation, restitution or otherwise arising out of or in connection with the performance or contemplated performance of this Agreement shall be limited to £500
The Service Provider shall have no liability for any failure of the Services caused by an act or omission of a third party supplier of the Service Provider or other party of whom the Service Provider is not responsible.
The Service Provider shall have no liability for loss, theft or damage to any items or equipment of the Client’s as used as part of the Services.
(c) Any task or project which is undertaken and completed must be checked by the client for any anomalies or errors. If returned within 72 hours, these will be rectified free of charge. After 72 hours, full charge will be applied. It is the client’s responsibility to ensure that completed tasks/projects are completed to their satisfaction.
8. Subcontracting and Assignation
8.1 The Service Provider may assign the benefit and / or burden of this Agreement without the consent of the Client.
8.2 The Client acknowledges and agrees that the Service Provider may perform the Services through suitably qualified sub-contractors, the Service Provider remaining responsible for any act or omission of any such sub-contractor.
9.1 The Service Provider may terminate this Agreement forthwith by notice to the Client at any time in the event that:
9.1.1 The Client fails to pay the Price, or any invoice, when due, or a credit or debit card charge is declined or backcharged;
9.1.2 The Service Provider, in its reasonable opinion, considers it expedient in the interests of the efficient and effective management of its business;
9.1.3 The Client breaches any term of the Agreement and fails to remedy same within 14 days of being required to do so in writing (such notice expressly stating the Service Provider’s intention to terminate);
9.1.4 The Client has a receiver, administrative receiver, liquidator or provisional liquidator or trustee in bankruptcy appointed over all or any part of its assets;
9.1.5 An event takes place which would entitle the appointment of a receiver or trustee in bankruptcy over the assets of the Client or which could cause any floating charge on its assets to crystallise;
9.1.6 The Client has stopped payment of, or is unable to pay, its debts or enters into an arrangement with its creditors or some action is taken to terminate its business;
9.1.7 Any event analogous to the events described in Clauses 9.1.4 – 9.1.7 occurs in any jurisdiction in which the Client is incorporated or resident or carries on business; or
9.1.8 If the Client ceases for any reason to carry on business.
9.2 The Client may terminate this Agreement forthwith by notice to the Service Provider at any time in the event that the Service Provider breaches any term of the Agreement and fails to remedy same within 30 days of being required to do so in writing (such notice expressly stating the Client’s intention to terminate).
9.3 Notwithstanding the provisions of Clause 3.3, Clause 3.4, Clause 9.1, or Clause 9.2, and unless otherwise terminated by either party, this Agreement shall continue in full force and effect on a rolling month-month basis.
No failure of the Service Provider to exercise, nor any delay in exercising any right hereunder shall operate as a waiver of that or any other right or remedy of the Service Provider nor shall any partial exercise preclude any further or other exercise.
Neither the Client nor any subsidiary or associated company of the Client, nor any connected person in terms of s.1122 of the Corporation Tax Act 2010, shall, directly or indirectly, solicit or offer employment to any employee or sub-contractor of the Service Provider for any of the Services or engage any such person to provide any services.
Those provisions of these Terms and Conditions which by their nature or implication are required to survive expiry or termination of the Agreement (including but not limited to Clauses 6, 7, 9 and 11 shall so survive and continue in full force and effect, together with any other provisions of these terms and conditions necessary to give effect to such provisions.
13. Third Parties
A person who is not a party to this Agreement shall not have any rights under or in connection with it.
Each provision of these Terms and Conditions shall be construed separately and, save as otherwise expressly provided herein, none of the provisions hereof shall limit or govern the extent, application or construction of any of them and, notwithstanding that any provision of these terms and conditions may prove to be unenforceable by law, the remaining provisions shall continue in full force and effect.
15. Entire Agreement
This Agreement constitutes the entire agreement between the parties hereto in relation to the provision of the Services and supersedes and extinguishes all (if any) prior drafts, agreements, understandings, undertakings, representations, warranties and / or arrangements of any nature whatsoever (whether or not in writing) between the parties hereto in connection therewith.
The Service Provider may from time to time and without notice, change the Client Work Order in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature or scope or the Price for the provision of the Services. Any other substantive variation to the Services will be agreed in writing between the parties.
17. Free Trial
17.1 The Service Provider may (but shall have no obligation to) offer a Free Trial from time to time for either Call Assistant and/or Time Assistant
17.1.1 For Call Assistant, trial will last 1 week or 15 calls, whichever occurs first; thereafter a chargeable service will commence at the basic tariff rate.
17.1.2 For Time Assistant trial will last 1 week or 2 hours, whichever occurs first; thereafter a chargeable service will commence at the hourly PAYG rate until a package is agreed.
17.2 Credit / Debit Card details will be provided at the commencement of the Free Trail and should the Client not terminate by the end of the Trial Period, the Service provider shall charge same with ongoing costs as per the Work Order and the Service Provider’s price lists.
18. No Partnership or Agency
18.1 Nothing in this Agreement 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 in any way.
18.2 Nothing contained in this Agreement shall be construed or implied to have the effect of constituting any kind of employer / employee relationship between the Service Provider and the Client.
19.1 Any notice to be served in terms of the Agreement shall be validly served if sent by first class or priority recorded delivery post.
19.1.1 in the case of the Service Provider to the Registered Office and
19.1.2 in the case of the Client to the address specified in the Client Work Order.
20. Choice of Law and Jurisdiction
20.1 The Agreement shall be governed by the Laws of Scotland and all matters relating thereto shall be subject to the exclusive jurisdiction of the Scottish Courts, without prejudice of the rights of the Service Provider to seek recovery of any sums due before any competent Court