Digital Engineering Terms of Business
N.B. THESE CONDITIONS CONTAIN LIMITATIONS & EXCLUSIONS OF LIABILITY
1. Interpretation
1.1 In the Contract the following expressions have the following meanings:
Client means the party described as such in the Proposal, being the person to whom Digital Engineering has agreed to prepare the Report.
Confidential Information means all identifiable methodology, know-how, experience, data, databases, flow charts, reports, tables or other material produced in relation to the Contract and all other technical or commercial information relating to either party, its business, products and its clients and their businesses, whether in human or machine readable form
Contract means the contract between Digital Engineering and the Client for provision of the Report, comprising these Terms of Business and the Proposal
Intellectual Property means patents, trade marks, trade secrets, copyright, database rights, design rights, inventions, know how and any other industrial or intellectual property rights of any nature whatsoever, whether registered or capable of registration or not, in any part of the world and including all applications and the right to apply for any of the foregoing rights
Proposal means a proposal regarding the Report which has been provided by Digital Engineering and signed or otherwise accepted in writing by the Client
Report means any reports, plans or other data, documents, information or materials (in whatever form) provided, developed or created by Digital Engineering in connection with the Report, including any amendments, enhancements or additions to such reports etc.
Year means the period of twelve (12) months from the date upon which the Proposal is accepted by the Client
1.2 In the Contract, unless the context otherwise requires:
1.2.1 any reference to a person is to be construed as a reference to any person, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) or one or more of the foregoing;
1.2.2 any reference to any provision of a legislation or legislative provision is to be construed as a reference to that legislation or provision as amended, re-enacted or extended at the relevant time;
1.2.3 any reference to the singular is to include the plural and vice versa;
1.2.1 any phrase introduced by the terms “include”, “including”, “particularly” or “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
1.2.2 the headings are for convenience only and are not to affect the interpretation of the Contract.
2. Scope of Contract
2.1 The Contract shall constitute the entire agreement and understanding between the parties (superseding any previous agreements) in relation to the preparation of the Report by Digital Engineering to the Client and shall govern the contractual relationship between the parties to the exclusion of any separate terms and conditions put forward by the Client. No conduct by Digital Engineering shall be deemed to constitute acceptance of any terms put forward by the Client, other than to the extent expressly set out in the Contract or subsequently agreed under clause 2.4 below.
2.2 In the event of any conflict or ambiguity between these Terms of Business and the relevant Proposal, the Terms of Business shall prevail over the Proposal except for any provisions in the Proposal described as “special conditions” or otherwise expressly stated to vary or prevail over a particular provision in the Digital Engineering Terms of Business.
2.3 The Client acknowledges and agrees that it has not been induced to enter into the Contract in reliance upon, and does not have any remedy in respect of, any warranty, representation, statement, agreement or undertaking of any nature whatsoever other than as expressly set out in the Contract.
2.4 No variation, amendment or addition to the Contract shall be binding on Digital Engineering unless made in writing and signed by an authorised representative of Digital Engineering.
3. Supply of Services
3.1 Digital Engineering shall supply and the Client shall pay for the Report subject to and in accordance with the Contract (including, for the avoidance of doubt, the Proposal).
3.2 Digital Engineering warrants to the Client that it shall prepare the Report using reasonable care and skill, but unless otherwise expressly stated in the Contract, Digital Engineering does not give any other warranty in respect of the any Reports provided under the Contract, and all warranties, conditions or other terms implied by statute, common law or otherwise including those as to fitness for purpose or suitability of results, advice, findings or Reports, are excluded to the fullest extent permitted by law.
3.3 The Client shall provide or make available to Digital Engineering at the times set out in the Proposal or otherwise in a timely manner in accordance with any reasonable directions given by Digital Engineering such co-operation, assistance, accurate information and materials and safe access to premises and facilities as may reasonably be required by Digital Engineering from time to time in connection with the preparation of the Report.
3.4 Unless otherwise agreed with the Client (and specified on the Proposal), Digital Engineering shall provide the Report to the Client within four (4) weeks of the Client’s acceptance of the terms of the Contract.
4. Confidentiality
4.1 Each party shall safeguard and keep confidential the terms of the Contract and any and all Confidential information that it may acquire in relation to the business or affairs of the other party. Neither party shall use or disclose the other party’s Confidential Information except to the extent that such use or disclosure is necessary for the purposes of performing its obligations or exercising its rights under this Contract. Each party shall ensure that its officers and employees and any other persons to whom the Confidential Information is disclosed comply with the provisions of this clause 4.
4.2 The obligations on a party set out in clause 4 shall not apply to any information to the extent that such Confidential Information:
4.3 is publicly available or becomes publicly available through no act or omission of that party;
4.4 is required to be disclosed by law;
4.5 The provisions of this clause 4 shall survive any termination of the Contract
5. Intellectual Property
5.1 Unless otherwise specified in the Contract, the Intellectual Property in all Reports shall belong to Digital Engineering, but to the extent that Digital Engineering has agreed to make available any such Reports to the Client, the Client shall be entitled to use such Reports for those of its own internal purposes anticipated by the Contract.
5.2 If the Contract specifies that certain Reports are to belong to the Client, then:-
5.2.1 Digital Engineering shall not be deemed to have assigned the Intellectual Property in such Reports to the Client unless and until the Client has paid Digital Engineering in full for the production of those Reports;
5.2.2 for the avoidance of doubt, nothing in the Contract shall be deemed to prohibit or restrict Digital Engineering from re-using or exploiting for whatever purpose it thinks fit any generic expertise or know-how acquired by it in the course of preparing the Report.
6. Fees & Payment Arrangements
6.1 The Client shall pay to Digital Engineering:-
6.1.1 the fees stated in the Proposal; and
6.1.2 if agreed in the Proposal, all travel, accommodation, subsistence and other expenses reasonably incurred by Digital Engineering in preparing the Report; plus any value added tax on such fees and expenses, if applicable.
6.2 Digital Engineering shall entitled to invoice the Client for the fees, expenses and tax described at clause 6.1 above, together with any other sums payable under the Contract:-
6.2.1 at the times specified in the Proposal; or
6.2.2 if no such times are specified, on completion of the Report or monthly in arrears (that is to say, at any time after the end of each calendar month in respect of Reports provided during that month), whichever is the earlier.
6.3 Each invoice raised by Digital Engineering shall be payable by the Client without setoff, counterclaim or deduction of any kind and within such payment period as is specified in the Proposal, or if no such period is specified, within thirty (30) days of the date on which the invoice was raised.
6.4 In the event that any sum payable under the Contract is not paid by the due date for payment, Digital Engineering shall be entitled (but without prejudice to any other right or remedy it may have):
6.4.1 to charge the Client interest on the amount outstanding from time to time at the rate per annum of 4% over the base rate of Barclays Bank plc applicable at the due date, such interest to accrue on a daily basis from the due date until the date of payment in cleared funds (whether before or after the date of any judgement); and/or
6.4.2 to suspend the further provision of any Report to the Client until the sum in question has been paid in full.
7. Liability
7.1 In respect of any claim by the Client relating to the preparation of the Report (whether for breach of contract, negligence or otherwise), the Client shall notify Digital Engineering in writing (giving full details of the claim) within twelve (12) months of the date on which the Report in question was or should have been provided, and shall afford Digital Engineering a reasonable opportunity to remedy the breach or failure in question, failing which all liability in respect of such claim shall be excluded.
7.2 Digital Engineering shall not be liable to the Client in respect of, and shall not be deemed to be in breach of the Contract as a result of, any failure or delay in complying with its obligations under the Contract to the extent that such failure or delay is caused by any failure on the part of the Client to comply with its own obligations under the Contract.
7.3 Digital Engineering shall not be liable to the Client (whether for breach of contract, negligence or otherwise) for any:
7.3.1 loss of or corruption to data or computer files; or
7.3.2 loss of anticipated savings or revenues; or
7.3.3 loss of profits (whether actual or anticipated); or
7.3.4 loss of contracts or business opportunities; or
7.3.5 loss of goodwill or damage to reputation; or
7.3.6 loss of opportunity; or
7.3.7 indirect, special or consequential loss or damage; or
7.3.8 loss arising from any claim made by any third party to the extent relating to or comprising any loss or damage of the kind referred to in the previous parts of this clause; which arises out of or in connection with the Contract.
7.4 The entire liability of Digital Engineering under or in connection with the Contract shall not in any event exceed the 120% of the total fees paid to Digital Engineering over the Year in which the event occurs which gives rise to the claim.
7.5 Any Reports produced by Digital Engineering are intended for the use of that party only. The use of any Report by unauthorised third parties without written authorisation from Digital Engineering shall be at their own risk, and Digital Engineering accept no duty of care to any such third party. Consequently, no reliance should be placed on the Reports by any third party and no responsibility is accepted by Digital Engineering to any third party in respect of the whole or any part of the Report. No part of any Report may be copied or duplicated without the express written permission of the Client and Digital Engineering.
7.6 Digital Engineering will exercise due and customary care in preparing any Report but will not, (unless specifically requested in an Proposal), verify information provided by others. Therefore, Digital Engineering assumes no liability for any loss resulting from errors, omissions or misrepresentations made by others. No other wind turbine installations will be modelled unless specifically stated in the Proposal.
7.7 Any recommendations, opinions or findings stated in any Report are based on circumstances, facts and data as they existed at the time Digital Engineering performed the work. Digital Engineering’s Reports are based on historical data and trends. Any changes in such circumstances, facts or data upon which this report is based may adversely affect any recommendations, opinions or findings contained in any Report prepared by Digital Engineering. While every care has been taken to ensure the accuracy of the material contained within a Report, neither Digital Engineering nor any of its representatives will bear any responsibility or liability for any action taken by any person, persons or organisation on the basis of information contained in this report. In particular, Digital Engineering shall not be liable for any inaccuracy in any Report which is caused: (a) by any subsequent climate change; (b) by any data which is not available at the time in which Digital Engineering produces the report; or (c) as a result of subsequent changes to the landscape or by building works on or near the site. Despite the application of modern methods and verified data sets in preparing this report, statistical variations of the climatic system are unpredictable, which may result in energy yields of individual years deviating considerably from the long-term mean. However, Digital Engineering does not assume any warranty or liability for the accuracy of the prediction results.
7.8 Nothing in the Contract shall operate to limit or exclude the liability of Digital Engineering to the Client for any death or personal injury caused by the negligence of Digital Engineering or any of its employees or agents, or for any other matter in respect of which liability cannot lawfully be limited or excluded.
8. Duration & Termination
8.1 Unless terminated early under clause 8.3, the Contract shall continue in force unless and until terminated by either party giving to the other at any time not less than 7 days notice (or such other period of notice as may be specified in the Proposal).
8.2 In the event that the Contract is terminated by the Client pursuant to clause 8.1, Digital Engineering shall be entitled to invoice the Client for any costs, fees and expenses incurred up to the date of termination, including any amounts paid or payable to third party suppliers in connection with the preparation of a Report, notwithstanding that such Report is not complete and Digital Engineering’s reasonable costs for management of the process up to the date of termination.
8.3 Either party may terminate the Contract immediately by serving written notice to that effect on the other party at any time after the occurrence of any of the following events:
8.3.1 the other party makes any voluntary arrangement with its creditors or (being an individual or a firm) becomes bankrupt or (being a corporate entity) enters administration or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or
8.3.2 a security holder takes possession, or a receiver or administrative receiver is appointed, over all or any material part of the property or assets of the other party; or
8.3.3 anything analogous to any of the foregoing occurs to the other party under the law of any jurisdiction; or
8.3.4 where the other party is the Client, it ceases or threatens to cease to carry on business; or
8.3.5 the other party commits a material breach of any of the provisions of this Contract and in the case of a breach capable of remedy, fails to remedy the same within 30 days after receipt of a written notice specifying the breach and requiring it to be remedied.
8.4 Any termination of the Contract shall be without prejudice to any other rights or remedies a party may be entitled to under the Contract or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this Contract which is expressly or by implication intended to come into or continue in force on or after such termination and in particular (but without limitation) the following clauses shall continue in full force and effect in accordance with their terms:
8.4.1 clause 4 (Confidentiality);
8.4.2 clause 7 (Liability).
8.5 Following termination of the Contract for whatever reason, and unless otherwise expressly agreed by Digital Engineering in writing at the time, Digital Engineering shall cease to be under any obligation to provide any further Reports to the Client.
9. General
9.1 Any notice under this Agreement shall be in writing and shall be sent by pre-paid, first class, recorded delivery post, hand delivery or fax to the address/number for the relevant party as stated in this Agreement or otherwise notified to the other party for this purpose. Any such notice shall be deemed to have been duly received (provided it was sent to the proper address/number):
9.1.1 if dispatched by first class, recorded delivery post – 48 hours from the time of posting (subject only to any delays caused by industrial action affecting the postal service);
9.1.2 if delivered by hand – at the time of actual delivery;
9.1.3 if dispatched by fax or email – 24 hours after the time of the dispatch provided in each case that if the deemed receipt time occurs either on a day that is not a working day or after 5.00pm on a working day, then the notice shall not in fact be deemed to have been received until 10.00am on the next following working day.
9.2 The Client shall not be entitled to assign, sub-contract or otherwise dispose of any of its rights or obligations under this Agreement without the prior written consent of Digital Engineering.
9.3 Digital Engineering may sub-contract its rights and obligations under this Agreement at any time without the consent of the Client.
9.4 Neither party shall be liable for, or be deemed to be in breach of this Agreement as a result of, any delay in performing or failure to perform any of its obligations under this Agreement where that delay or failure is caused by any circumstances beyond the reasonable control of that party. However any delay or failure caused by any subcontractor or supplier of either party shall not relieve that party from liability for that delay or failure except where that delay or failure was in turn caused by circumstances beyond the reasonable control of the relevant subcontractor or supplier.
9.5 No delay or failure on the part of either party in enforcing any provision in the Contract is to be treated as a waiver or as having created a precedent or in any way as having prejudiced that party’s rights under the Contract. The rights and remedies provided in the Contract are cumulative and are additional to any rights or remedies provided by law.
9.6 If any provision in the Contract is declared void or unenforceable by any court or other body of competent jurisdiction, or is otherwise rendered so by any applicable law, such provision shall to the extent of such invalidity or unenforceability be treated as severable and all other provisions of the Contract not affected by such invalidity or unenforceability shall remain in full force and effect.
9.7 Unless expressly stated in the Contract, nothing in the Contract shall confer any rights on any person under the Contracts (Rights of Third Parties) Act 1999.
9.8 The Contract and any dispute or claim, including a dispute or claim of a noncontractual nature, arising under or in connection with the Contract shall be governed by and construed in accordance with the law of England and Wales and any dispute arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of England and Wales, to which each of the parties irrevocably submits.