Terms and Conditions

1          DEFINITIONS          

            In these Terms and Conditions:

1.1        “Client” means the party named in the Specification for whom the Company has agreed to provide the Services in accordance with these conditions.

 

1.2        “Company” means Buchan Consultancy Services Limited, a company incorporated in Scotland under the Companies Acts number SC147794 and having its registered office at 6 Kirktonhill Holdings, Marykirk, Laurencekirk, Kincardineshire, AB30 1UT.

 

1.3        “Contract” means the contract for the provision of the Services.

 

1.4        “Hardware” means any items of computer equipment or associated peripherals or any other equipment purchased from the Company but not manufactured by the Company, for which the specifications and product performance warranties issued and published from time to time by the Third-Party Software vendor shall solely apply.

 

1.5        “Services” means the services to be supplied to the Client and referred to in the Specification.  

 

1.6        “Specification” means the Company’s proposal to provide services or the Company’s acceptance to provide services or the agreed specification issued by the Company which shall supersede the said proposal and which details the Services to be provided to which these conditions are appended.

 

1.7        “Third-Party Software” means any software from a Third-Party Software vendor which may be supplied by the Company to the Client, for which licence agreements and products performance warranties issued and published from time to time by the Third-Party Software vendor shall solely apply.

 

1.8        “Use” means copying any portion of any program into computer equipment for processing or using any

            program in the course of operation.

 

 

2           REQUEST FOR SERVICES

 

2.1        All requests for the provision of services are subject to acceptance by the Company, whether or not the Company has issued any quotation for the provision of services.

 

3           CHARGE AND PAYMENT

 

3.1        Charges of the Services shall be in accordance with the Specification, payable monthly in advance by bank direct debit or standing order. Charges stated are exclusive of Value Added Tax, delivery and insurance charges.  Travel and subsistence expenses will be charged in addition at cost as incurred unless otherwise stated in the Specification.

 

3.2        The Client shall pay all invoices for Services within 7 days of the date of the Company’s invoice and in no circumstances shall the Client be entitled to make any deduction or withhold payment for any reason at all.

             Without prejudice to any other rights of the Company if the Client  fails to pay the invoice price by the due date the Company shall terminate the Services tand not be allowed any discount given in that invoice or in any other way agreed and shall pay interest on any overdue amount from the date of which payment was due to the date of actual payment (whether before or after judgment) on a daily basis at a rate of 4% p.a. over the base rate from time to time quoted by the Bank of Scotland plc and shall reimburse to the Company all costs and expenses (including legal costs) incurred in the collection of any overdue amount.

            The Company shall invoice Services subject to hourly or daily rates monthly

  

5          ACCESS

 

5.1        Access to the relevant information, personnel and facilities will be provided by the Client to the Company’s employees in order to facilitate performance hereunder in a timely manner during normal working hours for so long as required to enable the Company to perform its obligations under the Contract

 

6          CONFIDENTIALITY

 

6.1        The Company and the Client hereby undertake to the other to:-

 

6.1.1     keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussion leading up to or the entering into or performance of the Contract (the “Information”);

 

6.1.2     not without the other’s written consent disclose the Information in whole or in part to any other person save those of its employees, agents and sub-contractors involved in the provision or receipt of the Services and who have a need to know the same; and

 

6.1.3     use the Information solely in connection with the provision or receipt of the Services and not for its own benefit or the benefit of any third party.

 

6.2       The provisions of clause 6.1 above shall not apply to the whole or any part of the Information to the extent that it is:

 

            6.2.1      trivial or obvious;

 

            6.2.2      already in the other’s possession at the date of its disclosure; or

 

6.2.3      in the public domain other than as a result of a breach of this clause.

 

6.3       For the purposes of the Company undertaking under clause 6.1 above the Information shall be deemed to include all the data of the Client under the control of the Company.

 

6.4       Each of the Company and the Client hereby undertakes to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of the Information and the provisions of this clause 6 and without limitation to the foregoing to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause 6.

 

 

5          CHANGES

 

5.1        The Company may at any time without notifying the Client make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.

 

5.2        The Client may request changes to the Specification at any time prior to acceptance on giving reasonable notice to the Company provided that such changes shall only become effective if contained in a written document signed by both parties setting forth as applicable the changes in the Services to be carried out, variation to delivery schedule, prices and acceptance procedure.

 

6          RISK AND TITLE

 

8.1        If the Specification includes the sale and purchase of Hardware, title to the Hardware shall pass from the Company to the Client upon payment of that part of the price properly attributable to the Hardware sold.

 

8.2        Notwithstanding that title shall not pass to the Client except as provided above, risk of loss and damage to Hardware and Third-Party Software shall pass to the Client upon delivery.

 

8.3        The Client shall remain responsible for ensuring that the use of all Third-Party Software complies with the terms and conditions of the licence agreement for such software as specified by the Third-Party Software vendor.

 

 

 

9           WARRANTY

 

9.1        The Company shall not be responsible for the performance, specification or warranties of Third Party Software, services provided by a third-party or Hardware supplied. Where the Company supplies Hardware and any Third-Party Software in connection with the provision of the Services, the Company does not give any warranty, guarantee or indemnity given by the third-party who supplied the Hardware and any Third-Party Software to the Company.  

 

9.2        The Company shall have no liability to the Client for ensuring that any software on the Client’s computers, computer equipment and/or associated peripherals are licensed correctly. The Company reserves the right to restrict the provision of the Services to computers, computer equipment and/or associated peripherals of the Client containing software that has been licensed correctly.

 

9.3        The Company shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any data and/or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.

 

9.4        In no event shall the Company be liable for any special, incidental, indirect, punitive, or consequential damages whatsoever, including, but not limited to, damages for: loss of profits, loss of confidential or other information or data, business interruption, personal injury, loss of privacy, failure to meet any duty, negligence, and any other pecuniary or other loss whatsoever, arising out of this agreement or in any way related to the Client’s  use of or inability to use the software or the Services even if the Client has advised the Company of the possibility of such damages arising.

 

9.5        The Client agrees to indemnify, defend and hold the Company and its officers, directors, employees, agents, licensors, and suppliers harmless from and against all claims, liabilities, losses, expenses, damages, and costs, including but not limited to legal  fees, resulting from (i) a violation or breach of these Terms and Conditions by you, (ii) any activity related to access or use of your data (including but not limited to negligent or wrongful conduct) by you or any other person accessing or using your data, or (iii) the Company’s authorised use of your data, or other content provided by you or obtained by the Company as authorised by you under these Terms and Conditions.

 

9.6        The Company and the Client undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of these Terms and Conditions.  The Company does not accept any responsibility for the content or management of any external websites (which expression shall be deemed to include provisions for storage of data in the cloud) to which it links to or which may link to it. The Company does not have any control over external websites, and the Client is solely responsible for complying with the terms of those sites. Accordingly, the Client acknowledges and agrees that access to any external or linked websites shall be at its sole risk. By accessing such external linked websites, the Client accepts and undertakes to the Company that it has chosen to enter such website at its sole discretion and risk. The Client accepts and acknowledges that the Company does not directly or indirectly recommend or endorse the contents of such websites. The Company shall not under any circumstances be responsible for the availability of such external sites or resources. By accessing such linked external websites, the Client will be subject to their data protection and privacy policies or practices and other site content.

  

9.7        The Company warrants that the Services supplied on an hour or day rate fee will be performed using reasonable skill and care consistent with generally accepted computer software services industry practices and as far as reasonably possible in accordance with the Specification. All other warranties and conditions or other terms are expressly excluded.

 

9.8        Except in respect of death or personal injury caused by the Company’s negligence, or as expressly provided in these conditions, the Company shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise of of or in connection with the provision of the Services or Use by the Client, and the entire liability of the Company under or in connection with the Contract shall not exceed the amount of the Company’s charges for the provision of the Services, except as expressly provided in these conditions.

 

9.9        The Company shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Services if the delay or failure was due to any cause beyond the Company’s reasonable control.

 

9.10      The undertakings contained in this clause are given in lieu of all representations, warranties, conditions and guarantees whether express or implied all of which are hereby excluded.

 

 

10         TERMINATION

 

10.1      The Company shall be entitled to terminate the Contract after twenty one days non-payment by the Client of any sums due under the contract; or not giving not less than one month’s written notice to the Client;

           

10.2      The Client shall be entitled to terminate the Contract on giving not less than one month’s written notice to the client not earlier than twelve months from the commencement date set out in the Specification.

 

10.3      Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these conditions and (if capable of remedy) fails to remedy the breach within thirty days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) become bankrupt, makes a voluntary arrangement with his creditors or has a receiver or administrator appointed.

 

 

10.4      Any termination shall be without prejudice to the rights of the Company in respect of any antecedent breach or non-performance of the Client’s obligations hereunder.

 

11         GENERAL

 

11.1      The Company shall reserve the right not to support any server or system listed in the specification should it consider it to be beyond repair.

 

11.2      The provision of the Services does not apply to hardware components or the repair of hardware.

 

11.3      These conditions (together with the terms, if any, set out in the Specification) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.

 

11.4      Any notice required or permitted to be given by either party shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this clause to the party giving the notice.

 

11.5      Neither the Company nor the Client may assign or transfer any of the rights, duties or obligations under the Contract without the prior written consent of the other. Such consent shall not be unreasonably withheld. Any purported assignment or transfer shall be null and void.

 

11.6      Neither the Company nor the Client shall directly or indirectly solicit or offer employment to any of the other party’s personnel associated with the work to be performed hereunder during the period the work is being performed and up to twelve months after completion thereof or after termination of the Contract however caused except by written mutual consent.

 

11.7      No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of any Contract by the other shall be considered as a waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

 

11.8      The Company complies with the GDPR and the terms on which it holds your data are set out at [www.            ]

 

11.9      If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected.

 

11.10     Any dispute arising under or in connection with these conditions or the provision of the shall be referred to arbitration by a single arbiter appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Society of Advocates in Aberdeen.

 

11.11     These conditions shall be deemed to have been made in Scotland and the construction, validity and performance of them shall be governed in all respects by Scottish law.