Terms

Terms and conditions of business ESco Business Services Ltd.

  • 1. Definitions

    In these terms and conditions:-
    • 1.1 "Contract" shall mean the Contract between ESco and the Client for the provision of the Services, which shall operate on the terms set out in these terms and conditions.
    • 1.2 "ESco" shall mean ESco Business Services Ltd whose principal place of business is at Trinity House, Sculpins Lane, Wethersfield, CM7 4AY.
    • 1.3 "Client" shall mean any individual, partnership, company, charitable institution or other body to whom goods, consultancy services or other services are supplied by ESco.
    • 1.4 "Services" shall mean any service supplied by ESco.
    • 1.5 "Fees" shall mean the fees payable by the Client to ESco for the provision of the Services.
    • 1.6 "Goods" shall mean any goods supplied by ESco.
    • 1.7 "Client Property" shall mean any goods, data and/or databases belonging to the Client supplied to ESco for the purposes of the supply of Services by ESco. For the avoidance of doubt, and without prejudice to the generality of the foregoing, "Client Property" shall include any information held by ESco in any computer or other electronic storage system.
  • 2. General
    • 2.1 All contracts for the supply of Services or for the supply of Goods and Services shall be subject to these terms and conditions. All terms and conditions appearing in the Client's order shall have no effect.
    • 2.2 The Client shall co-operate fully with ESco and provide to ESco such information and assistance as ESco may require in order to perform the Services.
  • 3. Payment
    • 3.1 Any quotation provided to the Client by ESco shall remain valid for 30 days.
    • 3.2 Unless otherwise agreed in writing by the parties, the price quoted by ESco for Goods and/or Services is exclusive of VAT or any similar tax (which will be charged at the rate in force at the date of invoice) and exclusive of the cost of stationery, lists, postage, delivery of Goods to and/or collection of Client Property from the Client, which items will be charged as extras.
    • 3.3 ESco reserves the right to review the Fees periodically, normally annually or when circumstances alter.
    • 3.4 The Client shall pay ESco within 30 days from the date of invoice, subject to maintaining a credit arrangement satisfactory to ESco. Otherwise payment shall be due on or before delivery. Late payment of an invoice shall render all other outstanding invoices immediately due. Payment for postage is normally required in advance or on date of invoice.
    • 3.5 If any payment due to ESco is overdue then, in addition to any other right or remedy available to it, ESco shall be entitled to charge interest, running both before and after any judgment, at the rate from time to time provided by or pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, such interest running from the date upon which payment of such sum became due until payment thereof in full together with such interest; and/or to suspend further performance of the Services, until the Client pays the overdue sum (together with any interest) in full.
    • 3.6 The Client shall not be entitled to withhold, suspend or set off against payments for Goods and/or Services supplied by ESco, for any reason whatsoever.
    • 3.7 Until ESco has received payment of all sums due in connection with any Goods supplied or to be supplied by ESco, title to those Goods shall not pass to the Client.
  • 4. Client Property
    • 4.1 All right title and interest in and to the copyright in the Client Property shall remain with the Client. ESco shall not reproduce, adopt, translate, arrange or make available to any third party any part of the Client Property or use such Client Property for any commercial purpose (including trading or building commercial databases and reselling or redistributing the Client Property) except to the extent required to perform the Services or as permitted by law.
    • 4.2 All right title interest in and to the copyright, trade marks, patents and other intellectual property rights created, developed, subsisting or used in or in connection with the Services shall belong to ESco.
    • 4.3 All Client Property must conform with the specific rules on list and database practice in the British Codes of Advertising and Sales Promotion. ESco reserves the right to refuse to mail any mailing pieces provided that do not comply with the British Codes of Advertising and Sales Promotion.
    • 4.4 Any and all Client Property kept on behalf of the Client on ESco's premises, or any premises under lease to ESco, or within vehicles belonging to or used by ESco or in the homes of ESco's outworkers, are so kept at the risk of the Client. Where necessary, the Client shall arrange adequate insurance cover and pay the insurer direct.
  • 5. Confidentiality
    • 5.1 In this clause "Confidential Information" shall mean all information relating to either party’s clients and/or customers (including without limitation Personal Data - as defined the Data Protection Act 1998 - of such clients and customers), current or projected financial or trading situations, business plans, business strategies, developments and all other information relating to either party’s business affairs including all other information of a confidential nature imparted during the term of the Contract or coming into existence as a result of the parties’ obligations under the Contract. This clause shall survive the expiry or termination of the Contract for any reason.
    • 5.2 During the course of the Contract, and for a period of 5 years after completion of the Services or earlier termination of the Contract, each party agrees: not to use any Confidential Information obtained from or disclosed to it by the other party other than for the purposes of the Contract; not to disclose it to any third party without consent; not to use it to procure a commercial advantage over the other party; and to inform its employees, agents, contractors, sub-contractors and consultants of the terms of these obligations and oblige such employees, agents, contractors, sub-contractors and consultants to comply with these obligations.
    • 5.3 ESco shall promptly notify the Client if any Confidential Information is required by law to be disclosed by ESco or any other person receiving it under or pursuant to the Contract and shall co-operate with the Client regarding the manner of such disclosure (but without prejudice to any obligation to comply with any law). The obligations of confidentiality shall not apply to any information which:
      • 5.3.1 is or becomes generally known to third parties (other than as a result of a breach of the provisions of the Contract);
      • 5.3.2 is already lawfully in, or which comes lawfully into, ESco’s possession other than under the Contract; or
      • 5.3.3 is independently developed by ESco without reference to the Confidential Information.
  • 6. Delivery
    • 6.1 Unless otherwise expressly agreed in writing, ESco shall procure delivery of the Goods and/or the supply of the Services to the destination or destinations specified in any quotation or acceptance of order. The Client shall bear and there shall be added to the invoice price all costs including postage, packing, transport and insurance incurred by ESco in effecting delivery. ESco reserves the right to use any carrier, transporter or other means of delivery at their discretion, unless otherwise agreed in writing between the parties.
    • 6.2 ESco will endeavour to effect delivery of the Goods and/or supply of the Services in accordance with any requirements specified by the Client but time of delivery of Goods and/or supply of Services shall not be of the essence of the Contract and ESco shall not be liable for any loss or damage whatsoever arising directly or indirectly from any failure to effect delivery of Goods and/or supply of Services within such period or otherwise.
    • 6.3 For the avoidance of doubt and without prejudice to the generality of Clause 6, where Goods are delivered by carrier, such carrier shall be deemed to be the agent of the Client and ESco shall not be liable for any loss or late delivery of the Goods by the carrier.
  • 7. Termination
    • 7.1 The Client may terminate the Contract by giving to ESco written notice of termination if ESco breaches the terms of the Contract and fails to remedy that breach within 90 days of being given a notice in writing identifying the breach, requiring it to be remedied and referring to this clause.
    • 7.2 ESco may by notice to the Client terminate all or any part of the Contract forthwith in the event that:-
      • 7.2.1 the Client is in breach of any of the Contract; or
      • 7.2.2 the Client infringes any intellectual property rights of ESco in any manner whatsoever; or
      • 7.2.3 the Client exceeds any credit limit imposed by ESco; or
      • 7.2.4 the Client (being an individual) becomes bankrupt within the meaning of the Insolvency Act 1986 or otherwise makes any composition or arrangement with his creditors or (being a company) shall enter into liquidation (whether voluntary or compulsory) or shall have a receiver or administrative receiver over any part or all of its assets or undertaking or shall be the subject of any petition presented to the Court for the appointment of an administrator.
    • 7.3 Termination of the Contract in any manner whatsoever shall be without prejudice to the rights of either party accrued as at the date of termination and termination shall not affect any provision of the Contract which, in order to give full effect to its meaning, needs to survive such termination (and all such provisions shall survive such termination to the extent necessary to give full effect to their meanings).
    • 7.4 In the event of termination of the Contract by ESco pursuant to this Clause 7:-
      • 7.4.1 ESco shall return the Client Property to the Client as soon as reasonably practicable;
      • 7.4.2 ESco shall be entitled to remove and/or destroy any Client Property not collected from ESco by the Client within 30 days of written notice of termination served on the Client by ESco;
      • 7.4.3 ESco shall be entitled to submit to the Client (and the Client shall within 14 days of receiving such invoice pay) an invoice for the fees due to be paid to ESco, taking into account the Services that have been provided prior to termination.
  • 8. Limitation of liability
    • 8.1 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
    • 8.2 ESco shall not be liable in any manner whatsoever to the Client or to any party claiming through the Client or to any other party in respect of:
      • 8.2.1 any loss of revenue, loss of customers, loss of any particular market or loss of general business reputation suffered by the Client; or
      • 8.2.2 any loss or damage suffered by the Client in relation to the processing of any direct debit transaction or transactions by ESco on behalf of the Client.
    • 8.3 ESco shall not be liable in any manner whatsoever for any breach of contract or delay in performance of its obligations insofar as such breach or delay arises by reason of circumstances beyond its reasonable control. For the avoidance of doubt any breach or delay by ESco due to lock-out, strike or other action taken by employees of ESco in contemplation or furtherance of a trade dispute, accident, illness or mechanical breakdown shall be deemed to be beyond the reasonable control of ESco. ESco shall not be liable for any failure to perform any of its obligations under the Contract where such failure is caused (whether solely or partly) by the Client’s failure to perform any of the Client’s obligations under the Contract.
    • 8.4 If notwithstanding other provisions in the Contract that purport to exclude or limit ESco’s liability ESco is found liable to the Client in excess of liability expressly accepted by ESco, then ESco’s liability to the Client, in contract in tort or otherwise, arising out of or in connection with the Contract, shall be limited to the price paid by the Client for the Services.
    • 8.5 Neither party excludes or limits its liability in negligence for death or personal injury, or for fraud or wilful default or otherwise insofar as any exclusion or limitation of its liability is void, prohibited or unenforceable by law.
  • 9. Indemnity
    • 9.1 The Client shall indemnify ESco against all liability to third parties including costs, charges and expenses which ESco may incur or suffer in connection with:
      • 9.1.1 defamatory, obscene, indecent or offensive material contained within any Goods which ESco are requested by the Client to produce, despatch, store or post, or contained within any Client Property which ESco are requested by the Client to despatch, store or post, or within any other items despatched, stored or posted by ESco at the request of the Client; and/or
      • 9.1.2 any injury to or the death of any person, or damage to any property movable or immovable by reason of or arising from any act of negligence, omission or default of the Client or the Client's agents or employees; and/or
      • 9.1.3 the infringement whether in design or by description or in any other matter of the rights or property of any third party caused by the production and/or delivery of Goods and/or the supply of Services by ESco at the request of the Client and/or the use of Goods and/or Services by the Client and any third party or parties.
  • 10. Direct Debit processing
    • 10.1 In respect of BACS Direct Debit processing undertaken by ESco on behalf of the Client:
      • 10.1.1 ESco will undertake the preparation of the client's subscribers’ payments as defined in the customer service level agreement with the Client;
      • 10.1.2 ESco will advise the client if the total value of payments exceeds the limits negotiated with the Client's BACS sponsor; the client will then be responsible for any re-negotiation with their BACS sponsor;
      • 10.1.3 ESco will receive the BACS Input Report unless otherwise arranged by the Client, and will be responsible for checking the totals are correct and that the report is received when due;
      • 10.1.4 ESco will handle any rejected or adjusted records identified in the BACS Input Report in accordance with the customer service level agreement for subscription management previously agreed with the Client;
      • 10.1.5 ESco will immediately advise the Client of any errors in the BACS Input Report; the Client must in turn immediately notify their BACS Sponsor.
  • 11. Miscellaneous provisions
    • 11.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract. Any variation of the Contract shall be binding only if made in writing and agreed to in writing by duly authorised representative of each party.
    • 11.2 Neither party may assign, sub-contract or delegate its rights or obligations under the Contract without the written consent of the other, which shall not be unreasonably withheld or delayed.
    • 11.3 The Contract is not intended to confer a benefit on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise and no third party shall have any right to enforce any of the provisions of the Contract.
    • 11.4 If any provision or part of a provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, in restraint of trade or otherwise unenforceable it shall to the extent of such illegality, invalidity, restraint of trade or unenforceability be deemed severable and the remaining provisions of the Contract shall continue in full force and effect.
    • 11.5 Neither party shall act in any way which may result in the other party incurring any liability under the Data Protection Act 1998 (or any statutory re-enactment of or foreign equivalent of that Act).
    • 11.6 ESco may record telephone calls for quality monitoring and training purposes.
    • 11.7 The Contract shall be governed by and construed in accordance with English law and both ESco and the Client submit to the exclusive jurisdiction of the English courts in respect of any dispute or claim arising out of or relating to the Contract.