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Terms & Conditions

TERMS AND CONDITIONS FOR THE PROVISION OF PROFESSIONAL SERVICES

SBD AUTOMOTIVE LTD.
SBD PARTICULARLY DRAWS YOUR ATTENTION TO CLAUSES 7 AND 10 OF THESE TERMS

1.  INTERPRETATION

  1. The following definitions and rules of interpretation apply in this agreement (unless the context requires otherwise).

“Capacity” means as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity

“Category A Information” means that Confidential Information identified as ‘Category A’ in the Confirmation of Instructions

“Category B Information” means that Confidential Information identified as ‘Category B’ in the Confirmation of Instructions

“Category C Information” means that Confidential Information identified as ‘Category C’ in the Confirmation of Instructions

“Commencement Date” means the date specified in the Confirmation of Instructions

“Confidential Information” means, subject to clause 7.4, all information, whether technical or commercial (including all discussions, recommendations or advice given by SBD in the course of providing the Professional Services, all data, information and advice provided to you by SBD in the course of carrying out or commissioning any surveys as part of the Professional Services, specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or during discussions between the parties), where the information ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

“Confirmation of Instructions” means SBD’s confirmation of instructions provided to you setting out, amongst other things, details of the Professional Services to be provided to you in accordance with these Terms

“Contract” means the contract between you and SBD for the provision of Professional Services in accordance with these Terms

“Deliverables” means the deliverables (including any Inventions) to be supplied to you as detailed in the Confirmation of Instructions

“Discloser” means the party to this Contract which discloses its Confidential Information, directly or indirectly, to the other party.

“Duration” means the duration (if any) of the Contract as specified in the Confirmation of Instructions

“Force Majeure Event” has the meaning given to it in clause 13

“Group” means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company

“Individuals” means those employees, workers or agents performing the Professional Services on behalf of SBD from time to time and, in particular, those individuals as identified in the Confirmation of Instructions

“Intellectual Property Rights” means patents, utility models, rights to Inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world

“Invention” means any invention, idea, discovery, development, improvement or innovation made by SBD or by the Individuals in connection with the provision of the Professional Services, whether or not patentable or capable of registration, and whether or not recorded in any medium

“SBD” means SBD Automotive Ltd. (company number 3403037) whose registered office is at SBD Automotive, Shenley Pavilions, Chalkdell Drive, Shenley Wood, Milton Keynes, Buckinghamshire, MK5 6LB, UK with VAT Number 694550308.

“SBD Materials” means all materials, property, equipment, documents and other assets used in the provision of the Professional Services but excluding Your Materials

“Professional Services” means the professional services described in the Confirmation of Instructions

“Recipient” means a party to this Contract which receives Confidential Information, directly or indirectly, from the other party.

“Substitute” means a substitute for the Individuals appointed under the terms of clause 4.7

“Terms” means these terms and conditions as amended from time to time in accordance with clause 18.6

“you” or “your” means the person who purchases the Professional Services from SBD

“Your Materials” means all materials, property, equipment, documents and other assets provided by you to SBD for the purpose of performing the Professional Services

  1. Unless the context otherwise requires, words in the singular include the plural and vice versa and words in one gender include any other gender.

  2. a “person” includes any individual (and their personal representatives), firm, body corporate, association, partnership, government or state (whether or not having a separate legal personality).

  3. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

  4. Any words following the terms “including”, “include”, “in particular”, “for example”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

  5. The headings in these Terms are inserted for convenience only and shall not affect its construction.

  6. Reference to a “holding company” or a “subsidiary” means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.

3. DURATION

3.1 The Contract shall commence on the Commencement Date and shall continue unless and until terminated:

 

3.2 as provided by the terms of this Contract;

 

3.3 as specified in the Confirmation of Instructions; or

 

3.4 on completion of the Professional Services.

4. SBD OBLIGATIONS

4.1

SBD shall provide the Professional Services in accordance with the terms of the Contract.

 

4.2

SBD shall use reasonable endeavours to meet any performance dates for the Professional Services but any such dates shall be estimates only and time shall not be of the essence for the performance of the Professional Services.

 

4.3

SBD shall have the right to make any changes to the Professional Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Professional Services, and SBD shall notify you in any such event.

 

4.4

SBD warrants to you that the Professional Services shall be provided using reasonable care and skill.

 

4.5

In order to make a valid claim regarding Professional Services that fail to comply with the warranty in clause 4.3:

4.5.1

You must give SBD notice in writing within 3 Business Days of discovery that some or all of the Professional Services do not comply with the warranty set out in clause 4.3; and

 

4.5.2

You must give SBD a reasonable opportunity to investigate the matters giving rise to the claim.

 

 

4.6 Where a valid warranty claim regarding the Professional Services is presented and upheld by SBD, its obligations arising under a breach of clause 4.3 shall be limited to (at SBD’s option) re-performing the Professional Services or refunding the price of those defective Professional Services.
 

4.7

All other warranties that are implied by statute, regulation or by custom and practice are excluded from the Contract

 

4.8

If any of the Individuals are unable to provide the Professional Services due to illness or injury, SBD shall advise you of that fact as soon as reasonably practicable. SBD may, but shall not be obliged to, appoint a suitably qualified and skilled Substitute to perform the Professional Services instead of any of the Individuals.

 

4.9

Unless otherwise specified in the Confirmation of Instructions:
 

4.9.1

SBD shall provide the Professional Services on a non-exclusive basis; and

 

4.9.2

nothing in the Contract shall prevent SBD or the Individuals from being engaged, concerned or having any financial interest in any Capacity in any other business, trade, profession or occupation for the Duration.

5. YOUR OBLIGATIONS

5.1

You shall:
 

5.1.1

provide SBD, its employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities SBD may reasonably require to deliver the Professional Services;

 

5.1.2

provide SBD with such information and materials as it may reasonably require to supply the Professional Services, and ensure that such information is accurate in all material respects;

 

5.1.3

prepare your premises for the supply of the Professional Services where the same is required;

 

5.1.4

obtain and maintain all necessary licences, permissions and consents which may be required for the Professional Services before the date on which the Professional Services are to start;

 

5.1.5

keep and maintain all SBD Materials at your premises in safe custody at your own risk, maintain SBD Materials in good condition until returned to SBD, and not dispose of or use SBD Materials other than in accordance with SBD’s written instructions or authorisation;

 

5.1.6

ensure that any information you fill out in the Confirmation of Instructions is complete and accurate; and

 

5.1.7

co-operate with SBD in all matters relating to the performance of the Professional Services.

 

 

5.2

If SBD’s performance of any of its obligations in respect of the provision of the Professional Services is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (“Default”):

5.2.1

SBD shall, without limiting its other rights or remedies, have the right to suspend supply of the Professional Services until you remedy your Default and to rely on your Default to relieve SBD from the performance of any of its obligations to the extent your Default prevents or delays SBD from performing any of its obligations;

 

5.2.2

SBD shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from its failure or delay to perform any of its obligations as set out in this clause 5.2; and

 

5.2.3

you shall reimburse SBD on written demand for any costs or losses sustained or incurred by SBD arising directly or indirectly from your Default.

6. CHARGES AND EXPENSES

6.1

The charges for the Professional Services shall be as set out in the Confirmation of Instructions. Where the charges for the Professional Services are on a time and materials basis:
 

6.1.1

the charges shall be calculated in accordance with SBD’s standard daily fee rates, as set out in the Confirmation of Instructions or, if no specification is given in the Confirmation of Instructions, as available from one of SBD’s sales representatives;

 

6.1.2

SBD’s standard daily fee rates for each Individual are calculated on the basis of an 8 hour day from 9.00 am to 5.00 pm with 30 minutes for lunch worked on Business Days;

 

6.1.3

SBD shall be entitled to charge you for any expenses reasonably incurred by the Individuals whom SBD engages in connection with the Professional Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by SBD for the performance of the Professional Services, and for the cost of any materials.

 

 

6.2

SBD reserves the right to increase its standard daily fee rates. SBD will give you written notice of any such increase 1 month before the proposed date of the increase. If such increase is not acceptable to you, you shall notify SBD in writing within 2 weeks of the date of SBD’s notice and SBD shall have the right without limiting its other rights or remedies to terminate the Contract by giving 2 weeks’ written notice to you.

 

6.3

Unless different payment terms have been agreed between the parties in writing, then:
 

6.3.1

SBD shall raise an invoice on completion of the Professional Services; and/or

 

6.3.2

notwithstanding clause 6.3.1, where the Professional Services are supplied over a period of time, SBD reserves the right to raise invoices for the Professional Services in arrears at the end of each calendar month or at other intervals specified in the Confirmation of Instructions or as agreed between you and SBD.

 

 

6.4

Unless agreed otherwise, you shall pay each invoice submitted by SBD:
 

6.4.1

within 30 days of the date of the invoice; and

 

6.4.2

in full and in cleared funds (and in the currency specified in the Confirmation of Instructions) to a bank account nominated in writing by SBD.

 

 

6.5

Time for payment shall be of the essence of the Contract.

 

6.6

All amounts payable by you under the Contract are exclusive of value added tax ("VAT") which shall be added to SBD’s invoices at the current rate.

 

6.7

If you fail to make any payment due to SBD under the Contract by the due date for payment , then you shall pay interest on the overdue amount at the rate of 4% per cent per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.

 

6.8

You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). SBD may at any time, without limiting its other rights or remedies, set off any amount owing to it by you against any amount payable by SBD to you.

7.  CONFIDENTIALITY

7.1

Each party undertakes that it shall not at any time for the Duration and for an indefinite period after termination of the Contract disclose to any person any Confidential Information of the other party or of any of company or firm within its Group, except as permitted by clauses 7.2 and 7.3.

 

7.2

The parties agree that SBD shall have the following rights regarding the various categories of Confidential Information:

 

CATEGORY

 

RIGHTS

 

 

Category A Information

 

 

SBD cannot disclose this information.

 

 

Category B Information

 

SBD cannot disclose this information without your prior written consent (not to be unreasonably withheld).

 

 

Category C Information

 

SBD may release this information to third parties and otherwise make use of such information in the ordinary course of its business and the development of existing and future products or services

 

 

 

 

7.3

Without prejudice to clause 7.2, each party may disclose the other party's Confidential Information:
 

7.3.1

to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 7; and

 

7.3.2

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

 

 

7.4

For the purposes of the Contract, certain information is not Confidential Information if:

7.4.1

it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Recipient in breach of this Contract;

 

7.4.2

it was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;

 

7.4.3

it was, is, or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient's knowledge, is not under any confidentiality obligation in respect of that information;

 

7.4.4

it was lawfully in the possession of the Recipient before the information was disclosed by the Discloser; or

 

 

7.5

the parties otherwise agree in writing it is not confidential.

8. INTELLECTUAL PROPERTY RIGHTS

8.1

All Intellectual Property Rights in or arising out of or in connection with the Professional Services shall be owned by SBD.

 

8.2

You acknowledge that, in respect of any third party Intellectual Property Rights in the Professional Services, your use of any such Intellectual Property Rights is conditional on SBD obtaining a written licence from the relevant licensor on such terms as will entitle SBD to license such rights to you.

 

8.3

All Intellectual Property Rights in the Deliverables shall be owned by SBD (or its licensors.) You are granted a limited, non-exclusive, non-transferable, royalty-free licence to use such Intellectual Property Rights for the purpose of receiving the benefit of the Professional Services. This licence shall immediately cease when the Contract terminates or expires.

 

8.4

All SBD Materials are SBD’s exclusive property.

 

8.5

All Intellectual Property Rights in Your Materials shall be owned by you (or your licensors). Unless otherwise agreed (in the Confirmation of Instructions or otherwise), SBD is granted a limited, non-exclusive, non-transferable, royalty-free licence to use such Intellectual Property Rights for the purpose of providing the Professional Services. This licence shall immediately cease when the Contract terminates or expires.

9. INSURANCE

9.1

For the Duration, SBD shall maintain public liability insurance in an amount not less than £2,000,000 (two million pounds) with a reputable insurance company.

10. LIMITATION OF LIABILITY

10.1

Nothing in these Terms shall limit or exclude SBD’s liability for:
 

10.1.1

death or personal injury caused by SBD’s negligence, or the negligence of SBD’s employees, agents or subcontractors;fraud or fraudulent misrepresentation; and/or

 

10.1.2

any other liability which cannot be excluded by law.

 

 

10.2

Subject to clause 10.1, SBD shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:

10.2.1

loss of profit (whether direct or indirect);

 

10.2.2

loss of anticipated profits (whether direct or indirect);

 

10.2.3

loss of revenue (whether direct or indirect);

 

10.2.4

loss of anticipated savings (whether direct or indirect);

 

10.2.5

loss of goodwill or business opportunity (whether direct or indirect); or

 

10.2.6

indirect or consequential loss or damage arising under or in connection with the Contract.

 

 

10.3

Subject to clauses 10.1 and 10.2, SBD’s total liability to you in respect of any and all claims and all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £250,000 or 150% of the total amount of the charges payable in the Contract, whichever is greater.

 

10.4

Except as expressly stated in these Terms, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law

11. SUSPENSION

11.1

Without limiting other rights and remedies, SBD may suspend the Professional Services immediately:

11.1.1

if you fail to pay any amount due under this Contract on the due date for payment;

 

11.1.2

you become subject to any of the events listed in clauses 12.2.2 or 12.2.3;

 

11.1.3

if in SBD’s reasonable opinion you fail to meet any of your obligations under clause 5 or any term of the Contract, in which case the Professional Services, shall remain suspended until such time as you demonstrate to SBD’s reasonable satisfaction that you have remedied your breach; or

 

11.1.4

where SBD becomes aware or has reasonable suspicions that fraud or illegal misuse has taken place or is likely to take place.

 

 

11.2

SBD will endeavour to give you prior notice of any suspension under clause 11.1 where reasonably practicable.

 

11.3

You will remain responsible for making all payments under the Contract by the due date during any period of suspension pursuant to this clause 11.

 

11.4

Nothing in this clause 11 shall prevent SBD from taking action to terminate the Contract in accordance with clause 12.

12. TERMINATION

12.1

The Contract shall terminate (save for any clauses which survive termination or expiry) once all the Professional Services have been completed in accordance with the Contract. The Contract can be terminated at anytime prior to such delivery in accordance with clauses 12.2 and 12.3.

 

12.2

Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

12.2.1

the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;

 

12.2.2

an order is made or a resolution is passed for the dissolution or winding-up of the other party or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the other party or its trustees, officers, directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt;

 

12.2.3

any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2.2; or

 

12.2.4

the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business.

 

 

12.3

SBD may terminate the Contract immediately if you fail to pay any amount due under this Contract on the due date for payment.

 

12.4

On termination of the Contract for any reason:

12.4.1

you shall immediately pay to SBD all of its outstanding unpaid invoices and interest;

 

12.4.2

you shall (on demand) return all SBD Materials (if any) and any Deliverables. If you fail to do so, then SBD may enter your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

 

12.4.3

the accrued rights and remedies of the parties as at termination shall not be affected, 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

 

12.4.4

clauses which expressly or by implication have effect after termination shall continue in full force and effect.

 

12.4.5

SBD may destroy or otherwise dispose of all and any of the data collected from the supply of the Professional Services, unless SBD receives no later than 10 Business Days after the expiry of the Contract a written request for delivery to you, in which case:

12.4.5.1

SBD will deliver the items to you within 30 days of receipt of the written request, provided that you have paid all fees and charges outstanding at termination, cancellation or expiry; and

 

12.4.5.2

you shall pay all expenses incurred by SBD in returning or disposing of the items.

2. BASIS OF CONTRACT

2.1 The Confirmation of Instructions constitutes an offer from SBD to provide the Professional Services in accordance with these Terms.

 

2.2 The Confirmation of Instructions shall be deemed to be accepted at the earlier of the date on which:

2.1.1 SBD commences the Professional Services; or

2.2.2 you provide written acceptance of the Confirmation of Instructions.

 

2.3      Any descriptions or illustrations contained on SBD’s websites, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract or any other Contract between SBD and you for the provision of the Professional Services.

2.4 These Terms apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

 

2.5 Any quotation given by SBD shall not constitute an offer, and is only valid for a period of 1 calendar month from its date of issue. Unless specified otherwise, all quotations are subject to increase in price to take into account fluctuations in exchange rates, list prices and taxes prior to delivery.

 

2.6 When you enter into a Contract with SBD, that Contract shall incorporate the Confirmation of Instructions and these Terms.

 

2.7 If there is a conflict or inconsistency between some or all of the documents which make up the Contract, the Confirmation of Instructions shall take precedence.

13. FORCE MAJEURE

13.1

For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of SBD including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of SBD or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

 

13.2

SBD shall not be liable to you as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. For the avoidance of doubt, a Force Majeure Event shall not release you from your obligation to pay any fees in accordance with the terms of this Contract.

 

13.3

If the Force Majeure Event prevents SBD from providing any of the Professional Services for more than 4 weeks, SBD shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to you.

14. STATUS

14.1

The relationship of SBD (and the Individuals) to you will be that of independent contractor and nothing in this Contract shall render it (nor the Individuals) an employee, worker, agent or partner of you and SBD shall not hold itself out as such and shall procure that the Individuals shall not hold themselves out as such. This Contract constitutes a contract for the provision of services and not a contract of employment.

15. NON-SOLICITATION OF SBD PERSONNEL

15.1

For the Duration, you shall not employ, engage or otherwise facilitate the employment or engagement of Individual, whether or not such person would be in breach of contract as a result of such employment or engagement.

 

15.2

For a period of 3 months after Termination of the Contract, you shall not employ, engage or otherwise facilitate the employment or engagement of any Individual, whether or not such person would be in breach of contract as a result of such employment or engagement.

16. ASSIGNMENT

16.1

SBD may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.

 

16.2

You shall not, without SBD’s prior written consent, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of your rights or obligations under the Contract.

17. NOTICES

17.1

Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier or e-mail.

 

17.2

A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by or e-mail, one Business Day after transmission.

18. GENERAL

18.1

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

 

18.2

If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

18.3

A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

18.4

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

 

18.5

A person who is not a party to the Contract shall not have any rights to enforce its terms.

 

18.6

Except as set out in the Contract, no variation of the terms of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by SBD.

 

18.7

The Contract constitutes the entire agreement between you and SBD. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of SBD which is not set out in the Contract.

 

18.8

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

 

18.9

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

TERMS AND CONDITIONS FOR THE PROVISION OF CONTENT

SBD AUTOMOTIVE LTD
 
SBD PARTICULARLY DRAWS YOUR ATTENTION TO CLAUSES 4, 5 AND 9 OF THESE TERMS
 
 
1. INTERPRETATION

1.1
In these Terms, the following definitions apply:
 
“Business Day” means a day other than a Saturday, Sunday or public or bank holiday in England
 
“Contract” means the contract between you and SBD for the provision of Content
 
“Commencement Date” means the date specified in the Confirmation of Instructions
 
“Confirmation of Instructions” means SBD’s confirmation of instructions provided to you which sets out, amongst other things, details of the Content to be provided to you in accordance with these Terms
 
“Content” means the deliverables to be provided by SBD to you as described in the Confirmation of Instructions (for example, specific industry research, reports, surveys or forecasts)
 
“Force Majeure Event” has the meaning given to it in clause 12.1
 
“Group” means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
 
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world
 
“SBD” means SBD Automotive Ltd. (company number 3403037) whose registered office is at SBD Automotive, Shenley Pavilions, Chalkdell Drive, Shenley Wood, Milton Keynes, Buckinghamshire, MK5 6LB, UK with VAT Number 694550308.
 
 “Terms” means these terms and conditions as amended from time to time in accordance with clause 15.6
 
“you” or “your” means the person who purchases the Content from SBD.
 
1.2
Unless the context otherwise requires, words in the singular include the plural and vice versa and words in one gender include any other gender.
 
1.3
a “person” includes any individual (and their personal representatives), firm, body corporate, association, partnership, government or state (whether or not having a separate legal personality).
 
1.4
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
 
1.5
Any words following the terms “including”, “include”, “in particular”, “for example”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
 
1.6
The headings in these Terms are inserted for convenience only and shall not affect its construction.
 
1.7
Reference to a “holding company” or a “subsidiary” means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
 
 
2. Basis of contract
 
2.1
The Confirmation of Instructions constitutes an offer from SBD to provide the Content in accordance with these Terms.
 
2.2
The Confirmation of Instructions shall be deemed accepted by you at the earlier of:
2.2.1
downloading some or all of the Content from SBD’s online client portal;
 
2.2.2
otherwise receiving SBD Content (for example by CD-ROM or USB); or
 
2.2.3
by your written acceptance of our Confirmation of Instructions.
 
 
2.3
Any descriptions or illustrations contained on SBD’s websites, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract or any other Contract between SBD and you for the provision of the Content.
 
2.4
These Terms apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
 
2.5
Any quotation given by SBD shall not constitute an offer, and is only valid for a period of 1 calendar month from its date of issue. Unless specified otherwise, all quotations are subject to increase in price to take into account fluctuations in exchange rates, list prices and taxes prior to delivery.
 
2.6
When you enter into a Contract with SBD, that Contract shall incorporate the Confirmation of Instructions and these Terms.
 
2.7
If there is a conflict or inconsistency between some or all of the documents which make up the Contract, the Confirmation of Instructions shall take precedence.
 
 
3. CONTENT
 
3.1
SBD shall provide the Content in accordance with the Confirmation of Instructions and warrants that the Content will be prepared to a reasonable and satisfactory standard taking into account the specific details in the Confirmation of Instructions.
 
3.2
Further details in relation to the Content to be provided by SBD to you are described in the Confirmation of Instructions.
 
3.3
Unless agreed otherwise, SBD shall make the Content available to you via the internet on SBD’s online client portal. Delivery of a Report shall be deemed to be completed as soon as the Report has been downloaded by you.
 
3.4
Any timescales quoted for delivery of the Content are approximate only, and the time of delivery is not of the essence.
 
3.5
In order to make a valid claim regarding the Content failing to comply with clause 3.1:
3.5.1
You must give SBD notice in writing within 3 Business Days of discovery that some or all of the Content does not comply with clause 3.1; and
 
3.5.2
You must give SBD a reasonable opportunity to investigate the matters giving rise to the claim.
 
 
3.6
All other warranties that are implied by statute, regulation or by custom and practice are excluded from the Contract
 
 
4. DISCLAIMERS
 
4.1
Subject to the warranty in clause 3.1:
4.1.1
SBD offers no warranties, representations or undertakings regarding the Content;
 
4.1.2
the Content should not be relied upon in isolation or without taking appropriate professional business advice in the course of taking a particular action or permitting a particular omission;
 
4.1.3
no warranties are given as to the accuracy, completeness or usefulness of the Content;
 
4.1.4
SBD does not warrant that the Content will be error free; and
 
4.1.5
no warranties are given for the Content being fit for a particular a purpose (save where a specific purpose is expressly identified in the Confirmation of Instructions).
 
 
4.2
SBD shall not be liable to you for:
4.2.1
any use by you of the Content which is not expressly permitted in the Contract;
 
4.2.2
any claims or damages arising from any errors or inaccuracies in the Content; or
 
4.2.3
subject to clause 3.1 any actions, omissions or decisions that you make in reliance on the Content.
 
 
 
5. YOUR obligations
 
5.1
You shall:
5.1.1
ensure that the terms of the Confirmation of Instructions are complete and accurate before entering into the Contract in accordance with Clause 2.2;
 
5.1.2
co-operate with SBD in all matters relating to the delivery of the Content;
 
5.1.3
provide SBD with such information and materials as SBD may reasonably require to supply the Content, and ensure that such information is accurate in all material respects;
 
5.1.4
not dispose of or use the Content other than in accordance with the Contract;
 
 
5.2
Unless you have SBD’s prior written consent, you shall not:
5.2.1
reproduce, distribute or communicate some or all of the Content in any way to any third party (including but not limited to any company within your Group) or via the Internet or other public communication network; or
 
5.2.2
reproduce or cite some or all of the Content in any public forum, or via the Internet or in any journalistic or academic work.
 
 
5.3
If SBD’s performance of any of its obligations in relation to the Contract is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (“Default”):
5.3.1
SBD shall without limiting its other rights or remedies have the right to suspend the delivery of the Content until you remedy your Default, and to rely on your Default to relieve SBD from the performance of any of its obligations to the extent your Default prevents or delays SBD’s performance of any of its obligations;
 
5.3.2
SBD shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from SBD’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
 
5.3.3
you shall reimburse SBD on written demand for any costs or losses sustained or incurred by SBD arising directly or indirectly from your Default.
 
 
 
6. Charges and payment
 
6.1
The price for the Content shall be the price set out in the Confirmation of Instructions.
 
6.2
SBD reserves the right to increase the prices, by giving notice to you at any time before delivery, to reflect any increase in the prices to SBD that is due to any:
6.2.1
factor beyond the control of SBD (including, but not limited to increases in taxes, duties and foreign exchange fluctuations);
 
6.2.2
request by you to change the Confirmation of Instructions (e.g. delivery date(s) or quantities or types of Content ordered); or
 
6.2.3
delay caused by any of your instructions in respect of the Content or your failure to give SBD adequate or accurate information or instructions in respect of the Content.
 
 
6.3
SBD shall invoice you on or at any time after completion of delivery of the Content.
 
6.4
You shall pay each invoice submitted by SBD:
6.4.1
within 30 days after the date of the invoice; and
 
6.4.2
in full and in cleared funds (and in the currency specified in the Confirmation of Instructions) to a bank account nominated in writing by SBD
 
 
6.5
Time for full such payment shall be of the essence of the Contract.
 
6.6
All amounts payable by you under the Contract are exclusive of value added tax (“VAT”) which shall be added to SBD’s invoices at the current rate.
 
6.7
If you fail to make any payment due to SBD under the Contract by the due date for payment, then:
6.7.1
you shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount;
 
6.7.2
SBD shall have the right to suspend delivery of future Content or any services pursuant to any other agreements between you and SBD until SBD receives payment in full (in cash or cleared funds).
 
 
6.8
You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. We may, without limiting SBD’s other rights or remedies, set off any amount owing to SBD by you against any amount payable by SBD to you.
 
 
7. Intellectual property rights AND OWNERSHIP
 
7.1
All Intellectual Property Rights in or arising out of the Content shall be owned by SBD (or its licensors.) You are granted a limited, non-exclusive, non-transferable, royalty-free licence to use the Content and such Intellectual Property Rights therein for no purpose other than your internal business purposes only.
 
7.2
You acknowledge that, in respect of any third party Intellectual Property Rights in the Content, SBD does not give any warranty that such Intellectual Property Rights will not infringe the Intellectual Property Rights of another third party (or other third parties).
 
7.3
Subject to 7.2 SBD warrants that the Content shall not infringe in the UK any third party’s Intellectual Property Rights.
 
 
8. Confidentiality

8.1
A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Receiving Party may also disclose such of the Disclosing Party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 8 shall survive termination of the Contract.
 
 
9. Limitation of liability
 
9.1
Nothing in these Terms shall limit or exclude SBD’s liability for:
9.1.1
death or personal injury caused by SBD’s negligence, or the negligence of SBD’s employees, agents or subcontractors;
 
9.1.2
fraud or fraudulent misrepresentation; and/or
 
9.1.3
any other liability which cannot be excluded by law.
 
 
9.2
Subject to clauses 4 and 9.1, SBD shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
9.2.1
loss of profit (whether direct or indirect);
 
9.2.2
loss of anticipated profits (whether direct or indirect);
 
9.2.3
loss of revenue (whether direct or indirect);
 
9.2.4
loss of anticipated savings (whether direct or indirect);
 
9.2.5
loss of goodwill or business opportunity (whether direct or indirect); or
 
9.2.6
indirect or consequential loss or damage arising under or in connection with the Contract.
 
 
9.3
Subject to clauses 4, 9.1 and 9.2, SBD’s total liability to you in respect of any and all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 150% of the total amount of the price payable in accordance with the Contract.
 
9.4
Except as expressly stated in these Terms, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
 

10. Suspension
 
10.1
Without limiting other rights and remedies, SBD may suspend delivery of the Content  and any future Content immediately:
10.1.1
if you fail to pay any amount due under this Contract on the due date for payment;
 
10.1.2
you become subject to any of the events listed in clauses 11.2.2 or 11.2.3;
 
10.1.3
if in SBD’s reasonable opinion you fail to meet any of your obligations under clause 5 or any term of the Contract, in which case delivery of the Content shall remain suspended until such time as you demonstrate to SBD’s reasonable satisfaction that you have remedied your breach; or
 
10.1.4
where SBD becomes aware or has reasonable suspicions that fraud or illegal misuse has taken place or is likely to take place.
 
 
10.2
SBD will endeavour to give you prior notice of any suspension under clause 10.1 where reasonably practicable.
 
10.3
You will remain responsible for making all payments under the Contract by the due date during any period of suspension pursuant to this clause 10.
 
10.4
Nothing in this clause 10 shall prevent SBD from taking action to terminate the Contract in accordance with clause 11.
 
 
11. Termination
 
11.1
The Contract shall terminate (save for any clauses which survive termination or expiry) once all the Content has been delivered in accordance with the Contract. The Contract can be terminated at anytime prior to such delivery in accordance with clauses 11.2 and 11.3.
 
11.2
Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
11.2.1
the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
 
11.2.2
an order is made or a resolution is passed for the dissolution or winding-up of the other party or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the other party or its trustees, officers, directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt;
 
11.2.3
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2.2; or
 
11.2.4
the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business.
 
 
11.3
SBD may terminate the Contract immediately if you fail to pay any amount due under this Contract on the due date for payment.
 
11.4
On termination of the Contract for any reason:
11.4.1
you shall immediately pay to SBD all of its outstanding unpaid invoices and interest;
 
11.4.2
you shall (on demand) return all of Content which has not been fully paid for. If you fail to do so, then SBD may enter your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
 
11.4.3
the accrued rights and remedies of the parties as at termination shall not be affected, 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
 
11.4.4
clauses which expressly or by implication have effect after termination shall continue in full force and effect.
 
 
 
12. Force Majeure
 
12.1
For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of SBD including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of SBD or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
 
12.2
SBD shall not be liable to you as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. For the avoidance of doubt, a Force Majeure Event shall not release you from your obligation to pay any fees in accordance with the terms of this Contract.
 
12.3
If the Force Majeure Event prevents SBD from providing any Content for more than 4 weeks, SBD shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to you.
 
 
13. ASSIGNMENT
 
13.1
SBD may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
 
13.2
You shall not, without SBD’s prior written consent, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of your rights or obligations under the Contract.
 
 
14. Notices
 
14.1
Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier or e-mail.
 
14.2
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by or e-mail, one Business Day after transmission.
 
 
15. GENERAL
 
15.1
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
 
15.2
If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
 
15.3
A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
 
15.4
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
 
15.5
A person who is not a party to the Contract shall not have any rights to enforce its terms.
 
15.6
Except as set out in the Contract, no variation of the terms of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by SBD.
 
15.7
The Contract constitutes the entire agreement between you and SBD. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of SBD which is not set out in the Contract.
 
15.8
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
 
15.9
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

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