Terms and Conditions
1.1 These Terms and Conditions shall apply to the provision of Goods and Services by the Company to the Customer.
1.2 In the event of conflict between these Terms and Conditions and any other Terms and Conditions (of the Customer or otherwise), the former shall prevail unless expressly otherwise agreed by the Company in writing.
2.1 In this Agreement unless the context otherwise requires, the following expressions have the following meanings:
2.1.1 “Business Day” means a day (excluding Saturdays) on which the banks are generally open for the transaction of normal banking business;
2.1.2 “Company” means KSG ACOUSTICS LTD, a company registered in Scotland with company number SC467501 and having its registered office at Floor 3, Suite 6 The Whisky Bond, 2 Dawson Road, Glasgow G4 9SS;
2.1.3 “Customer” means any individual, firm or corporate body (which expression 9 shall, where the context so admits, includes its successors or assigns) which purchases Goods and Services from the Company, or voluntarily participates in the Quiet Project.
2.1.4 “Commencement Date” means the commencement date for this Agreement as set out in the invoice;
2.1.5 “Price” means the amount to be paid by the Customer for the Goods and Services as set out in the invoice;
2.1.6 "Intellectual Property" means any and all intellectual property or industrial rights of any description anywhere in the world including without limitation to the foregoing generality any patents, trade marks, domain names, registered designs, copyright (including without limitation to the foregoing generality rights in computer software, object and source code), rights in the nature of copyright, database rights, semi-conductor topography rights, unregistered design rights, rights in and to trade names, business names, domain names, product names and logos, trade secrets, and any analogous or similar right in any jurisdiction (whether any such rights referred to in this definition are registered, unregistered, registrable or not) and any applications or rights to apply for registration of any of them together with any registered rights resulting from any such applications or rights to apply for registration;
2.1.7 “Goods and Services” means the goods and/or services to be provided by the Company to the Customer as set out in the Company’s invoice to the Customer; and
2.1.8 “Quiet Project” means the research programme using sound level meters to record sound levels.
2.2 In this Agreement, any reference to the word "including" is to be construed as meaning without limitation; and references to legislation are to that legislation as amended or re-enacted from time to time.
2.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
3 THE SERVICE
3.2 With effect from the Commencement Date, the Company shall, in consideration of the Price being paid in accordance with the terms of payment provide the Goods and Services expressly identified in their invoice or otherwise agreed under this Agreement.
3.3 The Company will use reasonable care and skill to supply and perform the Goods and 11.1 Services identified in their invoice or otherwise agreed in this Agreement.
3.4 The Customer shall use all reasonable endeavours to complete its obligations under the invoice.
The Quiet Project
3.5 Where the Customer signs up for the Quiet Project, the Customer may be provided with sound level meters to install within the boundaries of their property (the Equipment”), or the Customer may provide such equipment itself. The sound level meters will be used to record sound levels for research purposes. The sound level meters will be set to record sound levels (the “Sound Level Data”); using the sound level meters for audio recordings, to record specific sounds, is not permitted.
3.6 All Sound Level Data is owned exclusively by the Company, and shall not at any time become the property of the Customer, even where the Customer has provided the specific Sound Level Data.
3.7 By proceeding to sign up for the Quiet Project, the Customer provides the Company with permission to access and use the Sound Level Data. The Company shall publish the Sound Level Data publicly, and the approximate measurement location of the Sound Level Data.
3.8 The Company shall be permitted to share the Sound Level Data with third parties for processing and analysis. Such third parties may include, but are not limited to, the Association of Noise Consultants, the Institute of Acoustics, the UK Acoustics Network, London South Bank University and University College London.
3.10 The Company does not accept any responsibility for any technical issues arising from the Equipment, and does not undertake to replace any faulty Equipment, on the basis that the Quiet Project is provided on a free, voluntary basis.
4.1 The Customer agrees to pay the Price in accordance with the terms of payment.
4.2 With prior agreement, the Customer will pay the Company for any additional goods and/or services provided by the Company that are not specified in the invoice in accordance with the Company's then current, applicable rates in effect at the time of the supply or performance or at such other rate as may be agreed. Any charge for additional goods and /or services will be supplemental to the amounts that may be due for the expenses.
4.3 All sums payable by either party pursuant to this Agreement are exclusive of any value added or other tax (except Corporation Tax) or other taxes on profit, for which that party shall be additionally liable.
4.4 The Quiet Project is a voluntary project, and no fee shall be charged for this Service.
5.1 All payments required to be made pursuant to this agreement by either party shall be made immediately unless indicated otherwise in the relevant invoice, upon issue of said relevant invoice in Pounds Sterling (£) in cleared funds to such bank as the other 13.2 party may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
6 VARIATIONS AND AMENDMENTS
6.1 If the Customer wishes to vary any details of their purchase order it will notify the Company in writing as soon as possible. The Company shall endeavour to make any required changes and any additional costs agreed with the Customer thereby incurred shall be invoiced to the Customer. Costs not agreed with the Customer will be paid only at the sole discretion of the Customer.
6.2 If, due to circumstances beyond the Company's control, it has to make any change in the arrangements relating to the provision of the Goods and Services it shall notify the Customer forthwith. The Company shall endeavour to keep such changes to a minimum and shall seek to offer the Customer arrangements as close to the original as is reasonably possible in the circumstances. The Company shall not be held liable for any additional costs incurred by the Customer due to these circumstances.
7.1 Either party may terminate this Agreement forthwith if:
7.1.1 either party is in breach of any of its obligations hereunder; or
7.1.2 either party has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntary or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantive part of its undertaking or assets; or
7.1.3 either party has become bankrupt or shall be deemed unable to pay its debts by virtue of section 123 of the Insolvency Act of 1986; or
7.1.4 either party ceases or threatens to cease to carry on business.
7.1.5 The Company may terminate this Agreement if any circumstances whatsoever beyond the reasonable control of the Company (including but not limited to the termination of the Service through no fault of the Company) arise that necessitate for whatever reason the termination of the provision of Goods and Services.
7.2 Either party may terminate this Agreement with 30 days’ written notice to the other party.
7.3 In the event of termination under clause 7.1 or 7.2, each party shall retain any sums already paid to it by the other party without prejudice to any other rights the parties may have whether at law or otherwise.
8.1 Either party may sub-contract the performance of any of its obligations under this Agreement only with the prior written consent of the other party, such consent not to be unreasonable withheld or delayed. Where either party sub- contracts the performance of any of its obligation under this Agreement to any person with the prior consent of the other party, that party shall be responsible for every act or omission of the sub-contractor as if it were an act or omission of the party itself.
9.1 Except in respect of death or personal injury caused by the Company's negligence, the Company will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of this contract, be liable for any loss of profit or any indirect, special or on sequential loss, damage, costs, expenses or other claims (whether caused by the Company's servants or agents or otherwise) in connection with the performance of this contract.
9.2 The Customer shall indemnify the Company against all damages, costs, claims and expenses suffered by the Customer arising from loss or damage to any equipment (including that of third parties) caused by the Company or its agent or employees.
9.3 The Company shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Company's obligations if the delay or failure was due to any cause beyond the Company's reasonable control.
9.4 The Company’s liability under this Agreement shall be limited to the total Price paid by the customer under this Agreement. Where the Company has provided the Quiet Project to the Customer, the Company’s liability shall be limited to a maximum of £1,000.
10 FORCE MAJEURE
10.1 Neither party shall be liable to the other nor be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods and Services, if the delay or failure was due to any cause beyond that party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control: -
10.1.1 act of God, explosion, flood, snow, tempest, fire or accident;
10.1.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
10.1.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
10.1.4 import or export regulations or embargoes;
10.1.5 strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of either the Supplier or the Client or of a third party); or
10.1.6 power failure or breakdown in machinery.
11.1 No waiver by the Company of any breach of these terms and conditions by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of this agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which the waiver is given.
11.2 No failure or delay on the part of any party in exercising any right, power or privilege under this agreement shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
12.1 If any provision of these terms and 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 terms and conditions and the remainder of the provision in question shall not be affected thereby.
13 INTELLECTUAL PROPERTY
13.1 The parties agree that all Intellectual Property produced by or on behalf of the Company in connection with or relating to this Agreement shall vest in and belong to the Company.
13.2 The Customer shall, at the request of the Company, take all such steps and execute all such assignments and other documents as the Company may reasonably require to ensure, that all the Intellectual Property vests in and belongs to the Company and for the registration or protection of the Company's rights in Intellectual Property.
14 NOTICES AND SERVICE
14.1 Any notice or other information required or authorised by this Agreement to be given by either party to the other shall be given by sending via pre-paid registered post, or email.
14.2 Any notice or information given by post in the manner provided by Clause 14.1 which is not returned to the sender as undelivered shall be deemed to have been given on the Fifth day after the envelope containing it was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.
14.3 Any notice or information sent by e-mail shall be deemed to have been duly given on the date of transmission, provided that a confirming copy of it is sent to the other party 24 hours after transmission.
14.4 Service of any document for the purposes of any legal proceedings concerning or arising out of this Agreement shall be effected by either party by causing such document to be delivered to the other party at its registered or principal office, or to such other address as may be notified to one party by the other party in writing from time to time
15 APPLICABLE LAW AND JURISDICTION
15.1 These terms and conditions, and any non-contractual obligations arising hereunder, shall be governed and construed in accordance with Scottish law and the parties shall submit to the non-exclusive jurisdiction of the Scottish court