Conditions of Business
1.1 Company – means MCS, which is the trading name of Materials Consultancy Services Ltd.

1.2 Client – means any party who enters into a Contract with the Company.

1.3 Contract – means any contract / order acknowledgement under which the Company agrees to provide Services to any Client.

1.4 Services – shall include research and development, consultancy, advisory, training, technical assistance, testing and other services from time to time offered by the Company.

1.5 Results – shall include any and all results, whether or not patented or patentable, arising from the Company’s performance of any Contract.

Extent of Contract
2.1 These conditions shall be incorporated in all Contracts to the exclusion of any terms or conditions referred to by the Client whose acceptance of the carrying out of any Services shall constitute conclusive acceptance of these conditions.

2.2 No amendment of any Contract or these conditions shall bind the Company unless confirmed in writing by the Managing Director of the Company. The variation of any Contract or exercise of any right of termination or otherwise thereunder shall not require the consent of any third party.

2.3 The Company reserves the right to withdraw or cancel any proposal or quotation without notice at any time prior to its acceptance by the Client and such proposals and quotations shall be deemed to have been withdrawn if not accepted within 30 days from the date thereof or other validity period agreed in writing by the Company.

Prices & Payment
3.1 The Company’s charges exclude VAT.

3.2 Unless otherwise stated, the Company’s prices and charges are subject to adjustment for any variations in cost incurred by the Company after the date of the Company’s proposal or quotation as a result of:

3.2:1 any alterations in specifications, quantities or times of delivery or performance or suspension of any work requested by the Client;

3.2:2 any delay in the supply by or on behalf of the Client of any instructions, data or materials of whatever kind or any inaccuracy, insufficiency or defect therein, or non-conformity to their specifications; or

3.2:3 any other factor beyond the Company’s control (including without limitation, any foreign exchange fluctuations, alterations of duty or increase in the costs of labour, materials, utilities or other costs of manufacture).

3.3 All amounts due to the Company, unless otherwise agreed in writing, shall be payable in Pounds Sterling not later than 30 days after the date of the Company’s invoice together with VAT, where applicable, at the then current rate but without any set-off or other deductions whatsoever. The time of payment shall be of the essence of the Contract and, without prejudice to any other rights of the Company, if the invoice is not paid in full by the due date, interest shall be payable on any overdue amount from the date on which payment was due to that on which it is made (whether before or after judgement) on a daily basis at the rate of 2 points over the base rate from time to time quoted by the Company’s bankers.
Delivery & Performance
4.1 Times quoted for the performance of any Services are subject to the supply of all instructions or other matter of whatsoever kind required from the Client for the performance of the Contract. The Company shall endeavour to meet such times for performance but shall not be liable for any loss, damage, or expense of whatever kind arising from any delay or failure from whatsoever cause nor shall such failure or delay entitle the Client to refuse to accept any performance or repudiate the Contract.

4.2 The Company may affect performance by instalments. No failure by the Company in any one or more instalments shall entitle the Client to repudiate any Contract for Services previously supplied or to refuse to accept any unperformed Services.
Loss or Damage of samples in Transit
5.1 All samples will be delivered to the Company in a manner deemed fit by the Client and at the Clients expense.

5.2 The Company will take no responsibility for loss or damage of samples in transit.

6.1 Except to the extent stated in these conditions or otherwise agreed in writing by the Company:

6.1:1 neither the Company not any of its subcontractors, nor any of its or their directors, or employees shall have any obligation, duty or liability in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever in connection with Services supplied by or on behalf of the Company other than, in the case of any of the foregoing persons, for death or personal injury resulting from its or his negligence or for fraud on its part or on part of any of its directors, or employees whilst acting in the course of their duties or employment; and

6.1:2 in particular, neither the Company nor any of the other foregoing persons shall have any liability for any consequential loss or damage suffered, directly or indirectly, by the Client under or in connection with any Contract, including but not limited to wasted time or expenditure, loss of profits, production, business revenue, expected savings or goodwill or any claim against the customer by any person.

6.2 Because the effectiveness of the Services offered by the Company may depend upon factors outside the Company’s control, the Company shall in no circumstances have any liability for the Client’s use of or inability to use any Results of for the suitability of the same for any particular purpose, whether or not known to the Company.

6.3 The Company shall have no liability for any loss of or damage to any samples, materials or equipment arising from any tests, investigations or consultancy undertaken by or on behalf of the Company. The Client acknowledges, in particular, that testing may be to destruction and that the Company reserves the right to dispose of or return items submitted to it in accordance with its procedures from time to time in force.

6.4 The Company shall be discharged from all liability to which these conditions apply unless proceedings are begun within twelve months after the Client became aware (or should reasonably have become aware) of the facts giving rise to such liability.

6.5 In view of the range of Services provided by the Company, prices and charges are put forward on the basis that the client has the primary responsibility for any risks associated with them and for insuring against such risks as it thinks fit. Accordingly, the Company’s liability in connection with any such Services shall in no circumstances exceed, in the aggregate, the prices or charges payable for them or such other amount as may be specifically agreed in writing between the parties before the contract is entered into.

6.6 The Company shall have no liability under these conditions in respect of any advice, opinion or information furnished by the Company, its employees or agents in connection with any Contract unless given in writing quoting the Contract number by a person expressly so authorised by the Company for that purpose in response to a written request by the Client.

7.1 The Client shall indemnify the Company against all actions, claims, losses, damages, liabilities, costs and expenses of whatsoever nature suffered or incurred by the Company, its subcontractors and its directors or employees, in connection with any claim relating to the infringement or alleged infringement of the rights of any third party claimed under or in relation to any patent, registered design, trade mark, copyright, design right or breach of confidence arising from the Company’s use of any design or instruction provided by or on behalf of the Client or from the Company’s use of or provisions of services in relation to any material supplied by or on behalf of the Client.

8.1 The Company will treat as confidential and not disclose to any third party any information which it acquires from the Client under the Contract in relation to the Client’s business or technical operations which the Client has in writing identified as confidential prior to disclosure provided that this restriction shall not apply to any information which is or (otherwise than in breach of this condition) becomes publicly available, is known to the Company at the date of disclosure or is thereafter acquired by the Company in good faith from an independent source.

Results Etc.
9.1 All results and all rights (including copyright) therein shall be and remain the property of the Company which shall have the right to use and authorise others to use the same subject to any rights granted in writing by the Company to the Client.

Use of Reports & Other Material
10.1 The Client will not without the Company’s prior written consent:

10.1:1 reproduce in part any reports relating to samples tested or use them in any way which might lead to a misrepresentation of the test results or their implications;

10.1:2 in any advertising, marketing or other publication refer or permit any reference to be made to the Company or to any tests, investigations or other services provided by the Company provided that subject to this condition the Client will at the Company’s request publish such credits for the Services provided by the Company as the Company reasonably requests.

10.2 Unless otherwise agreed in writing, all Results, including but not limited to reports or other data are intended for use by the Client only and the Company accepts no liability in case of their disclosure to or use by any third party.

10.3 If the Client wishes to use any such Results in or in connection with any litigation or proceedings it is a condition of the contract under which the Services in question are to be performed that all of the circumstances relating to such litigation or proceedings have been disclosed in writing to the Company prior to the Contract being entered into.

Force Majeure
11.1 The Company shall not be liable for any delay or other failure to perform the whole or any part of the Contract caused by any circumstances outside the Company’s reasonable control and shall inform the Client of the beginning and end of such delay or failure and continue performance whenever such circumstances cease to prevail.

Suspension & Termination
12.1 If the Client fails to make any payment when and as due or otherwise defaults in any of its obligations under the Contract or other agreement with the Company, becomes insolvent, has a receiver, manager, administrator, administrative receiver or trustee in bankruptcy appointed for all or any part of its business, is the subject of any bankruptcy order or has any order made or resolution passed for its winding up, whether compulsorily or voluntarily, or is dissolved, compounds with its creditors or suffers in consequence of debt any action similar to any of the foregoing, the Company shall be entitled, at its option, by giving the Client written notice at any time or times, without any liability to the Client, to forthwith suspend its performance of or (whether or not such performance has previously been suspended) terminate the contract and the Client’s right to use any Results.

13.1 The acceptance of any cancellation of any Contract or return of any Goods (notwithstanding the Company’s retention of title therein) shall be at the Company’s discretion and take effect only when written confirmation of such acceptance has been given by the Company which reserves the right to charge for any costs or expenses which it incurs in connection with any such cancellation or return.

Assignment Etc.
14.1 The Contract shall not be assignable by the Company or the Client but the Company shall be entitled to sub-contract its obligations under the Contract to any party at its discretion.

15.1 The Company shall have a lien on any items supplied by or on behalf of the Client acquired in connection with any Contract in the Company’s possession for all sums due at any time from the Client on any account and shall be entitled to keep possession of the same until payment is made in full. The Company shall have the further right at its option to sell or dispose of any such items as agent for and at the expense of the Client and apply any proceeds in and towards the payment of such sums on twenty eight days written notice to the Client.

Law & Jurisdiction
16.1 The Contract shall be governed by Scottish law and the Client consents to the jurisdiction of the Courts in Scotland.

17.1 The headings of conditions are for convenience of reference only and shall not affect their interpretation.

18.1 Any notice to be given under the Contract shall be in writing and if sent by telex, telecopier, facsimile or forwarded by first class pre-paid letter post to the receiving party at its business address as last notified in writing to the other party shall be deemed to have been given on the date of the telex, telecopier or facsimile despatch or 2 working days (or 7 working days in the case of Clients outside the United Kingdom) following the date of posting.
Issued January 2013