These terms and conditions of business contain important provisions that govern our relationship with you, and set out the basis on which we shall conduct all matters undertaken for you in accordance with the scope of work agreed and confirmed in writing between us.
YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 6 (LIMITATION OF LIABILITY).
1 Definitions and interpretation
- Business Day: means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
- Client, or you: means the person who purchases the Services to be provided by us.
- Commencement Date: means the date on which we issue written acceptance of your instructions at which point and on which date the Agreement shall come into existence.
- Confidential information: means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such).
- GDPR: means The General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679).
- Intellectual Property Rights: patents, rights to inventions, copyright 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.
- Services: means the services to be provided by us.
- Supplier Materials: has the meaning given in Clause 3.1(e).
- Term: means the term of this Agreement.
- Unless the context otherwise requires, each reference in this Agreement to:
- writing, written and any similar expression, includes a reference to any communication effected by electronic means;
- a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
- this Agreement is a reference to the agreement between you and us for the supply of Services in accordance with these terms of business as amended or supplemented at the relevant time;
- a Clause is a reference to a clause of this Agreement;
- a Party or the Parties is a reference to the parties to this Agreement and includes their personal representatives, successors or permitted assigns;
- one gender shall include a reference to the other genders;
- person shall include a reference to a corporation.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
2 Supply of Services
2.1 We shall provide the Services to you in accordance with the scope of work agreed and confirmed in writing between us.
2.2 We reserve the right to amend or supplement any of these terms of business or any other terms specifically agreed between us if necessary to comply with any applicable law or regulatory requirement, or if the amendment or supplement will not materially affect the nature or quality of the Services, and we shall notify you in any such event.
2.3 We shall use all reasonable endeavours to meet any agreed performance dates, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
2.4 We shall provide the Services using reasonable care and skill.
3 Your obligations
3.1 You shall:
- Provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
- Co-operate with us in all matters relating to the Services;
- Provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as reasonably required by us;
- Obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
- Keep all materials, equipment, documents and other property of ours (Supplier Materials) at your premises in safe custody at your own risk, maintain the Supplier Materials in good condition until returned to us, and not dispose of or use the Supplier Materials other than in accordance with our written instructions or authorisation.
3.2 If our performance of any of our obligations under the Agreement is prevented or delayed by any act or
omission by you or failure by you to perform any relevant obligation (Client Default):
- Without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Services until you remedy the Client Default, and to rely on the Client Default to relieve us from the performance of any of our obligations in each case to the extent the Client Default prevents or delays our performance of any of our obligations;
- We shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 3.2; and
- You shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Client Default.
4 Charges and payment
4.1 The cost of the Services shall be indicative of the type of work undertaken and it is normal procedure for us to provide an estimate or quotation in each instance along with details of our payment terms, headed appropriately as such. If there are any changes in your instructions or in the circumstances of the matter at any time, these shall be reflected in an amended estimate or quotation which shall be provided to you at the earliest opportunity. In the event that we are unable to provide an estimate, we shall keep you informed of the work in progress on a periodic basis or upon your request.
4.2 Where it is necessary to instruct a third party on your behalf, we will do so as your agent and you shall be responsible for payment of the third party’s fees.
4.3 We may ask you to pay funds on account of our charges and the disbursements and third parties’ charges we expect to incur. Any such request shall not be an estimate or a cap on our fees, and your total charges and expenses may be greater than any advance payments. We may also request further payments on account of our charges and expenses as the matter progresses. Unless your payment on account was made for a specified purpose, it may be offset against your invoice when billed to you. If you do not make such a payment on account when asked to do so, we shall be entitled to stop the Services until the payment has been made.
4.4 An invoice, or receipted invoice, will be rendered at the conclusion of a matter. We reserve the right to render interim invoices during the course of the Services provided. Any particular billing requirements you may have should be communicated to us prior to the Services commencing.
4.5 Bills are payable in accordance with our payment terms, which shall be provided to you with our estimate or quotation at the outset of the matter. If any bill is not paid when due, we reserve the right to charge interest on the overdue amount. Interest will be charged on a daily basis at the official rate payable on judgement debts (which is usually close to standard commercial rates) and we shall also be entitled to recover any costs we incur in collecting the overdue amount.
5 Data Protection
5.1 We shall, during and following completion of the Services, retain any documentation or information, that may be foreseen to be required in the future, but in any event for no longer than a period defined within any Act referring to a Limitation period for bringing a legal action in a competent court in the jurisdiction in which the Services were provided and shall dispose, destroy or delete any information which is deemed to be extraneous.
5.2 During such retention period personal data processed by us on your behalf will be kept securely and where transferred to you or a sub-processor or third party instructed by you, it shall be encrypted with a unique password communicated to the recipient separately and compliant with the requirements of GDPR.
5.3 We will, if so instructed, offer to you or to the data subject, without charge, assistance should a data subject formally serve upon you a Subject Access Request under GDPR. Any Subject Access Request served on us directly will be referred to you immediately upon receipt.
5.4 In the event of a data breach during the processing of personal data under the terms of this Agreement, you shall be notified immediately, and we will provide assistance to you in compliance with GDPR.
5.5 We shall upon request submit audits and undertake to inspect and provide you with requisite information to ensure compliance with your GDPR obligations. We will inform you immediately if there is a danger of something infringing GDPR or other data protection law of the United Kingdom, EU or a member state.
5.6 Where we have appointed a Data Protection Officer, they shall be named on our website.
5.7 For the avoidance of doubt instructions are accepted on the basis that the Services are conducted under your direction and as such we shall be deemed to be the Data Processor and you, and/or the principal shall be deemed the Data Controller, unless we determine the manner and the purpose of the processing, in which case, we shall be Data Controller or Joint Data Controller. The handling of personal data will be in accordance with your instructions and direction.
5.8 You will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to us for the duration and purpose of the Agreement.
6 Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
6.1 This Clause 6 sets out the entire financial liability of the Parties (including that for the acts or omissions of their employees, agents or subcontractors) to each other for any breach of this Agreement; any use of the Services by you; and any representation, statement or tortious act or omission (including, but not limited to, negligence and breach of statutory duty) arising out of or in connection with this Agreement.
6.2 Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence; and
(b) fraud or fraudulent misrepresentation.
6.3 Subject to Clause 6.2, neither Party shall be liable to the other, whether in contract, tort (including negligence), restitution, or for breach of statutory duty or misrepresentation for any of the following types of loss that may be suffered by the other Party that arises out of or in connection with this Agreement:
(a) loss of profits;
(b) loss of sales, business or business opportunity;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; or
(g) any special, indirect or consequential damage or loss.
6.4 Without prejudice to any other provision of this Clause 6, our total liability arising out of or in connection with this Agreement (whether in contract, tort (including negligence), restitution, for breach of statutory duty or misrepresentation or otherwise) shall be limited to the value of the sums paid by you to us in respect of the Services under this Agreement.
6.5 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
6.6 This Clause 6 shall survive termination of the Agreement.
Without affecting any other right or remedy available to it, either Party may terminate the Agreement by giving the other Party not less than 90 days’ written notice delivered to the other Party’s address or by email.
8 Consequences of termination
8.1 On termination of the Agreement:
(a) you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt; and
(b) you shall return all of the Supplier Materials which have not been paid for. If you fail to do so, then we 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 the Agreement.
8.2 Termination of the Agreement shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which either Party may have in respect of any breach of this Agreement which existed at or before the date of termination.
8.3 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.
9.1 Each Party undertakes that it shall not at any time disclose any Confidential Information to any person, except as permitted by Clause 9.2.
9.2 Each Party may disclose the other Party’s Confidential Information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such
information for the purposes of carrying out the Party’s obligations under the Agreement. Each Party
shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it
discloses the other Party’s Confidential Information comply with this Clause 9; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory
9.3 Neither Party shall use the other Party’s Confidential Information for any purpose other than to perform its obligations under the Agreement.
9.4 From time to time we may wish to issue publicity about our services which may include details of previous cases or case scenarios. We shall make no specific references to your matter which may reveal, or otherwise lead to be revealed, any Confidential Information.
9.5 We reserve the right to act on behalf of other individuals or corporations who operate in the same geographical locality as you, or in the same or similar sector, subject to our obligation to avoid a conflict of interest and our obligations of confidentiality under this Agreement.
10 Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by you) shall be owned by us.
10.2 We grant to you, or shall procure the direct grant to you of, a fully paid-up, worldwide, non-exclusive, royalty- free licence during the term of the Agreement to copy and modify materials provided by us for the purpose o receiving and using the Services in your business.
10.3 You shall not sub-license, assign or otherwise transfer the rights granted in Clause 10.2.
10.4 You grant to us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Agreement for the purpose of providing the Services to you
11.1 Force majeure. Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Variation. Except as set out in the Agreement, no variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
11.3 Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.4 Further assurance. Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of this Agreement into full force and effect.
11.5 Severance. If any provision or part-provision of the Agreement 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 Agreement.
11.6 Third party rights. Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
11.7 Anti-bribery. All instructions are carried out with due consideration given to the provisions and requirements of the Bribery Act 2010 and accordingly no part of the instructions will be conducted in breach thereof.
11.8 Anti-slavery and human trafficking. We shall meet the responsibilities to ensure all staff, internal, external or contracted and its supply chain workers are not victims of modern slavery or human trafficking. The safeguards against modern slavery or human trafficking are carried out with due diligence procedures.
11.9 Complaints. In the event that you are not satisfied with the Services provided, a written complaint should be made to us. All complaints will be handled in an efficient manner and all attempts will be made to resolve them quickly.
11.10 Governing law. The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.11 Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in
connection with the Agreement or its subject matter or formation.
Your continuing instructions in this matter will amount to your acceptance of these terms and conditions of business. Even so, we ask you please sign and date the enclosed copy of this document and return it to us immediately. We reserve the right not to do any work for you until this has been done. We can then be confident that you understand the basis upon which we will act for you.
This is an important document, please keep it in a safe place for future reference.