TERMS AND CONDITIONS OF BUSINESS – Consultancy Services
1.1. In these Conditions, terms used but not defined shall have the meaning given to them in the Engagement Letter (as defined below).
1.2. In this Contract, the following terms shall, unless the context otherwise requires, have the following meanings:
Charges means the charges payable by you for the administration of the Consulting Services in accordance with the Contract
Client Data means any information that is provided by you to the Company with a view to enabling the Company to provide the Consulting Services or otherwise as part of your use of the Consulting Services.
Conditions means these terms and conditions.
Contract means the contract between the Company and you for the administration of Consulting Services in accordance with these Conditions and the Engagement Letter.
Engagement Letter means the letter of engagement provided to you by the Company relating to the administration of the Consulting Services.
Intellectual Property means all trade secrets, information and know-how made available by the Company to you which is either marked as confidential or which would reasonably be considered to be confidential because of its nature and the manner of its disclosure; and all other property rights registered or unregistered including copyright business and domain names trademarks service marks patents of whatever nature utility models design rights semi-conductor topography rights database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
Parties means the Company and you, and Party shall mean either one of them.
- Duration and termination
2.1. The Company shall provide the Consulting Services to you in consideration for you paying the Charges to the Company, subject to the provisions of this Contract.
Without prejudice to the other remedies or rights the Company may have, the Company may terminate this Contract, at any time, on written notice to you. The notice will take effect as specified in the notice:
2.2.1. if you are in material breach of any terms of this Contract and (if such a breach is remediable) you fail to remedy that breach within 14 days of you being notified in writing to do so;
2.2.2. if you become insolvent or if an order is made or a resolution is passed for your winding up (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver are appointed in respect of the whole or any part of the your assets or business, or if you make any composition with your creditors or take or suffer any similar or analogous action in consequence of debt.
2.3. On termination of this Contract, you shall pay for all Consulting Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by the Company for the performance of the Consulting Services prior to the date of termination.
The Company shall provide the Consulting Services in such places and locations as the Company considers appropriate.
- Supply of Consulting Services
The Company reserves the right to amend the Consulting Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Consulting Services, and the Company shall notify the you in any such event.
- Your obligations
You agree that for as long as you shall make use of the Consulting Services you will:
5.1. provide the Company, its employees, officers and representatives with all necessary information as it may require, and ensure that such information is accurate in all material respects;
5.2. provide the Company with all necessary cooperation with a view to assisting the Company to provide the Consulting Services in accordance with the Engagement Letter;
5.3. ensure that all persons who provide instructions to the Company are properly appointed and have the requisite capacity to bind you in contract in relation to all matters which may arise under the Engagement Letter;
5.4. not do anything that will or may (in the reasonable opinion of the Company) bring it or its Consulting Services into disrepute;
5.5. use the Consulting Services entirely for the purpose of your own business or undertaking and not part with any materials provided to you under the Consulting Services for any other purpose (save as required by law);
5.6. not allow or enable any third party to have access, directly or indirectly, to the Consulting Services by whatever means;
5.7. apply with all applicable laws and regulations with respect to your activities under the Engagement Letter; and
5.8. not use the Consulting Services for any illegal or immoral purpose.
- Charges and payment of Charges
6.1. The payment of the Charges shall be calculated as set out in the Engagement Letter.
6.2. Where the Company Charges are based on a daily rate, a ‘day’ for these purposes will mean a period of 8 hours. This will include the time spent in travelling to and from the place where the Consulting Services are performed. The work carried out in performing the Consulting Services shall be charged in minimum 2 hour blocks.
6.3. The Company is permitted to charge for all costs and expenses incurred in performing the Consulting Services, including but not limited to travelling, photocopying, courier services and postage.
6.4. All amounts stated are exclusive of VAT and any other applicable taxes which will be charged in addition at the rate in force at the time you are required to make payment. Payments shall be made in sterling by you in accordance with the instructions set out in the Company’s invoice.
6.5. When making a payment you shall quote relevant reference numbers and the invoice number.
6.6. If you fail to make a payment due to the Company by the due date, then, without limiting the Company’s remedies, the Customer shall pay late payment charges on the overdue sum from the date of the invoice until payment of the overdue sum, whether before or after judgment. Interest will accrue each day at 4% a year above the Bank of England’s base rate from time to time.
- Intellectual property rights
7.1. You acknowledge that all Intellectual Property rights in any material provided by the Company under the Consulting Services, or in any new material developed or produced by the Company and you together in connection with the Consulting Services, is and shall be the property of the Company.
7.2. The Company grants you a non-exclusive, non-transferable licence for the duration of the engagement to use the materials referred to in clause 1 for the purpose for which they are made available to you under the Consulting Services, and not for any other purpose.
7.3. The Company acknowledges that all right title and interest in and to Client Data is your property. The Company will not have the right to use or modify Client Data unless it has your express consent, or unless such use or modification is necessary to enable the Company to provide the Consulting Services.
- Data Protection
8.1. The Company undertakes that it shall process client data to the extent, and in such manner, as is reasonably necessary to provide the Consulting Services in accordance with the Engagement Letter, or as is required by any applicable law.
8.2. The Company will use reasonable endeavours to protect client data against unauthorised or unlawful processing.
8.3. The Company will not (and will use reasonable endeavours to ensure that its personnel does not) publish disclose or divulge any Client Data to any third party.
8.4. The Company will not allow any third party to process Client Data on behalf of the Company without your prior written consent.
8.5. However, you are and will remain responsible for complying with your own obligations under all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended (Data Protection Legislation).
8.6. For the purposes of the Data Protection Legislation, the Company will act as a ‘data processor’ and you will act as a ‘data controller’.
9.1. Each Party (Receiving Party) shall keep the confidential information of the other Party (Supplying Party) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the Purpose and for performing the Receiving Party’s obligations under this Contract. The Receiving Party shall inform its officers, employees and agents of the Receiving Party’s obligations under the provisions of this clause, and ensure that the Receiving Party’s officers, employees and agents meet the obligations.
9.2. The obligations of clause 1 shall not apply to any information which:
9.2.1. was known or in the possession of the Receiving Party before the Supplying Party provided it to the Receiving Party;
9.2.2. is, or becomes, publicly available through no fault of the Receiving Party;
9.2.3. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
9.2.4. was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or
9.2.5. is required to be disclosed by order of a court of competent jurisdiction.
9.3. This clause 9 shall survive termination of this Contract for a period of 5 years.
- Warranties, liability and indemnities
10.1. The Company warrants that it will use reasonable care and skill in performing the Consulting Services to the standard generally accepted within the industry, sector or profession in which the Company operates for the type of Consulting Services provided by the Company.
10.2. If the Company performs the Consulting Services (or any part of the Consulting Services) negligently or materially in breach of this Contract, then, if requested by you, the Company will re-perform the relevant part of the Consulting Services, subject to clauses 4 and 10.5 below. Your request must be made within 3 months of the date the Company completed performing the Consulting Services.
10.3. The Company provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date or any other date, whether stated in this Contract or elsewhere.
10.4. Except in the case of death or personal injury caused by the Company’s negligence, the liability of the Company under or in connection with this Contract whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the Charge(s) paid by you to the Company under this Contract. The provision of this clause 4 shall not apply to clause 10.6.
10.5. Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause 5 shall not apply to clause 10.6.
10.6. You shall indemnify and hold harmless the Company from and against all Claims and Losses arising from loss, damage, liability, injury to the Company, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to you by the Company, its employees or contractors, or supplied to the Company by you within or without the scope of this Contract. ‘Claims’ shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and ‘Losses’ shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
- Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Contract for any delays or failures in performance of this Contract which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Contract by written notice to the other Party.
This Contract may only be amended in writing signed by duly authorised representatives of the Parties.
Neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Contract without the prior written Contract of the other Party.
- Entire Contract
This Contract contains the whole Contract between the Parties and supersedes and replaces any prior written or oral Contracts, representations or understandings between them. The Parties confirm that they have not entered into this Contract on the basis of any representation that is not expressly incorporated into this Contract. Nothing in this Contract excludes liability for fraud.
Any notice to be given under this Contract shall be in writing and shall be sent by first class mail only to the Party’s registered office (if a company) or its principal place of business (in any other case). Notices will be deemed to have been received 3 working days after posting.
- Law and jurisdiction
The validity, construction and performance of this Contract shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
- Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Contract is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.