AGREED TERMS & CONDITIONS
1. INTERPRETATION
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services by the Supplier, as set out in Section 2 - Charges.
Conditions: these terms and conditions set out in Clause 1 (Interpretation) to Clause 9 (General) (inclusive).
Contract: the contract between the Customer and the Supplier for the supply of the Services in accordance with Sections 1 and 2 and these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier.
Data Protection Legislation: means the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy
Deliverables: all documents, products and materials developed by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts) and the Deliverables set out in Section 1.
Group Company: the Supplier, its subsidiaries or holding companies from time to time and any subsidiary of any holding company from time to time.
Intellectual Property Rights: 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.
Services: the services, including without limitation any Deliverables, to be provided by the Supplier pursuant to the Contract, as described in Section 1.
Services Start Date: the day on which the Supplier is to start provision of the Services, as set out in Section 1.
Supplier: Fault Line Consulting Ltd or any Group Company.
Supplier IPRs: all Intellectual Property Rights owned, acquired or developed by or licensed to the Supplier prior to the Services Start Date including all modifications or enhancements made thereto whether before or after the Services Start Date, and all Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials incorporated in them.
1.2 Interpretation:
(a) 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 includes any subordinate legislation made from time to time under that statute or statutory provision.
(b) 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.
(c) A reference to writing or written includes email.
2. COMMENCEMENT AND TERM
2.1 The Contract shall commence on the Services Start Date and, unless it is extended in accordance with clause 2.2, it shall continue in force until: i) the Services End Date or completion of the Services, whichever is the sooner; or ii) in accordance with Clause 8 of this Contract (the “Initial Term”).
2.2 The Initial Term may be extended for a period of up to two (2) years only by mutual written consent of the parties in accordance with the provisions of clause 3.3. Any references to the term of the Contract include the Initial Term and any extensions of the same.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer from the Services Start Date in accordance with the Contract.
3.2 In supplying the Services, the Supplier shall:
(a) perform the Services with reasonable care and skill;
(b) use reasonable endeavours to perform the Services in accordance with the service description set out in Section 1;
(c) comply with all applicable laws, statutes, regulations from time to time in force provided that the Supplier shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract.
(e) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer’s premises and have been communicated to the Supplier, provided that the Supplier shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
(f) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Supplier may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Contract.
3.3 If the Customer wishes to amend any of the Services to be supplied, it will notify the Supplier in writing providing details of the amendment. The Supplier will give the Customer a written quotation for those amendments specifying any changes in the Charges. If the Customer accepts the quotation, a change control note will be raised accordingly, in the form of the template at Schedule 1, but if the Customer rejects the quotation, the Services as detailed in Sections 1 and 2 will continue unchanged.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as required by the Supplier or any of them;
(c) provide, in a timely manner, such information as the Supplier may reasonably require, and ensure that it is accurate and complete in all material respects; and
(d) obligations, dependencies and assumptions detailed in Section 1.
4.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Charges despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.
5. INTELLECTUAL PROPERTY
5.1 The Supplier and its licensors shall retain ownership of all Supplier IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
5.2 The Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy the Supplier IPRs for the purpose of receiving and using the Services and the Deliverables in the Customer’s business during the term of the Contract.
5.3 The Customer grants the Supplier, or shall procure the direct grant to the Supplier of, a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract.
5.4 The Customer shall indemnify the Supplier in full against any sums awarded by a court against the Supplier arising of or in connection with any claim brought against the Supplier for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by the Supplier.
6. CHARGES AND PAYMENT
6.1 In consideration for the provision of the Services, the Customer shall pay the Supplier the Charges in accordance with this Clause 6.
6.2 All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
6.3 The Supplier shall submit invoices for the Charges plus VAT if applicable to the Customer at the intervals specified in Section 2. Each invoice shall include all reasonable supporting information required by the Customer.
6.4 The Customer shall pay each invoice due and submitted to it by the Supplier, within 14 days of receipt, to a bank account nominated in writing by the Supplier.
6.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under Clause 8 (Termination):
(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
(b) the Supplier may suspend all Services until payment has been made in full.
6.6 All amounts due under the Contract from the Customer to the Supplier shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.7 The rates on which any Charges under this Contract are based shall be fixed for a period of one (1) year from the Services Start Date, and shall be reviewable annually thereafter, at the Supplier’s discretion, in line with the percentage increase of the Consumer Prices Index (CPI) during the previous six (6) months.
7. LIMITATION OF LIABILITY
7.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding the amount paid or payable by the Customer. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
7.2 The restrictions on liability in this Clause 7 apply to every liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
7.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.3 Subject to Clause 7.1 and Clause 7.2, the Supplier’s total liability to the Customer in respect of all breaches of duty occurring under this Contract within any contract year shall not exceed the cap.
7.4 In Clause 7.4:
(a) cap. The cap is ONE HUNDRED per cent (100%) of the total charges in the contract year in which the breaches occurred; (b) contract year. A contract year means a 12-month period commencing with the date of the Contract or any anniversary of it; and (c) total charges. The total charges means all sums paid by the Customer and all sums payable under the Contract in respect of services actually supplied by the Supplier, whether or not invoiced to the Customer.
7.5 This Clause 7.5 sets out specific heads of excluded loss and exceptions from them:
(a) Subject to Clause 7.3, the types of loss listed in Clause 7.5(c) are wholly excluded by the parties, but the types of loss and specific losses listed in Clause 7.5(d)are not excluded.
(b) If any loss falls into one or more of the categories in Clause 7.5(c) and also falls into a category, or is specified, in Clause 7.5(d), then it is not excluded.
(c) The following types of loss are wholly excluded: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption of software, data or information; (vi) loss of or damage to goodwill; and (vii) indirect or consequential loss.
(d) The following types of loss and specific losses are not excluded: (i) sums paid by the Customer to the Supplier pursuant to the Contract, in respect of any Services not provided in accordance with the Contract; (ii) wasted expenditure; (iii) additional costs of procuring and implementing replacements for, or alternatives to, Services not provided in accordance with the Contract. These include but are not limited to consultancy costs, additional costs of management time and other personnel costs, and costs of equipment and materials; and (iv) losses incurred by the Customer arising out of or in connection with any third party claim against the Customer which has been caused by the act or omission of the Supplier. For these purposes, third party claims shall include demands, fines, penalties, actions, investigations or proceedings, including those made or commenced by subcontractors, the Supplier’s personnel, regulators and customers of the Customer.
8. TERMINATION
8.1 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
8.3 On termination of the Contract for whatever reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied up to and including the termination date, but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
(c) termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.
9. GENERAL
9.1 Non Solicitation.
During the period beginning with the date of this Contract and ending 12 months after all Services to be provided under this Contract have been performed neither party will directly nor indirectly, without the prior written consent of the other party, (i) solicit away from the other party; (ii) endeavour to solicit away from the other party; (iii) employ, engage or contract for services with; or (iv) endeavour to employ, engage or contract for services with, any of the other parties personnel engaged in the provision of Services, provided that, for the avoidance of doubt, a party shall not be precluded from considering and accepting in good faith an application from any such person for a position in response to a national advertising campaign open to all comers and not specifically targeted at the other parties personnel. Without prejudice to any other rights or remedies of a party at law or under this Contract, if either party is in breach of its obligations under this clause, then the non-breaching party may in its sole discretion demand as a condition of any consent given by it in accordance with this clause and the breaching party will pay immediately on demand by the non-breaching, a sum equal to one year's basic salary or the annualised service fee payable to the relevant individual, plus all recruitment costs incurred by the non-breaching party in replacing such person.
9.2 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of three years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group or Group Company to which the other party belongs, except as permitted by Clause 9.2. For the purposes of this Clause 9.2, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
(b) Each party may disclose the other party’s confidential information: (i) 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 Contract. 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 9.2; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
9.3 Anti-Bribery.
(a) The parties shall each comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption (including but not limited to the Bribery Act 2010) (Relevant Requirements) and shall have and maintain in place throughout the term of the Contract its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the relevant requirements.
(b) If either Party (the “Defaulting Party”) breaches clause 9.3 a), the other Party (the “Non-defaulting Party”) may, without prejudice to any other right or remedy available to the Non-defaulting Party and notwithstanding any other terms of the Contract, terminate the Contract immediately.
9.4 Human Rights and Modern Slavery.
(a) The Supplier shall (and shall use its reasonable endeavours to procure that its personnel and any sub-contractors to whom any part of the Services have been subcontracted) at all times comply with the provisions of the Human Rights Act 1998 in the performance of this Contract.
(b) In performing its obligations under this Contract, the Supplier shall comply with all applicable anti-slavery and human trafficking law, statutes, regulations and codes from time to time in force, including the Modern Slavery Act 2015.
9.5 Force majeure.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
9.6 Assignment and other dealings.
(a) The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Supplier’s prior written consent.
(b) The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
9.7 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
9.8 Variation.
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives), in accordance with the provisions of clause 3.3.
9.9 Waiver.
(a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A failure or delay by a party to exercise any right or remedy provided under the Contract 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 Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
9.10 Severance.
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 9.10 shall not affect the validity and enforceability of the rest of the Contract.
9.11 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be: (i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or (ii) sent by email to the relevant party at their nominated e-mail address specified in Section 1 or such other e-mail addresses as notified in writing by either party to the other from time to time;
(b) Any notice or communication shall be deemed to have been received: (i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and (ii) 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 [or at the time recorded by the delivery service; and (iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 9.11(b) business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This Clause 9.11 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
9.12 Third party rights.
(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
9.13 Dispute Resolution and Governing law.
The parties will attempt in good faith to resolve any dispute or claim arising out of or relating to this Contract promptly through negotiations between the respective representatives or other senior executives of the parties who have authority to settle the same. If the dispute or claim has not been resolved within 30 days of the start of negotiations, then the matter shall be referred to the Centre for Effective Dispute Resolution (CEDR) for mediation. If after mediation the parties still fail to reach an agreement or resolve the dispute, such failure shall be without prejudice to the right of any party subsequently to refer any difference or dispute to arbitration in accordance with the London Court of International Arbitration (LCIA) rules, or formal litigation, and nothing contained in this clause shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect any proprietary right. This Contract will be governed by and construed in accordance with the law of England and Wales, both parties submit to the exclusive jurisdiction of the courts of England and Wales.