Definitions
In this Agreement, unless the context otherwise requires the following words and expressions have the following meanings:
“Agreement” – The Agreement made between the Consultant Company and the Client which shall consist of these Conditions and an associated engagement letter or proposal;
“Business Day” – a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
”Conditions” – means these terms and conditions;
“Consultant Company” – Atom Advisory Limited (with company number 14209788) whose registered office is at 57 Ely Street, Stratford upon Avon, Warwickshire CV37 6LN;
“Data Protection Legislation” – all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR), the Data Protection Act 2018 (and regulations made thereunder) or any successor legislation, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
“Deliverables” – the outputs from the provision of the Services;
“Force Majeure” – means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Supplier’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
“Intellectual Property Rights” – all patents, rights to inventions, utility models, copyright and related rights, trademarks, trade, business and domain names, rights in goodwill and to sue for passing off, rights in design, rights in computer software, database right, moral rights and other intellectual property rights, in each case whether registered or unregistered and including all applications for and all renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world;
“Services” – the services to be provided by the Consultant Company to the Client.
1. Interpretation
1.1. Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.2. The headings in this Agreement are for convenience only and shall not affect its interpretation.
1.3. Any reference to a clause or Schedule shall be construed as a reference to a clause of or schedule to this Agreement unless expressly stated to the contrary.
1.4. Any reference to a statute or statutory provision is to it as from time to time in force as amended or re-enacted.
2. Provision of the Services
2.1. The Consultant Company shall provide and perform the Services on the terms and conditions of this Agreement and will do so:
2.1.1. in compliance with all applicable laws, regulations, codes of practice and professional standards;
2.1.2. in accordance with the terms of this Agreement, including the timescales specified in any associated accepted proposal or engagement letter.
3. Obligations of the Client
3.1. The Client shall provide the Consultant Company with such information and access to such facilities and personnel as the Consultant Company shall reasonably require in order to provide the Services.
3.2. The Client acknowledges that the Company’s ability to provide the Services and to meet any timeframe agreed for the provision of the Services is dependent on the Client providing that information and access and providing those decisions and instructions at the times required by the Consultant Company.
4. Intellectual Property
4.1. Any pre-existing Intellectual Property Rights of either party that are made available for use in connection with the provision of the Services shall remain vested in that party; the other party shall have a licence to use those rights so far as may be necessary to enable that party to provide or to enjoy the benefit of the Services.
4.2. All Intellectual Property Rights that are created in the course of the provision of the Services and in the Deliverables shall belong to the Consultant Company; the Client shall have a royalty free, perpetual licence to use those rights as envisaged by this Agreement to enable the Client to have the benefit of the Services and the Deliverables for use within the Client’s own business.
5. Confidentiality
5.1. The Consultant Company and the Client may during the course of this Agreement and in connection with the Services obtain information relating to the other party which is not made available generally by that other party (“Confidential Information”).
5.2. The receiving party shall:
5.2.1. keep all Confidential Information confidential and not disclose it to any person (save as required by law); and
5.2.2. use the Confidential Information only for the purpose for which it was provided and for no other purpose.
6. Data Protection
6.1. Both parties will comply with all applicable requirements of the Data Protection Legislation.
6.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Consultant Company is the data processor (where “Data Controller” and “Data Processor” have the meanings as defined in the Data Protection Legislation).
6.3. The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Consultant Company for the duration and purposes of this Agreement.
6.4. The Consultant Company shall, in relation to any personal data processed in connection with the performance by the Consultant Company of its obligations under this agreement:
6.4.1. process that personal data only for the purposes of this Agreement or on the Client’s written instructions;
6.4.2. ensure that it has in place appropriate measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
6.4.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
6.4.4. notify the Client without undue delay on becoming aware of a personal data breach; and
6.4.5. at the Client’s written direction, delete or return personal data and copies thereof to the Client on termination of this agreement unless required by applicable law to store the personal data.
6.5. The Consultant Company’s Privacy Policy can be read at www.atomadvisory.co.uk/privacy.
7. Fees
7.1. The Consultant Company shall charge and the Client shall pay the amounts set out or calculated in accordance with this Agreement including any associated accepted proposal or engagement letter.
7.2. Any sums stated in this Agreement (including in any associated accepted proposal or engagement letter) are expressed exclusive of VAT and all other taxes which, where applicable, will be added and payable by the Client in addition.
7.3. The Client shall in addition reimburse the Consultant Company for expenses including those that are specified in any associated accepted proposal, engagement letter or otherwise separately authorised by the Client provided they are reasonable and properly incurred.
8. Payment
8.1. The Consultant Company shall invoice the Client on the basis set out in the accepted proposal or engagement letter.
8.2. The Client shall pay all valid and properly submitted invoices not later than 10 days after the date of invoice or at such other times as may be specified in the accepted proposal or engagement letter.
8.3. If the Client does not pay any invoice by the due date for payment the Consultant Company may, without prejudice to any other rights and remedies that it may have:
8.3.1. suspend provision of the Services until payment in full including any interest is received; and/or
8.3.2. charge interest on the sum outstanding at the rate set by the Late Payment of Commercial Debts (Interest) Act 1998.
8.4. The Client shall pay all invoices in full without any set-off, counterclaim or deduction.
8.5. Where the Services provided are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Consultant Company to deliver any one or more of the instalments in accordance with these conditions or any claim by the Client in respect of any one or more instalments shall not entitle the Client to treat the Contract as a whole as repudiated.
9. Duration
This Agreement shall commence on the date of receipt by the Consultant Company of an accepted proposal or engagement letter and shall continue in force, subject to early termination in accordance with the next following clause, until terminated by either party giving to the other not less than two months’ notice, such notice to expire at any time.
10. Termination
10.1. Either party may terminate this Agreement forthwith on notice to the other party if that other party:
10.1.1. is in material breach of any of the terms of this Agreement and, where the breach is capable of being remedied, fails to remedy the breach within 20 Business Days of service of notice specifying the breach and requiring it to be remedied;
10.1.2. has a petition granted for its winding up or has a liquidator, administrator, receiver or administrator appointed in respect of it, enters into an arrangement with its creditors or ceases, or threatens to cease, trading.
11. Consequences of Termination
11.1. On termination of this Agreement for any reason and at the end of the provision of the Services:
11.1.1. all invoices outstanding as at the date of termination shall be paid immediately;
11.1.2. where Services have been provided, but not invoiced, the Consultant Company shall invoice for those Services and submit the invoice to the Client. That invoice shall be paid immediately; and
11.1.3. the Consultant Company shall return all property, equipment, documentation and other things provided to it by the Client in connection with the provision of the Services.
11.2. Termination of this Agreement shall not affect any right or remedy which has accrued due at the time of termination.
12. Indemnity and Insurance
The Client shall indemnify, and keep indemnified, the Consultant Company from and against any losses, damages, liability costs (including professional fees) and expenses incurred by the Consultant Company as a result of or in connection with the Client’s breach of any of the Client’s obligations under this Agreement.
13. Liability
13.1. Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury caused by the negligence of that party, its employees, agents or sub-contractors, or for fraud.
13.2. Subject to clause 14.1, the Consultant Company shall have no liability to the Client in connection with this Agreement for any loss of profits, loss of revenue, loss of business, loss of contract, loss of goodwill, loss of data or failure to make anticipated savings or any indirect or consequential loss, whether this results from breach of contract, negligence or otherwise.
13.3. Subject to clauses 14.1 and 14.2 the maximum aggregate liability of the Consultant Company to the Client under or in connection with this Agreement and whether resulting from breach of contract, negligence or otherwise shall not exceed the amount paid by the Client for the Services which have given rise to the claim under this clause 13.3.
14. Force Majeure
14.1. Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure.
14.2. If a party is affected by the Force Majeure event, that party shall notify the other party as soon as reasonably practicable and the parties shall each use all reasonable endeavours to minimise the impact on the obligations that are affected.
14.3. If the Force Majeure event continues for a continuous period of more than 90 days, either party may terminate this Agreement by written notice to the other party.
15. Personal Agreement
15.1. This Agreement is personal to the Consultant Company and the Client and neither of them shall assign any of their rights under this Agreement without the prior written consent of the other.
15.2. The parties do not intend any person who is not a party to this Agreement to have any rights under it whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
16. Entire Agreement
This Agreement (together with any accepted proposal or engagement letter) constitutes the complete and exclusive agreement between the parties in respect of the subject matter to which it relates and supersedes all prior correspondence, agreements and understandings.
17. Status
17.1. The Consultant Company and the Client are each independent contractors and nothing contained in this Agreement shall or shall be capable of creating or constituting between them any partnership or joint venture or any relationship of employment or agency.
17.2. The Consultant Company shall have no authority to incur any liability or expense on behalf of the Client or to make any promise, representation or commitment that might be binding on the Client without the prior written consent of the Client.
18. Notices
18.1. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
18.1.1. 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); and
18.1.2. sent by email to wayne@atomadvisory.co.uk.
18.2. Any notice shall be deemed to have been received:
18.2.1. if delivered by hand, at the time the notice is left at the proper address;
18.2.2. 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
18.2.3. 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 18.2.3, 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.
18.3. This clause 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.
19. Resolution of Disputes
If any differences or disputes arise between the Consultant Company and the Client in connection with this Agreement, they shall use all reasonable endeavours to resolve them by discussions between themselves, escalating the issues through their respective management structures.
20. Changes, Variations and Waiver
20.1. If either party wishes to propose a change to the Services or any other provision of this Agreement, that party shall inform the other party of the proposed change and the parties shall work together to determine whether they are willing and able to agree the terms that are necessary to implement the change.
20.2. This Agreement may only be varied or any right under this Agreement waived by a written document signed by authorised representatives of both parties.
20.3. If a party does not on any occasion insist on the strict observance or performance of any rights under or of any provision of this Agreement, that will not amount to a waiver of those rights or that provision.
21. Severability
21.1. If any provision or part-provision of this 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.
21.2. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
21.3. 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 this Agreement.
21.4. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
22. Law and Jurisdiction
This Agreement and everything arising in connection with it, including non-contractual matters, shall be governed by English Law and the parties submit to the exclusive jurisdiction of the courts of England.