SUPPLY OF PROFESSIONAL SERVICES
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 in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.2.
Communicable Disease: means any disease which can be transmitted by means of any substance, medium or agent from any organism to another organism where:
i.                the substance, medium or agent includes, but is not limited to, a virus, bacterium, parasite or other organism or any variation thereof, whether deemed living or not, and
ii.                the method of transmission, whether direct or indirect, includes but is not limited to, airborne transmission, bodily fluid transmission, transmission from or to any surface or object, solid, liquid or gas or between organisms, and
iii.               the disease, substance or agent can cause or threaten damage to human health or human welfare or can cause or threaten damage to, deterioration of, loss of value of, marketability of or loss of use of property.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between the Subsidiary and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from the Subsidiary and/or his representatives, agents or any party that are confirmed beneficiaries of the Services
Customer Default: has the meaning set out in clause 4.2.
Deliverables: the deliverables set out in the Fee Estimate produced by the subsidiary for the Customer.
Engagement: means the appointment, employment, hire or use of a Representative by the Customer (or relevant third party) on any basis whatsoever, whether directly or through any third party and including, without limitation, any licence, franchisee, agency or partnership arrangement.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, 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 any jurisdiction.
Order: the Customer's written acceptance of the Subsidiary’s Fee Estimate OR in the Customer's purchase order form, the Customer's written acceptance of a Fee Estimate by the Subsidiary or overleaf, as the case may be.
Representative: means the director, officer, employee, consultant or contractor who performs services on behalf of the Subsidiary.
Services: the services, including the Deliverables, supplied by the Subsidiary to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in writing by the Subsidiary to the Customer.
Subsidiary: The company or entity carrying out the Services as named or referenced in the Contract, Order, Services, Specification and/or invoices for Charges.
Transfer Fee: means the fee payable by the Customer upon the Engagement of a Representative
1.2             Interpretation:
(a)          A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b)          Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c)          A reference to writing or written includes email.
2.               Basis of contract
2.1             The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2             The Order shall only be deemed to be accepted when the Subsidiary issues [written] acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3             Any samples, drawings, descriptive matter or advertising issued by the Subsidiary, and any descriptions or illustrations contained in the Subsidiary’s catalogues, brochures or online content, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4             These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5             Any quotation given shall not constitute an offer and is only valid for a period of 28 Business Days from its date of issue.
3.               Supply of Services
3.1             The Subsidiary shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2             The Subsidiary shall use all reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3             The Subsidiary shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services and shall notify the Customer in any such event.
3.4             The Subsidiary may provide an alternative Representative to perform the Services from time to time and subject to verifying that the alternative Representative is equally skilled, qualified, security cleared and able to perform the Services, the Customer shall accept the appointment of such alternative Representative.
3.5             The Customer acknowledges that any Representative providing Services shall determine their own schedule when performing the Services and the location in which such Services are performed, subject to the Customer’s reasonable operational requirements and the specific nature of the Deliverables.
3.6             The Subsidiary warrants to the Customer that the Services will be provided using reasonable care and skill.
4.               Customer's obligations
4.1             The Customer shall:
(a)          ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b)          co-operate with the Subsidiary in all matters relating to the Services;
(c)          provide the Subsidiary with such information and materials as the Subsidiary may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(d)          obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and
(e)          comply with any additional obligations as set out in the Specification.
4.2             If the Subsidiary’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a)          the Subsidiary shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Subsidiary's performance of any of its obligations;
(b)          the Subsidiary shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Subsidiary’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c)          the Customer shall reimburse the Subsidiary on written demand for any costs or losses sustained or incurred by the Subsidiary arising directly or indirectly from the Customer Default.
5.               Charges and payment
5.1             Condition 5.2 shall apply if the Services are to be provided on a time-and-materials basis. Condition 5.3 and condition 5.4 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 5 shall apply in either case.
5.2             Where the Services are provided on a time-and-materials basis:
(a)           the charges payable for the Services shall be calculated in accordance with the Subsidiary’s standard daily fee rates as amended from time to time;
(b)          the Subsidiary’s standard daily fee rates (as published from time to time) are calculated on the basis of an eight-hour day worked between 9.00am and 5.00pm on weekdays (excluding weekends and public holidays);
(c)          the Subsidiary shall be entitled to charge it’s standard daily fee rate (as published from time to time) plus 20% for each hour worked outside the hours referred to in condition 5.2(b) on a pro-rata basis;
(d)          the Subsidiary shall invoice the Customer monthly in arrear for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition 5. Each invoice shall set out the time spent and provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.
5.3             Where the Services are provided for a fixed price the total price for the Services shall be the amount set out in the Specification. The total price shall be paid to the Subsidiary in instalments as set out in the Specification. All amounts due under this agreement shall be paid by the Customer to the Subsidiary in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Subsidiary shall invoice the Customer for the charges at each relevant stage, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in condition 5.4.
5.4             Any fixed price contained in the Specification excludes:
(a)           the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the project team in connection with the Services, and] the cost of any materials or services reasonably and properly provided by third parties required by the Subsidiary for the supply of the Services.  Such expenses, materials and third party services shall be invoiced by the Subsidiary at cost; and
(b)          VAT, which the Subsidiary shall add to its invoices at the appropriate rate.
5.5             The Customer shall pay each invoice submitted to it by the Subsidiary in full, and in cleared funds, within 14 days of receipt.
5.6             Without prejudice to any other right or remedy that the Subsidiary may have, if the Customer fails to pay on the due date the Subsidiary may:
(a)          charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and
(b)          suspend all Services until payment has been made in full.
5.7             Time for payment shall be of the essence of the Contract.
5.8             The Subsidiary may, without prejudice to any other rights it may have, set off any liability of the Customer to the Subsidiary against any liability of the Subsidiary to the Customer.
6.               Transfer Fees
6.1             The Customer shall pay a Transfer Fee if the Customer (i) Engages a Representative introduced to the Customer or (ii) introduces the Representative to a third party who Engages the Representative and:
(a)          Where the Subsidiary has not supplied the Representative to the Customer, such Engagement commences within 26 weeks of the most recent introduction of the Representative to the Customer.
(b)          Where the Subsidiary has supplied the Representative to the Customer, such Engagement is during the period of 13 weeks commencing on the day the Representative last provided services on behalf of the Subsidiary.
6.2             The Transfer Fee shall be a sum equivalent to:
(a)          20% of the remuneration payable to the Representative in the first calendar year of the Engagement; or
(b)          If the renumeration is unknown or if it is impracticable to calculate the remuneration, the Transfer Fee shall be the hourly charge at which the Representative was (or would have been) supplied to the Customer multiplied by 600 or, where applicable, the daily Charges multiplied by 75.
7.               Intellectual Property Rights
7.1             All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Subsidiary.
8.               Limitation of liability:
8.1             Nothing in the Contract shall limit or exclude the Subsidiary's liability for:
(a)          death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b)          fraud or fraudulent misrepresentation; or
(c)          any other liability which cannot be limited or excluded by applicable law.
8.2             Subject to clause 8.1, the Subsidiary shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a)          loss of profits;
(b)          loss of sales or business;
(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 damage to goodwill; and
(g)          any indirect or consequential loss.
(h)          investment advice or information or a failure to provide investment advice or information
(i)            claims arising directly or indirectly out of or in any way related to the combustibility, fire safety or fire protection performance of any façade materials, cladding, glazing, doors or external or internal wall system of any building or structure, including any associated fixings and signage, core, fillers or any other component or material used in the manufacture, assembly or construction thereof
(j)            any payment in respect of any Claim, circumstance, loss or Defence Cost that arise as a result of, or is connected in any way, directly or indirectly with;
a.      A Communicable Disease or the fear or threat (whether actual or perceived) of a Communicable Disease regardless of any other cause or event contributing concurrently or in any other sequence thereto;
b.      any action taken to control, prevent, isolate, quarantine, suppress, mitigate or in any way relating to any actual or suspected outbreak of any Communicable Disease or the fear or threat (whether actual or perceived) of a Communicable Disease;
c.      instructions, orders, restrictions or limitations given by any national or local government, regulatory or statutory body, health authority or organisation relating to any Communicable Disease.
(k)          exposure to any sanction, prohibition or restriction under the United Nations resolutions or the trade or economic sanctions, laws or regulations of the European Union, United Kingdom or United States of America.
8.3             Subject to clause 9.1, the Subsidiary’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Charges paid under the Contract.
8.4             This clause 8 shall survive termination of the Contract.
9.               Termination
9.1             Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party 1 months' written notice.
9.2             Without limiting its other rights or remedies, either party may terminate the Contract 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 and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(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.
9.3             Without limiting its other rights or remedies, the Subsidiary may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified to make such payment.
10.             Consequences of termination
On termination of the Contract for any reason:
(a)          the Customer shall immediately pay to the Subsidiary all of its outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Subsidiary shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b)          the Customer shall return all of any Deliverables which have not been fully paid for.
(c)          the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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; and
(d)          clauses which expressly or by implication survive termination shall continue in full force and effect.
11.             General
11.1          Force majeure. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for six months, the party not affected may terminate this agreement by giving 30 days’ written notice to the affected party.
11.2          Assignment and other dealings.
(a)          the Subsidiary may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b)          The Customer shall not, without the prior written consent of the Subsidiary assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
11.3          Confidentiality.
(a)          Each party undertakes that it shall not at any time during the Contract, and for a period of five 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, except as permitted by clause 11.3(b).
(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 11.3; and
(ii)          as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c)          Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
11.4          Entire agreement. This agreement 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.
11.5          Variation. The Subsidiary may revise these terms and conditions at any time and shall notify the Customer in any such event.
11.6          Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
11.7          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.
11.8          Notices.
(a)           Any notice given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or sent by fax to its main fax number.
(b)          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. For the purposes of this clause, "writing" shall not include email.
11.9          Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
11.10        Governing law. The Contract, 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.
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 Contract or its subject matter or formation.