Standard Terms and Conditions of Appointment
You acknowledge that in instructing Tetra Consulting Limited to commence the services described in our proposal (the “Services”) you agree to the application of the terms and conditions below (the “Appointment”) to the exclusion of any other terms or conditions that have been proposed by you.
- PARTIES’ OBLIGATIONS
1.1. Tetra Consulting Limited (we and us) shall exercise reasonable skill, care and diligence in the performance of the Services to the specification set out in the proposal (if any). We shall use all reasonable endeavours to meet any performance dates or other programme agreed in relation to the Services as set out in our proposal or otherwise in writing from time to time, but any such dates or programme shall be estimates only and time shall not be of the essence for the performance of the Services.
1.2. In the event that you request a variation to the Services we shall notify you as soon as is reasonably practicable of the impact of such variation on the cost and programme of the Services. We reserve the right to amend the scope or nature of the Services (or any specification or programme in relation thereto) 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 Services, and we will notify you in any such event.
1.3. We shall take reasonable precautions to ensure that our documentation storage systems ensure that all quality records and similar documents are adequately protected, remain legible, confidential and identifiable. Records are stored and maintained in a manner to make them readily retrievable, in facilities that provide an environment to minimise deterioration or damage, to prevent loss and remain secure. Save in respect of any breach of this clause we shall have no liability to you for the loss or destruction of any records stored by us in relation to this Appointment or the Services.
1.4. When a competent regulatory or inspection body is required by law or authorised by contractual commitments to release confidential information, the client or individual concerned shall, unless prohibited by law, be notified of the information provided.
1.5. You shall supply us with all relevant data and information available to you in relation to the Services and shall give such assistance, decisions and access as may be reasonably required by us and in sufficient time to enable the performance of the Services in accordance with any agreed specification and/or programme.
- PAYMENT
2.1. We shall invoice you at the intervals set out in the proposal, or otherwise on completion of the Services or at such other interval as we may from time to time determine. You shall pay each invoice submitted within twenty eight (28) days of its date in cleared funds to the bank account specified on the invoice or to such other account as we may nominate in writing from time to time. Time for payment shall be of the essence of the Appointment.
2.2. All amounts payable by you under the Appointment are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under this Appointment by us to you, you shall on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
2.3. In the event of late payment of any amount due under this Appointment, then without limiting our remedies under clause 2.4 or clause 5 we shall be entitled to charge the higher of default interest calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 or default interest at four (4) percent above the Bank of England’s base rate from time to time, but at four (4) per cent a year for any period when that base rate is below zero, on all amounts unpaid from the due date until payment, whether before or after judgment, together with all other costs reasonably incurred by us.
2.4. Without prejudice to our rights under Clause 5, if you fail to pay any amount due to us by the due date for payment or otherwise fail to perform any relevant obligation under this Appointment which delays or prevents our performance of the Services (each a Default Event) then we shall be entitled to suspend performance of the Services until you remedy the Default Event.
- INSURANCE AND LIABILITY
3.1. We shall maintain professional indemnity insurance for an amount no less than that described in Clause 3.2 below, provided always that such insurance remains available in the market on commercially reasonable rates and terms. The limits and exclusions in this clause reflect the insurance cover that we have been able to obtain.
3.2. Our total liability under or in connection with this Appointment whether in contract, tort (including negligence), breach of statutory duty or otherwise shall not exceed £3,000,000 (three million pounds).
3.3. [Without prejudice to Clause 3.2, our liability shall be further limited to such sum as we ought reasonably to pay having regard to our responsibility for the loss and damage suffered on the basis that any other consultants, contractors and sub-contractors who also have a liability to you shall be deemed to have provided you with contractual undertakings on terms no less onerous than those set out in Clause 1 and paid you such proportion of loss and damage which it would be just and equitable for them to pay having regard to the extent of their responsibility.] [IWG Note: to discuss]
3.4. [In the event that any claims, demands or proceedings are advanced by a third party against us under or in connection with this Appointment which result in us paying any amount in excess of the limit of our professional indemnity insurance cover, then without prejudicing our rights (or those of our insurer) to recover all or any of our loss from you, you shall indemnify and hold us harmless in respect of any and all amounts in excess of the limit of our professional indemnity insurance.] [IWG Note: to discuss]
3.5. We shall have no liability to you whatsoever for any of the following: loss of profit; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss.
3.6. We have given commitments as to compliance of the Services with relevant specifications in Clause 1. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded.
3.7. Nothing in this Appointment shall exclude or limit our liability for death or personal injury caused by our negligence or for fraudulent misrepresentation.
3.8. You agree not to pursue any claims in contract, tort (including negligence), statute or otherwise against any of our officers or employees in connection with this Appointment or the performance of the Services.
- INTELLECTUAL PROPERTY
4.1. We shall own all trademarks, copyright and related rights, patents, design rights, and other intellectual property rights (Intellectual Property) in or arising out of or in connection with the Services, including in all drawings, designs, documents and materials of any nature prepared by us for you (Materials) (but excluding any Intellectual Property in any materials provided by you to us). We grant you a licence to use the Intellectual Property for the purpose of receiving the Services, and to use the Materials and solely for the purpose for which they were prepared by us. The licence granted by us under this clause is subject to and conditional upon us having received full payment for the Services in accordance with this Appointment. You shall not sub-licence, assign or otherwise transfer any rights granted to you in this clause.
4.2. We shall not be liable for the use of any Materials or Intellectual Property for any purpose other than that for which it was originally prepared by us.
- TERMINATION
5.1. Either party may by written notice terminate this Appointment immediately if the other party has a bankruptcy order made against it or makes an arrangement or composition with its creditors or enters into liquidation (whether voluntary or compulsory) or if any proceedings are commenced relating to its insolvency or possible insolvency.
5.2. Either party may by written notice terminate this Appointment if the other substantially fails to perform its obligations under this Appointment, provided that the terminating party has first given the other party not less than fourteen (14) days written notice served by recorded delivery to the other specifying the default and referring to this Clause and the default has not been remedied prior to termination taking place.
5.3. In the event of termination for any cause whatsoever, we shall be entitled to be paid for all Services performed up to the date of termination and not yet paid for by you.
5.4. Termination of this Appointment shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Appointment which existed at or before the date of termination.
- DATA PROTECTION
6.1. Both parties will comply with all applicable requirements of all data protection legislation in force from time to time in the UK including without limitation, the Data Protection Act 2018, UK GDPR (as defined in section 3(10) and supplemented by section 205(4) of the Data Protection Act 2018), and the General Data Protection Regulation ((EU) 2016/679) (the Data Protection Legislation). In this clause 6 the terms Controller, Processor and Personal Data shall have the meaning given to them in the Data Protection Legislation.
6.2. It is acknowledged that for the purposes of the Data Protection Legislation, you are the Controller and we are the Processor. Without prejudice to the generality of the foregoing, you shall ensure that you have all necessary appropriate consents and notices in place to enable the lawful transfer of any Personal Data to us for the duration and purposes of this Appointment. We shall process Personal Data in accordance with our privacy policy from time to time, and we agree to comply with your reasonable written instructions given to us in advance with respect to the processing of Personal Data.
- GENERAL
7.1. Force Majeure: We shall not be in breach of this Appointment nor liable for delay in performing, or failure to perform, any of our obligations under this Appointment if such delay or failure results from events, circumstances or causes beyond our reasonable control.
7.2. Variation: except as set out in this Appointment, no variation of this Appointment or the Services shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
7.3. Assignment: We may at any time assign, mortgage, charge, sub-contract, delegate or deal in any other manner with any or all of our rights and obligations under this Appointment and the provision of the Services. You may not assign, transfer, mortgage, charge, subcontract, delegate or deal in any other manner with any of your rights and obligations under this Appointment or the Services.
7.4. Third Party Rights: This Appointment shall not confer and shall not purport to confer on any third party any benefit or any right to enforce any term of this Appointment for the purposes of the Contracts (Rights of Third Parties) Act 1999 or otherwise.
7.5. Entire Agreement: This Appointment (together with the proposal) represents the entire agreement and understanding between the parties relating to the subject matter of this Appointment and the Services. You acknowledge that you have had an opportunity to negotiate the terms and conditions of this Appointment prior to the commencement of the Services.
7.6. Severance: If any provision or part provision of this Appointment is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Appointment. If any provisions or part-provision of this Appointment deleted under this clause the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extend possible, achieves the intended commercial result of the original provision.
7.7. Governing Law and Jurisdiction: This Appointment shall be governed by and construed in accordance with the laws of England. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Appointment or its subject matter.
