Subcontractor Terms and Conditions

1. INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Bespoke Content: the materials or content commissioned and paid for by the Client as agreed in the Scope of Works.
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 Client for the supply of the Services in accordance with clause 5.
Client: the person or firm who purchases Services from the Company.
Company: Ben&Andrew Ltd registered in England and Wales with Company No. 08822360.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between the Company and the Client for the supply of Services in accordance with these Conditions.
Contract Year: any 12 month period commencing with the Commencement Date or any anniversary of it.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data 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 deliverables set out in the Scope of Works.
Estimate: the Company’s estimate of the Charges based on the anticipated number of days to complete the Services plus any anticipated expenses and disbursements, as set out in the Scope of Works.
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.
Order: the Client’s order for Services
Scope of Works: the description or specification of the Services provided in writing by the Company to the Client.
Services: the management consultancy services, including the Deliverables and any Bespoke Content, supplied by the Company to the Client as set out in the Scope of Works.

1.2. A reference to writing or written includes fax and email.

2. BASIS OF CONTRACT

2.1. The submission of an Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.

2.2. The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.3. The Contract shall expire on the earlier of: the completion of the Order; or either party giving written notice to the other in accordance with clause 9.

2.4. Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company’s catalogues or brochures, 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.

2.5. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6. Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.

3. SUPPLY OF SERVICES

3.1. The Company shall supply the Services to the Client in accordance with the Scope of Works in all material respects.

3.2. The Company shall use all reasonable endeavours to meet any performance dates specified in the Scope of Works, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3. The Company reserves the right to amend the Scope of Works 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 the Company shall notify the Client in any such event.

3.4. The Company warrants to the Client that the Services will be provided using reasonable care and skill.

4. CLIENT'S OBLIGATIONS

4.1. The Client shall:

4.1.1. ensure that the terms of the Order and any information it provides in the Scope of Works are complete and accurate;

4.1.2. co-operate with the Company in all matters relating to the Services;

4.1.3 provide the Company, its employees, agents, consultants and subcontractors, with access to the Client's premises, office accommodation and other facilities as reasonably required by the Company;

4.1.4. provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

4.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and

4.1.6. keep all materials, equipment, documents and other property of the Company (Company Materials) at the Client's premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company's written instructions or authorisation.

4.2. If the Company's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):

4.2.1. without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Company's performance of any of its obligations;

4.2.2. the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company's failure or delay to perform any of its obligations as set out in this clause 4.2;

4.2.3. the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.

4.3. The Client warrants that it has full authority to use any photographs, names, slogans, logos or trademarks contained within the materials supplied to the Company for the purpose of the delivering the Services.

4.4. the Client shall indemnify the Company in the event of any breach of clauses 4.3.

5. CHARGES AND PAYMENT

5.1. The Charges shall be calculated on a time and materials basis in accordance with the Company's daily fee rates, as notified to the Client from time to time.

5.2. The Company's daily fee rates for each individual are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days; and

5.3. The Company shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Company engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Company for the performance of the Services, and for the cost of any materials.

5.4. The Company reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date.

5.5. The Company shall invoice the Client 50% of the Estimate on the Commencement Date. The remaining costs and expenses shall be billed on completion of the Services.

5.6. The Client shall pay each invoice submitted by the Company:

5.6.1. within 30 days of the date of the invoice; and

5.6.2. in full and in cleared funds to a bank account nominated in writing by the Company, and time for payment shall be of the essence of the Contract.

5.7. All amounts payable by the Client under the Contract 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 the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company 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.

5.8. If the Client fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company's remedies under clause 9, the Client 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 5.8 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%.

5.9. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6. INTELLECTUAL PROPERTY RIGHTS

6.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client or in the Bespoke Content) shall be owned by the Company.

6.2. The Company grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by the Client) for the purpose of receiving and using the Services and the Deliverables in its business.

6.3. The Company assigns to the Client the Intellectual Property Rights in the Bespoke Content.

6.4. The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.

6.5. The Client grants the Company a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Company for the term of the Contract for the purpose of providing the Services to the Client.

7. DATA PROTECTION

7.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 7 Applicable Lawsmeans (for so long as and to the extent that they apply to the Company) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the Data Protection Legislation from time to time in force in the UK and any other law that applies in the UK.

7.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and the Company is the processor.

7.3. Without prejudice to the generality of clause 7.1, 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 Company for the duration and purposes of the Contract.

7.4. Without prejudice to the generality of clause 7.1, the Company shall, in relation to any personal data processed in connection with the performance by the Company of its obligations under the Contract:

7.4.1. process that personal data only on the documented written instructions of the Client unless the Company is required by Applicable Laws to otherwise process that personal data. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

7.4.2. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

7.4.3. not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:

7.4.3.1. the Client or the Company has provided appropriate safeguards in relation to the transfer;

7.4.3.2. the data subject has enforceable rights and effective legal remedies;

7.4.3.3. the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

7.4.3.4. the Company complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;

7.4.4. provide reasonable assistance to the Client, at the Client's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

7.4.5. notify the Client without undue delay on becoming aware of a personal data breach;

7.4.6. at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the personal data; and

7.4.7. maintain complete and accurate records and information to demonstrate its compliance with this clause 7and immediately inform the Client if, in the opinion of the Company, an instruction infringes the Data Protection Legislation.

7.5. The Client consents to the Company appointing a third party processor of Personal Data under the Contract where necessary to perform the Services. The Company confirms that it will enter into a written agreement with the third party processor incorporating terms which are substantially similar to those set out in this clause 7 and in either case which the Company confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Client and the Company, the Company shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 7.

8. LIMITATION OF LIABILITY

8.1. Subject to clause 8.2, the Company is not liable for:

8.1.1. any losses, claims, demands, actions, proceedings, damages, costs or expenses or other liability incurred by Client or the Client's employees, customers as a result of the Company’s provision of the Services;

8.1.2. loss of profit, loss of sales or business, loss of or damage to goodwill, indirect or consequential loss.

8.2. Nothing in clause 8.1 shall limit or exclude the Company's liability for:

8.2.1. death or personal injury caused by negligence on the part of the Company or its employees or agents;

8.2.2. fraud or fraudulent misrepresentation; or

8.2.3. any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

8.3. Subject to clause 8.2 the Company’s total liability to the Client in respect of all breaches occurring within any Contract Year shall not exceed the total amount paid in the preceding 12 month period in respect of the Charges.

8.4. This clause 8 shall survive termination of the Contract.

9. TERMINATION

9.1. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one months' written notice.

9.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

9.2.1. 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;

9.2.2. the other party enters into liquidation, whether compulsory or voluntary (but not if the liquidation is for amalgamation or reconstruction of a solvent company) or has a receiver, administrator or administrative receiver appointed or enter into any arrangement for the benefit of its creditors;

9.2.3. 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

9.2.4. 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 affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Client if:

9.3.1. the Client fails to pay any amount due under the Contract on the due date for payment; or

9.3.2. there is a change of control of the Client.

9.4. Without affecting any other right or remedy available to it, the Company may suspend the supply of Services under the Contract or any other contract between the Client and the Company if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 9.2.2 to clause 9.2.4, or the Company reasonably believes that the Client is about to become subject to any of them.

10. CONSEQUENCES OF TERMINATION

10.1. On termination of the Contract:

10.1.1. the Client shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt;

10.1.2. the Client shall return all of the Company Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Company may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

10.2. Termination or expiry of the Contract 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 the Contract which existed at or before the date of termination.

10.3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

11. GENERAL

11.1. 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.

11.2. Assignment and other dealings.

11.2.1. The Client shall not assign, dispose of or deal in any other manner with any of its rights and obligations under the Contract.

11.3. Confidentiality.

11.3.1. 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

11.3.2.

11.3.2. Each party may disclose the other party's confidential information:

11.3.2.1 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

11.3.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3.3. 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.

11.4.1. 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.

11.4.2. 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 based on any statement in the Contract.

11.5. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.6. Waiver. 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. 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.

11.7. Severance. If any 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 shall be deemed deleted. Any modification to or deletion of a provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

11.8. Notices.

11.8.1. Any notice or other communication given to a party under or in connection with the 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 to the address as set out in the Order.

11.8.2. Any notice or communication shall be deemed to have been received:

11.8.2.1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and

11.8.2.2. 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.

11.8.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

11.9. Third party rights. Unless it expressly states otherwise, 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.

11.10. Governing law and jurisdiction. 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 whose courts shall have exclusive jurisdiction.