Terms and Conditions
This agreement is made on the date and between the Parties stated in the Particulars
RECITAL
The Client wishes to engage the Company to perform the Services on the terms and subject to the conditions set out in this Agreement.
OPERATIVE PROVISIONS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, the following words and expressions shall have the following meanings:
1.1.1 ‘COMPLETION’ means the date upon which the Company shall complete the Services hereunder
1.1.2 “CONFIDENTIAL INFORMATION” means all information of a confidential nature, all information relating to the Services and all papers, notes and correspondence made or to be made in connection with the Service
1.2 In this Agreement unless the context otherwise requires:
1.2.1 Clause headings are inserted for convenience only and shall not affect the construction of this Agreement and all references to Clauses or Sub-clauses are to Clauses and Sub-clauses of this Agreement;
1.2.2 words denoting the singular number include the plural and vice versa;
1.2.3 references to persons include references to bodies corporate and unincorporate;
1.2.4 references to statutes or statutory instruments include references to any modification, extension or re-enactment of them from time to time.
1.3 References in this agreement to anything, which any party is required to do or not to do, shall include its acts, defaults and omissions, whether:
1.3.1 direct or indirect;
1.3.2 on his / her own account; or
1.3.3 for or through any other person; and
1.3.4 those which it permits or suffers to be done or not done by any other person.
1.4 The effect of all obligations affecting the Company hereunder is cumulative and no obligation shall be limited or modified by any other of those obligations unless there is in this agreement an express limitation or modification.
2. APPOINTMENT
2.1 The Client appoints the Company to undertake and provide the Services in consideration of the Consultancy Fee. Should the Client request and the Company agree to provide services additional to the Services (as defined), the fees for the same shall be mutually agreed in writing between the parties, but otherwise for all purposes of this Agreement, the said additional services shall be deemed to be included within the definition of the Services Page 3
2.2 The Company warrants and undertakes to the Client that it shall use its reasonable endeavours to ensure that the Services will be provided using all reasonable skill, care and diligence which may reasonably be expected of a professional person performing the Services
2.3 The Company shall not be liable to the Client or be deemed to be in breach of agreement by reason of any delay in performing, or any failure to perform the Services or any part of them, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control :-
2.3.1 Act of God, explosion, flood, tempest, fire or accident;
2.3.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition; or
2.3.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
3. TERMS OF PAYMENT
3.1 The Company shall be entitled to submit an invoice for the provision of the Services at the Consultancy Fee upon the Completion Date.
3.2 The Company reserves the right, by giving notice to the Client, at any time before the Completion Date, to increase the Consultancy Fee to reflect any increase in the scope or extent of the Services not anticipated by the Company at the date of this Agreement or any other factor that is beyond the control of the Company, any change in proposed time for delivery of the Services, the description of the Services, or any delay caused by any instructions of the Client or failure of the Client to give the Company adequate information or instructions
3.3 The Client shall pay the Consultancy Fee on or before the Due Date for Payment.
3.4 If the Services are stated in the Particulars to be performed pursuant to an authority granted either by the Legal Services Commission (“the Commission”) or by the Client under its delegated powers, the Due Date for Payment shall be 30 from the date of delivery of the Company’s invoice issued in accordance with this Agreement or the date upon which the Client receives payment from the Commission in respect of the Services, whichever is the sooner PROVIDED THAT the Client:
3.4.1 promptly submits the Company’s invoice to the Commission for payment;
3.4.2 responses promptly to all enquiries or requests for information received from the Commission in respect of the provision of the Services or the Consultancy Fee; and
3.4.3 provides information to the Company as to the progress of its application for payment including copies of all correspondence in respect thereof
3.5 If the Client fails to make any payment on the Due Date for Payment then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:-
3.5.1 cancel this Agreement; and
3.5.2 charge the Client interest (both before and after any judgement) on the amount unpaid, at the rate of 5 per cent per annum above the base rate for the National Westminster Bank Plc as it may be from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest) Page 4
4. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
4.1 The Company shall both during this agreement and after its termination keep confidential and not (except as authorised or required for the purposes of this agreement) use or disclose or attempt to use or disclose any of the Confidential Information.
4.2 The Company grants and agrees to grant to the Client an irrevocable, royalty-free, non-exclusive licence to use and reproduce all reports, notes of meetings and any other materials provided by the Company in connection with the Services (whether in existence or to be made) and all amendments and additions to them.
4.3 The Company agrees on request at any time to give the Client or any persons authorised by it access to the material referred to in Clause 4.2 and, at the Client’s expense to provide copies of it; and
5. TERMINATION BY THE COMPANY
5.1 The Company may by written notice terminate this agreement or suspend the performance of all or any of its obligations under it immediately and without liability for compensation or damages if:
5.1.1 the Client fails to comply with any of its obligations under this Agreement or any Agreement or Agreement supplemental to it and the failure (if capable of being remedied) remains unremedied for 21 days after being called to its attention by written notice from the Company;
5.1.2 the Client convenes a meeting of its creditors or suffers a petition to be presented or a meeting to be convened or other action to be taken with a view to its liquidation except (with the written approval of the Company) for the purposes of and followed by amalgamation or reconstruction; or
5.1.3 a receiver or an administrative receiver is appointed of any of the Client’s property.
6. TERMINATION BY THE CLIENT
6.1 The Client may by written notice terminate this Agreement or suspend the performance of all or any of its obligations under it immediately and without liability for compensation or damages if:
6.1.2 the Company fails to comply with any of its obligations under this Agreement or any Agreement or Agreement supplemental to it and the failure (if capable of being remedied) remains unremedied for 21 days after being called to the Company’s attention by written notice from the Client;
6.1.2 the Company becomes bankrupt, has a receiving order made against them, makes any arrangement with its creditors generally or takes or suffers any similar action as a result of debt;
6.1.3 the Company are guilty of any act which brings or is likely to bring the Client into disrepute by association or which in the Client’s reasonable opinion is prejudicial to its interest;
6.1.4 be incompetent guilty of gross misconduct and / or any serious or persistent negligence in the provision of the Services hereunder; or
6.1.5 the Company ceases for any reason to be qualified to provide the Services or the Client reasonably apprehends that this is the case
7. INDEMNITY INSURANCE
7.1 The Company warrants to the Client that it shall appoint suitably qualified consultants to provide the Services and shall use its reasonable endeavours to ensure that the Consultant has and (so long as such insurance is available in the market) will continue to maintain for a period of 6 years professional indemnity insurance with a reputable insurance Client with a limit of indemnity of not less than £1,000,000 in respect of each and every claim to cover any claims made under this Agreement in relation to the Services.
7.2 The preceding parts of this Clause 7 do not apply at times when and to the extent that insurance cover is not available in the United Kingdom insurance market at reasonable economic rates of premiums, and the Company has notified the Client accordingly.
7.3 Except as aforesaid or as required by law, the Company shall not be liable to the Client by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement for any loss or damage of any nature, costs, expenses or other claims for compensation whatsoever (and whether caused by negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Services, except as expressly provided in this Agreement.
8. RESTRICTIONS
8.1 The parties recognise that the Company has a recognised speciality in the provision of expert evidence through the medium of its existing connections with consultants of various specialities. Further, the parties acknowledge that it is legitimate for the Company to wish to protect its business by restricting the Client’s ability to contract direct with the consultants appointed by the Company to provide the Services.
8.2 The Client hereby covenants with the Company that it shall not during a period of two years from the Completion Date it will not approach, solicit, employ, engage or procure the employment or engagement of any person who provides the services (or any material part thereof) on behalf of the Company
8.3 The restrictions contained in this clause 8 are considered reasonable by the parties but in the event that any such restriction shall be found to be void but would be valid if some part thereof were deleted or the period or area of application reduced such restriction shall apply with such modification as may be necessary to make it valid and effective.
9. COMMUNICATIONS
9.1 Except as otherwise provided for in this Agreement, all notices or other communications under or in respect of this Agreement to either party shall be deemed to be duly given or made when delivered (in the case of personal delivery or letter) or when despatched (in the case of telex or facsimile) to the party addressed to him at the address appearing in the Particulars
9.2 A written notice includes a notice by telex or facsimile. A notice or other communication received on a non-working day or after business hours in the place of receipt, shall be deemed to be given or made on the next following working day in that place.
10. SUPERSEDES PRIOR AGREEMENT
10.1 This agreement supersedes any prior agreement between the parties whether written or oral and any prior agreements are cancelled as at the date hereof but without prejudice to any rights, which may have already accrued to either of the parties. Page 6
11. ARBITRATION
11.1 All disputes or differences which shall at any time arise between the parties whether during this agreement or afterwards touching or concerning this agreement or its construction or effect or the rights duties or liabilities of the parties under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of this agreement shall be referred to a single arbitrator to be agreed upon by the parties or in default of agreement to be nominated by the President for the time being of the Chartered Institute of Arbitrators in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment of it for the time being in force.
12. VARIATION
12.1 No variation or amendment of this agreement or oral promise or commitment related to it shall be valid unless committed to writing and signed by or on behalf of both parties.
13. LAW AND JURISDICTION
13.1 This Agreement shall be governed by, and construed in accordance with, English law.
13.2 The parties to this Agreement irrevocably agree that the courts of England shall have jurisdiction to hear and determine any suit, action or proceeding, and to settle any dispute, which may arise out of or in connection with this Agreement, and for such purpose the parties irrevocably submit to the jurisdiction of the courts of England.
14. ENTIRE UNDERSTANDING
14.1 This agreement embodies the entire understanding of the parties in respect of the matters contained or referred to in it and there are no promises, terms, conditions or obligations oral or written, express or implied other than those contained in this agreement.
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