These Terms of Business set out the terms and conditions on which we, VIA-K Limited (Company Number 4391834), trading as PlanB Consulting, undertake to act for you. These Terms of Business together with the contract proposal attached hereto (“the Contract Proposal”) (hereinafter together referred to as “this Agreement”) detail the consultancy services and associated deliverables which we will provide (“the Services”) and set out the obligations and rights applying between ourselves and you. We are entitled to vary these Terms of Business at any time with effect from the date of written notice of any changes being notified to you. These Terms of Business are subject to the Contract Proposal.
1. Our responsibilities to you
1.1 We undertake:
1.1.1 To use suitably qualified individuals, who may include sub-contractors, to provide the Services. These individuals shall exercise the standard of care of a competent and professional business continuity consultant.
1.1.2 If a specific individual has been named in the Contract Proposal we will take all reasonable steps to ensure that the specific individual provides the Services. In the event that, due to unavoidable circumstances, the specific individual is unable to provide the Services, we shall endeavour to make available an individual who is as close as possible to the specific individual in terms of skills and experience.
2. Your responsibilities to us
2.1 You undertake:
2.1.1 That the documentation and information provided to us is true, accurate and complete.
2.1.2 To ensure that we have reasonable access to all applicable documentation, information, premises and personnel (including any applicable third party suppliers) which we deem necessary to enable us to deliver the Services.
2.1.3 To take responsibility for compliance with any statute, regulation or any other applicable legislation or standard in implementing any recommendations which form part of the Services.
2.1.4 To only use the Services for their stated purpose and not to disclose the Services to any third party.
2.1.5 Not to solicit, canvass or entice away (or endeavour to solicit, canvass or entice away) any of our consultants or employees (“the Providers”) for the purposes of employment of such Provider(s) by you or any other person in an enterprise or venture competing to a material extent with us for a period of six months after we have delivered the Services.
3. Fees and expenses
3.1 Unless otherwise agreed, fees will be charged on a day rate basis and are in respect of a seven hour day. Any part thereof shall be calculated on a pro rata basis.
3.2 Unless otherwise agreed, fees exclude expenses (e.g. long distance phone calls, fax charges, accommodation, photocopying, courier charges, travel) which are payable in addition.
3.3 Subject to any agreement detailed in the Contract Proposal, our fees will be rendered as follows:
(a) Continuing or ongoing services will be charged on a monthly basis;
(b) Expenses will be charged to you as they are incurred.
3.4 In the event that payment of our fees and/or expenses is dependent upon the sign off of a specific deliverable as specified in the Contract Proposal, sign off of such specific deliverable will not be unreasonably withheld or delayed. In the event that sign off has not been obtained within two weeks of delivery of said specific deliverable, sign off will be deemed to have occurred, unless we are specifically advised otherwise by you, in writing, within said two week period.
3.5 All invoices are for immediate settlement.
3.6 VAT where applicable will be added to fees and/or expenses.
3.7 We reserve the right to charge interest for late payment of any sums due to us at the rate of two per cent (2%) above the Santander base rate. Notwithstanding the foregoing, we reserve the right to charge interest in accordance with the provisions of the Late Payment of Commercial Debt (Interest) Act 1998 or any amendment or re-enactment thereof.
3.8 Where fees and/or expenses are recoverable from a third party you will remain ultimately responsible for payment of these.
3.9 In the event of any non-payment of our fees and/or expenses, we reserve the right to suspend our supply of services to you.
3.10 If we cease to act for you, you will remain responsible for paying us for work done up to that point and for reimbursing any expenses incurred.
4. Revisals to the project milestones
4.1 If our provision of the Services is disrupted or delayed due to a delay for which we are not responsible, we reserve the right to revise the expected project milestones set out in the Contract Proposal.
5. Variations to the Contract Proposal
5.1 In the event that you wish to vary the Services, we shall, upon receipt of a written request from you, provide you with suggested revisals to the Contract Proposal which will include, where applicable, revisals to the project milestones and our fees. The suggested revisals will not be incorporated into the Contract Proposal until they have been agreed in writing between the parties.
6.1 We will not disclose any information given by you to us which is not in the public domain, except as required by law or with your authority. Under the Data Protection Act 1988 you are entitled to a copy of the information we hold about you.
7. Intellectual property
7.1 All intellectual property rights, including copyright, patents and design arising in connection with the Services shall be and remain our property.
8.1 We have and undertake to keep in place appropriate professional indemnity insurance.
9. Liability, exclusion and limitation
9.1 Neither party seeks to limit any liability which it may have arising out of or in connection with this Agreement in respect of death or personal injury caused through neglect or fraudulent misrepresentation.
9.2 In no event shall we be liable to you arising out of or in connection with this Agreement for any loss of contracts, profits, goodwill, anticipated savings, revenue, business, operation time, stoppage of work or any other indirect, special or consequential loss.
9.3 Except pursuant to Clause 9.1 our total liability for any loss by you in respect of any one event or series of connected events shall not exceed £100,000.
10. Force Majeure
10.1 If in relation to either party, any circumstances beyond the reasonable control of that party (including any strike, lock-out or other industrial action) (“Force Majeure”) occurs in relation to either party which affects or may affect the performance of any of its obligations under this Agreement (other than your obligation to pay fees), it shall forthwith notify the other party as to the nature and extent of the circumstances in question.
10.2 A party affected by Force Majeure of which it has notified the other party pursuant to Clause 10.1 shall not be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or the non-performance, of any of its obligations under this Agreement, to the extent that the delay or non-performance is due to Force Majeure, and the time for performance of that obligation shall be extended accordingly.
10.3 If the performance by either party of any of its obligations under this Agreement is prevented or delayed by Force Majeure for a continuous period in excess of 30 days, the parties shall negotiate in good faith and use their best endeavours to agree upon such amendments to this agreement or alternative arrangements as may be fair and reasonable with a view to alleviating its effects, but if they do not agree upon such amendments or arrangements within a further period of 30 days, the other party shall be entitled to terminate this Agreement by giving written notice to the party affected by Force Majeure.
11.1 No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of the parties hereto.
12.1 This Agreement shall commence on the Commencement Date specified in the Contract Proposal and, subject to the following provisions, shall continue for the Initial Contract Proposal Term and shall thereafter continue on an annual basis unless terminated in writing by one party, giving three months notice to the other party, prior to the end of the Initial Contract Proposal Term or the Anniversary Date specified in the Contract Proposal. The notice must be sent by recorded delivery to the other party to expire at the end of the Initial Contract Proposal Term or the Anniversary Date.
12.2 This Agreement may be terminated by either party if the other party:
12.2.1 Commits a material breach of this Agreement and, if the breach is capable of being remedied, fails to remedy it within 30 days after receipt of a written notice specifying the breach and requiring it to be remedied; or
12.2.2 Goes into liquidation or administration, has a receiver appointed over any of its assets or makes a voluntary arrangement or composition with its creditors (in each case, within the meaning of the Insolvency Act 1986).
12.3 For the purposes of clauses 12.2.1, a breach of any provision of this Agreement shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that the time of performance is not of the essence).
12.4 No time or indulgence granted by either party shall be considered a waiver of any provision by that party, and no waiver by either party of a breach of this Agreement shall be considered a waiver of any subsequent breach of the same or any other provision.
12.5 The termination of this Agreement for any reason shall not affect any accrued right or liability of either party arising under this Agreement and shall not affect any other right or remedy of either party.
13. Survival of obligations
13.1 Each and every right and obligation of the parties under this Agreement shall, except insofar as fully performed, continue in full force and effect.
13.2 Any provision of this Agreement which is expressed or intended to have effect, or to continue in force after, the termination of this Agreement shall have such effect, or, as the case may be, continue in force, after such termination.
14.1 If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction that shall not effect: the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement.
14.2 If any provision is or becomes illegal, invalid or unenforceable in an jurisdiction but would be legal, valid and enforceable if some part of the provision were deleted or modified, the provision in question shall apply in that jurisdiction with such modification(s) as may be necessary to make it valid.
14.3 The parties agree, in the circumstances referred to above in Clause 13.1 and if Clause 13.2 does not apply, to attempt to substitute for any such illegal, invalid or unenforceable provision a legal, valid and enforceable provision for which it achieved to the same effect as would have been achieved by the illegal, invalid or unenforceable provision.
15. Governing law and jurisdiction
15.1 This Agreement shall be governed by and construed in all respects in accordance with Scottish law and each of the parties hereto hereby prorogates to the non-exclusive jurisdiction of the Scottish Courts as regards any claims or matters arising hereunder.