Terms and Conditions of Consultancy Services

To protect your interests please read these Terms and Conditions carefully as they form part of a legally binding contract.

1 Definitions and interpretation

1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:

1.1.1 “Charges” means the following amounts:

(a) the amounts specified in Section 7 of the Contract Specification; and

(b) such amounts as may be agreed in writing by the parties from time to time;

1.1.2 “Client” means the person or entity identified as such in Section 1 of the Contract Specification and unless the context otherwise requires, references to ‘the client’, ‘you’ or ‘your’ refer to the Client or potential client of The Consultant;

1.1.3 “Client Materials” means all works and materials supplied by or on behalf of the Client to the Consultant for incorporation into the Deliverables or for some other use in connection with the Services;

1.1.4 “Confidential information” means any information relating to a business, including but not limited to products, affairs, finances, trade secrets including technical data and know-how relating to the business or any business contacts and any affiliated companies or subsidiaries;

1.1.5 “Consultant” means Red Knight Solutions Ltd, a company incorporated in England and Wales (registration number 05592446) having its registered office at Larch House, Parklands Business Park, Denmead, Hampshire, PO7 6XP;

1.1.6 “Contract” means a particular contract made under these Terms and Conditions between the Consultant and the Client;

1.1.7 “Deliverables” means those items specified in Section 3 of the Contract Specification that the Consultant has agreed to deliver to the Client under these Terms and Conditions;

1.1.8 “Effective Date” means the date of execution of a Contract Specification incorporating these Terms and Conditions;

1.1.9 “Intellectual Property Rights” means any and all patents, petty patents, utility models, semi-conductor topography rights, trade marks, service marks, copyright and related rights, database rights, moral rights, rights in design, know-how, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether now or in the future subsisting in the United Kingdom or any other part of the world together with all or any goodwill and accrued rights of action;

1.1.10 “Personal Data” means data as defined in Section 1 of the Data Protection Act 1998;

1.1.11 “Services” means the consultancy services specified in Section 2 of the Contract Specification;

1.1.12 “Contract Specification” means a written contract specification agreed by or on behalf of each of the parties;

1.1.13 “Term” means the length of the Contract, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;

1.1.14 “Terms and Conditions” means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions and the Contract Specification, including any amendments to that documentation from time to time, they shall apply to all and any Contract to the exclusion of all other terms and conditions, including any terms and conditions the Client may purport to apply under any purchase order, confirmation of order or similar documents; and

1.1.15 “Third Party Materials” means the works and/or materials comprised in the Deliverables (excluding the Client Materials), the Intellectual Property Rights in which are owned by a third party, and which are specified in Section 3 of the Contract Specification or which the parties agree in writing shall be incorporated into the Deliverables.

1.2 In addition;

1.2.1 Singular words include the plural and vice versa;

1.2.2 Reference to any legislation, statute, enactment, order, regulation or other similar instrument shall be construed as a reference to it as amended or re-enacted;

1.2.3 Reference to any person includes natural persons and partnerships, firms and other incorporated bodies and all other legal persons of whatever kind and however constituted and their successors and permitted assignees or transferees;

1.2.4 The words “include”, “includes” and “including” are to be read as if they were immediately followed by the words “without limitation”.

2 Document Copyright

2.1 This document was created for The Consultant by Crimson Crab Ltd (https:www.crimsoncrab.net), it is an infringement of copyright to make:

(a) any use without the inclusion of this clause 2; or

(b) any adaptation without written permission; or

3 Term

3.1 The Contract shall come into force upon the Effective Date.

3.2 Subject to termination in accordance with Clause 11, the Contract shall continue in force until for the Term specified in Section 6 of the Contract Specification or it terminates automatically when:

(a) all the Services have been completed;

(b) all the Deliverables have been delivered; and

3.3 Unless the parties expressly agree otherwise in writing, each Contract Specification shall create a distinct Contract under these Terms and Conditions.

4 Services

4.1 The Consultant shall provide the Services to the Client in accordance with these Terms and Conditions.

4.2 The Consultant shall provide the Services with reasonable skill and care.

5 Deliverables

5.1 The Consultant shall deliver the Deliverables to the Client.

5.2 The Client must promptly, following receipt of a written request from the Consultant to do so, provide written feedback to the Consultant concerning the Consultant’s proposals, plans, designs and/or preparatory materials relating to the Deliverables and made available to the Client with that written request.

5.3 The Consultant shall use its best endeavours to ensure that the Deliverables are delivered to the Client in accordance with the timetable set out in Section 4 of the Contract Specification.

5.4 The Consultant warrants to the Client that:

(a) the Deliverables will conform with the requirements of Section 3 of the Contract Specification as at the date of delivery of the deliverables.6 Licence

6.1 The Consultant hereby grants to the Client a non-exclusive, worldwide and perpetual licence revocable on notice to copy, store, distribute within the business, adapt, edit and otherwise use the Deliverables (excluding the Third Party Materials and the Client Materials).

7 Charges

7.1 The Client shall pay the Charges to the Consultant in accordance with these Terms and Conditions.

7.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Client to the Consultant.

8 Payments

8.1 The Consultant shall issue invoices for the Charges to the Client on or after the invoicing dates set out in Section 7 of the Contract Specification.

8.2 The Client must pay the Charges to the Consultant within the period of 7 days following the issue of an invoice in accordance with this Clause 8.

8.3 The Client must pay the Charges by Go Card Less, Paypal, bank transfer or cheque or using such payment details as are notified by the Consultant to the Client from time to time or included in Section 7 of the Contract Specification.

8.4 If the Client does not pay any amount properly due to the Consultant under these Terms and Conditions, the Consultant may claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

9 Warranties

9.1 The Consultant warrants to the Client that the Consultant has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.

9.2 The Client warrants to the Consultant that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.

9.3 All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions and the applicable Contract Specification. Subject to Clause 10.1, no other warranties or representations will be implied into the Contract and no other warranties or representations relating to the subject matter of the Contract will be implied into any other contract.

10 Limitations and exclusions of liability

10.1 Nothing in these Terms and Conditions will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(d) exclude any liabilities that may not be excluded under applicable law.

10.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in these Terms and Conditions:

(a) are subject to Clause 10.1; and

(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.

10.3 The Consultant shall not be liable to the Client in respect of any loss of profits or anticipated savings.

10.4 The Consultant shall not be liable to the Client in respect of any loss of revenue or income.

10.5 The Consultant shall not be liable to the Client in respect of any loss of use or production.

10.6 The Consultant shall not be liable to the Client in respect of any loss of business, contracts or opportunities.

10.7 The Consultant shall not be liable to the Client in respect of any loss or corruption of any data, database or software.

10.8 The Consultant’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance of the Contract shall be limited to the amount paid by The Client in the twelve months preceding the date to which any claim relates and will not include liability for loss of profits or data, business interruption or costs of procurement of substitute goods or services, or for any indirect, special or incidental or consequential damages however caused.

10.9 The Consultant shall not be liable for any loss caused by any act or omission of one of its operatives where that operative was not acting in the normal course of performance of the Services.

10.10 The Consultant shall not be liable for any loss or damage arising from the performance of services that amount to a variation of the Services to be performed agreed under this Agreement unless such variation has been agreed in compliance with this Agreement.

10.11 The Consultant shall not be liable for any consequential, special or indirect damages or loss suffered by the Client, including but not limited to loss of profits and liquidated damages.

11 Termination

11.1 Either party may terminate the contract in accordance with Section 6 of the Contract Specification

11.2 Either party may terminate the Contract immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.

11.3 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract)]; or

(d) if that other party is an individual:

(i) that other party dies;

(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii) that other party is the subject of a bankruptcy petition or order.

12 Effects of termination

12.1 Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1 Definitions and interpretation, 6 Licence, 8 Payments sub clauses 8.2 & 8.4, 10 Limitations and exclusions of liability, 12 Effects of termination, 13 Status of Consultant sub clause 13.4, 16 Dispute resolution and 17 General.

12.2 The termination of the Contract shall not affect the accrued rights of either party.

13 Status of Consultant

13.1 The Consultant is not an employee of the Client, but an independent contractor.

13.2 At no time will The Consultant sign any document on the Clients behalf.

13.3 The relationship is limited to the performance of the terms and conditions of the agreement. Nothing in the agreement shall be construed as to create a partnership or to authorise either party to act as a general agent for the other, or to permit either party to bind the other except as set out in the agreement, or to borrow money on behalf of the other or to use the credit of either party for any purpose.

13.4 The Termination of the Contract will not constitute unfair dismissal; nor will the Consultant be entitled to any compensation payments, redundancy payments or similar payments upon the termination of the Contract.

14 Subcontracting

14.1 The Consultant may subcontract any of its obligations under the Contract.

14.2 The Consultant shall remain responsible to the Client for the performance of any subcontracted obligations.

15 Force Majeure

15.1 Neither party shall be entitled to damages from the other party, or to terminate this Agreement where the other party acts in default or material breach of this Agreement where that default or breach was caused by conditions or events beyond its reasonable control including, but not limited to:

15.1.1 Strike, lockout or other labour dispute affecting the employees of The Consultant or the Client where in the latter case the effect is to prevent or hinder The Consultant’s operatives from performing its duties;

15.1.2 Acts of God;

15.1.3 Natural disasters;

15.1.4 Acts of war or terrorism;

15.1.5 Act or omission of government, highway authorities or telecommunications carrier, operator or administrator;

15.1.6 Delay in manufacture, production or supply by third parties of equipment or services required for the performance of the Service;

15.1.7 Any event preventing The Consultant’s operatives from attending the Client’s premises to perform the Services including but not limited to adverse weather conditions, road closure or congestion and mechanical breakdown;

15.1.8 Any hazard at the Client’s premises including but not limited to impeded access or exit routes, structural defects, presence of noxious, combustible, radioactive or toxic substance which, in the reasonable opinion of The Consultant, comprises an unacceptable risk to the health and safety of its operatives;

16 Dispute resolution

16.1 The parties shall attempt to resolve any dispute arising out of or relating to the agreement through negotiations between senior executives of the parties, who have authority to settle the matter.

16.2 If the matter is not resolved by negotiation within 30 days of receipt of a written ‘invitation to negotiate’, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution procedure, or in default of agreement, through an ADR procedure as recommended to the parties by the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators.

16.3 If the matter has not been resolved by an Alternative Dispute Resolution procedure within 60 days of the initiation of that procedure, or if any party will not participate in the procedure, the dispute may be referred to arbitration by any party.

16.4 The seat of the arbitration shall be England and Wales.

16.5 The arbitration shall be governed by both the Arbitration Act 1996 and Rules as agreed between the parties.

16.6 Should the parties be unable to agree on an arbitrator or arbitrators, or be unable to agree on the Rules for Arbitration, any party may, upon giving written notice to the other parties, apply to the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators for the appointment of an Arbitrator or Arbitrators and for any decision on rules that may be necessary.

16.7 Nothing in this clause shall be construed as prohibiting a party or its affiliate from applying to a court for interim injunctive relief.

17 General

17.1 No breach of any provision of the Contract shall be waived except with the express written consent of the party not in breach.

17.2 If any provision of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

17.3 The Contract may not be varied except by a written document signed by or on behalf of each of the parties.

17.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under these Terms and Conditions.

17.5 The Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Contract are not subject to the consent of any third party. Neither party intends by virtue of the Contracts (Rights of Third Parties) Act 1999 that any of the terms should be enforceable by a person who is not a party to it.

17.6 Subject to Clause 10.1, a Contract Specification, together with these Terms and Conditions, shall constitute the entire agreement between the parties in relation to the subject matter of that Contract Specification, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

17.7 This Agreement is governed by and construed in accordance with English law.

17.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Contract.