Standard terms of business

This document defines the general terms that shall apply to all service agreements involving Agility Risk & Compliance Ltd. These clauses are incorporated into and form an integral part of our contract.

1. DEFINITIONS AND INTERPRETATION
1.1 The following terms shall have the following meanings for the purposes of this Agreement:
“Additional Services” means the services detailed in Schedule 1 and 2.
“Agreement” means the Retainer Agreement, Client Care Letter, or any alternative written Agreement or Engagement correspondence (for example, emails) Agreement and these Standard Terms of Business.
“AR&C” means Agility Risk & Compliance Limited of Meridian House, Saxon Business Park, Stoke Prior, Bromsgrove B60 4AD.
“Charges” means the Charges detailed in the
Agreement.
“Commencement Date” means the date detailed in your Agreement and will be the date upon which the Services commence and whereby the Charges, and all other contractual obligations under this Agreement, become applicable.
“CLIENT” means the party procuring the Services as detailed in the Agreement. “Intellectual Property” means the intellectual property relating to the Services; “Notice” means notice complying with the terms of the Agreement. “Party” or “Parties” means AR&C and/or CLIENT.

“Service Provider” means Agility Risk & Compliance Limited of Meridian House, Saxon Business Park, Stoke Prior, Bromsgrove B60 4AD
“Services” means the Services detailed in the Agreement.
“Term” means the ‘contract term’ as defined in the
Agreement.

1.2 Headings contained in this Agreement are for reference purposes only and should not be incorporated into this Agreement and shall not be deemed to be any indication of the meaning of the clauses to which they relate.

1.3 All agreements on the part of either of the parties which comprise more than one person or entity shall be joint and several and the neuter singular gender throughout this Agreement shall include all genders and the plural and the successor in title to the parties.

2. APPOINTMENT
2.1 CLIENT hereby exclusively appoints AR&C to provide the Services for the Term in return for the Charges on a sole supply basis.

2.2 The Services shall be provided in accordance with the terms of the Agreement.

3. SERVICE PROVIDERS OBLIGATIONS
3.1 AR&C shall use reasonable care and skill in its performance of the Agreement.

3.2 AR&C shall provide the Services in a good and professional
manner.

3.3 To maintain at its own cost a comprehensive policy of insurance to cover the liability of AR&C in respect of any act or default for which it may become liable to indemnify the CLIENT under the terms of this Agreement; . 3.3.1 To arrange that the minimum cover of that policy is £1,000,000.

3.4 To comply with the terms of any Notice specifying a breach of the provisions of this Agreement and requiring the breach to be remedied so far as it may be.

3.5 AR&C shall not be liable to CLIENT or any other person for;

3.5.1 any indirect of consequential loss or damage howsoever caused;

3.5.2 loss of use, operating time, profits, revenue, anticipated savings or intangible property or for any inconvenience caused;

3.5.3 Any claim unless made with reasonable details in writing to AR&C no later than 3 months after the date the claimable event first comes (or is thought reasonably to have come) to the notice of the relevant party, its employees, agents or contractors; and/or

3.5.4 AR&C shall not be liable to CLIENT for loss or damage to CLIENT’s property unless due to the negligence or other failure of AR&C to perform its obligations under this Agreement or under general law.
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4. CLIENT’S OBLIGATIONS

In consideration of the Services to be provided by AR&C under this Agreement CLIENT agrees:

4.1 to pay the Charges promptly or by specific written agreement without counter demand, deduction or set-off;

4.2 to observe and perform the obligations and duties contained and referred to in this Agreement;

4.3 to provide AR&C with such reasonable assistance and support as may be required to provide the Services and do nothing to hinder or obstruct AR&C in providing the Services; and
4.4 to provide AR&C with full and free access to the premises, systems and files and other material which is necessary for AR&C for the proper or better performance of its obligations and duties contained within this Agreement; and
4.5 CLIENT is required to serve notice of any breach before taking action in respect of it and AR&C have, on receipt of notice, 30 days’ to rectify the breach before further action is taken.

5. VAT
5.1 All sums payable under this Agreement, unless otherwise stated, are exclusive of VAT and other duties or taxes.

5.2 Any VAT or other duties or taxes payable in respect of such sums shall be payable in addition to such sums.

6. VISIT CANCELLATIONS

6.1 If the Client cancels a scheduled on-site date with 5-7 days’ notice before the date of the scheduled on-site day, all reasonable attempts will be made by AR&C to rearrange the on-site day within the terms of the Agreement but will not guarantee this will be possible.

6.2 If the Client cancels a scheduled on-site date with less than 5 days’ notice before the date of the scheduled on-site day, the Client will be liable to pay for an additional on-site day for the rescheduled visit and the visit will be deducted from the allocated contractual entitlement of visits.
6.3 If a consultancy on-site day is not rescheduled, AR&C reserve the right to remove their status as the CLIENT’s Competent Person.

7. TERMINATION 7.1 This Agreement shall be for the term from the Commencement Date as defined in the Agreement.

7.2 The obligations detailed in this clause 7.2 (and subsections 7.2.1 to 7.2.3 inclusive), are conditions of this Agreement and any breach of them shall be deemed a fundamental breach which shall terminate this Agreement based upon service of 14 days’ Notice to the party in breach from the other party and the rights and liabilities of the parties shall then be determined in accordance with clause 8;

7.2.1 failure on the part of CLIENT to make full and punctual payment of sums due to AR&C under the terms of this Agreement;

7.2.2 failure on the part of AR&C or CLIENT to observe any obligation under this Agreement within 30 days of having been given notice by the other party of the breach and requiring the breach to be remedied; or

7.2.3 the levying of any distress or execution against CLIENT or the making by it of any composition or arrangement with creditors or being a company CLIENT’s liquidation (other than a members’ voluntary liquidation with the written consent of CLIENT).

7.3 AR&C reserves the right to terminate the Agreement with 14 days’ notice for any given reason.

8. TERMINATION CONSEQUENCES
In the event of the Agreement being terminated whether by passing of time, Notice, breach or otherwise (excluding clause 7.3):

8.1 CLIENT shall immediately pay to AR&C:

8.1.1 all arrears of Charges and any other sums due under the terms of this Agreement (including but not limited to any interest due on those sums) without counter demand, deduction or set-off; and

8.1.2 all further sums which would but for the termination of this Agreement have fallen due at the end of the Term (together with any interest if appropriate);

8.1.3 if AR&C are in breach of their obligations under this Agreement pursuant to clause 7.2.2 CLIENT will pay all arrears of Charges and any other sums due under the terms of this Agreement (including but not limited to any interest due on those sums) without counter demand, deduction or set-off. There will be no further charges in respect of early termination;

8.1.4 if CLIENT are in breach of their obligations under this Agreement pursuant to clause 7.2.2 CLIENT will pay all arrears of Charges and any other sums due under the terms of this Agreement (including but not limited to any interest due on those sums) without counter demand, deduction or set-off and all further sums which would but for the termination of this Agreement have fallen due at the end of the Term (together with any interest if appropriate).

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8.2 Either party shall be entitled to exercise any one or more of the rights and remedies given to it under the terms of this Agreement and the termination of this Agreement shall not affect or prejudice such rights and remedies and each party shall be and remain liable to perform all outstanding liabilities under this Agreement notwithstanding that the other may have exercised one or more of the rights and remedies against it; and

Any right or remedy to which either party is or may become entitled under this Agreement or in consequence of the other’s conduct may be enforced from time to time separately or concurrently with any right or remedy given by this Agreement or now or afterwards provided for and arising by operation of law so that such rights and remedies are not exclusive of the other or others but are cumulative.

9. RECRUITMENT AND CONTROL OF STAFF
9.1 Neither party shall during the term of the Agreement and for a period of 12 months after termination howsoever caused;

9.1.1 solicit the employment of; or

9.1.2 employ or offer to employ;
any of the other party’s technical or management staff who have been engaged in the provision of the Services or the performance of the Agreement. For the purposes of this clause “Employ” and “Employment” shall without limitation include the engagement of such person as an employee, director, sub-contractor or independent contractor.

9.2 In the event that either party is found to be in breach of clause 9.1 then that party shall pay the other party by way of liquidated damages an amount equal to one half of the value of the final gross annual emoluments (before statutory deductions and including bonuses and commissions) of the person so employed or engaged payable by the other party. This provision shall be without prejudice to the other party’s right to seek injunctive relief.

9.3 AR&C shall use its reasonable endeavours to ensure the continuity of its staff assigned to perform the Services entered into hereunder. If any AR&C staff performing the Services leaves AR&C’s employment AR&C shall provide replacement staff of appropriate skill, qualification, and experience.

10. FAIR USAGE POLICY
10.1 The ‘unlimited email and telephone support’ as described in the Agreement is subject to this fair usage policy. The fair use threshold is set at 125% with a standard hourly rate of £75 per hour. If the CLIENT was to exceed this threshold for three months in any twelve-month period, the CLIENT agrees that this would amount to a breach of the fair use policy.

10.2 The CLIENT agrees that should it act in breach of this clause, the Service Provider has the express right to cancel this Agreement, giving 14 days’ notice or re- negotiate the terms as outlined in the Agreement.

11. MISCELLANEOUS
11.1 Warranty Each of the parties warrants its power to enter into this Agreement.
11.2 Interest All sums due from CLIENT to AR&C which are not paid on the due date (without prejudice to the rights of AR&C under this Agreement) shall bear interest from day to day at the annual rate of 5% over the base lending rate of Barclays Bank plc.
11.3 Receipt The receipt of money by either of the parties shall not prevent either of them from questioning the correctness of any statement in respect of such money.
11.4 Force Majeure Both parties shall be released from their respective obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties or either of them renders the performance of this Agreement impossible whereupon all money due under this Agreement shall be paid immediately and in particular:

11.4.1 CLIENT shall immediately pay to AR&C all arrears of Charges without counter demand, deduction or set-off; and
11.4.2 each party shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement.

11.5 Severance If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable the remaining provisions of this Agreement shall remain in full force and effect unless AR&C in its absolute discretion decides that the effect of such declaration is to defeat the original intention of the parties in which event AR&C shall be entitled to terminate this Agreement by 30 days’ notice to CLIENT and the provisions of clause 8 shall apply accordingly.
11.6 Whole Agreement Each party acknowledges that this Agreement contains the whole Agreement between the parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
11.7 Supersedes prior Agreements This Agreement supersedes any prior agreement between the parties whether written or oral and any such prior agreements are cancelled as at the Commencement Date but without prejudice to any rights which have already accrued to either of the parties.
11.8 Discretion Any decision exercise or discretion judgement or opinion or approval of any matter mentioned in this Agreement or arising from it shall be binding on a party only if in writing and shall be at its sole discretion unless otherwise expressly provided in this Agreement.
11.9 Change of address Each of the parties shall give notice to the other of the change or acquisition of any address or telephone fax or similar number at the earliest possible opportunity
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but in any event within 48 hours of such change or acquisition.
11.10 Notices All Notices to be given under this Agreement shall be in writing and shall be sent by recorded delivery and shall be deemed duly served:

11.10.1 in the case of a Notice sent inland by recorded delivery, 2 clear business days after the date of dispatch;
Each Notice shall be addressed to the address of the party concerned set out in the Agreement or to such other address as that party shall have previously notified to the sender.

11.11 Proper law and jurisdiction 11.11.1 This Agreement shall be governed by English law in every particular including formation and interpretation and shall be deemed to have been made in England.

11.11.2 Any proceedings arising out of or in connection with this Agreement may be brought in any court of competent jurisdiction in England and Wales.

11.11.3 Any notice of proceedings or other notices in connection with or which would give effect to any such proceedings may without prejudice to any other method of service be served on any party in accordance with clause 11.10. 11.12 Rights cumulative All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of any other right granted by this Agreement or otherwise available to it.
11.13 Survival of terms No term shall survive expiry or termination of this Agreement unless expressly provided.
11.14 Waiver The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
11.15 Costs Each of the parties shall pay any costs and expenses incurred by it in connection with this Agreement.
11.16 No assignment or sub-contracting CLIENT shall not assign or sub-contract any of its rights or duties under this Agreement without the consent in writing of AR&C (such consent not to be unreasonably withheld).
11.17 Secrecy Not at any time during the Term to divulge to any person or make use of any confidential information relating to the business or affairs of CLIENT.

11.18 Intellectual Property Not to cause or permit anything which may damage or endanger the Intellectual Property or other intellectual property of either party or either party’s title to it or assist or allow others to do so.
11.19 Third party rights A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement.

12. CONFIDENTIALITY THE DEFINITION IN THIS CLAUSE APPLIES IN THIS AGREEMENT:

12.1 “Confidential Information” Pre-existing Material and Input Material and all information relating to the Services whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is: (a) identified as confidential at the time of disclosure; or

(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

12.2 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care. 12.3 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received. 12.4 The obligations set out in this Clause 12 shall not apply to Confidential Information which the receiving party can demonstrate:

12.4.1 is or has become publicly known other than through breach of this Clause 11; or

12.4.2 was in possession of the receiving party prior to disclosure by the other party; or

12.4.3 was received by the receiving party from an independent third party who has full right of disclosure; or

12.4.4 was independently developed by the receiving party; or

12.4.5 was required to be disclosed by governmental authority, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
12.5 The obligations of confidentiality in this Clause 11 shall survive termination of the Agreement.

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13. ARBITRATION

All disputes or differences which at any time arise between the parties whether during the Term 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 Institution of Arbitrators in accordance with the Arbitration Act 1996 or any statutory mediation or re-enactment of it for the time being in force.

14. VARIATION OF TERMS

AR&C reserve the right to amend these terms and conditions of business on renewal of a Retainer Agreement and when instructed to carry out other work, under a separate Agreement. Notwithstanding this, AR&C reserve the right to variation and amendment the Standard Terms of Business from time to time, or at least annually. The CLIENT will be informed in writing of any changes.

15. ACCEPTANCE OF TERMS
The terms set out in the Agreement will be deemed accepted on receipt of the signed Retainer Agreement, countersigned Client Care Agreement, and/or by an alternative written accepted from the CLIENT. Acceptance to the terms set out in the Agreement will also be deemed on receipt of further instruction to work on the matter after CLIENT has received a copy of these Terms as if the CLIENT had signed the Retainer Agreement, countersigned Client Care Agreement, and/or provided alternative written acceptance.

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