General Terms & Conditions
- 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 which include these Standard Terms of Business.
“R&C” means Agility Risk & Compliance Limited; as detailed in section 1 of the Retainer Agreement.
“Charges” means the Charges detailed in section 3 of the Retainer Agreement and Schedule x of these Standard terms of Business;
“Commencement Date” means the date detailed in section 4 of the Retainer 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 section 2 of the Retainer Agreement
“Intellectual Property” means the intellectual property relating to the Services.
“Notice” means notice complying with the terms of section 4 of the Retainer Agreement;
“Retainer Agreement” means the document entitled Retainer Agreement and signed by or on behalf of the CLIENT”
“Service Provider” means Agility Risk & Compliance Limited, as detailed in section 1 of the Retainer Agreement
“Services” means the Services detailed in clause 8 of the Retainer Agreement.
“Term” means the ‘contract term’ as defined in section 4 of the Retainer 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.
2.1 CLIENT hereby exclusively appoints R&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 this Agreement.
- SERVICE PROVIDERS OBLIGATIONS
3.1 R&C shall use reasonable care and skill in its performance of the Agreement
3.2 R&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 R&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. CLIENT is required to serve notice of any breach before taking action in respect of it.
3.5 R&C shall not be liable to CLIENT or any other person for;
3.5.1 any indirect or 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 R&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.
3.5.4 R&C shall not be liable to CLIENT for loss or damage to CLIENT’s property unless due to the negligence or other failure of R&C to perform its obligations under this Agreement or under general law
- CLIENT’S OBLIGATIONS
In consideration of the Services to be provided by R&C under this Agreement CLIENT agrees:
4.1 to pay the Charges promptly without counter demand, deduction or set-off;
4.2 to observe and perform the obligations and duties contained and referred to in this Agreement; and
4.3 to provide R&C with such reasonable assistance and support as may be required to provide the Services and do nothing to hinder or obstruct R&C in providing the Services; and
4.4 to provide R&C with full and free access to the premises, systems and files and other material which is necessary for R&C for the proper or better performance of it’s obligations and duties contained within this Agreement
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.
- TERMINATION AND TERMINATION FOR BREACH
6.1 This Agreement shall be for the term, as defined within section 4 of the Retainer Agreement from the Commencement Date as defined in section 4 of the Retainer Agreement.
6.2 The obligations detailed in this clause, (and subsections 6.2.1 to 6.2.3 inclusive), are conditions of this Agreement and any breach of them shall be deemed a fundamental breach which shall determine 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 7.
6.2.1 failure on the part of CLIENT to make full and punctual payment of sums due to R&C under the terms of this Agreement;
6.2.2 failure on the part of R&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
6.2.3 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).
- TERMINATION CONSEQUENCES
In the event of this Agreement being determined whether by passing of time, Notice, breach or otherwise:
7.1 CLIENT shall immediately pay to R&C:
7.1.1 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
7.1.2 all further sums which would but for the determination of this Agreement have fallen due at the end of the Term (together with any interest if appropriate);
7.1.3 if R&C are in breach of their obligations under this Agreement pursuant to clause 6.2.2 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.
7.1.4 if CLIENT are in breach of their obligations under this Agreement pursuant to clause 6.2.2 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 determination of this Agreement have fallen due at the end of the Term (together with any interest if appropriate)
7.2 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 determination 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.
- RECRUITMENT AND CONTROL OF STAFF
8.1 Neither party shall during the term of the Agreement and for a period of 12 months after termination howsoever caused;
8.1.1 solicit the employment of; or
8.1.2 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.
8.2 In the event that either party is found to be in breach of this clause 8.1 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.
8.3 R&C shall use its reasonable endeavors to ensure the continuity of its staff assigned to perform the Services entered into hereunder. If any R&C staff performing the Services leaves R&C’s employment R&C shall provide replacement staff of appropriate skill, qualification and experience.
- FAIR USAGE POLICY
9.1 The ‘unlimited email and telephone support’ as described in section 8 of the Retainer Agreement is subject to this fair usage policy. The fair use threshold is set at 250% with a standard hourly rate of £150 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. For example, if the Client’s monthly retainer payment is £600 per month, this would equate to four hours of telephone and email support. If the Client was to use more than 10 hours of telephone and email support for three months in any twelve month period, there would be a breach of this policy. 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 section 5 of the Retainer Agreement.
Each of the parties warrants its power to enter into this Agreement.
All sums due from CLIENT to R&C which are not paid on the due date (without prejudice to the rights of R&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.
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.
10.4 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:
10.4.1 CLIENT shall immediately pay to R&C all arrears of Charges without counter demand, deduction or set-off; and
10.4.2 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.
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 R&C in its absolute discretion decides that the effect of such declaration is to defeat the original intention of the parties in which event R&C shall be entitled to terminate this Agreement by 30 days notice to CLIENT and the provisions of clause 7 shall apply accordingly.
10.6 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.
10.7 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.
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.
10.9 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 but in any event within 48 hours of such change or acquisition.
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:
10.10.1 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 this Agreement or to such other address as that party shall have previously notified to the sender.
10.11 Proper law and jurisdiction
10.11.1 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.
10.11.2 Any proceedings arising out of or in connection with this Agreement may be brought in any court of competent jurisdiction in England and Wales.
10.11.3 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 10.10.
10.12 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.
10.13 Survival of terms
No term shall survive expiry or termination of this Agreement unless expressly provided.
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.
Each of the parties shall pay any costs and expenses incurred by it in connection with this Agreement.
10.16 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 R&C (such consent not to be unreasonably withheld).
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.
10.18 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.
10.19 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.
11.1 The definition in this clause applies in this agreement.
11.2 “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.
11.3 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.
11.4 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.
11.5 The obligations set out in this Clause 11 shall not apply to Confidential Information which the receiving party can demonstrate:
11.5.1 is or has become publicly known other than through breach of this Clause 11; or
11.5.2 was in possession of the receiving party prior to disclosure by the other party; or
11.5.3 was received by the receiving party from an independent third party who has full right of disclosure; or
11.5.4 was independently developed by the receiving party; or
11.5.5 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.
11.6 The obligations of confidentiality in this Clause 11 shall survive termination of the agreement.
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
LIST OF CHARGES AND SERVICES THAT ARE PROVIDED OUTSIDE OF THE AGREEMENT (EMPLOYMENT LAW)
DEFENCE OF TRIBUNAL CLAIMS
- Fixed fee of £2250 for the defence of any claim (excluding a claim of discrimination), excluding representation at any interim or final Hearing.
- Fixed fee of £2750 for the defence of any discrimination claim, excluding representation at any interim or final Hearing.
- Fixed fee of £1000 for each day, or part day, of representation at any interim or final Hearing.
- Travel and accommodation charged on the basis described below.
- Fixed fee of £450 for the drafting and negotiation of a compromise agreement.
ADDITIONAL ATTENDANCES AT CLIENT’S PREMISES
- Additional attendances at client’s premises will be charged at the rate of £150 per hour.
ANY OTHER SERVICES NOT PROVIDED IN ACCORDANCE WITH THE AGREEMENT
- Any additional service that is provided with the client’s request/consent, outside that which is specified within the Agreement, will be charged at a standard rate of £150 per hour.
TRAVEL AND ACCOMODATION
Where a service provision requires travel or accommodation, the following charges apply:-
• Travel costs are chargeable at £0.45/mile.
- Time spent travelling will be charged at £50 per hour
- Overnight meal allowance of £25.00
- Public transport will only be used where appropriate and when used, will be recharged at cost
- Accommodation will be recharged at cost. R&C will attempt to use budget hotels (Premier Lodge or equivalent) where possible but CLIENT accepts that on occasion this may not be practical.
- All rates to be reviewed annually and will reflect latest government recommended mileage rates based on a 1.8 diesel car. Hourly rates are subject to annual review. Next review 1st January 2013
Training Course Terms of Business
Agility Risk & Compliance Ltd shall provide the Courses on the Date(s) stated on the Course Booking Form overleaf and in accordance with these terms and conditions
Training Terms & Conditions
- DEFINITIONS AND INTERPRETATION
1.1 The definitions and interpretations apply throughout this Agreement and relate to the provision of the Services;
“Agreement” means this contract for the provision of the Services, including its terms and any other document referred to or incorporated by reference into the Agreement;
“Agility” means Agility Risk & Compliance Limited, (CRN02518452) Meridian House, Saxon Business Park, Bromsgrove, Worcestershire, B60 4AD including its agents, sub-contractors and associate trainers;
“Customer” means any individual, company or organisation or other entity who requests Agility to provide the Services;
“Course” means the specific Course that will be delivered as defined in the Course Confirmation;
“Course Confirmation” means the document sent by Agility to the Customer confirming details of the Course, Course Date and Fees;
“Course Date” means the date the Course will be delivered;
“Course Materials” define;
“Delegate” means any individual attending a Course;
“Fees” means the costs stated in the Course Confirmation and any cancellation or administration charges that may apply;
“Services” means the provision of the Course and any related service.
1.2 In this Agreement, unless the context otherwise requires;
1.2.1 the singular includes the plural and vice versa;
1.2.2 reference to a gender includes the other gender and the neuter;
1.2.3 the headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
- COURSE CONFIRMATION
2.1 Once the Course Confirmation has been issued by Agility, these terms and conditions will apply.
- PAYMENT & VAT
3.1 All invoices must be paid within a maximum of 30 days of the date of the invoice and prior to the Course Date.
3.2 If payment is not received within 30 days of the date of the invoice Agility may charge interest at 5% above the Bank of England base rate.
3.3 All Fees exclude VAT, which is chargeable at the prevailing rate
3.4 For payments made by credit card, a card processing charge of 2% is applicable.
4.1 In the event that the Customer cancels the Course, the following charges will apply;
4.1.1 Greater than 30 days prior to the Course Date – no Fee will apply;
4.1.2 Between than 29 and 21 days prior to the Course Date – 33% of the total Fees are payable;
4.1.3 Between 20 and 14 days prior to the Course Date – 66% of the total Fees are payable;
4.1.4 Any cancellation received less than 14 days prior to the Course Date – 100% of the total Fees are payable.
4.2 Agility reserves the right to charge a reasonable administration fee for all cancellations.
4.3 Agility reserves the right to change the start time of any Course, the Course Date or to cancel any Course. Should this occur we will provide you with as much notice as possible and shall offer an alternative Course Date where possible. In the event of a cancellation no Fees are payable.
- DELEGATES AND NON-ATTENDANCE
5.1 If a Delegate fails to attend a Course the Fees shall remain payable and no refund will be given.
5.2 Delegates are expected to conduct themselves in a proper manner throughout the training. Agility reserve the right to remove a Delegate from a Course where, in the opinion of Agility, the Delegate is behaving unreasonably.
5.3 Delegates must comply with all applicable health and safety legislation, guidance, policies, instructions and codes of practice as imposed by Agility.
5.4 Agility gives no guarantee that any Delegate will pass any Course or gain any applicable certification for that particular Course. Each Delegate is responsible for their own performance.
5.5 Where a Delegate fails a Course and requires re-examination further fees may be payable together with reasonable administration fees.
5.6 Delegates must successfully complete the full course to qualify for any applicable certification.
- COURSE MATERIAL & CONTENT
6.1 All Course Materials are owned or used under license by Agility and Agility reserves all the rights in such Course Materials. Course Materials may not be copied, reproduced, republished, posted or transmitted except for a Delegate’s personal use.
6.2 Any scenarios, examples or questions covered or answered during a Course are for illustrative purposes only and do not constitute advice to the Customer or the Delegate and should not be relied upon in any circumstances.
6.3 Where a Delegate requires further advice relating to a Course, Agility shall be entitled to charge an extra fee for such additional services at an agreed rate.
- DATA PROTECTION
7.1 For the purposes of this clause, where terms and expressions used are not defined in this Agreement, they shall have the meaning assigned to them under Data Protection legislation.
7.2 The Service Provider shall, in performing its obligations under this Agreement, comply in all respects with the Data Protection Act 2018 (or any equivalent legislation in any applicable jurisdiction) and with the requirements of this clause;
7.2.1 take appropriate technical and organisational measures against the unauthorised or unlawful processing of the personal data and against actual loss or destruction of, or damage to, the personal data, having regard to the state of technological development and the cost of implementing any measures, and the measures must ensure a level of security appropriate to the harm that might result from unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the personal data; and
7.2.2 process the personal data only in accordance with this Agreement and any relevant instructions and having regard to the provisions of the Data Protection Act 2018 (or any equivalent legislation in any applicable jurisdiction), or as is required by law or any relevant regulatory body; and
7.2.3 refrain from disclosing the personal data to any third party or transferring the personal data outside the EEA except in accordance with the needs of the contract or on the basis that the parties agree for a relevant purpose.
- LIABILITY & INSURANCE
8.1 Nothing in this Agreement limits or excludes Agility’s liability for;
8.1.1 Death or personal injury caused by its negligence; or
8.1.2 Fraud or fraudulent misrepresentation; or
8.1.3 Breach of the terms implied by Section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
8.2 Subject to clause 8.1, Agility shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising from or in connection with this Agreement: (i) for any indirect or consequential loss of any kind, including but not limited to loss of profits, loss of sales or business or loss of anticipated savings; or (ii) arising directly or indirectly in connection with the Course; or (iii) arising from any delay in the delivery of, or failure to deliver, the Course.
8.3 If Agility’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors, consultants, or employees, the Agility shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.
8.4 Subject to this Clause 8, the total liability of the Agility for any other loss of the Customer in respect of any one event or series of connected events shall not exceed total Course Fees.
8.5 During this Agreement, the Agility and the Customer shall each maintain in force with a reputable insurance company, insurance sufficient to indemnify risks for which they may be responsible, including for their respective sub-contractors, agents and employees, in connection with the Services and shall on either party’s request, produce both the insurance certificate giving details of cover and a receipt for the current year’s premium.
- FORCE MAJEURE
9.1 Agility shall not, in any circumstances, be liable to the Customer for any delay or non-performance of its obligations under this Agreement to the extent that such non-performance is due to a cause affecting the performance by Agility of its obligations under this Agreement arising from acts, events, omissions or non-events beyond its reasonable control, including acts of God, riots, wars, acts of terrorism, fire, flood, storm or earthquake and any disaster.
- RECRUITMENT AND CONTROL OF STAFF
10.1 The Customer shall not for a period of 12 months after the Course Date, employ or solicit the employment of any of Agility’s employees, agents, sub-contractors or associate trainers who have been engaged in the provision of the Course 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.
10.2 In the event that the Customer is found to be in breach of clause 10.1 then the Customer shall pay Agility by way of liquidated damages an amount equal to, in the case employees, the value of the final gross annual emoluments (before statutory deductions and including bonuses and commissions) and in the case of agents, sub-contractors or associate trainers, an amount equal to the average annual payment made by Agility to its agents, sub-contractors or associate trainers. This provision shall be without prejudice to the other party’s right to seek injunctive relief.
- AGREEMENT AMENDMENTS
11.1 No amendment shall be enforceable unless agreed in writing by Agility.
12.1 This Agreement shall be construed in accordance with English law and the English courts shall have sole jurisdiction.
- DISPUTE RESOLUTION
13.1 The parties shall attempt, in good faith, to resolve any Dispute promptly by negotiation involving senior representatives of each party. If such a meeting is unsuccessful, any disputes not settled within one month must be referred to the Courts.