These New Authorisation Terms and Conditions (“Terms and Conditions”) apply to the Services which Simply Biz Services Limited (“Simply Biz”) supplies to the Firm (“Firm”). A fully executed Engagement Form (Application for Membership) (“Engagement Form”) agreeing to the New Authorisation Service constitutes acceptance of the following Terms and Conditions. The fully executed Engagement Form and these Terms and Conditions shall be referred to herein as the “Contract”.

 

1. Definitions and Interpretation

 

1. 1. In these Terms and Conditions the following words have the following meanings:

 

“Applicable Laws” means (i) all applicable laws, statutes, regulations or subordinate legislation; (ii) all binding court order, judgement or decree; (iii) all guidance, industry code, policy or standard enforceable by law; (iv) all applicable direction, policy, rule or order made or given by any relevant regulator or relevant authority having jurisdiction over that party or any of that party’s assets, resources or business in any jurisdiction, from time to time, in each case applicable to or binding upon that party;

 

“Authorisation” means authorisation by the FCA under FSMA to carry out certain regulated activities and Firm’s inclusion on the Financial Services Register and the obtaining of a Firm Reference Number that uniquely identifies Firm. “Authorised” shall be interpreted accordingly;

 

“Authorisation Date” means the date upon which Firm is first permitted by the FCA to carry out regulated activities;

 

“Business Day” means any day other than a Saturday or Sunday, on which banks are open for business in London;

 

“Charges” means the sums to be paid by Firm to Simply Biz under this Contract;

 

“Commencement Date” means the date upon which the Contract comes into force, which unless otherwise agreed in writing, is the date Firm signs the Engagement Form;

"Confidential Information" means any and all information, documents and/or material of a confidential or sensitive nature (whether or not marked as such) in any form whatsoever relating to either party’s business, or the business of either party’s Group Companies, including but not limited to commercial, financial, marketing, operational or technical information, trade secrets, systems, processes and know how of either party which are disclosed by one party to the other in connection with the operation of the Contract, whether disclosed electronically, orally or in writing, and whether disclosed before on or after the date of the Contract;

 

“Contract” means the legally binding agreement between Simply Biz and Firm for the provision of the Services supplied by Simply Biz to Firm, incorporating the terms set out in a fully executed Engagement Form and these Terms and Conditions. For the avoidance of doubt, any marketing and other promotional material relating to the Services are for illustrative purposes only and do not form part of the Contract;

 

"Data Protection Legislation" means all applicable data protection, privacy and electronic marketing legislation, including the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, UK GDPR, and any codes of practice relating to the same. “UK GDPR” means Regulation (EU) 2016/679 as it forms part of the law of England and Wales by virtue of s.3 of the European Union (Withdrawal) Act 2018;

 

"Deliverable" means each element of the Services ordered by Firm under this Contract and to be supplied by Simply Biz and which may include introductory authorisations training, pre-application consultancy session, document review session, senior manager function training and supporting the preparation and sending of authorisation support package;

 

“Disclosing Party” means a party who provides Confidential Information or on whose behalf Confidential Information is provided;

 

“Expiry Date” means the date upon which the Contract ends which shall be the earlier of the Authorisation Date, and twelve (12) months after the Commencement Date. “Expiry” shall be interpreted accordingly;

 

“FCA” means the Financial Conduct Authority or any regulatory body which succeeds or replaces it;

 

“Force Majeure Event” means any event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, drought, lightning, earthquake or other natural disaster; war, insurrection, civil war, riot or civil unrest, terrorist attack, military operations or imposition of sanctions; acts or omissions of government or other appropriate body; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; denial of service or malicious technological attack; interruption or failure of material(s) or services required for performance of the Contract, trade blockage or embargo; strike, lockout or boycott or other industrial action except strikes or other industrial disputes involving either party’s workforce;

 

“FSMA” means the Financial Services and Markets Act 2000, as amended from time to time;

 

“Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled, professional and experienced person engaged in the same type of undertaking under such circumstances, complying with all Applicable Laws and consents and taking due account of any applicable guidance, codes of practice or other advice from any relevant authority;

 

“Group Companies” means in respect of a person, its Holding Companies, its Subsidiaries and the Subsidiaries of any of its Holding Companies from time to time (“Holding Company” and “Subsidiary” having the meanings set out in section 1159 Companies Act 2006;

 

“ICO” means the Information Commissioner’s Office;

"Intellectual Property Rights" means all intellectual property rights of any nature including: (a) copyright, patents, trade marks, trade names, domain names, database rights, computer software rights, rights in get-up, rights in goodwill, design rights, format rights, inventions, know-how, trade secrets, techniques and confidential information, customer and supplier lists and other proprietary knowledge and information (whether registered or unregistered); (b) applications and the right to apply for registration for any of the foregoing; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world in each case for their full term and together with any renewals or extensions;

 

“Recipient” means a party who receives Confidential Information or on whose behalf Confidential Information is received;

 

“Regulatory Authority” means any regulator or governmental or regulatory body, including but not limited to the FCA and the ICO which has responsibility for regulating the parties, or either of them and/or the Services;

 

“Representatives” in respect of a party means any of that party’s and any of its Group Companies’ respective officers, directors, employees, consultants, sub-contractors, agents and professional advisers and “Representative” means any of them;

 

“Services” means all the Deliverables to be supplied by Simply Biz to Firm under the Contract; and

 

“VAT” means value added tax or any other similar or equivalent tax chargeable on the sale of services, in the UK.

 

1. 2. Any reference in these Terms and Conditions to a statute, statutory instrument, rule, or regulation shall be construed as a reference to such statute, statutory instrument, rule, or regulation as amended, re-enacted or replaced from time to time.

 

1. 3. Where applicable, schedules form part of the Contract and shall have effect as if set out in full in the body of the Terms and Conditions.

 

1. 4. Any reference in these Terms and Conditions to another agreement, schedule or document shall be construed as a reference to that other agreement, schedule or document as amended or supplemented from time to time.

 

1. 5. Any reference in these Terms and Conditions to a clause, sub-clause, or paragraph shall be construed as a reference to a clause, sub-clause, or paragraph of these Terms and Conditions.

 

1. 6. The headings used in these Terms and Conditions are for reference purposes only and do not affect its interpretation.

 

1. 7. A reference to a “person” includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and any other legal or commercial entity or undertaking and its personal representatives, successors and permitted assigns.

 

1. 8. A reference to a “company” includes any company, corporation or other body corporate, wherever and however incorporated or established.

 

1. 9. A reference to a “party” or “parties” shall be to a party or parties to the Contract and includes that party’s personal representatives, successors and permitted assigns, as the context requires.

 

1. 10. A reference to “writing” or “written” includes e-mail.

 

1. 11. Unless the context requires, words indicating the singular shall include the plural and vice versa. Words indicating a gender shall include each gender.

 

1. 12. The words and phrases "including" and "in particular" shall be without limitation to the generality of any preceding words and any preceding words shall not be construed as being limited to a particular class where a wider interpretation of those words and phrases is possible.

 

2. Services

 

1. 1. The Contract will become legally binding on the Commencement Date.

 

1. 2. Subject to Firm paying the Charges to Simply Biz as set out in the Engagement Form and in accordance with clause 3, Simply Biz shall supply the Services in accordance with the Contract.

 

1. 3. It is agreed by the parties that Services shall be supplied by Simply Biz as a package and not as separate, individual Deliverables subject to separate and distinct Charges.

 

1. 4. Simply Biz shall not be liable for any delay in supplying the Services caused by Firm’s failure to perform its obligations under the Contract.

 

1. 5. Where certain Deliverables included in the Services are cancelled (“Cancelled Deliverable”), Firm is entitled to take up any substitute Deliverables offered by Simply Biz (“Cancelled Deliverable Substitute”) and such Cancelled Deliverable Substitute shall be offered as soon as practicable and in any event within thirty (30) days after the date the Cancelled Deliverable should have been delivered by Simply Biz (“Cancelled Deliverable Substitute Time Limit”).

 

1. 6. The Services (or any part thereof) and the Deliverables (or any part thereof) are supplied to Firm for its use only and Firm agrees not to use or attempt to use the Services (or any part thereof) and the Deliverables (or any part thereof) for any re-sale purposes or otherwise commercially exploit or make available to any third party the Services (or any part thereof), or the Deliverables or any part thereof.

 

1. 7. Except where expressly stated otherwise in the Contract or as required by Applicable Laws, no warranty, condition, undertaking or term, whether statutory, express or implied as to condition, satisfactory quality, performance, durability, fitness for purpose or otherwise is given or assumed by Simply Biz in relation to the performance of its activities and all such warranties, conditions, undertakings and terms are hereby excluded to the extent allowed by law.

 

3. Charges and Payment

 

1. 1. Simply Biz shall invoice Firm in accordance with the payment terms stated in the Engagement Form, including in accordance with the payment frequency set out therein.

 

1. 2. All Charges payable under the Contract are quoted exclusive of VAT and invoiced inclusive of VAT and shall be payable in pounds sterling.

 

1. 3. Firm shall pay the Charges to Simply Biz in accordance with the payment terms stated in the Engagement Form, including in accordance with the payment frequency set out therein.

 

1. 4. Any omission or delay by Simply Biz in invoicing the Charges shall not prohibit Simply Biz from raising an invoice at a later date in respect of the same, nor shall it relieve Firm of the liability to pay it.

 

1. 5. In the event that Firm has agreed to pay Charges in one lump sum, Firm shall pay Simply Biz’s invoice within thirty (30) days of the date of the invoice (“Lump Sum Payment Due Date”).

 

1. 6. In the event that the parties have agreed that Firm may pay Charges in instalments, Firm shall pay Simply Biz in accordance with the amounts and payment frequency set out in the Engagement Form (“Instalment Payment Due Date”).

 

1. 7. In the event that Firm fails to avail itself of any of the Deliverables or Services within the Contract Term and/or decides not to proceed with Authorisation, no refund of any Charges will be due to Firm.

 

1. 8. Simply Biz shall not be liable in the event that the FCA reject Authorisation of Firm and in such circumstances, no refund of any Charges will be due to Firm.

 

1. 9. In the event that the Contract is terminated by Simply Biz pursuant to clause 11.2, 11.3 or 11.4, no refund of any Charges will be due to Firm.

 

1. 10. Unless otherwise expressly stated in the Contract, or required by law, Firm shall pay all Charges and sums due under the Contract in full and without any set-off, counterclaim, deduction or withholding of any kind.

 

4. Unpaid Invoices

 

1. 1. Simply Biz shall be entitled to charge interest on any amount that is overdue for payment by Firm at a rate of two per cent (2%) above the base lending rate of Barclays Bank plc, unless the unpaid amount is the subject of a bona fide dispute. Interest shall accrue from thirty (30) days after Lump Sum Payment Due Date or Instalment Payment Due Date, as applicable, on a daily basis but shall not compound.

 

1. 2. Save where an invoice is the subject of a bona fide dispute, in the event that Firm fails to make any payment due to Simply Biz within thirty (30) days after the Lump Sum Payment Due Date or Instalment Payment Due Date, as applicable, (“Payment Default”), then without prejudice to Simply Biz’s other rights and remedies, Simply Biz may suspend the supply of Services to Firm until payment due has been received in full. For the avoidance of doubt, Simply Biz shall be under no obligation to supply Services to Firm whilst there is Payment Default by Firm. 

 

5. Firm’s Obligations

 

1. 1. Firm shall carry out all its responsibilities and obligations and avail itself of Services and Deliverables as specified in the Contract, in a timely manner.

 

1. 2. In the event that Simply Biz considers that Firm is in breach of any of its obligations, Simply Biz shall advise Firm in writing of the nature of the breach (“Simply Biz Breach Notification”) as soon as reasonably practicable. Firm shall remedy that breach within a period of thirty (30) days after being notified in writing to do so by Simply Biz.

 

6. Simply Biz’s Obligations

 

1. 1. Simply Biz shall provide and perform the Services in accordance with Good Industry Practice for the benefit of Firm.

 

1. 2. Simply Biz shall ensure that: (a) each of Simply Biz’s Representatives is suitably qualified, adequately trained and capable of providing the applicable Services in respect of which they are engaged; and (b) there is an adequate number of Simply Biz’s Representatives to provide the Services properly.

 

1. 3. In the event that Firm considers that Simply Biz is in breach of any of its obligations, Firm shall advise Simply Biz in writing of the nature of the breach (“Firm Breach Notification”) as soon as reasonably practicable. Simply Biz shall remedy that breach within a period of thirty (30) days after being notified in writing to do so by Firm.

 

7. Confidentiality

 

1. 1. Each party shall ensure that Confidential Information of the other party is kept confidential and shall not make or cause or permit to be made any use of or disclose any such Confidential Information except to the extent necessary to perform its obligations under the Contract, or as expressly permitted by these Terms and Conditions.

 

1. 2. The parties acknowledge and agree that nothing contained in the Contract shall be construed as granting or conferring any rights, by license or otherwise in any Confidential Information disclosed pursuant to the Contract, unless expressly agreed to in writing by the parties. All Confidential Information belonging to a party prior to the signing of the Contract shall remain the property of that party.

 

1. 3. Each party shall keep Confidential Information safe and secure and apply to it documentary and electronic security measures that match or exceed those the Recipient operates in relation to its own confidential information and will never exercise less than reasonable care.

 

1. 4. Each party may disclose Confidential Information to any of its Representatives, or to its Group Companies and their respective Representatives, ensuring that any and all Recipients of the Confidential Information are aware of the duty of confidentiality under this clause 7.

 

1. 5. Each party shall be permitted to disclose Confidential Information of the other party to the extent that it is required to do so by law or by any public, governmental, supervisory or Regulatory Authority or by any legally binding order of any court or tribunal given in any such case, provided that:
      1. it shall give the other party prompt notice of the disclosure (where lawful and practical to do so) so that the other party has sufficient opportunity, where possible, to prevent or control the manner of disclosure by appropriate legal means;
      2. the disclosure or use is limited strictly to those parts of the other party’s Confidential Information which are required to be disclosed pursuant to this clause; and
      3. each party shall use reasonable endeavours to ensure the Recipient of such Confidential Information is made aware that such information is confidential.

 

1. 6. The obligations and restrictions contained in this clause 7 shall not apply to any information which: (a) is publicly available; (b) is already known free of any restrictions at the time it is obtained, as evidenced by documentary evidence; (c) is subsequently learned from a third party free of any restrictions.; (d) can be demonstrated to have been developed by the Recipient independently of the Confidential Information disclosed to it by the Disclosing Party; or (e) the parties have agreed in writing shall not be subject to the obligations and restrictions contained in this clause 7.

 

1. 7. Each party acknowledges and agrees that damages alone would not be an adequate remedy for breach of this clause 7 by the Recipient. Accordingly, the Disclosing Party (or any of the Disclosing Party’s Group Companies) will be entitled, without having to prove special damages, to equitable relief (including injunction and specific performance) for any breach or threatened breach of such clauses by the Recipient.

 

8. Intellectual Property Rights

 

1. 1. Each party shall retain all interest, rights and entitlement to its own Intellectual Property. Neither party shall acquire any rights or licences to the other party’s Intellectual Property unless expressly provided under these Terms and Conditions or otherwise agreed by both parties in writing. The parties agree that nothing in the Contract shall assign or transfer to the other party, any Intellectual Property Rights owned by either party or any of its Group Companies.

 

1. 2. Neither party shall use any Intellectual Property of the other party or that party’s Group Companies without prior written consent.

 

1. 3. For the Contract Term, each party grants to the other party a free of charge, non-exclusive, non-transferable, non-sublicensable, royalty-free licence to make use of, and reference to, the other party’s name, trade or service marks for the performance and/or enjoyment of the Services and any such use shall comply with the other party’s instructions and any brand guidelines issued or notified to the other party from time to time.

 

1. 4. For the Contract Term and subject to Firm’s compliance with this clause 8, Simply Biz grants Firm a non-exclusive licence to use within the United Kingdom the Services and Deliverables (and any Intellectual Property Rights in the Services and Deliverables) solely for the Firm’s own purposes to the extent necessary to receive and use the benefit of the Services and Deliverables.

 

1. 5. Each party represents and warrants to the other that:
      1. it owns or is licensed to use all Intellectual Property Rights which it uses or exploits in the performance of its obligations under these Terms and Conditions;
      2. it has obtained all necessary permissions, consents, waivers and licences required from any third party (including all necessary or appropriate regulatory consents) in order for it to lawfully perform its obligations under these Terms and Conditions; and
      3. the use by the other party in accordance with these Terms and Conditions of any Intellectual Property Rights licensed by it in the performance of its obligations under these Terms and Conditions shall not breach the rights, including any Intellectual Property Rights, of any third party.

 

1. 6. Each party agrees that it will:
      1. not do anything or cause anything to be done which would prejudice the other party’s Intellectual Property Rights or damage or diminish the goodwill or reputation of the other party;
      2. save to the extent expressly permitted by the other party, not remove or alter any copyright notices or similar proprietary devices, including any electronic watermarks or other identifiers, that may be incorporated in any Deliverables (or any part thereof) made available to the other party;
      3. notify the other party as soon as it becomes aware of any improper or unlawful use or actual, alleged, threatened or potential infringement of the other party’s Intellectual Property Rights and shall, cooperate and assist the other party and/or any of its Group Companies with any claims or proceedings brought or threatened in respect of the other party’s Intellectual Property Rights; and
      4. not take any action which might invalidate the Intellectual Property Rights owned by the other party.

 

1. 7. Firm must:
      1. save to the extent expressly permitted by Simply Biz, not modify, alter, adapt, make error corrections to or in any way interfere with any Services (or any part thereof) and/or Deliverables (or any part thereof) provided or made available by Simply Biz or merge them with or incorporate them into other products, services, data, programs or systems or attempt to do any of these things;
      2. not assign, novate, sub-license, rent, lease, sell, pledge, charge, transfer or otherwise dispose of or grant rights over or out of any Services (or any part thereof) and/or Deliverables (or any part thereof) provided or made available by Simply Biz and will not attempt to do any of those things; and
      3. notify Simply Biz immediately if it becomes aware of any unauthorised use by any person of any Services (or any part thereof) and/or Deliverables (or any part thereof) provided or made available by Simply Biz.

 

9. Data Protection

 

1. 1. Each party and its respective Representatives shall comply with all applicable requirements under the Data Protection Legislation.

 

1. 2. Simply Biz agrees that in relation to Personal Data processed in connection with the Contract it shall:

1. 1. 1. process the Personal Data in accordance with the Contract and the Data Protection Legislation;
      2. process the Personal Data only so far as is necessary for the purpose of performing its obligations under the Contract;
      3. not disclose or allow access to Personal Data other than by its Representatives or third parties engaged to perform obligations in accordance with the Contract, and ensure that such Representatives or third parties are subject to written contractual obligations concerning the Personal Data which are no less onerous than those imposed by the Contract;
      4. take appropriate measures to ensure the security of Processing;
      5. assist the Controller in meeting its obligations under the Data Protection Legislation including in relation to the security of Processing, the notification of Personal Data breaches and data protection impact assessments;
      6. assist the Controller in providing subject access and allowing Data Subjects to exercise their rights under the Data Protection Legislation;
      7. only engage a sub-processor with the prior written consent of the Controller and a written contract between Processor and sub-processor;
      8. not transfer Personal Data outside the UK or the European Economic Area (EEA) without the Controller’s written consent and in the event that the Controller provides such consent, the Processor shall ensure that there are adequate measures in place to ensure that Personal Data is protected; and
      9. delete or return all Personal Data to the Controller as requested at the end of the Contract unless required by Applicable Laws to store the Personal Data.

 

10. Suspension of Services

 

1. 1. Simply Biz reserves the right to suspend Services to Firm in accordance with clause 4.2 (Payment Default).

 

1. 2. Simply Biz shall not be in breach of the Contract if and to the extent that it is exercising its rights of suspension in accordance with this clause 10 or as otherwise provided in these Terms and Conditions.

 

1. 3. Suspension in accordance with this clause 10 shall be without prejudice to any other rights and remedies that Simply Biz may have.

 

1. 4. Firm shall remain liable for Charges during any period of suspension pursuant to clause 10.

 

1. 5. Simply Biz shall as soon as reasonably practicable (a) notify Firm of the suspension and the reason for the suspension and its expected duration; and (b) reinstate access to Services, once the ground(s) for suspension no longer exist.

 

11. Term, Termination and Consequences of Termination

 

1. 1. The Contract shall commence on the Commencement Date and shall continue until the Expiry Date or until terminated in accordance with its terms (“Contract Term”).

 

1. 2. Without affecting any other rights or remedies available to it, a party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of these Terms and Conditions which breach is irremediable; or if such breach is remediable the other party fails to remedy that breach within a period of thirty (30) days from the date of a breach notification received under clause 5.2 or clause 6.3 as applicable.

1. 3. Without prejudice to the other provisions of the Contract, either party may terminate the Contract at any time with or without notice in the event that: (a) the other party is no longer able to carry out its business as foreseen by the Contract; (b) there is evidence of improper or fraudulent behaviour by the other party; or (c) the other party is the subject of an Insolvency Event.

 

1. 4. Without prejudice to the other provisions of the Contract, Simply Biz may terminate the Contract at any time with or without notice in the event that in its sole discretion and reasonable opinion, Firm acts in a manner that damages the reputation of Simply Biz or any of its Group Companies.

 

1. 5. Upon Expiry or termination of the Contract:
      1. Simply Biz shall immediately cease all further supply of the Services;
      2. all rights of access to and use of the Services by Firm shall immediately and automatically terminate;
      3. the licenses granted pursuant to clauses 8.3 and 8.4 shall immediately terminate and each party shall immediately cease the use of the other party’s Intellectual Property Rights;
      4. any sums due to Simply Biz from Firm shall become due and payable immediately;
      5. each party shall cease to use the other party’s Confidential Information;
      6. each party shall, save to the extent required by any Applicable Laws or by any applicable Regulatory Authority or retention for audit purposes, within a reasonable period of time:
         1. return or destroy (at the other party’s discretion) all Confidential Information and Personal Data provided to it by the other party, or its Group Companies and their respective Representatives which is in a tangible form (including, without limitation, hard copy documents of any kind) and shall procure the same of any of its Group Companies and their Representatives; and
         2. delete or make permanently unusable (at the other party’s discretion) all Confidential Information and Personal Data provided to it by the other party or its Group Companies and their respective Representatives which is stored in electronic form, whether or not on portable devices (including without limitation, portable memory sticks, CDs, and laptop hard drives) and shall procure the same of any of its Group Companies and their Representatives.

 

1. 6. Expiry or termination of the Contract shall not affect either party’s rights, remedies, obligations or liabilities that have accrued up to the date of Expiry or termination, under or in relation to the Contract. Any provision of the Contract which expressly or by implication is intended to come into force on or after Expiry or termination of the Contract, shall come into force. Any provision of the Contract which expressly or by implication is intended to remain in full force and effect on or after Expiry or termination of the Contract, shall remain in full force and effect.

 

1. 7. Other than as set out in the Contract, neither party shall have any further obligation to the other party under the Contract after its Expiry or termination.

 

12. Liability

 

1. 1. Nothing in the Contract will exclude or limit either party's liability in respect of: (a) death or personal injury caused by the negligence of that party; (b) fraud (including fraudulent misrepresentation); or (c) any liability which may not otherwise be lawfully excluded or limited.

 

1. 2. Subject to clause 12.1, each party’s total aggregate liability (including interest and costs) in contract, tort (including negligence), for breach of statutory duty, misrepresentation, restitution, or otherwise, arising in connection with its performance or contemplated performance of the Contract, or as a result of the liable party’s negligence or failure to comply with the terms of the Contract, shall be limited to the total amount of the Charges payable by Firm to Simply Biz under this Contract.

 

1. 3. Subject to clause 12.1, neither party shall be liable to the other in contract, tort (including negligence and breach of statutory duty) or otherwise for: (a) any loss of revenue, profit, business, anticipated savings, goodwill, reputation, contract, data, use of equipment or process or any wasted management time; or (b) any indirect, economic, special or consequential loss whatsoever.

 

1. 4. Clause 12.3 shall not prevent Simply Biz recovering: (a) the Charges; or (b) damages calculated on the basis of amounts due but not paid by Firm as a result of a breach of the Contract by Firm.

 

1. 5. Neither party will be in breach of the Contract or otherwise liable for any failure or delay in performing its obligations under the Contract if and to the extent that such failure or delay is the result of a Force Majeure Event.

 

1. 6. Nothing in this Clause 12 will be taken as in any way reducing or affecting a general duty upon a party to mitigate any loss suffered by it.

 

13. Dispute Resolution Procedure

 

1. 1. Save that nothing in this clause 13 will prevent a party from taking any actions in relation to the recovery of debts, in the first instance the following procedure shall be followed by the parties in connection with disputes which may arise between them:
      1. each party shall nominate a representative who will be authorised to deal with the management, negotiation and settlement of any dispute arising under or in connection with the Contract (“Nominated Representative”). Each party may change the identity of its Nominated Representative at any time during the Contract Term;
      2. each party shall refer any dispute that arises under or in connection with the Contract to its Nominated Representative appointed in accordance with clause 13.1.1, who shall be responsible for the escalation of the dispute within that party’s organisation and shall notify the other party’s Nominated Representative in writing of the reason for the dispute. (“Dispute Notice”). Any such notifications shall include a summary of the salient details of the relevant dispute;
      3. the parties’ Nominated Representatives shall meet in person or online within fourteen (14) days of the date of a Dispute Notice from the relevant Nominated Representative in order to agree a resolution to the dispute or action(s) required by each party in order to resolve the dispute;
      4. if any dispute has not been settled and/or a course of action for its settlement has not been agreed within twenty-eight (28) days of the date of the Dispute Notice, each party’s Nominated Representative shall procure that an alternative senior representative (“Alternative Senior Representative”) shall meet in person or online with an Alternative Senior Representative of the other party in order to seek a resolution of such dispute on one separate, further occasion. The parties shall procure that such meeting between each party’s Alternative Senior Representative takes place as soon as reasonably practicable, taking into account the timescale in which the matter in dispute should be resolved so as not to impede the performance of the Contract and in any event within forty-two (42) days of the date of the Dispute Notice;
      5. if a settlement does not result from the meeting held between the parties’ Alternative Senior Representatives and in any event within fifty-six (56) days of the date of the Dispute Notice, the parties will attempt to settle their dispute by mediation, in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure.  Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party will (a) serve notice in writing (“ADR Notice”) to the other party, requesting a mediation; and (b) send a copy of the ADR Notice to CEDR. The mediation will start no later than thirty (30) days after the date of the ADR Notice. The costs of mediation shall be shared equally between the parties;
      6. neither party will commence any court proceedings under clause 16 in relation to the whole or part of the dispute until ninety (90) days after service of the ADR Notice, provided that the right to issue proceedings is not prejudiced by a delay. The commencement of mediation shall not prevent the parties commencing court proceedings in relation to the dispute; and
      7. if the dispute is not resolved within sixty (60) days after service of the ADR Notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of sixty (60) days, or the mediation terminates before the expiration of the said period of sixty (60) days, the dispute shall be finally resolved by the courts of England and Wales in accordance with clause 16.

 

1. 2. All periods specified in clause 13.1 shall be extendable by written agreement of the parties.

 

1. 3. Each party shall act in good faith in its attempts to resolve its dispute with the other party.

 

14. Notice

 

1. 1. Any notice or other document required or permitted to be given under the Contract: (a) shall be in writing and in English; and (b) may be hand delivered, sent by first class, recorded post or other next Business Day delivery service.

 

1. 2. Any notice or other document to be delivered under the Contract shall unless otherwise agreed, be sent to the address specified on the Engagement Form, or to an address that the recipient party has notified to the other party in writing from time to time.

 

0. 3. Any notice or other document delivered under the Contract shall be deemed to have been received as follows:
1. if delivered by hand, on delivery;
2. if sent by first class, recorded post or other next Business Day delivery service, on the second Business Day after the date of posting.

 

1. 4. This clause 14 does not apply to the service of any legal proceedings, or where applicable, any other method of dispute resolution.

 

15. Miscellaneous

 

1. 1. The rights and remedies provided under these Terms and Conditions are cumulative and not exclusive of any rights and remedies provided by law or otherwise.

 

1. 2. Neither party may assign, transfer, mortgage, charge, sub-licence, sub-contract, delegate, declare a trust or deal in any other manner or otherwise dispose of or encumber the Contract or any of its rights or obligations under it, in whole or in part, without the other party’s prior written consent.

 

1. 3.  No variation of the Contract shall be effective unless agreed to in writing by each of the parties.

 

1. 4. No breach by any party of any provision of the Contract shall be waived or discharged except with the express written consent of the other party. 

 

1. 5. No failure or delay by any party in exercising any right, power or privilege under the Contract shall operate as a waiver of that right, power or privilege and no single or partial exercise by any party of any right, power or privilege shall preclude any further exercise of that right, power or privilege or the exercise of any other right, power or privilege.

 

1. 6. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.

 

1. 7. Any modification to or deletion of a provision or part-provision under clause 15.6 shall not affect the legality, validity and enforceability of the rest of the Contract, which shall remain in full force and effect.

 

1. 8. If any provision or part-provision of the Contract is deemed deleted under clause 15.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

1. 9. Nothing in these Terms and Conditions is intended to or shall operate to create a partnership between the parties, nor authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.

 

1. 10.  Except as expressly stated in these Terms and Conditions, the Contract shall not create nor confer any rights that shall be enforceable by anyone other than the parties to the Contract and, where applicable, their successors and permitted assigns pursuant to the Contracts (Rights of Third Parties) Act 1999.

 

1. 11.  The Contract constitutes the entire agreement between the parties on the subject matter of the Contract and supersedes and extinguishes all previous agreement, promises, assurances, warranties, representations, contracts, arrangements and understandings between them, whether written or oral, relating to its subject matter.

 

1. 12.  Each party acknowledges that in entering into the Contract it has not relied on and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Contract.

 

16. Governing Law and Jurisdiction

 

1. 1.  The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

 

1. 2.  The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).