Terms and Conditions
AGREEMENT FOR THE SUPPLY OF SERVICES
THIS AGREEMENT is made ….Date TBD
(1) Transaction Partnership Ltd. (registered number – 6440290, registered address – 219 Allerton Road, Mossley Hill, Liverpool. L18 6JL.)
(2) [TBD] (whose registered office/principal place of business is at [TBD] (“the Client”)
The Client has agreed to engage to provide the Services (as defined below) and has agreed to accept such engagement on the terms and conditions hereinafter contained.
NOW IT IS HEREBY AGREED as follows:
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Confidential Information” means this Agreement and all information obtained by one party from the other pursuant to this Agreement which is expressly marked as confidential or which is manifestly confidential or which is confirmed in writing to be confidential within 7 (seven) days of its disclosure
“the Consultants” means those employees and sub-contractors of Transaction Partnership Ltd engaged from time to time in providing the Services and any employees of any such sub-contractors who are so engaged
“the Developed Works” means any and all works of authorship and materials developed, written or prepared by Transaction Partnership Ltd, its employees, agents or sub-contractors in the course of providing the Services (whether individually, collectively or jointly with the Client and on whatever media) excluding any Pre-existing Works
“Intellectual Property Rights” means patents, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;
“the Pre-existing Works” means any materials or works existing prior to the creation of the Developed Works (including any identified in the Schedule) and which are supplied with the Developed Works;
“the Schedule” means the Schedule or Schedules attached to (and forming part of) this Agreement which set(s) out the scope of the Services and the applicable fees and charges
“the Services” means the services to be provided by Transaction Partnership Ltd. as set out in the Schedule and as otherwise provided by Transaction Partnership Ltd. pursuant to this Agreement.
Unless otherwise agreed in writing as a specific variation to this Agreement, these terms and conditions shall apply to the provision of all Services by Transaction Partnership Ltd. whether or not any change control process set out in the Schedule has been complied with.
3.1 This Agreement shall commence with effect from the date hereof and shall continue until completion of all Services subject to any prior termination pursuant to Clause 12.
3.2 In addition to the provision on termination in Clause 12, the Client shall be entitled to terminate this Agreement by such period of notice as is stated in the Schedule or 30 days’ notice (whichever shall be the longer period) in writing to Transaction Partnership Ltd. given at any time, provided that it pays Transaction Partnership Ltd. for all the Services provided up to the date of termination, and for all reasonable costs and expenses incurred by it by reason of such early termination.
3.3 In addition to the provision on termination in Clause 12, Transaction Partnership Ltd. shall be entitled to terminate this Agreement by such period of notice as is stated in the Schedule or 30 days’ notice (whichever shall be the longer period) in writing to the Client given at any time.
Transaction Partnership Ltd. shall provide the Services in accordance with any agreed Schedule.
5. TRANSACTION PARTNERSHIP LTD’S UNDERTAKINGS
5.1 Transaction Partnership Ltd. warrants and undertakes to the Client that:
5.1.1 Transaction Partnership Ltd. will have the necessary skill and expertise to provide the Services on the terms set out in this Agreement;
5.1.2 the Developed Works will, so far as they do not comprise pre-existing material originating from the Client, its employees, agents or contractors, be original works of authorship and the use or possession thereof by the Client
5.1.3 the Services will be provided in a timely and professional manner with reasonable skill and care. Transaction Partnership Ltd. will use its reasonable endeavours to achieve the estimated timescales in the Schedule and will conform to the standards generally observed in the industry for similar services;
6. CLIENT’S OBLIGATIONS
6.1 In addition to its obligations set out elsewhere in this Agreement the Client shall:
6.1.1 make available to Transaction Partnership Ltd. such office, computer and administrative support services as may be necessary for the provision of the Services under this Agreement;
6.1.2 ensure that its employees and any sub-contractors co-operate fully and promptly with Transaction Partnership Ltd. and the Consultants in relation to the provision of the Services and that such employees and any such sub-contractors will be qualified to carry out any tasks which they may be assigned;
6.1.3 promptly furnish Transaction Partnership Ltd. with such information and documents as it may reasonably request for the proper performance of its obligations hereunder and be responsible for ensuring that such information is true, accurate, complete and not misleading in any material respect;
6.1.4 obtain all third party consents, licences and rights reasonably required in order to allow Transaction Partnership Ltd. to perform the Services; and
6.1.5 put in place adequate security and virus checking procedures in relation to any computer facilities to which it provides Transaction Partnership Ltd. with access.
6.2 Should the Client fail to perform any of its obligations under this Agreement then Transaction Partnership Ltd. will not be responsible for any delay, cost increase or other consequences arising from such failure, and the Client shall reimburse Transaction Partnership Ltd. for any costs or expenses incurred due to such failure.
7.1 The parties shall each appoint a representative who shall have full authority to take all necessary decisions regarding the provision of the Services including the written variation of this Agreement.
7.2 Transaction Partnership Ltd. shall ensure that while any of the Consultants are on the Client’s premises they will conform to the Client’s normal codes of staff and security practice of which Transaction Partnership Ltd. is notified in writing by the Client.
8. OWNERSHIP OF RIGHTS TO THE DEVELOPED WORKS
8.1 All Intellectual Property Rights in the Pre-existing Works, the Developed Works and any programming tools, skills and techniques acquired or used by Transaction Partnership Ltd. in the performance of the Services shall vest in Transaction Partnership Ltd.
8.2 Transaction Partnership Ltd. hereby grants to the Client with effect from the date that payment in full for the Services has been received by Transaction Partnership Ltd. a perpetual, non-exclusive, non-transferable licence (without the right to grant sub-licences) to use:
8.2.1 the Developed Works; and
8.2.2 subject to any third party rights and restrictions, the Pre-existing Works
exclusively for the purpose(s) for which the Services are provided pursuant to this Agreement.
8.3 The provisions of this Clause shall survive the expiration or termination of this Agreement.
9. CHARGES AND EXPENSES
9.1 The Client shall pay Transaction Partnership Ltd. the charges for the Services at such rates or fees as specified in the Schedule.
9.2 Unless otherwise specified in the Schedule, Transaction Partnership Ltd. shall be entitled to vary annually any or all of such rates, provided that no such variation shall have effect unless and until 30 days’ written notice thereof is given to the Client.
9.3 Unless otherwise specified in the Schedule, Transaction Partnership Ltd. shall render monthly itemised invoices to the Client in respect of the said charges and shall show any Value Added Tax separately on such invoices. It is not the Client’s practice to issue purchase orders in respect of these charges.
9.4 All charges payable by the Client shall, subject as aforesaid be paid within 30 days from the date of Transaction Partnership Ltd. invoice therefore.
9.5 The Client shall reimburse Transaction Partnership Ltd. for all reasonable travelling and subsistence expenses properly incurred in providing the Services in accordance with the Schedule.
9.6 The charges payable under this Agreement are exclusive of Value Added Tax which shall be paid by the Client at the rate and in the manner for the time being prescribed by law.
9.7 If any sum payable under this Agreement is not paid by the due date, then (without prejudice to Transaction Partnership Ltd.’s other rights and remedies) Transaction Partnership Ltd. reserves the right to suspend the provision of the Services and/or charge interest on such sum on a day to day basis (as well after as before any judgement) from the date or last date for payment thereof to the date of actual payment (both dates inclusive) at the rate of 2 per cent above the base rate of Lloyds TSB Bank plc (or such other London Clearing Bank as Transaction Partnership Ltd. may nominate) from time to time in force compounded quarterly. Such interest shall be paid by the Client on demand by Transaction Partnership Ltd.
10. CONFIDENTIAL INFORMATION
10.1 Neither party shall use or divulge or communicate to any person (other than those whose province it is to know the same or with the authority of the other party) any Confidential Information of the other party which may come to that party’s knowledge in the course of providing the Services.
10.2 Each party shall ensure that its employees, agents and sub-contractors are aware of and comply with the confidentiality and non-disclosure provisions contained in this Clause.
10.3 If either party becomes aware of any breach of confidence by any of its employees, agents or sub-contractors it shall promptly notify the other party and give the other party all reasonable assistance in connection with any proceedings which the other party may institute against any such persons.
10.4 The provisions of this Clause shall survive the expiration or termination of this Agreement but the restrictions contained in sub-clause 10.1 shall not apply to any Confidential Information which:
10.4.1 comes into the public domain otherwise than through unauthorised disclosure by the disclosing party, its employees, agents or sub-contractors;
10.4.2 is already known to the disclosing party prior to the commencement of the Services;
10.4.3 is independently developed by the disclosing party;
10.4.4 is lawfully acquired from a third party who owes no duty of confidence to the disclosing party; or
10.4.5 is required by any court of competent jurisdiction or by a governmental or regulatory authority to be disclosed or where there is a legal right, duty or requirement to disclose.
11.1 Save as provided in Clause 11.2 below, neither party shall be entitled to assign or sub-contract any of its rights or obligations under this Agreement without the consent in writing of the other party, not to be unreasonably withheld or delayed.
11.2 Transaction Partnership Ltd. shall be entitled to engage the services of independent contractors of its own to assist it with its duties hereunder.
12.1 This Agreement may be terminated forthwith by either party on giving notice in writing to the other if the other party shall have a receiver or administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.
12.2 This Agreement may also be terminated forthwith by either party on giving notice to the other if the other party is in material breach of the terms of this Agreement and has failed to rectify such breach (in the case of a breach capable of being remedied) within 30 (thirty) days of receiving a written notice requiring it to do so.
12.3 Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
13. EFFECT ON TERMINATION
On the expiration or termination of this Agreement:
13.1 all rights and obligations of the parties under this Agreement shall automatically terminate except for such rights of action as shall have accrued prior thereto and any obligations which expressly or by implication are intended to come into or continue in force on or after such expiration or termination;
13.2 the Client shall pay Transaction Partnership Ltd. for all unpaid charges and reimbursable expenses accrued up to the date of expiration or termination;
13.3 Transaction Partnership Ltd. shall give the Client, at its request, all reasonable co-operation in transferring all sub-contracts made by Transaction Partnership Ltd. hereunder to the extent that sub-contractors approve and provided that Transaction Partnership Ltd. is fully released from its obligations in relation thereto;
13.4 each party will return to the other any property of the other that it then has in its possession or control.
14.1 Except in respect of injury to or death of any person or any other liability which cannot be limited or excluded by law (for which no limit applies), the aggregate liability of Transaction Partnership Ltd. under this Agreement for all claims shall not exceed the total amount of all sums paid to Transaction Partnership Ltd. by the Client in the 12 months preceding the date of any claim.
14.2 In any event Transaction Partnership Ltd. shall have no liability to the Client unless Transaction Partnership Ltd. shall have received notice of the same within 6 months of such cause of action accruing.
14.3 Notwithstanding anything else contained in this Agreement Transaction Partnership Ltd. shall not be liable to the Client for loss of profits or contracts, loss of goodwill, data, revenue, opportunity, or other special, indirect or consequential loss whether arising from negligence, breach of contract or howsoever.
14.4 Transaction Partnership Ltd. shall not be liable to the Client for any loss arising out of (and to the extent caused by) any failure by the Client to keep full and up-to-date security copies of the computer programs and data it uses in accordance with best computing practice.
15.1 In this Agreement:
15.1.1 reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted;
15.1.2 words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporate; and (in each case) vice versa;
15.1.3 any reference to a party to this Agreement includes a reference to his successors in title and permitted assigns;
15.1.4 the headings to the Clauses are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address in England as the recipient may designate by notice given in accordance with the provisions of this Clause. Any such notice may be delivered personally or by first class pre-paid letter or facsimile or email transmission and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by facsimile or email transmission when despatched.
17. FORCE MAJEURE
17.1 Notwithstanding anything else contained in this Agreement, neither party shall be liable for any delay in performing its obligations hereunder if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by any act or omission of the other party). Subject to the party so delaying promptly notifying the other party in writing of the reasons for the delay (and the likely duration of the delay), the performance of such party’s obligations shall be suspended during the period that the said circumstances persist and such party shall be granted an extension of time for performance equal to the period of the delay. Save where such delay is caused by the act or omission of the other party (in which event the rights, remedies and liabilities of the parties shall be those conferred and imposed by the other terms of this Agreement and by law):
17.1.1 any costs arising from such delay shall be borne by the party incurring the same;
17.1.2 either party may, if such delay continues for more than 8 weeks, terminate this Agreement forthwith on giving notice in writing to the other in which event neither party shall be liable to the other by reason of such termination ;
17.1.3 Both parties will in any event use all reasonable endeavours to mitigate the impact of any event of force majeure and to recommence performance of their obligations under this Agreement as soon as reasonably possible.
18.1 The parties will attempt in good faith to resolve any dispute or claim arising out of or in relation to this Agreement through negotiations between the respective representatives of the parties having authority to settle the matter.
18.2 In the event that the dispute or claim is not then resolved by negotiation within fifteen (15) days of referral to the respective representatives of the parties set out above then the parties shall attempt in good faith to resolve the dispute through mediation or another Alternative Dispute Resolution (“ADR“) procedure, whereby a neutral independent mediator is appointed by the parties to achieve a settlement of the dispute.
18.3 If the matter has not been resolved by an ADR procedure within twenty one (21) days of the initiation of such procedure (or such other period as may be agreed between the parties in writing) or if either party will not or ceases to participate in an ADR procedure, the parties agree that all disputes shall be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of the English Courts for such purpose.
19. POACHING OF CONSULTANTS
The Client undertakes that for the term of this Agreement and for a period of 1 (one) year thereafter, it will not, without the prior written consent of Transaction Partnership Ltd. employ, contract independently with, attempt to solicit or entice away from Transaction Partnership Ltd. any personnel who at any time have been engaged in the provision of the Services.
The Client agrees to act as a reference for Transaction Partnership Ltd., as follows:
20.1 Transaction Partnership Ltd. may include the Client’s name and logo on a general list of customers for marketing or promotional purposes;
20.2 The Client will provide input to and approve a contract win press release by Transaction Partnership Ltd.;
20.3 If requested by Transaction Partnership Ltd. and subject to a satisfactory project outcome, the Client may at its option provide input to and approve a Transaction Partnership Ltd. case study for publication by Transaction Partnership Ltd.;
20.4 If requested by Transaction Partnership Ltd. and subject to a satisfactory project outcome, the Client may at its option provide a reference letter which Transaction Partnership Ltd. may use for marketing or promotional purposes; and
20.5 If requested by Transaction Partnership Ltd. and subject to a satisfactory project outcome, the Client may at its option participate in occasional reference calls with prospective Transaction Partnership Ltd. customers or journalists.
21.1 Transaction Partnership Ltd. is an independent contractor and nothing in this Agreement shall render it an agent or partner of the Client and Transaction Partnership Ltd. shall not hold itself out as such. Unless authorised by the Client to do so, neither Transaction Partnership Ltd. nor the Consultants shall have any right or power to bind the Client to any obligation.
21.2 This Agreement constitutes the entire understanding between the parties concerning the subject matter hereof. No variation to this Agreement shall be effective unless agreed in writing and signed by the authorised representatives of the parties.
21.3 In the event of conflict between the terms of this Agreement and any Schedule the terms of the Schedule shall prevail.
21.4 This Agreement shall be governed by and construed in accordance with the laws of England.
21.5 No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach.
21.6 Each provision of this Agreement shall be construed separately and notwithstanding that the whole or any part of any such provision may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision in question shall continue in full force and effect.
22. THIRD PARTIES
The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
EXECUTED under hand in two originals the day and year first before written
SIGNED for and on behalf of
TRANSACTION PARTNERSHIP LTD.
SIGNED for and on behalf of