Terms of Business
1. Interpretation
1.1 In these terms of business (‘the Terms’) the following expressions shall be given the following meanings:
1.1.1 ‘The Client’ means any person, firm or corporation who approaches the Company with a view to engaging the Company.
1.1.2 ‘The Company’ means Kevin Earle Ltd T/A Earle Consultancy or any of its subsidiary, associated or holding companies.
1.1.3 ‘The Services’ means the agreement of the Company to provide to the Client Tender Support/Bid Writing (Work Winning) and which shall incorporate these terms.
1.1.4 ‘Fee’ means the sum agreed to be paid by the Client to the Company for the Services
1.2 In these Terms words importing the singular shall include the plural and vice versa and words importing the masculine gender shall include the feminine gender and vice versa.
1.3 All and any business undertaken by the Company is transacted subject to these Terms, all of which shall be incorporated in any agreement between the Company and the Client. In the event of any conflict between these Terms and any other terms and conditions, these Terms shall prevail unless expressly otherwise agreed in writing by a Director or other authorised officer of the Company. No variation in these Terms shall be valid if made without the written consent of a Director or other authorised officer of the Company.
1.4 The complete or partial invalidity of unenforceability or any provision herein for any purpose shall in no way affect the validity or enforceability of such a provision for any other purpose or the remaining provisions. Any such provisions shall be deemed to be severed for that purpose subject to such consequential modification as may be necessary for the purpose of such severance.
1.5 These Terms supersede all previous terms of business
2. Obligations of the Company
2.1 The Company shall provide the services to the Client subject to the provisions herein
2.2 The Services may be varied, or added to, from time to time and as agreed between the parties. Any changes shall be recorded and may result in additional fees to be paid by the Client.
2.3 The Company agrees to provide the Services to one Client only where the end user will or intends to appoint a single provider. However, the Company reserves the right to provide the Services to more than one Client where the end user intends, or is likely to appoint more than one provider.
2.4 The Company has no exclusivity with any Client or sector and reserves the right to provide the Services to multiple clients bidding in the same sectors
3. Obligations of the Client
3.1 The Client acknowledges and agrees that for the Company to be able to provide the Services the Client shall:
3.1.1 co-operate with the Company as the Company reasonably requires;
3.1.2 provide to the Company such information and documentation as the Company reasonably requires;
3.1.3 make available to the Company the facilities and resources that the Company reasonably requires from time-to-time; and
3.1.4 instruct the Client’s staff and agents to co-operate and assist the Company.
3.2 The Company may charge the Client for any additional reasonable costs and expenses incurred by the Company caused by the Client’s instructions, failure to provide instructions, or failure to comply with this clause.
4 Fees and payment
4.1 Payment of the Fee for the services shall be made within 28 days of the date of invoice.
4.2 All amounts stated are exclusive of VAT and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Client
4.3 If payment of the Fee is not received by any due date, the Company shall be entitled (without prejudice to any other rights or remedy):
4.3.1 to charge interest on the outstanding amount at the rate of 5% per annum above the base lending rate of National Westminster Bank, accruing daily;
4.3.2 to require that the Client make a payment in advance of any Services or part of the Services not yet made or supplied;
4.3.3 not to provide any further Services or part of the Services; or
4.3.4 not to provide any reports due on completion of the Services (until such payment is made).
4.4 All payments shall quote the Company’s invoice number and other reference numbers.
5 Protection of Confidential Information
5.1 Each party (‘Receiving Party’) shall keep the Confidential Information of the other party (‘Disclosing Party’) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the Confidential Information of the Disclosing Party for the purposes of performing the Receiving Party’s obligations under the agreement to provide the Services. The Receiving Party shall inform its officers, employees and agents of the
Receiving Party’s obligations under the provisions of this clause, and ensure that the Receiving Party’s officers, employees and agents meet the obligations.
5.2 The obligations of Clause 5.1 shall not apply to any information which:
5.2.1 was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Disclosing Party;
5.2.2 is, or becomes publicly available through no fault of the Receiving Party;
5.2.3 is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
5.2.4 was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the Confidential Information supplied by the Disclosing Party; or
5.2.5 is required to be disclosed by order of a court of competent jurisdiction.
5.3 This clause shall survive termination of this Agreement for a period of 6 years.
5.4 Further provisions relating to protection of Confidential Information may be dealt with in a separate agreement between the Company and the Client.
6 Warranties, liabilities and indemnities
6.1 The Company warrants that it will use reasonable care and skill in performing the Services.
6.2 The Company expressly does not warrant that any result or objective shall be achieved or be attained at all or by a given date.
6.3 The Company’s liability whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the Fee paid to the Company for the Services. The provision of this Clause 6.3 shall not apply to Clause 6.5.
6.4 Neither party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this Clause 6.4 shall not apply to Clause 6.5.
6.5 The Client shall indemnify and hold harmless the Company from and against all Claims and Losses arising from loss, damage, liability, injury to the Company’s employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Client by the Company, its employees or consultants, or supplied to the Company by the Client within or without the scope of the Services. ‘Claims’, shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and ‘Losses’ shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
6.6 Each of the Parties acknowledges that, by accepting these terms it does not do so in reliance on any representation, warranty or other provision except as expressly provided herein and any conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Nothing herein excludes liability for fraud.
7 Termination
7.1 Without prejudice to other remedies or rights, either Party may terminate the agreement to provide the Services at any time by written notice to the other Party (‘Other Party’) and the notice taking effect as specified in the notice:
7.1.1 If the Other Party is in material breach of its obligations and where a breach is capable of remedy within 21 days, the breach is not remedied with 21 days by the Other Party receiving notice which specifies the breach and requiring the breach to be remedied; or
7.1.2 If the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or take or suffers any similar or analogous action in consequence of debt.
8 Miscellaneous
8.1 The Company reserves the right to review and to revise these Terms without prior notice.
8.2 These Terms shall be governed by and construed in accordance with the laws of England and Wales.