GENERAL

1.1 In these Terms, unless the context otherwise requires:
“the Supplier” means Michael Hepburn Consultancy Limited;
“the Client” means the individual, firm, company or other organisation to which the Supplier provides the Services under the Contract;
“the Contract” means the contract between the Supplier and the Client for the provision of the Services, including these Terms;
“Deliverables” means any documents, data, diagrams, designs, reports, drawings, maps, plans or other images, computer programs, tapes, disks or other records of information in any form, or other products or materials, provided or to be provided by the Supplier in the course of providing the Services;
“Input Material” means any documents, data, diagrams, designs, reports, drawings, maps, plans or other images, computer programs, tapes, disks or other records of information in any form, or other materials, provided or to be provided by the Client for the purpose of or in connection with the Services;
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral 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 for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Proposal” means the Supplier’s proposal or quotation in relation to, or specification or description of, the services to be provided by the Supplier under the Contract, including any Deliverables;
“Services” means the services provided or to be provided by the Supplier to the Client, including any Deliverables, as described in the Proposal, and any additional services and/or Deliverables which the Supplier provides or agrees to supply to the Client;
“VAT” means Value Added Tax chargeable under English law for the time being and any similar or additional tax based on turnover;
A reference to writing or written does not include fax or e-mail.
1.2 In these Terms:
(a) the masculine shall include the feminine and neuter and the singular shall include the plural and vice versa;
(b) the headings, numbering and layout are for convenience only and shall not affect the interpretation of these Terms;
(c) reference to any statute or statutory provision shall include reference to any statutory modification or re-enactment of that provision for the time being in force, and includes any subordinate legislation made under it which is for the time in force.
1.3 Unless otherwise agreed in writing by the Supplier these Terms shall override any other terms stipulated or referred to in the Client’s purchase order, acceptance of the Proposal, confirmation of order or other document provided by the Client, or in any prior negotiations or course of dealing between the Client and the Supplier, or implied by law, trade custom or practice.

1.4 If any part or provision of these Terms is proved to be invalid or unenforceable, the remainder or remaining provisions of these Terms shall continue in full force and effect.

PROPOSAL AND PRICES

2.1 The Supplier may correct any typographical or other errors or omissions in the Proposal or in any brochure, promotional literature, website or other document, without any liability to the Client.

2.2 Unless otherwise specified by the Supplier, all prices stated in the Proposal are exclusive of any applicable VAT.

2.3 All prices stated in the Proposal are exclusive of travel, accommodation and other out-of-pocket expenses reasonably incurred by the Supplier in the course of providing the Services, which shall be reimbursable by the Client at cost together with VAT if applicable.

2.4 Unless otherwise specified in the Proposal, the Supplier may review and increase the prices under the Contract, not more than once in any six-month period. The Supplier will give not less than two months’ written notice to the Client of any such increase and if such increase is not acceptable to the Client it may terminate the Contract in accordance with clause 10.1 of these Terms.

2.5 The Supplier reserves the right to increase the prices under the Contract at any time to reflect any increase in the Supplier’s costs resulting from circumstances beyond its control (including, but not limited to, exchange rate fluctuations, currency regulation, alteration of duties, or increase in the cost of materials), or from the Client’s instructions or lack of instructions, or from the Client’s delay in providing or failure to provide Input Material, or from any inaccuracy or inadequacy in the Input Material.

SUPPLY OF SERVICES

3.1 The Supplier shall use reasonable endeavours to provide the Services to the Client in accordance in all material respects with the Proposal.

3.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Proposal but any such dates shall be estimates only, and time shall not be of the essence for performance of the Services.

3.3 The Supplier may at any time make any changes to the Services which are necessary to comply with statutory requirements, including (but not limited to) any applicable health and safety requirements, or which do not materially affect the nature or quality of the Services.

3.4 The Supplier shall, if applicable in connection with the provision of the Services, use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at the Client’s premises and that have been communicated to it under clause 4.4(b) of these Terms provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.

3.5 The Services provided by the Supplier under the Contract are provided for the sole use of the Client, and in the event that the Client passes on any Services or Deliverables to a third party, the Supplier shall have no liability to the third party in respect of such Services or Deliverables unless the Supplier has expressly agreed to this in writing in advance.

CLIENT’S OBLIGATIONS

4.1 The Client shall at its own expense provide to the Supplier, in a timely manner, any Input Material as specified in the Proposal or as otherwise reasonably required by the Supplier and ensure that all Input Material is accurate in all material respects.

4.2 The Client shall at its own expense retain duplicate or back-up copies of all Input Material and insure against its accidental loss or damage. The Supplier shall have no liability for any such loss or damage, however caused.

4.3 The Client shall co-operate with the Supplier in all matters relating to the Services.

4.4 The Client shall, if applicable in connection with the provision of the Services:
(a) provide the Supplier, its employees, agents, subcontractors and consultants, in a timely manner and at no charge, with access to the Client’s premises, office accommodation, data and other facilities, as reasonably required by the Supplier;
(b) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Client’s premises;
(c) be responsible (at its own expense) for preparing and maintaining the relevant premises for the supply of the Services, including identifying, monitoring, removing and disposing of any hazardous materials from its premises, and making all relevant risk assessments, in accordance with all applicable laws, and informing the Supplier of all of the Client’s obligations and actions under this clause;
(d) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the use of Input Material and the use of any equipment, systems, cabling or facilities provided or to be provided by the Client and used directly or indirectly in the provision of the Services, insofar as such licences, consents and legislation relate to the Client’s business, premises, staff, equipment, systems, cabling or facilities, in all cases before the date on which the provision of the Services is to start;
(e) keep, maintain in good condition and insure any equipment, systems, cabling or facilities provided or to be provided by the Client and used directly or indirectly in the provision of the Services, and not dispose of or use such any equipment, systems, cabling or facilities contrary to any written instructions or from the Supplier.

4.5 The Client shall reimburse to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Client in writing.

PAYMENT

5.1 Unless otherwise agreed in writing payments shall be made by the Client within 30 days of the date of the Supplier’s invoice. Payment shall be made in full, without any set-off or other deduction.

5.2 If the Client fails to make any payment by the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
(a) suspend performance of all Services until payment has been made in full; and/or
(b) charge interest on the amount outstanding at the rate for the time being applicable under the Late Payment of Commercial Debts (Interest) Act 1998 which shall accrue on a daily basis from the due date for payment until the date of actual payment (both before and after any judgment).

INTELLECTUAL PROPERTY RIGHTS

6.1 As between the Client and the Supplier, ownership of and all Intellectual Property Rights in any Input Material belongs to the Client. The Client warrants that any Input Material and its use by the Supplier in the course of providing the Services will not infringe the Intellectual Property Rights of any third party, and the Client shall indemnify the Supplier against any actions, proceedings, costs, claims, expenses and demands arising from any such infringement.

6.2 As between the Client and the Supplier, ownership of and all Intellectual Property Rights in any Deliverables shall belong to the Supplier. Subject to clause 6.3 of these Terms, and subject to payment in full to the Supplier of all sums payable under the Contract, the Client shall be entitled to use the Deliverables by way of licence free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and/or the Services. If the Supplier terminates the Contract under clause 10.2 of these Terms, this licence shall automatically terminate.

6.3 The Client acknowledges that, where the Supplier does not own any rights or materials comprised in the Deliverables, the Client’s use of such rights or materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Client.

6.4 Subject to clauses 6.1 and 6.3 of these Terms, the Supplier warrants that any Deliverables and their use by the Client in the Client’s utilisation of the Services will not infringe the Intellectual Property Rights of any third party, and the Supplier shall indemnify the Client against any actions, proceedings, costs, claims, expenses and demands arising from any such infringement.

CONFIDENTIALITY

7.1 The Supplier and the Client shall each treat as confidential all information which is disclosed to it or comes to its knowledge in the course of or in connection with the Contract and which relates to the business, finances, products or services of the other, or which is so designated by the other, or which is by its nature confidential, including any Input Material or other information provided by the Client to the Supplier and any technical or commercial know-how, specifications, inventions, processes or initiatives used by the Supplier in the course of providing the Services; but excluding information which is already in the public domain or which comes into the public domain through no fault of the other party.

7.2 Neither the Supplier nor the Client shall use information to be treated as confidential under clause 7.1 of these Terms for any purpose except the performance of its obligations under the Contract, and neither shall disclose any such information except to its employees, officers, representatives, professional advisers, agents or subcontractors who need to know such information for the purposes of carrying out obligations of the relevant party under the Contract, or as may be required by law.

7.3 The Supplier and the Client shall each ensure that its employees, officers, representatives, professional advisers, agents or subcontractors to whom information to be treated as confidential under clause 7.1 of these Terms is disclosed are made aware of its confidentiality and comply with clauses 7.1 and 7.2 of these Terms.

WARRANTIES AND LIABILITY

8.1 This clause 8 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Client in respect of:
(a) any breach of the Contract;
(b) any use made by the Client of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

8.2 The Supplier warrants that the Services will be provided using reasonable skill and care. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

8.3 Where the Services include as Deliverables goods obtained by the Supplier from a third party, the Supplier warrants that such goods have been chosen with reasonable skill and care, but gives no warranty, guarantee or other assurance as to their quality, fitness for purpose or otherwise. The Supplier shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the manufacturer of the goods and/or the person supplying the goods to the Supplier.

8.4 Nothing in these Conditions limits or excludes the liability of the Supplier:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Supplier; or
(c) in respect of goods comprised in any Deliverables, for any liability incurred by the Client as a result of any breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
8.5 Subject to clauses 8.3 and 8.4 of these Terms:
(a) the Supplier shall not be liable for loss of profits, loss of business, depletion of goodwill, loss or corruption of data or information, loss of anticipated savings, or any indirect, special or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to £1 million being the limit of cover under the Supplier’s professional indemnity in surance policy.

FORCE MAJEURE

9. The Supplier shall have no liability to the Client under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors

TERMINATION

10.1 Either the Supplier or the Client may terminate the Contract by giving to the other not less than one month’s prior written notice. If the Contract is terminated by either party giving notice under this clause the Supplier shall be entitled to payment for Services provided, including any Deliverables, to the date of termination, based on the prices stated in the Proposal or (if an apportionment is required) a fair and reasonable apportionment made by the Supplier.

10.2 Without prejudice to any other rights or remedies which it may have, either the Supplier or the Client may terminate the Contract immediately by written notice to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default for not less than seven days after such payment is demanded in writing, or
(b) the other party commits any breach of these Terms or any other term of the Contract and (if such a breach is capable of remedy) fails to remedy that breach within 30 days of that party being required by written notice to do so, or
(c) the other party ceases to carry on business, or suspends payment of its debts, or is unable to pay or admits inability to pay its debts as they fall due, or
(d) the other party goes into liquidation, becomes bankrupt, has a receiver appointed, or proposes or makes any composition or voluntary arrangement with its creditors, or
(e) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party.

10.3 On termination of the Contract for any reason:
(a) the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) each party shall return the other’s confidential information and any property of the other which is in its possession, custody or control, and shall not retain any copy, extract or duplicate of any such confidential information;
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

10.4 On termination of the Contract (however arising), the following provisions of these Terms shall survive and continue in full force and effect:
(a) Clause 6 (Intellectual Property Rights)
(b) Clause 7 (Confidentiality)
(c) Clause 8 (Warranties and Liability)
(d) This clause 10 (Termination)
(e) Clause 15 (Rights of Third Parties).

ENTIRE AGREEMENT AND VARIATIONS

11.1 The Contract constitutes the entire agreement between the parties relating to its subject matter, supersedes any previous agreement between the parties relating to its subject matter , and may not be varied except in writing signed by or on behalf of each of the parties by a person duly authorised for that purpose.

11.2 The Client 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 those contained or referred to in the Proposal and in these Terms.

11.3 Nothing in this clause 11 shall limit or exclude any liability for fraud.

SEVERANCE

12 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.

WAIVER

13 No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.

ASSIGNMENT

14.1 The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, or deal in any other manner with all or any of its rights nor subcontract or delegate all or any of its obligations under the Contract.
14.2 The Supplier may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent, and may at any time assign, transfer, charge, mortgage, or deal in any other manner with all or any of its rights under the Contract.

RIGHTS OF THIRD PARTIES

15 Unless otherwise expressly agreed between the Supplier and the Client, no person other than a party to the Contract shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract except as the permitted assignee of or lawful successor to that party; and the parties to the Contract may, by agreement, rescind the Contract or vary it in any way without the consent of any such person.

GENERAL

16.1 Neither party shall have authority to act as agent for, or to bind, the other party in any way, except with explicit written authorisation signed by or on behalf of the other party by a person duly authorised for that purpose.

16.2 Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered to the other party personally, or sent by pre-paid first-class post, or by commercial courier. A notice or other communication shall not be validly served if sent by fax or e-mail.

16.3 Any notice or other communication shall be deemed to have been duly received, if delivered personally, when left at the address of the intended recipient; if sent by pre-paid first-class post, 48 hours after posting; or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

GOVERNING LAW AND JURISDICTION

17 The Contract shall be governed by and construed in accordance with English law and the parties agree to submit to the non-exclusive jurisdiction of the English courts.