(1) "Terry Forsey": an Independent consultant and trading name of Terry Forsey Consulting Limited (Registered in England No 06648545) whose office is at Buckworth Barn, High Street, Gretton, Northamptonshire, NN17 3DF, UK
(2) "The Customer": The party to whom the Proposal is addressed and whose address is set out in the Proposal
1. Definitions and Interpretation
1.1.In this Agreement unless the context otherwise requires:
1.1.1 the Proposal means the detailed description of Professional Services as set out in a letter from Terry Forsey to the Customer.
1.1.2.Professional Services means the services as laid out in the Proposal.
1.1.3 Professional Standards means the code of practice as set out in the Proposal.
1.1.3.Documentation means any and all information in what ever format supplied under the terms of this agreement.
1.1.4.Intellectual Property Rights means the know-how which comprises the knowledge and expertise of Terry Forsey which is not in the public domain and which relates to the Professional Services; and all Terry Forsey's copyright, material or other intellectual property rights in the Professional Services and any third party rights in the same.
1.1.5. "the Commencement Date" means the date specified as such in the Proposal or as agreed thereafter.
1.1.6. "the Charges" means the fees for Professional Services as laid out in the Proposal.
1.1.7.the Term means the period specified in the Proposal calculated from the Commencement Date.
1.1.8.Working Hours means UK times 9 am to 5 pm Monday to Friday excluding all UK bank and public holidays and any other non-working days notified to the Customer in advance.
1.2.Words in the singular shall include the plural and vice versa
1.3.References to writing shall include any modes of reproducing words in a legible and non-transitory form
1.4.The Proposal forms part of this Agreement and has the same force and effect as if expressly set out in the body of this Agreement and any reference to this Agreement shall include the Proposal
1.5. References to statutes or statutory provisions includes the same as amended modified consolidated or re-enacted whether before or after the date of the Agreement
1.6.The headings to the clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.Any reference to a clause is unless otherwise stated to a clause in this Agreement.
2.1. This Agreement shall come into force and the Professional Services shall be provided from the Commencement Date and shall continue for the Term.
2.2.The Agreement shall continue in force and shall be renewed thereafter for further periods unless or until terminated in accordance with clause 10.
3. Terry Forsey's Obligations
3.1.In consideration of the Charges Terry Forsey shall provide such Professional Services and Documentation at the charging rates specified in the Proposal.
3.2.This Agreement shall be entered into without prejudice to any other agreements entered into by Terry Forsey and his other customers in respect of the provision of services.
3.3. Terry Forsey shall use his reasonable endeavours to notify the Customer of any delay in the delivery of Professional Services. Time is therefore not of the essence in this Agreement.
3.4. If agreed in writing by the parties, Terry Forsey shall render progress reports to the Customer at agreed intervals and progress meetings will be arranged to an agreed schedule.
4. The Customer's Obligations
4.1.The Customer shall be responsible for ensuring the accuracy of all information supplied to Terry Forsey in connection with this Agreement
4.2.In no circumstances shall Terry Forsey be liable for any loss cost or liability suffered or incurred by the Customer resulting from a failure to comply with the foregoing obligations
4.3.Any changes to the Proposal requested by the Customer shall be notified to Terry Forsey in writing. The Customer agrees that it will be responsible for any resulting increase in costs.
4.4.No order which has been accepted by Terry Forsey may be cancelled by the Customer except with the agreement in writing of Terry Forsey and on terms that the Customer shall indemnify Terry Forsey in full against all loss including loss of profit, costs including the cost of all labour and any materials used, damages, charges and expenses incurred by Terry Forsey as a result of cancellation.
4.5.The Customer agrees that it shall:
4.5.1.not assign, charge or otherwise deal with this Agreement without the prior written consent of Terry Forsey;
4.5.2.arrange appropriate insurance in respect of any equipment or material belonging to the Customer which is sited on Terry Forsey's premises;
4.5.3.indemnify and keep indemnified Terry Forsey against any and all claims, demands, loss, damage or liability (whether criminal or civil), legal fees and costs incurred as a result of material provided by the Customer to Terry Forsey in respect of the Professional Services.
5.Terry Forsey's Warranties and Liability
5.1.Terry Forsey warrants that he will provide the Professional Services to Professional Standards and with reasonable skill and care.
5.2.Except as stated above Terry Forsey offers no further warranty of any kind either express or implied including but not limited to warranties of satisfactory quality fitness for purpose title or non-infringement Provided Always that nothing herein shall exclude or limit Terry Forsey's liability for death or personal injury
5.3.In entering into this Agreement the Customer acknowledges that is has had adequate opportunity to evaluate the capabilities and references of Terry Forsey.
5.4.The Professional Services are supplied by Terry Forsey on the basis that they are for the sole use of the Customer for the agreed purposes as set out in the Proposal. If the Customer divulges any information provided as part of the Professional Services to any third party, the Customer indemnifies Terry Forsey against any loss and liabilities whatsoever which Terry Forsey may incur either at common law or by statute in respect of any loss or damage suffered by that third party by reason of any such information.
5.5.With the exception of death or personal injury caused by his negligence Terry Forsey will not be liable for any of the following losses which may arise by reason of any breach of the express terms of this Agreement or (to the extent that they have not been excluded above) any implied warranty condition or other term any representation or any duty of any kind imposed on Terry Forsey by operation of law:
5.5.1.Any loss of anticipated profits or expected future business;
5.5.2.Damage to reputation or goodwill;
5.5.3.Any damages costs or expenses payable by the Customer to any third party;
5.5.4.Loss of any order or contract;
5.5.5.Any consequential loss of any kind.
5.6.Unless otherwise provided in this Agreement the liability of Terry Forsey in respect of a breach of any express or implied term of this Agreement or any other duty of any kind imposed on Terry Forsey by law arising out of or in relation to this Agreement shall be limited to the reasonable cost of remedying any matter constituting such breach and in no circumstances shall Terry Forsey's liability exceed the total amount paid by the Customer to Terry Forsey pursuant to the terms of this Agreement.
6.1.The Customer shall fully and effectively indemnify and hold harmless Terry Forsey against all damages costs liabilities and any other sums incurred arising from a third party claim or threat of claim against Terry Forsey for loss injury or damage arising from the Customer's use of the Professional Services or the Documentation or in any way connected with a breach by the Customer of any of Customer's legal obligations or obligations under this Agreement.
7. Fees and Payment Terms
7.1.The Customer shall pay to Terry Forsey the Charges in accordance with the Proposal (plus any VAT payable thereon) by electronic bank payment within 7 days from the date of invoice.
7.2.The Customer shall pay all sums due under this Agreement in full without any discount deduction set off or abatement on any grounds.
7.3.All charges under this agreement shall be subject to VAT at the prevailing rate.
7.4.The customer agrees to reimburse Terry Forsey all legal costs incurred by Terry Forsey in connection with any legal proceedings taken by Terry Forsey against the Customer to recover sums outstanding under this agreement.
7.5.All invoices submitted by Terry Forsey shall be treated as agreed unless the Customer notifies Terry Forsey of any discrepancies within 14 days of the date of the invoice.
7.6. If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy Terry Forsey shall be entitled to charge the Customer monthly compound interest on the amount unpaid at the rate of 8% above Barclays Bank base rate from time to time accruing from day to day until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest)
7.7.Terry Forsey reserves the right on giving not less than 3 months' notice to change the fees for Professional Services with effect from any time after 6 months from the Commencement Date.
7.8. Any payments made under this Agreement shall not be refundable under any circumstances, including but not limited to the termination of this Agreement for whatever reason.
8. Intellectual Property Rights
8.1.The Intellectual Property Rights in the Documentation and the Professional Services shall vest solely in and remain with Terry Forsey. Terry Forsey grants to the Customer a non-exclusive perpetual licence worldwide in respect of such Intellectual Property Rights.
8.2.The Customer undertakes that it will not:
8.2.1.itself supply to a third party any part of the Documentation, provided to the Customer by Terry Forsey pursuant to this Agreement; or
8.2.2. make any copies of the Documentation other than for internal use unless Terry Forsey has given its prior consent in writing to such supply or copying.The Customer will, however, be entitled to make such copies of the Documentation, as it requires for internal use only;
8.2.3. make any changes to the documentation unless Terry Forsey has given its prior consent in writing to such changes.
8.3.Each Party shall promptly and fully notify the other of:
8.3.1.any actual, threatened or suspected infringement of the Intellectual Property Rights as described in clauses 8.1 and 8.2 which comes to its notice; and
8.3.2.any claim by any third party coming to its notice that the promotion or licensing of the Professional Services or the documentation infringes the right of any other person;
and each party shall at the request and expense of the other do all such things as may be reasonably required to assist the other in taking or resisting any proceedings in relation to any infringement or claim referred to in this clause.
9.1.The Customer shall:
9.1.1.keep confidential the Documentation, effect and maintain adequate security measures to safeguard the Documentation from access or use by any unauthorised person and in particular limit access to the same to those of its employees or agents who have a need to know; and
9.1.2.without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and Intellectual Property Rights in the Professional Services and the Documentation
9.2.Terry Forsey undertakes the same obligations, mutatis mutandis, as are detailed in clause 9.1 in respect of such intellectual property rights as are vested in the Customer.
9.3.Each Party agrees to treat as confidential and not at any time for any reason to disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any information and trade secrets relating to the other's business affairs or finances or any such information relating to the subsidiary, supplier, customer or client of the other except where knowledge or details of the information become public through no fault of that party.
9.4.The terms of this Agreement are confidential and each party agrees not to disclose the same to any third party other than its professional advisers or where disclosure is required by law.
10.1 At any time Terry Forsey may terminate this Agreement forthwith on giving 3 month's notice in writing to the Customer.
10.2.Terry Forsey may terminate this Agreement forthwith on giving notice in writing to the Customer if the Customer commits any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed within 30 days after the receipt of a request in writing from Terry Forsey so to do to remedy the breach (such request to contain a warning of Terry Forsey's intention to terminate)
10.2.1.in the event of such termination the Customer shall pay the remainder of the Charges due under the Agreement.
10.3.Either party may terminate this Agreement at the end of the Term (or at the end of any renewal period) on giving the other party 3 month's prior notice.
10.4.Within 30 days of the termination of this Agreement Terry Forsey shall provide the Customer with a final accounting statement and the sums detailed therein shall be payable within 7 days of the statement date.
10.5 In the event that this Agreement is terminated for whatever reason, no portion of any payments of any kind whatsoever previously made under this Agreement shall be owed or be repayable or refunded to Customer.
10.6.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.
11.1.The Customer shall not be entitled to assign sub-license or otherwise transfer the Agreement or any rights hereunder whether in whole or in part without the prior written agreement of Terry Forsey.
11.2.Terry Forsey may assign or sub license the Agreement to any associated company as defined in the Companies Act.
12.1.Terry Forsey shall not be liable to the Customer for any delay or failure by Terry Forsey to perform it's obligations under this Agreement or otherwise if such delay or failure arises from any unforeseen cause or causes beyond the reasonable control of Terry Forsey including but not limited to fire flood lightning explosion storm epidemic illness utility or communications failures strikes insurrection riots terrorism actions restrictions or orders of any government agency or public authority import or export restrictions impossibility of the use of transport or failure of power supplies.
12.2.The Customer hereby warrants to Terry Forsey that the Customer has not been induced to enter into this Agreement by any prior representations whether oral or in writing except as specifically contained in the Proposal and the Customer hereby waives any claim for breach of any such representations which are not so specifically mentioned.
12.3.Failure or neglect by Terry Forsey to enforce at any time any of these Conditions shall not be construed nor shall be deemed to be a waiver of Terry Forsey's rights hereunder nor in any way affect the validity of the whole or any part of these Conditions nor prejudice Terry Forsey's right to take subsequent action.
12.4.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.
12.5. This Agreement supersedes all prior agreements arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof.No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorised representative of each of the parties.
12.6.All notices to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in this Agreement. Any such notice may be delivered by email or personally or by first class pre-paid letter or fax 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 email or facsimile transmission when despatched.
12.7.If any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable such provision shall be deemed to be deleted with effect from the date of the Agreement and insofar as they remain capable of having effect the remaining parts of the provision in question and the other provisions of the Agreement shall continue in full force and effect notwithstanding such deletion.
12.8. This Agreement shall be governed by and construed in accordance with the laws of England and any dispute which may arise between the parties shall be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of the English Courts.
12.9.The provisions of clauses 8 and 9 shall survive the expiry or termination of this Agreement howsoever caused and shall continue thereafter in full force and effect.