Standard Terms and Conditions for n+u consulting engagement

GENERAL TERMS

1. PROVISION OF SERVICES

1.1 The Customer hereby agrees to engage the Supplier and the Supplier hereby agrees to provide the services as detailed in the Specific Terms (the “Services”) to the Customer. The Supplier may, in its sole discretion, subcontract at any time any or all of its obligations under this Agreement to third parties. Unless otherwise agreed in writing, the Services shall be performed during the Supplier’s normal business hours (09.00 to 17.30, Monday to Friday excluding public and bank holidays).

1.2 The Customer shall comply in a timely manner with its obligations contained herein. The Customer acknowledges that the Supplier’s ability to fulfil its obligations in relation to the performance of the Services is dependent upon the Customer’s timely co operation with the Supplier as well as the accuracy and completeness of any information and data that the Customer provides to the Supplier.

1.3 The Customer shall provide the Supplier with access to, and use of, all information, data, documentation, computer time, facilities, working space, personnel and office services deemed necessary by the Supplier to enable the Supplier to perform its obligations hereunder.

1.4 The Customer shall be solely responsible for maintaining an external procedure for reconstruction of lost or altered files, data and programs to the extent deemed necessary by the Customer, and for actually reconstructing any and all such materials.

1.5 The parties agree that the Customer shall be deemed to have demonstrated acceptance of the Services unless the Supplier disputes, in writing, the delivery of the Services. Any services not disputed in writing within seven days shall be deemed as accepted by the Customer. All services seven days prior to the date of receipt by the Supplier of a written notice of dispute by the Customer, shall be deemed to have been accepted by the Customer. Upon acceptance of the Services, the Supplier shall be deemed to have discharged all of its obligations under this Agreement and the Supplier shall have no further liability whatsoever except for such liabilities as may be expressly provided herein as continuing thereafter.

1.6 The Customer shall be solely responsible for the management of any timetable for the delivery of the Services, and for the implementation of any resultant deliverables in which the Supplier’s personnel were involved in the performance of the Services hereunder.

2. DURATION This Agreement shall commence on the Commencement Date and shall continue in full force and effect for the period out in the Specific Terms (or for such longer period as may be agreed by the parties), unless and until earlier termination in accordance with the terms of this Agreement.

3. CHARGES AND PAYMENT

3.1 The Customer shall pay the charges and expenses in accordance with this Clause 3 and the Specific Terms (the “Charges”) together with any agreed additional charges. All Charges and any additional charges shall be exclusive of value added tax (“VAT”) which shall be added to invoices at the rate applicable at the date of invoice. The Customer shall pay all invoices for Charges in full within seven (7) days from the date of invoice.

3.2 Without prejudice to any other rights or remedies available to the Supplier, the Supplier shall be entitled to levy interest on any amount overdue at the rate of two per cent (2%) per annum above Barclays Bank plc’s base rate ruling from time to time (both before and after judgment) and to recover all costs and expenses incurred by the Supplier in collecting the amount unpaid and to terminate this Agreement forthwith on written notice to the Customer.

4. CONFIDENTIAL INFORMATION

4.1 Each party shall protect against any unauthorised disclosure of the information and data of the other party (or its agents or subcontractors) which is indicated to be confidential or proprietary or which by its nature is confidential or proprietary (“Confidential Information”) by using the same degree of care as it takes to preserve and protect its own confidential information but in no event shall this be less than a reasonable degree of care.

4.2 The receiving party agrees that disclosure and receipt of the Confidential Information shall oblige the receiving party not to use (and to procure that its employees, agents, representatives and any other third parties do not use) the Confidential Information except to perform its obligations hereunder.

4.3 A receiving party shall not be required to treat as confidential any information which is already in its possession, which becomes publicly available other than as a result of any breach of this Agreement by the receiving party, which is independently developed by it, or which is lawfully obtained from any third party without restriction on disclosure. Nothing in this Clause 4 shall prevent a party from disclosing confidential information where ordered to do so by a court or a statutory or regulatory body with power to order such disclosure.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 All copyright and other intellectual property rights existing prior to the Commencement Date shall vest in their originator absolutely.

6. WARRANTIES

6.1 The Supplier shall fulfil its obligations in relation to the performance of the Services using reasonable care and skill and in accordance with good industry practice.

6.2 Save as expressly provided in this Clause 6, all other conditions, warranties, terms, undertakings and representations of any kind whatsoever, express or implied, whether by statute, common law or otherwise, in respect of the Services are hereby excluded by the Supplier to the fullest extent permitted by law and the Supplier shall have no other obligation, duty or liability whatsoever in contract, tort, statute or otherwise to the Customer.

7. LIMITATION OF LIABILITY

7.1 The Customer agrees that it has accepted the terms and conditions of this Agreement in the knowledge that the Supplier’s liability is limited and that the prices and charges payable have been calculated so as to reflect such limitations and thus represent a reasonable and commercial allocation of risk between the parties.

7.2 This Clause 7 sets out the Supplier’s entire Liability to the Customer and all other Liability of the Supplier to the Customer is, subject to Clause 7.3, hereby excluded. 7.3 Notwithstanding any other provision of this Agreement, the Supplier does not exclude or limit liability for:

7.3.1 death or personal injury to the extent that such injury results from Breach of Duty or wilful default of the Supplier, its servants, agents or subcontractors; 7.3.2 any breach of undertaking as to title, quiet possession, and freedom from encumbrance implied by law, including (without limitation) any breach of the obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; 7.3.3 fraud or deceit; 7.3.4 claims arising under Part 1 of the Consumer Protection Act 1987;

7.4 The Supplier shall not have any Liability to the Customer in respect of any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise):

7.4.1 loss of profits or revenue;

7.4.2 loss of anticipated savings or of the use of money;

7.4.3 loss of business; 7.4.4 loss of goodwill;

7.4.5 loss of use or downtime;

7.4.6 loss of or corruption to data or other information or loss of or damage to software;

7.4.7 damage relating to the procurement by Customer of any substitute products or services; or

7.4.8 any, indirect, incidental, special or consequential loss or damage (whether or not such loss or damage is of the type specified in 7.5.1 to 7.5.7 above).

7.5 In this Agreement, “Breach of Duty” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).

7.6 In this Agreement, “Liability” means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with the entering into, performance, non-performance or wrongful performance of this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to “this Agreement” shall be deemed to include any collateral contract).

8. TERMINATION

8.1 Without prejudice to any other rights or remedies which either party may have against the other for the breach or non-performance of any of the terms of this Agreement, unless otherwise specified in the Engagement Letter, the whole or any part of this Agreement may be terminated by either party forthwith on 60 days notice in writing to the other party:

8.1.1 if the other party commits a material breach of this Agreement which either cannot be remedied or is not remedied within thirty (30) days after written notice requiring that it be remedied;

or 8.1.2 if the other party enters into liquidation, receivership, bankruptcy or other insolvency procedure, whether compulsorily or voluntarily, other than for the purposes of reconstruction or amalgamation.

8.2 Upon termination of this Agreement the Customer shall return to the Supplier all information and property (and all copies thereof) on any media belonging to the Supplier or received from any third party by the Supplier which is in the Customer’s possession or under its control and shall confirm in writing to the Supplier that it has complied in all respects with this Clause 8.2.

8.3 Upon termination of this Agreement the Customer shall pay the Supplier’s fees (and expenses incurred) for the 60 days notice period. Fees will be charged at the Supplier’s normal fee rate, without discount.

9. GENERAL

9.1 This Agreement constitutes the entire agreement and understanding of the parties, and any and all other previous agreements, arrangements and understandings (whether written or oral) between the parties with regard to the subject matter of this Agreement are hereby excluded.

9.2 No waiver, change or variation to this Agreement shall be valid unless in writing and signed by an authorised representative of each party.

9.3 The Supplier shall not be liable for any delay, interruption or failure in performance of its obligations under this Agreement due to unforeseen circumstances or causes beyond the Supplier’s reasonable control.

9.4 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

9.5 The order of precedence for any contractual correspondence or agreements regarding the Services shall be: a) this Agreement, then b) any attachments to this Agreement and then c) any Purchase Orders.

9.6 This Agreement shall be binding on and inure for the benefit of the successors in title of the parties to this Agreement. The Customer may not assign any rights or obligations under this Agreement without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed. The Supplier may assign this Agreement, and any of its rights, interests or obligations under this Agreement, in the Supplier’s sole discretion, to any direct or indirect wholly owned subsidiary of the Supplier, any direct or parent of the Supplier or any other affiliate of the Supplier.

9.7 This Agreement shall be governed by and construed exclusively in accordance with the law of England and Wales and the parties shall submit to the non-exclusive jurisdiction of the English courts.