Effective from 1st March 2015
Revisions to this policy without notice
1. How this agreement works and what it covers
1.1 This agreement applies to all past, present and future projects and any project-related services we provide in connection with those projects. It sets out the obligations we have to you, as a Client of Agnew Consulting Ltd, and the obligations you have to us. It is made up of:
- the general conditions set out below;
- the key terms of our agreement; and
- additional conditions.
Additional conditions include our interest rates and charges, other terms, and any contractual terms in Project Proposals or project-related documentation. We will tell you what the additional conditions are when you receive any project-related documentation including, but not limited to: any Project Proposal or project-related services. They may be set out on our website or in any form of communication including, but not limited to: email, telephone, fax and/or consultations.
1.2 This agreement applies to any services you ask us to provide for the purpose of an individual, business, club, charity, society, or other form of association. Any instructions received from you or your staff to carry out any work on your behalf which may or may not be related to any specified project or account shall amount to unconditional acceptance of the terms and conditions of this agreement.
1.3 In this agreement:
- “we”, “us”, “our” and “Company” mean Agnew Consulting Ltd and “Agnew Group” means us and any companies we totally or partly own at any time.
- “you”, “your” and “Client” mean any natural person or legal entity (for example a sole trader, company or partnership) operating an account or project with us, or instructing us to carry out work on their behalf. Where a project is operated by more than one person or has more than one account holder or signatory, “you” or “your” refers to any one, both or all of you, depending on the context.
2. Contacting each other
2.1 We will contact you electronically using the details you have given us. When we use the words “electronically” or “electronic” in this agreement we mean any form of message made through any electronic service that we provide to you or by any type of telecommunication, digital or IT device (including the internet, email and SMS). Certain forms of communication are not completely secure and you must take adequate precautions to ensure that others do not access, read or use your information without your consent. We are not liable if due to circumstances beyond our reasonable control, emails or SMS communications are intercepted, delayed, corrupted, not received, or received by persons other than the intended addressee, including emails or SMS communications sent by us to you or your professional advisers or agents in relation to our provision (or anticipated provision) of services to you.
2.2 It is your responsibility to ensure that we have your current contact details and the correct details for your key personnel who are authorised to access our services on your behalf. Where we are required to send information to you, by law we have to send it to the most recent address we have for you. If you do not tell us promptly about any change to your details, the security of your information could be at risk and you may not receive communications which could be important, including notices about changes to this agreement which may affect you.
2.3 You can contact us by post or telephone using the details we give you or by other electronic means if we agree that with you. We will tell you if our details change. If you send us an email, you should not assume we have received it unless we acknowledge or otherwise act on it.
2.4 We may record or monitor telephone calls and monitor electronic communications between us (including emails) for training purposes and so that we can check instructions and/or verify our dealings with you and make sure that we are meeting or service standards.
3. Giving Instructions
3.1 You can instruct us to:
- manage and coordinate projects; or
- provide services for a specified project; or
- provide objective advice and guidance; or
- take any other action on your projects and/or related business activities.
This condition explains how you can give us instructions and the steps we will take before we act on any instruction.
3.2 You can give us instructions by electronic methods that we agree with you, by telephone or in writing. We will make clear when you instruct us to carry out work on your behalf any additional terms and conditions that may apply.
3.3 If you authorise another person to give instructions on your projects or operate them for you (for example any officers or otherwise authorised signatories):
- We will deal with that person as if they were you for the purposes of this agreement. This means that the checks we carry out to make sure that instructions are genuine will be checks relating to the individual only and, where relevant, will require the use of Payment Instruments that are personal to them (and references to carrying out checks about you will include carrying out checks about that person). The authorised person must comply with your obligations under this agreement as if they were you.
- In the event that you have any right, claim or action against any authorised person arising from their actions on your projects or other business activities, you shall pursue such right, claim or action independently of, and without recourse to us. You will fully indemnify and defend us against all claims, liability, damages, costs and expenses, including legal fees, arising out of a breach of this agreement by any authorised person nominated by you or any unlawful use of the projects and/or project-related services with us by the authorised person. This provision shall apply to the extent that the authorised person’s use of your projects, or breach, is as a result of, or made possibly by, us breaking this agreement.
3.4 Before we will act on an instruction, we will take steps designed to check that the instruction is:
- genuine (in other words given by you);
- complete (in other words it contains all necessary information); and
3.5 We will treat an instruction as genuine if we are satisfied that any person acting on your behalf is authorised by you and we are satisfied that you are who you say you are when you give us instructions in person or by any other forms of communication including by email, by telephone, in writing and in person.
3.6 Except where we have agreed with you that we will use a specific payment system, we will request payment for our services through the payment system that we normally use for that type of payment.
3.7 We can refuse to act on any instruction if we reasonably believe that:
- by carrying out the instruction we might break the law, a regulation, code or other duty which applies to us; or
- any of the conditions set out in this agreement will not be met.
3.8 We can also refuse to act on any instruction or accept a payment if we reasonable believe that doing so might expose us (or another Agnew Group company) to action or censure from any government, regulator or law enforcement agency.
3.9 Before we carry out an instruction or accept a payment, we will consider whether doing so is likely to damage our reputation. If we reasonably believe that it may damage our reputation we will refuse to act on the instruction or accept the payment.
3.10 Unless the law prevents us from doing so, we will try to contact you to tell you if we refuse to act on any instruction, the reasons for refusing it and what you can do to put right any errors in the instruction. You can also contact us to find out why we have refused to carry out your instruction, and we may charge you if you request a written confirmation of this.
3.11 We may assume that the information given in an instruction is correct, unless we are aware of any obvious error. We will not be liable to you for any loss caused if you give us incorrect instructions.
4. Copyright and Intellectual Property Rights
4.1 We agree to grant you a non-exclusive, revocable, royalty-free license to use any materials specifically created for you as part of the services we provide. Agnew Consulting Ltd will retain full ownership of any materials resulting from our services including all copyrights and intellectual property rights. For the avoidance of doubt, the Company will own any accounts or properties registered on behalf of the client including, but not limited to: domain names, hosting accounts and social media profiles, unless an alternative agreement is specified in the Project Proposal or other project-related documentation. We reserve the right to revoke your license to use materials that we create for you, and properties that we have registered on your behalf, at any time, and at our absolute discretion.
4.2 If any third party intellectual property rights are used in the material we will ensure that we have secured all necessary consents and approvals to use such third party intellectual property rights for the provision of project-related services. For the purpose of this Clause “material” shall mean the materials, in whatever form, used by Agnew Consulting Ltd to provide the services and products, systems, processes, programs, documentation and information, in whatever form, produced by us pursuant to this agreement.
5.1 Agnew Consulting Ltd represents and warrants that:
- it will perform the Services with reasonable care and skill; and
- the services and the materials provided by us under this agreement will not infringe or violate any intellectual property rights or other right of any third party.
6. Limitation of Liability
6.1 The Company is engaged to perform the Services as specified in the Project Proposal as an independent professional, and neither the Company nor any person engaged on the provision of Services is under control of the Client.
6.2 To the extent it is lawful; the Client acknowledges that the Company accepts no responsibility for any wrongful negligent or unlawful acts, defaults or omissions of itself and of any such person whilst performing its Services.
6.3 To the extent it is lawful to exclude the following heads of loss and subject to the Client’s obligation to provide payment, in no event shall either Party be liable for any loss of profits, goodwill, loss of business, loss of data or any other indirect or consequential loss or damage whatsoever.
6.4 Nothing in this Clause 6 will serve to limit or exclude either Party’s liability for death or personal injury arising from its own negligence.
7. Term and Termination
7.1 Either Party may terminate this agreement upon notice in writing if:
- the other is in breach of any material obligation contained in this agreement, which is not remedied (if the same is capable of being remedied) within 30 days of written notice from the other Party to do; or
- a voluntary agreement is approved, a bankruptcy or administration order is made or administrative receiver is appointed over any of the other Party’s assets or an undertaking or a resolution or a petition to wind up the other Party is passed or presented (other than for the purposes of amalgamation or reconstruction) or any analogous procedure in the country of incorporation of either Party or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or making a winding-up order in respect of the other Party.
8. Relationship of the Parties
8.2 Both Parties reserve the right to acknowledge the respective Party on any materials or properties for marketing purposes including, but not limited to: domain names, websites, social media, online advertising and any other materials that may be used for marketing purposes. The Client agrees to acknowledge provision of Services performed by the Company in the form of Company branding and, where appropriate, links to the Company’s website on any materials provided by the Company, at the absolute discretion of Agnew Consulting Ltd.
- first class post, 2 days from the date of posting; or
- hand on the date of such delivery; or
- electronic mail, when the Party sending such communication receives confirmation of such delivery by electronic mail.
11. Our Responsibilities
11.1 The Services will be provided for the Client as specified in the Project Proposal, or as described in alternative materials provided by the Company, with reasonable care and skill, and so far as is reasonably practicable within any agreed timeframe.
11.2 Any further specific details, prioritisation, and time estimates for each piece of work will be as agreed between the Company and the Client from time to time. Progress reports will be provided by the Company to the Client as and when reasonably required.
11.3 Any Party may request in writing changes to the scope of the project and any related Services. Any such request must be sufficiently detailed to enable assessment of the effect of the requested change. No change will take effect until and unless agreed in writing and signed by all Parties.
11.5 The Company is engaged as an independent professional, with the ability to take ownership of the assignment, and answerable for key milestones and for deliverables, and responsible for exercising initiative as to the delivery of the Services. The Company is engaged on the basis that it shall not require, and a Contract does not give the Client the right of power to exercise or supervise direction or control as to the manner of performance or of the daily activities of the Company or any person engaged on the Services. Where projects are subject to the influence of external factors outside of the Company’s control, Agnew Consulting Ltd shall not be held accountable for the outcome of the project, and the Client may not withhold payment under any circumstances.
11.6 The Company is responsible for:
- providing its own reference materials, administrative support, and equipment where required (other than where use of the Client’s equipment is required for reasons of security, because it is specialised, or because the Client’s equipment is itself the object of the Services); and
- devising appropriate working strategies, and determining the method and manner of performance of the Services; and
- providing the Services independently, in a professional manner, with proper skill and care, and with all notified specifications and procedural requirements for the project; and
- maintaining and providing any necessary qualifications, authorisations, and training; and
- complying with all notified IT, telecommunications, security, and Health and Safety policies, and with any other relevant legislative requirements reasonably applicable to independent contractors; and
- giving the Client reasonable notice of any periods when Services will not be provided; and
- taking and being accountable for all appropriate decisions in relation to all aspects of the performance of the Services.
11.7 Where a Project Proposal names any personnel who are to provide the Services, or where the Client has a reasonable expectation that the Services will be primarily provided by a specific individual, the Company is responsible for maintaining reasonable continuity, but nevertheless reserves the right to substitute (and, if so required by the Client on reasonable ground, will substitute) other personnel of equivalent expertise.
11.7.1 The Company acknowledges that the Client has the right, under its contract with Agnew Consulting Ltd, to refuse to accept Services from any personnel on reasonable grounds related to security, qualifications or expertise.
11.7.2 In the event of substitution, no additional charge will be made for any handover period, and the Company remains responsible for defining the scope of (and, if any supervision and direction is required, for providing such supervision and direction of) the Services to be performed by the substitute, and in any event for all the Services performed on its behalf.
11.7.3 If the Company fails following a requirement from the Client to provide Services utilising substitute personnel reasonable acceptable to the Client within seven days of the requirement, either Party may terminate a Contract by immediate written notice.
12. Client Responsibilities
12.1 The Client has no responsibility for the Company or any other person engaged on the Services, other than:
- as specifically provided for under a Contract; and
- such responsibilities as are generally owned to the public at large.
12.2 The Client (and, where reasonably applicable, the Company) is responsible for:
- giving the Company such cooperation, information and access as are reasonably necessary for the proper performance of the Services; and
- informing the Company if on any day the Services are not required; and
- ensuring that all relevant Health & Safety policies, risks, information and relevant statutory compliance measures are disclosed to the Company; and
- affording the Company reasonable opportunity to rectify at its own cost and in its own time any defective Services.
13. Charges and Payment
13.2 If the Client fails to pay within 30 days of receipt of an invoice from the Company, Agnew Consulting Ltd reserves the right to enforce an interest rate of 2000% (APR) until payment is received.
14. Cancellation of Contract
14.1 The Contract may not be cancelled by the Client without the written consent of the Company. The Company reserves the right upon consent being given to levy a cancellation charge of not less than 100% of the Services which are the subject of the Contract.
15.3 Neither Party shall assign or transfer all or any part of its rights under this agreement without the consent of the other Party.
15.4 The Client acknowledges the Company’s right to amend this agreement for any reason, and any revised agreement shall apply to any past, present or future projects.
15.6 Neither Party shall be liable for failure to perform or delay in performing any obligation under this agreement if the failure or delay is caused by any circumstance beyond its reasonable control, including but not limited to acts of war, civil commotion or industrial dispute. If such delay or failure continues for at least 7 days, the Party not affected by such delay or failure shall be entitled to terminate this agreement by notice in writing to the other.