Terms of business

Parties

1) Plan Works Ltd, The Coach House, 1 Howard Road, Reigate, England, RH2 7JE

Background

The Client has requested and Plan Works Ltd has agreed to provide the financial services sector support set out in the ‘Welcome Pack’ provided alongside this document. From time to time this schedule may be amended or extended as agreed between The Client and Plan Works Ltd (“Specified Services”).

Operative Provisions

1) The Client hereby appoints Plan Works Ltd and Plan Works Ltd hereby agrees to be appointed to provide the Specified Services upon and subject to this agreement and the Terms of Business set out in the Appendix.

2) The Client will pay a fee for each of the Specified Services as shall be agreed by The Client and Plan Works Ltd or as set out in the fee schedule attached to this document or failing which at Plan Works Ltd.’s standard rates in force at the time (“the Fees”).

3) The Client acknowledges and agrees that the Specified Services are provided to The Client for the sole use of The Client in advising its own clients. Plan Works Ltd accepts no responsibility for any advice (including investment advice) given by The Client whether based on information or material provided in the course of provision of the Specified Services or not.  The Client hereby agrees to indemnify Plan Works Ltd from and against all claims, losses, damages or costs (including legal costs) incurred or suffered as a result of any action brought against The Client or Plan Works Ltd as a direct or indirect result of providing the Specified Services.  The Client shall maintain (and on request produce evidence of) professional indemnity insurance at a level sufficient to enable The Client to meet its obligations under this clause.

4) Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six weeks, the party not affected may terminate this Agreement forthwith by giving written notice to the other party.

5) Either party may terminate this Agreement forthwith by notice in writing to the other:

a. If the other commits a breach of this Agreement which in the case of a breach capable of remedy shall not have been remedied within 30 days of the receipt by the other of a notice from the innocent party identifying the breach and requiring its remedy;

b. If the other is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of the relevant party under this Agreement) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or being an individual suffers an event of bankruptcy, or takes or suffers any similar action which in the opinion of the party giving notice means that the other may be unable to pay its debts;

6) Upon the termination of this Agreement for whatever reason, each party shall deliver up to the other all confidential information, in whatever form, documents and copies thereof of the other and relating to the Specified Services which are in its possession or control at the time.

7) Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of this Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other and all provisions which are expressed to survive this Agreement shall remain in full force and effect.

Terms of business

1) Interpretation

    1.1. In these Terms words and expression shall have the same meaning given to them in the Agreement and:

“Agreement” means the agreement to which these terms are appended and any other contract for the provision of services howsoever made between Plan Works Ltd and the Client.

“Document” includes, in addition to a document in writing, any map, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any disc, tape or other device embodying any other data.

“Client material” means any Documents or other materials and any data or other information provided by the Client relating to Specified Services.

“Plan Works Ltd.’s Material” means any Documents or other materials and any data or other information provided by Plan Works Ltd relating to the Specified Services.

“The Charges” means the Fees and any other sum payable to Plan Works Ltd from the Client under the Agreement.

    1.2. The headings in these Terms are for convenience only and shall not affect their interpretation.

2) Formation of Contract

2.1. Plan Works Ltd may at any time without notifying the Client make any changes to the Specified Services which are necessary to comply with any applicable statutory requirements or which do not materially affect the nature or quality of the Specified Services.

2.2 Any quotation given by Plan Works Ltd is an invitation to the Client to appoint within 14 days of the quotation date Plan Works Ltd to provide the Specified Services in accordance with these Terms and any other special terms referred to in the quotation or accepted and agreed by Plan Works Ltd.

2.3. If the Client submits an instruction containing terms inconsistent with or purporting to override these Terms Plan Works Ltd.’s acknowledgement or acceptance of such instruction shall constitute a counter-offer on these Terms.

2.4. Plan Works Ltd reserves the right without any liability to the Client to refuse to provide the Specified Services if in its absolute discretion such provision would be unlawful, offensive or otherwise contrary to the public interest.

3) Payment

3.1. Subject to any special terms agreed, the Client shall pay the Fees and any additional sums which are agreed between Plan Works Ltd and the Client for the provision of the Specified Service or which, in Plan Works Ltd.’s sole discretion, are required as a result of the Client’s instruction or lack of instructions, the inaccuracy of any Client material or any other cause attributable to the Client.

3.2. Travel, accommodation and subsistence expenses incurred by Plan Works Ltd or its employees or other representatives in providing the Specified Services shall be invoiced separately by Plan Works Ltd (subject to such limits and other Terms as may be agreed between Plan Works Ltd and the Client from time to time).

3.3. All charges quoted to the Client for the provision of the Specified Services are exclusive of VAT but VAT will apply.

3.4. Plan Works Ltd shall be entitled to invoice the Client monthly or at other times agreed with the Client.

3.5. The Charges shall be paid by the Client without any set-off or other deduction and in the case of Fees and other sums within 14 days of the date of Plan Works Ltd.’s invoice. Time for payment is of the essence.

3.6. If payment is not made on a due date, Plan Works Ltd shall be entitled, without limiting any other rights it may have:

    3.6.1. To charge interest on the outstanding amount (both before and after any judgement) at the rate of 3% above the base rate from time to time of HSBC Bank Plc from the due date until the outstanding amount is paid in full.

    3.6.2. Without liability to the Client, to cease all further work on behalf of the Client whether under this or any other contract.

3.7. Where the Client requests and Plan Works Ltd agrees to provide services which are not part of the Specified Services then those services too will be chargeable as agreed or failing agreement, at Plan Works Ltd.’s standard rates from time to time.

4) Client Material and Plan Works Ltd.’s Material

4.1. The Client shall at its own expense supply Plan Works Ltd with all necessary Documents or other materials, and all necessary data or other information relating to Specified Services, within sufficient time to enable Plan Works Ltd to provide the Specified Services in accordance with the Agreement. The Client shall ensure the accuracy and completeness of all Client Material.

4.2. The Client shall at its own expense retain duplicate copies of all Client Material and insure against accidental loss or damage. Plan Works Ltd shall have no liability for any such loss or damage, however caused.

4.3. The property and any copyright or other intellectual rights in:

    4.3.1. Any Client Material shall belong to the Client.

    4.3.2. Any Plan Works Ltd Material shall remain vested in Plan Works Ltd but Plan Works Ltd shall subject to payment by the Client of the relevant charges (and so far as Plan Works Ltd is able) grant to the Client a non-exclusive royalty free license to use the relevant Plan Works Ltd.’s Material for the purposes only of the specific client for whom the Plan Works Ltd.’s Material was prepared and/or such other purpose as may be set out in the Services and Fees list attached to the Agreement.

4.4. The Client warrants that any Client Material and its use by Plan Works Ltd for the purpose of providing the Specified Services will not infringe the copyright or other rights of any third party, and the Client shall indemnify Plan Works Ltd against any loss, damages, costs, expenses or other claims arising from any such infringement or alleged infringement.

4.5. Each of Plan Works Ltd and The Client undertakes to the other to keep confidential all Plan Works Ltd Material or any Client Material (as the case may be) and all information concerning the other’s business and affairs which it may acquire as a result of the provision of the Specified Services and shall not use or disclose the same save for the purpose of the provision of the Specified Services. The provisions of this term shall not apply to any information that is in the public domain or that is already in the other’s possession other than as a result of a breach of this term.

4.6. Each of Plan Works Ltd and the Client shall abide by the Data Protection principles established in the Data Protection Act 1998 and if either party is in breach that party agrees that it shall indemnify the other in respect of any loss, costs, claims or damages incurred or suffered by the other party as a result of such breach.

5) Warrants and Liabilities

5.1. Plan Works Ltd warrants to the Client that the Specified Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with any specification referred to in the Services and Fees list referred to in the Agreement and at the intervals and within the times referred to in the said Services and Fees list. While Plan Works Ltd will use all reasonable endeavours to use up to date and accurate and comprehensive information and resources in the provision of the Specified Services, Plan Works Ltd does not accept any responsibility for the accuracy or completeness of any information provided to it or obtained from third party sources in good faith.

5.2. Plan Works Ltd shall have no liability to The Client for any loss, damage, costs, expenses or other claims for compensation arising from any Client Material or instructions supplied by The Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.

5.3. THE CLIENT’S ATTENTION IN PARTICULAR IS DRAWN TO THE PROVISIONS OF CLAUSE 5.3

    5.3.1. The following provisions set out Plan Works Ltd.’s entire liability (including any liability for the acts or omissions of its employees) to the Client in respect of:

            5.3.1.1. Any breach of its contractual obligations arising under the Agreement; and

            5.3.1.2. Any representation statement or tortious act or omission including negligence arising under or in connection with this Agreement.

    5.3.2. Any act or omission on the part of Plan Works Ltd falling within Term 5.3 shall for the purpose of this Clause be known as an “Event of Default”.

    5.3.3. Plan Works Ltd.’s liability to the Client for death or injury resulting from its own or that of its employee’s negligence shall not be limited.

    5.3.4. Subject to the limit set out in clause 5.3.5.1 Plan Works Ltd shall accept liability to the Client in respect of damage to the tangible property of the Client resulting from the negligence of Plan Works Ltd or its employees or sub-contractors.

    5.3.5. Subject to the provisions of Term 5.3.3 Plan Works Ltd.’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to:

        5.3.5.1 £50,000 in the case of an Event of Default falling within Term 5.3.4 and

        5.3.5.2 In the case of any other Event of Default at the option of Plan Works Ltd.’s reimbursement of the aggregate of the Charges paid by the Client hereunder in respect of the particular case, matter or piece of work carried out as part of the Specified Services in respect of which the Event of Default has occurred.

    5.3.6. Subject to Term 5.3.3 Plan Works Ltd shall not be liable to the Client in respect of any Event of Default for loss of profits or any type of special indirect or consequential loss (including loss or damage suffered by the Client as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Plan Works Ltd had been advised of the possibility of the Client incurring the same.

    5.3.7. If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this Agreement.

    5.3.8. The Client hereby agrees to afford Plan Works Ltd not less than 28 days in which to remedy any event of default hereunder.

    5.3.9. Except in the case of Event of Default arising under Term 5.3.3 Plan Works Ltd shall have no liability to the Client in respect of any Event of Default unless the Client shall have served notice of the same upon Plan Works Ltd within 3 months of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.

    5.3.10. Nothing in this Term 5.3 shall confer any right or remedy upon the Client to which it would not otherwise have been legally entitled.

5.4. Plan Works Ltd shall not be liable to the Client or be deemed to be in breach of the Contract for reason of any delay in performing, or any failure to perform, any of Plan Works Ltd.’s obligations in relation to the Specified Service, if the delay or failure was due to any cause beyond Plan Works Ltd.’s reasonable control.

5.5. Plan Works Ltd will use its best endeavours to comply with any agreed date or dates for the supply of the Specified Services but, unless otherwise expressly agreed, such date or dates shall constitute only statements of expectation and shall not be binding. Accordingly, the time of supply of the Specified Services shall not be of the essence and if Plan Works Ltd fails to supply the Specified Services by any specified date, such failure shall not constitute a breach of the contract and the Client shall not be entitled to treat the contract as thereby repudiated or to rescind it or any related Contract in whole or part or claim compensation for such failure or for any consequential loss or damage resulting therefrom.

5.6. Plan Works Ltd makes no representations as to the benefit to the Client arising out of the provision of the Services and there is neither expressed nor shall there be implied into the Contract between Plan Works Ltd and the Client any Terms or warranties as to the same.

6) General

6.1. These Terms (together with the Agreement) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.

6.2. These Terms and the Agreement shall be governed by and construed in all respects in accordance with English law and each of the parties irrevocably submits to the non-exclusive jurisdiction of the English courts.

6.3. No failure or delay on the part of either party hereto to exercise any right or remedy under these Terms or the Agreement shall be construed or operate as a waiver thereof nor shall any single or partial exercise of any right or remedy as the case may be. The rights and remedies provided in these Terms or the Agreement are cumulative and are not exclusive of any rights or remedies provided by law.

6.4. Any notice to be given under these Terms or the Agreement by either party to the other shall be in writing and shall be deemed duly served if delivered personally or sent prepaid registered post to the addressee at the address of that party shown above or such other address as the party to be served may have notified (in accordance with the provisions of this Clause) for the purposes of these Terms or the Agreement.

6.5. Any notice sent by prepaid registered post shall be deemed served 48 hours after posting to an address in the United Kingdom. In proving the service of any notice it will be sufficient to prove that the letter was properly stamped, addressed and placed in the post or delivered or left at the current address if delivered personally.

6.6. If any provisions of these Terms or the Agreement are held by any competent authority to be incompetent or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.

6.7. For the purposes of the Contracts (Rights of Third Parties) Act 1999, and notwithstanding any other provision of the Agreement or these Terms, neither the Agreement nor these Terms are intended to, and do not, give any person who is not party to the Agreement, any right to enforce any of its provisions.

7) Non-competition

7.1  Other than with the express consent of the Client, Plan Works Ltd will not knowingly divert or attempt to divert from the Client any business the Client has enjoyed, solicited, or attempted to solicit, from individuals or corporations.

8) Non-solicitation

8.1  Any attempt on the part of Plan Works Ltd to induce to leave the Client’s employment, or any effort by Plan Works Ltd to interfere with the Client’s relationship with its employees or other service providers would be harmful and damaging to the Client.

8.2  Other than with the express consent of the Client, Plan Works Ltd agrees not in any way directly or indirectly to:

    8.2.1     Induce or attempt to induce any employee or other service provider of the Client to quit employment or retainer with the Client.

    8.2.2     Otherwise interfere with or disrupt the Client’s relationship with its employees or service providers.

    8.2.3     Discuss employment opportunities or provide information about competitive employment to any of the Client’s employees or other service providers; or

    8.2.4     Solicit, entice, or hire away any employee or other service provider of the Client

8.3 The Client agrees with Plan Works Ltd in the same terms as those expressed in clauses 8.1 and 8.2 but with the position of the parties reversed.