Acceptance of this offer constitutes an Agreement made in England and subject to the laws of England and the sole jurisdiction of the courts of England between the Client and The Living Circle Ltd (“TLC”).
2. Payment Terms
All charges payable to TLC are due within 30 days from the date of the invoice. The Client agrees to pay and bear any sales, value-added, withholding, stamp duty or other similar taxes imposed by applicable law that the Client must pay based on the Services. Where applicable, the Client will reimburse TLC for any reasonable expenses related to the provision of any Services stated in the Agreement. Interest and compensation for debt recovery costs will be recovered on all overdue invoices, which have not been paid within 7 days of the invoice due date, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and amended.
If an invoice milestone is delayed for reasons attributable to the Client:
oon the date the invoice was due TLC shall submit an invoice for pro rata payment or reasonable costs incurred up to the date of the milestone and this invoice shall be payable in accordance with this Clause 2
othe remaining balance of the milestone shall be invoiced when the milestone is completed and shall be payable in accordance with this Clause 2.
The Client may request that TLC receive payment in respect of the Services from a third party. If so, the Client shall advise TLC in writing providing full details of the third party (including its relationship to the Client and an explanation why the third party agrees to make such payment on the Client’s behalf) and such other information as TLC may reasonably require. TLC may, in its absolute discretion, refuse to accept payment from the third party and any such refusal shall not release the Client from its payment obligations in respect of the Services. In the event TLC receives payment for the Services from a third party nominated by the Client, then the following shall apply:
(i)the Client remains responsible at all times for payment in respect of the Services on the terms set out in this Agreement and all interest due on any such payments, including any failure by that third party to pay TLC in accordance with this Agreement (whether such failure relates to timescales agreed in this Agreement or any other term of this Agreement);
(ii)at its discretion, TLC may re-issue any applicable invoice so that it identifies the third party making payment on behalf of the Client (although such invoice shall be addressed to the Client only and not to the third party);
(iii)in accepting payment from the third party, TLC accepts no obligation or liability whatsoever to that third party;
(iv)the third party shall have no right or entitlement under or in connection with this Agreement and shall not be entitled to exercise any right or entitlement of the Client under or in connection with this Agreement (whether solely or jointly with the Client); and
(v)the Client shall procure that the third party comply in all respects with the confidentiality provisions under this Agreement (to the same extent as they apply to the Client).
3. Rights Granted and Ownership
Upon payment for Services, the Client will have a perpetual, non-exclusive, non-assignable, royalty free licence to use for Client’s internal business operations, anything developed by TLC and delivered to the Client under this Agreement. The Client’s right to use any TLC’s trademark and/or logo is limited to such purposes; any other use requires the prior written consent of TLC. The Client may allow the Client’s agents and contractors to use the deliverables for the Client’s internal business operations and the Client is responsible for their compliance with the relevant terms of this Agreement. All relevant information resulting from the Services shall be described in one or more written reports which will be delivered to the Client. TLC retains ownership of and all intellectual property rights to anything developed and delivered under this Agreement.
4. Warranty, Disclaimer and Exclusive Remedy
TLC warrants that the Services will be provided with reasonable care and skill consistent with industry standards. The Client must notify TLC of any warranty deficiencies within 90 days from performance of the Services. For any breach of the warranty, the Client’s exclusive remedy, and TLC entire liability, shall be the re-performance of the deficient Services, or if TLC cannot substantially correct a breach in a commercially reasonable manner, the Client may end the relevant Services and recover the fees paid to TLC for the deficient Services.
To the extent permitted by law, this warranty is exclusive and all other warranties or conditions or terms whether express or implied are expressly excluded, including warranties or conditions of merchantability, satisfactory quality and fitness for a particular purpose.
5. Intellectual Property Rights Indemnity
If a third party makes a claim against the Client or TLC (as the case may be “Recipient”) that any information, specification, data, or material (“Material”) furnished by either TLC or the Client (as the case may be “Provider”) in the performance of the Services and used by the Recipient infringes the third party’s intellectual property rights, the Provider will indemnify the Recipient against the claim if the Recipient (i) notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by law); (ii) gives the Provider sole control of the defence and any settlement negotiations; and (iii) gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
If the Provider believes or it is determined that any of the Material may have infringed a third party’s intellectual property rights, the Provider may choose to either (i) modify the Material to be non-infringing, (ii) obtain a licence to allow for continued use of the Material, or (iii) if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of the applicable Material and refund any fees the Recipient may have paid for it. If an infringement claim materially affects TLC‘s ability to meet its obligations under the Agreement, then TLC may, at its option, upon 30 days prior written notice, terminate the Agreement. TLC will not indemnify the Client if (i) The Client alters the Material or uses it outside the scope of this
Agreement, if the infringement claim could have been avoided by using the unaltered version of the Material and/or (ii) to the extent that an infringement claim is based upon any information, specification, instruction, data, or material not furnished by TLC or the combination of Materials with any products or Services not provided by TLC. This clause provides the parties’ exclusive remedy for any infringement claims or damages.
By virtue of this Agreement, the parties may have access to information that is confidential to one another (“confidential information”). Both parties agree to disclose only information that is required for performance of obligations under this Agreement. Confidential information shall include the terms and pricing under this Agreement, and all information clearly identified as confidential or which otherwise can be reasonably considered to be confidential.
A party’s confidential information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (iv) is independently developed by the other party or (v) disclosed as required by any law or regulatory requirement.
Each party agrees to hold each other’s confidential information in confidence for a period of seven (7) years from the date of disclosure. Each party agrees to disclose confidential information only to those employees or agents who are required to protect it against unauthorised disclosure. Nothing shall prevent either party from disclosing the terms or pricing submitted under this Agreement in any legal proceeding in connection with this Agreement or disclosing the information as required by law.
If either party breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, the other party may terminate the affected Services under the Agreement.
Either party may terminate the Agreement upon written notice to the other party in the event that:
(i) a proposal is made for a voluntary arrangement of the other party or any other composition scheme or arrangement is made with its creditors or a shareholders’ meeting is convened where a petition is presented for the purpose of considering a resolution that it be wound up or a resolution for its winding-up is passed (other than as part of, and exclusively for the purpose of, a bona fide reconstruction or amalgamation) or a receiver, administrative receiver or similar officer is appointed over the whole or any part of its business or assets, or a moratorium comes into force or it is or becomes insolvent;
(ii) the other party undergoes a change in control within the meaning of section 416 of the Income and Corporation Taxes Act 1988.
Upon termination, the Client must pay, within 30 days, all charges and expenses which have accrued as well as all sums remaining unpaid for the Services received under this Agreement, plus related taxes and expenses. Provisions that survive termination or expiration include those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
8. Limitation of Liability
Nothing in this Agreement shall limit either party’s liability for personal injury or death caused by its negligence, or its liability in the tort of deceit or breach of condition 20 (Anti-Bribery). Neither party shall be liable for any indirect, incidental, special, punitive, or consequential damages, or any loss of profits, revenue, data, or data use. TLC’s maximum liability for any damages arising out of or related to this Agreement or Client’s order, whether in contract, tort, or otherwise, shall be limited to the greater of one thousand pounds (£1,000) or the fees paid and payable under this Agreement. The parties each confirm that all the exclusions and limitations of liability set out in this clause are fair and reasonable having regard to all the relevant circumstances.
If either party wishes to include any detailed results of the Services in any publicity it shall require the prior written consent of the other party. TLC shall have the right to make general references to the Services in press releases or promotional materials.
10. Force Majeure
Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; epidemic or pandemic; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either party may cancel unperformed Services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or the Client’s obligation to pay for the Services provided.
11.Third Party Rights
TLC is an independent contractor and each party agrees that no partnership, joint venture, or agency relationship exists between the parties. Each party will be responsible for paying its own employees, including employment related taxes and insurance.
A person who is not a party to this Agreement has no rights under the Contract (Rights of Third Parties) Act of 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party that exists or is available apart from that Act.
The Client may not assign this Agreement or give or transfer any Services deliverables or an interest in them to another individual or entity.
13. Client’s Responsibilities
The Client shall:
(i) supply to TLC, at its own expense, all samples, equipment, materials and/or information (“Client’s Property”) required by TLC in order to carry out the Services under the Agreement;
(ii) be responsible for ensuring that any Client Property supplied is accurate, in working order and free from defects of any kind and is supplied to TLC within sufficient time to enable TLC to provide the Services in accordance with this Agreement [as set out in the Proposal] and otherwise from time to time as requested by TLC;
(iii) ensure that any Client’s Property supplied to TLC for the performance of the Services complies with the requirements of UK Customs and Excise and any costs suffered or incurred by TLC resulting from any non-compliance shall be charged to and payable by the Client in addition to the charges;
(iv) provide or procure the provision of technical support in respect of any Client’s Property or components thereof from time to time as required in order to support the Services;
(v) when requested, provide instructions and feedback in a timely manner;
(vi) provide TLC’s employees, contractors and such other personnel involved in performing the Services, as identified by TLC, with training in the Client’s systems and equipment, including without limitation software, procedures, working methods and product introduction processes, as required for the satisfactory delivery of the Services. Such training will take place at TLC’s or the Client’s premises, as reasonably determined by TLC, at times agreed between the parties to meet the Services requirement and will be given in English. Any training materials and appropriate manuals will only be provided in English;
(vii) ensure and be responsible for the health and safety of TLC’s employees, contractors and personnel whilst on the Client’s premises and whilst using any of the Client’s systems or equipment, including without limitation Client’s Property, and whether on or off the Client’s premises; and
(viii) notify TLC promptly of any risk, safety issues or incidents arising in respect of the Client’s Property or in any processes or systems used at the Client’s premises.
On completion of the Services, the Client’s Property shall, unless otherwise agreed in writing, be retained by TLC for the period of two (2) months, during which time the Client may make arrangements for its collection. Should the Client not make such arrangements, TLC shall be entitled to dispose of the Client’s Property at the Client’s expense.
14. Delays, Access and Safety
The Client acknowledges that TLC’s ability to perform the Services, including to perform the Services within the charges stated in this Agreement, is dependent upon the Client’s fulfilment of its obligations to ensure the timely provision of and access to office accommodation, facilities, equipment, assistance, cooperation, complete and accurate information and data (including Client Property) from the Client’s officers, agents and employees and any other cooperation as reasonably required and as detailed in the Proposal (collectively, “Co-operation”).
TLC shall not be responsible for any delay caused by:
(i) the inadequacy, inaccuracy or the delay in provision of any Client Property or any other Co-operation;
(ii) TLC being unable to access premises where Services are being undertaken, including because it cannot ensure the health and safety of TLC’s employees, contractors and personnel whilst on the Client’s premises and whilst using any of the Client’s systems or equipment; or
(iii) any other matter which is outside the reasonable control of TLC, in the event of such delay the Client shall agree with TLC to an extension to the timetable as may be reasonable in all the circumstances and TLCs hall be entitled to charge the Client for any additional cost incurred due to the delay (including for the cost incurred due to a re-allocation of resources).
15. Change Control
Any request for any change in the Services must be in writing; the Client may at any time request, and TLC may at any time recommend, such change and propose an amendment to the Agreement. In respect of a change proposed by either party, TLC reserves the right to charge for the assessment it makes in reviewing the change request. Any such charges to be made by TLC will be agreed with the Client in advance. Costings for Services included in changes will be based on TLC’s daily rates. Unless the Client and TLC otherwise agree in writing, there shall be no presumption that the obligations undertaken by either party in connection with the Agreement are in any way changes to Agreement until the relevant amendment has been executed in writing.
TLC’s findings will be based on the documentation and factual information made available to it during the Services and such findings or results shall be TLC’s unbiased and independent assessment of the situation. As such, the findings contained within TLC’s report(s), or any other information provided by TLC to the Client in the performance of this work, is not intended to be used by the Client as ‘an endorsement’ of any of the Clients products or for comparison with any third party’s product
Export laws and regulations of the United Kingdom and any other relevant local export laws and regulations apply to the Services deliverables. The Client agrees that such export control laws govern its use of the Services deliverables (including technical data) and agrees to comply with all export laws and regulations. The Client agrees that no data, information or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
Unless specifically agreed otherwise in writing by the Client and TLC, the terms contained in any purchase order or any other form of contract document issued by the Client to TLC shall not apply in any way whatsoever to the performance of the Services except for the purposes of specifying the Client’s contract reference number(s) and the Client’s invoicing address(es).
19. Modern Slavery
(i) comply with the Modern Slavery Act 2015;
(ii) not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4 of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK; and
(iii) maintain in place throughout the term of this Agreement its own policies and procedures to ensure compliance with the Modern Slavery Act 2015.”
TLC and the Client shall:
(i) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
(ii) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 & 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; and
(iii) maintain in place throughout the term of this Agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate.
21. Entire Agreement
The Client agrees that this Agreement and the information which is incorporated into this Agreement by written reference is the complete Agreement for the Services ordered by the Client and that this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. Nothing in this Agreement excludes or limits either party’s liability for deceit or fraudulent misrepresentation. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. It is expressly agreed that the terms of this Agreement shall supersede the terms in any purchase order or other non-TLC document and no terms included in any such purchase order or other non-TLC document shall apply to the Services. This Agreement may not be modified and the rights and restrictions may not be altered or waived except in writing signed by authorised representatives of the Client and TLC. Any notice required under this agreement shall be provided to the other party in writing. Address for notices to The Living Circle Ltd, Carrick House, Lypiatt Road, Cheltenham, United Kingdom, GL50 2QJ Attention: Ian Davies, CEO.