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1. Definitions
and interpretation
1.1 In these Terms of Business and Contract
“Bookkeeper”
means Georgina Bradley Bookkeeping
“Business
Day” means any week day, other than a bank or public holiday in England;
“Business
Hours” means between 09:00 and 18.00 on a Business Day;
“Charges”
means the charges specified in the Contract / the Bookkeeper's Hourly Rate
multiplied by the number of person-hours spent by the Bookkeeper's personnel
performing the Services payable by the Customer to the Bookkeeper, which may
be varied from time to time after discussion with the Customer.
“Confidential
Information” means:
(a)
the Customer Materials;
(b)
all information supplied by the Customer to the Bookkeeper relating to the
Customer; and
(c)
any other information supplied by the Customer to the Bookkeeper (whether
supplied in writing, orally or otherwise) that is reasonably understood by
the Bookkeeper at the time of supply to be confidential;
“Customer”
means the customer for Services under the Engagement specified in the
Contract;
“Customer
Materials” means all works and materials provided by or on behalf of the
Customer to the Bookkeeper for use in the production of, or incorporation
into, the Deliverables;
“Deliverables”
means the work set out to be completed in the Contract;
“Effective
Date” means the date specified in the Contract in relation to the Engagement
“Engagement”
means the Contract between the Bookkeeper and the Customer for the supply of
Services and the delivery of Deliverables incorporating these Terms of
Business and Contract, and any amendments to such Contract from time to time;
“Force
Majeure Event” means an event, or a series of related events, that is outside
the reasonable control of the party affected (including hacker attacks, virus
and other malicious software attacks and infections, problems with software
or the internet or a part of the internet, power failures, industrial
disputes affecting any third party, changes to the law, disasters,
explosions, fires, floods, riots, terrorist attacks and wars);
“Personal
Data” has the meaning given to it in the Data Protection Act 1998;
“Services”
means the bookkeeping services supplied or to be supplied by the Bookkeeper
to the Customer under the Engagement, details of which are set out in the
Contract (or, to the extent that no such details are set out in the Contract,
details of which will be agreed between the parties acting reasonably from
time to time);
“Contract”
means the Contract document issued by the Bookkeeper to the Customer and
signed by or on behalf of each party detailing the scope of the Services and
other matters relating to the Engagement; and
“Term”
means the term of the Engagement.
1.2 In these Terms of Business, a reference to
a statute or statutory provision includes a reference to:
(a)
that statute or statutory provision as modified, consolidated and/or
re-enacted from time to time; and
(b)
any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the
interpretation of these Terms of Business.
1.4 In these Terms of Business, “persons”
include companies, partnerships, limited liability partnerships,
unincorporated associations and trusts.
1.5 The ejusdem generis rule is not intended to
be used in the interpretation of these Terms of Business.
2. Engagement
The
Engagement will come into force on the Effective Date and will continue in
force indefinitely, unless and until terminated in accordance with Clause 11.
3. Services
3.1 The Bookkeeper will supply the Services to
the Customer and deliver the Deliverables to the Customer in accordance with
the terms of the Engagement.
3.2 The Bookkeeper may suspend the provision of
the Services and/or withhold the Deliverables if the Customer fails to pay by
the due date any amount due to the Bookkeeper in respect of the Engagement.
3.3 The Bookkeeper may sub-contract the
provision of the Services without the prior written consent of the Customer;
providing that if the Bookkeeper does sub-contract the provision of Services,
the Bookkeeper will remain liable to the Customer for the performance of the sub-contracted
obligations.
3.4 From time to time during the Term the
Bookkeeper may be unable to supply the Services by reason of personnel
illness or personnel shortage, in which case:
(a) the Bookkeeper will use reasonable
endeavours to engage alternative personnel to supply the Services; and
(b) subject to the compliance of the Bookkeeper
with Clause 3.4(a) , the Bookkeeper will not be in breach of the terms of the
Engagement by virtue of any failure to supply Services arising out of such
inability.
3.5 In the performance of the Services at the
Premises, the Bookkeeper shall comply with all reasonable health, safety and
security policies and regulations advised to the Bookkeeper by the Customer.
4. Customer
obligations
4.1 The Customer will promptly provide to, or
procure for, the Bookkeeper any:
(a) instructions, co-operation and support;
(b) files, information and documentation;
(c) third party co-operation; and
(d) governmental, legal or regulatory licences,
consents or permits;
reasonably
necessary to enable the Bookkeeper to discharge its obligations under the
Engagement.
4.2 The Customer will be responsible for
ensuring that all instructions and all files, information and documentation
reasonably required by the Bookkeeper in connection with the Engagement are
supplied to the Bookkeeper:
(a) at or before the start of the relevant
period specified in the Contract; or
(b) where no relevant period is specified in
the Contract, at least a reasonable time before the relevant filing deadline
or other applicable deadline,
and
the Bookkeeper will have no responsibility to meet a filing deadline or other
applicable deadline where the Customer does not fulfil its obligations under
this Clause 4.2.
4.3 The Customer will:
(a) be responsible for ensuring the health and
safety of the Bookkeeper's personnel, agents and subcontractors whilst they
are at the Customer’s Premises;
(c) maintain the Premises in good order for the
supply of Services, and in accordance with all applicable laws;
(d) inform the Bookkeeper of all health and
safety rules and regulations and any reasonable security requirements that
apply at the Premises; and
(e) maintain reasonable insurance cover for the
Bookkeeper's personnel, agents and subcontractors whilst they are working at
the Premises (including reasonable public liability insurance)
4.4 The Customer grants to the Bookkeeper a
worldwide, royalty-free, non-exclusive licence to use the Customer Materials
during the Term solely for the purposes of the Engagement.
4.5 The Customer warrants and represents that
the Customer Materials, and their use by the Bookkeeper in accordance with
the terms of the Engagement, will not infringe the intellectual property
rights or other legal rights of any person, will not be illegal or unlawful
under any applicable law, and will not give rise to any cause of action
against the Bookkeeper or any other person in any jurisdiction.
4.6 The Customer hereby indemnifies and
undertakes to keep indemnified the Bookkeeper against any losses, damages,
claims, obligations, liabilities, costs and expenses (including legal fees
and costs and expenses incurred in investigating, |
preparing,
defending or prosecuting any litigation, claim, proceeding or demand) arising
out of or in connection with any breach by the Customer of the warranty in
Clause 4.5.
5. Assignment
of rights
5.1 The Bookkeeper will (and hereby does)
assign to the Customer all of its existing and future copyright and other
intellectual property rights in the Deliverables.
5.2 The assignment in Clause 5.1
(a)
is for the full term of the intellectual property rights, including all
extensions, renewals, reversions and revivals; and
(b)
includes the right to bring proceedings for any infringement of the
intellectual property rights pre-dating their assignment.
6. Charges
and payment
6.1 The Customer will pay the Charges to the
Bookkeeper in accordance with the provisions of this Clause.
6.2 The Bookkeeper will issue an invoice for
the Charges to the Customer from time to time during the Term, on or after
the dates set out in the Contract and at any time after the relevant
Deliverables have been delivered to the Customer.
6.3 The Customer will pay the Charges to the
Bookkeeper within the number of days stated on the invoice from the date of
issue of an invoice issued in accordance with the Contract.
6.4 Unless the context requires otherwise, all
amounts stated in the Contract or in relation to the Engagement are exclusive
of all value-added taxes which will be added to those amounts and payable by
the Customer to the Bookkeeper.
Georgina Bradley Bookkeeping VAT registration number 103 4653 48.
6.5 Charges must be paid by bank transfer,
cheque, card or cash (using such
payment details as are notified by the Bookkeeper to the Customer on the
invoice.)
6.6 If the Customer does not pay any amount
properly due to the Bookkeeper in connection with the Engagement, the
Bookkeeper may:
(a) charge the Customer interest on the overdue
amount at the rate of 4% per month above the base rate (which interest will
accrue monthly until the date of actual payment) as well as an administration
charge of £18 per month; or
(b) claim interest and statutory compensation
from the Customer pursuant to the Late Payment of Commercial Debts (Interest)
Act 1998.
6.7 The Bookkeeper may elect to vary the
Charges / Hourly Rate by giving to the Customer not less than 30 days' notice
of the variation.
7. Warranties
7.1 The Customer warrants to the Bookkeeper
that it has the legal right and authority to enter into and perform its
obligations required by the Engagement.
7.2 The Bookkeeper warrants to the Customer
that:
(a) it has the legal right and authority to
enter into and perform its obligations required by the Engagement;
(b) the Services will be performed with
reasonable care and skill and in accordance with generally accepted practices
and accounting and administration standards with sufficient expertise and
competence;
(c) it has, and will maintain, professional
indemnity insurance cover for the duration of the Engagement;
(d) it will handle all Customer Materials,
Deliverables and materials otherwise related to the provision of the Services
with reasonable care;
(e) it will keep all Customer Materials and
Deliverables that may be in the Bookkeeper's custody from time to time
separate from its other files, and will ensure that those Customer Materials
and Deliverables are easily identifiable as belonging to the Customer.
7.3 All of the parties' liabilities and
obligations in respect of the subject matter of the Engagement are expressly
set out in these Terms of Business or the Contract. To the maximum extent permitted by
applicable law and subject to Clause 8.1, no other terms concerning the
subject matter of the Engagement will be implied into the Engagement, or any
related contract.
8. Limitations
and exclusions of liability
8.1 Nothing in the Engagement will:
(a)
limit or exclude the liability of a party for death or personal injury
resulting from negligence;
(b)
limit or exclude the liability of a party for fraud or fraudulent
misrepresentation by that party;
(c) limit any liability of a party in any way
that is not permitted under applicable law; or
(d) exclude any liability of a party that may
not be excluded under applicable law.
8.2 The limitations and exclusions of liability
set out in this Clause and elsewhere in the Engagement:
(a) are subject to Clause 8.1; and
(b) govern all liabilities arising under the
Engagement or in relation to the subject matter of the Engagement, including
liabilities arising in contract, in tort (including negligence) and for
breach of statutory duty.
8.3 Without prejudice to Clause 4.2, the
Bookkeeper will not be liable in respect of any failure to meet any filing
deadline or other deadline where such failure arises in whole or part out of
the acts or omissions of:
(a) the Customer;
(b) any officer, employee, sub-contractor,
supplier, professional adviser or associated company of the Customer;
(c) HM Revenue & Customs, or any other
governmental or regulatory body; or
(d) any other third party appointed by the
Customer to, or that the Bookkeeper reasonably expects will, provide
instructions, files, information or documentation to the Bookkeeper in
connection with the Engagement.
8.4 The Bookkeeper will not be liable in
respect of any loss of profits, income, revenue, use, production or
anticipated savings.
8.5 The Bookkeeper will not be liable for any
loss of business, contracts or commercial opportunities.
8.6 The Bookkeeper will not be liable for any
loss of or damage to goodwill or reputation.
8.7 The Bookkeeper will not be liable in
respect of any loss or corruption of any data, database or software.
8.8 The Bookkeeper will not be liable in
respect of any special, indirect or consequential loss or damage.
8.9 The Bookkeeper will not be liable for any
losses arising out of a Force Majeure Event.
9. Confidentiality
9.1 The Bookkeeper will keep confidential the
Confidential Information, and will not disclose the Confidential Information
except as expressly permitted by this Clause.
9.2 The Bookkeeper will protect the
confidentiality of the Confidential Information using at least reasonable
security measures.
9.3 The Confidential Information may be
disclosed by the Bookkeeper to its employees, officers, sub-contractors,
insurers and professional advisers, provided that each recipient is legally
bound to protect the confidentiality of the Confidential Information.
9.4 These obligations of confidentiality will
not apply to Confidential Information that:
(a) has been published or is known to the
public (other than as a result of a breach of the term of the Engagement);
(b) was known to the Bookkeeper, and can be
shown by the Bookkeeper to have been known to it, before disclosure by the
Customer; or
(c) is required to be disclosed by law, or by
an order (binding upon the Bookkeeper) of a governmental authority, a
regulatory body or a stock exchange. |
10. Data
protection
10.1 The Customer warrants that it has the legal
right to disclose all Personal Data that it does in fact disclose to the
Bookkeeper under the Engagement, and that the processing of that Personal
Data by the Bookkeeper for the purposes of and in accordance with the terms
of the Engagement will not breach any applicable laws (including the Data
Protection Act 1998).
10.2 The Bookkeeper warrants that:
(a) it will act only on instructions from the
Customer in relation to the processing of any Personal Data performed by the
Bookkeeper on behalf of the Customer; and
(b) it has in place appropriate security
measures (both technical and organisational) against unlawful or unauthorised
processing of Personal Data and against loss or corruption of Personal Data
processed by the Bookkeeper on behalf of the Customer.
11. Termination
11.1 Either party may terminate the Engagement
at any time by giving at least 30 days' notice to the other party.
11.2 Either party may terminate the Engagement
immediately if the other party:
(a) commits any breach of any term of the
Engagement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other
party fails to remedy the breach within a reasonable time to do so; or
(b) persistently breaches the terms of the
Engagement.
11.3 Either party may terminate the Engagement
immediately by giving written notice to the other party if:
(a)
the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially
all) of its business;
(iii) is or becomes unable to pay its debts as
they fall due;
(iv) is or becomes insolvent or is declared
insolvent; or
(v) convenes a meeting or makes or proposes to
make any arrangement or composition with its creditors;
(b)
an administrator, administrative receiver, liquidator, receiver, trustee,
manager or similar is appointed over any of the assets of the other party;
(c)
an order is made for the winding up of the other party, or the other party
passes a resolution for its winding up;
(d)
(where that other party is an individual) that other party dies, or as a
result of illness or incapacity becomes incapable of managing his or her own
affairs, or is the subject of a bankruptcy petition or order.
11.4 The Bookkeeper may terminate the Engagement
immediately at any time by giving written notice to the Customer if the
Customer fails to pay in full and on time any amount due to the Bookkeeper
whether due in respect of the Engagement or otherwise.
11.5 Upon termination of the Engagement all the
provisions of these Terms of Business and the Contract will cease to have
effect, save that the following provisions of these Terms of Business will
survive and continue to have effect (in accordance with their terms or
otherwise indefinitely): Clauses 1, 6.6, 8, 9, 10, 11.5, 11.6, 11.7, 12 and
14.
11.6 Termination of the Engagement will not
affect either party’s accrued liabilities and rights (including accrued
rights to be paid) as at the date of termination.
11.7 Promptly following the termination of the
Engagement, the Bookkeeper will:
(a)
deliver to the Customer all Deliverables and Customer Materials and other
files, documents and materials containing Confidential Information; and
(b)
irrevocably delete from its computer systems all Confidential Information
upon request from the Customer.
12. Non-solicitation
The
Customer will not without the Bookkeeper's prior written consent, either
during the Term or within 6 months after the date of effective termination of
the Engagement, engage, employ or otherwise solicit for employment any
employee, agent or sub-contractor of the Bookkeeper who has been involved in
the Engagement or the performance of the Services.
13. Notices
13.1
Any notice given under the Engagement must be in writing (whether or not
described as “written notice”) and must be delivered personally, sent by
pre-paid first class post, or sent by email for the attention of the relevant
person, and to the relevant address email address given below (in the case of
the Bookkeeper) or in the Contract (in the case of the Customer) - or as
notified by one party to the other in accordance with this Clause.
Georgina
Bradley Bookkeeping
address:
2A Forge Business Centre, Palgrave, Diss. IP22 1AP
email:
mail@gbbookkeeping.co.uk
13.2 A notice will be deemed to have been
received at the relevant time set out below (or where such time is not within
Business Hours, when Business Hours next begin after the relevant time set
out below):
(a) where the notice is delivered personally,
at the time of delivery;
(b) where the notice is sent by first class
post on receipt; or
(c) where the notice is sent by email, at the
time of the transmission (providing the sending party retains written
evidence of the transmission).
14. General
14.1 No breach of any term of the Engagement
will be waived except with the express written consent of the party not in
breach.
14.2 If a term of the Engagement is determined
by any court or other competent authority to be unlawful and/or
unenforceable, the other terms of the Engagement will continue in effect. If any unlawful and/or unenforceable term
would be lawful or enforceable if part of it were deleted, that part will be
deemed to be deleted, and the rest of the term will continue in effect
(unless that would contradict the clear intention of the parties, in which
case the entirety of the relevant term will be deemed to be deleted).
14.3 The Engagement will not constitute a
partnership, agency relationship or contract of employment between the
parties.
14.4 The terms of the Engagement may not be
varied except by a written document signed by or on behalf of each of the
parties.
14.5 The Customer hereby agrees that the
Bookkeeper may freely assign any or all of its rights and/or obligations
under the Engagement to any third party or any successor to all or a
substantial part of the business of the Bookkeeper from time to time. Save as expressly provided by the
Engagement, the Customer may not without the prior written consent of the
Bookkeeper assign, transfer, charge, license or otherwise dispose of or deal
in any of its rights or obligations under the Engagement.
14.6 The Engagement is entered into for the
benefit of the parties, and is not intended to benefit any third party or be
enforceable by any third party. The
rights of the parties to terminate, rescind, or agree any amendment, waiver,
variation or settlement relating to the Engagement are not subject to the
consent of any third party.
14.7 Subject to Clause 8.1:
(a)
these Terms of Business and the Contract will constitute the entire agreement
between the parties in relation to the Engagement, and supersede all previous
agreements, arrangements and understandings between the parties in respect of
that subject matter; and
(b)
neither party will have any remedy in respect of any misrepresentation
(whether written or oral) made to it upon which it relied in entering into
the Engagement.
The
Engagement will be governed by and construed in accordance with the laws of
England and Wales; and the courts will have exclusive jurisdiction to
adjudicate any dispute arising under or in connection with the Engagement. |
