General Terms and Conditions

1. Definitions and Interpretation

In this Agreement the following definitions apply:

“Affiliate” means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;

“Agreement” means these Terms with the applicable SOW;

“Bribery Laws” means the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption and any similar or equivalent legislation in any other relevant jurisdiction;

“Business Day” means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England and Wales;

“Business Hours” means the period from 9.00 am to 5.00 pm on any Business Day;

“Client” means any person, company or other legal entity that: (a) requests, commissions, uses or receives any Services from the Consultant; or (b) accepts a Proposal, quotation or scope issued by the Consultant; or (c) otherwise engages the Consultant to provide Services, whether or not a formal written agreement has been executed, and includes any Affiliates, employees, agents or representatives acting on its behalf;

“Commencement Date” means the earlier of:

the date on which the Client accepts or agrees to any proposal, quotation or scope issued by the Consultant;
the date on which the Client instructs the Consultant to commence provision of the Services (whether orally, in writing or by conduct); or
the date on which the Consultant first begins providing the Services.

“Confidential Information” means all confidential information in any medium or format, and whether or not marked or described as “confidential”, which one party (or its Personnel) directly or indirectly discloses, or makes available, to the other party (or its Personnel)This includes, but is not limited to; (a) the terms of this Agreement; (b) information relating to the business, assets, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of a party; (c) information relating to the operations, processes, product information, know-how, technical information, designs, Trade Secrets or software (inclusive of any data held within such software or software code) of a party; (d) any information, findings, data or analysis derived from Confidential Information; and (e) any other information that is identified as being of a confidential or of a proprietary nature;

“Consultant” means Anthesis (UK) Limited, incorporated in England with company number 03409491 and whose registered office address is 26-29 St. Cross Street, Farringdon, London EC1N 8UH;

“Control” means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company;

“Data Protection Laws” means:

to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data;
to the extent that it applies, the law of the European Union or any member state of the European Union to which the Client or Consultant is subject, which relates to the protection of personal data, including the EU GDPR; or
any other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data;

“Deliverables” means those items to be delivered to the Client further to the provision of the Services, as specified in the SOW and/or the relevant Proposal, if any;

“EU GDPR” means the General Data Protection Regulation, Regulation (EU) 2016/679;

“Force Majeure” means an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Agreement including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Agreement, and any delays or failures which result from circumstances beyond the reasonable control of that party;

“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case: (i) whether registered or not; (ii) including any applications to protect or register such rights; (iii) including all renewals and extensions of such rights or applications; (iv) whether vested, contingent or future; (v) to which the relevant party is or may be entitled, and (vi) in whichever part of the world existing;

“Modern Slavery Policy” means the Consultant’s anti-slavery and human trafficking policy in force and notified to the Client from time to time;

“Personnel” means all employees, officers, staff, other workers, agents and consultants of a party, its Affiliates and any of their sub-contractors;

“Price” means price payable by the Client for the Services, as set out in the SOW;

“Proposal” means the document(s) setting out the scope of the Services to be undertaken by the Consultant, and any Deliverables, and/or any timetable or milestones/time estimates, if applicable and/or any price payable for the Services;

“Protected Data” means Personal Data received from or on behalf of the Client in connection with the performance of the Consultant’s obligations under the Agreement and full details of the Protected Data and Processing shall be set out in the SOW. Protected Data shall not include contact details of Client Personnel;

“Sanctions” any laws or regulations relating to economic or financial, trade, immigration, aircraft, shipping or other sanctions, export controls, trade embargoes or restrictive measures from time to time imposed, administered or enforced by a Sanctions Authority (which shall include the Russia (Sanctions) (EU Exit) Regulations 2019 (as amended));

“Sanctions Authority” the UK, the USA, the European Union and the United Nations (UN) (and any other governmental authority with jurisdiction over the Client or any part of its business or operations or key subcontractors used in the performance of this Agreement), and in each case their respective governmental, judicial or regulatory institutions, agencies, departments and authorities, including (without limitation) the UN Security Council, Her Majesty’s Treasury and the UK’s Office of Financial Sanctions Implementation and Department of International Trade;

“Sanctions List” any of the lists issued or maintained by a Sanctions Authority designating or identifying persons that are subject to Sanctions, in each case as amended, supplemented or substituted from time to time, including (without limitation) the UK Sanctions List, Consolidated List of Financial Sanctions Targets in the UK and the Consolidated United Nations Security Council Sanctions List;

“Sanctions Proceedings” any actual or threatened: (a) litigation, arbitration, settlement or other proceedings (including alternative dispute resolution, criminal and administrative proceedings); or (b) investigation, inquiry, enforcement action (including the imposition of fines or penalties) by any governmental, administrative, regulatory or similar body or authority,

in each case relating to, or in connection with, any actual or alleged contravention of Sanctions;

“Sanctions Target” a person that is: (a) listed on a Sanctions List; (b) owned or Controlled by a person listed on a Sanctions List; (c) resident, domiciled or located in, or incorporated or organised under the laws of, a country or territory that is subject to any Sanctions; or (d) otherwise identified by a Sanctions Authority as being subject to Sanctions.

“Services” means any services provided by the Consultant to the Client, including advisory, consulting, digital, technical or other services, and any deliverables, reports or outputs provided in connection with them, as described in any proposal, quotation, statement of work or other communication between the parties, or as otherwise requested or agreed between the parties from time to time;

“Specification” means the description or specification of the Services set out or referred to in the SOW;

“Statement of Work” and/or “SOW” means the document(s) (including but not limited to the Proposal and/or email instructions) setting out the scope of the Services to be undertaken by the Consultant, and any Deliverables, and/or any timetable or milestones/time estimates, if applicable and/or any price payable for the Services;

“Sub-Processor” means any agent, sub-contractor or other third party (excluding its employees) engaged by the Consultant for carrying out any processing activities on behalf of the Client in respect of the Protected Data;

“Trade Secret” means information which (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among, or readily accessible to, persons within the circles that normally deal with the kind of information in question, (b) has commercial value because it is secret, and (c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret;

“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018; and

“VAT” means value added tax or any other similar sale or fiscal tax applying to the sale of the Services.

In this Agreement, unless the context requires otherwise:

any clause or other headings in this Agreement is included for convenience only and shall have no effect on the interpretation of this Agreement;
a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
words in the singular include the plural and vice versa;
any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email); and
a reference to legislation is a reference to that legislation and includes any subordinate legislation in each case as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Agreement.

2. Application of these Terms

These terms and conditions (the “Terms”) are applicable to all SOWs, Services, offers, and quotations of the Consultant, and all legal acts related thereto and/or arising therefrom. The application of general terms and conditions of the Client, if any, is herewith expressly excluded.
By requesting, accepting or using any Services provided by the Consultant (including where instructions are given by email, orally or otherwise), the Client agrees that these Terms shall apply to the exclusion of any other terms, unless otherwise agreed in writing by the Consultant.
These Terms shall apply in particular where:
1. no written master services agreement, statement of work or other contract has been executed between the parties; or
2. services are provided prior to the execution of a formal written agreement.
Where the parties have entered into a written agreement governing the relevant services (including a master services agreement and/or statement of work), the terms of that agreement shall take precedence over these Terms to the extent of any inconsistency.
Any Proposal provided by the Consultant to the Client shall be an offer to supply the Services subject to these Terms. Any Proposal shall remain in effect and be capable of being accepted by the Client for 30 days from the date on which the Consultant submits the Proposal, after which time it shall automatically lapse and be withdrawn. The Client shall consider any Proposal confidential and agrees to hold it and its contents in the strictest confidence and shall not disclose its existence or divulge any part of the Proposal, to any third party without the Consultant’s prior written consent.
The Services shall be provided by the Consultant for the sole benefit and use of the Client. Unless otherwise agreed in writing by the parties, no person other than the Client may rely on any report or other communication made in writing or otherwise by the Consultant in relation to the Services.
Any typographical, clerical or other error or omission on the Consultant’s website or in any of its advertisements, quotations, price lists, invoices or other documents or information issued by the Consultant may be corrected without any liability on the Consultant’s part. Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Agreement.

3. Price

Unless otherwise stated in the SOW, the Price is exclusive of disbursements and expenses and the costs of materials which shall be charged in addition at the Consultant’s standard rates, and VAT (or equivalent sales tax).
If any tax or amounts in respect to tax must be deducted, or other deductions must be made, from any amounts payable to the Consultant, the Client will pay such additional amounts as may be necessary to ensure that the Consultant receives a net amount equal to the full amount it would have received had no tax been deducted or any other deduction made.
Where the duration of the Services is more than 12 months, or due to delays by the Client the Consultant is unable to provide the Services within the agreed timeframe, the Consultant may increase the Price at any time after the one year anniversary of the Commencement Date, by no more than the Consumer Price Index, by giving the Client not less than 15 Business Days’ notice in writing and subject to the written agreement of the Client. If no agreement can be reached then the Consultant may terminate the Agreement on written notice.
Notwithstanding clause 3.3, the Consultant may increase the Price with immediate effect by written notice to the Client where there is an increase in the direct cost to the Consultant of supplying the relevant Services and which is due to any factor beyond the control of the Consultant, such as delay by the Client in providing Client data required by the Consultant to provide the Services and/or changes in law, subject to the written agreement of the Client. If no agreement can be reached then the Consultant may terminate the Agreement on written notice.
Where the Price includes costs incurred in currencies other than pound sterling they shall be calculated by reference to the monthly exchange rates published by OANDA (Mid Rates) as at the date of the invoice.

4. Payment

The Consultant shall invoice the Client for the Services as specified in the SOW and in the absence of any such written agreement then on a monthly basis in arrears either after commencement of performance of the Services, or, where there is a delay caused by the Client failing to provide the information required by the Consultant, after the Commencement Date.
The Client shall pay all invoices in pound sterling in full without deduction or set-off, in cleared funds within 21 days of the date of each invoice; and to the bank account nominated by the Consultant.
Time of payment is of the essence. Where sums due under any Agreement are not paid in full by the due date, the Consultant may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of HSBC BANK from time to time in force, and interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.
If any invoices are not paid in full by the due date, the Consultant may, without limiting its other rights and remedies:
1. suspend the Services until all outstanding amounts are paid in full;
2. issue an immediate invoice for all sums due under the applicable Statement of Work, which shall be payable by the Client upon receipt; and
3. engage legal counsel or a debt collection agency to recover the overdue amounts, and the Consultant shall be entitled to recover its reasonable legal fees and costs of recovery.

Provided that the Consultant shall not take any action under this clause 4.4 unless it has given the Client at least five (5) Business Days’ prior written notice of its intention to do so.

5. Performance of the Services

The Consultant shall commence the performance of the Services on the later date of the Commencement Date and any other agreed commencement date.
The Client shall:
1. if applicable, make the premises available for the Consultant so that the Consultant is able to perform the Services within any time period set out in the SOW;
2. provide the Consultant with complete and accurate instructions or information necessary for the performance of the Services;
3. instruct its employees and agents to co-operate and promptly assist the Consultant; and
4. comply with any other reasonable instruction provided by the Consultant to the Client in connection with the Services.

The Consultant shall not be liable for any delay in or failure of performance caused by the Client’s, its agents, sub-contractors or employees failure to comply with clause 5.2(a) to (d) in full or in part, or by a Force Majeure event.

The Consultant may perform the Services in instalments. Any failure to provide the Services in conformance with the requirements set forth in the respective SOW in relation to an instalment shall not entitle the Client to cancel any other instalment.
Time of performance of the Services is not of the essence. The Consultant shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are approximate only.
In the event that either party wishes to vary the terms of the SOW it shall set out the details of the changes requested in writing, including the impact on Price and any timetable, and the other party shall respond promptly and in any event within 5 Business Days. If the proposed changes do not require a new proposal to be submitted and are not agreed within 5 Business Days, the Consultant shall be entitled to suspend the provision of the Services until details of the changes have been agreed.

6. Warranty

The Consultant warrants that:
1. (subject to clause 6.2 where applicable) the Services and Deliverables, if applicable, shall conform in all material respects to the Specification; and
2. it has no knowledge that the Services or Deliverables infringe the Intellectual Property Rights of any third party.
If the Services are either wholly or partially of a research and/or developmental nature, the results of the Services will be given in good faith but the certainty of achieving particular and/or absolute results cannot be guaranteed.
The Consultant shall, at its option, remedy, re-perform or refund the Services that do not comply with clause 6.1, provided that:
1. the Client serves a written notice on the Consultant not later than 5 Business Days from completion of performance or delivery of any Deliverables; or within a reasonable period of time from performance or delivery of any Deliverables in the case of latent defects;
2. such notice specifies that some or all of the Services or Deliverables do not comply with clause 6.1 and identifies in sufficient detail the nature and extent of the defects; and
3. the Client gives the Consultant a reasonable opportunity to examine the claim of the defective Services or Deliverables.
These Terms shall apply to any Services that are re-performed with effect from performance of the re-performed Services and to any Deliverables that are re-delivered with effect from re-delivery.
The Client warrants that it is duly incorporated and validly existing under the laws of the jurisdiction it resides in and is fully qualified and empowered to own its assets and carry on its business.
Except as expressly set out within these Terms, all warranties, conditions and other terms implied by statute or common law or otherwise are excluded to the fullest extent permitted by law.

7. Public Statements

The Client shall not make any public statements or announcements in relation to the Deliverables that contain any untrue or misleading statement of material fact or, a statement that has omitted a material fact that results in other facts or statements contained therein to be untrue or misleading; or any unsubstantiated statements.
The Client shall indemnify and keep the Consultant indemnified from and against any losses, damages, liability, costs and expenses (including reasonable professional fees and costs of responding to any governmental or regulatory authority investigation) incurred by it as a result of any action, demand or claim made against the Consultant in connection with any breach of clause 7.1.

8. Sanctions

The Client warrants that at the Commencement Date it is not:
1. a Sanctions Target and has not been a Sanctions Target and nothing has occurred that could reasonably be expected to result in it becoming a Sanctions Target;
2. contravening and has not contravened any Sanctions; or
3. and has not in any way been involved in any Sanctions Proceedings (other than for the sole purpose of providing information or evidence in respect of such proceedings) and to the best of its knowledge and belief, having made reasonable enquiries there are no circumstances likely to give rise to any such Sanctions Proceedings.
The Client shall ensure that the Services and or any Deliverables provided by the Consultant are not to or for, and shall not be used in a way that benefits or reasonably could be expected to benefit, directly or indirectly, any person in or with connections to the Russian Federation, including any person considered to be “connected with Russia”, as that term is defined by the UK’s Russia (Sanctions) (EU Exit) Regulations 2019 (“PCR”).
At all times during the term of any Agreement, the Client shall:
1. not contravene any Sanctions;
2. not do, or omit to do, any act that will cause or lead the Consultant to contravene any Sanctions; and
3. implement adequate policies and procedures to ensure compliance with Sanctions.
The Client shall as soon as reasonably practicable notify the Consultant in writing if:
1. at any time during the term of any Agreement, there is any fact or circumstance that would give rise to a breach of warranties given in clause 8.1 or clause 8.3(a) if the warranties were repeated; or
2. it becomes aware of any breach or suspected breach of this clause;
3. and it shall provide such information about such fact or circumstance or about the breach as the Consultant requires to comply with its obligations to any Sanctions Authority or otherwise reasonably requests.
If at any time during the term of any Agreement the Client becomes a Sanctions Target or contravenes Sanctions or anything occurs that could reasonably be expected to result in any of these things happening, the Consultant may in its absolute discretion and without affecting any other right or remedy available to it:
1. treat such event as a force majeure event for the purposes of clause 16 (Force Majeure); or
2. terminate an Agreement with immediate effect by written notice to the other party, including at any time during or following a suspension of the parties’ obligations under clause 16 (Force Majeure).
If there is any conflict between this clause 8 and clause 16 (Force Majeure), this clause 8 shall take precedence.
Without affecting any other right or remedy available to the Consultant, any breach of this clause 8 by the Client shall constitute a material breach of an Agreement, in accordance with clause 17.

9. Anti-Bribery

Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that all of that party’s Personnel and all of that party’s sub-contractors involved in performing an Agreement so comply.
Without limitation to clause 9.1, neither party shall make or receive any bribe or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
Each party shall immediately notify the other as soon as it becomes aware of a breach of any of the requirements in this clause 9.

10. Anti-Slavery

Each party undertakes, warrants and represents that:
1. it shall comply with the Modern Slavery Policy all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force; and
2. it shall notify the other party immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or sub-contractors have breached or potentially breached any of the Client’s obligations under this clause 10.1. Such notice shall set out full details of the circumstances concerning the breach or potential breach of the Client’s obligations.

11. Insurance

Each party shall have in place and maintain appropriate professional indemnity insurance to meet its liabilities under these Terms.
Claims arising out of or in connection with war and terrorism, toxic mould, and nuclear risk are specifically excluded from the Consultant’s Professional Indemnity Insurance cover and the Client acknowledges that the Consultant shall have no liability in respect of such claims.

12. Limitation of liability

Subject to clauses 12.2 and 12.6, the Consultant’s total liability under or in connection with these Terms and/or any Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall not exceed the total amount paid or payable by the Client or its Affiliates for its Services under the relevant SOW in the 12 months preceding the claim and the Consultant shall not be liable to both the Client and its Affiliates, but only to the party to whom it has provided the Services.
Subject to clauses 12.6, neither party shall be liable for any of the following (whether direct or indirect): loss of profit; wasted expenditure; consequential or special losses; loss or corruption of data (unless a breach of Data Protection Laws); loss of contract; loss of opportunity; loss of savings, discount or rebate (whether actual or anticipated); or harm to reputation or loss of goodwill.
Deliverables (including any reports) provided by the Consultant and its Affiliates are subject to the disclaimers, scope and limitations set out therein, and do not constitute legal advice.
The Client understands and acknowledges that the Consultant will produce the Deliverables and other results for the Client further to relying on Client information and/or data and that the Consultant will not independently verify any Client information and/or data. The Client shall be solely responsible for the accuracy and adequacy of all Client information and/or data and the Consultant shall have no liability to the Client or any other third party) for any inaccuracy or inadequacy of Client information and/or data (“Data Issue“). The Client shall indemnify and keep the Consultant indemnified from and against any losses, damages, liability, costs and expenses (including reasonable professional fees and costs of responding to any governmental or regulatory authority investigation) incurred by it as a result of any action, demand or claim made against the Consultant in connection with any Data Issue.
The Client is solely responsible for the accuracy of any claims or statements it makes (including, without limitation in its environmental and sustainability reporting, advertising, its marketing materials or any other public claims (“Publicity”)) whether using the Deliverables or its own data and materials. The Consultant shall have no liability to the Client and/or any third parties for reliance on or use of the Deliverables for the client’s Publicity. The Client shall indemnify and hold harmless the Consultant from and against any losses, damages, liability, costs and expenses (including reasonable professional fees and costs of responding to any governmental or regulatory authority investigation) incurred by it as a result of any action, demand or claim made against the Consultant in connection with the Publicity.
Notwithstanding any other provision of these Terms, the liability of the parties shall not be limited in any way in respect of: (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; and (iii) any other losses which cannot be excluded or limited by applicable law.
The Client agrees that it will reimburse the Consultant for all losses, damages, costs and expenses incurred in connection with investigating, preparing to defend or defending against any investigations, claims or actions by legal, regulatory or governmental authorities relating to the Services (including solicitor and counsel fees, expert fees, disbursements, and compensation for the time expended by lawyers of ours in connection with any such action or claim). This paragraph 12.7 does not apply where the primary cause of such claim or action is the Consultant’s fraud, negligence or wilful misconduct.

13. Intellectual Property Rights

All Intellectual Property Rights in any materials (including software) provided by the Consultant to the Client further to the supply of the Services or in any SOW or Proposal and in any tools, methodologies and management tools used in the course of supplying the Services shall remain the property of the Consultant (or where applicable its licensor(s)) unless otherwise agreed in writing in the SOW or another agreement signed by the Consultant.
With the exception of any software supplied by the Consultant to the Client and subject to the payment of all fees due for the Services in accordance with these Terms, the Consultant hereby grants to the Client a non-exclusive, royalty-free, non-transferable licence to copy and use such materials for any purpose necessary in order to exploit the Services provided that the Consultant shall not be liable for any use of the materials which is not one in relation to which such materials were supplied.
The Consultant shall indemnify the Client from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that performance of the Services or use of any materials supplied by the Consultant further to the provision of the Services infringes the Intellectual Property Rights of any third party (“IPR Claim“), provided that the Consultant shall have no such liability if the Client:
1. does not notify the Consultant in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
2. makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Consultant;
3. does not let the Consultant at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim at its sole discretion;
4. does not take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the IPR Claim;
5. does not, at the Consultant’s request, provide the Consultant with all reasonable assistance in relation to the IPR Claim (at the Client’s expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Client.
If any IPR Claim is made or is reasonably likely to be made, the Consultant may at its option:
1. procure for the Client the right to continue receiving the benefit of the relevant Services; or
2. modify or replace the infringing part of the Services so as to avoid the infringement or alleged infringement, provided the Services remain in material conformance to their Specification.
The Consultant’s obligations under clause 13.3 shall not apply to Services modified or used by the Client other than in accordance with the Agreement or the Consultant’s instructions. The Client shall indemnify the Consultant against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by the Consultant in connection with any claim arising from such modification or use; or further to the use by the Consultant of any information or material submitted by the Client to the Consultant.
Neither party shall use the name, trade mark or any logo or other indicia of the other party in any public statement without the prior written consent of the other party, save that:
1. the Client is hereby licensed and shall at all times use the name and trade mark(s) of the Consultant included in any report submitted to the Client by the Consultant under an Agreement in any reproduction of such report; and
2. the Consultant is hereby licensed to use the name and trade mark(s) of the Client solely for the purposes of promoting and advertising the services of the Consultant.
Consultant may, unless prohibited by applicable law, de-identify and/or anonymise any Client data (with the resulting de-identified or anonymised data and information being referred to herein as “De-identified Data”) and aggregate such De-identified Data, including without limitation aggregation with other information received by Consultant from its other clients and from other data sources (collectively, “Aggregated Data”). All De-identified Data and Aggregated Data shall be owned solely and exclusively by Consultant. Client further acknowledges and agrees that Consultant may, during and after the term of an Agreement use the De-identified Data or Aggregated Data for any purpose, including, but not limited to, to improve, market, and provide its service offering.

14. Confidentiality

For the purposes of this clause 14, “disclosing party” shall mean the party that discloses (either directly or indirectly) or makes available the relevant Confidential Information to the other party and “receiving party” shall mean the party that is in receipt of the relevant Confidential Information from the disclosing party.
Each party shall, and will procure that its Personnel shall (except where the prior written consent of the other party has otherwise been obtained):
1. not make any use of the Confidential Information in any way except as required to perform its obligations and responsibilities under an Agreement;
2. hold the Confidential Information in the strictest confidence and shall not disclose or divulge any part of the Confidential Information or any additions or improvements to it, save as permitted by sub-clause 14.2(c) below, to any third party without the other party’s prior written consent which may be withheld or given on such terms and conditions as the other party may consider appropriate;
3. restrict access to the Confidential Information to such Personnel as strictly necessary to perform its obligations and responsibilities under the Agreement and shall impose upon all such persons obligations of confidentiality no less stringent to those contained in this clause 14;
4. not make copies of the Confidential Information unless strictly required perform its obligations and responsibilities under the Agreement, and

the obligations contained in this clause 14.2 shall continue in full force and effect and shall ensure to the benefit of the disclosing party notwithstanding the completion of the Services (whether in whole or in part) or the execution of any other binding agreement between the parties.

The restrictions and confidentiality obligations contained in clause 14.2 shall not apply to any information in relation to which the party in receipt of the information can prove by documentary evidence to the other party’s reasonable satisfaction that such:
1. disclosure was authorised by the disclosing party or required by law or any regulatory or government authority to which the parties are subject;
2. information was already known by the receiving party prior to disclosure by the disclosing party;
3. information was lawfully disclosed to the receiving party without restriction as to further disclosure from a third party legitimately in possession of it and permitted to make such a disclosure;
4. information was publicly available or became publicly available except through the receiving party’s negligence or breach of this clause 14;
5. information was developed by or for the receiving party independently of any disclosure by the disclosing party; or
6. disclosure is made by the receiving party in confidence to professional advisers engaged to advise the receiving party in connection with an Agreement.
The parties’ obligations under clause 14.2 shall remain in force for a period of 3 years from the date of the applicable Agreement with the exception of Trade Secrets which must be identified in writing as such by the disclosing party and shall be kept in confidence in perpetuity or until the disclosing party confirms in writing that they may be disclosed.
Neither party shall make any public announcement or disclose any information regarding any Agreement, except to the extent required by law or regulatory authority, or unless the other party has provided its prior written consent.
To the extent any Confidential Information is Protected Data and the disclosure of such Confidential Information is permitted under this clause 14, such Confidential Information may only be disclosed or used to the extent that it does not conflict with any provisions of clause 15.
If a request is made by the disclosing party, at any time, to return or destroy (as the disclosing party may direct) Confidential Information in the receiving party’s possession or under its control and all documents and other material (including all electronically generated or stored data) containing or embodying the Confidential Information (or any part of it) together with all copies, analyses, memoranda or other notes made by the receiving party and which are in its possession custody or control that bear or incorporate any part of the Confidential Information, the receiving party shall comply with such request.

15. Processing of Personal Data

The parties agree that each party is an independent Controllers of the other parties contact information.
To the extent that the Services give the Consultant access to Protected Data, each party shall process Protected Data in compliance with the obligations set out in Schedule 1.

16. Force Majeure

Each party shall, and will procure that its Personnel shall (except where the prior written consent of the other party has otherwise been obtained):
1. promptly notify the other of the Force Majeure event and its expected duration; and
2. use all reasonable endeavours to minimise the effects of that event.
If, due to Force Majeure, a party:
1. is or shall be unable to perform a material obligation; or
2. is delayed in or prevented from performing its obligations for a continuous period exceeding 6 months or a total of more than 30 days in any consecutive period of 90 days;

the parties shall, within 30 days, renegotiate an Agreement to achieve, as nearly as possible, the original commercial intent.

17. Termination

The Consultant may terminate an Agreement at any time by giving notice in writing to the Client if:
1. the Client commits a material breach of the applicable Agreement and such breach is (in its reasonable opinion) not remediable;
2. the Client commits a material breach of the applicable Agreement which is capable of being remedied and such breach is not remedied within 14 days of receiving written notice of such breach;
3. the Client has failed to pay any amount due under the applicable Agreement on the due date and such amount remains unpaid within 30 days after the Consultant has given notification that the payment is overdue; or
4. any consent, licence or authorisation held by the Client is revoked or modified such that the Client is no longer able to comply with its obligations under the applicable Agreement or receive any benefit to which it is entitled.
Either party may terminate an Agreement at any time by giving notice in writing to the other party if it:
1. stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
2. is unable to pay its debts or becomes insolvent or an order or an application is made or a resolution passed for its administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any of its assets or an application or a filing for a moratorium is made in respect of such party or it otherwise enters into or proposes any composition or arrangement with its creditors generally, or anything analogous to the foregoing occurs in any applicable jurisdiction;
3. has a freezing order made against it;
4. takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 17.2(a) to 17.2(c) including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process, and

the right to terminate the applicable Agreement pursuant to this clause 17.2 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the applicable Agreement.

The Consultant may terminate an Agreement at any time by giving not less than four weeks’ notice in writing to the Client if the Client undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months which results in the Client becoming a competitor of the Consultant.
Termination or expiry of an Agreement shall not affect any accrued rights and liabilities of the Consultant at any time up to the date of termination.
In the event that either party terminates an Agreement under this clause 17, the Client shall immediately pay to the Consultant all of the Consultant’s outstanding unpaid invoices and interest and, in respect of any Services supplied but for which no invoice has been submitted. For the avoidance of doubt this means that if the applicable Agreement is terminated prior to completion of the Services, the Client shall pay the Consultant proportionally for the time and expenses properly incurred by the Consultant in providing the Services up until the date of termination.

18. Dispute Resolution

The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:
1. within 14 days of service of the notice, the project managers of the parties shall meet to discuss the dispute and attempt to resolve it;
2. if the dispute has not been resolved within 14 days of the first meeting of the project managers, then the matter shall be referred to the directors (or persons of equivalent seniority). The directors (or equivalent) shall meet within 14 days to discuss the dispute and attempt to resolve it.
If the dispute has not been resolved within 14 days of the first meeting of the directors (or equivalent) under clause 18.1(b) then the dispute shall be referred to and finally resolved by arbitration proceedings in accordance with clause 18.3.
If arbitration is required further to the parties failing to resolve a dispute by following the procedure in clause 18.3, the arbitration shall be conducted under the LCIA Rules, in which such rules are deemed to be incorporated by reference into this clause 18.3. Details of any arbitration shall be as follows:
1. the number of arbitrators shall be 1 (one);
2. the seat, or legal place, of arbitration shall be London, England;
3. the language to be used in the arbitral proceedings shall be English;
4. the governing law of the Agreement shall be the substantive law of England and Wales.
For the avoidance of doubt, if any translation of these Terms is prepared by either party (or its representatives), the English version of these Terms shall take precedence.

19. Notices

Any notice given by a party under these Terms shall: (a) be in writing and in English; (b) be signed by, or on behalf of, the party giving it (except for notices sent by email); and (c) be sent to the relevant party at the address set out in the SOW or as notified in writing from time to time by either party.
Notices may be given, and are deemed received: (a) by hand: on receipt of a signature at the time of delivery; (b) if posted: at 10:00 am on the seventh (7th) Business Day after it was put into the post; or (c) if sent by email: at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
All references to time are to the local time at the place of deemed receipt.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

20. Cumulative Remedies

The rights and remedies provided in these Terms for the Consultant are cumulative and not exclusive of any rights and remedies provided by law.

21. Further Assurance

Each party shall at the written request of the other, and at the requesting party’s own cost, do all acts and execute all documents which are necessary to give full effect to these Terms.

22. Entire Agreement

The parties agree that each Agreement constitutes the entire agreement between them in relation to the applicable Services and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
Each party acknowledges that it has not entered into any Agreement or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in any Agreement or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the applicable Agreement.

23. Variation

No variation of any Agreement shall be valid or effective unless it is in writing, refers to the applicable Agreement and is duly signed or executed by, or on behalf of, both parties.

24. Assignment

The Client may not assign, subcontract or encumber any right or obligation under any Agreement, in whole or in part, without the Consultant’s prior written consent, which it may withhold or delay at its absolute discretion. The Consultant may subcontract its obligations in any Agreement and may transfer its obligations under any Agreement to an Affiliate or to the purchaser of all or part of the Consultant’s business.
Notwithstanding clause 24.1, the Consultant may perform any of its obligations and exercise any of its rights granted under the applicable Agreement through any Affiliate provided that it gives the Client prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Consultant acknowledges and agrees that any act or omission of its Affiliate in relation to the Consultant’s rights or obligations under the applicable Agreement shall be deemed to be an act or omission of the Consultant itself. The Client shall only be liable under the applicable Agreement to the Consultant and not to any of the Consultant’s Affiliates.

25. No Partnership or Agency

The parties are independent persons and are not partners, principal and agent or employer and employee and no Agreement establishes any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

26. Severance

If any provision of these Terms (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of these Terms shall not be affected.
If any provision of these Terms (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith to agree the terms of a mutually acceptable alternative provision.

27. Waiver

No single or partial exercise of any right, power or remedy provided by law or under any Agreement by the Consultant shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Consultant.
A waiver of any term, provision, condition or breach of any Agreement by the Consultant shall only be effective if given in writing and signed by the Consultant, and then only in the instance and for the purpose for which it is given.

28. Compliance with Law

Each party shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with an Agreement.

29. Costs and Expenses

Each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of an Agreement (and any documents referred to in it).

30. Third Party Rights

Except as expressly provided for in clause 30.2, a person who is not a party to the applicable Agreement shall not have any rights to enforce any of the provisions of that Agreement.
Any Affiliate of the Consultant shall be entitled to enforce any of the provisions of the applicable Agreement. The consent of any such Affiliate is not required to rescind or vary an Agreement or any provision of it.

31. Non-Solicitation

Neither party shall (except with the prior written consent of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party in the provision of the Services or (in the case of the Client) in the receipt of the Services at any time during the Term or for a further period of 6 months after the termination of this agreement other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.
If either the Consultant or the Client commits any breach of clause 31.1, the breaching party shall, on demand, pay to the claiming party a sum equal to one year’s basic salary or the annual fee that was payable by the claiming party to that employee, worker or independent contractor plus the recruitment costs incurred by the claiming party in replacing such person.

32. Governing Law and Jurisdiction

These Terms, any Agreement, and any dispute or claim arising out of, or in connection with, them, their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
If a dispute arises out of or in connection with these Terms or any Agreement or the performance, validity or enforceability of them, such dispute shall be resolved in accordance with clause 18, unless an injunctive remedy is required by either party, in which case each party irrevocably agrees that the courts of the England and Wales shall have non-exclusive jurisdiction to settle such dispute.

Schedule 1 – Data Processing

The Terms Controller, Processor, Data Subject, International Organisation,Personal Data, Personal Data Breach and Processing have the meanings given to them in the Data Protection Law.
The parties agree that the Consultant is a Processor and the Client is a Controller of Protected Data processed under the Services or any relevant Statement of Work. Particulars of Processing will be set out in table set out in the Statement of Work titled Personal Data Processing.
The Client shall ensure that all instructions given by it to the Consultant in respect of Protected Data shall at all times be in accordance with Data Protection Laws, and the Client shall not transfer to the Consultant, or require the Consultant to transfer or process, any data which could violate applicable law.
Each party shall indemnify and keep indemnified the other against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the indemnifying party of its obligations under this Schedule 1.
The Consultant shall:
1. only process (and shall ensure any of the Consultant’s Personnel only process) the Protected Data in accordance with the Agreement (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and shall inform the Client of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
2. without prejudice to clause 1.4, if the Consultant believes that any instruction received by it from the Client is likely to infringe the Data Protection Laws it shall promptly inform the Client and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
Taking into account the state of technical development and the nature of processing, the Consultant shall implement and maintain appropriate technical and organisational measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
The Consultant shall only permit the processing of Protected Data by Sub-Processor where:
1. such third parties are subject to a written obligation of confidence with regards to the Protected Data; and
2. prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, each Sub-Processor has entered into a written contract containing materially the same obligations as under this Schedule 1 that is enforceable by the Consultant;
3. the Consultant shall remain fully liable to the Client under the Agreement for all the acts and omissions of each Sub-Processor as if they were its own; and
4. the Client is provided with an opportunity to object to the appointment of each new Sub-Processor within 10 working days after the Consultant supplies the Client with full details in writing regarding such Sub-Processor and those Sub-Processors approved by the Client as at the date of this Agreement are as set out in the SOW.
The Consultant shall (at the Client’s cost):
1. assist the Client in ensuring compliance with the Client’s obligations pursuant to Articles 32 to 36 of the EU GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to the Consultant; and
2. taking into account the nature of the processing, assist the Client (by appropriate technical and organisational measures), insofar as this is possible, in fulfilling the Client’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the EU GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
The Consultant shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the EEA and/or the United Arab Emirates or to any International Organisation without having appropriate legal safeguards in place or the consent of the data subjects (in accordance with Data Protection Laws).
The Consultant shall, in accordance with Data Protection Laws, make available to the Client such information that is in its possession or control as is necessary to demonstrate the Consultant’s compliance with the obligations placed on it under this Schedule 1 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the EU GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Client (or another auditor mandated by the Client) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 1.10).
The Consultant shall notify the Client without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
At the end of the provision of the Services relating to the processing of Protected Data, at the Client’s cost and the Client’s option, the Consultant shall either return all of the Protected Data to the Client or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Consultant to store such Protected Data or the Consultant has another lawful basis for processing such Protected Data. In either of these cases the Consultant shall notify the Client of the circumstance and shall comply with this Schedule 1 until it no longer is in possession of any Protected Data. This Schedule 1 shall survive termination or expiry of the Agreement where the Consultant continues to be in possession of any Protected Data following the termination or expiry of the Agreement.