OUR TERMS AND CONDITIONS
DEFINITIONS
These terms & conditions of business (The Conditions) represent and define part of the contractual relationship between ALEXANDER NEiLL of 17 St. Margaret’s Road, Poole, Dorset, BH15 2DL, its employees and assigns (The Company) and all prospective and exiting clients (The Client).
For the purposes of The Conditions, The Client shall be deemed as any party who procures or purchases The Services from The Company, although the benefit of The Services may be extended to employees, assignees, agents or beneficiaries of The Client
The procurement or purchase of The Services shall create an exclusive contract between The Company and The Client.
The Services shall include the provision by The Company and being for the benefit of The Client, their employees, assignees, agents or beneficiaries and to include some or all of the following:
- personal assistance and organisational services;
- personal representation, liaison, negotiation and advocacy with parties other than The Company and The Client – Third Parties;
- sourcing and procurement or purchase of goods, services, packages or events of whatever nature (as agreed between The Company and The Client) from Third Parties;
- specific administrative tasks, as specified by The Client and agreed by The Company.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1 CREATION OF CONTRACT
1.1 The nature and extent of The Services shall be agreed by both parties (The Company and The Client) and defined in the Service Agreement which shall be served in writing (or by electronic means) by The Company to The Client.
1.2 This Service Agreement shall make direct reference to these Conditions and both together shall constitute The Contract created and existing between The Company and The Client.
2 TEMINATION AND VARIATION
2.1 The Contract shall continue to operate until terminated or varied: either in accordance with the specific terms of The Contract (a fixed term or specific service Contract) or in accordance with these terms of The Conditions (for open or rolling Contracts).
2.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate The Contract on giving the other no less than one month’s written notice.
2.3 However, The Contract shall be immediately terminated on serving written notice by one party to the other if any of the following apply:
(a): the other party commits a material breach of any of the terms of The Contract or (if remediable) fails to remedy such breach as soon as is reasonably practicable, once they are notified in writing of the breach by the other party;
(b): The Client fails to pay amounts due on their Account (both fee and disbursement settlement) and falls greater than 30 days in arrears.
(c): The Client admits inability to pay its debts as they fall due: being a company or limited liability partnership – is deemed unable to pay its debts within the meaning of S123 Insolvency Act 1986; or being an individual is deemed either unable to pay their debts or as having no reasonable prospect of doing so and in either case within the meaning of S268 Insolvency Act 1986; or being a partnership, has any partner to whom any of the foregoing apply.
(d): A petition is filed, notice given, resolution passed or order is made for, or in connection with, the winding up of that party (being a company) or that party is subject of a bankruptcy petition or order (being an individual).
2.4 On termination of The Contract for any reason, The Company shall issue The Client a closing Statement of Account. This Statement shall detail any sums (fees and disbursements) owing from the any prior Statements of Account; plus any additional sums owing (fees and disbursements) from the last Statement and up to the date of termination. The Client shall immediately pay to The Company all outstanding sums as detailed on this final Statement of Account.
2.5 On termination or expiry of The Contract, the accrued rights, remedies, obligations and liabilities of both parties shall be unaffected, including the right to claim damages in respect of any breach of The Contract which existed prior to or at the time of termination or expiry.
2.6 The Company reserves the right to vary or amend The Conditions in any way on service of at least 30 days’ written notice to The Client.
3 FEES
3.1 Fees shall be defined in the Service Agreement and shall be set at an hourly rate and charged in 15 minute increments.
3.2 Where The Contract extends over a prolonged period of time (especially for open or rolling Contracts), the Service Agreement shall include provision for the fee to be varied upon The Company providing The Client written notice.
3.3 Standard hourly fees will be charged during normal UK office hours (08.30 and 17.30 Monday to Friday). Provision of services outside of these hours will attract fees 50-100% higher than the standard rate and will be negotiated on an individual basis.
3.4 The Company makes no formal undertaking to provide its services outside of normal UK office hours, should it be unable to do so at any given time.
3.5 For ‘out of office’ commitments, fees shall be charged from our arrival at the first destination in pursuance of our Services to The Client. Travel to subsequent destinations on the same day, in pursuance of our Services for The Client will represent chargeable time. Onward or return travel from the final destination in pursuance of our Services for The Client on the same day will not be chargeable time.
3.6 The Company shall provide The Client with a Statement of Account at the beginning of each month (The Statement) detailing all works carried out and fees due. Fees detailed on The Statement must be settled by The Client within 30 days of the Statement Date.
3.7 Any fees unpaid outside our 30-day term will accrue additional interest charges equivalent to the Bank of England base rate plus 5%, calculated and charged on a daily basis.
4 DISBURSEMENTS
4.1 Wherever practicable, The Company requires The Client to make all payments due to Third Parties independently and directly.
4.2 In exceptional circumstances, it may be necessary for The Company to undertake expenditure on behalf of The Client.
4.3 Should The Client specifically request The Company to make payments directly to Third Parties on their behalf (or if direct payment by The Client becomes in any other way impossible); The Company shall require The Client to lodge sufficient funds with The Company to cover all anticipated expenditure.
4.4 If The Company is likely to incur additional expenses (other than those expenses reasonably expected in the usual day-to-day delivery of its Services): such as non-local travel and overnight accommodation or the acquisition of specialist equipment and/or expertise, then The Company shall require The Client to lodge sufficient funds with The Company to cover all anticipated additional expenses.
4.5 In both cases, funds lodged by The Client with The Company shall be held in a client disbursement account, and any expenditure or expense shall be drawn down from this account as and when it becomes due.
4.6 Should The Client’s disbursement account look likely to fall below the level of anticipated Third Party costs, or additional incidental expenses, then The Company shall inform The Client of this likely shortfall and The Client shall be required to lodge sufficient further disbursement funds with The Company immediately.
4.7 The balance of, and any charges made against, The Client’s disbursement account (Third Party payments and additional expenses) will be detailed on the monthly Statement of Account issued to The Client at the beginning of each month.
4.8 Should for any reason, notwithstanding the clause above, The Client’s disbursement account be shown to be in arrears, The Client must lodge sufficient funds to clear this arrears (if no further Third Party payments or expenses are due); or lodge sufficient additional funds so as to bring this account into sufficient balance to cover all likely and anticipated Third Party costs and additional expenses, with immediate effect.
4.9 Should, at the expiry or termination of The Contract, a balance remain on The Client’s disbursement account (and no expenses or Third Party costs are due, or likely to be due), The Company undertakes to repay any such un-spent balance to The Client as soon is reasonably practicable and once it is clear no further sums are chargeable against this account.
4.10 In the first instance, any remaining balances on The Client’s disbursement account shall be used to offset any outstanding fee charges and this will be reflected in The Client’s final statement.
5 CREDIT AND DEBIT CARDS
5.1 Should The Client wish to authorise The Company to use a credit or debit card to make payments on their behalf to a Third Party, The Client acknowledges, warrants and agrees that:
(a): The Client duly authorises The Company to provide relevant details of their credit or debit card (or any such credit or debit card that The Client is duly authorised to use) to Third Parties for the purposes of booking, ordering, reserving or otherwise securing goods, services, packages or events, as agreed within The Contract.
(b): The Company shall have no liability in respect of, or be responsible in any way for, use of The Client’s information by such Third Party;
(c): the credit or debit card (or the details thereof) supplied to The Company is owned by The Client, or The Client has the authority from the owner of the credit or debit card for such use.
(d): The Client’s credit or debit card will have sufficient funds to cover the full cost of the goods or services supplied by the Third Party.
5.2 All costs associate with the use of The Client’s credit or debit card shall be paid by The Client.
6 DEPOSITS
6.1 Where The Client is required to pay a deposit for any reservations or bookings made or the order, request or other procurement of goods, services or events, we shall ordinarily request that these are paid directly by The Client or by prior arrangement be paid by The Company and drawn directly from The Client’s disbursement account.
6.2 Any costs incurred by the cancellation by The Client (or cancellations requested by The Client to be executed by The Company on their behalf) of any reservations; bookings; orders or any such transaction requiring a deposit; shall be borne by The Client; either directly, or from their disbursement account.
7 CONFIDENTIALITY
7.1 The Company undertakes that any information disclosed to it by The Client shall be deemed as strictly confidential and will not be disclosed to any Third Party by The Company without the express written consent of The Client, unless such disclosure is necessary within the usual pursuance of The Services provided by The Company, where The Client’s permission shall then be deemed to have been given.
7.2 All contact details acquired by The Company in respect of The Client shall only be used by The Company and shall not be passed to Third Parties unless this is necessary in the pursuance of supplies or services provided by a Third Party (as introduced by ourselves) and in pursuance of Services covered by The Contract.
7.3 Any details, records or other information of a sensitive or confidential nature relating to The Client shall not be stored by The Company on any pre-installed hard-drives that could potentially be at risk of malicious intrusion. All such data shall be kept on external and independent storage devices, and stored in a locked safe at a location known only to The Company.
7.4 Any physical security devices, keys, remote gate opening devices, security codes or any other such item relating to the security of property entrusted to The Company by The Client shall be stored in a locked safe at a location known only to The Company.
7.5 Unless expressly agreed to the contrary, access to The Client’s premises and property by Third Parties will only be permitted with the attendance and supervision of The Company.
7.6 The Company shall not be held liable for any damage, loss or other adverse consequence resulting from the loss or theft of sensitive or confidential information, security device, key, remote gate opening device, security code or any other such item relating to the privacy of security of The Client or The Client’s property and entrusted to The Company by The Client, unless as a direct result of the negligence of The Company.
8 AGENCY
8.1 The Client appoints The Company as its agent under the Commercial Agents (Council Directive 1993 (SI 1993 No. 3053) and as such, any contract entered into by The Company with Third Parties, on behalf of The Client shall be deemed as to have been entered into directly by The Client.
9 LIMITATION OF LIABILITY
9.1 The Company shall not, under any circumstances whatsoever, be liable to The Client for breach of contract, negligence, breach of statutory duty, fraud or otherwise, for any other loss, loss of profit or any other direct or indirect consequence of any kind arising from or connected to the actions or otherwise by Third Parties. This limitation of liability shall apply equally whether a Third Party is paid directly by The Client, or by The Company (as a charge to The Client’s disbursement account or otherwise).
9.2 The Company’s liability to The Client through breach, negligence, breach of statutory duty, fraud or otherwise, for any other loss, loss of profit or any other direct or indirect consequence of any kind arising from or in connection with The Contract, shall be limited to three times the Fees due in respect of The Contract.
9.3 The Company shall use all reasonable endeavours to supply its services in a reasonably commercial and professional manner. No warranties shall be made (express of implied) in this respect, or in relation to the accuracy of any information originating from The Company or any goods or services supplied either directly by, or through The Company from Third Parties.
9.4 The Company shall hold sufficient Public Liability Insurances to this end.
10 THIRD PARTY LIABILITY
10.1 Under no circumstances, shall The Company be liable to The Client for any action, inaction, negligence, breach of contract, breach of statutory duty, duty of care, fraud or otherwise by Third Parties. Any costs or losses suffered by The Client in respect of a Third Party, shall be subject to a claim directly by The Client against the Third Party or Parties concerned.
10.2 The sourcing, procurement and otherwise engagement of goods, services, packages or events from Third Parties by The Company on behalf of The Client shall expressly be deemed as creating a direct contractual relationship between The Client and the Third Party and any dispute, claim or complaint resulting thereof will be exclusively between The Client and the Third Party. This contractual exclusivity shall exist regardless of whether such goods, services, packages or events are purchased directly by The Client or by a charge by The Company via The Client’s disbursement account.
10.3 Any goods, services, packages or events sourced or purchased or booked by The Company from Third Parties, on behalf of The Client (regardless of how payment is made), will render The Client subject to the same terms and conditions of the Third Party that would otherwise apply, should the goods, services, packages and events have been directly sourced, purchased or booked by The Client.
10.4 The Company will use all reasonable endeavours to ensure the suitability of any Third Party (company, service provider, supplier) introduced to The Client and in pursuance of its Services as described in The Contract. The Company does not represent itself as an advocate or agent (authorised or not) of any such Third Party, but solely as an introductory intermediary.
10.5 The Company shall not make any specific recommendations to The Client relating to Third Parties and any decision by The Client to engage with or purchase from Third Parties shall be deemed the sole and independent decision of The Client. The Company shall endeavour to furnish The Client with as much information as possible to enable The Client to reach this decision, but this information in no way shall be deemed as ‘advice’.
10.6 The Client may, however, elect to grant express written permission to The Company to choose Third Parties on their behalf and in so doing, The Client will remove any liability (express or implied) from The Company for any loss, cost or otherwise adverse consequence resulting from the actions, negligence or other failings of any Third Party so chosen or engaged.
10.7 The Company will not seek or obtain references from any Third Party unless expressly requested by The Client. The Company shall not be responsible for any reliance placed by The Client on any information supplied or representations made by any Third Party.
11 RIGHTS OF THIRD PARTIES
11.1 The Conditions and any additional terms stipulated by The Contract establishes rights, remedies, obligations and liabilities between The Company and The Client only and any person not party to The Contract (Third Parties) have no rights whatsoever to enforce its terms.
12 ADDITIONAL CLIENT OBLIGATOINS
12.1 If The Contract (or The Services defined therein) is prevented or delayed by any act or omission by The Client, its sub-contractors, agents or employees, The Company shall not be liable for any costs, losses or other charges sustained or incurred as a result of any prevention or delay. These costs, losses or other charges shall, arising directly or indirectly, be the liability of The Client.
12.2 The Client shall be liable for any direct or indirect costs, losses or other charges (to include loss of profit, loss of reputation, loss or damage to property and loss of opportunity to deploy staff resources elsewhere) arising directly or indirectly from The Client’s fraud, negligence, failure to perform, or delay in performance, of any of its obligations under The Contract. Any such costs, losses or other charges shall be confirmed to The Client by The Company in writing, and payable on demand.
12.3 Unless with the express written consent of The Company, The Client shall not employ, entice away or otherwise solicit, any person who is, or has been engaged as an employee or sub-contractor of The Company within a 6 month period following the termination of any contract of employment or sub-contract, between that employee or sub-contractor and The Company. Any permission to grant such consent may require the payment of a consideration by The Client to The Company.
12.4 The Company reserves the right to disclose relevant details of The Client to third party credit reference and debt recovery agencies, in the event that The Client falls into arrears with any Account held with The Company (fee or disbursement), in pursuance of the recovery of said arrears.
13 FORCE MAJEURE
13.1 The Company shall have no obligation to The Client if it is prevented from, or delayed in performing its obligations under The Contract or from carrying out its ordinary business by virtue of acts, omissions, events or accidents beyond its reasonable control. These shall include but not be limited to: strikes or other industrial disputes; failure of utilities services; failure of transport networks; acts of war, god or nature; riot or civil disturbance; requirement to comply with any law or governmental order, rule, regulation or direction; accident; breakdown of plant, machinery or vehicle; fire, flood, storm; of default of Third Parties.
14 GOVERNING LAW AND JURISDICTION
14.1 The governing law and jurisdiction for The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be England and Wales and the parties hereby submit to the exclusive jurisdiction of the English Courts.