1.1 The following definitions apply in this Contract:
Additional Charges: the charges for the Additional Services calculated at the Additional Rate;
Additional Rate: the rate of charges to be paid by the Client to BDC Moore for the Additional Services as detailed in the Quotation;
Additional Services: has the meaning given in clause 4.2;
BDC Moore: means BDC Moore Ltd a company registered in England with number 11293615 and whose registered address is at Chandler House, 7 Ferry Road Office Park, Riversway, Preston, United Kingdom, PR2 2YH;
Business Day: means any day which is not a Saturday, Sunday or public holiday in England on which banks in London are open for business;
Client: means the person, firm or company with whom the Contract is entered into and to whom the Quotation is issued;
Commencement Date: the date on which the Contract is formed in accordance with clause 2;
Confidential Information: information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the other party’s business, clients, products, affairs and finances for the time being confidential to it including trade secrets, technical data and know-how relating to the other party or any of its suppliers, clients, agents, distributors, shareholders, management or business contacts, and, whether or not such information (if in anything other than oral form) is marked confidential;
Contract: means the legally binding contract between the Client and BDC Moore, comprising of the Quotation and these Terms and any other documents specifically referred to therein and whether taking the form of a Project Contract or a Retainer Contract;
Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy and data controller, data processor, data subject, personal data and process shall have the meanings given to them in the Data Protection Legislation;
Engagement: the engagement of BDC Moore by the Client on these Terms;
Initial Term: means the initial term stated in the Quotation for a Retainer Contract and which shall be 12 months where no initial term is specified in the Quotation.
Intellectual Property Rights: patents, utility models, rights to Inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Invention: any invention, idea, discovery, development, improvement or innovation made by BDC Moore in the provision of the Services, whether or not patentable or capable of registration, and whether or not recorded in any medium;
Loss: means any actions, awards, charges, claims, costs, damages, demands, expenses, fees, fines, liabilities, losses penalties and proceedings;
Offer Period: has the meaning given in clause 2.1;
Premises: means the premises (if any) which the Client has the right to access (whether as owner or tenant) and which BDC Moore may need to access for the purposes of performing its obligations under this Contract;
Price: means the price for the Services as set out within the Quotation and any Additional Charges as may be incurred from time to time;
Project Contract: means a contract for specific Services as defined in the Quotation;
Property: all documents, books, manuals, materials, records, correspondence, papers and information (on whatever media and wherever located) belonging to a party or its clients and business contacts, and any equipment, keys, hardware or software provided for the other party’s use during the Engagement, and any data or documents (including copies) produced, maintained or stored by the other party on its computer systems or other electronic equipment during the Engagement;
Quotation: means BDC Moore’s written quotation whether taking the form of the document headed as such or otherwise supplied by BDC Moore to the Client in writing and to which any additional documentation/requirements are incorporated and which if accepted together with these Terms form the Contract;
Quotation Date: means the date on which the Quotation is issued by BDC Moore;
Retainer Contract: means a contract for ongoing services as defined in the Quotation;
Services: the services provided by BDC Moore in a consultancy capacity for the Client as more particularly detailed within the Quotation;
Termination Date: the date of expiration or termination of this Contract, howsoever arising;
Terms: means these terms and conditions;
Works: all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, and all other data, information and materials in whatever form, including but not limited to hard copy and electronic form, prepared by BDC Moore in the provision of the Services.
1.2 Headings contained in this Contract are for reference purposes only and shall not be incorporated into this Contract and shall not be deemed to be any indication of the meaning of the clauses to which they relate.
1.3 Reference to any Act, statutory instrument or other instrument shall include references to such instrument as amended, re-enacted or consolidated from time to time and also to any subordinate instrument made under it.
1.4 All agreements on the part of either of the parties which comprise more than one person or entity shall be joint and several and the neuter singular gender throughout this Contract shall include all genders and the plural and the successors in title to the parties.
1.5 Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression or followed by the terms “or otherwise”, “or any other”, “or any similar”, “or any analogous” or any cognate expression shall be construed as illustrative and shall not limit the sense of the words following or preceding such terms. The word ‘agreed’ shall include ‘deemed acceptance’.
2. Formation of Contract and Term
2.1 The Quotation is an offer by BDC Moore to the Client to supply the Services in accordance with these Terms and shall remain valid for 30 days from the Quotation Date (‘the Offer Period’). For the avoidance of doubt, if the Client does not accept the Quotation within the Offer Period, the Quotation shall be deemed to have expired. If the Client accepts the Quotation:
a) within the Offer Period then then the Contract shall be deemed to have come into force; or
b) after the expiration of the Offer Period then no Contract shall be deemed to have been formed unless BDC Moore otherwise determines at its absolute discretion.
2.2 In the case of there being any inconsistency between the Quotation and these Terms, the Quotation shall be deemed to take precedence. Any concession made or latitude allowed by BDC Moore to the Client shall not affect the strict rights of BDC Moore under this Contract. If in any particular case any of the provisions of these Terms shall be held to be invalid or shall not apply to the Contract the other provisions of these Terms shall continue in full force and effect.
2.3 This Contract is formed in accordance with clause 2.1 and shall, unless terminated earlier in accordance with clause 10, remain in force between the parties in the case of:
a) a Project Contract, until the completion of the respective obligations of the parties, at which point the contract shall expire; or
b) a Retainer Contract, for the Initial Term and indefinitely thereafter unless and until the Customer serves BDC Moore with no less than one calendar months’ notice to terminate, which shall take effect no earlier than the end of the Initial Term.
3. Duties and Obligations
3.1 During the Engagement BDC Moore shall:
a) provide the Services with reasonable care, skill and ability; and
b) promptly give to the Client all such information and reports as it may reasonably require in connection with matters relating to the provision of the Services.
3.2 In the case of a Retainer Contract, BDC Moore shall, on request, provide all such information and reports as the Client may reasonably require to demonstrate the amount of hours worked in provision of the Services.
3.3 Whilst BDC Moore may provide and agree to certain timescales, the same shall be deemed to be projected timescales only and for the avoidance of doubt time for BDC Moore’s compliance with any timescales shall not be of the essence.
3.4 The Client shall:
a) co-operate with BDC Moore in all matters relating to the Services and provide it with such information and assistance as it shall reasonably require to enable it to provide the Services in accordance with this agreement;
b) provide to BDC Moore in a timely manner and at no charge all documents, information, items and materials in any form (whether owned by the Client or third party) reasonably required by BDC Moore in connection with the Services and ensure that they are accurate and complete in all material respects;
c) obtain and maintain any and all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services in accordance with this agreement; and
d) provide BDC Moore and its personnel with any and all safe and unencumbered access to, movement around and egress from the Premises for the purposes of providing the Services.
3.5 BDC Moore shall have no liability for any failure to provide or delay in providing the Services in accordance with the terms of this Contract to the extent such failure or delay results from the failure of the Client to comply with its obligations under clause 3.2.
4. Price and Payment
4.1 The Price of the Services shall be that stated in the Quotation save to the extent that it is adjusted in any way in accordance with these Terms.
4.2 In the event that the Client requires any services to be carried out beyond the scope of the Services (‘Additional Services’) it shall pay for these on a time basis at the Additional Rate unless the Client specifically requests a price for such Additional Services in which case BDC Moore shall notify the Client in writing of the appropriate adjustment to the Quotation and unless the Client notifies BDC Moore of its rejection of such adjustment within 2 Business Days, the Client shall be deemed to have accepted the adjustment in all respects. Where the Client rejects the adjustment, it may only terminate the Contract to the extent that it relates to the adjustment with the remaining (unaffected) parts of this Contract remaining in full force and effect.
4.3 Unless otherwise specified in the Quotation, BDC Moore shall issue the Client with an invoice once the performance of the Services have been completed; and shall become due and payable via BACS payment or such other method of payment as is specified in the invoice within 14 days of its date. All monies due to BDC Moore shall be paid in full without any set-off, counterclaim, withholding or other deduction.
4.4 Sums payable under the Contract are, unless otherwise stated, exclusive of VAT, which is chargeable additionally. For the avoidance of doubt, if the rate of VAT changes between the date on which the Contract is formed and the date of the invoice, BDC Moore will charge VAT at the new rate.
4.5 In the event that the Client wishes to query or dispute any invoice then it must do so within 2 Business Days of the date of the invoice, otherwise it shall be deemed to have been accepted as correct and payable to BDC Moore. In the event of any query dispute being raised by the Client about an invoice then this is without prejudice to the Client’s obligation to pay such invoice when it falls due. In circumstances where the Client pays an invoice which it queries or disputes and BDC Moore agrees that such query or dispute was justified then BDC Moore shall issue a credit to the Client in respect of such payment within 5 Business Days of such agreement.
4.6 If the Client fails to pay any sums due to BDC Moore on time, BDC Moore may immediately cease to deliver the Services to the Client until such time as those sums are paid.
4.7 Without prejudice to any other rights it may have, BDC Moore is entitled to charge interest on any overdue sum at the maximum rate specified by the Late Payment of Commercial Debts (Interest) Act 1998.
The Client shall reimburse all reasonable expenses properly and necessarily incurred by BDC Moore in the course of the Engagement, subject to production of receipts or other appropriate evidence of payment.
6. Confidential Information
6.1 Each party acknowledges that in the course of the Engagement it will have access to the Confidential Information of the other party and has therefore agreed to accept the restrictions in this clause 6.
6.2 Neither party shall (except in the proper course of its duties), either during the Engagement or at any time after the Termination Date, use or disclose to any third party the Confidential Information of the other party. This restriction does not apply to:
a) any use or disclosure authorised by the party to which the Confidential Information belongs or as otherwise required by law; or
b) any information which is already in, or comes into, the public domain otherwise than through unauthorised disclosure.
6.3 At any stage during the Engagement, each party will promptly on request return all and any Property belonging to the other party in its possession to that party.
7. Data Protection
7.1 BDC Moore and the Client acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and BDC Moore is the data processor.
7.2 BDC Moore and the Client will comply with the Data Protection Legislation.
7.3 The Client warrants that the applicable data subject has provided its express consent to any and all of its personal data being disclosed or otherwise provided to BDC Moore or made available for BDC Moore to process during the course of the Engagement.
7.4 BDC Moore shall ensure that it has in place appropriate technical or organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures. Such measures may include, where appropriate:
a) pseudonymising and encrypting personal data;
b) ensuring confidentiality, integrity, availability and resilience of its systems and services; and
c) ensuring that availability of and access to personal data can be restored in a timely manner after an incident.
8. Intellectual Property
8.1 Save that nothing in this clause shall vest in BDC Moore any Intellectual Property Rights which vested in the Client prior to the Commencement Date, any and all Intellectual Property Rights in any Services and the Works prepared or produced for the Client by or on behalf of BDC Moore arising out of or in connection with this Contract shall belong to BDC Moore absolutely and any such Works shall be or remain the sole property of BDC Moore.
8.2 The Client shall be entitled to use as a licensee any such Works as are referred to in clause 8.1 above solely in connection with the Services and for the purposes for which they were produced but shall not be entitled to copy any such Works or use them for any other commercial purpose unless agreed otherwise in writing between the parties.
9. Liability and Indemnity
9.1 The Client shall within 2 Business Days of becoming aware of any event which may lead to it or any third party suffering Loss under this Contract, notify BDC Moore in writing of the potential Loss that may result and the likely estimated Loss such that BDC Moore may take the requisite steps in order to mitigate its potential liability.
9.2 BDC Moore shall not be liable to the Client in whether contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise for any Loss whatsoever incurred or suffered by the Client:
a) where it fails to notify BDC Moore in accordance with clause 9.1;
b) of an indirect, special or consequential nature;
c) which is economic loss or other loss of turnover, profits, business, contract, data, reputation or goodwill;
d) for a figure in excess of the total sum of payments received by BDC Moore from the Client under this Contract during the preceding 12-month period.
9.3 The Client shall indemnify, keep indemnified and hold harmless BDC Moore from and against any and all Loss, including that of an indirect, special or consequential nature and any economic loss, loss of turnover, profits, business, contract, data, reputation or goodwill whether arising in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise arising out of or in connection with the performance of this Contract and any breach of the Contract or its statutory obligations (including the Data Protection Legislation) by the Client.
9.4 Nothing in these Terms shall limit or exclude BDC Moore’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or any other matter for which it would be illegal to do so.
10.1 Either party shall be entitled to immediately terminate this Contract forthwith by notice in writing to the other on the occurrence of any of the following events:
a) if the other party goes into compulsory liquidation, ceases to do business, becomes unable to pay its debts as they fall due, becomes or is deemed insolvent, has a receiver, liquidator, administrator or administrative receiver appointed over all or any part of its assets or undertaking, or enters into any composition or arrangement, with its creditors or makes any application for a moratorium under the terms of section 1A and Schedule A1 to the Insolvency Act 1986 as amended by the Insolvency Act 2000 or takes any similar action or suffers any other similar event or undergoes any process analogous to the foregoing in any jurisdiction throughout the world;
b) if the other party (being an individual) is declared bankrupt or a petition is presented for his bankruptcy or (being a partnership) any partner is declared bankrupt or a petition is presented for his bankruptcy;
c) if any distress is levied or threatened against any of the assets of the other party;
d) if the other party (being an individual) dies or becomes mentally incapable;
e) if the other party breaches any term of this Contract and if capable of remedy, fails to remedy that breach within 10 Business Days of a written notice being served on it to that effect; or
f) as otherwise provided by these Terms.
10.2 BDC Moore shall be entitled to immediately terminate this Contract forthwith by notice in writing to the Client on the occurrence of any of the following events:
a) the Client fails to make any payment by the due date for payment;
b) the Client makes changes to the Services required to the extent that they are impractical to perform; or
c) it deems that an association with the Client would prejudicially affect its reputation; or
d) as otherwise provided for in these Terms.
10.3 In any circumstances in which BDC Moore could terminate, it may at its discretion suspend the provision of the Services without prejudice to its right to terminate and without any liability to the Client. In the event of BDC Moore exercising its right to suspend, any agreed timescales and deadlines shall be deemed extended by such period of suspension.
11. Consequences of Termination
11.1 In the event of this Contract howsoever arising:
a) any accrued rights, remedies, obligations and liabilities shall not be affected, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination; and
b) BDC Moore may issue an invoice in respect of any work undertaken under this Contract for which it has not already; and
c) the Client shall immediately pay to BDC Moore all arrears of payments and any other sums due under the terms of the Contract;
11.2 Those terms which by implication are to remain in full force and effect following the termination of this Contract shall continue to have such effect.
12. Force Majeure
Neither Party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from circumstances beyond the reasonable control of the Party affected. Each Party shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than two months, either Party may terminate the Contract by written notice to the other Party.
13.1 Nothing in this Contract shall be deemed to constitute a partnership or joint venture between the parties, nor constitute either party becoming in any way the agent of the other party for any purpose.
13.2 The relationship of BDC Moore to the Client will be that of independent contractor and nothing in this Contract shall render it an employee, worker, agent or partner of the Client and BDC Moore shall not hold itself out as such.
The failure or delay of BDC Moore at any time or times to require performance of any provision hereof shall not affect BDC Moore’s right to enforce such provision at a later time. No waiver by BDC Moore of any conditions or the breach of any term, covenant, representation or warranty contained in this Contract in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition or be deemed to be or construed as a waiver of the breach of any other term, covenant, representation or warranty in this Contract.
In the event that any provision of this Contract is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, without prejudice to the validity or enforceability of the remainder of the Contract, that provision or part provision shall, to the extent required, be modified or deleted to give full effect to the intentions of the parties or if not agreeable, to the extent necessary to give the provision or part provision legal, valid or unenforceable.
16.1 Any demand, notice, request or other document produced in relation to this Contract given shall be in writing and may be served: personally, by recorded delivery mail to the address specified in this Contract or such other address as may be notified by that party to the other; by e-mail, where valid e-mail addresses have been set out in the Contract.
16.2 A notice shall be deemed to have been served: if it was served in person, at the time of service; if it was sent by recorded delivery mail, at the time at which delivery is recorded as having taken place; or if it was e-mailed, within 2 Business Days.
17. Entire Agreement
17.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.2 Each party acknowledges that in entering into this Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract.
No variation of this Contract or of any of the documents referred to in it shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19. Third Party Rights
19.1 A person who is not a party to this Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
19.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Contract are not subject to the consent of any other person.
20. Governing Law
This 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 governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claim.