1. Scope of Work: Taylor Airey Limited (the “Company”) hereby agrees to perform the services (“Services”) described in the attached proposal (“Proposal”) to the Client. The “Agreement” consists of these Terms and Conditions and the Proposal. No other terms and conditions or documents shall form part of the Agreement unless expressly agreed in writing by authorised representatives of the Company and the Client.
2. Compensation: The Client agrees to pay the Company for the Services rendered and to reimburse the Company for expenses incurred in connection with providing the Services, in accordance with the Proposal.
3. Confidentiality: Each party as well as their affiliates (defined as legal entities directly or indirectly controlled by, controlling or under common control with one of the parties) shall keep confidential and shall not use (except in connection with this Agreement) any confidential information disclosed to it by the other party or of which it becomes aware relating to the other party. The parties agree that the following shall not constitute “confidential information”: (i) information that is in the public domain or in the possession of the receiving party at the time of disclosure to that party by the other party, (ii) information independently developed by a party, (iii) information that subsequently comes into the public domain through no fault of the receiving party, and (iv) information that is also disclosed to the receiving party by a third party who is under no obligation to the disclosing party to keep that information confidential. The foregoing notwithstanding, the Company may serve other clients in the same industry as long as it does so without compromising its responsibility to maintain the confidentiality of the Client’s confidential information including parties with whom the Client competes or has a commercial relationship.
4. Cooperation: Both the Company and the Client acknowledge and agree that successful completion of the Services will require their full and mutual good faith cooperation. The tasks to be performed by Client personnel, including staffing requirements, and the obligations of Client regarding such personnel, are as set forth in the Proposal. In addition to performing those tasks identified in the Proposal, the Client agrees to provide such services, equipment, software and support as are stated to be Client’s responsibility in the Proposal. The Client further undertakes that information provided to the Company shall be complete, accurate and prompt, that its reviews of the Company work shall be timely and shall be performed by personnel fully familiar with the Client’s business and requirements.
5. Use of Information: The Client understands and agrees that in performing this assignment the Company will be using publicly available information and information in reports and other material provided by others, including, without limitation, information provided by the Client, and that the Company does not assume responsibility for and may rely, without independent verification, on the accuracy and completeness of any such information.
6. Use of Work Product: The Client understands and agrees that all reports, analyses or other material provided by the Company are solely for the Client’s information and use in connection with the assignment and may not be delivered to any third party, or published anywhere in any form, without the prior written consent of the Company except as required by law. The Company shall retain all rights to concepts, approaches, methodologies, models, tools, generic industry information, knowledge and experience possessed by the Company prior to, or acquired by it during, the performance of the assignment.
7. Limitation of Liability:
7.1 The Company shall have no liability with respect to its obligations under this Agreement or otherwise for loss of revenue, loss of anticipated savings or any consequential loss or damages even if it has been advised of the possibility of such losses or damages and whether such losses or damages arise under breach of contract, breach of warranty, condition or other term, negligence, strict liability, breach of statutory duty, misrepresentation, tort or otherwise.
7.2 In any event, and even if the exclusion in clause 7.1 is found for any reason to be unenforceable, the total aggregate liability of the Company to the Client for any reason under or in connection with this Agreement, except as detailed in clause 7.3, shall be limited to an amount equal to 125% of the amount payable for the services that gave rise to the liability. This limitation applies to all causes of action, including without limitation to breach of contract, breach of warranty, condition or other term, negligence, strict liability, breach of statutory duty, misrepresentation, tort or otherwise.
7.3 Nothing in this Agreement shall exclude or in any way limit the Company’s liability to the Client for (i) fraud, (ii) death or personal injury caused by its negligence (including negligence as defined in the Unfair Contract Terms Act 1977), (iii) breach of terms regarding title implied by statute or (iv) any liability to the extent the same may not be excluded or limited as a matter of law.
8. Indemnification: The Client hereby agrees to indemnify and hold the Company harmless from and against all third party claims, liability, losses, damages and expenses as they are incurred, including without limitation legal fees and disbursements and the cost of the Company personnel time at normal professional rates, relating to or arising out of the Services; provided that the Client ‘s liability under this indemnity shall be reduced to the extent that any such claims, liability, losses, damages or expenses result from the negligence, recklessness or wilful default of the Company.
9. Dispute Resolution: Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity o termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this provision. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London. The language to be used in the arbitral proceedings shall be English.
10. Termination: If either party hereto ceases to trade, is unable to pay its debts as they fall due, becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver, administrative receiver, administrator or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, or has an order made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) then the other party hereto may, by giving written notice thereof to such party, terminate this Agreement as of a date specified in such notice of termination. The Client may also terminate this Agreement at any time by giving the Company thirty days’ written notice to that effect; in such event, the Company shall be entitled to payment for services rendered and for expenses and obligations incurred in connection with this Agreement prior to the effective date of termination.
11. Independent Contractor: The Company is an independent contractor and not an agent or representative of the Client. No employee of the Company shall be deemed an employee of the Client. Except as otherwise expressly agreed, the Client will not have control over the Company or its employees. The Company agrees that it shall be the Company’s responsibility to pay income taxes, national insurance and social security amounts, required by law to be paid in respect of the employees performing services hereunder.
12. Laws and Regulations: The Company agrees, in connection with the Services hereunder, to comply with all applicable laws and regulations.
13. Third-Party Hardware and Software: The parties understand that any work product delivered under this Agreement may include certain third-party hardware and/or software products. It is acknowledged by the Client that the Client shall be solely responsible for obtaining licences to such third-party software, if such software is not already in the Client’s possession, including the right to incorporate such software into its systems. The Company makes no warranties or representations hereunder, and there are no conditions applicable, express or implied, as to the quality, capabilities, operations, performance or suitability of any third-party hardware or software including the ability to integrate with any software of or developed for the Client, and the quality, capabilities, operations, performance and suitability of such third-party hardware or software lie solely with the Client and the vendor or supplier of that hardware or software.
14. No Third-Party Beneficiaries: The Company and the Client agree that this Agreement is intended by them to be solely for the benefit of the parties hereto and that no third parties may rely on any reports, analyses or other material provided by the Company or shall obtain any direct or indirect benefits from the Agreement, have any claim or be entitled to any right or remedy under this Agreement or otherwise in any way be regarded as third-party beneficiaries under this Agreement. Accordingly the parties intend that the Contracts (Rights of Third Parties) Act 1999 shall have no application to this Agreement.
15. Securities: No reference may be made to the Company in any prospectus, proxy statement, offering memorandum, information memorandum or similar document without the Company’s prior written consent, which the Company may, in its discretion, withhold.
16. Reasonable Judgment: The Company’s findings and recommendations will reflect its reasonable judgment based on the information available to it.
17. Assignment: The Client and the Company agree that neither party may assign its rights under this Agreement without the prior written consent of the other party.
18. Force Majeure: Neither party shall be liable to the other for any delay or failure to perform any of the Services or obligations set forth in this Agreement due to a cause beyond its reasonable control. Performance times shall be extended for the period required to make up the work lost because of such cause.
19. Miscellaneous: The Proposal and these Terms and Conditions constitute the entire Agreement and understanding between the parties with respect to the subject hereof, and supersede all prior discussions and writings with respect hereto. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedies shall be for breach of contract as provided in this Agreement. This Agreement shall be governed by, and construed in accordance with, the laws of England. No modification, alteration or amendment of this Agreement shall be effective unless contained in a writing that is signed by both parties and that specifically refers to this Agreement. In the event that any term or provision of this Agreement shall, for any reason, be held to be illegal, invalid or unenforceable under any applicable law, such term or provision shall be deemed severed from this Agreement, and the remaining terms and provisions will be unaffected thereby. The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party’s right later to enforce or to exercise it.
20. Headings: The headings in these Terms and Conditions are inserted for convenience only and shall not constitute a part hereof or affect in any way the meaning or interpretation of this Agreement.