Terms of trade
The following terms of trade shall apply between Ben Green Associates Limited (“BGAL”) and any person or company it may be contracted by or with (“the Client”):
1. Conditions Applicable
These Terms and Conditions (“these Conditions”) shall apply to all agreements between BGAL and the Client. For the purposes of this Agreement:
- All references to “Client” will include any entity or person that is Controlled by or under the Control of the Client, or with whom the Client is under common Control. “Control” means the right of one person or entity, or two or more persons or entities acting in concert (the “first person”) to procure that the affairs or another person are conducted in accordance with the wishes of the first person, whether by virtue of holding equities, a partnership interest, membership of an unincorporated association, under contract or otherwise, and Controlled shall be construed accordingly.
- Any variation to these Conditions (including any special terms and conditions agreed between parties) shall be inapplicable unless agreed in writing by the parties.
- Fees and Expenses on Termination
If the Client decides to terminate this Agreement, it will pay BGAL the full amount of the fees set out in the Proposal and/or Engagement Letter (the “Proposal”) plus any expenses that have been incurred by BGAL up to the date of the receipt of notification of such termination. Termination must be notified in writing to BGAL.
On termination, the fees and expenses will fall due for payment 30 days after termination unless otherwise agreed in writing. Interest may be charged by BGAL for any late payments (see section 6 below).
- Professional Liability
BGAL shall not be liable to the Client for loss of profits, goodwill or any type of special, indirect or consequential loss (including actions brought by a third party) even if the loss was reasonably foreseeable or if BGAL was advised of the possibility of such loss.
BGAL shall not be liable to the Client for any legal claims or losses arising from the way in which the Client implements BGAL’s recommendations and advice; which the Client acknowledges is outside the control of BGAL.
BGAL undertakes to treat all information (in whatever form and on whatever medium) received from the Client, its partners and advisers as confidential unless it already exists in the public domain. This confidential information will be kept secure and will not be divulged to a third party (other than as required by law) without the consent of the Client or its advisers.
Unless expressly prohibited in writing by the Client prior to signing this Agreement, BGAL will be entitled to make public the fact that it has undertaken work for that Client.
The Client agrees not to disclose to a third party any information about the financial terms of BGAL’s engagement (other than as required by law) without the consent of BGAL.
5. Early Contract Termination
BGAL may give the Client written notice terminating this Agreement forthwith in the event that the Client:
- Ceases to carry on business or materially alters its business
- Commits any act of bankruptcy or makes any composition or arrangement with its creditors or a receiving order is made against the Client
- Makes default in payment of any sum due to BGAL under this Agreement or commits any other breach of these Conditions
In each case the Client will be responsible for paying the fees and expenses as set out in section 2 of these Conditions.
6. Late Payment
If any BGAL invoice is not paid within 30 days of the date of issue (or a different time period, previously agreed in writing), BGAL shall be entitled to charge interest and compensation according to the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2013.
7. Copyright and intellectual property
BGAL’s advice given to, and work carried out for, Clients must only be used in relation to the matter to which it relates. Advice or work must not be passed on to any third party without the prior written agreement of BGAL. Copyright and all other forms of intellectual property in such advice or work remain vested in BGAL.
8. Expiry of Proposal Terms
Terms are valid for four weeks from the date of the Proposal. BGAL reserves the right to change the terms of the Proposal at any point prior to its receipt of a copy of the unamended Proposal signed by the Client, together with all other required information. Until this is done, BGAL reserves the right to amend the terms of the Proposal even if work has already commenced.
9. Suspension of Project
BGAL reserves the right to change the terms of the Agreement if the project is suspended for a period of 10 working days or more, having already started. BGAL will be entitled to claim that the Client has, in effect, terminated the Agreement, in which case the Client must pay fees and expenses as set out in section 2 of these Terms and Conditions.
10. Amendments to BGAL team
BGAL reserves the right to make changes to the team described in the Proposal by replacing members with similarly capable individuals, as judged by BGAL. BGAL will give advance notice to the client before any such changes are made.
Where it is agreed that the Client will provide office accommodation and facilities (e.g. telephone, broadband) to BGAL consultants, this will be entirely at the Client’s expense.
The Client agrees to assume responsibility for the safety of all BGAL consultants whilst on the Client’s premises and further to indemnify BGAL and keep BGAL indemnified in respect of all and any liabilities of whatever sort arising out of the presence of BGAL’s consultants on the Client’s premises including without limitation all and any occupier’s liability and the Client’s obligations to health and safety.
12. Local Taxation
Where payments to BGAL are subject to local taxes and there is a recognised taxation treaty between the United Kingdom and the country where the payments are to be made from, BGAL shall reach an agreement with the Client that removes the burden of this delay in payment. Typically, this may take the form of exceptionally quick payment terms from the date of invoice.
Where payments to BGAL are subject to local taxes which are not recoverable by prevailing UK tax legislation, the expense of the tax shall be wholly borne by the Client. The amount invoiced to the Client shall be remitted in full to BGAL without any such deduction.
13. Recruitment of Staff
For a period of six months following the completion or termination of the services provided by BGAL, neither the Client nor any party controlled by the Client, shall employ or offer to employ any person who, at the date of completion or termination, was (i) employed by BGAL, (ii) contracted to work for BGAL, or (iii) an employee, owner or contractor of a third party that was part of the BGAL project team.
In the event of breach of this clause, the Client will pay to BGAL a sum equal to either the person’s annual salary (in the case of an employee) or their equivalent annualised gross income, based on the person’s remuneration by BGAL (or the third party) for their work on the Client engagement.
Any such sum shall be liquidated damages and shall be due payable immediately at the date of breach. The Client agrees that this clause is reasonable and that such sum shall be a fair estimate of the loss BGAL will suffer.
14. Client Contact
BGAL’s primary responsibility will be to the signee of the Proposal. Any amendments to this Agreement must be agreed in writing between BGAL and the signee.
15. Representations by the Client
The Client undertakes that all information supplied and instructions given by the Client will be made in good faith and will be accurate and complete.
16. Entire Agreement
These Conditions together with the Proposal constitute the entire Agreement between the parties and supersede all previous agreements and understandings between the parties. References to “this Agreement” are to these Conditions, the Proposal to which these Conditions are appended and any subsequent written amendments as provided for in these Conditions. A Proposal supersedes any earlier Proposal, unless provided otherwise in the subsequent Proposal.
No waiver by BGAL of any breach of this Agreement by the Client shall be considered as a waiver of any subsequent breach of the same of any provision.
18. Invalidity and Severability
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall continue with full force and effect.
BGAL may assign this Agreement and the rights and obligations under it. The Client may not assign this Agreement without the written consent of BGAL.
20. Force Majeure
Neither party will be liable for the delay in or for failure to perform obligations if that delay or failure is caused by circumstances beyond the control of the party including without limitation compliance with any law of governmental order, refusal revocation of licence, industrial dispute or act of God.
All notices under this Agreement shall be in writing and (without prejudice to any other effective means of serving it) may be served personally, by email or first class post and delivered or addressed to the parties at their respective addresses set out in the Proposal or such other address as may be notified from time to time by either party to the other.
22. Governing Law
The validity and interpretation of this Agreement shall be governed by the laws of England and any dispute arising thereof shall be submitted exclusively to the English Courts.