1. BACKGROUND

(A) Article 13 is a specialist company advising on issues of sustainable development, corporate governance and responsibility and has been asked by the Client to provide those services to the Client (“the Services”) in relation to the Assignment

(B) Article 13 and the Client have agreed to enter into this Agreement to set out the basis upon which the Services shall be delivered to the Client in relation to the Assignment.

 

2. DEFINITIONS AND INTERPRETATION

2.1 The following terms shall have the following meanings for the purposes of this agreement:

‘Assignment’ relates to respective client brief

2.1.1 ‘Assignment Confirmation Statement’ means the document attached to this Agreement and headed ‘Assignment Confirmation Statement’ and which sets out the details of the Assignment, the Job Specification and the Fees

2.1.2 ‘Associate’ means a person organisation company or body approved by Article 13 to whom Article 13 has sub-contracted the provision of any part or parts of the Services.

2.1.3 ‘Commencement Date’ means the date on which this respective work began;

2.1.4 ‘Employees’ means employees of the Article 13;

2.1.5 ‘Fees’ means the payment by the Client for the Services payable in accordance with clause 6 and set out in the Assignment Confirmation Statement;

2.1.6 ‘Job Specification’ means the written details of the Services to be provided by Article 13 in relation to the Assignment and the timetable for implementation of them both set out in the Assignment Confirmation Statement;

2.1.7 ‘Services’ means the services set out in detail in the Assignment Confirmation Statement

2.2 Headings contained in this agreement are for reference purposes only and should not be incorporated into this agreement.

2.3 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 agreement shall include all genders and the plural and the successor in title to the parties.

 

3. GENERAL

3.1 The parties hereby warrant that they have full power and authority to enter into and perform this Agreement without obtaining the consent of any third party

3.2 Article 13 warrants that the Services will be provided by its Employees or by Associates.

 

4. ARTICLE 13’s obligations when providing Services

4.1 Article 13 when providing Services for the Client shall and shall procure that its Employees and Associates shall at all times:

4.1.1 use reasonable commercial endeavours to meet such targets and due dates for delivery in relation to the Services as may be set out in the Job Specification or as may be agreed between the Client and Article 13 from time to time;

4.1.2 ensure that the Services are performed in accordance with good industry practice and that all reasonable demands of the Client are met in a timely fashion;

4.1.3 devote as much resources and time and attention as is necessary properly to provide the Services to the Client in relation to the Assignment; and

4.1.4 work and co-operate with the Client’s personnel and with any third party who may be appointed for whatever purpose by the Client.

4.2 In performing the Services Article 13 undertakes and shall procure that its Employees and Associates shall comply with all applicable legal requirements.

4.3 The parties intend that Article 13 and its Associates shall have the status of independent contractors, which status shall not confer on the Article 13 or any of its Employees or Associates any authority or agency on the Client’s behalf except as expressly provided by this Agreement.

4.4 Nothing in this Agreement or in any instructions to provide any Services shall be deemed to create the relationship of employer and employee between the Client and Article 13 or any of its Employees or to create any partnership between Article 13 and any other party.

 

5. COMPLAINTS

5.1 If the Client has any problem concerning the provisions of any Services in relation to an Assignment, it should raise those concerns with a Director of Article 13 who will discuss the problem and, where appropriate, initiate an investigation as soon as practicable, with a view to remedying the situation.

 

6. CHARGES

6.1 Article 13 shall render invoices to the client at the intervals specified in the Assignment Confirmation Statement indicating the Fees payable by the Client at the agreed rate together with all other expenses properly payable in accordance with the Assignment Confirmation Statement.

6.2 Invoices are payable by the Client within 30 days of submission (or as specified in programme agreement). If any invoice remains unpaid after its due date, Article 13 may elect, without limiting its remedies:

6.2.1 not to perform any further work for the Client on any matter until all unpaid invoices and any interest which Article 13 may elect to charge are paid in full; and/or

6.2.2 to retain custody of any of the documents, plans etc produced in performance of the Assignment until all unpaid invoices and any outstanding expenses are settled in full; and/or

6.2.3 to charge interest on any amount outstanding from the date 30 days after the date on which the invoice is submitted until the invoice is paid at a rate of 8% over the National Westminster Bank plc base rate from time to time

 

7. COMPENSATION FEES

7.1 Any engagement, within 6 months of the end of the Assignment, by the Client, directly or indirectly, whether under a contract of service or for services or in partnership or otherwise with or of any Associate or Employee who has been introduced to the Client by Article 13 or who has or have been supplied by Article 13 to carry out an Assignment for the Client at any time during the six months preceding that engagement shall render the Client liable to pay Article 13 a fee equal to half of the total fee at which the Associate or Employee was charged to the Client by Article 13 under the most recent Assignment completed by that Associate or Employee for the Client.

 

8. BENEFIT OF ADVICE

8.1 Unless otherwise specifically agreed by Article 13 any Services rendered or materials produced to or for the Client during the Assignment are for the benefit of the Client only and may not, without prior written consent of Article 13, be relied upon by another party, and no confidential information disclosed to the Client during the course of the Assignment may be disclosed by the Client (save to employees or agents who have access to papers and records in the normal course of business on the basis they will make no further disclosure), or quoted or referred to in a public document or published in any publication.

 

9. CONFIDENTIALITY

9.1 Each party undertakes that it shall not at any time during this Agreement, and for a period of five years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 9.2

9.2 Each party may disclose the other party’s confidential information:

9.2.1 to its employees, officers, representatives or advisers who need to know that information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause; and

9.2.2 as may be required by law, court order or any governmental or regulatory authority.

9.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.

10. Copyright and intellectual property

10.1 Article 13 shall have exclusive rights to any materials (including but not limited to Article 13’s products or services) that it provides to the Client for the purposes of delivering the Services and the Client shall not acquire any copyright or other intellectual property rights in respect of any such material.

 

11. CONFLICTS

11.1 Article 13 will contact the Client if it becomes aware of any business received, which may conflict with an Assignment on which it is engaged by the Client. If Article 13 becomes aware of a conflict of interest, which prevents it from continuing the Assignment, it will inform the Client immediately and assist the Client in finding new advisers and provide an effective transfer to such advisers. The Client agrees to continue to pay the Fees to the date of any such transfer

 

12. LIMITATION OF LIABILITY

12.1 The parties have discussed the extent of Article 13’s liability to the Client under and in respect of this Agreement, the Services and the Assignment, and their individual circumstances, including the fact that Article 13 carries Professional Indemnity Insurance in relation to the Agreement, the Services and the Assignment

12.2 Having considered these matters, the parties have reached an agreement that they believe represents a fair maximum limit to Article 13’s liability. That limit to Article 13’s liability will be as set out in clause 12.3.2

12.3 In reaching this agreement it is agreed that:

12.3.1 Article 13 does not exclude liability for death or personal injury caused by its negligence or that of any Employee, nor for fraud or fraudulent misrepresentation or any other matter for which it cannot by law exclude liability;

12.3.2 Article 13's total liability to the Client in respect of all other losses arising under or in connection with the Agreement, the Services or the Assignment, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Fees paid under this Agreement at the date of the claim;

12.3.3 Article 13 shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Agreement, the Services or the Assignment

12.3.4 Limit on Article 13’s liability referred to in clause 12.3.2 shall be inclusive of all and any claims for interest and cost;

12.3.5 Article 13 accepts no liability to any third parties in relation to any aspect of its Services or any material derived from them, which is made available to them without Article 13’s consent;

12.3.6 Except as set out in this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement, the Assignment and the provision of the Services

12.4 Where the Assignment involves an assessment of commercial risk Article 13 will use reasonable efforts to provide the Client with as accurate an assessment of risk as possible, but the Client agrees to accept any such assessment as an expression of opinion only and not a statement of fact. The Client agrees that any decision to rely upon any assessment of risk provided by Article 13 is solely the Client’s responsibility and that Article 13 will not be liable for any losses incurred by the Client as a result of reliance placed by it on such opinions

12.5 The Client shall keep Article 13 indemnified in respect of any claims arising from the death or injury to any person or loss or damage to property arising from the negligence or wilful default of the Client or any of its employees.

 

13. DURATION AND TERMINATION

13.1 This Agreement shall come into force on the Commencement Date and subject as otherwise provided in this Agreement shall continue in force until the completion of the Services in relation to the Assignment or until terminated by

13.1.1 Article 13 giving to the Client not less than 90 days’ prior notice in writing (unless terminated earlier in accordance with Clause 13.3); or

13.1.2 Immediately by the Client at any time during the Assignment upon notice to Article 13

and in either case the parties shall continue to perform their obligations under this Agreement until the date of termination of this Agreement (the “Termination Date”).

13.2 If the Client gives notices to terminate this agreement under clause 13.1.2 it shall:

13.2.1 immediately pay Article 13 a sum (not to exceed £2500) specified by Article 13 to cover costs incurred by Article 13 and caused by the termination; and

13.2.2 immediately pay all expenses incurred by Article 13 in the provision of the Services; and

13.2.3 immediately pay Article 13 the full balance of any invoice outstanding at the Termination Date; and

13.2.4 immediately pay Article 13 for any work in progress not invoiced at the Termination Date

13.3 Notwithstanding Clause 13.1 above, and without limitation to any other rights and remedies of Article 13, Article 13 may terminate this Agreement immediately on notice in writing to the Client if:

13.3.1 the Client commits any breach of this Agreement or the Assignment Confirmation Statement (whether by one or several acts or omissions) or repeats or continues any material breach of its obligations after having at any time received written notice from Article 13 and has not remedied that breach within 30 days of receiving that notice of the breach;

13.3.2 the Client makes or seeks to make any voluntary arrangement with or convenes a meeting of its creditors (within the meaning of the Insolvency Act 1986 as amended) or becomes bankrupt or insolvent;

13.3.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client;

13.3.4 the Client ceases, or threatens to cease to carry on business; or

13.3.5 Article 13 reasonably apprehends that any of the events mentioned in 13.3.2 to 13.3.4 above is about to occur in relation to the Associate and notifies the Associate accordingly.

 

14. MISCELLANEOUS

14.1 Any notice given by either party for the purposes of this Agreement shall be sufficiently given if sent by hand, by pre-paid first class post or by facsimile transmission addressed to the other party’s registered office and any such notice shall be deemed to be given (in the case of notice delivered by hand) upon delivery (if sent by facsimile transmission) upon transmission or (if sent by post) at the time at which the notice would in the ordinary course of post have been received.

14.2 Each party on behalf of itself acknowledges and agrees with the other party that:

14.2.1 this agreement together with any documents referred to in it constitutes the entire agreement and understanding between Article 13 and the Client and supersedes any previous arrangement, understanding or agreement between them relating to the Assignment (which shall be deemed to have been terminated by mutual consent);

14.2.2 in entering into this Agreement neither party has relied on any pre-contractual statement made by the other or any person on the other’s behalf

14.3 The invalidity or unenforceability of any provision of this Agreement shall not affect the remainder of this Agreement which shall continue in full force and effect in accordance with its terms.

14.4 The termination of this Agreement shall not operate to affect any accrued rights or such of the provisions of this Agreement as in accordance with their terms are expressed to operate or otherwise have effect after such expiration or termination.

14.5 The express or implied waiver by any party of any right under this Agreement or of any breach or default by the other party shall not constitute a waiver of any other right under this Agreement or of the same breach or default on another occasion.

14.6 The Contracts (Rights of Third Parties) Act 1999 shall not apply to any contract incorporating these Terms except to the extent that any provision of these Terms expressly provides to the contrary.

14.7 This Agreement shall be governed by the laws of England and Wales.

14.8 All disputes between the parties whatsoever and howsoever arising shall be adjudicated upon by the courts of England and Wales to whose exclusive jurisdiction the parties hereby irrevocably submit.