TERMS & CONDITIONS
THOMSON RURAL LIMITED
TERMS AND CONDITIONS FOR THE SUPPLY OF FARM BUSINESS CONSULTANCY SERVICES
1. Interpretation
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Fees: the fees payable by the Client for the supply of the Services by Thomson Rural, as set out in the Letter of Engagement.
Conditions: these terms and conditions set out in clause 1 (Interpretation) to clause 10 (General) (inclusive).
Contract: the contract between the Client and Thomson Rural for the supply of the Services in accordance with the Letter of Agreement and these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Client Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Client to Thomson Rural.
Deliverables: all documents, products and materials developed by Thomson Rural or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts).
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.
Letter of Engagement: Thomson Rural's letter to the Client confirming the Services.
Services: the services, including without limitation any Deliverables, to be provided by Thomson Rural pursuant to the Contract, as set out in the Letter of Engagement.
Services Start Date: the day on which Thomson Rural is to start provision of the Services, from the date of the Letter of Engagement.
Thomson Rural IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding any Client Materials incorporated in them.
1.2 Interpretation:
(a) A reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email.
(d) In the event of any inconsistency between the Letter of Engagement and these Conditions, the Letter of Engagement shall prevail.
2. Commencement and term
The Contract shall commence from the date of the Letter of Engagement and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than 30 days' written notice to terminate, expiring on or after the first anniversary of the Services Start Date.
3. Supply of services
3.1 Thomson Rural shall supply the Services to the Client from the Services Start Date in accordance with the Contract.
3.2 In supplying the Services, Thomson Rural shall:
(a) perform the Services with reasonable care and skill;
(b) ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;
(c) comply with all applicable laws, statutes, regulations and codes from time to time in force provided that Thomson Rural shall not be liable under the
contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract;
(d) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Client's premises and have been communicated to Thomson Rural, provided that Thomson Rural shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
(e) take reasonable care of all Client Materials in its possession and make them available for collection by the Client on reasonable notice and request, always provided that Thomson Rural may destroy the Client Materials if the Client fails to collect the Client Materials within a reasonable period after termination of the Contract.
4. Client's obligations
4.1 The Client shall:
(a) co-operate with Thomson Rural in all matters relating to the Services;
(b) provide, for Thomson Rural, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client's premises, office accommodation, data and other facilities as required by Thomson Rural; and
(c) provide, in a timely manner, such information as Thomson Rural may reasonably require, and ensure that it is accurate and complete in all material respects.
4.2 If Thomson Rural's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Thomson Rural shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Fees despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses Thomson Rural sustains or incurs that arise directly or indirectly from such prevention or delay.
5. Data protection
Thomson Rural shall only process the Client's personal information as set out in Thomson Rural's Privacy Notice, can be found at Thomsonrural.co.uk.
6. Intellectual property
6.1 Thomson Rural and its licensors shall retain ownership of all Thomson Rural IPRs. The Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials.
6.2 Thomson Rural grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy Thomson Rural IPRs for the purpose of receiving and using the Services and the Deliverables in the Client's business during the term of the contract.
6.3 The Client grants Thomson Rural a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of the Contract for the purpose of providing the Services to the Client in accordance with the Contract.
6.4 Thomson Rural shall indemnify the Client in full against any sums awarded by a court against the Client arising out of or in connection with any claim brought against the Client for infringement of a third party's rights (including any Intellectual Property Rights) arising out of or in connection with the receipt or use of the Services by the Client.
6.5 The Client shall indemnify Thomson Rural in full against any sums awarded by a court against the Thomson Rural arising of or in connection with any claim brought against Thomson Rural for infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Client Materials by Thomson Rural.
7. Fees and payment
7.1 In consideration for the provision of the Services, the Client shall pay Thomson Rural the Fees in accordance with thisclause 7.
7.2 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to Thomson Rural at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
7.3 Thomson Rural shall submit invoices for the Fees, plus VAT if applicable to the Client, on conclusion of the Services as well as raising interim invoices at regular intervals or at appropriate stages. Each invoice shall include all reasonable supporting information required by the Client.
7.4 The Client shall pay each invoice due and submitted to it by Thomson Rural, within 14 days of receipt, to a bank account nominated in writing by Thomson Rural.
7.5 If the Client fails to make any payment due to Thomson Rural under the Contract by the due date for payment, then, without limiting Thomson Rural's remedies underclause 9 (Termination):
(a) the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
(b) Thomson Rural may suspend all Services until payment has been made in full.
7.6 All amounts due under the Contract from the Client to Thomson Rural shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Limitation of liability
8.1 References to liability in thisclause 8 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
8.3 Nothing in thisclause 8 shall limit the Client's payment obligations under the Contract.
8.4 Nothing in the agreement shall limit the Client's liability under clause6.5 of the Contract.
8.5 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.6 Subject toclause 8.2 (No limitation in respect of deliberate default), clause 8.3 (No limitation on Client's payment obligations), clause 8.4 (Liability under identified clauses) and clause 8.5 (Liabilities which cannot legally be limited) Thomson Rural's total liability to the Client for all other loss or damage shall not exceed the Fees paid by the Client over the previous 12 months for the Services under which the claim has arisen.
8.7 Subject toclause 8.2 (No limitation in respect of deliberate default), clause 8.3 (No limitation on Client's payment obligations), clause 8.4 (Liability under identified clauses) and clause 8.5 (Liabilities which cannot legally be limited), this clause 8.7 sets out the types of loss that are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
8.8 Thomson Rural has given commitments as to compliance of the Services with relevant specifications inclause 3. In view of these commitments, the terms implied by sections 3 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.9 Unless the Client notifies Thomson Rural that it intends to make a claim in respect of an event within the notice period, Thomson Rural shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 6months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9. Termination
9.1 Without affecting any other right or remedy available to it, Thomson Rural may terminate this agreement immediately on giving written notice to the Client.
9.2 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's reasonable opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, Thomson Rural may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Client.
9.4 On termination or expiry of the Contract for whatever reason:
(a) the Client shall immediately pay to Thomson Rural all of Thomson Rural's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Thomson Rural may submit an invoice, which shall be payable immediately on receipt;
(b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
(c) termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.
General
10.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.2 Assignment and other dealings.
(a) The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without Thomson Rural's prior written consent.
(b) Thomson Rural may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
10.3 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or Thomson Rurals of the other party, except as permitted byclause 10.3.
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with thisclause 10.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Contract.
10.4 Entire agreement.
(a) The 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.
(b) Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
10.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 Waiver.
(a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
10.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 10.7 shall not affect the validity and enforceability of the rest of the Contract.
10.8 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 10.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 10.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
10.9 Third party rights.
(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
10.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
10.11 Jurisdiction.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
