TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES

GATENBYSCONSULTING LTD

1.  Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1  Definitions:

Board, means the board of directors of the Client (including any committee of the board duly appointed by it).

Booking Form, means the form to be prepared by the Consultant and completed and signed by the Client and, in the absence of such form, the specifications as shall be agreed between the Consultant and the Client in writing from time to time

Business Day, means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Client, means the person or firm who enter into an arrangement to purchase Services from the Consultant as set out in the Booking Form

Conditions, means these terms and conditions as amended from time to time in accordance with clause 12.5.

Consultant, means Nikki Gatenby of Brighton, BN1 5NA. Registered Office: Masters Fuller, 38 Salisbury Road, Worthing, BN11 1RD.

Contract, means the contract between the Consultant and the Client for the supply of Services in accordance with these Conditions and the Booking Form if and as may be signed by the Client from time to time and the signing of the Booking Form and/or the delivery of the Services by the Consultant to the Client shall be deemed to be unconditional acceptance by the Client of these Conditions and the Booking Form.

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures, has the meaning as defined in the Data Protection Legislation.

Data Protection Legislation, means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder)  and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);

Deliverables, means the deliverables set out in the Booking Form produced by the Consultant for the Client and any Updated Deliverables as the case may be.

Intellectual Property Rights, means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks 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.

Service Fees, means the fees payable by the Client for the provision of the Services in accordance with clause 5 and the Booking Form, including expenses incurred and Materials.

Services, means the services, including the Deliverables, supplied by the Consultant to the Client as set out in the Booking Form and any Updated Services as the case may be.

Updated Deliverables means any variation or addition to the Deliverables agreed by the parties in writing

Updated Services  means any variation or addition to the Services agreed by the parties in writing

1.2   Interpretation:

1.2.1   A reference to legislation or a legislative provision:

(a)     is a reference to it as amended, extended or re-enacted from time to time; and

(b)     shall include all subordinate legislation made from time to time under that legislation or legislative provision.

1.2.2   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.

1.2.3   A reference to writing or written includes email.

2.   Basis of contract

2.1    The Booking Form constitutes an offer by the Client to purchase Services in accordance with these Conditions.

2.2    The offer to purchase the Services from the Consultant shall be deemed to be accepted and the Contract shall come into existence on the Contract Commencement Date as indicated in the Booking Form or, in the absence of a Booking Form, signed or otherwise, on the date in which the Consultant performed any act in the provision of any of the Services (Commencement Date).

2.3    The Contract shall continue in accordance with clause 10 or expire on the date set out in the Booking Form, where such a date is specified, unless terminated earlier in accordance with clause 10.

2.4    Any samples, drawings, descriptive matter or advertising issued by the Consultant, and any descriptions or illustrations contained on the Consultant's websites or social media platforms, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.5   These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.6   Any quotation given by the Consultant shall not constitute an offer, and is valid for a period of 20 Business Days from its date of issue.

3.   Consultancy Services

3.1    The Consultant shall provide the Services to the Client in accordance with the Booking Form in all material respects.

3.2   The Consultant shall use all reasonable endeavours to meet any dates specified in the Booking Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3    The Consultant reserves the right to amend the Booking Form if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Consultant shall notify the Client in any such event.

3.4    The Consultant warrants to the Client that the Services will be provided using reasonable care and skill.

3.5    Unless specifically stated in the Booking Form, the Consultant shall not:

3.5.1   be formally appointed as a director of the Client at Companies House;

3.5.2        be liable to the Client for any statutory or fiduciary directors’ duties;

3.5.3        be deemed or perceived to be a director or shadow director of the Client.

4. Client's obligations

4.1   The Client shall:

4.1.1    ensure that the terms of the Booking Form are complete and accurate;

4.1.2   co-operate with the Consultant in all matters relating to the Services;

4.1.3   provide the Consultant, its employees, agents, consultants and subcontractors, with access to the Client's premises, office accommodation and other facilities as reasonably required by the Consultant;

4.1.4   provide the Consultant with such information and materials as the Consultant may reasonably require in order to provide the Services, and ensure that such information is complete and accurate in all material respects;

4.1.5   obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

4.1.6   comply with any additional obligations as set out in the Booking Form.

4.2     If the Consultant's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):

4.2.1   without limiting or affecting any other right or remedy available to it, the Consultant shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Consultant's performance of any of its obligations;

4.2.2 the Consultant shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Consultant's failure or delay to perform any of its obligations as set out in this clause 4.2; and

4.2.3  the Client shall reimburse the Consultant on written demand for any costs or losses sustained or incurred by the Consultant arising directly or indirectly from the Client Default.

4.3    In the event that the Consultant is formally appointed as a director of the Client at Companies House or is deemed to be a shadow director then the Client shall indemnify the Consultant against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Consultant arising out of or in connection with any action of the Board, including but not limited to any breach of statutory or fiduciary directors’ duties and/ or claims for wrongful or fraudulent trading.

4.4     If a payment due from the Client under clause 4.3 is subject to tax (whether by way of direct assessment or withholding at its source), the Consultant shall be entitled to receive from the Client such amounts as shall ensure that the net receipt, after tax, to the Consultant in respect of the payment is the same as it would have been were the payment not subject to tax.

4.5    Nothing in clause 4.3 shall restrict or limit the Consultant's general obligation at law to mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.

4.6    Clauses 4.3 To 4.5 inclusive shall survive termination.

5.       Service Fees and Payment

5.1       The Service Fees for the Services shall be invoiced by the Consultant and paid by the Client prior to the commencement of the Services, unless as set out otherwise in the Booking Form, in full and in cleared funds to a bank account nominated in writing by the Consultant, and time for payment shall be of the essence of the Contract.

5.2     The Consultant shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Consultant engages in connection with the Services including, but not limited to, travelling expenses, subsistence, Materials or any other typical expense and any associated expenses, and for the cost of services provided by third parties and required by the Consultant for the performance of the Services, and for the cost of any Materials.

5.3      The Client acknowledges that Updated Deliverables and/ or Updated Services may attract additional fees or an increase to the Service Fees. In such event the Consultant shall confirm any additional fee or increase to the Service Fees in writing and they shall be payable in accordance with this clause 5.

5.4     The Consultant reserves the right to increase the Service Fees from time to time and will provide written notice to the Client of any such increase.

5.5     The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Consultant in order to justify withholding payment of any such amount in whole or in part. The Consultant may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Consultant to the Client.

6.        Intellectual property rights

6.1       All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by the Consultant.

6.2    The Consultant grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy and modify the Deliverables (excluding materials provided by the Client) for the purpose of receiving and using the Services and the Deliverables in its business.

6.3    The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.

6.4   The Client grants the Consultant a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Consultant for the term of the Contract for the purpose of providing the Services to the Client.

7.      Data protection

7.1    Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

7.2   The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and the Consultant is the Processor. Schedule 1 sets out the scope, nature and purpose of processing by the Consultant, the duration of the processing and the types of Personal Data and categories of Data Subject. Schedule 1 may be amended by either party as long as such amendment is agreed in writing by the parties

7.3    Without prejudice to the generality of clause 7.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Consultant and/or lawful collection of the Personal Data by the Consultant on behalf of the Client for the duration and purposes of this agreement.

7.4   Without prejudice to the generality of clause 7.1, the Consultant shall, in relation to any Personal Data processed in connection with the performance by the Consultant of its obligations under this agreement ensure that it processes Personal Data only on the documented written instructions of the Client (unless otherwise required by law) and in accordance with the Data Protection Legislation.

7.5   The Client consents to the Consultant appointing Microsoft, Google, Slack, Notion, Trello and Miro, and any supplier of similar software or services, as a third-party processors of Personal Data under this agreement. The Consultant confirms that it has entered or (as the case may be) will enter with each third-party processor into a written agreement substantially on that third party's standard terms of business which reflect and will continue to reflect the requirements of the Data Protection Legislation.

7.6    Either party may, at any time on not less than 30 days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms adopted under the Data Protection Legislation or forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

8.      Limitation of liability: THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

8.1     Nothing in these Conditions shall limit or exclude the Consultant's liability for:

8.1.1   death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

8.1.2  fraud or fraudulent misrepresentation; or

8.1.3  breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

8.2    Subject to clause 8.1:

8.2.1   the Consultant 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 Contract; and

8.2.2  the Consultant's total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the value of the Service Fees paid under the Contract.

8.3     The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

8.4     Nothing in this clause 8 shall limit or exclude the Client’s liability to the Consultant in respect of a claim made under clause 4.3.

8.5     This clause 8 shall survive termination of the Contract.

9.       Consequences of cancellation by the Client

9.1      The Client may cancel the booking of the Services in full, or any part of the Services, prior to the Services Commencement Date, subject to giving written notice to the Consultant and upon making payment to the Consultant of the cancellation fee as set out in the table below

Cancellation Period 31 days or more Cancellation Fee Nil

Cancellation Period 15 to 30 days Cancellation Fee 50%

Cancellation Period 3 to 14 days Cancellation Fee 75%

Cancellation Period Up to 72 hours Cancellation Fee 100%

The percentages shown above are of the quoted or estimated Service Fee and the periods relate to the number of days before the Commencement Date of the agreed Services or part of the Services.

Without notice, Cancellation Fee is 100%

10.        Notice and Termination

10.1        The Contract shall run for a period of 6 months from the Commencement Date (“Initial Period”). Upon expiry of the Initial Period the Contract shall automatically renew and run indefinitely unless otherwise stated in the Booking Form or it is terminated in accordance with clause 10.2.

10.2        Without affecting any other right or remedy available to it, either party may terminate the Contract in the following manner:

10.2.1     At the expiry of the Initial Period by giving written notice no less than 7 days prior to the expiry of the Initial Period; or

10.2.2    At all other times by giving no less than 3 months written notice.

10.3       Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

10.3.1     the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within seven days of that party being notified in writing to do so;

10.3.2    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;

10.3.3     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

10.3.4     the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

10.4        Without affecting any other right or remedy available to it, the Consultant may terminate the Contract with immediate effect by giving written notice to the Client if:

10.4.1      the Client fails to pay any amount due under the Contract on the due date for payment; or

10.4.2     there is a change of control of the Client.

10.5       Without affecting any other right or remedy available to it, the Consultant may suspend the supply of Services under the Contract or any other contract between the Client and the Consultant if:

10.5.1      the Client fails to pay any amount due under the Contract on the due date for payment;

10.5.2     the Client becomes subject to any of the events listed in clause 10.3.3 or clause 10.3.4, or the Consultant reasonably believes that the Client is about to become subject to any of them; and

10.5.3     the Consultant reasonably believes that the Client is about to become subject to any of the events listed in clause 10.3.2.

11.    Consequences of termination

11.1   On termination or expiry of the Contract:

11.1.1  the Client shall immediately pay to the Consultant all of the Consultant's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Consultant shall submit an invoice, which shall be payable by the Client immediately on receipt;

11.2   Termination or expiry of the Contract shall not affect any 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.

11.3   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.

12.  General

12.1  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.

12.2  Assignment and other dealings.

12.2.1  The Consultant may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

12.2.2  The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Consultant.

12.3    Confidentiality.

12.3.1   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 Consultants of the other party, except as permitted by clause 12.3.2.

12.3.2 Each party may disclose the other party's confidential information:

(a) 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 this clause 12.3; and

(b)  as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.3.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

12.4  Entire agreement.

12.4.1 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.

12.4.2  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.

12.4.3 Nothing in this clause shall limit or exclude any liability for fraud.

12.5    Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

12.6    Waiver. 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. 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.

12.7    Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Contract deleted under this clause 12.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

12.8    Notices.

12.8.1   Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by email to the address specified in the Booking Form or any other such email address notified in writing from time to time.

12.8.2  Any notice or communication made under clause 12.8.1 shall be deemed to have been received 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 12.8.2, business hours means 10.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

12.8.3  This clause 12.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

12.9    Third party rights.

12.9.1    Unless it expressly states otherwise, 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.

12.9.2   The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

12.10     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.

12.11      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.

Schedule 1

Processing, Personal Data and Data Subjects

1.         Processing by the Provider

1.1          Scope

Processing necessary for providing the Services as required.

1.2          Nature

Data will be used to facilitate provision of the Services. This will include contacting individuals at the Client, sending emails, arranging meetings and taking notes in meetings as well as any other function required to provide the Services.

1.3          Purpose of processing

Providing the Services

1.4          Duration of processing

Term of Contract plus any period required to comply with legal obligations following expiry of the Contract,

2         Types of Personal Data

Contact and identity data

3         Categories of Data Subject

Management team and employees of Client