LING & DECITRE Ltd
TERMS OF BUSINESS
1. Definitions and Interpretation
1.1. In addition to words defined in a Client Letter, the following words have the following meanings when used in these Terms of Business or in a Client Letter:
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“Business Days” |
means Mondays to Fridays, excluding English Bank and public holidays. |
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“Client” |
means the company or entity identified as the client in a Client Letter. |
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“Client Letter” |
means a letter from L&D to the Client that has been countersigned by the Client and to which these Terms of Business are attached or otherwise referred to. |
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“Client Materials” |
means all documentation, manuals, records, correspondence, papers, software, hardware and other materials, whether in electronic or hard copy format. |
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“Client Responsibilities” |
means the activities, responsibilities and obligations to be undertaken by the Client, as described in a Client Letter. |
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"Confidential Information" |
means any information disclosed or made available (whether
in writing, verbally or otherwise) to L&D by the Client,
including: (ii) any information that would be regarded as
confidential by a reasonable business person in or relating to
the business, affairs operations, processes, products,
inventions, know-how, trade secrets, designs or software
relating to or belonging to the disclosing party; |
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"Contract" |
means a contract between L&D and the Client made up of a Client Letter signed by both parties, these Terms of Business and any documents expressly referred to in either of them, as amended by the parties from time to time. |
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“Deliverables” |
means all documentation, reports, presentations, drawings, designs and other materials, whether in electronic or hard copy format, produced, developed or otherwise created by L&D as a result of or in connection with the provision of the Services, but excluding the L&D Materials. |
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"Fees" |
means the fees payable by the Client, as set out in a Client Letter. |
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“Force Majeure Event” |
an event, or a series of related events, that is outside the reasonable control of the party affected, including: failures of the internet or any public telecommunications network; hacker attacks; denial of service attacks; virus or other malicious software attacks or infections; power failures; industrial disputes affecting any third party; changes to the law; disasters, explosions, fires, floods, riots, terrorist attacks and wars; failure of computer systems or infrastructure owned or managed by a party’s subcontractor or supplier; illness of an Advisor, or non-availability of an Advisor as a result of bereavement or unforeseen personal circumstances. |
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“Intellectual Property Rights” |
patents, rights in inventions, know how, show how and trade secrets, copyright and related rights, moral rights, registered designs, design rights, database rights, semiconductor topography rights, trade marks and service marks, trade names, business names, brand names, get up, logos, domain names and URLs, rights in unfair competition, goodwill and rights to sue for passing off and any other intellectual property rights (in each case, whether or not registered, and including all applications to register and rights to apply to register any of them and all rights to sue for any past or present infringement of them) and all rights or forms of protection having equivalent or similar effect in any jurisdiction. |
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“L&D” |
means Ling & Decitre Ltd t/a Elisabeth Ling, a company registered in England & Wales with company number 09224348 and its registered office at Salatin House, 19 Cedar Road, Sutton, Surrey SM2 5DA. |
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“L&D Materials” |
means any information, methodologies, framework, know- how, processes, materials or software, whether in electronic or hard copy format, owned by L&D (or licensed to it) which is either (i) in existence prior to the start date of an SOW or (ii) created by L&D outside the scope of the SOW. |
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“Services” |
means the product advisory services, leadership coaching services, consulting services and/or other services as described in a Client Letter, together with any additional services that the parties may agree pursuant to the Client Letter. |
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"Term" |
has the meaning given to it in clause 2.1. |
1.2. A reference to a statute or statutory provision includes a reference to:
1.2.1.that statute or statutory provision as modified, consolidated or re-enacted from time to time; and
1.2.2.any subordinate legislation made under that statute or statutory provision.
1.3. Clause headings do not affect the interpretation of a Contract.
1.4. General words shall not be given a restrictive interpretation by reason of being precededor followed by words indicating a particular class of acts, matters or things.
1.5. In case of a conflict or inconsistency between a Client Letter and these Terms of Business,the Client Letter prevails.
2. Term
2.1. Unless terminated earlier in accordance with clause 8, and subject to any termination provisions in the Client Letter, the Contract shall continue until the Services have been completed (“Term”).
3. Duties and obligations
3.1. During the Term L&D shall provide the Services:
3.1.1.in a timely, reliable and professional manner with the degree of skill and care that may reasonably be expected of professionals in the relevant industry; and
3.1.2.in compliance with the ethics and standards of behaviour established by the International Coaching Federation
3.2. The Client acknowledges and agrees that:
3.2.1.it is solely responsible for discharging the Client Responsibilities; and
3.2.2.L&D shall not be liable, whether under the Contract or otherwise, for any failure or delay in the provision of the Services if such failure or delay is directly or indirectly caused by the Client’s failure to discharge the Client Responsibilities, or by any other act or omission of the Client, its agents, subcontractors, consultants or employees.
3.3. The Client also acknowledges and agrees that:
3.3.1.L&D are not a financial advisers, management consultants, solicitors or accountants, and accordingly L&D does not provide any financial, management, legal, taxation or employment advice as part of the Services; and
3.3.2.the legal, financial and commercial implications of any decisions related to the Client’s business operations, strategies, and execution that the Client takes in consequence or as a result of the Services are the sole responsibility of the Client.
4. Fees and expenses
4.1. L&D shall issue invoices for the Fees and any expenses and the Client shall pay such invoices, in each case in accordance with the terms set out in the Client Letter.
4.2. The Client shall reimburse all expenses incurred by L&D in the course of carrying out the Services that have been approved in advance and in writing by the Client, subject to production of receipts or other appropriate evidence of payment.
4.3. Fees are exclusive of VAT, which will be added to the Fees if applicable.
4.4. If the Client does not pay any Fees due to L&D under the Contract, L&D may:
4.4.1.suspend the Services; and/or
4.4.2.claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
5. Confidentiality
5.1. L&D shall:
5.1.1.keep the Confidential Information strictly confidential;
5.1.2.not disclose the Confidential Information to any person without the Client’s prior written consent, and then only under conditions of confidentiality no less onerous than those set out in this clause; and
5.1.3.use the same degree of care to protect the confidentiality of the Confidential Information as L&D uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care.
5.2. Notwithstanding clause 5.1, L&D may disclose Confidential Information to its officers, employees, consultants, professional advisers, insurers, agents and subcontractors who are bound by a written agreement, statutory duty or professional obligation to protect the confidentiality of the Confidential Information.
5.3. The obligations in this clause 5 do not apply to any Confidential Information that:
5.3.1.is known to L&D before disclosure under or in connection with the Contract, and is not subject to any other obligation of confidentiality; or
5.3.2.is or becomes publicly known through no act or default of L&D; or
5.3.3.is obtained by L&D from a third party in circumstances where L&D has no reason to believe that there has been a breach of an obligation of confidentiality.
5.4. The restrictions in this clause 5 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request.
5.5. The provisions in this clause 5 shall continue in force for a period of five (5) years following the date on with the Confidential Information is disclosed, at the end of which period they will cease to have effect.
5.6. L&D will promptly on request:
5.6.1.return to the Client any Client Materials in its possession; and
5.6.2.irretrievably delete any Confidential Information stored on any magnetic or optical disk or memory, and all information derived from such sources, which is in its possession or under its control.
6. Intellectual Property Rights
6.1. In relation to the Client Materials:
6.1.1.the Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials; and
6.1.2.the Client grants to L&D a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use the Client Materials during the term of Contract for the sole purpose of providing the Services; and
6.1.3.L&D shall not sub-license, assign or otherwise transfer the rights granted to L&D under clause 6.1.2
6.2. L&D hereby assigns to the Client absolutely with full title guarantee all its right, title and interest in all existing and future Intellectual Property Rights in the Deliverables (excluding any L&D Materials forming part of the Deliverables).
6.3. In relation to the L&D Materials:
6.3.1.L&D shall retain ownership of all Intellectual Property Rights in the L&D Materials and the Client hereby assigns to L&D absolutely with full title guarantee all its right, title and interest in all existing and future Intellectual Property Rights in the L&D Materials;
6.3.2.L&D grants to the Client a fully paid-up, non-exclusive, royalty-free, licence to use and copy the L&D Materials for the Client’s internal business purposes; and
6.3.3.the Client shall not sub-license, assign or otherwise transfer the rights granted to the Client under clause 6.2.2.
6.4. L&D:
6.4.1.warrants that the receipt and use of the Deliverables in accordance with the licence set out in clause 6.2.2 complies with applicable laws and does not infringe the rights, including any Intellectual Property Rights, of any third party; and
6.4.2.shall indemnify the Client against all liabilities, costs, expenses, damages and losses suffered or incurred by the Client arising out of or in connection with any claim brought against the Client for actual or alleged infringement of a third party's Intellectual Property Rights (to the extent that the infringement or alleged infringement results from copying by L&D) arising out of, or in connection with the Client’s use of the Deliverables, but excluding any claims arising as a result of any modification of the Deliverables by the Client.
6.5. The Client:
6.5.1.warrants that the receipt and use of the Client Materials by L&D in accordance with the licence set out in clause 6.1.2 complies with applicable laws and does not infringe the rights, including any Intellectual Property Rights, of any third party; and
6.5.2.shall indemnify L&D in full against all liabilities, costs, expenses, damages and losses suffered or incurred by L&D arising out of or in connection with any claim brought against L&D, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of the Contract of the Client Materials.
7. Insurance
7.1. L&D shall, throughout the Term, effect and maintain in force with a reputable insurance company professional indemnity insurance for an amount of not less than £1,000,000 per occurrence or series of occurrences arising from one event and in the aggregate.
7.2. L&D shall on request supply to the Client both the insurance certificate giving details of cover and the receipt for the current year's premium for the insurance referred to in clause 7.1.
8. Termination
8.1. Either party may terminate the Contract by notice and with immediate effect if the other party:
8.1.1.commits any material breach of any of the provisions of the Contract and (where capable of remedy) fails to remedy the breach within thirty (30) of receiving notice thereof; or
8.1.2.makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors, or if an administration or winding-up order is made or an administrator or receiver is appointed in relation to the other party.
8.2. Notwithstanding clause 8.1, if the Client fails to pay any invoice when due, L&D may notify the Client of such failure and, if the Client fails to pay the overdue amount within five (5) Business Days of receipt of the notification, L&D may suspend the Services and/or terminate the Contract with immediate effect.
9. Consequences of termination
9.1. Termination of the Contract shall not affect the accrued rights of either party.
9.2. Within five (5) Business Days of the date on which termination of the Contract is effective:
9.2.1.L&D shall:
9.2.1.1. deliver to the Client all Client Materials which is in its possession or under its control; and
9.2.1.2. irretrievably delete any Confidential Information relating to the Client stored on any magnetic or optical disk or memory; and
9.2.2.the Client shall pay to L&D any Fees in respect of Services provided to the Client before the termination of the Contract.
10. Liability
10.1.Neither party shall be liable, whether for breach of contract, misrepresentation or otherwise, for any indirect or consequential loss, damage, expense or cost of any kind suffered or incurred by the other party.
10.2.Subject to clause 10.1, the maximum aggregate liability of a party under or in connection with the Contract, whether for negligence, breach of contract, misrepresentation or otherwise, is limited, in respect of each event or series of connected events, to an amount equal to the higher of (i) three times the Fees paid or payable by the Client under the Contract and (ii) £100,000.
10.3.Nothing in the Contract limits or excludes:
10.3.1.any liability for death or personal injury caused by negligence;
10.3.2.any liability for fraud or fraudulent misrepresentation; or 10.3.3.any liability in any way that is not permitted under applicable law.
11. Force Majeure Event
11.1.If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
11.2.A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:
11.2.1.promptly notify the other; and
11.2.2.inform the other of the period for which it is estimated that such failure or delay will continue.
11.3.A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
12. Status
12.1.The relationship of L&D to the Client will be that of independent contractor and nothing in the Contract shall render L&D or any of its employees or consultants an employee, worker, agent or partner of the Client.
13. Notices
13.1.Any notice or other communication given to a party under or in connection with this Contract:
13.1.1.must be sent by email to, in the case of L&D, [contact@elisabethling.me] or, in the case of the Client, the email address to which L&D sent the Client Letter (or to such other email address that the Client has specified for the purpose of sending notices), and
13.1.2.shall be deemed to have been received at 9.00 am on the next Business Day after transmission.
13.2.This clause 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.
14. Entire Agreement
14.1.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.
14.2.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.
14.3.Nothing in this clause shall limit or exclude any liability for fraud.
15. Variation
15.1.No variation of the Contract or of any of the documents referred to in it shall be effective unless it is in writing and signed by the parties.
16. Waiver
16.1.The failure to exercise or delay in exercising a right or remedy under the Contract shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under the Contract shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in the Contract are cumulative and not exclusive of any rights or remedies provided by law.
17. Severability
17.1.The invalidity, illegality or unenforceability of any provision of the Contract shall not affect or impact the continuation in force of the remainder of the Contract.
18. Third Party Rights
18.1.Except as expressly provided elsewhere in the Contract, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
19. Dispute resolution
19.1.If a dispute arises out of Contract that cannot be resolved by negotiation, the parties agree to attempt to mediate in good faith for up to 30 days after notice is given.
20. Governing Law and jurisdiction
20.1. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
20.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).