TERMS OF BUSINESS
Gatefold, a United Kingdom limited company whose office
is at: 5 Britannia Building, Ebenezer Street, London, N1 7RP ("we") are pleased to
set out the Terms of Business which will apply to the work we do for you.
These Terms of Business and the attached terms of engagement and/or proposal
document, as the case may be, once signed by both parties (the "Terms
of Engagement") form the Contract between us. If at any time you
have any questions in connection with the Contract or our work please
let us know.
1. The Services We Will Provide
1.1 We will provide the Services described in the Terms of Engagement
at the location(s) set out in the Terms of Engagement. Where the
Terms of Engagement refer to services to assist you this means that
we will use reasonable skill and care to assist you with your project
but that you will be responsible for the overall management and
control of the Services and for the results to be achieved from
using the Services. Where the Terms of Engagement refer to services
to perform this means that we will provide you with the Services
and will be responsible for the management and control of the Services
and the quality of any Deliverables listed or referred to in the
Terms of Engagement.
1.2 Our staff - Where individual partners or members of our staff
are named in the Terms of Engagement we will use reasonable efforts
to ensure that the named individual(s) are available to support
our work for you for the estimated period stated in the Terms of
Engagement. You agree that, from time to time and subject to reasonable
notice, such staff may need to attend training programmes to develop
their professional skill and knowledge. Where we consider changes
in our named staff are necessary or appropriate we will give you
reasonable notice of the changes and will provide you with details
of replacement staff.
1.3 Timetable - Where a Timetable is referred to or set out in the
Terms of Engagement we will use reasonable efforts to carry out
our obligations in accordance with the Timetable. However, unless
both of us specifically agree otherwise in writing, dates contained
in the Timetable are intended for planning and estimating purposes
only and are not contractually binding.
1.4 Changes to services - Either of us may request changes to the
Services or changes to any other aspect of the Contract. Requests
for changes must be sufficiently detailed to enable the other party
to assess the impact of the requested change on the cost, Timetable
or any other aspect of the Contract. Both of us agree to work together
to consider, and if appropriate, agree any changes. Until a change
is agreed in writing both of us will continue to act in accordance
with the latest agreed version of the Contract.
1.5 Contract Management Each of us will name a contact who will
be responsible for managing all issues relating to the performance
of the Contract. The initial contacts are named in the Terms of
2.1 We will prepare the Deliverables listed or referred to in the
Terms of Engagement, if any, and deliver these to you.
2.2 Acceptance - The Deliverables will be accepted by you when the
acceptance criteria specified in the Terms of Engagement, if any,
have been met or when you make any productive or live use of the
Deliverables whichever occurs first. Where no criteria are specified
the Deliverables will be accepted on delivery to you.
2.3 Ownership of Deliverables
2.3.1 Client Materials - Subject to
Clause 2.3.2 below, you will own the copyright in all those Deliverables
identified in the Terms of Engagement as "Client Materials".
You grant to us a non-exclusive, royalty-free, worldwide, perpetual
right to use, copy, adapt, modify, sub-license and market the Client
2.3.2 The copyright and other intellectual property rights in any
materials or software (whether written or machine-readable) created
by or licensed to us prior to this Contract or outside this engagement
and any subsequent modifications to the same ("Pre- Existing
Works") will remain vested in us (or our licensor), but to
the extent that these form part of any of the Deliverables, you
will have a licence to use them in accordance with Clause 2.3.3
2.3.3 We will own the copyright and all other intellectual property
rights in all Deliverables which are not identified as Client Materials
and in all other materials or software created under the Contract
whether by or on behalf of us solely or both parties jointly. You
will have a non-exclusive, non-transferable licence to use these
Deliverables (and any Pre-Existing Works to the extent that these
form part of the Client Materials) for your own internal use and
only for the purposes for which they were delivered but you must
not provide these Deliverables (or any Pre-Existing Works to the
extent that these form part of the Client Materials) or copies of
them to any third party.
2.3.4 Computer Software - Notwithstanding any other provisions of
these Terms of Business the use of any computer software Deliverables
which are not Client Materials will be subject to the terms of the
Software Licence referred to in the Terms of Engagement or where
no such licence is referred to you may use the software in accordance
with the licence granted by Clause 2.3.3 above.
2.3.5 Each party will at the request and reasonable expense of the
other execute all such documents and do all such acts as may be
reasonably necessary in order to vest in the other the rights granted
to the other under this Clause 2.3.
2.4 Freedom to Use Ideas - We, and any other
entity (whether or not incorporated) which carries on business under
a name which includes all or part of the Gatefold name or is otherwise
within (or associated or connected with an entity within) or is
a correspondent firm of the worldwide network of Gatefold firms
("Gatefold Entity") will not be prevented or restricted
by this Contract from developing and using any techniques, ideas,
concepts, information or know-how relating to methods or processes
of general application including those in the field of information
technology and business processes.
3. Your Responsibilities
Our performance is dependent on you carrying out your responsibilities
as set out in this Contract.
3.1 Support Facilities - You agree to provide us and our staff with
all office and other accommodation and facilities that we may reasonably
require to perform the Services, in particular secretarial support,
access to telephone and fax communications and computer facilities.
You will be responsible for ensuring that you have appropriate back-up,
security and virus-checking procedures in place for any computer
facilities you provide.
3.2 Information & Materials - You agree to provide all information
and materials reasonably required to enable us to provide the Services.
You agree that all information disclosed or to be disclosed to us
is or will be true, accurate and not misleading in any material
3.3 Your Staff - You will ensure that your staff are available to
provide such assistance as we reasonably require and that we are
given reasonable access to senior management, as well as any members
of your staff specified in the Terms of Engagement to enable us
to provide the Services. You will be responsible for ensuring that
your staff have the appropriate skills and experience. If any of
your staff fail to perform as required, you will make suitable additional
or alternative staff available.
3.4 Suppliers and other Third Parties - Where you are using third
parties to provide information or support to a project including
but not limited to where you are employing other suppliers whose
work may affect our ability to provide the Services you will ensure
that you have appropriate agreements in place with those third parties
to enable us to perform the Services under the terms of this Contract.
Unless specifically agreed otherwise in writing you will be responsible
for the management of the third parties and the quality of their
input and work.
3.5 Payment for Services - You agree to pay for the Services as
set out in the Terms of Engagement and Clause 4 below.
4. Fees and Payment
4.1 How fees will be calculated - Fees will be charged on the basis
set out in the Terms of Engagement. Unless the Terms of Engagement
state otherwise Time and Materials charging will apply in accordance
with Clause 4.2 below.
4.2 Time and Materials Hours - Where Time and Materials charging
applies charges will be calculated on the basis of a 7 hour day
worked on weekdays excluding public holidays. If our staff are required
to work away from home for extended periods, we will have flexibility
in the way we divide their time between your sites and their home
base. Travel time, other than time spent travelling from a local
residence to the normal place of work, will be chargeable as part
of the above working hours. Unless the Terms of Engagement state
otherwise hours worked in excess of 7 hours a day or outside weekdays
may be charged on a pro rata basis.
4.3 Fee Estimates - Any estimate given by us of any charge whether
for planning or any other purpose is only an estimate and is not
4.4 Expenses - All charges are
stated exclusive of expenses unless the Terms of Engagement state
otherwise. You agree to pay our travel, subsistence and other reasonable
expenses incurred in connection with the Services.
4.5 Taxes - Charges, including expenses, will be stated exclusive
of any taxes. You will be responsible for paying any taxes arising
from the Contract for which you are legally liable as well as Valued
Added Tax at the rate in force at the date the liability arises.
4.6 Payment of Invoices - For Time and Materials charges invoices
will be issued within 14 days of the basic Tax Point. For Fixed
Price charges invoices will be issued in accordance with the payment
plan set out in the Terms of Engagement. Unless the Terms of Engagement
state otherwise: (i) all charges will be specified in Pounds Sterling
and (ii) invoices will be paid in that currency. All invoices will
be due for payment on receipt by you. In the event of late payment
we reserve the right to suspend the provision of Services and to
charge interest on amounts overdue for a period in excess of 7 days
at a rate of 2% above the annual base rate of the HSBC Bank plc
from time to time.
4.7 Fee Changes - We may vary any Time and Materials fee rates stated
in the Terms of Engagement by giving you 30 days written notice
of the variation. Variations may include increases arising as a
result of the promotion of individuals assigned to work for you.
Fee rates quoted in the Terms of Engagement relate to the provision
of Services at the location(s) stated in the Terms of Engagement.
Any change in location may result in a change in the applicable
5. Term, Suspension and Termination
5.1 Duration of Contract - This Contract will apply from the Commencement
Date stated in the Terms of Engagement, if any, or where no Commencement
Date is specified from the date of signature of the Terms of Engagement
by both parties. The Contract will continue until all the Services
and Deliverables have been provided unless it is terminated earlier
in accordance with the terms set out below.
5.2 Your right to terminate the Contract - Unless stated otherwise
in the Terms of Engagement the Contract may be terminated by you
at any time by giving us not less than 30 days written notice. Where
you terminate the Contract in this way you will pay us for all Services
provided up to the date of termination and for additional costs
we reasonably incur as a result of the early termination of the
Services for example costs relating to sub-contracts or relocation
costs. We will take reasonable steps to mitigate any such additional
costs. Where the Services have been provided on a Fixed Price fees
basis if we are unable to agree the fees payable in the event of
termination pursuant to this Clause 5.2, you will pay us all sums
due at the date of termination in accordance with the payment plan
set out in the Terms of Engagement together with fees on a Time
and Materials basis for Services provided after the date of the
last applicable payment under the payment plan.
5.3 Suspension of the Contract - We may suspend the Contract while
circumstances exist which, in our reasonable opinion, materially
adversely affect the basis on which the Contract was entered into
or our performance of it. If, following suspension of the Contract,
we both agree to resume performance of it, we will first agree any
changes to the Contract which may be necessary as a result of its
suspension, including fees, costs and timetable. If such a period
of suspension exceeds 30 days, the Contract may be terminated by
us with immediate effect by written notice to you.
5.4 Termination for Breach of Contract - The Contract may be terminated
by either party on written notice with immediate effect if the other
commits a material breach of any term of this Contract which is
not remedied within 30 days of a written request to remedy the same.
5.5 Termination for Insolvency - The Contract may be terminated
by either of us by written notice in the event that the other party
is unable to pay its debts or has a receiver, administrator, administrative
receiver or liquidator appointed or calls a meeting of its creditors
or ceases for any other reason to carry on business or in the reasonable
opinion of the other party any of these events appears likely.
5.6 Return of Property - On the termination of the Contract each
of us will return to the other any property of the other that it
then has in its possession or control except that we may retain
one copy of any documentation or software prepared by us, or any
other documentation upon which our Services are based.
6.1 Neither of us will disclose to any third party without the prior
written consent of the other party any confidential information
which is received from the other party for the purposes of providing
or receiving Services which if disclosed in tangible form is marked
confidential or if disclosed otherwise is confirmed in writing as
being confidential or, if disclosed in tangible form or otherwise,
is manifestly confidential. Both of us agree that any confidential
information received from the other party shall only be used for
the purposes of providing or receiving Services under this or any
other contract between us. These restrictions will not apply to
any information which:
6.1.1 is or becomes generally available
to the public other than as a result of a breach of an obligation
under this Clause 6; or
6.1.2 is acquired from a third party who owes no obligation of confidence
in respect of the information; or
6.1.3 is or has been independently developed by the recipient or
was known to it prior to receipt.
6.2 Notwithstanding Clause 6.1 above either
of us will be entitled to disclose confidential information of the
other (i) to our respective insurers or legal advisors, or (ii)
to a third party to the extent that this is required, by any court
of competent jurisdiction, or by a governmental or regulatory authority
or where there is a legal right, duty or requirement to disclose,
provided that in the case of sub-Clause (ii) (and without breaching
any legal or regulatory requirement) where reasonably practicable
not less than 2 business days notice in writing is first given to
the other party.
6.3 Without prejudice to Clause 6.1 and Clause 6.2 above, we may
cite the performance of the Services to our clients and prospective
clients as an indication of our experience, unless we both specifically
agree otherwise in writing.
6.4 Notwithstanding the above we may disclose any information referred
to in this Clause 6 to any other Gatefold Entity or use it for internal
7.1 We will use reasonable skill and care in the provision of the
Services and the preparation of any Deliverables.
7.2 We will accept liability without limit (i) for death or personal
injury caused by our negligence or the negligence of our employees
acting in the course of their employment; (ii) for any fraudulent
pre-contractual misrepresentations made by us on which you can be
shown to have relied; and (iii) any other liability which by law
we cannot exclude. This does not in any way confer greater rights
than you would otherwise have at law.
7.3 We will accept liability to pay damages in respect of loss or
damage (including consequential loss) suffered by you as a direct
result of our providing the Services where this arises as a consequence
of a breach of any of our contractual obligations or negligence
by us. Subject to Clause 7.2 this liability to pay damages will
not exceed either £1,000,000 or the amount paid or payable
by you to us under this Contract at the date of the breach, whichever
is the greater amount, or any other amount specifically referred
to as a liability cap in the Terms of Engagement and cross referencing
this Clause 7.3.
7.4 The remedies available and the liability we accept under this
Clause 7 are the only remedies and to the extent permissible by
law the absolute limit of our liability arising under or in connection
with the Contract. All other liability is expressly excluded.
7.5 To the extent permissible by law, all warranties, conditions,
representations (except as provided in Clause 7.2 (ii)) or terms
other than those expressly set out in this Contract are excluded
including but not limited to all implied and statutory conditions.
7.6 Any legal proceedings arising from this Contract must be brought
within 3 years from the date when the party bringing the proceedings
first becomes aware or ought reasonably to have become aware of
the facts which give rise to the liability or alleged liability
or any relevant statutory limitation period whichever is the earlier.
7.7 In this Clause the term "Contractor(s)" means our
employees and any agent or sub-contractor of ours and their respective
employees, agents, partners or sub-contractors who perform work
in connection with the Services, where the individual agent or sub-contractor
is a Gatefold Entity. You acknowledge and agree that in relation
to the Services and this Contract your relationship is solely with
us, and that no Contractor will have any liability to you in connection
with the Services or this Contract except for any liability arising
from death and personal injury caused by the negligence of a Contractor
or such other liability as cannot be excluded by law. You therefore
agree not to bring a claim of any nature against any Contractor
relating to the Services or this Contract except where such a claim
cannot be excluded by law. You acknowledge and agree that we will
have the right (subject to the discretion of the Court) to a stay
of proceedings if you bring any claim against a Contractor in breach
of this Clause 7.
7.8 The Services and the Deliverables are provided solely for your
benefit and use unless provided otherwise in the Terms of Engagement.
Accordingly, you may not provide copies of the Deliverables or make
the benefit of the Services available to any third party. We accept
no liability or responsibility to any third party who benefits from
or uses the Services or gains access to the Deliverables. You agree
to indemnify us against any liabilities, losses, expenses or other
costs we reasonably incur in connection with any claims against
us or any other Gatefold Entity by such third parties.
8.1 Sub-contracting - We reserve the right to employ agents and
sub-contractors to assist us when providing any part of the Services.
Any reference to our staff in the Contract includes agents and sub-contractor
staff. We will remain liable to you in respect of any Services provided,
subject to the other provisions of the Contract.
8.2 Sub-Contractors nominated by You - Where you require us to contract
the services of a sub-contractor specified by you, you will accept
responsibility for the work to be performed by such sub-contractor.
Our agreement to programme and integrate the work to be performed
by such sub-contractor for the purposes of this Contract is on the
basis that we will not be responsible or liable to you or to any
other person for the work performed by, and all acts, omissions,
defaults and neglects of, such sub-contractor. In the above circumstances
you will be responsible and liable for, and will indemnify us against
and from, any liability which we may incur to any person and against
all claims, demands, proceedings, damages, losses, costs and expenses
made against, suffered or incurred by us, directly or indirectly
as a result of or in connection with the work performed by any such
8.3 Force Majeure - Neither of us will be liable to the other for
any failure to fulfil obligations caused by circumstances outside
its reasonable control.
8.4 Assignment - Neither of us may transfer, charge or otherwise
seek to deal in any of its rights or obligations under this Contract
without the prior written consent of the other party. Neither of
us may transfer its rights or obligations under this Contract except
that we may transfer our rights and obligations to any legal entity
established or authorised to take over all or part of our business.
8.5 Waiver - Subject to Clause 7.6 no delay by either one of us
in enforcing any of the terms or conditions of this Contract will
affect or restrict our own rights and powers arising under the Contract.
No waiver of any term or condition of this Contract will be effective
unless made in writing.
8.6 Notices - Notices must be served either personally, sent by
prepaid registered post or faxed to the address of the other party
given in this Contract or to any other address as the parties may
have notified during the period of the Contract. Any notice sent
by post will be deemed to have been delivered 48 hours after sending.
Any notice sent by fax or served personally will be deemed to have
been delivered on the first working day following its dispatch.
8.7 Amendment - Any amendment of this Contract will not be effective
unless agreed in writing and signed by both parties.
8.8 Survival - The provisions of this Contract which expressly or
by implication are intended to survive its termination or expiry
will survive and continue to bind both of us.
8.9 Staff - Neither of us will during the period of this Contract
or within 6 months of its termination or expiry solicit directly
or indirectly any employees of the other who have been involved
in providing or receiving Services or otherwise connected with this
Contract, except those employees who have been involved on a purely
administrative or secretarial basis. This will not restrict either
of us from employing staff who apply unsolicited in response to
a general advertising or other general recruitment campaign.
8.10 Working for other clients - We will not be prevented or restricted
by anything in this Contract from providing services for other clients.
8.11 Validity of Contract Provisions - If any provision of this
Contract is held to be invalid, in whole or in part, such provision
shall be deemed not to form part of the Contract. In any event the
enforceability of the remainder of the Contract will not be affected.
8.12 Year 2000 and European Economic and Monetary Union
8.12.1 Unless the Terms of Engagement
state otherwise by reference to this Clause
8.12.1, (i) our proprietary application software licensed to you
under the Contract; and/or (ii) our custom application software
developed for you by us under the Contract (together, the "Software"),
when used in accordance with its associated documentation, will
(i) Year 2000 Compliant. "Year 2000 Compliant" means the
Software is capable of correctly processing, providing and/or receiving
date data (i.e., representations for day, month and year) within
and between the twentieth and twenty-first centuries so long as
all products (for example, hardware, software and firmware) used
or interfacing with the Software properly exchange accurate date
data with it. The remedies available to you for breach of this provision
will be limited to repair or replacement of the Software, and such
remedies are subject to our being notified in writing within 120
days of the first discovery by you of the breach of this provision
and in any event on or before 31 December 2000.
(ii) EMU Compliant. "EMU Compliant" means the Software
is capable of functioning in conformity with the applicable conversion
and rounding requirements set forth in European Council Regulation
1103/97, so long as all products (for example, hardware, software
and firmware) used or interfacing with the Software similarly function
in conformity with such regulation. The remedies available to you
for breach of this provision will be limited to repair or replacement
of the Software, and such remedies are subject to our being notified
in writing within 120 days of the first discovery by you of the
breach of this provision and in any event on or before 31 December
8.12.2 Except as expressly provided in Clause 8.12.1 above, we are,
without limitation, not providing any assurances with respect to
Year 2000 or European Economic and Monetary Union readiness or compliance.
8.12.3 We will not, without limitation, be responsible for a failure
to perform the Services under the Cont ract, if such failure is
without limitation the result, directly or indirectly, of (i) the
failure of any products, (for example, hardware, software or firmware),
other than the Software correctly to process, provide and/or receive
date data (i.e., representations for day, month and year) or properly
to exchange accurate date data with the Software or function in
conformity with the applicable conversion and rounding requirements
set forth in European Council Regulation 1103/97; (ii) modifications
made by you, your employees or any third party to any such Software;
or (iii) any direction given to us by you in respect of the manner
in which you wish us to address any requirements regarding Year
2000 and/or European Economic and Monetary Union matters.
8.13 Entire Agreement - This Contract, including
any attachments or referenced documents, forms the entire agreement
between us relating to the Services. It replaces and supersedes
any previous proposals, correspondence, understandings or other
communications whether written or oral (except that we do not exclude
liability for any fraudulent pre-contractual misrepresentations
made by us on which you can be shown to have relied). The headings
and titles in this Contract are included to make it easier to read
but do not form part of the Contract.
8.14 Conflict - In the event of any conflict between the Terms of
Business and the Terms of Engagement or any other document which
forms part of the Contract, the Terms of Business shall prevail
except where amended by specific reference to the relevant Clause
of the Terms of Business. In the event and only to the extent of
any conflict between the Terms of Engagement and any referenced
or attached document other than the Terms of Business, the Terms
of Engagement will take precedence.
8.15 General - The Engagement Partner and the head of our consulting
practice are available to discuss any issues you may have. You also
have a right to address any complaint to any relevant professional
body of which any partner, employee or agent may be or become a
9. Governing Law
9.1 Applicable Law - This Contract will be governed by and interpreted
in accordance with the laws of England.
9.2 Resolving Disputes - Should any dispute arise between us we will
attempt to resolve the dispute in good faith by senior level negotiations.
Where both of us agree that it may be beneficial we will seek to resolve
the dispute through mediation using the services of the Centre for
Dispute Resolution to facilitate the mediation process. If the dispute
is not resolved through negotiation or mediation both of us agree
that the English Courts will have exclusive jurisdiction in connection
with the resolution of the dispute.