Move Forward Consulting Ltd Terms and Conditions
1. Definitions
“Agreement” means the agreement between the client and the Consultancy incorporating the Proposal and these Terms and Conditions
“Business Day” means a day, other that a Saturday, Sunday or Public Holiday in England, when banks in london are open for business
“Business Hours” means a 8 hours period between 7.00 and 17.30 (GMT) on any Business Day
“Charges” means the sums payable for the Services, as defined in condition 6e.
“Client” means the person or persons named on the Proposal (including bodies corporate or unincorporated) as the “Client” and where more than one person is “the Client” the liability and obligations of each of those persons under the Agreement shall be joint and several“Client Materials” means all materials, equipment and tools, drawings, specifications and data supplied by the Client to the Consultancy
“Consultancy” means Move Forward Consulting Ltd, its assigns and successors in title
“Consultancy Day” means a day in any one calendar year allocated to the Client on which the Consultancy shall provide general consultancy solutions to the Client in accordance with the Consultancy’s brochure or Proposal relating to the Services from time to time
“Consultancy IPRs” means all Intellectual Property Rights subsisting in the Deliverables excluding any Client Materials incorporated in them
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended
“Deliverables” means all documents, products and materials developed by the Consultancy 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)
“Equipment” means the Client’s network hardware and software listed on the Proposal “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, 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
“Commencement Date” has the meaning given in condition 2b
“Sales Enablement Project” means a sales consulting & training project in accordance with the Consultancy’s methodology
“Proposal” means the document setting out details of the sales enablement and general consulting in scope and / or other provisions of the Agreement between the Client and the Consultancy to which these Terms and Conditions are attached
“Representatives” has the meaning given in condition 8a
“Service Date” means the date or dates set out on the Proposal / Statement of Work or subsequently agreed in writing by the parties in the provision of the Services subject to terms condition 3 below
“Services” means consulting services and projects in sales enablement and general consulting Consultancy to the Client in accordance with the Proposal or statement of work for service
2. Commencement and Duration
Any purchase order received from the Client shall be an offer to purchase the Services in accordance with these Terms and Conditions.
The Consultancy may accept or reject the Client’s purchase order in its absolute discretion and the order will only deemed to be accepted if the Consultancy confirms as such in writing, at which point the Agreement will come into existence (the date of which being the “Commencement Date”).
The Agreement shall continue in force, subject to the provisions of condition 7, until the earlier of 12 months from the Commencement Date (“Initial Term”); or the full performance of the Services as specified within the Proposal.
Where the full performance of the Services exceeds the length of the Initial Term, at the end of the Initial Term and of each renewed term thereafter the Client may renew this Agreement with the written consent of the Consultancy with the Client not giving less than 1 month’s written notice.
3. Provision of the Consultancy Services
a. The Consultancy shall provide the Services to the Client on the Service Date subject to the same being mutually convenient to both parties having regard to the availability of the Consultancy’s employees, agents or Representatives and in circumstances where no date for the provision of the Services has been agreed at the commencement of the Agreement or has been omitted from the Proposal, the Client shall give not less than two weeks’ notice to the Consultancy of a proposed Service Date on which the Client wishes the Services to be provided.
If the Consultancy cannot provide the Services on the Service Date specified by the Client the Consultancy shall use reasonable endeavours to inform the Client of such issue prior to the Service Date and arrange an alternative mutually convenient date as close as is reasonably practicable to the original date requested by the Client.
In the event that the Client cancels the Services prior to the agreed Service Date or requires the Service Date to be changed at short notice then the Client shall make such cancellation or change to Service Date in writing to the Consultancy and shall be liable to pay a cancellation fee which shall be calculated in accordance with clause 6f below.
For the avoidance of doubt, time for the provision of the Services shall not be of the essence and the Consultancy shall incur no liability to the Client in respect of any failure to complete any of the Services by the date specified on the Proposal or any other documentation or correspondence.
The Consultancy shall use reasonable endeavours to provide the Services in accordance with the Proposal and otherwise in accordance with the Consultancy’s brochure or other published literature relating to the Services from time to time, subject to these Terms and Conditions.
In providing the Services, the Consultancy shall at all times comply with all applicable laws and regulations, subject always to condition 10a.
4. Client’s Obligations
The Client shall:
at all times co-operate with the Consultancy in respect of the provision of the Services;
comply with all reasonable instructions of the Consultancy regarding the Services; nominate one individual who will be responsible for the co-ordination and monitoring of the work forming part of the Services as set out in the Proposal;
ensure that throughout the provision of the Services the Equipment will be in a fit and suitable condition to enable the Consultancy to carry out the Services without delay or interruption;
arrange for such employees of the Client as are required for the proper provision of the Services to be available to assist the Consultancy at all reasonable times and undertakes that such employees will have the relevant skills, knowledge and experience;
provide, in a timely manner, such information as the Consultancy may require to provide the Services, and ensure that it is accurate and complete in all material respects;
provide access to the Client’s premises, office accommodation, systems, data and other facilities as required by the Consultancy for the provision of the Services;
ensuring that the Client at all times has adequate business continuity and disaster recovery systems and procedures in place; and
be solely responsible for maintaining its own data and software backups, as well as associated restoration measures.
If the Consultancy’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, the Consultancy shall:
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;
be entitled to payment of the Charges despite any such prevention or delay; and
be entitled to recover any additional costs, charges or losses the Consultancy sustains or incurs that arise directly or indirectly from such prevention or delay.
5. Non-solicitation
During this Agreement and for a period of twelve months after its expiry or termination the Client undertakes that it shall not, directly or indirectly, solicit or entice away from the Consultancy or employ, engage or attempt to employ or engage any person who is, or has been, engaged as an employee, consultant or subcontractor of the Consultancy in the provision of the Services without the Consultancy’s prior written consent.
Any consent given by the Consultancy in accordance with condition 5a shall be subject to the Client paying to the Consultancy a sum equivalent to either:
thirty per cent of the fees that would have been payable under the Agreement during a 12-month period; or
where the individual is employed permanently by the Client, a fee equal to the thirty per cent of the annual gross salary of that individual.
6. Charges and Payment
In consideration for the Consultancy providing the Services, the Client shall pay the Charges. Where the Charges are calculated on a time and materials basis:
the Charges shall be based on the Consultancy’s daily fee rates for each individual person as provided to the Client, calculated on the basis of an eight-hour day, worked during Business Hours; and the Consultancy reserves the right to charge for all work carried out outside normal working hours which is either requested by the Client, or necessitated due to the Client’s failure to perform its obligations. This will be charged at a premium as agreed with the Client in advance.
If the Consultancy has agreed to provide the Services to the Client in the form of an agreed number of Consultancy Days per 12 month period (or such other period as the Consultancy may agree “Initial Term”) then each Consultancy Day shall be invoiced separately at the agreed rate as and when the Consultancy Days are used by the Client SAVE THAT if after the Agreement period being 12 months as set out in 2(d) expires the Client has not used all his Consultancy Days the balance of all unused Consultancy Days shall be invoiced by the Consultancy forthwith at the agreed rate.
The Consultancy shall be entitled to charge the Client for all expenses, including but not limited to travel and subsistence, incurred by the Consultancy and its Representatives in connection with the provision of the Services (“the Expenses”).
Subject to any special terms agreed in writing between the parties, the Client shall pay the charges and any additional sums due for the Services set out in the Proposal (including but not limited to the Expenses and any applicable Value Added Tax) without set-off, deduction or abatement (“the Charges”) to the Consultancy no later than 30 days following the issue by the Consultancy of an appropriate invoice. The Consultancy shall be entitled to vary the amount of the Charges with the prior agreement of the Client.
If the Client cancels the Services or requires a change of Service Date at short notice then the following cancellation fees shall apply: –
Where written notice of cancellation of change of Service Date is made 10 working days or more before the Service Date – No cancellation fee;
Where written notice of cancellation or change of Service Date is made 5-10 working days (inclusive) before the Service Date – 20% of the project cost as set out in the Proposal; or
Where written notice of cancellation or change of Service Date is made 1-5 working days (inclusive) before the Service Date – 60% of the project cost as set out in the Proposal
Where written notice of cancellation or change of Service Date is made within 24 hours prior of test commencement or thereafter during the testing – 100% of the project cost as set out in the Proposal;
If payment is not made on the due date, the Consultancy shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 4 % above the annual base rate from time to time of Bank of England from the due date until the outstanding amount is paid in full.
7. Intellectual Property Rights
The Consultancy and its licensors shall retain ownership of all Consultancy IPRs. The Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials.
The Consultancy 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 the Consultancy IPRs solely for the purpose of receiving and using the Services and the Deliverables in the Client’s business during the term of the Agreement.
The Client grants the Consultancy a fully paid-up, worldwide, non-exclusive, royalty-free, non- transferable licence to copy and modify the Client Materials for the term of the Agreement for the purpose of providing the Services to the Client in accordance with the Agreement.
8. Confidentiality
The Consultancy’s methods techniques and processes including software and documentation created during the course of its work (“Project Information and Electronic Data”) shall be and shall remain the property of the Consultancy and the Client will keep confidential to the same standard as it safeguards its own confidential information and will not use or disclose to any person (other than for the purposes of the Agreement) any information relating to the Project Information and Electronic Data communicated to it by the Consultancy’s officers, employees, representatives or agents (collectively referred to as “Representatives”) or any other information of a technical or business nature disclosed by the Consultancy.
The Consultancy shall not disclose or pass on any information concerning the business of the Client or that of its Clients or utilise other than in connection with the affairs of the Client for the purpose of the Agreement information trade or professional secrets of the Client and the Consultancy shall procure that its Representatives shall observe these conditions.
The obligations of confidentiality specified above shall not apply to any information: –
already known to the receiving party; or
which is in the public domain other than by breach of the obligations of this condition by either party; or
is received from a third party otherwise than in breach of an obligation of confidentiality; or
which the receiving party is required by law to disclose.
The Consultancy and the Client shall only retain that Project Information and Electronic Data which is reasonably necessary for the provision of the Services. Each party shall, at the request of the other return to the other or destroy the other party’s Project Information and Electronic Data or any other information and data which it may have concerning the other party’s business or Clients, on the termination of the Agreement.
Both parties’ obligations of confidentiality shall survive termination of the Agreement for whatever reason and shall remain in full force and effect save that this obligation shall not apply to any part of the aforesaid Project Information and Electronic Data that is or comes into the public domain other than by a breach of the said obligations.
Both parties shall notify the contents of the Agreement to such of its Representatives who are involved in or have been involved in or has the Project Information and Electronic Data and shall ensure that such Representatives agree to be bound by obligations of confidentiality equivalent to those contained in these Terms and Conditions.
9. Data Protection
Both parties will comply with all applicable requirements of the Data Protection Legislation. This condition 9 (Data protection) is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and the Consultancy is the processor.
Without prejudice to the generality of condition 9a, 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 Consultancy for the duration and purposes of this Agreement.
Without prejudice to the generality of condition 9a, the Consultancy shall, in relation to any personal data processed in connection with the performance by the Consultancy of its obligations under this Agreement:
process that personal data only on the documented written instructions of the Client unless the Consultancy is required by the applicable laws to otherwise process that personal data. Where the Consultancy is relying on the laws of a member of the European Union or European Union law as the basis for processing personal data, the Consultancy shall promptly notify the Client of this before performing the processing required by the Applicable Law unless the Applicable Law prohibits the Consultancy from so notifying the Client;
ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
the Client or the Consultancy has provided appropriate safeguards in relation to the transfer;
the data subject has enforceable rights and effective legal remedies;
the Consultancy complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred;
the Consultancy complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data.
Either party may, at any time on not less than 30 days’ notice, revise this condition 9 (Data protection) by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
10. Warranties and Liability
The Consultancy warrants to the Client that the Services will be provided using reasonable skill and care and, as far as reasonably possible, in accordance with the Proposal. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
death or personal injury caused by that party’s negligence;
fraud or fraudulent misrepresentation; or
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
The Consultancy shall have no liability, whether in contract, tort, misrepresentation, for breach of statutory duty or otherwise for any of the following types of loss:
loss of profits;
loss of business, sales or contracts;
loss of anticipated savings;
loss of use or corruption of software, data or information (or the costs of reconstituting such data or software);
loss of or damage to goodwill;
indirect, special or consequential loss; or
any loss arising from any information or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client whatsoever.
Subject to condition 10b above, the entire liability of the Consultancy under or in connection with the Agreement shall not exceed the amount of the Charges for the provision of the Services.
The Consultancy shall not be liable to the Client or be deemed to be in breach of the Agreement
by reason of any delay in performing, or any failure to perform, any of the Consultancy’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Consultancy’s reasonable control.
The Client acknowledges and agrees that:
due to the finite nature and scope of the Services it will not be possible for the Consultancy to guarantee any improvement in sales performance and the Consultancy offers no guarantee or warranty that it will do so; and
the Consultancy will have no liability for any losses incurred by the Client as a result of its failure to implement any recommendations made or advice given by the Consultancy as part of the Services.
The Consultancy will not be liable for any claim by the Client in respect of the Agreement,
unless the Client has given the Consultancy notice in writing of the claim (identifying in reasonable detail the nature and ground for such claim) within 12 months of the Client becoming aware (or when they reasonably ought to have become aware) of the matter giving rise to such claim.
11. Compliance with Laws
The Client accepts that by carrying out the Services, The Consultancy will be undertaking activities, which will, unless the Consultancy has specific consent from the Client, be lawful.
The relevant laws include, but are not limited to:
The Computer Misuse Act 1990
The Regulation of Investigatory Powers Act 2000
The Theft Act 1968 (as amended)
The Copyright, Design and Patents Act 1988 (as amended)
The General Data Protection Regulation 2016/679l
By signing these Terms and Conditions, the Client accepts (both itself and on behalf of all group companies) and acknowledges that it consents to the Consultancy undertaking the Services.
12. Termination
Either party may (without limiting any other remedy) at any time terminate the Agreement by giving written notice to the other if the other commits any material breach of these Terms and Conditions which (if capable of remedy) the other fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
Without affecting any other right or remedy available to it, the Consultancy may terminate the Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Agreement on the due date for payment.
On termination of the Agreement for whatever reason:
the Client shall immediately pay to the Consultancy all of the Consultancy’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Consultancy may submit an invoice, which shall be payable immediately on receipt;
any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect; and
termination or expiry of the Agreement 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 Agreement which existed at or before the date of termination or expiry.
13. General
These Terms and Conditions (together with the terms and conditions, if any, set out in the Proposal) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. For the avoidance of doubt these Terms and Conditions shall prevail over any terms and conditions of the Client.
Any notice required or permitted to be given by either party to the other under these Terms and Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any such notice may be delivered personally or by first class pre-paid letter or email and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by email when sent (unless sent outside 9am – 5pm on a Business Day, in which case it shall be deemed to be received at 9am on the next Business Day).
No failure or delay by either party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
The Client shall not be entitled to 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 Agreement without the prior written consent of the Consultancy.
The Consultancy 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 Agreement.
If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected.
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
In the event of any conflict between these Terms and Conditions and any terms and conditions set out in the Proposal, the terms of this Agreement shall prevail.
This Agreement shall be governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English Courts.
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