Terms of Business
Please read these Terms of Business carefully, as they set out our and your legal rights and obligations in relation to our services
1. Definitions and interpretation
1.1 In these Terms of Business and Contract
“Bookkeeper” means The Cumbrian Book Keeper
“Business Day” means any week day, other than a bank or public holiday in England;
“Business Hours” means between 09:00 and 19:00 on a Business Day;
“Charges” means the charges specified in the Contract / the Bookkeeper's Hourly Rate multiplied by the number of person-hours spent by the Bookkeeper's personnel performing the Services payable by the Customer to the Bookkeeper, which may be varied from time to time after discussion with the Customer.
“Confidential Information” means:
(a) the Customer Materials;
(b) all information supplied by the Customer to the Bookkeeper relating to the Customer; and
(c) any other information supplied by the Customer to the Bookkeeper (whether supplied in writing, orally or otherwise) that is reasonably understood by the Bookkeeper at the time of supply to be confidential;
“Customer” means the customer for Services under the Engagement specified in the Contract;
“Customer Materials” means all works and materials provided by or on behalf of the Customer to the Bookkeeper for use in the production of, or incorporation into, the Deliverables;
“Deliverables” means the work set out to be completed in the Contract;
“Effective Date” means the date specified in the Contract in relation to the Engagement
“Engagement” means the Contract between the Bookkeeper and the Customer for the supply of Services and the delivery of Deliverables incorporating these Terms of Business and Contract, and any amendments to such Contract from time to time;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including hacker attacks, virus and other malicious software attacks and infections, problems with software or the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Services” means the bookkeeping services supplied or to be supplied by the Bookkeeper to the Customer under the Engagement, details of which are set out in the Contract (or, to the extent that no such details are set out in the Contract, details of which will be agreed between the parties acting reasonably from time to time);
“Contract” means the Contract document issued by the Bookkeeper to the Customer and signed by or on behalf of each party detailing the scope of the Services and other matters relating to the Engagement; and
“Term” means the term of the Engagement.
1.2 In these Terms of Business, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of these Terms of Business.
1.4 In these Terms of Business, “persons” include companies, partnerships, limited liability partnerships, unincorporated associations and trusts.
1.5 The ejusdem generis rule is not intended to be used in the interpretation of these Terms of Business.
The Engagement will come into force on the Effective Date and will continue in force indefinitely, unless and until terminated in accordance with Clause 11.
3.1 The Bookkeeper will supply the Services to the Customer and deliver the Deliverables to the Customer in accordance with the terms of the Engagement.
3.2 The Bookkeeper may suspend the provision of the Services and/or withhold the Deliverables if the Customer fails to pay by the due date any amount due to the Bookkeeper in respect of the Engagement.
3.3 The Bookkeeper may sub-contract the provision of the Services without the prior written consent of the Customer; providing that if the Bookkeeper does sub-contract the provision of Services, the Bookkeeper will remain liable to the Customer for the performance of the sub-contracted obligations.
3.4 From time to time during the Term the Bookkeeper may be unable to supply the Services by reason of personnel illness or personnel shortage, in which case:
(a) the Bookkeeper will use reasonable endeavours to engage alternative personnel to supply the Services; and
(b) subject to the compliance of the Bookkeeper with Clause 3.4(a) , the Bookkeeper will not be in breach of the terms of the Engagement by virtue of any failure to supply Services arising out of such inability.
3.5 In the performance of the Services at the Premises, the Bookkeeper shall comply with all reasonable health, safety and security policies and regulations advised to the Bookkeeper by the Customer.
4. Customer obligations
4.1 The Customer will promptly provide to, or procure for, the Bookkeeper any:
(a) instructions, co-operation and support;
(b) files, information and documentation;
(c) third party co-operation; and
(d) governmental, legal or regulatory licences, consents or permits reasonably necessary to enable the Bookkeeper to discharge its obligations under the Engagement.
4.2 The Customer will be responsible for ensuring that all instructions and all files, information and documentation reasonably required by the Bookkeeper in connection with the Engagement are supplied to the Bookkeeper:
(a) at or before the start of the relevant period specified in the Contract; or
(b) where no relevant period is specified in the Contract, at least a reasonable time before the relevant filing deadline or other applicable deadline,and the Bookkeeper will have no responsibility to meet a filing deadline or other applicable deadline where the Customer does not fulfil its obligations under this Clause 4.2.
4.3 The Customer will:
(a) be responsible for ensuring the health and safety of the Bookkeeper's personnel, agents and subcontractors whilst they are at the Customer’s Premises;
(b) maintain the Premises in good order for the supply of Services, and in accordance with all applicable laws;
(c) inform the Bookkeeper of all health and safety rules and regulations and any reasonable security requirements that apply at the Premises; and
(d) maintain reasonable insurance cover for the Bookkeeper's personnel, agents and subcontractors whilst they are working at the Premises (including reasonable public liability insurance)
4.4 The Customer grants to the Bookkeeper a worldwide, royalty-free, non-exclusive licence to use the Customer Materials during the Term solely for the purposes of the Engagement.
4.5 The Customer warrants and represents that the Customer Materials, and their use by the Bookkeeper in accordance with the terms of the Engagement, will not infringe the intellectual property rights or other legal rights of any person, will not be illegal or unlawful under any applicable law, and will not give rise to any cause of action against the Bookkeeper or any other person in any jurisdiction.
4.6 The Customer hereby indemnifies and undertakes to keep indemnified the Bookkeeper against any losses, damages, claims, obligations, liabilities, costs and expenses (including legal fees and costs and expenses incurred in investigating, preparing, defending or prosecuting any litigation, claim, proceeding or demand) arising out of or in connection with any breach by the Customer of the warranty in Clause 4.5.
5. Assignment of rights
5.1 The Bookkeeper will (and hereby does) assign to the Customer all of its existing and future copyright and other intellectual property rights in the Deliverables.
5.2 The assignment in Clause 5.1
(a) is for the full term of the intellectual property rights, including all extensions, renewals, reversions and revivals; and
(b) includes the right to bring proceedings for any infringement of the intellectual property rights pre-dating their assignment.
6. Charges and payment
6.1 The Customer will pay the Charges to the Bookkeeper in accordance with the provisions of this Clause.
6.2 The Bookkeeper will issue an invoice for the Charges to the Customer from time to time during the Term, on or after the dates set out in the Contract and at any time after the relevant Deliverables have been delivered to the Customer.
6.3 The Customer will pay the Charges to the Bookkeeper within the number of days stated on the invoice from the date of issue of an invoice issued in accordance with the Contract.
6.4 Charges must be paid by bank transfer, cheque, card or cash (using such payment details as are notified by the Bookkeeper to the Customer on the invoice.)
6.5 If the Customer does not pay any amount properly due to the Bookkeeper in connection with the Engagement, the Bookkeeper may
(a) charge the Customer interest on the overdue amount at the rate of 4% per month above the base rate (which interest will accrue monthly until the date of actual payment) as well as an administration charge of £18 per month; or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
6.6 The Bookkeeper may elect to vary the Charges / Hourly Rate by giving to the Customer not less than 30 days' notice of the variation.
7.1 The Customer warrants to the Bookkeeper that it has the legal right and authority to enter into and perform its obligations required by the Engagement.
7.2 the Bookkeeper warrants to the Customer that:
(a) it has the legal right and authority to enter into and perform its obligations required by the Engagement
(b) the Services will be performed with reasonable care and skill and in accordance with generally accepted practices and accounting and administration standards with sufficient expertise and competence
(c) it has, and will maintain, professional indemnity insurance cover for the duration of the Engagement
(d) it will handle all Customer Materials, Deliverables and materials otherwise related to the provision of the Services with reasonable care
(e) it will keep all Customer Materials and Deliverables that may be in the Bookkeeper's custody from time to time separate from its other files, and will ensure that those Customer Materials and Deliverables are easily identifiable as belonging to the Customer.
7.3 All of the parties' liabilities and obligations in respect of the subject matter of the Engagement are expressly set out in these Terms of Business or the Contract. To the maximum extent permitted by applicable law and subject to Clause 8.1, no other terms concerning the subject matter of the Engagement will be implied into the Engagement, or any related contract.
8. Limitations and exclusions of liability
8.1 Nothing in the Engagement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
8.2 The limitations and exclusions of liability set out in this Clause and elsewhere in the Engagement
(a) are subject to Clause 8.1; and
(b) govern all liabilities arising under the Engagement or in relation to the subject matter of the Engagement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
8.3 Without prejudice to Clause 4.2, the Bookkeeper will not be liable in respect of any failure to meet any filing deadline or other deadline where such failure arises in whole or part out of the acts or omissions of
(a) the Customer
(b) any officer, employee, sub-contractor, supplier, professional adviser or associated company of the Customer
(c) HM Revenue & Customs, or any other governmental or regulatory body; or
(d) any other third party appointed by the Customer to, or that the Bookkeeper reasonably expects will, provide instructions, files, information or documentation to the Bookkeeper in connection with the Engagement.
8.4 The Bookkeeper will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
8.5 The Bookkeeper will not be liable for any loss of business, contracts or commercial opportunities.
8.6 The Bookkeeper will not be liable for any loss of or damage to goodwill or reputation.
8.7 The Bookkeeper will not be liable in respect of any loss or corruption of any data, database or software.
8.8 The Bookkeeper will not be liable in respect of any special, indirect or consequential loss or damage.
8.9 The Bookkeeper will not be liable for any losses arising out of a Force Majeure Event.
9.1 The Bookkeeper will keep confidential the Confidential Information, and will not disclose the Confidential Information except as expressly permitted by this Clause.
9.2 The Bookkeeper will protect the confidentiality of the Confidential Information using at least reasonable security measures.
9.3 The Confidential Information may be disclosed by the Bookkeeper to its employees, officers, sub-contractors, insurers and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
9.4 These obligations of confidentiality will not apply to Confidential Information that
(a) has been published or is known to the public (other than as a result of a breach of the term of the Engagement)
(b) was known to the Bookkeeper, and can be shown by the Bookkeeper to have been known to it, before disclosure by the Customer; or
(c) is required to be disclosed by law, or by an order (binding upon the Bookkeeper) of a governmental authority, a regulatory body or a stock exchange.
10. Data protection
10.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Bookkeeper under the Engagement, and that the processing of that Personal Data by the Bookkeeper for the purposes of and in accordance with the terms of the Engagement will not breach any applicable laws (including the Data Protection Act 1998).
10.2 The Bookkeeper warrants that
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Bookkeeper on behalf of the Customer; and
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Bookkeeper on behalf of the Customer.
11.1 Either party may terminate the Engagement at any time by giving at least 30 days' notice to the other party.
11.2 Either party may terminate the Engagement immediately if the other party
(a) commits any breach of any term of the Engagement, and
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within a reasonable time to do so
(b) persistently breaches the terms of the Engagement.
11.3 Either party may terminate the Engagement immediately by giving written notice to the other party if
(a) the other party
(i) is dissolved
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due
(iv) is or becomes insolvent or is declared insolvent; or
(v) onvenes a meeting or makes or proposes to make any arrangement or composition with its creditors
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
11.4 The Bookkeeper may terminate the Engagement immediately at any time by giving written notice to the Customer if the Customer fails to pay in full and on time any amount due to the Bookkeeper whether due in respect of the Engagement or otherwise.
11.5 Upon termination of the Engagement all the provisions of these Terms of Business and the Contract will cease to have effect, save that the following provisions of these Terms of Business will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 6.6, 8, 9, 10, 11.5, 11.6, 11.7, 12 and 14.
11.6 Termination of the Engagement will not affect either party’s accrued liabilities and rights (including accrued rights to be paid) as at the date of termination.
11.7 Promptly following the termination of the Engagement, the Bookkeeper will:
(a) deliver to the Customer all Deliverables and Customer Materials and other files, documents and materials containing Confidential Information; and
(b) irrevocably delete from its computer systems all Confidential Information upon request from the Customer.
The Customer will not without the Bookkeeper's prior written consent, either during the Term or within 6 months after the date of effective termination of the Engagement, engage, employ or otherwise solicit for employment any employee, agent or sub-contractor of the Bookkeeper who has been involved in the Engagement or the performance of the Services.
13.1 Any notice given under the Engagement must be in writing (whether or not described as “written notice”) and must be delivered personally, sent by pre-paid first class post, or sent by email for the attention of the relevant person, and to the relevant address email address given below (in the case of the Bookkeeper) or in the Contract (in the case of the Customer) - or as notified by one party to the other in accordance with this Clause. John Alderson, The Cumbrian Book Keeper, 1 The Old Police Houses, Brayton Road, Aspatria, Cumbria, CA7 3DL email: email@example.com
13.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below)
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice is sent by first class post on receipt; or
(c) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
14.1 No breach of any term of the Engagement will be waived except with the express written consent of the party not in breach.
14.2 If a term of the Engagement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other terms of the Engagement will continue in effect. If any unlawful and/or unenforceable term would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the term will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant term will be deemed to be deleted).
14.3 The Engagement will not constitute a partnership, agency relationship or contract of employment between the parties.
14.4 The terms of the Engagement may not be varied except by a written document signed by or on behalf of each of the parties.
14.5 The Customer hereby agrees that the Bookkeeper may freely assign any or all of its rights and/or obligations under the Engagement to any third party or any successor to all or a substantial part of the business of the Bookkeeper from time to time. Save as expressly provided by the Engagement, the Customer may not without the prior written consent of the Bookkeeper assign, transfer, charge, license or otherwise dispose of or deal in any of its rights or obligations under the Engagement.
14.6 The Engagement is entered into for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement relating to the Engagement are not subject to the consent of any third party.
14.7 Subject to Clause 8.1
(a) these Terms of Business and the Contract will constitute the entire agreement between the parties in relation to the Engagement, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Engagement.
The Engagement will be governed by and construed in accordance with the laws of England and Wales; and the courts will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Engagement.