CONSULTANCY SERVICE TERMS

Last revised 19 July 2016

These terms and conditions (together with the policies referred to in it) (the “Consultancy Service Terms“) tell you the terms and conditions on which we provide our consultancy service (the “Service“) to you whether or not such Service is provided through the UCAN Platform available on our website www.ucan.co.uk (the “Website“).

Please read these Consultancy Service Terms carefully as they govern your use of the UCAN Platform and apply to the provision of our consultancy Service to you. By registering and/or continuing to use the UCAN Platform and or instructing us to provide our consultancy Service you agree to be bound by these Consultancy Service Terms. If you do not accept these Consultancy Service Terms please do not register to use the UCAN Platform or instruct us to provide our consultancy Service.

These Consultancy Service Terms tell you who we are, how we provide the Service, how we may change the Service, how you and we may change or end the contract, what to do if there is a problem and other important information.

You represent and warrant that you are able to agree these Consultancy Service Terms on behalf of yourself, any company you work for and/or any person or entity that accesses or uses the UCAN Platform or instructs us to provide our consultancy Service.

We may vary these Consultancy Service Terms from time to time and shall post such alterations on the Website. If you do not agree to the changes made to these Consultancy Service Terms, then you have the right to stop using the UCAN Platform, and should do so immediately. Your continued use of the UCAN Platform or continued instruction to us to provide our consultancy Service after the date the changes have been posted will constitute acceptance of the amended Consultancy Service Terms.


1.


DEFINITIONS AND INTERPRETATION

1.1

In these Consultancy Service Terms, the following definitions apply:

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

“Business Hours” means the period from 9.00 am to 5.00 pm on any Business Day.

“Fees” means the fees payable by you to us for our consultancy Service in accordance with clause 4.

“UCAN Platform” means the Website, any mobile apps we make available to provide the Service, any pages or widgets we operate on third party websites or applications, and the content and services we make available through them via the internet or mobile devices (including smartphones and tablets). 

“we” or “us” means CSM Consulting Limited, a private limited company registered with company number 04656661 which has its registered address at 18-22 Angel Crescent, Bridgwater, Somerset, TA6 3AL. Our VAT number is 822 0206 84.

“you” means you, any company you work for and any person that registers, accesses and/or uses the UCAN Platform or instructs us to provide our consultancy Service and includes your personal representatives, successors or permitted assigns.

1.2

In these Consultancy Service Terms, a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).


2.


THE UCAN PLATFORM AND OUR CONSULTANCY SERVICE

2.1

The UCAN Platform is designed to enable you to order, engage and/or instruct us to provide our consultancy Service to you.

2.2

We shall provide our consultancy Service to you from the date on which you order, engage and/or instruct us or as otherwise specified between us or on the UCAN Platform (the “Commencement Date”) until either the date specified in such instruction as being the date on which we will finish providing our consultancy Service to you or unless otherwise terminated in accordance with term 8 below.

2.3

We shall use reasonable endeavours to meet any performance dates specified to us either in writing or via the UCAN platform but any such dates shall be estimates only and time for performance by us shall not be of the essence.

2.4

We make no warranty that the UCAN Platform will provide an uninterrupted service or be error free, or that any defects will be corrected. While we take steps to prevent misuse of our systems, we cannot warrant that the UCAN Platform will be free of viruses or other malicious code and accept no liability for loss or damage caused from the transmission of such code. We recommend that you always use up-to-date firewalls and anti-malware software to protect your equipment and data.

2.5

We may update the UCAN Platform from time to time, and may change the content on our UCAN Platform at any time. However, please note that any of the content on our Website or mobile application software may be out of date at any given time, and we are under no obligation to update it.


3.


YOUR OBLIGATIONS

3.1

You shall:

3.1.1

provide us with such information and materials as we may reasonably require in order to supply the Service and ensure that such information is accurate in all material respects;

3.1.2

promptly consider and respond to any correspondence regarding our Service;

3.1.3

co-operate with us in all matters relating to the Service;

3.1.4

provide us, in a timely manner and at no charge, access to your premises, office accommodation, data and other facilities as required by us to provide the Service;

3.1.5

comply with any health and safety instructions given to you by us.

3.2

If the performance of our obligations under these Consultancy Service Terms is prevented or delayed by any act or omission of you, we shall not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay.

3.3

You shall be liable to pay to us, on demand, all reasonable costs, charges or losses sustained or incurred by us (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of your obligations under these Consultancy Service Terms.

3.4

You shall not, without our prior written consent, at any time from the Commencement Date to the expiry of 12 months after completion of the Service or termination of these Consultancy Service Terms, solicit or entice away from us or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of us in the provision of the Service.

3.5

Any consent given by us in accordance with term 3.4 shall be subject to you paying to us a sum equivalent to 20% of the then current annual remuneration of our employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by you to that employee, consultant or subcontractor.

3.6

You agree that you are fully responsible and liable for the actions of any persons who access the UCAN Platform on your behalf.

3.7

You consent to information about the device you use to access the UCAN Platform being collected and processed for fraud prevention purposes and you acknowledge that we may use third parties (and information they provide) to help us prevent fraud or unauthorised access to the UCAN Platform.


4.


FEES AND PAYMENT

4.1

In consideration of the provision of our consultancy Service, you agree to pay the fees set out in the order for our consultancy Service and this shall specify whether the charges shall be on a time basis or a fixed price basis or a combination of both.

4.2

Where the Service is provided on a time basis:

4.2.1

the charges payable for the Service shall be calculated in accordance with our standard daily fee rates as indicated to you;

4.2.2

our standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between Business Hours on a Business Day;

4.2.3

we shall be entitled to charge an overtime rate of [PERCENTAGE]% of the normal daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom you engage on the Service outside the hours referred to in term 4.2.2;

4.2.4

all charges quoted to you shall be exclusive of VAT, which we shall add to our invoices at the appropriate rate;

4.2.5

we shall provide time sheets recording time spent on the Service and we shall use such time sheets to calculate the charges covered by each monthly invoice referred to in term 4.2.6 below; and

4.2.6

we shall invoice you monthly in arrear for our charges for time and expenses (together with VAT where appropriate) for the month concerned, calculated as provided in this term 4.2 and term 4.4.

4.3

Where the Service is provided for a fixed price:

4.3.1

the total price for the Service shall be the amount set out in in the order; and

4.3.2

you shall pay the total price to us (without deduction or set-off) in instalments, as set out in an order; and

4.3.3

we shall invoice you for the charges that are then payable, together with expenses, the costs of materials (and VAT, where appropriate), calculated as provided in term 4.4.

4.4

Any fixed price and daily rate contained in an order excludes:

4.4.1

the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom we engage in connection with the Service, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by us for the supply of the Service. Such expenses and third party services shall be invoiced by the us; and

4.4.2

VAT, which we shall add to our invoices at the appropriate rate.

4.5

You shall pay each invoice submitted by us:

4.5.1

within 14 days of the date of the invoice; and

4.5.2

in full and in cleared funds to the bank account specified in the invoice.

4.6

If you fail to make any payment of the Fees due to us by the due date for payment, then you shall pay interest on the overdue amount at the rate of 4% per cent per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.

4.7

You shall pay all Fees due in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).


5.


CONFIDENTIALITY

We each undertake during and after termination of these Consultancy Service Terms (however they shall end) not to disclose or exploit in any way any confidential information concerning each other’s businesses and the provisions of these Consultancy Service Terms.


6.


INTELLECTUAL PROPERTY

You acknowledge that all present and future copyright and other intellectual property rights subsisting in, or used in connection with, the UCAN Platform (the “Intellectual Property“), including the manner in which the UCAN Platform is presented or appears and all information and documentation relating to it, is our property (or that of our licensors), and nothing in these Consultancy Service Terms shall be taken to transfer any of the Intellectual Property to you.


7.


LIMITATION OF LIABILITY

7.1

Nothing in these Consultancy Service Terms shall limit or exclude our liability for fraud or fraudulent misrepresentation.

7.2

If you are dissatisfied with the Service or UCAN Platform, your only remedy under these Consultancy Service Terms shall be to discontinue your use of the UCAN Platform. Without limiting the preceding sentence, we shall have no liability for any failure or delay resulting from any matter beyond our reasonable control.

7.3

Subject to clause 7.1:

7.3.1

we shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with these Consultancy Service Terms and the Service; and

7.3.2

our total liability to you in respect of all other losses arising under or in connection with these Consultancy Service Terms and the Service, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount of the Fees received from you for the our consultancy Service.


8.


TERMINATION

8.1

If any provision of these Consultancy Service Terms is declared by any relevant competent authority to be unenforceable (or indications of this are made by any such authority), you agree to discuss with us amending that provision in a reasonable manner so that it achieves the purpose of these Consultancy Service Terms without illegality. If we agree that the effect of any declaration is to defeat the original intention of these Consultancy Service Terms, either of us may terminate these Consultancy Service Terms in writing.

8.2

Either party may terminate these Consultancy Service Terms with immediate effect by giving written notice to the other party if:

8.2.1

either of us commits a material breach of these Consultancy Service Terms and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;

8.2.2

either of us takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring) or having a receiver appointed to any of its assets; or

8.2.3

either of us suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

8.3

Without limiting our other rights or remedies:

8.3.1

we may terminate these Consultancy Service Terms and our Services with immediate effect by giving written notice to you if you fail to pay any Fee due under these Consultancy Service Terms on the due date for payment and fails to pay all outstanding Fees within 30 days after being notified in writing to do so; and

8.3.2

we may suspend provision of the Services to you under these Consultancy Service Terms if you become subject to any of the events listed in term 8.2.2 or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any Fees due under these Consultancy Service Terms on the due date for payment.

8.4

Termination of these Consultancy Service Terms does not affect your ongoing obligation to pay the Fees for any Clients we introduce to you prior to the date of termination. Consultancy Service Terms 2 to 7 and 8.4 to 10.7 shall survive the termination of these Consultancy Service Terms and:

8.4.1

you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of the Fees but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by the you immediately on receipt;

8.4.2

the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of these Consultancy Service Terms which existed at or before the date of termination or expiry; and

8.4.3

terms which expressly or by implication survive termination shall continue in full force and effect.


9.


FORCE MAJEURE

9.1

For the purposes of these Consultancy Service Terms, “Force Majeure Event” means an event beyond our reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

9.2

We shall not be liable to you as a result of any delay or failure to perform our obligations under these Consultancy Service Terms as a result of a Force Majeure Event. If a Force Majeure Event prevents us from providing the Service then we shall, without limiting our other rights or remedies, have the right to terminate these Consultancy Service Terms and our Service immediately by giving written notice to you.


10.


GENERAL

10.1

Assignment and other dealings

We may at any time assign, transfer, subcontract or deal in any other manner with all or any our rights under these Consultancy Service Terms and may subcontract or delegate in any manner any or all of our obligations under these Consultancy Service Terms to any third party or agent. You shall not, without our prior written consent, assign, transfer, subcontract, or deal in any other manner with any or all of your rights or obligations under these Consultancy Service Terms.

10.2

Notices

Any notice or other communication given to a party under or in connection with these Consultancy Service Terms shall be in writing, addressed to that party at its registered office (if it is a company) and shall be delivered personally or sent by recorded delivery service or commercial courier.

10.3

Severance

If any provision or part-provision of these Consultancy Service Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Consultancy Service Terms.

10.4

Waiver

No failure or delay by either of us to exercise any right or remedy provided under these Consultancy Service Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

10.5

No partnership or agency

Nothing in these Consultancy Service Terms is intended to, or shall be deemed to, establish any partnership or joint venture between us, nor constitute either of us the agent of the other for any purpose. Neither of us shall have authority to act as agent for, or to bind, the other party in any way.

10.6

Third parties

A person who is not a party to these Consultancy Service Terms shall not have any rights to enforce its terms.

10.7

Governing law and jurisdiction

These Consultancy Service Terms and any dispute or claim arising out of or in connection with them or their 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 and each of us 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 these Consultancy Service Terms.