Standard Terms of Business

 

These Terms of Business set out the basis on which we, Bright (being the trading name of Moxon & Co Services Limited) (the “Company”, and “we”, “our”, and “us” shall be construed accordingly) shall provide services to you.

 

1.SERVICES

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1.1  The letter to which these Terms of Business form part (“Engagement Letter”) sets out the scope of the services we will provide (“Services”) and the fee arrangements. These Terms of Business together with the Engagement Letter will form the contract between us.  A reference to “this contract” shall be construed accordingly.

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1.2  Please identify correctly the client or entity which is using our Services as we are only agreeing to provide the Services to the entity specified in the Engagement Letter and no other person.

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1.3  We will perform the Services with reasonable skill and care.

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1.4  Our role is as set out in the Engagement Letter.  We will not provide any advice or other services outside that scope, unless we agree a specific variation to the Engagement Letter in writing (which may include email for these purposes).  Our Services will not include advice regarding any tax implications arising out of any action or transaction, nor will we provide advice on tax related issues.

 

1.5  We need your input to properly perform the Services and we rely on you to provide us with accurate and complete information which is not misleading in any way about the subject matter and to update such information as necessary.

 

1.6  In addition to complying with all other obligations upon you in this contract, in order for us to provide the best possible service to you, and to enable us to best control the cost of our Services to you, we require that you:

 

1.6.1       provide us with clear timely, true and accurate instructions and information;

1.6.2       communicate with us effectively and promptly – as of course we will with you;

1.6.3       carry out the steps which we need you to do to enable us to effectively provide the Services – such as attending meetings with us or others;

1.6.4       promptly pay our invoices and any amounts we need to pay third parties; and

1.6.5       provide as expeditiously as possible true, accurate and complete copies of all documentation required or requested so as to enable us to undertake the Services.

 

1.7  Without limiting any other provision of this contract between us, you will on written demand from us, pay to us (on an after tax basis) an amount equal to all direct or indirect losses (of whatever nature), costs, claims, demands, expenses and other liabilities which we incur or suffer from time to time arising out of or in connection with a breach by you of your obligations and undertakings in clauses 2.5 and 2.6 of these Terms of Business (including all payments, legal and other costs and expenses reasonably incurred as a consequence of or which would not have arisen but for any such breach.

 

2.PAYMENT OF THE FEE AND OTHER SERVICES

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2.1  Our arrangements in connection with the amount of, and invoicing of, the Fee, are as are set out in the Engagement Letter.

 

2.2  If any of the Fee is a fixed fee or a rolling/recurring retainer, but the original scope of works on which it was based changes, additional work will be carried out on the basis of a revised Fee summary as provided by us to you in writing (which may include email for these purposes).  All estimates or references to fees disbursements or expenses, are exclusive of any applicable VAT or other sales tax.

 

2.3  We may ask you to pay money on account of anticipated fees, disbursements and expenses.  We may decline to undertake Services for you or suspend or terminate the provision of Services if you fail to make such a payment upon request.

 

2.4  If we need to instruct, or advise you to instruct, third party service providers you will bear the cost and you will reimburse us for any costs we incur if we instruct on your behalf.  We will also charge for expenditure (such as search and enquiry fees, courier charges and travel expenses that we incur on your behalf.  Where we incur mileage on your behalf, we charge this at 45p per mile plus VAT.

 

2.5  As set out in the Engagement Letter, invoices will be issued monthly in advance, unless otherwise agreed with you. Invoices must be paid and discharged in full within 15 days of the date of the invoice.

 

2.6  If an invoice is not paid in full within 15 days of the date of the invoice we may charge interest from that date on any outstanding balance until the invoice is paid in full at a rate of 2% above the prevailing base lending rate in the United Kingdom of HSBC Bank PLC. If you do not pay on time and in full, we may suspend or terminate our Services, apply monies held for you towards settlement of an invoice, or retain documents, monies and other items held for you until our fees, disbursements and expenses have been paid in full. We may also issue proceedings against you in the county court for the recovery of the full amount due, which may result in the amount owing increasing by way of court fees and enforcement costs. 

 

2.7  You will pay us the full amount of any invoice regardless of any deduction that you are required by law to make.

 

3.ELECTRONIC COMMUNICATION

 

3.1  We may communicate with you, and give you notices (including in relation to agreed variations to the scope of Services and/or the Fee), by email or through other electronic means which shall not be encrypted unless we have specifically agreed with you to do so.  We will only undertake the Services once we have undertaken such “know your customer” and credit checks as we consider appropriate.

 

3.2  We are not liable for misdirection, unauthorised interception nor transmission of viruses via electronic communications unless we have caused this by our own negligence or wilful default.

 

4.CLIENT IDENTIFICATION

 

There are various regulations which require identification of persons connected with commercial arrangements.  We may use an electronic identification provider to confirm the identity of individuals or directors or other officers or owners of companies or entities. We will only undertake the Services once we have undertaken such know your customer and credit checks as we consider appropriate. Please note this may include undertaking personal credit searches against the names of individuals (such as if our client is a natural person or against the names of directors or shareholders/member/partners of a business or corporate client).

 

5.CONFIDENTIAL INFORMATION

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5.1  We will keep confidential all information you provide to us during the course of this engagement.  You agree that we may disclose any such confidential information to our solicitors, insurers, insurance brokers or our auditors or where required by law or regulation.

 

5.2  You agree that we will not be under any obligation to disclose to you any information of which we owe a duty of confidentiality to another client or any other person and you agree to us acting for you notwithstanding that we may hold such information and further notwithstanding that it may be material to the subject matter of the Services.

 

5.3  If we hold confidential information for you we may act for another client on a matter where such information is material to their matter but we will put in place reasonably appropriate measures to ensure that the confidentiality of your information is maintained.

 

6.LIMITATION OF LIABILITY

 

6.1  The aggregate liability of the Company and/or any Bright Persons in any circumstances for loss or damage arising from or in connection with the Services is limited to the amount of the Fee invoiced and paid by you in the year in which the liability arises or is deemed to arise.  For the purposes of the Engagement Letter and these Terms of Business, “Bright Persons” means together the Company and its members, shareholders, directors, employees, representatives, consultants or agents (and Bright Person shall mean any of them and shall be construed accordingly). 

 

6.2   Our liability is to you and no one else.

 

6.3  The liability of the Company (and/or any Bright Persons) for loss or damage arising  from or in connection with the Services is limited to the proportion of the loss and damage as is just and equitable having regard to the extent of your own responsibility for the loss and damage and that of any other party (regardless of any inability on your part to enforce a claim against such other party due to limitation, a lack of means, reliance by that other party on an exclusion or limitation of liability or otherwise).

 

6.4  If you have agreed with anyone to any exclusion or limit of liability that affects our ability to claim a contribution against such person, our liability to you is reduced by the amount for which we would have been entitled to claim from such other person.

 

6.5  We will not be liable to you (or any other person) in respect of any loss of profits, loss of goodwill, loss of business, loss of business opportunity, loss of anticipated saving, loss of corruption of data or information, or, any special, indirect or consequential loss or damage howsoever arising or caused in connection with the Services and/or our performance of, or failure to perform, the Services or any part thereof.

 

6.6  Nothing contained in this clause 6 shall be applicable to the extent that it constitutes a limitation or exclusion of liability for death or personal injury caused by negligence or constitutes a limitation or exclusion of liability for fraud.

 

6.7  We will not be liable for any loss or damage arising in connection with any default or other act or omission on the part of any financial institution with which money has been deposited in connection with the Services.

 

7.INTELLECTUAL PROPERTY

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We will retain copyright, intellectual property and proprietary rights in all documents and materials prepared by us during the course of providing the Services.  However you are entitled to make use of those documents for the purposes for which they were provided.

 

8.DATA PROTECTION

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8.1  We will act as data controllers.  Subject to our legal and regulatory obligations, we will process personal data in such manner and for such purposes as we see fit.  We will not process personal data on your behalf and at your direction.  We may appoint sub-contractor data processors such as tracing and collection agents who will process personal data on our behalf and at our direction.

 

8.2  Because of the nature of the Services, unless otherwise required by you we will retain your details for such period as set out in our data retention policy and in order to be able to deal with future queries or claims, by our professional indemnity insurers or as we consider appropriate for the purposes in your interests including the taking or defending of any claims by you or in relation to your matters, and any limitation periods which might apply.  Our use of your information is subject to the Data Protection Act 1998, General Data Protection Regulation EU2016.679 (GDPR) and any subsequent or replacement data protection legislation.  The work we undertake for you may require us to pass on information to third parties such as tracing and collection agents and other External Third Parties (as defined in our privacy notice available at www.wearebright.uk).  You are entitled under the data protection legislation to the information we hold about you by way of subject access request, to require us to correct such data or to erase it if it is no longer required for the purpose for which it is provided.  You are also entitled to require us to provide your personal information in a standard accessible format.

 

8.3  We will take appropriate technical and organisational measures which are designed to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

 

8.4  You hereby consent to us processing or disclosing your personal data to carry out credit checks and take up credit references, perform client identification and other due diligence procedures and conflict of interest checks and to deliver the Services.

 

9.ANTI-BRIBERY AND CORRUPTION

 

9.1  We have an anti-bribery and corruption policy which applies to all Bright Persons.  We will not directly or indirectly engage in bribery or corruption in any form and have a zero tolerance approach to breach. We will never accept, solicit, agree to receive, promise, offer or give a bribe, facilitation payment, kickback or other improper payment.

 

9.2  For this purpose “bribe” means a financial or other advantage, intended to induce a person to give improper assistance in breach of their duty, or to otherwise influence someone with the underlying purpose of obtaining/retaining business, or an advantage in the course of business, and “facilitation payments” are small bribes made to government or public officials to speed up routine administrative processes or other actions.

 

9.3  All of our activities are managed in full compliance with this policy.  We expect you and all other persons for whom we provide services, and all of our, your and their respective other business partners, to have similar policies which apply to all dealings with, on behalf of, or involving us.

 

9.4  If any breach of this clause is suspected or known you must notify us immediately in writing.

 

10.TERMINATION

 

10.1 Unless the Engagement Letter specifies otherwise (in which case the terms of the Engagement Letter shall prevail) and without prejudice to any right we may have under any other clauses of this contract which permit or allow us to suspend or terminate the Services without notice, either party may terminate this contract or require suspension of the Services by giving to the other not less than 4 weeks’ clear notice in writing.

 

10.2 On termination or suspension (however and whatsoever occurring) you shall immediately pay to us (i) all outstanding invoices; (ii) a sum equal to the pro rata amount of the monthly fee for the current month, on the basis of the number of days elapsed in the month (including the date of notice of termination or suspension) bears to the number of days in the relevant month and (iii) any disbursements and expenses as have been incurred or suffered by us in the conduct of the Services and which have yet to be reimbursed by you.

 

10.3 We may immediately cease to undertake the Services and terminate this contract if the requirements of our client identification procedures have not been satisfied.  If so, no relationship will have been, or be deemed to have been established between us.

 

10.4 Notwithstanding suspension of the Services or termination of this contract, the provisions of clauses 5, 11, 12, and 15.1 shall remain in full force and effect.

 

10.5 Termination of this contract shall be without prejudice to any rights, remedies, obligations or liabilities of the parties that have accrued up to and including the date of termination.

 

11.RETENTION OF DOCUMENTS

 

We will retain your files and documents for certain minimum periods after termination of this contract. We may retain information indefinitely in order to be able to deal with future queries or claims.  We may then destroy such files without further notice or liability to you.  If you request your files and documents we may charge you for the costs of copying a duplicate.

 

12.INSURANCE

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We maintain professional indemnity insurance and will use all reasonable endeavours to maintain such insurance for so long as we have any liability under this contract.  Copies of our insurance policy are available upon request. 

 

13.ANNOUNCEMENTS

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No party shall make, or permit any person to make, any public announcement concerning this contract or the Services without the prior written consent of the other (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.

 

14.NOTICES

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14.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:

14.1.1    delivered by hand or by prepaid first class post or other next working day delivery service at its registered office marked for the attention of a director; or

14.1.2    sent by email to the or persons who is or are instruction or liaising with us in relation to the Services (in the case of you) or to the person who has signed the Engagement Letter (in the case of us).

14.2  Any notice or communication shall be deemed to have been received.

14.2.1    if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the property address;

14.2.2    if sent by prepaid first class post or other next working day service, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service;

14.2.3    if sent by mail, at 9.00am on the next Business Day after sending.

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14.3   The parties may change their address and/or contact details by giving notice to the other in accordance with this clause 15.  The notice must state that the new address and/or contact details is the address and/or contact details to be used henceforth.

 

14.4   This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

15.GENERAL

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15.1  The contract between us will be governed by the laws of England and Wales, and the English courts shall have exclusive jurisdiction over any dispute which might arise out of or in connection with this contract.

 

15.2  We will not be liable to you if we are unable to perform our Services as a result of any cause beyond our reasonable control.

 

15.3 Any changes to these Terms of Business must be agreed between us and confirmed in writing.  For the avoidance of doubt, changes to the Fee may be determined by us at our sole discretion at any time.

 

15.4 Your continued instructions in this matter will confirm your acceptance of these Terms of Business.

 

15.5 For the purposes of the Engagement Letter and these Terms of Business, “Business Day” shall mean any day in which the banks are open for business in the City of London, excluding Saturdays and Sundays and any UK public holiday.

 

15.6 Neither party shall assign its interest in this contract without the prior written consent of the other.

 

15.7 This contract constitutes the entire agreement and understanding between us and supersedes any other previous agreements between us in relation to the provision of the Services, and no person shall have any remedy in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this contract.  No person shall have any claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in this contract.

 

15.8 Failure by us or any Bright Person to enforce the performance of any provision on this contract shall not constitute a waiver of the right to subsequently enforce that provision or any other provision.  Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

 

15.9 In the event that one or more of the provisions of this contract are found to be unlawful, invalid or otherwise unenforceable, that/those provisions shall be deemed severed from the remainder of the contract and such remaining provisions shall remain in full force and effect.

 

15.10 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute any party as the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.  Each party confirms it is acting on its own behalf and not for the benefit of any other person.

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OCTOBER 2019