TERMS
AND CONDITIONS
CoEfficient
Limited
Version
1.0 (May 2022).
1.
Interpretation
1.1
Definitions
. In these Conditions,
the following definitions apply:
Business Day:
a day (other than a Saturday, Sunday
or public holiday) when banks in London are open for business.
Charges:
the charges payable by the Client for the supply of the
Services in accordance with clause 5.
Commencement Date:
the date for commencement of the Services as
stated in the Engagement Letter.
Conditions:
these terms and conditions as amended from time
to time in accordance with clause 14.7.
Contract:
the contract between the Company and the Client for the
supply of Services in accordance with the Engagement Letter and these Terms and
Conditions.
Client:
the person, company or organisation
identified as the client in the Engagement Letter.
Company:
CoEfficient Limited, a limited
company registered in Guernsey with company number 70861
Company Materials:
all
materials, equipment, documents and other property of
the Company, specifically but not exclusively the application webite.
End Date:
the date for termination of the Services as stated in
the Engagement Letter.
Engagement Letter:
the Company’s letter of
engagement addressed to the Client;
Intellectual Property Rights:
patents, rights to inventions, copyright and
related rights, trade marks, business names and domain names, rights in get-up,
goodwill and the right to sue for passing off, rights in designs, database
rights, rights to use, and protect the confidentiality of, confidential
information (including know-how), and all other intellectual property rights,
in each case whether registered or unregistered and including all applications
and rights to apply for and be granted, renewals or extensions of, and rights
to claim priority from, such rights and all similar or equivalent rights or
forms of protection which subsist or will subsist now or in the future in any
part of the world. Specifically, although not limited to, all aspects related
to the Application webite, and any associated trade
names or Trademarks ™® the model, the assessment, its methodology, its analysis and benchmarking.
Services:
the services to be provided by the Company to the Client
as described or referred to in the Engagement Letter.
1.2
Construction
. In these Terms and
Conditions, the following rules apply:
(a)
a person
includes a natural person, corporate or
unincorporated body (whether or not having separate legal personality);
(b)
a reference to a party includes its successors or permitted assigns;
(c)
a reference to a statute or statutory provision is a reference to such
statute or statutory provision as amended or re-enacted. A reference to a
statute or statutory provision includes any subordinate legislation or
regulation made under that statute or statutory provision, as amended or re-enacted;
(d)
any phrase introduced by the terms including, include,
in particular or
any similar expression, shall be
construed as illustrative and shall not limit the sense of the words preceding
those terms; and
(e)
a reference to writing or written does not include e-mails unless specified.
2.
The
engagement
2.1
The engagement
of the Company by the Client is governed by the terms of the Engagement Letter
and these Terms and Conditions subject to any variations agreed in writing by
the Company and the Client in accordance with clause 14.7 of these Terms and
Conditions. The foregoing shall apply exclusively to the provision of the
Services and shall take precedence over any terms and conditions which the
Client seeks to impose whether by any purchase order or otherwise or which are
or may be implied by trade, custom, practice or course
of dealing.
2.2
The Engagement
shall be deemed to have commenced on the Commencement Date and shall continue
until the End Date unless terminated earlier in accordance with clause 10 of
these Terms and Conditions.
2.3
The Contract
constitutes the entire agreement between the parties. The Client acknowledges
that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the
Company, which is not set out in the Contract.
2.4
Any samples,
drawings, descriptive matter or advertising issued by
the Company, and any descriptions or illustrations contained in the Company's
catalogues or brochures, are issued or published for the sole purpose of giving
an approximate idea of the Services described in them. They shall not form part
of the Contract or have any contractual force.
2.5
The Client
acknowledges that the Services do not constitute legal advice and that the
Company does not provide nor purport to provide legal advice. No aspect of the
Services should be construed as legal advice. The Client should rely solely on
its own legal advisers for legal advice.
2.6
The Client
acknowledges that measurements of business performance is
not an absolute science and whilst every effort has been put into creating a
sound and evidence-based scientific methodology, measuring business performance
remains somewhat subjective and the application webite
reflects this in its essence as a tool that measures perception.
2.7
In the event of a conflict between the terms
of the Engagement Letter and these Terms and Conditions, the Engagement letter
shall take precedence to the extent of that conflict.
3.
Supply
of Services
3.1
The Company
warrants to the Client that the Services will be provided using reasonable care
and skill.
3.2
The Company
shall use all reasonable endeavours to meet any
performance dates specified in the Engagement Letter, but any such dates shall
be estimates only and time shall not be of the essence for performance of the
Services.
3.3
The Company
shall have the right to make any changes to the Services, which are necessary
to comply with any applicable law or safety requirement, or which do not
materially affect the nature or quality of the Services, and the Company shall
notify the Client in any such event.
3.4
The Client
acknowledges that the provision of the Services does not guarantee the success
of any regulatory inspection, application or other review and the Company gives
no warranties in regard to any particular application
or inspection.
3.5
The Company does
not warrant that the Application webite is an
absolute measure of business performance, however is, as described, an
indicator of certain aspects of business performance noted as part of the said
model.
4.
Client's
obligations
4.1
The Client
shall:
(a)
ensure that any information it provides to the Company is complete and accurate;
(b)
co-operate with the Company in all matters relating to the Services;
(c)
provide the Company, its employees, agents, Companys
and subcontractors, with access to the Client's premises, office accommodation
and other facilities as reasonably required by the Company;
(d)
provide the Company with such information and materials as the Company
may reasonably require in order to supply the Services, and ensure that such
information is accurate in all material respects;
(e)
obtain and maintain all necessary licences,
permissions and consents which may be required before the date on which the
Services are to start;
(f)
keep and maintain safely and securely any
Company Materials which
may come into its possession from time to time and
not
dispose of or use the Company Materials other than in accordance with the
Company's written permission.
4.2
If the Company's
performance of any of its obligations under the Contract is prevented or
delayed by any act or omission by the Client or failure by the Client to
perform any relevant obligation (
Client
Default
):
(a)
the Company shall without limiting its other rights or remedies have
the right to suspend performance of the Services until the Client remedies the
Client Default, and to rely on the Client Default to relieve it from the
performance of any of its obligations to the extent the Client Default prevents
or delays the Company's performance of any of its obligations;
(b)
the Company shall not be liable for any costs or losses sustained or
incurred by the Client arising directly or indirectly from the Company's failure
or delay to perform any of its obligations as set out in this clause 4.1; and
(c)
the Client shall reimburse the Company on written demand for any costs
or losses sustained or incurred by the Company arising directly or indirectly
from the Client Default.
5.
Charges
and payment
5.1
The Charges for
the Services shall be those specified in the Engagement Letter.
5.2
The Company
shall be entitled to charge the Client for any expenses reasonably incurred by
it in connection with the Services (including, but not limited to, travelling
expenses, hotel costs, subsistence and any associated
expenses) as specified in the Engagement Letter.
5.3
The Company
reserves the right to increase its Charges from time to time provided it gives
the Client not less than 30 days written notice before the proposed date of the
increase. If such increase is not acceptable to the Client, it shall notify the
Company in writing within 14 days of the date of the Company's notice and the
Company shall have the right without limiting its other rights or remedies to
terminate the Contract by giving 14 days written notice to the Client.
5.4
The Company
shall invoice the Client [on commencement of the Services OR [weekly/monthly] in advance OR
as specified in the Engagement Letter] remembering that the Engagement Letter
takes preference.
5.5
The Client shall
pay each invoice submitted by the Company:
(a)
within [14] days of
the date of the invoice; and
(b)
in full and in cleared funds to a bank account nominated in writing by
the Company, and
(c)
time for payment shall be of the essence of the Contract.
5.6
If the Client
fails to make any payment due to the Company under the Contract by the due date
for payment, then the Company has the right to remove access to the Application
webite until such time as any outstanding fees have
been received.
5.7
The Client shall
pay all amounts due under the Contract in full without any set-off,
counterclaim, deduction or withholding (except for any deduction or withholding
required by law).
6.
Intellectual
property rights
6.1
All Intellectual
Property Rights in or arising out of or in connection with the Services shall
be owned by the Company.
Specifically, although not limited to, all aspects
related to the Application webite and any associated
trade names or Trademarks™®, the model, the assessment, its methodology, its analysis and benchmarking.
6.2
The Company
grants to the Client a limited licence to use the
forgoing Intellectual Property Rights to the extent necessary for the Client to
have the benefit of the Services provided.
6.3
Upon the
termination of the Licence Period the Company may, in
its absolute discretion, request that the Client returns to the Company any
intellectual property that the Client has in its possession and the Client
shall take all reasonable steps to ensure that such property are
returned to the Company as soon as practicable upon receiving notice of such a
request.
6.4
The Client
acknowledges that, in respect of any third party
Intellectual Property Rights, the Client's use of any such Intellectual
Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will
entitle the Company to license such rights to the Client.
6.5
All Company
materials are the exclusive property of the Company.
7.
marketing
7.1
The Client
agrees to the use of its name and logo, along with any agreed testimonial in
electronically transmitted and printed marketing material of the Company as a
client of the Company.
7.2
The Company
agrees that the Client may include the Company’s logo in appropriate context in
marketing materials of the Client in respect of the Client’s Products that use
the Services, subject to the relevant regulatory requirements that apply to the
Company in Guernsey and elsewhere.
8.
Confidentiality
A party (
receiving
party
) shall keep in strict confidence all technical or commercial
know-how, specifications, inventions, processes or
initiatives which are of a confidential nature and have been disclosed to the
receiving party by the other party (
disclosing
party
), its employees, agents or subcontractors, and any other confidential
information concerning the disclosing party's business, its products and
services which the receiving party may obtain. The receiving party shall only
disclose such confidential information to those of its employees, agents and
subcontractors who need to know it for the purpose of discharging the receiving
party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set
out in this clause as though they were a party to the Contract. The receiving
party may also disclose such of the disclosing party's confidential information
as is required to be disclosed by law, any governmental or regulatory authority
or by a court of competent jurisdiction. This clause 8 shall survive
termination of the Contract.
9.
Limitation
of liability:
9.1
Nothing in the
Contract shall limit or exclude the Company's liability for:
(a)
death or personal injury caused by its negligence, or the negligence of
its employees, agents or subcontractors;
(b)
fraud or fraudulent misrepresentation; or
(c)
breach of the terms implied by
The Trading Standards (Enabling Provisions) (Guernsey) Law
2009 and the consumer protection ordinance.
9.2
Subject to
clause 9.1:
(a)
the Company shall under no circumstances whatever be liable to the
Client, whether in contract, tort (including negligence), breach of statutory
duty, or otherwise, for any:
(i)
loss of or harm to reputation or goodwill;
(ii)
loss of business;
(iii)
loss of profit (whether direct or
not);
(iv)
regulatory failure; or
(v)
indirect or consequential loss,
in each
case arising
under or in connection with
the Contract; and
(b)
the Company's total liability to the Client in respect of all other
losses arising under or in connection with the Contract, whether in contract,
tort (including negligence), breach of statutory duty, or otherwise, shall in
no circumstances exceed the aggregate amount of charges paid by the Client to
the Company under the Contract.
9.3
This clause 9
shall survive termination of the Contract.
10.
Termination
10.1
Without limiting
its other rights or remedies, either party may terminate the Contract by giving
the other party three months' written notice or that which may be prescribed in
the Engagement Letter.
10.2
Without limiting
its other rights or remedies, either party may terminate the Contract with
immediate effect by giving written notice to the other party if:
(a)
the other party commits a material breach of any term of the Contract
and (if such a breach is remediable) fails to remedy that breach within 14 days
of that party being notified in writing to do so;
(b)
the other party suspends, or threatens to suspend, payment of its debts
or is unable to pay its debts as they fall due or admits inability to pay its
debts or is deemed unable to pay its debts within the meaning of The Companies (Guernsey). Law
, 2008 and the Companies
(Guernsey) Law, 2008 (Insolvency) (Amendment) Ordinance, 2020;
(c)
the other party commences negotiations with all or any class of its
creditors with a view to rescheduling any of its debts, or makes a proposal for
or enters into any compromise or arrangement with its creditors other than
(where a company) for the sole purpose of a scheme for a solvent amalgamation
of that other party with one or more other companies or the solvent
reconstruction of that other party;
(d)
a petition is filed, a notice is given, a resolution is passed, or an
order is made, for or in connection with the winding up of that other party
(being a company) other than for the sole purpose of a scheme for a solvent
amalgamation of that other party with one or more other companies or the
solvent reconstruction of that other party;
(e)
a creditor or encumbrancer of the other party attaches or takes
possession of, or a distress, execution, sequestration or other such process is
levied or enforced on or sued against, the whole or any part of its assets and
such attachment or process is not discharged within [14] days;
(f)
an application is made to court, or an order is made, for the appointment
of an administrator or if a notice of intention to appoint an administrator is
given or if an administrator is appointed over the other party (being a company);
(g)
the holder of a qualifying floating charge over the assets of that
other party (being a company) has become entitled to appoint or has appointed
an administrative receiver;
(h)
a person becomes entitled to appoint a receiver over the assets of the
other party or a receiver is appointed over the assets of the other party;
(i)
any event occurs or proceeding is taken with
respect to the other party in any jurisdiction to which it is subject that has
an effect equivalent or similar to any of the events mentioned in clause
10.2(b) to clause 10.2(h) (inclusive);
(j)
the other party suspends or ceases, or threatens to suspend or cease,
to carry on all or a substantial part of its business.
10.3
Without limiting
its other rights or remedies, the Company may terminate the Contract with
immediate effect by giving written notice to the Client if the Client fails to
pay any amount due under this Contract on the due date for payment and fails to
pay all outstanding amounts within 10 days after being notified in writing to
do so.
10.4
Without limiting
its other rights or remedies, the Company may suspend provision of the Services
under the Contract or any other contract between the Client and the Company if
the Client becomes subject to any of the events listed in clause 10.2(b) to
clause 10.2(i) or the Company reasonably believes that the
Client is about to become subject to any of them, or if the Client fails to pay
any amount due under this Contract on the due date for payment.
11.
Consequences
of termination
On termination of the Contract for any reason: