Application and entire agreement
- These Terms and Conditions apply to the provision of the services detailed in our Proposal (Services) by PriceMaker Limited, a company registered in England and Wales under number 12588304 whose registered office is at 86-90, Paul Street, London, EC2A 4NE (we or us or PriceMaker) to the person buying the services (you or the Client).
- You are deemed to have accepted these Terms and Conditions when you accept our Proposal or from the date of any performance of the Services (whichever happens earlier), or when any initial payment has been received, and these Terms and Conditions and our Proposal (the Contract) are the entire agreement between us.
- You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Conditions apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
The following definitions and those in the Contract Details apply in these Conditions.
|Business Day:||A day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.|
|Conditions:||These terms and conditions set out in clause 1 (Interpretation) to clause 9 (General) (inclusive).|
|Contract:||The contract between the Client and PriceMaker for the supply of the Services in accordance with the Proposal, these Conditions and any other Proposal agreed and signed by the parties from time to time.|
|PriceMaker IPRs:||All Intellectual Property Rights subsisting in the Deliverables excluding any Client Materials incorporated in them.|
|Client Materials:||All materials, documents, specifications and data supplied by the Client to PriceMaker.|
|Deliverables:||All documents, work product and materials used or developed by PriceMaker as part of or in relation to the Services in any form, including without limitation data, reports and specifications (including drafts).|
|Intellectual Property Rights:||Patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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, 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.|
|Sessions:||The sessions in which PriceMaker is to perform the Services as agreed in accordance with the Proposal.|
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- A reference to writing or written includes e-mail but excludes fax.
2. Commencement and Term
2.1 The Contract shall commence on the agreed start date of the Services, or on the date when it has been signed by both parties and shall continue, unless terminated earlier in accordance with its terms, until:
2.1.1 either party gives to the other not less than 1 month’s written notice to terminate; or
2.1.2 until the Services are complete.
2.2 The parties may agree and sign further Proposals from time to time and in such event, any new Proposal shall be incorporated into the Contract or, if the original Contract has expired or terminated, a new Contract shall commence.
3. Supply of services
3.1 PriceMaker shall supply the Services, as an independent contractor, to the Client in accordance with the Proposal.
3.2 The Services are supplied on a non-exclusive basis and PriceMaker shall be free to perform Services for any other person.
3.3 In supplying the Services, PriceMaker warrants that it shall:
3.3.1 perform the Services with reasonable care and skill;
3.3.2 perform the Services in accordance with the service description set out in the Proposal;
3.3.3 comply with all applicable laws, statutes and regulations from time to time in force provided that we shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract;
3.3.4 observe all reasonable health and safety rules and regulations and security requirements that apply at the Client’s premises and have been communicated us , provided that we shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
3.3.5 take reasonable care of all Client Materials in its possession and make them available for collection by the Client or destroy and delete them on reasonable request.
4. Client’s obligations
4.1 The Client:
4.1.1 shall co-operate with PriceMaker in all matters relating to the Services including:acting reasonably in the agreement of Session dates and times;
- providing the necessary venue and facilities and/or technology, utilities, equipment and communication systems for the Sessions to take place without interruption;
- providing us with access to all key people internally as required;
- ensuring any of your staff or contractors involved in the Proposal comply fully with the Services, including attendance at workshop Sessions in good time and preventing interruption;
- engaging with PriceMaker in an honest and open manner; and
- the carrying out of any work or assignments in good time between or at Sessions as required by PriceMaker;
4.1.2 shall provide, in a timely manner, such information and data as PriceMaker may reasonably require, and ensure that it is accurate and complete in all material respects;
4.1.3 shall immediately inform us of any developments that might materially affect the success of this project.
4.2 If PriceMaker’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, PriceMaker shall:
4.2.1 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;
4.2.2 be entitled to payment of the Charges despite any such prevention or delay; and
4.2.3 be entitled to recover any additional costs, charges or losses we sustain or incur that arise directly or indirectly from such prevention or delay.
4.3 If the Client needs to reschedule any Session, the Client shall notify us as soon as possible. If a Session is cancelled less than 48 hours before its scheduled time or if the Client is more than 15 minutes late for a Session, the Session shall be treated as spent and PriceMaker need not reschedule the Session or provide an additional Session (as applicable).
5. Intellectual property
5.1 PriceMaker and its licensors shall retain ownership of all PriceMaker IPRs. The Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials.
5.2 Subject to payment in full of the Charges, PriceMaker grants the Client a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy the PriceMaker IPRs for the purpose of receiving and using the Services in the Client’s business.
5.3 The Client grants PriceMaker a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of the Contract for the purpose of providing the Services to the Client in accordance with the Contract.
5.4 The Client shall indemnify PriceMaker in full against any sums awarded by a court against us arising of or in connection with any claim brought against PriceMaker for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Client Materials by the PriceMaker.
5.5 When the Services are complete, PriceMaker will invite the Client to provide testimonials or feedback. At the discretion of the Client, PriceMaker may use these testimonials and/or feedback on its website, social media or other marketing materials, provided that the Client’s identity shall be anonymised in these testimonials at the Client’s request.
6. Charges and payment
6.1 In consideration for the provision of the Services, the Client shall pay PriceMaker the Charges shown in the Proposal and in accordance with this clause 6.
6.2 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
6.3 For any part of the Charges payable on signing the Contract or the relevant Proposal:
6.3.1 the Client shall pay such part of the Charges plus VAT (if applicable) immediately thereafter and in any event no later than the date of the first Session ; and
6.4 For any part of the Charges payable following submission of an invoice and any expenses as described in the Proposal , the Client shall pay the Charges and/or expenses due plus VAT (if applicable) within 10 days of receipt of the relevant invoice.
6.5 If the Client fails to make any payment due to PriceMaker under the Contract by the due date for payment, then, without limiting our remedies under clause 8 (Termination):
6.5.1 the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and/or
6.5.2 PriceMaker may suspend all Services (including the postponement of any Sessions) until payment has been made in full.
6.6 All amounts due under the Contract from the Client to PriceMaker shall be paid in Sterling, by transfer to a bank account nominated in writing by us , and in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.7 If the Client terminates the Contract under clause 1.1:
6.7.1 the part of the Charges payable on signing the Contract or the relevant Schedule shall not be refundable;
6.7.2 if the Client has paid further Charges, or is due to pay further Charges prior to the date of termination, the part of such Charges that relate to Sessions not yet taken and falling after the date of termination shall be refunded or discounted (as applicable) on a pro rata basis.
7. DATA PROTECTION
7.1 The following definitions apply in this clause:
7.1.1 Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation;
7.1.2 Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679) and the Data Protection Act 2018;
7.1.3 Applicable Laws: (for so long as and to the extent that they apply to PriceMaker) the law of the European Union, the law of any member state of the European Union and/or domestic UK law including, in each case, the relevant Data Protection Legislation.
7.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7.2 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
7.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and PriceMaker is the Processor. The Proposal sets out the scope, nature and purpose of processing by PriceMaker, the duration of the processing and the types of Personal Data and categories of Data Subject. The scope, nature and purpose of processing by the Consultant, the duration of the processing and the types of Personal Data and categories of Data Subject are as follows:
7.3.1 Scope, nature and purpose of processing: Personal Data shall be processed only as necessary for the performance of relevant Services;
7.3.2 Duration of processing: the term of the Contract or the relevant Services;
7.3.3 Type of Personal Data: the names and contact details of customers of Clients who are individuals or the individual representatives of any corporate customers of Clients;
7.3.4 Categories of Data Subject: customers of the Client who are individuals or the individual representatives of any corporate customers of the Client.
7.4 Without prejudice to the generality of clause 7.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to PriceMaker, and its processing in accordance with the Contract, for the duration and purposes of the Contract.
7.5 Without prejudice to the generality of clause 7.2, PriceMaker shall, in relation to any Personal Data processed in connection with the performance by PriceMaker of its obligations under the Contract:
7.5.1 process that Personal Data only on the documented written instructions of the Client as set out in the Proposal or supplied from time to time, unless PriceMaker is required by Applicable Laws to otherwise process that Personal Data;
7.5.2 ensure that it has in place appropriate technical and organisational measures 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;
7.5.3 not transfer any Personal Data outside of the European Economic Area:
7.5.4 assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.5.5 notify the Client without undue delay on becoming aware of a Personal Data Breach;
7.5.6 at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Contract unless required by Applicable Law to store the Personal Data; and
7.6 The Client consents to PriceMaker appointing any subcontractor referred to in the Proposal as a third-party processor of Personal Data under the Contract. PriceMaker confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are no less onerous than those set out in this clause 7.
8. Limitation of liability
8.1 PriceMaker shall maintain insurance cover in respect of its own professional indemnity of not less than £1,500,000 per claim and public liability of not less than £10,000,000 per claim.
8.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
8.2.1 death or personal injury caused by negligence;
8.2.2 fraud or fraudulent misrepresentation; and
8.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.3 Subject to clause 2, PriceMaker’s total liability to the Client shall not exceed the total Charges actually paid by the Client in the 12-month period prior to the breaches in question. PriceMaker’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
8.4 This clause 4 sets out specific heads of excluded loss and exceptions from them:
8.4.1 Subject to clause 2, the types of loss listed in clause 7.4.2 are wholly excluded by the parties, but the types of loss listed in clause 7.4.3 are not excluded.
8.4.2 The Client is ultimately responsible for all decisions, choices, actions and results during or following receipt of the Services. The following types of loss are therefore wholly excluded:
(a) Loss of profits; loss of sales or business; Loss of agreements or contracts; Loss of anticipated savings; Wasted expenditure and loss of management time; Loss of use or corruption of software, data or information; Loss of or damage to goodwill; Additional costs of procuring and implementing replacements for, or alternatives to, Services not provided in accordance with the Contract;
(b) Losses incurred by the Client arising out of or in connection with any third party claim against the Client which has been caused by the act or omission of the Consultant. For these purposes, third party claims shall include demands, fines, penalties, actions, investigations or proceedings, including those made or commenced by regulators and customers of the Client;
(c) Indirect or consequential loss.
8.4.3 Sums paid by the Client to PriceMaker in pursuant to the Contract, in respect of any Services not provided in accordance with the Contract, are not excluded.
8.5 PriceMaker has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 4 and 13 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.6 Unless the Client notifies us that it intends to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9.1 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
9.1.1 the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
9.1.2 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
9.2 Without affecting any other right or remedy available to it, PriceMaker may terminate the Contract with immediate effect by giving written notice to the Client if:
9.2.1 the Client fails to pay any amount due under the Contract on the due date for payment; or
9.2.2 the Client commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
9.2.3 the Client takes or is subject to 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, having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.2.4 the Client’s financial position deteriorates to such an extent that in our opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 On termination of the Contract for whatever reason:
9.3.1 the Client shall immediately pay all of the PriceMaker’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt;
9.3.2 any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
9.3.3 termination or expiry of the Contract 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 Contract which existed at or before the date of termination or expiry.
10.1 Force majeure.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.2 Assignment and other dealings.
10.2.1 the Client shall not 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 Contract without the Consultant’s prior written consent.
10.2.2 PriceMaker 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 and obligations under the Contract.
10.3.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, employees, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 9.3. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
10.3.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 9.3;
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3.3 Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
10.3.4 In respect of any personal data which the Client gives to PriceMaker incidental to the Contract or to enable us to perform the Services, the Client confirms that it has all appropriate consents and notices in place to enable lawful transfer and processing of that personal data for such purposes.
10.4 Entire agreement.
10.4.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
10.4.2 Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
10.5 Conflict and other terms
10.5.1 If there is any conflict or ambiguity between the terms of the Conditions and the Proposal, the Conditions shall have priority over the Proposal.
10.5.2 These Conditions apply to the Contract to the exclusion of any other terms that the Client tries to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.7.1 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
10.7.2 A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract 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 the Contract.
10.9.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be (a) delivered or posted to its registered office (if a company) or its principal place of business (in any other case); or (b) sent be email to the email address for that party specified in the Proposal or the e-mail address of a party’s key representative, provided proof of delivery or receipt is obtained.
10.9.2 Any notice shall be deemed to have been received (a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and (c) if sent by email and provided proof of delivery or receipt is obtained, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this sub-clause 10.9.2, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
10.9.3 This clause does not apply to the service of any proceedings or other documents in any legal action.
10.10 Third party rights.
The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
10.11 No partnership.
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
10.12 Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
PriceMaker Limited. Registered Office: 86-90 Paul Street, London, EC2A 4NE.
Registered in England. Company number: 12588304. VAT registration number: 353 9677 55