THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION 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.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5 (Charges and payment).
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between TNL Consultancy Ltd whose trading names are Business Advice Line, TNL Business Advisors and the Customer for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Customer: the person or firm who purchases Services from TNL Consultancy Ltd.
Customer Default: has the meaning set out in clause 4.2.
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deliverables: The Financial Management Advice produced by TNL Consultancy Ltd for the Customer. Specifically, TNL Consultancy Ltd will provide telephone support analysis of the Customer’s business to identify the strength and weaknesses which affect financial growth. This includes but is not limited to, management of profit and loss accounting, aged debt management, cash flow management and director/shareholder dividend management.
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.
Order: The Customer’s order for Services.
Quotation: The quotation provided separately to the Customer by TNL Consultancy Ltd, clearly marked as the Quotation.
Services: the services, supplied by TNL Consultancy Ltd to the Customer being the advice on management of their business as detailed within the Deliverables.
Success: The provision of advice which if implemented correctly would result in either (or a combination of) an increase in revenue, increase in net profit or decrease in expenditure equal to or in excess of the fees paid to TNL Consultancy Ltd for the provision of Services under this contract.
Supplier: TNL Consultancy Ltd registered in England and Wales with company number 07580635.
UK 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); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) 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.
(c) A reference to writing or written includes faxes and emails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when TNL Consultancy Ltd issues written acceptance of the Order at which point, and on which date the Contract shall come into existence (Commencement Date).
2.3 Any preliminary advice or advertising issued by TNL Consultancy Ltd is 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.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by TNL Consultancy Ltd shall not constitute an offer and is only valid for a period of 28 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 TNL Consultancy Ltd shall supply the Services to the Customer for the period of 12 months from the commencement date unless agreed with the customer for a period shorter than 12 months.
3.2 Each 12-month Term shall automatically renew for subsequent period of the same length as the initial Term unless either party gives the other written notice of termination at least (60) days prior to expiration of the current term.”
3.3 TNL Consultancy Ltd shall use all reasonable endeavours to meet any performance dates specified and as agreed by the parties, any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.4 TNL Consultancy Ltd reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and TNL Consultancy Ltd shall notify the Customer in any such event.
3.5 TNL Consultancy Ltd warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that any information it provides TNL Consultancy Ltd is complete and accurate;
(b) co-operate with TNL Consultancy Ltd in all matters relating to the Services;
(c) provide TNL Consultancy Ltd, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by TNL Consultancy Ltd;
(d) provide TNL Consultancy Ltd with such information and materials as TNL Consultancy Ltd may reasonably require in order to supply the Services;
(e) comply with all applicable laws, including health and safety laws; and
4.2 If TNL Consultancy Ltd ’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, TNL Consultancy Ltd shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays TNL Consultancy Ltd ’s performance of any of its obligations;
(b) TNL Consultancy Ltd shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from TNL Consultancy Ltd ’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse TNL Consultancy Ltd on written demand for any costs or losses sustained or incurred by TNL Consultancy Ltd arising directly or indirectly from the Customer Default.
(d) TNL shall be deemed to have been Successful in the provision of their Services.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be calculated on a time and materials basis:
(a) the Charges shall be calculated in accordance with TNL Consultancy Ltd ’s fee rates, as set out in Quotation sent by TNL Consultancy;
(b) the appropriate fee rate shall be agreed by the parties and confirmed in writing or email by TNL Consultancy Ltd within the Quotation;
(c) TNL Consultancy Ltd shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom TNL Consultancy Ltd engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by TNL Consultancy Ltd for the performance of the Services, and for the cost of any materials.
5.2 TNL Consultancy Ltd reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be the latest available figure for the percentage increase in the Retail Prices Index.
5.3 TNL Consultancy Ltd shall invoice the Customer on a monthly basis.
5.4 In the event that the Customer’s Quotation is for a 12-month period, the Customer is required to make an initial payment equal to 3 months fees, such payment shall be regarded as the membership joining fee payment.
5.5 The Customer shall pay each invoice submitted by TNL Consultancy Ltd:
(a) Collected by the preferred method of direct debit on the 1st of each month OR
(b) If agreed in writing, within 30 days of the date of the invoice save as otherwise directed by these terms and conditions: and
(c) in full and in cleared funds to a bank account nominated in writing by TNL Consultancy Ltd, and
time for payment shall be of the essence of the Contract.
5.6 TNL Consultancy Ltd invoices shall include note the payment of value-added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from TNL Consultancy Ltd, pay to TNL Consultancy Ltd such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7 If the Customer fails to make a payment due to TNL Consultancy Ltd under the Contract by the due date, then, without limiting TNL Consultancy Ltd.’s remedies under Clause 9, the Customer 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 5.6 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%.
5.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction, or withholding (other than any deduction or withholding of tax as required by law).
5.9 In the event that TNL Consultancy Ltd is not Successful in the provision of their Services, the Customer is entitled to a refund of the fees paid to TNL Consultancy Ltd. Such refund as outlined in this clause is not payable in the event that TNL Consultancy Ltd is Successful in the provision of their Services whether by operation of clause 4.2(d) or otherwise.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by TNL Consultancy Ltd.
6.2 TNL Consultancy Ltd grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 6.2.
6.4 The Customer grants TNL Consultancy Ltd a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to TNL Consultancy Ltd for the term of the Contract for the purpose of providing the Services to the Customer.
7. DATA PROTECTION
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this Clause 7, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
7.3 Without prejudice to the generality of Clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
7.4 The Customer does not consent to the Supplier appointing any third-party processor of personal data under the Contract.
7.5 Either party may, at any time on not less than 30 days’ notice, revise this Clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 TNL Consultancy Ltd has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,000 per claim. The Supplier has been unable to obtain insurance in respect of certain types of loss at a commercially viable price. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange, and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
8.2 The restrictions on liability in this Clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.4 Subject to clause 8.3, TNL Consultancy Ltd total liability to the Customer shall not exceed £1,000,000
8.5 This Clause 8.7 sets out specific heads of excluded loss:
(a) Subject to Clause 8.2, the types of loss listed in Clause 8.7(b) are wholly excluded by the parties.
(b) The following types of loss are wholly excluded:
(i) loss of profits
(ii) loss of sales or business.
(iii) loss of agreements or contracts.
(iv) loss of anticipated savings.
(v) loss of use or corruption of software, data or information.
(vi) loss of or damage to goodwill; and
(vii) Indirect or consequential loss.
8.6 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer 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.
8.7 This Clause 8 shall survive termination of the Contract.
9.1 Each 12-month Term shall automatically renew for a subsequent period of the same length as the initial Term unless either party gives the other written notice of termination at least (30) days prior to expiration of the current term.”
9.2 Without affecting any other right or remedy available to it, 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 7 days of that party being notified in writing to do so;
(b) the other party 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), 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;
(c) 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; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, TNL Consultancy Ltd may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment; or
(a) there is a change of Control of the Customer.
9.4 Without affecting any other right or remedy available to it, TNL Consultancy Ltd may suspend the supply of Services under the Contract or any other contract between the Customer and TNL Consultancy Ltd if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(d) or TNL Consultancy Ltd reasonably believes that the Customer is about to become subject to any of them.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract:
(a) the Customer shall immediately pay to TNL Consultancy Ltd all of TNL Consultancy Ltd ’s outstanding unpaid invoices and interest and, in respect of Services due to be supplied for the remaining contractual term but for which no invoice has been submitted, TNL Consultancy Ltd shall submit an invoice, which shall be payable by the Customer immediately on receipt.
(b) the Customer shall return all of TNL Consultancy Ltd Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then TNL Consultancy Ltd may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination or expiry of the Contract shall not affect any 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.
10.3 In the event that the Contract is Terminated by the Customer prior to the completion of the initial term of the Contract as confirmed within the Quotation, TNL Consultancy Ltd shall be deemed to have been Successful in the provision of the Services.
10.4 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.
11.1 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.
11.2 Assignment and other dealings.
(a) TNL Consultancy Ltd may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of TNL Consultancy Ltd.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) 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 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement.
(a) 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.
(b) 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.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
11.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. 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 default. 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.
11.7 Severance. 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.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number; or sent by email to an email address previously used by the parties in correspondence with each other (unless either party has specifically informed the other, prior to the sending of the notice, that the email address is no longer effective or in use).
(b) Any notice or other communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) 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 or at the time recorded by the delivery service; or
(iii) if sent by fax [ or email], at the time of transmission, or, if this time falls outside business hours in the place of receipt when business hours resume. In this Clause 11.8(b)(iii), business hours mean 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9 Third-party rights.
(a) Unless it expressly states otherwise, 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.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.10 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.
11.11 Jurisdiction. 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.