Terms

1.

Interpretation

1.1

Definitions: The definitions and rules of interpretation in this condition apply in these terms and conditions.

1.2

Condition headings shall not affect the interpretation of these terms and conditions.

1.3

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4

A reference to a company includes any company, corporation or other body corporate, wherever and however incorporated or established.

1.5

Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular and a reference to one gender includes the others.

1.6

A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.7

A reference to writing or written excludes faxes but not email.

1.8

References to conditions are to the conditions of these terms and conditions.

1.9

Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.

Application of Conditions

2.1

These conditions shall:

2.1.1

apply to and be incorporated in the Contract; and

2.1.2

prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

2.2

No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Herdl unless in writing and signed by a duly authorised representative of Herdl.

3.

Effect of Purchase Order

The Customer’s purchase order constitutes an offer by the Customer to purchase the Services specified in it on these conditions. Accordingly, the execution and return of the acknowledgement copy of the purchase order form by Herdl, or Herdl’s commencement or execution of work pursuant to the purchase order, shall establish a contract for the supply and purchase of those Services on these conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.

4.

Supplier’s Obligations

4.1

Herdl shall use reasonable endeavours to manage and complete the Project, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Project Plan.

4.2

Herdl shall use reasonable endeavours to meet the performance dates specified in the Project Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.

4.3

Herdl shall appoint Herdl’s Project Manager who shall have authority to contractually bind Herdl on all matters relating to the Project. Herdl shall use reasonable endeavours to ensure that the same person acts as Herdl’s Project Manager throughout the Project, but may replace that person from time to time where reasonably necessary in the interests of Herdl’s business.

5.

Customer’s Obligations

5.1

The Customer shall:

5.1.1

co-operate with Herdl in all matters relating to the Project and appoint the Customer’s Project Manager, who shall have the authority to contractually bind the Customer on matters relating to the Project;

5.1.2

provide in a timely manner such access to the Customer’s data as is requested by Herdl;

5.1.3

comply with all Herdl’s instructions relating to the Project;

5.1.4

provide in a timely manner such information as Herdl may request, and ensure that such information is accurate in all material respects; and

5.1.5

be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.

5.2

If Herdl’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, subcontractors or employees, the Customer shall in all circumstances be liable to pay to Herdl on demand all reasonable costs, charges or losses sustained or incurred by it, subject to Herdl confirming such costs, charges and losses to the Customer in writing. Such losses shall include, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere.

5.3

The Customer shall not, without the prior written consent of Herdl, at any time from the date of the Contract to the expiry of six months after the completion of the Services, solicit or entice away from Herdl or employ or attempt to employ any person who is, or has been, engaged as an employee or subcontractor of Herdl. The Customer shall not be in breach of this condition 5.3 if it hires an employee or subcontractor of Herdl as a result of a recruitment campaign not specifically targeted to any employees or subcontractors of Herdl.

5.4

Any consent given by Herdl in accordance with condition 5.3 shall be subject to the Customer paying to Herdl on demand a recruitment fee equivalent to 20% of the then current annual remuneration of Herdl’s employee or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or subcontractor.

6.

Change Control

6.1

The Customer’s Project Manager and Herdl’s Project Manager shall meet at such times as Herdl shall specify to discuss matters relating to the Project. If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.

6.2

If either party requests a change to the scope or execution of the Services, Herdl shall, within a reasonable time, provide a written estimate to the Customer of:

6.2.1

the likely time required to implement the change;

6.2.2

any variations to Herdl’s charges arising from the change;

6.2.3

the likely effect of the change on the Project Plan; and

6.2.4

any other impact of the change on the terms of the Contract.

6.3

If Herdl requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.

6.4

If the Customer wishes Herdl to proceed with the change, Herdl has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of the Contract to take account of the change.

7.

Charges and Payment

7.1

Condition 7.2 shall apply if the Services are to be provided on a time-and-materials basis. condition 7.3 and condition 7.4 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 7 shall apply in either case.

7.2

Where the Services are provided on a time-and-materials basis:

7.2.1

the charges payable for the Services shall be calculated in accordance with Herdl’s standard daily fee rates as amended from time to time;

7.2.2

Herdl’s standard daily fee rates are calculated on the basis of an eight-hour day worked between 9.00 am and 5.00 pm on weekdays (excluding weekends and public holidays);

7.2.3

Herdl shall be entitled to charge at an overtime rate of 200% of the normal rate for part days and for time worked by members of the project team outside the hours referred to in condition 7.2.2 on a pro-rata basis;

7.2.4

Herdl shall ensure that all members of the project team complete time sheets recording time spent on the Project, and Herdl shall use such time sheets to calculate the charges covered by each monthly invoice referred to in condition 7.2.5; and

7.2.5

Herdl shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (subject to condition 7.5) for the month concerned, calculated as provided in this condition 7. Any expenses, materials and third party services shall be invoiced by Herdl at cost plus 10%. Each invoice shall set out the time spent by each member of the project team and provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.

7.3

Where the Services are provided on a rolling monthly basis, Herdl shall invoice the Customer monthly in advance for its charges unless otherwise set out in the Project Plan.

7.4

Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Project Plan. The total price must be paid to Herdl in instalments as set out in the Project Plan on its achieving the corresponding Project Milestone or as otherwise set out in the Project Plan. On achieving a Project Milestone or as otherwise set out in the Project Plan, Herdl shall (subject to condition 7.5) invoice the Customer for the charges that are then payable, together with expenses and the costs of materials, calculated as provided in condition 7.4.

7.5

Any fixed price contained in the Project Plan excludes the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by Herdl for the supply of the Services. Such expenses, materials and third party services shall be invoiced by Herdl at cost plus 10%.

7.6

All payments made by the Customer under these conditions are exclusive of VAT. Herdl shall provide the Customer with a valid VAT invoice. The Customer must pay any stamp duties or similar transfer taxes imposed on the supplies made under these conditions and must reimburse Herdl for any such stamp duties or similar transfer taxes paid by Herdl. If the Customer is required to make any deduction for or on account of tax from any payment due under these conditions (Tax Deduction):

7.6.1

The Customer must account to the relevant tax authority for such Tax Deduction and must provide evidence to Herdl that it has so accounted.

7.6.2

The amount of the payment due under these conditions shall be increased so that Herdl receives an amount equal to the amount that would have been received by it, had the Customer not been required to make any Tax Deduction.

7.7

The Customer and Herdl shall co-operate to minimise the amount of any Tax Deduction. If following the making of a Tax Deduction, Herdl determines in its sole discretion that it (or any member of Herdl’s group) has received and retained any credit, relief or other benefit as a result of the Tax Deduction, Herdl shall pay such amount to the Customer as Herdl determines in its sole discretion would leave Herdl in the same position as if the Customer had not been required to make any Tax Deduction.

Without prejudice to any other right or remedy that Herdl may have, if the Customer fails to pay Herdl on the due date Herdl may:

7.7.1

charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;

7.7.2

charge its reasonable costs and expenses incurred in recovering late payments; and

7.7.3

suspend all Services until payment has been made in full.

7.8

Time for payment shall be of the essence of the Contract.

7.9

The Customer must pay each invoice submitted to it by Herdl in full, and in cleared funds, within 30 days of receipt.

7.10

All payments payable to Herdl under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

7.11

All amounts due under these conditions shall be paid by the Customer to Herdl in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Herdl may, without prejudice to any other rights it may have, set off any liability of the Customer to Herdl against any liability of Herdl to the Customer.

8.

Intellectual Property Rights

8.1

All Intellectual Property Rights and all other rights in the Deliverables shall be owned by Herdl. Herdl licenses all such rights to the Customer free of charge and on a non-exclusive, non-transferable and worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If Herdl terminates the Contract under condition 11.1, this licence will automatically terminate.

8.2

The Customer acknowledges that the Customer’s use of rights in Pre-existing Materials is conditional on Herdl obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle Herdl to license such rights to the Customer.

8.3

The Customer grants Herdl a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Herdl for the term of the Contract for the purposes of providing the Services to the Customer. Such materials must be free of any defamatory or other offensive content and must not infringe the Intellectual Property Rights of any third party.

8.4

The Customer shall indemnify Herdl against all liabilities, damages, losses, fines, expenses and costs incurred by Herdl as a result of any claim that the supply, receipt or use of the Customer’s materials infringes the Intellectual Property Rights of any third party. The Customer shall not be liable under this indemnity to the extent that the actual or alleged infringement arises from the use of the Customer’s materials for a purpose or in a manner not authorised by the Customer.

8.5

The Deliverables and Services have been prepared and performed solely for the Customer’s use. The Customer must not share the Deliverables or the Services with any third party (other than its own client where such Deliverables and Services have been commissioned by the Customer on such third party’s behalf and the Customer has expressly notified Herdl of such commission). The Deliverables and Services must not be used or relied upon by any third party and Herdl accepts no liability in respect of any such use or reliance.

8.6

Herdl may use Deliverables for self-promotion, including by inclusion in any website produced for the Customer a link to the Herdl website. If it does, the Customer must not remove, modify or otherwise make any changes to any such link included or the inclusion or appearance of Herdl’s logo, brand name or service mark. Herdl may at any time and in its sole discretion make such changes in considers appropriate to such links.

9.

Confidentiality

9.1

Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 9.2.

9.2

Each party may disclose the other party’s confidential information:

9.2.1

to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with these conditions. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 9; and

9.2.2

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

9.3

No party may use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

9.4

Except as expressly stated in these conditions, no party makes any express or implied warranty or representation concerning its confidential information.

10.

Limitation of Liability

10.1

The following provisions set out Herdl’s entire financial liability (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:

10.1.1

any breach of the Contract however arising;

10.1.2

any use made by the Customer of the Services, the Deliverables or any part of them; and

10.1.3

any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

10.2

All warranties, conditions and other terms implied by statute or common law are, to the greatest extent permitted by law, excluded from the Contract.

10.3

Nothing in these conditions excludes Herdl’s liability for:

10.3.1

death or personal injury caused by Herdl’s negligence; or

10.3.2

fraud or fraudulent misrepresentation.

10.4

Subject to condition 10.2 and condition 10.3:

10.4.1

Herdl shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:

10.4.1.1

loss of profits; or

10.4.1.2

loss of business; or

10.4.1.3

depletion of goodwill or similar losses; or

10.4.1.4

loss of anticipated savings; or

10.4.1.5

loss of goods; or

10.4.1.6

loss of contract; or

10.4.1.7

loss of use; or

10.4.1.8

wasted expenditure; or

10.4.1.9

loss or corruption of data or information; or

10.4.1.10

any special, indirect or consequential loss, costs, damages, charges or expenses.

10.4.2

Herdl’s total liability in contract, tort (including negligence or breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the lesser of the price paid for the Services or the price paid for the Services during the 12 month period preceding the date on which the liability arose.

11.

Termination

11.1

Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:

11.1.1

the other party fails to pay any amount due under these conditions on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;

11.1.2

the other party commits a material breach of any other term of these conditions and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

11.1.3

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 section 123 of the Insolvency Act 1986;

11.1.4

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 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;

11.1.5

the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

11.1.6

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 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;

11.1.7

an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);

11.1.8

the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

11.1.9

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;

11.1.10

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 the other party’s assets and such attachment or process is not discharged within 14 days;

11.1.11

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 condition 11.1.4 to condition 11.1.11 (inclusive).

11.2

Any provision of these conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these conditions shall remain in full force and effect.

11.3

Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

12.

Force Majeure

Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for three months the party not affected may terminate the Contract by giving not less than 30 days’ written notice to the affected party.

13.

Waiver

13.1

A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

13.2

A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.

14.

Rights and Remedies

Except as expressly provided in these conditions, the rights and remedies provided in these conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

15.

Severance

15.1

If any provision or part-provision of these conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the conditions.

15.2

If any provision or part-provision of these conditions is deemed deleted under condition 15.1, the parties shall negotiate in good faith to amend such provision so that, to the greatest extent possible, the amended provision achieves the intended commercial result of the original provision.

16.

Entire Agreement

16.1

These conditions together with the Project Plan constitute the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

16.2

Each party acknowledges that, in entering into the Contract, it does not rely on, and has no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these conditions and/or the Project Plan.

16.3

Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these conditions or the Project Plan.

16.4

Nothing in this clause shall limit or exclude any liability for fraud.

17.

Assignment

17.1

Herdl 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, provided that it gives prior written notice of such dealing to the Customer.

17.2

The Customer must 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.

18.

No Partnership or Agency

Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

19.

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 these conditions.

20.

Notices

20.1

Any notice given to a party under or in connection with this Contract shall be in writing and shall be:

20.1.1

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

20.1.2

sent by email to the following addresses (or an address substituted in writing by the party to be served):

20.1.2.1

Herdl: hello@herdl.com

20.1.2.2

Customer: the email address detailed for the purpose in the Project Plan.

20.2

Any notice shall be deemed to have been received:

20.2.1

if delivered by hand, at the time the notice is left at the proper address;

20.2.2

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

20.2.3

if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

20.3

This condition 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.

21.

Governing Law

The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and interpreted in accordance with the law of England and Wales.

22.

Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these conditions or its subject matter or formation (including non-contractual disputes or claims).