The following terms and conditions together with each schedule of works (“SOW”) form the Consultancy Agreement under which the Client agrees to purchase and the Consultancy Company agrees to perform the Consultancy Services. For the avoidance of doubt, in the event of conflict between the provisions of these Consultancy Services Terms and Conditions and the provisions of the SOW, the provisions of the SOW will take precedence.
The following terms and phrases will have the following meanings unless the context requires otherwise:
“Client” means the party described as that in the SOW;
“Completed Deliverable(s)” means those as set out in the SOW;
“Consultancy Agreement” means together these Consultancy Services Terms and Conditions and the SOW(s) signed by the parties;
“Consultancy Company” means The Story Cave Ltd, whose registered office is at 97 Arbury Road, Cambridge, CB4 2JD;
“Consultancy Services” means in the course of its appointment, those services to be performed by the Consultancy Company as set out in the SOW;
“Fee(s)” means those as set out in the SOW;
“Milestone Deliverable(s)” means those as set out in the SOW;
“Total Fee(s)” means those as set out in the SOW.
The Consultancy Company will provide to the Client the Consultancy Services as set out in the SOW unless terminated in accordance with the provisions of Clause 8 herein.
3.1 During its appointment, the Consultancy Company will devote such of its time and attention to the business of the Client as will be necessary for the proper performance of the Consultancy Services hereunder and will undertake the Consultancy Services using reasonable care and skill and in accordance with generally accepted professional standards.
3.2 The Client is responsible for making available to the Consultancy Company, on a timely basis in reasonable time so that delivery of Milestone Deliverable(s) and Completed Deliverable(s) as set out in the SOW can be fulfilled, information and materials necessary for the Consultancy Company’s performance of the Consultancy Services.
3.3 When so requested by the Client, the Consultancy Company will keep the Client informed of the general progress of the Consultancy Services hereunder. While the Consultancy Company’s method of working is entirely its own and the Consultancy Company is not subject to the control of the Client, the Consultancy Company will nevertheless promptly comply with such request and any other reasonable requests of the Client.
3.4 The Consultancy Company warrants to the Client that by entering into this Consultancy Agreement it will not be in breach of any obligations to or agreements with any third party.
3.5 The Consultancy Company will not knowingly during its appointment hereunder undertake any additional activities or accept other engagements or employments which might lead to any conflict of interest between the Consultancy Company and the best interests of the Client.
3.6 If the Consultancy Company is unable at any time to perform the Consultancy Services, the Consultancy Company may delegate performance of the Consultancy Services to such suitably qualified and experienced party as it may from time to time deem appropriate. The Consultancy Company will notify the Client if this power to delegate is exercised and will provide relevant details. The Consultancy Company will be responsible for remunerating that party.
3.7 In accordance with law, the Consultancy Company will comply with the Client’s policies and procedures on anti-corruption and bribery as will be notified to the Consultancy Company by the Client.
4. Fee(s), total fee(s), invoicing and payments
4.1 These will be as set out in the SOW.
4.2 In accordance with the Late Payment of Commercial Debts (Interest) Act 1998, the Consultancy Company reserves the right to charge interest at a rate of 8% per annum above the base lending rate of the Bank of England from time to time on any overdue invoice amount outstanding until payment is received in full.
5.1 The Consultancy Company will be entitled to be reimbursed by the Client for all out of pocket expenses wholly, exclusively and properly incurred in the performance of the Consultancy Services subject to the Consultancy Company providing the Client with original vouchers, receipts or other evidence of actual payment of such expenses and subject to the expenses being specifically agreed in advance by the Client.
6.1 Any information or data marked as confidential concerning Client and Client’s business which may come to the Consultancy Company’s knowledge in connection with the performance of the Consultancy Services will be treated by the Consultancy Company as strictly confidential and will not be communicated to any third party and the Consultancy Company will use such information solely for the performance of the Consultancy Services hereunder.
6.2 Excepting the Milestone Deliverable(s) and/or Completed Deliverable(s) which will be delivered upon payment by the Client in accordance with the SOW, upon request by the Client, the Consultancy Company will return to the Client any confidential information or material of the Client which the Consultancy Company may have in its possession.
6.3 The duty of confidentiality will not apply to information: (i) which is in or becomes part of the public domain through no act or negligence of the Consultancy Company; (ii) which was already in the possession of the Consultancy Company prior to Consultancy Company’s first contact with the Client as evidenced by written records; or (iii) which the Consultancy Company receives from a third party which is not bound by a duty of confidentiality to the Client.
7. Delivering up
7.1 Excepting the Milestone Deliverable(s) and/or Completed Deliverable(s) which will be delivered upon payment by the Client in accordance with the SOW, upon the expiration or termination of its appointment under the Consultancy Agreement for whatsoever cause, the Consultancy Company will forthwith deliver up to the Client or its authorised representative all keys and any swipe card, credit cards, computer hardware or software, mobile ‘phone, books, documents, account records and any other papers, data or items which may be in its possession, custody or control and which are the property of the Client. The Consultancy Company will then, if requested by the Client, make a declaration that the provisions of this Clause have been complied with.
8. Termination of consultancy agreement
8.1 In writing to the other party, a party will have the right to terminate the Consultancy Agreement by not less than the notice period as set out in the SOW (the last day of such notice period being the “Termination Date”) and subject to the payment of, as applicable, Total Fee(s) by the Client as set out in the SOW or portion thereof as is fair and reasonable in the circumstances in respect of Consultancy Services performed up to and including the Termination Date.
9. No employment
9.1 The Consultancy Company is an independent contractor and nothing in the Consultancy Agreement shall render or be deemed to render a consultant an employee, worker or agent of the Client and a consultant will not hold themselves out as such. The Consultancy Agreement does not create any mutuality of obligation between the Consultancy Company and the Client.
10. Data protection
The Client and the Consultancy Company will comply with all applicable Data Protection Legislation. For the purpose of this Clause, Data Protection Legislation shall mean: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or Data Protection Act 1998.
11. Intellectual property
11.1 The Consultancy Company will retain all intellectual property rights (“IPR”) to the techniques, know-how, procedures, systems and methodology that it uses to provide the Consultancy Services (“Background IPR”) and the Consultancy Company will own all IPR in developments of and improvements to its Background IPR arising from the provision of the Consultancy Services.
11.2 Subject to the provisions of Clause 11.1 above and upon payment of the Total Fee(s) as set out in the SOW, copyright in Client specific materials (being and/or leading to the Completed Deliverable(s)) prepared as part of the Consultancy Services is assigned to the Client and the Consultancy Company grants to the Client a non-exclusive, non-transferable licence to use its Background IPR to the extent necessary for the Client to use the Completed Deliverable(s) for their intended purpose.
11.3 Subject to the provisions of Clause 6 above, the Client consents to and grants to the Consultancy Company a non-exclusive, non-transferable, royalty free licence to use the Completed Deliverable(s) or to create story-features from the Completed Deliverable(s) solely for the purposes of case studies in the Consultancy Company’s marketing materials for display and for linking to Consultancy Company’s online portfolio.
12.1 Nothing in the Consultancy Agreement limits or excludes the Consultancy Company’s liability for: (a) death or personal injury resulting from Consultancy Company’s negligence; or (b) any fraud by the Consultancy Company; or (c) any other type of liability of the Consultancy Company which cannot by law be limited or excluded.
12.2 The maximum liability of the Consultancy Company under or otherwise in connection with this Consultancy Agreement or its subject matter, and no matter howsoever arising, whether by breach or by negligence or whether in contract, tort, breach of statutory duty or otherwise, shall not exceed the Total Fee(s) (excluding VAT) paid to the Consultancy Company for the Consultancy Services performed under the relevant SOW.
12.3 In no circumstances will the Consultancy Company be liable for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Client for any of the following losses or damage (whether such losses or damage are foreseen, foreseeable, known or otherwise and whether or not the Consultancy Company is advised of the possibility of such loss, liability, damage or expense):
12.3.1 loss of revenue;
12.3.2 loss of actual or anticipated profits (including, without limitation, for loss of profits on contracts);
12.3.3 loss of the use of money;
12.3.4 loss of anticipated savings;
12.3.5 loss of business;
12.3.6 loss of operating time or loss of use;
12.3.7 loss of opportunity;
12.3.8 loss of goodwill;
12.3.9 loss of reputation;
12.3.10 loss of, damage to or corruption of data; or
12.3.11 any indirect, special or consequential loss or damage howsoever caused (and including, for the avoidance of doubt, where such loss or damage is of the types specified above).
13.1 Notices: All notices required to be served pursuant to the Consultancy Agreement shall be made in writing by one party to the other at that other party’s address as set out in the SOW for the attention of The Company Secretary/Legal Department/Business Owner with a copy to the relevant business contact person. Notices may be sent by email providing that a copy of such notice is also sent by a “signed for by recipient” postal method.
13.2 Amendments: Any amendments and modifications to the Consultancy Agreement must be agreed in writing. Where a variation to the Consultancy Services Terms and Conditions is included in a SOW, that variation shall only apply to the Consultancy Services provided under that SOW.
13.3 Assignment: Neither party shall be entitled to assign its rights or obligations under the Consultancy Agreement without the written consent of the other party, such consent of which shall not be unreasonably withheld.
13.4 Third Parties: The Consultancy Agreement does not create any right enforceable by any person who is not a party to it (“Third Party”) under the Contracts (Rights of Third Parties) Act 1999, but this Clause does not affect any right or remedy of a Third Party which exists or is available apart from that Act.
13.5 No Warranties: All warranties, conditions and other terms express or implied by statute or common law are to the fullest extent permitted by law excluded from the Consultancy Agreement, and including without limitation, warranties of merchantability or satisfactory quality, fitness for a particular purpose, non-infringement of IPR, validity of IPR or IPR claims, whether issued or pending.
13.6 Entire Agreement: The Consultancy Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior oral or written agreements, arrangements or understandings between the parties in respect of such subject matter. Each party acknowledges that it has not entered into the Consultancy Agreement on the basis of any warranty (express or implied), representation, statement, agreement or undertaking except those expressly set out in the Consultancy Agreement. Each party waives any claim for breach of the Consultancy Agreement, or any right to rescind the Consultancy Agreement in respect of any representation which is not an express provision of the Consultancy Agreement.
13.7 Governing Law: The Consultancy Agreement is governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the Courts of England and Wales to settle any dispute or claim arising from the Consultancy Agreement.