Clause 1 – Definitions
In the EVORA Terms and Conditions and the Engagement Letter the following terms shall have the following meanings:-
1.1 “Client”: the person, firm or company to whom EVORA is to provide Services in accordance with the Terms of Business.
1.2 “EVORA”: EVORA, whose registered office is at 9 St George’s Yard, Castle Street, Farnham, Surrey, GU9 7LW; and whose trading address is 3 Saxon Croft, Farnham, Surrey, GU9 7QB; telephone: +44 (0)20 3326 7333.
1.3 “EVORA Terms and Conditions”: these EVORA standard terms and conditions of business.
1.4 “Engagement”: the Client’s appointment of EVORA to provide particular Services pursuant to the Terms of Business.
1.5 “Engagement Letter”: the EVORA letter for a EVORA business line issued to the Client which identifies particular Services to be provided by it and that sets out other terms and conditions that shall form part of the Engagement contract between EVORA and the Client together with the EVORA Terms and Conditions. Where the context admits, documents cross referenced and/or attached to the EVORA letter shall form part of the Engagement Letter.
1.6 “Force Majeure Event”: an event falling within the definition set out at Clause 14.1.
1.7 “Intellectual Property Rights”: all patents, copyrights and design rights (whether registered or not and all applications for any of the foregoing), and all rights of information, data, know-how or experience whether patentable or not whensoever and howsoever arising and all renewals and extensions thereof.
1.8 “Party”: EVORA or the Client as the case may be.
1.9 “Services”: services falling within the known areas of expertise and specialisation of EVORA as more particularly identified in an Engagement Letter or, where no Engagement Letter has been issued, that are the subject of a Client instruction to EVORA to proceed to act on the Client’s behalf.
1.10 “Terms of Business”: subject to clause 24.7, the EVORA Terms and Conditions and any applicable Engagement Letter.
Clause 2 – Scope of Business
2.1 Where the Client appoints EVORA to provide Services, the appointment shall be on the basis of the EVORA Terms and Conditions and any applicable Engagement Letters. The purpose of an Engagement Letter shall be to address business line and project specific issues, including the precise scope of Services, timescales for deliverables and fee levels as well as certain other terms and conditions.
2.2 In carrying out the Services, EVORA shall exercise the reasonable care and skill to be expected of a competent provider of services similar in scope, nature and complexity to the Services. No other warranty or representation, express or implied, shall apply under and/or in connection with the Engagement.
Clause 3 – Fees and Expenses
3.1 All fees for performance of the Services shall be calculated in accordance with the fee structure set out in the Engagement Letter.
3.2 The Client shall reimburse to EVORA all expenses properly incurred by it in the performance of the Services, including without limitation, travel expenses, accommodation, subsistence, telephone, fax, postage, copying, photography, advertising and any other goods and services purchased.
3.3 EVORA reserves the right to require payments to be made on account before commencing or completing any Services. In such event, the amount of the on account payment shall be calculated having regard to the programme for performance of the Services and the likely timing and amounts of expenses to be incurred.
3.4 Fees stated shall be exclusive of value added tax which, where applicable, shall be charged to the Client at the prevailing rate.
Clause 4 – Payment
4.1 Invoices are payable by the client within 28 days of the date of the invoice.
4.2 All payments due to be made to EVORA under the Terms of Business shall be made without set-off or counterclaim and free of and without deduction for any taxes, levies or duties of any description. If the Client is required at any time by any applicable law to make any such deduction from any payment, the sum due in respect of such payment shall be increased such as shall result (notwithstanding such deduction in EVORA’s receipt on its due date) in a net sum equal to the sum EVORA would have received had no such deduction been required.
4.3 EVORA may charge the Client interest (both before and after any judgment) on the balance of any unpaid invoice, at the rate of 3 % per annum over the Bank of England base rate. Such interest shall run from the due date of settlement of the invoice until the date payment of the balance is received.
Clause 5 – The Client’s Obligations
5.1 The Client shall pay to EVORA all fees, expenses and value added tax, as required pursuant to Clauses 3 and 4. EVORA may suspend and/or cease further work on behalf of the Client in the event of non, partial or late payment of any EVORA invoice.
5.2 The Client shall provide to EVORA all information reasonably required, and at the necessary times, to enable EVORA to carry out the Services pursuant to the Terms of Business.
5.3 The Client acknowledges that EVORA is entitled to rely upon the accuracy, sufficiency and consistency of any information supplied to it by the Client. EVORA shall have no liability for any inaccuracies contained in any information provided by the Client or any third party on behalf of the Client.
5.4 The Client authorises EVORA to speak to or meet with any other person it may need to contact in order to provide the Services. EVORA may release to such person for the purpose of the Services any information reasonably necessary to perform the Services and which it has obtained during the Engagement. EVORA shall not be liable for any use subsequently made of that information.
Clause 6 – Intellectual Property
6.1 EVORA is the beneficial owner of all Intellectual Property Rights arising out of or in connection with the provision of the Services to the Client.
6.2 Subject to all payments due under the Engagement having been paid, the Client shall have an irrevocable, royalty free, non-exclusive licence to copy and use all materials created by or on behalf of EVORA (and in relation to which EVORA is the beneficial owner of the Intellectual Property Rights) for any purpose relating to the Engagement.
Clause 7 – Electronic Communications
7.1 EVORA shall not be liable for any loss arising from the Client’s receipt of any information, data or communications supplied or sent by EVORA electronically, provided that EVORA shall use reasonable efforts to ensure that any such information, data and communication is delivered to the Client. The Client shall use all reasonable procedures to seek to ensure that any materials sent by any electronic medium and/or by computer disc to EVORA are virus free.
7.2 EVORA may communicate with the Client by email.
Clause 8 – Documents
8.1 The provision of the Services is for the Client’s benefit only. No part of any report or advice produced by EVORA for the Client shall be reproduced, transmitted, copied or disclosed to any third party without the prior written consent of EVORA (excluding any professional advisor of the Client in which case no prior written consent of EVORA shall be required) and EVORA shall not be liable to any third party, which relies upon any such report or advice.
8.2 After completing an Engagement, EVORA shall be entitled to keep any Client papers and documents held while payments due under the Engagement are outstanding.
8.3 EVORA shall keep its Engagement files for 6 years after issue of EVORA’s final invoice, on the basis that EVORA shall have the Client’s authority to destroy the files upon the expiry of that period unless the Client has beforehand requested in writing the return of Client papers or documents. EVORA shall not be liable for any loss of documentation after the stated retention date.
8.4 The Client shall be responsible for EVORA’s charges in producing any documentation which the Client requires in order to comply with a third party request for disclosure under the Freedom of Information Act 2000 (FOIA). For the avoidance of doubt, the Client, not EVORA, shall liaise with such third party.
Clause 9 – Confidentiality
9.1 EVORA shall seek the Client’s prior consent to EVORA announcing without limitation, through advertising, and by references in proposals or submissions to prospective clients, that they are providing or have provided the Services to the Client. Such consent shall not be unreasonably withheld or delayed.
9.2 The Client shall keep confidential and not disclose to any other person (whether before or after termination or expiry of the Engagement): (a) any information received by it in respect of the methodologies and/or technologies used by EVORA in providing the Services; (b) the details of the commercial terms on which EVORA provides the Services; and (c) any other information in respect of EVORA’s business activities which comes into its possession as a consequence of EVORA providing the Services and which is not publicly available.
9.3 EVORA shall keep confidential and not disclose to any other person (whether before or after termination or expiry of the Engagement) any information in respect of the Client’s business activities which comes into its possession as a consequence of EVORA providing the Services and which is not publicly available.
9.4 The provisions of Clauses 9.2 and 9.3 shall not apply to either Party to the extent that disclosure is required by law or regulatory authorities or to the respective professional advisers of the Parties.
9.5 The provisions of this clause 9 shall survive the termination or expiry of this Agreement.
Clause 10 – Professional Indemnity Insurance
10.1 EVORA shall effect and maintain, for a period of 6 years from completion of any Engagement, professional indemnity insurance with a limit of indemnity of no less than £5 million provided always that such insurance remains available at commercially reasonable rates.
Clause 11 – Non-Solicitation by Client
11.1 The Client shall not offer employment to any employee of EVORA working on an Engagement for the Client or induce or solicit any such employee to take up employment with the Client for a period of 6 months following the end of any involvement by that person with any Engagement for the Client.
11.2 In the event that the Client breaches Clause 11.1, EVORA shall be entitled to be paid compensation by the Client equal to 6 months salary of the employee concerned.
Clause 12 – Limitation of Liability
12.1 Subject to the contrary provisions in this Agreement, EVORA shall be liable to the Client for any expense, loss or damage suffered by or occasioned to the Client to the extent caused by fraud, wilful neglect, negligence, bad faith or any breach of this Agreement on the part of EVORA or EVORA’ workforce.
12.2 EVORA shall not be liable for any special, indirect or consequential loss or damage (including, without limitation, loss of profits or business revenue) suffered by the Client (including as a result of an action brought by a third party).
12.3 Without prejudice to the other sub-clauses of Clause 12, where the Engagement involves EVORA being appointed as part of a Client project team, liability for loss and/or damage arising under or in connection with the Engagement shall be limited to that proportion of the Client’s loss and/or damage which it would be just and equitable to require EVORA to pay having regard to the extent of EVORA’s responsibility for the same and on the basis that all other Client consultants and contractors shall be deemed to have provided contractual undertakings on terms no less onerous than this Clause 12.3 to the Client in respect of the performance of their services in connection with the project and that there are no exclusions of or limitation of liability nor joint insurance or co-insurance provisions between the Client and any other party referred to above and on the basis they shall be deemed to have paid to the Client such proportion which would be just and equitable for them to pay having regard to the extent of their responsibility.
12.4 EVORA shall have no duty or liability in tort to the Client save that nothing in this Clause 12, or in the Engagement, shall exclude or restrict any liability either Party may have for death or personal injury arising out of negligence.
12.5 Notwithstanding anything to the contrary contained elsewhere in the Engagement, the total liability of EVORA arising under or in connection with an Engagement shall not exceed £5,000,000.
Clause 13 – Money Laundering Procedures
13.1 The Client shall provide all necessary cooperation so as to ensure that EVORA is able to meet its obligations under the Proceeds of Crime Act 2002 and Money Laundering Regulations 2007.