Terms & Conditions of Service

BACKGROUND

• GMS&S is in the business of providing the Services.
• The Client wishes to obtain and GMS&S wishes to provide the Services on the terms set out in this agreement.
  
  

Agreed terms

1. Interpretation
   
   
   • The following definitions and rules of interpretation apply in this agreement:

• Applicable Data Protection Laws: means:
  1. To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
  2. To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which GMS&S is subject, which relates to the protection of personal data.
• Applicable Laws: all applicable laws, statutes, regulation and codes from time to time in force.
• Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
• Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
• Change Order: has the meaning given in clause 1.
• Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and controls, controlled and the expression change of control shall be construed accordingly.
• Client Materials: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to GMS&S in connection with the Works, including the items provided pursuant to clause 1(c).
• Client Personal Data: any personal data which GMS&S processes in connection with this agreement, in the capacity of a processor on behalf of the Client.
• EU GDPR: means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
• Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, goodwill and the right to sue for passing off, 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.
• Milestone: a date by which a part or all of the Works is to be completed, as set out in a Statement of Work.
• Services: the services as set out in the Statement of Work.
• SoW Charges: the sums payable for the Works as set out in a Statement of Work.
• Statement of Work: a detailed plan, agreed in accordance with clause 3, describing the services to be provided by GMS&S, the timetable for their performance and the related matters listed in the template statement of work set out in Schedule 1.
• GMS&S Personal Data: any personal data that GMS&S processes in connection with this agreement, in the capacity of a controller.
• UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
• VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
• Works: the Services which are provided by GMS&S under a Statement of Work, including services which are incidental or ancillary to the Works.
  • Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
  • A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  • The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
  • A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  • Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
  • Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
  • This agreement shall be binding on, and ensure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
  • Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
  • Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.
  • A reference to writing or written includes email but not fax.
  • Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
  • A reference to this agreement or to any other agreement or document is a reference to this agreement or such other agreement or document, in each case as varied or novated from time to time.
  • References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
  • 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.
    
    

2. Commencement and duration
   
   
   • This agreement shall commence on the date outlined in the Statement of Work when it has been signed by all the parties and shall continue, unless terminated earlier in accordance with clause 14 (Termination), until either party gives to the other party written notice to terminate.
   • If there are no uncompleted Statements of Work as at the date notice to terminate is served under clause 1 such notice shall terminate this agreement with immediate effect.
   • The parties shall not enter into any further Statements of Work after the date on which notice to terminate is served under clause 1.
   • The Client may procure any of the Services by agreeing a Statement of Work with GMS&S pursuant to clause 3 (Statements of Work).
   • GMS&S shall provide the Works from the date specified in the relevant Statement of Work.
     
     
3. Statements of Work
   
   
   • Each Statement of Work shall be agreed in the following manner:
     • the Client shall ask GMS&S to provide any or all of the Services and provide GMS&S with as much information as GMS&S reasonably requests in order to prepare a draft Statement of Work for the Services requested;
     • following receipt of the information requested from the Client GMS&S shall, as soon as reasonably practicable either:
       • inform the Client that it declines to provide the requested Services; or
       • provide the Client with a draft Statement of Work.
     • if GMS&S provides the Client with a draft Statement of Work pursuant to clause 1(b)(ii),  GMS&S and the Client shall discuss and agree that draft Statement of Work; and
     • both parties shall sign the draft Statement of Work when it is agreed.
   • Unless otherwise agreed, the SoW Charges shall be as outlined in the Statement of Work.
   • Once a Statement of Work has been agreed and signed in accordance with clause 1(d), no amendment shall be made to it except in accordance with clause 7 (Change control) or clause 18 (Variation).
   • Each Statement of Work shall be part of this agreement and shall not form a separate contract to it.
     
     
4. GMS&S’s responsibilities
   
   
   • GMS&S shall use reasonable endeavours to manage and complete the Works in accordance with a Statement of Work in all material respects.
   • GMS&S shall use reasonable endeavours to meet the Milestones specified in a Statement of Work but any such dates shall be estimates only and time for performance by GMS&S shall not be of the essence of this agreement.
   • GMS&S shall appoint a manager in respect of the Works to be performed under each Statement of Work. That person shall have authority to contractually bind GMS&S on all matters relating to the relevant Works (including by signing Change Orders). GMS&S may replace that person from time to time where reasonably necessary in the interests of GMS&S’s business.
     
     
5. Client’s obligations
   
   
   • The Client shall:
     • co-operate with GMS&S in all matters relating to the Works;
     • appoint a manager in respect of the Works to be performed under each Statement of Work, such person as identified in the Statement of Work. That person shall have authority to contractually bind the Client on all matters relating to the relevant Works (including by signing Change Orders);
     • provide to GMS&S in a timely manner all documents, information, items and materials in any form (whether owned by the Client or a third party) required under a Statement of Work or otherwise reasonably required by GMS&S in connection with the Works and ensure that they are accurate and complete in all material respects;
     • obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable GMS&S to provide the Works, including in relation to the use of all Client Materials in all cases before the date on which the Works are to start; and
     • comply with any additional responsibilities of the Client as set out in the relevant Statement of Work.
   • If GMS&S’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, GMS&S shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
     
     
6. Non-solicitation and employment
   
   
   • Either party shall not, without the prior written consent of the other, at any time from the date on which any Works commence to the expiry of 12 months after the completion of such Works, solicit or entice away from the other party or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the other party in the provision of such Works.
   • Any consent given by GMS&S in accordance with clause 1 shall be subject to the Client paying to GMS&S a sum equivalent to 30% of the then current annual remuneration of GMS&S’s employee, consultant or subcontractor.
     
     
7. Change Order
   
   
   • Either party may propose changes to the scope or execution of the Works but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
     • the Works;
     • the SoW Charges;
     • the timetable for the Works; and
     • any of the other terms of the relevant Statement of Work.
   • If GMS&S wishes to make a change to the Works it shall provide a draft Change Order to the Client.
   • If the Client wishes to make a change to the Works:
     • it shall notify GMS&S and provide as much detail as GMS&S reasonably requires of the proposed changes, including the timing of the proposed change; and
     • GMS&S shall, as soon as reasonably practicable after receiving the information at clause 3(a), provide a draft Change Order to the Client.
   • If the parties:
     • agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Statement of Work; or
     • are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 28 (Multi-tiered dispute resolution procedure).
   • GMS&S may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Client pursuant to clause 3 on a time and materials basis at GMS&S’s daily rates specified in clause 8 below and the Statement of Work.
     
     
8. Charges and payment
   
   
   • In consideration of the provision of the Works by GMS&S, the Client shall pay the SoW Charges.
   • The SoW charges shall be as set out in a Statement of Work.
   • GMS&S may increase any SoW Charges.
   • GMS&S shall invoice the Client for the SoW Charges at the intervals specified, or on the achievement of the Milestones indicated, in the Statement of Work. If no intervals are so specified, GMS&S shall invoice the Client at the end of each month for Works performed during that month.
   • The Client shall pay each invoice submitted to it by GMS&S within 30 days of receipt to a bank account nominated in writing by GMS&S from time to time.
   • Without prejudice to any other right or remedy that it may have, if the Client fails to pay GMS&S any sum due under this agreement on the due date:
     • 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
     • GMS&S may suspend part or all of the Works until payment has been made in full.
   • All sums payable to GMS&S under this agreement:
     • are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
     • 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).
       
       

9. Intellectual property rights
   
   
   • In relation to the Client Materials, the Client:
     • and its licensors shall retain ownership of all IPRs in the Client Materials; and
     • grants to GMS&S a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this agreement for the purpose of providing the Works to the Client.
   • The Client:
     • warrants that the receipt and use in the performance of this agreement by GMS&S, its agents, subcontractors or consultants of the Client Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
     • shall indemnify GMS&S against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred or paid by GMS&S arising out of or in connection with any claim brought against GMS&S, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Client Materials.
   • If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this clause 9, the Indemnified Party shall:
     • notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity (as applicable) (IPRs Claim);
     • allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
     • provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
     • not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
       
       

10. Compliance with laws and policies
    
    
    • In performing its obligations under this agreement, GMS&S shall comply with the Applicable Laws.
    • Changes to the Works required as a result of changes to the Applicable Laws shall be agreed via the change control procedure set out in clause 7 (Change control).
      
      
11. Data protection
    
    
    • For the purposes of this clause 11, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
    • Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
    • The Client consents to, (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by GMS&S in connection with the processing of GMS&S Personal Data, provided these are in compliance with the then-current version of GMS&S’s privacy policy which can be found at http://gillespiemanners.com/privacy-policy/ (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and this agreement, the Privacy Policy will take precedence.
    • Without prejudice to the generality of clause 2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of GMS&S Personal Data and Client Personal Data to GMS&S and lawful collection of the same by GMS&S for the duration and purposes of this agreement.
    • In relation to the Client Personal Data, the privacy policy sets out the scope, nature and purpose of processing by GMS&S, the duration of the processing and the types of personal data and categories of data subject.
    • The Client provides its prior, general authorisation for GMS&S to:
      • appoint processors to process the Client Personal Data, provided that GMS&S:
        • shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on GMS&S in this clause 11;
        • shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of GMS&S; and
        • shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to GMS&S’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify GMS&S for any losses, damages, costs (including legal fees) and expenses suffered by GMS&S in accommodating the objection.
      • transfer Client Personal Data outside of the UK as required for the Purpose, provided that GMS&S shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of GMS&S, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
    • Either party may, at any time on not less than 30 days’ notice, revise this clause 11 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 this agreement).
    • GMS&S’s liability for losses arising from breaches of this clause 11 is as set out in Clause 1.1.
      
      
12. Confidentiality
    
    
    • Each party undertakes that it shall not at any time during this agreement, and for a period of two years after termination or expiry of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 2(a).
    • Each party may disclose the other party’s confidential information:
      • 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 this agreement. 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 12; and
      • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    • No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
      
      
13. Limitation of liability
    
    
    • GMS&S has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,000.00 per claim. The limits and exclusions in this clause reflect the insurance cover GMS&S has been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess loss.
    • References to liability in this clause 13 (Limitation of liability) include every kind of liability arising under or in connection with this agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
    • Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
    • Nothing in this clause 13 shall limit the Client’s payment obligations under this agreement.
    • Nothing in this agreement shall limit the Client’s liability under clause 2 (IPR indemnities).
    • Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for:
      • death or personal injury caused by negligence;
      • fraud or fraudulent misrepresentation; and
      • breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
    • Subject to clause 3 (no limitations in respect of deliberate default) and clause 13.6 (liabilities which cannot legally be limited), GMS&S’s total liability to the Client:
      • for damage to property caused by the negligence of its employees and agents in connection with this agreement shall not exceed £1,000,000.00 for any one event or series of connected events;
    • The caps on the Client’s liabilities shall not be reduced by:
      • amounts awarded or agreed to be paid under clause 9 (IPR indemnities).
      • amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
    • Subject to clause 3 (No limitations in respect of deliberate default), clause 13.4 (No limitation on the customer’s payment obligations), clause 13.5 (liability under identified clauses) and clause 13.6 (Liabilities which cannot legally be limited), this clause 13.9 specifies the types of losses that are excluded:
      • loss of profits;
      • loss of sales or business;
      • loss of agreements or contracts;
      • loss of anticipated savings;
      • loss of use or corruption of software, data or information;
      • loss of or damage to goodwill; and
      • indirect or consequential loss.
    • GMS&S has given commitments as to compliance of the Services with relevant specifications in clause 1 (GMS&S’s responsibilities). In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
    • Unless the Client notifies GMS&S that it intends to make a claim in respect of an event within the notice period, GMS&S 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 14 days from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
      
      
14. Termination
    
    
    • Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
      • the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so;
      • the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
      • 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
      • 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 any of its creditors;
      • the other party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;
      • 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 the other party (being a company, limited liability partnership or partnership);
      • 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);
      • 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;
      • a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
      • 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;
      • 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 clause 1(c) to clause 14.1(j) (inclusive);
      • the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
      • the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
    • Without affecting any other right or remedy available to it, GMS&S may terminate this agreement with immediate effect by giving written notice to the Client if:
      • the Client fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified to make such payment; or
      • there is a change of Control of the Client.
        
        

15. Obligations on termination and survival
    • Obligations on termination or expiry
      
      

On termination or expiry of this agreement:

• the Client shall immediately pay to GMS&S all of GMS&S’s outstanding unpaid invoices and interest and, in respect of the Works supplied but for which no invoice has been submitted, GMS&S may submit an invoice, which shall be payable immediately on receipt;
• GMS&S shall on request return any of the Client Materials not used up in the provision of the Works.
  
  

• Survival
  • On termination or expiry of this agreement, all existing Statements at Work shall terminate automatically.
  • Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
  • Termination or expiry of this agreement 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 agreement which existed at or before the date of termination or expiry.
    
    

16. Force majeure
    
    
    • Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
      • acts of God, flood, drought, earthquake or other natural disaster;
      • epidemic or pandemic;
      • terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
      • nuclear, chemical or biological contamination or sonic boom;
      • any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
      • collapse of buildings, fire, explosion or accident;
      • any labour or trade dispute, strikes, industrial action or lockouts;
      • non-performance by suppliers or subcontractors; and
      • interruption or failure of utility service.
    • Provided it has complied with clause 4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
    • The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
    • The Affected Party shall:
      • as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
      • use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
    • If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 4 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving written notice to the Affected Party.
      
      
17. Assignment and other dealings
    
    
    • The Client 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 this agreement.
    • GMS&S may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that the GMS&S gives prior written notice of such dealing to the Client.
      
      
18. Variation
    
    

Subject to clause 7 (Change control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19. Waiver
    
    
    • A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
    • A failure or delay by a party to exercise any right or remedy provided under this agreement 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 this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
      
      
20. Rights and remedies
    
    

The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

21. Severance
    
    
    • If any provision or part-provision of this agreement 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 this agreement.
    • If any provision or part-provision of this agreement is deemed deleted under clause 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
      
      
22. Entire agreement
    
    
    • This agreement 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.
    • Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
      
      
23. Conflict
    
    

If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.

24. No partnership or agency
    
    
    • Nothing in this agreement 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.
    • Each party confirms it is acting on its own behalf and not for the benefit of any other person.
      
      
25. Third party rights
    
    
    • Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
      
      
26. Notices
    
    
    • Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
      • delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
      • sent by email to the address accounts@gillespiemanners.com
    • Any notice shall be deemed to have been received:
      • if delivered by hand, at the time the notice is left at the proper address;
      • if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting; or
      • if sent 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. In this clause 2(c), 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.
    • This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
      
      
27. Counterparts
    
    
    • This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
    • Transmission of an executed counterpart of this agreement (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed “wet-ink” counterpart of this agreement. If this method of transmission is adopted, without prejudice to the validity of the agreement thus made, each party shall on request provide the others with the “wet ink” hard copy original of their counterpart.
    • No counterpart shall be effective until each party has executed at least one counterpart.
      
      
28. Multi-tiered dispute resolution procedure
    
    
    • If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then except as expressly provided in this agreement, the parties shall follow the procedure set out in this clause:
      • either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the representative of each party shall attempt in good faith to resolve the Dispute;
      • if the representatives for any reason are unable to resolve the Dispute, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 5 days after the date of the ADR notice.
    • The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clause 30 which clause shall apply at all times.
      
      
29. Governing law
    
    

This agreement 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.

30. 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 this agreement or its subject matter or formation.

This agreement has been entered into on the date stated at the beginning of it.