Terms of Business

Introduction:

1. These Terms of Business together with any Statement of Work and our Privacy Policy constitute the entire agreement between the Parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. These Terms override any earlier terms issued by the Company or referred to by the client whether in the order or in any negotiations.
3. These Terms shall govern the contract between the Company and the client to the exclusion of any other terms, except where specifically stated.

Duties of the Company:

4. The Company will use all reasonable endeavours to ensure that consultancy projects are based on a clear specification or proposal.
5. Nine Feet Tall Limited provides independent contractors to the client. In all respects the relationship to the Company shall be that of an independent contractor serving as a consultant and not as an employee.
6. Where specialist knowledge or skills are required that cannot be provided by Nine Feet Tall, work will be delegated to outside specialists. The client will be informed as soon as reasonably practicable, in writing, before the work is delegated, except in the case of secretarial services.
7. Nine Feet Tall Limited will provide a suitably skilled consultant to cover any periods of absence or holiday to ensure continuity of delivery is maintained.
8. On receiving a notice of dissatisfaction by the client as set out in clause 27, the Company will use reasonable endeavours to investigate the issues raised, liaising with the client where necessary to remedy the issues and ensure the client’s satisfaction

Payment for services and charges:

9. Fees specified on a proposal will be guaranteed for three months from the date of the proposal.      Proposals accepted after that time may be subject to increased prices if a price rise has been applied since the date of the proposal.
10. The Company will endeavour to provide, wherever possible, written estimates of the likely fees involved but reserves the right to review and increase these estimates, by written notice to the client, where there is a change in the scope of the work, in accordance with clause 12, or if there is an increase in the Company’s costs, as may occur from time to time.
11. If the client requests any variation to the project the Company will use its reasonable endeavours to meet the request. If the client’s request or the variation results in extra time being taken then this will be charged at the prevailing rate per day.
12. If any information given by the client is incorrect, incomplete or insufficient and this results in work being done wrongly or incompletely, then the additional work to correct this will be charged for.
13. Fees will be charged by the day, where a minimum of six hours constitutes a full day. For part days (five hours or less) travelling time will be charged and the minimum unit of fees chargeable time will be a half day.
14. Fees will be increased to double the agreed rate for work undertaken over weekends and bank holidays.
15. Fees exclude value added tax, which will be added at the appropriate rate.
16. Hours chargeable will include time spent on the client’s premises, in the Company’s offices or any other place where research, consultation or project work is performed.
17. Fees charged for retained work will be renegotiated every six months or sooner if the volume of work exceeds initial expectations. Price increases at a level of 5% will also be applied annually effective from 01 January.
18. Unless otherwise agreed in writing between the parties, consultancy projects will be invoiced on a monthly basis for work completed or work in progress. Invoices are payable within thirty days from the date of invoice.
19. Failure to pay the invoice within thirty days may result in late payment interest charges. Interest shall be calculated monthly and is payable on all overdue sums, before and after judgement, at the rate of 8% above the Bank of England base rate, from the date the payment is due until payment is received.
20. Failure to pay may result in the consultant(s) ceasing to provide services on the project or any other projects, until the outstanding fees and interest have been paid.
21. Charges for cancellation by the client, prior to the commencement of a consultancy assignment are as follows:

(a) One week before commencement: The full fee.

(b) Two weeks before commencement: 50% of the fee.

(c) Three weeks before commencement: 25% of the fee.

The Company will discuss whether substitute work (to replace the work that has been cancelled) can be carried out on the days arranged for the original work.

Reimbursable expenses:

22. Expenses incurred in carrying out the project will be billed to the client as per the Nine Feet Tall expenses policy which can be provided by request from the client or in the proposal or as expressly agreed subsequently,

Duties of the client:

23. The client will provide access to information or employees of the client as is required by the consultant and will be responsible for facilitating and performing in those specific areas. The client guarantees that any information will be accurate (see clause 12).
24. The client will also ensure that the consultant has sufficient working space and facilities as required to carry out the work and will secure and keep safe all of the consultant’s and the Company’s property. Further, that the client has adequate third party insurance relating to accident or loss.
25. The client must provide the Company with a facility to retrieve all intellectual property created by the Company throughout an engagement when consultants are using the client’s technology. The client must also provide the Company with copies of all emails and documentation produced by the Company at the end of an engagement.
26. The client will not at any time during the continuance of the Agreement and for 12 months after the completion of the Agreement without written consent from the Company, directly or indirectly initiate, solicit, negotiate, contact or engage the services of any consultant, associate resource or other third party sub-contractor of the Company. Any breach of this clause which results in the loss of a Company resource will attract the following costs.

(a)  Consultant – £100,000;

(b) Senior consultant / Associate consultant – £200,000;

(c) Principal consultant / Partner – £400,000.

The costs set out above are based on calculations by the Company as to the value of loss which the Company is likely to incur as a result of a breach under this clause.

27. The client undertakes to inform a Partner of the Company as a matter of urgency, at the earliest opportunity and before taking any further action as set out in this agreement, of any dissatisfaction it has with any aspect of the consultant’s work on the project, in particular any concerns it has with the progress of the project, or any general issues it feels should be addressed by the Company.

Termination:

28. The client is entitled to terminate the agreement, at any time, by giving written notice as follows:

(a) For 1-2 consultants working on a contract – 8 weeks;

(b) For 3-4 consultants working on a contract – 10 weeks; and

(c) For 5+ consultants working on a contract – 12 weeks.

Such termination shall be without prejudice to any rights of either party for any previous breach of the agreement.

29. The Company is entitled to terminate the agreement, at any time, by giving 8 weeks’ written notice to the client.
30. Without limiting its other rights or remedies, the Company may terminate the contract with the client, for the provision of services, with immediate effect by giving written notice to the client if:

(a) The client commits a material breach of any term of the contract and (if such breach is remediable) fails to remedy that breach within 30 days of the client being notified in writing to do so by the Company;

(b) If the client suspends or threatens to suspend, payment of its debts and 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 123 of the Insolvency Act 1986;

(c) If the client commences negotiations with all or any class of its creditors with a view to rescheduling its debts or making a proposal for or enters into any compromise or arrangement with its creditors;

(d) 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 client company;

(e) An application is made by the court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the client company;

(f) A person becomes entitled to appoint a receiver over the assets of the client;

(g) The client’s financial position deteriorates to such an extent that in the Company’s opinion the client’s capability to adequately fulfil its obligations under the contract has been placed in jeopardy.

31. Without limiting its other rights or remedies, the Company may terminate the contract with immediate effect by giving written notice to the client if the client fails to pay any amount due under the contract on the due date for payment, under clause 20 and fails to pay all outstanding amounts within 14 days after being notified in writing to do so.

Consequences of termination:

32. On termination of the contract for any reason, the client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest, and in respect of services supplied but which no invoice has been submitted, the Company shall submit an invoice, which is payable by the client immediately on receipt.

Limitation of liability:

33. The Company shall under no circumstances whatever be liable to the client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the contract.
34. The Company’s total liability to the client in respect of all other losses arising under or in connection with the contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £1 million.

Confidentiality and copyright:

35. Intellectual Property Rights: All Intellectual Property Rights in or arising out of or in connection with the work undertaken by the consultant(s) is the absolute property of the Company. This includes but is not limited to the copyright in the content of any work produced during or as a result of project work undertaken by the consultant. The client shall not be entitled to reproduce the copyright work unless licensed by Nine Feet Tall Limited.
36. The client’s name and logo are available to Nine Feet Tall for advertising, website or press releases without the written permission of the client.
37. Each party shall keep confidential all information obtained from the other pursuant to the contract of which these Terms are part and shall not divulge information to any third party without the other’s prior written consent for a period of three years. Each party should ensure that its servants, agents, employees, consultants and sub-contractors are bound by the provision of this clause. 

Data Protection:

38. To enable the Company to discharge the services agreed under this engagement, and for other related purposes including updating and enhancing client records, analysis for management purposes, crime prevention and legal and regulatory compliance, the Company may obtain, use, process and disclose personal data about the client in accordance with the Company’s privacy policy. The Privacy Policy is included with these Terms and is available to view on the Company’s website http://www.ninefeettall.com/privacy-policy.  The Company will only use the clients’ personal data in accordance with the Company’s Privacy Policy.
39. The client acknowledges that the Company will act in accordance with the Privacy Policy that has been supplied to the client by the Company with these Terms and our Statement of Work.

General terms:

40. No waiver by Nine Feet Tall Limited of any breach of the contract of which these Terms are part shall be considered as a waiver of any subsequent breach of the same or any other provision.
41. If any provision of the contract of which these Terms are part is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the contract and the remainder of the provision in question shall not be affected thereby.
42. The contract of which these Terms are part shall be subject to and be construed in accordance with the laws of England and Wales and subject to the exclusive jurisdiction of the courts of England and Wales.