Terms & Conditions - Bespoke Engagements

The following terms and conditions apply directly to the booking of any bespoke service agreements with MaxCap Consultants Ltd, whereby you are agreeing to accept the following general terms and conditions:

1. Interpretation

  1. The following definitions apply throughout our terms and conditions:

‘Agreement’: All written information contained within any contract between the ‘Client’ and the ‘Supplier’ includes but is not limited to the formal signed agreement contract, any mutually agreed extensions, appendixes, service propositions, quotations, proposal adjustments, whether agreed in the form of a signed contractual document or via email commitments.

‘Supplier’: I applicable to all employees, associates or 3rd parties contracted to MaxCap Consultants Ltd in relation to delivery of the Agreement, including and not limited to Consultants, Trainers, Coaches, Mentors, Technical Support, Project Managers.

‘Client Property’: all documents, books, manuals, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the business or affairs of the Client or its customers and business contacts, and any equipment, keys, hardware or software provided for the Consultant’s use by the Client during the agreement, and any data or documents (including copies) produced, maintained or stored by the Supplier on the Client or the Supplier’s computer systems or other electronic equipment during the agreement.

‘Confidential Information’: information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory device and wherever located) relating to the business, customers, products, affairs and finances of the Client for the time being confidential to the Client and trade secrets including, without limitation, technical data and know-how relating to the business of the Client or any of its suppliers, customers, agents, distributors, shareholders, management or business contacts and including (but not limited to) information that the Supplier creates, develops, receives or obtains in connection with this agreement, whether or not such information (if in anything other than oral form) is marked confidential.

’Intellectual Property’: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world as at the date of any agreement or in the future.

2. Relationship Between the Parties

  1. The Client shall engage the Supplier and the Supplier shall provide the services on the terms of the bespoke agreement.
  2. The relationship of the Supplier to the Client will be that of independent contractor and nothing in the agreement shall render the Supplier as an employee, worker, agent or partner of the Client and the Supplier shall not hold themselves out as such.
  3. Neither party shall assign or transfer any of their rights, liabilities or obligations arising under this agreement without the prior written consent of the other party.

3. Term of Agreement

  1. The bespoke agreement will confirm the commencement date of the engagement and will continue unless, and until, terminated:

a) as provided by the terms of the bespoke agreement; or

b) upon satisfactory completion of the services agreed under the Agreement or any extension or addition to those services which is agreed in writing; or

c) by either party giving to the other not less than 4 weeks’ prior written notice.

4. The Services Provided

  1. The Supplier shall provide services to the Client as required and as mutually agreed with all due care, skill and ability and use their best endeavours to promote the interests of the Client.
  2. The exact nature and detail of the services which the Supplier shall provide to the Client shall be as set out in the Agreement.
  3. Any amendment, extension or addition to the services must be agreed in writing.
  4. The Supplier makes no guarantee that any particular services will be provided within a specific time frame or on any agreed dates and shall not be liable for any loss, damage or expense suffered by the Client as a result of any delay in service provision.
  5. The Supplier shall use reasonable endeavours to ensure that they are available at all times on reasonable notice to provide such assistance or information as the Client may require.
  6. The Supplier shall:
    • comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;
    • comply with the Client’s Anti-bribery and Anti-corruption Policies as the Client may update from time to time;
    • promptly report to the Client any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of the agreement.
    • ensure that all persons associated with the Supplier or other persons who are performing services in connection with this agreement comply with this clause.
  1. Failure to comply with Clause 4.6 may result in the immediate termination of the agreement.

5. Payment for Services

  1. Where the Supplier provides services to the Client as mutually agreed in the Agreement. The Supplier shall charge the Client the sum agreed in the Agreement, which shall include VAT.
  2. Unless specified in the Agreement, the sum payable to the Supplier in respect of fees as set out in Clause 5.1 is not inclusive of any disbursements or expenses which they may incur, and the Supplier shall charge these expenses and disbursements to the Client.
  3. The Client shall settle all invoices which are raised against them by the Supplier within 30 days from invoice date unless the bespoke Agreement grants alternative terms. Where the Client is late in making payment, the Supplier shall be entitled to recover from the Client all reasonable costs and expenses incurred in securing payment.
  4. Failure to settle payment within the timeframe agreed in 5.3 shall entitle the Supplier to claim, in addition to the sums invoiced, interest on those sums at a rate of 15% percentage points per annum above the Bank of England Base Rate.
  5. Payment in full or in part of the fees claimed under Clause 5 or any expenses claimed under Clause 6 shall be, without prejudice, to any claims or rights of the Client against the Supplier in respect of the provision of the services.

6. Expenses

  1. Subject to Clause 6.2 and to production of receipts or other appropriate evidence of payment, the Client shall reimburse all reasonable expenses properly and necessarily incurred by the Supplier in the course of providing the services under this agreement.
  2. Where the Client is based more than 30 miles outside Livingston, Scotland, the Supplier will charge to the Client all reasonable travel expenses which are incurred in attending the Client’s premises. These shall include rail, air, underground and taxi fares or, where the Supplier travels by private car, an allowance of 44 pence per mile.
  3. If the Supplier is required to travel abroad in the course of providing the services under the agreement, they shall be responsible for any necessary insurances, inoculations and immigration requirements.

7. Client’s Obligations

  1. The Client shall provide the Supplier with such information, support, co-operation, and facilities as may be necessary in order to provide the services.
  2. The Client agrees and covenants that they will not recruit or attempt to procure the recruitment of any employee of the Supplier between the signing of this agreement and the expiration of 12 months from the completion of the services as agreed in the Agreement or any extension or addition to these services which is agreed in writing.

8. Confidentiality

  1. The Supplier acknowledges that in the course of this agreement they will have access to Confidential Information. The Supplier has therefore agreed to accept all of the restrictions in Clause 8.
  2. The Supplier shall not (except in the proper course of their duties), either during the term of this agreement or at any time after the termination of this agreement, use or disclose to any third party (and shall use his best endeavours to prevent the publication or disclosure of) any Confidential Information. This restriction does not apply to:
    • any use or disclosure authorised by the Client or required by law; or
    • any information which is already in, or comes into, the public domain otherwise than through the Supplier’s unauthorised disclosure.
  1. At any stage during this agreement, the Supplier will promptly on request return all and any Client Property in his possession to the Client.
  2. Where the Supplier provides services to the Client through a delegate such as a subcontractor or associate, the Supplier will ensure that the said delegate signs a comparable confidentiality undertaking.

9. Data Protection

  1. The Supplier consents to the Client holding and processing data relating to him for legal, personnel, administrative and management purposes and in particular to the processing of any “sensitive personal data” (as defined in the Data Protection Act 1998) relating to the Supplier.
  2. The Supplier consents to the Client making such information available to those who provide products or services to the Client.
  3. The Supplier consents to the transfer of such information to the Client’s business contacts outside the European Economic Area in order to further its business interests.

10. Intellectual Property

  1. Where the Client provides the Supplier with documentation, literary materials or media in order to enable the Supplier to provide the services, there shall be no transfer of Intellectual Property vested in these, and the aforementioned Intellectual Property shall remain the sole property of the Client.
  2. All Intellectual Property in the services provided and delivered to the Client by the Supplier shall remain the sole property of the Supplier and the Client shall not redistribute or publish this Intellectual Property without the prior written consent of MaxCap Consultants Ltd.
  3. Neither the Client nor the Supplier claim or assert any rights to Intellectual Property belonging to any third party which may be used under licence or otherwise lawfully during the course of this agreement.

11. Termination

  1. Without prejudice to Clause 3.1, either party may terminate this agreement with immediate effect without notice if the other party:
    • expressly or impliedly repudiates this Agreement by refusing or threatening to refuse to comply with any of the provisions of this agreement; or
    • goes into liquidation either compulsory or voluntary (save for the purpose of reconstruction or amalgamation); or
    • convenes any meeting of creditors or passes a resolution for winding up or suffers a petition for winding up; or
    • has an administrative receiver or receiver appointed over the whole or part of its assets or suffers the appointment of an administrator; or
    • is wound up or a court of competent jurisdiction makes an order to that effect; or
    • commits a material breach of any term of this agreement (and, except in the case of a breach not capable of being remedied), such breach has not been remedied within 30 days of receipt of a written request to remedy the breach; or
    • is directed to do so by any regulatory authority; or
    • there is a change in control of such other party and for this purpose “control” shall have the meaning ascribed to it in Section 840 of the Income and Corporation Taxes Act 1988.
  1. Upon termination of this agreement, outstanding payments in respect of services provided by the Supplier shall become immediately due.

12. Limitation of Liability

  1. The Supplier shall not be responsible in any circumstances to the Client or any third party for any indirect or consequential or inconsequential or economic damage or loss, howsoever caused, whether as a result of negligence, misrepresentation, breach of contract or otherwise.
  2. Nothing in the forgoing shall be read as restricting or limiting in any way the Supplier’s liability for death or personal injury.

13. Indemnity

  1. The Client shall indemnify the Supplier against any loss or damage which results from the Client’s breach of this agreement or failure to abide by any of its terms.

14. Warranties

  1. Both parties and the signatories to the Agreement warrant that they are authorised and permitted to enter into the agreement, and have obtained all necessary permissions and approvals.
  2. Both parties warrant and undertake that they are not aware as at the date of the Agreement of anything within their reasonable control which might or will adversely affect their ability to fulfil the obligations under the Agreement.

15. Counterparts

  1. The Agreement may be executed in any number of counterparts, each of which, when executed, shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

16. Entire Agreement and Variation

  1. The Agreement constitutes the entire Agreement between the parties. It supersedes and extinguishes any previous agreements, promises, assurances, warranties, representations and understandings between them, whether orally or in writing, relating to the subject matter.
  2. Each party acknowledges that, in entering into the agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Agreement. Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.
  3. Any variation of the Agreement must be mutually agreed and made in writing and signed by, or confirmed on email by, both the Supplier and the Client.

17. Governing Law

  1. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Scotland.
  2. The parties irrevocably agree to submit to the exclusive jurisdiction of the courts of Scotland over any claim or matter arising under or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

18. Severability

  1. If any term or provision in the Agreement shall in whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law that term or provision or part shall to that extent be deemed not to form part of the Agreement and the enforceability of the remainder of the Agreement shall not be affected.

19. Third Party Rights

  1. A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
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