Consultancy Terms and Conditions

1. Definitions

“Agreement” – means this agreement between Proactis and the Client, including these Conditions and the Quotation, as amended from time to time.

“Client” – means the person so described in the Quotation.

“Conditions“ – means these terms and conditions including its Schedule.

“Deliverables“ – means information and materials generated and/or supplied by Proactis in the course of the provision of the Services to the Client as more particularly set out in the Quotation.

“Commencement Date“  – means the date specified in the Quotation.

“Fee” – means the fee payable by the Client as set out in the Quotation.

“Information“  – means information provided by the Client to Proactis in connection with the provision of the Services.

“Intellectual Property Rights” – means patents, copyright, registered and unregistered design rights, utility models, trade marks (whether or not registered), database rights, rights in know-how and confidential information and all other intellectual and industrial property rights and similar or analogous rights existing under the laws of any country and all pending applications for and rights to apply for or register such rights.

“Proactis” – means Proactis Associates Limited, a group company of Proactis Holdings PLC.

“Quotation“  – means the quotation set out in Schedule 2 (Quotation).

“Services” – means the services to be provided by Proactis to the Client and specified in the Quotation in accordance with this Agreement.

2. The Services 

1. Proactis will perform the Services as detailed in the attached Quotation in accordance with this Agreement. Proactis will not be responsible for any additional services provided by the Client unless such services are set out in a signed Quotation.

3. Timescales

1. Proactis will use reasonable endeavours to comply with any timetable specified in the Quotation for the performance of the Services, however our ability to perform the Services is dependent on the Client’s co-operation and we can only comply with the timeframe outlined if we receive complete and accurate Information and communication from the Client in a timely manner.  
2. Delays to the project due to Client’s failure to provide Information or communicate with us will not be the responsibility of Proactis.
   
3. Any delay by the Client in providing adequate Information or in paying any sums due under this Agreement to Proactis will give Proactis the right to delay performance of the Services by a period equivalent to or caused by the Client’s delay and may result in the Client being charged for the full Services when they have not been completed in the agreed timeframe.  

4. Payment 

1. In consideration for the Services, the Client agrees to pay to Proactis the Fee in accordance with the timetable set out in the Quotation or as otherwise agreed in writing between the parties.   
2. The Fee quoted is based on the number of hours expected to complete the Services. If additional consultancy hours are required to complete the Services, a further quotation will be supplied and signed agreement sought, before additional work is carried out.  
3. An invoice will be raised within seven (7) calendar days of completion of the Services. Should the Services not be completed for whatever reason, including circumstances outside of the control of Proactis, an invoice will be raised for Services rendered to date.  
4. Invoices will be payable within thirty (30) days of the date of the invoice. In accordance with the Late Payment of Commercial Debts (Interest) Act 1998, failure to comply with the payment terms may result, at Proactis’s discretion, in an interest charge of five percent (5%) over base rate being added, for the period that the invoice remains unpaid.  
5. All sums payable in accordance with this Agreement are exclusive of any value added, sales, use, excise or other similar taxes and duties for which the Client will be additionally liable at the applicable rate from time to time.   
6. If Proactis personnel are required to travel to Client (or other) premises in the performance of the Services, additional Fees for travel, subsistence and accommodation will be invoiced at cost, plus VAT, on completion of the Services. 

5. Intellectual Property Rights

1. All Intellectual Property Rights in the method by which the Services are carried out and the form and layout of the Deliverables will be owned by Proactis.   
2. Subject to Clause 5.1 above, and to the Client paying all sums due to Proactis under this Agreement, all Intellectual Property Rights in the Deliverables will be owned by the Client.  Subject as stated above, Proactis agrees to assign all such Intellectual Property Rights to the Client. 
3. The Client acknowledges and agrees that the Client’s rights to the Intellectual Property Rights arising under this Agreement are limited to those rights in respect of the Deliverables which are set out in this Clause 5.  Nothing in this Agreement shall be construed to grant to the Client any licence under any pre-existing Intellectual Property Rights of Proactis.   
4. The Client acknowledges that Proactis will retain copies of the Deliverables as required in accordance with its data retention policy. 

6. Confidentiality

1. Subject to Clause 6.2, the Information will be kept confidential by Proactis and Proactis will not disclose any part of it to any other person without the Client’s prior written consent.   
2. The restriction contained in Clause 6.1 will not apply to Information which:- 
3. was already in Proactis’s possession or at its free disposal before its disclosure by the Client; 
4. is disclosed after the Commencement Date to Proactis without any obligations of confidence by a third party who has not obtained it directly or indirectly from the Client; 
5. is or becomes generally known anywhere in the world through no act or default on the part of Proactis; 
6. is independently developed or discovered by Proactis’s personnel without use or reliance on the Information; 
7. is required or ordered to be disclosed pursuant to any judicial or governmental request or any other applicable regulatory authority.   

7. Warranties and Indemnities

1. Proactis warrants that it will carry out the Services with reasonable skill and care.   
2. The Client acknowledges and agrees that the Deliverables provided by Proactis in accordance with this Agreement are without any express or implied warranties, representations or undertakings.  Without prejudice to the foregoing, Proactis gives no warranties that the Deliverables will be suitable for the Client’s purpose and accepts no responsibility for any interpretation or use which may be made of the Deliverables.   
3. Without prejudice to Clause 7.2, Proactis makes no representations or warranties that the use of the Deliverables or the Service or any other rights licensed hereunder will not infringe any Intellectual Property Rights of any third party.   
4. The Client warrants that it has obtained all consents and licenses necessary to allow Proactis to comply with its obligations under the terms of this Agreement.   
5. The Client will indemnify and hold harmless Proactis from and against all actions and claims (including legal and other costs, expenses and damages) brought by a third party in respect of loss or damage caused (wholly or partly) by its breach of warranty set out in Clause 7.4 and in respect of any infringement or alleged infringement by Proactis of any Intellectual Property Rights of third parties in or relating to the Information resulting from the performance of the Services in accordance with this Agreement.   

8. Limitation of Liability

1. Nothing in this Agreement will operate to limit or exclude Proactis’s liability for death or personal injury resulting from negligence or Proactis’s liability for fraud.   
2. Subject to Clause 8.1, Proactis’s maximum liability under or in connection with the provision of the Services in accordance with this Agreement will not exceed the Fee paid.   
3. Subject to Clause 8.1, Proactis will not be liable to the Client for any loss of profit, business or goodwill or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Proactis, its agents, subcontractors, or otherwise) which arise out of or in connection with the provision of the Services.   
4. Proactis will not be liable to the Client or deemed to be in breach of any term of this Agreement by reason of any delay in performing or any failure to perform, any of Proactis’s obligations in accordance with this Agreement, if the delay or failure was due to any cause beyond Proactis’s reasonable control.   
5. If any sub-clause of this Clause 8 is held to be invalid or unenforceable under any applicable statue or rule of law then it will be deemed to be omitted, and if as a result Proactis becomes liable for loss of damage which would otherwise have been excluded then such liability will be subject to the remaining clauses of this Clause 8.  

9. Termination

1. Any notice of cancellation of the Services, must be notified to Proactis in writing. The following notice periods shall apply to the agreed project start date:  
2. more than 30 working days’ notice from the Client, no applicable charge  
3. less than 30 working days’ notice from the Client but more than 14 working days, 50% of the Fee.  
4. less than 14 working days’ notice from the Client, 100% of the Fee.  
5. Either party may (without limiting any other remedy) at any time terminate this Agreement by giving written notice to the other if:- 
6. the other is in material breach of any of this Agreement and, where the breach is remediable, has not remedied it within a reasonable period after notice from the other party specifying the breach and requiring its remedy; or 
7. has a receiver, administrative receiver or administrator appointed over all or any of its assets or undertaking or, other than for the purpose of a solvent amalgamation or reconstruction, enters into liquidation, enters into any composition or arrangement with or for the benefit of its creditors or enters into any similar or analogous arrangement existing under the law of any country or cease to carry on business.   
8. Proactis may (without limiting any other remedy) at any time terminate this Agreement by giving written notice to the Client if the Client:- 
9. infringes any Intellectual Property Rights owned by Proactis; or 
10. disputes or challenges the ownership, validity or priority of any Intellectual Property Rights of Proactis,   
11. Clauses 5, 6, 7, 8, and 11.8 will survive termination of this Agreement (for whatever reason).   

10. Data Protection and Privacy

1. Proactis may collect and use Client’s personal data in accordance with the privacy policy which can be found at https://tdmkttst.proactislabs.com/privacy-policy. Proactis may update its privacy policy from time to time and any updates will be shown online at https://tdmkttst.proactislabs.com/privacy-policy. 
2. Proactis will comply with the data protection laws applicable when handling any personal data that the Client shares with Proactis. Insofar that the Parties agree that Proactis is acting as a processor in performing the services, Proactis shall use reasonable efforts to agree terms applicable to a processor, as required by the data protection laws.  

11. General

1. Entire Agreement.  This Agreement embodies the entire understanding of the Parties relating to the Services and supersedes any prior promises, representations, understandings or implications, including without limitation any material transfer agreement entered into between the parties.  This Agreement overrides any terms or conditions stipulated or referred to by the Client.  Nothing in this Clause 11.1 shall exclude either party’s liability for fraud.   
2. Variation.  No variation of the terms of this Agreement will be effective unless expressly agreed in writing and signed by duly authorised representative of both Parties.   
3. Assignment and Subcontracting.  The Client shall not be entitled to assign its obligations under all or any part of this Agreement without Proactis’s prior written consent.  Proactis may assign the whole or any part of this Agreement or subcontract some or all of its obligations under it to any third party.   
4. Notices. Any notice required to be given hereunder by either Party must be in writing and shall deemed to have been sufficiently given when it is sent by first class pre-paid recorded delivery post (air mail, if overseas) to the address of the Party due to receive the notice at its address set out in the Quotation.   
5. No Partnership/Agency.  Nothing in this Agreement will create, imply or evidence any partnership or joint venture between the parties, or the relationship between them of principal and agent.   
6. Waiver.  A failure or neglect by either Party to enforce at any time any of the provisions of this Agreement shall not be construed or deemed to be a waiver of its rights hereunder nor in any way affect the validity of the whole or part of this Agreement nor prejudice such Party’s rights to take subsequent action.  
7. Headings.  Clause headings are inserted into this Agreement for convenience only and they will not be taken into account for the interpretation of this Agreement.   
8. Law and Jurisdiction.  This Agreement is governed by and construed in accordance with Scots law, and each Party hereby submits to the exclusive jurisdiction of the Scottish courts.