Standard Terms & Conditions

This agreement is made on DD MMM YYYY, between:

(1) Client name (company number) a corporation incorporated pursuant to the laws of England and Wales (the “Client”),

AND

(2) Seismic Change Sustainability Limited (13106432), a corporation incorporated pursuant to the laws of England and Wales (“Seismic”).

BACKGROUND

Seismic is in the business of providing services to help change society for the better and to fix our planet. The Client agrees to obtain and Seismic agrees to provide the Services (as defined below) on the terms set out in this Agreement (Agreement).

1. Definitions and Interpretation

Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.

Business Day: a day, other than a Saturday, Sunday or public holiday in the country Seismic is operating from.

Client Materials: means 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 Seismic in connection with the Services.

Consequential Loss: means any loss of profit and any damage, loss or injury of whatsoever nature which does not flow directly from the act or omission of a party but only from a consequence or result of such act or omission including, but not limited to, any business interruption or loss or anticipated loss of profit, revenue, business opportunity, equipment and any other indirect loss of a similar nature.

Fees: means the fees set out in the Schedule of Works (Schedule 1) or such other fees that apply in relation to the Services.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, 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.

Services: the services as set out in the Schedule of Works (Schedule 1), including services which are incidental or ancillary to such services.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

1.1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.2. 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.

1.3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.5. Reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.

1.6. A reference to writing or written includes email.

2. Term of Agreement

This Agreement shall commence on when it has been signed by all the parties and shall continue, unless terminated earlier in accordance with this Agreement, until the Services are completed.
Seismic shall provide the Services to the Client in accordance with this Agreement from the date that will be agreed between Seismic and the Client or the date that Seismic will notify the Client that the Services will commence.

3. Seismic’s Responsibilities

3.1. Seismic shall use reasonable endeavours to supply the Services in accordance with this Agreement in all material respects.

Seismic shall comply with all Applicable Laws and obtain and maintain all necessary licences and consents required to enable Seismic to provide the Services.
Seismic shall use reasonable endeavours to meet any performance specified in Schedule 1 (Schedule of Works) but any such dates shall be estimates only and time for performance by Seismic shall not be of the essence of this Agreement.

4. Client Obligations

4.1. The Client shall co-operate with Seismic in all matters relating to the Services, including ensuring that Seismic is provided in good time with complete and accurate information needed to enable Seismic to perform the Services and Seismic will be entitled to rely on that information in providing the Services.

4.2. The Client will give all decisions and approvals in a timely manner and provide any additional assistance which Seismic may reasonably request from time to time.

4.3. The Client shall comply with all Applicable Laws and obtain and maintain all necessary licences and consents required to enable Seismic to provide the Services.

4.4. If Seismic’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, Seismic shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.

5. Fees and invoicing

5.1. In consideration of the provision of the Services by Seismic, the Client will pay the Fees. The Client shall pay each invoice submitted to it by Seismic within 30 days of receipt to a bank account nominated in writing by Seismic from time to time.

5.2. Without prejudice to any other right or remedy that it may have, if the Client fails to pay Seismic any sum due under this Agreement on the due date:

5.2.1. 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 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%;

5.2.2. Seismic may suspend all or part of the Services until payment has been made in full.

5.3. The Fees exclude the following which shall be payable by the Client monthly in arrears, following submission of an appropriate invoice:

5.3.1. the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Seismic engages in connection with the Services; and

5.3.2. the cost to Seismic of any materials or services procured by Seismic from third parties for the provision of the Services as such items and their cost are approved by the Client in advance from time to time.

5.4. Seismic reserves the right to charge for missed appointments or rework resulting from errors in information provided by the Client.

6. Intellectual Property

6.1. In relation to any deliverables provided by Seismic:

6.1.1. Seismic and its licensors shall retain ownership of all Intellectual Property Rights in the deliverables, excluding any Client Materials;

6.1.2. excluding any original artwork, and subject to payment of the relevant fees, Seismic grants the Client, a non-transferable licence during the term of this Agreement to copy and modify any deliverables provided by Seismic for the purpose of receiving and using the Services and the Deliverables.

6.2. In relation to the Client Materials, the Client shall grant Seismic 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 Services to the Client.

6.3. Subject to Clause 9 (Limitation of Liability), Seismic shall indemnify the Client against all direct liabilities, costs, expenses, damages and losses (excluding any Consequential Losses) suffered or incurred by the Client arising out of or in connection with any claim brought against the Client for actual or alleged infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt and use of the Services by the Client.

6.4. Subject to Clause 9 (Limitation of Liability), the Client shall indemnify Seismic against all direct liabilities, costs, expenses, damages and losses (excluding any Consequential Losses) suffered or incurred by Seismic arising out of or in connection with any claim brought against Seismic for actual or alleged infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with the Client Materials.

7. Confidentiality

7.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this clause.

7.2. Each party may disclose the other party’s confidential information:

7.2.1. 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; and

7.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

7.3. No party shall use any 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.

8. Data Protection

8.1. For the purposes of this Clause 8, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.

8.2. Both parties will comply with all applicable requirements of Applicable Laws. This Clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Laws.

8.3. The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any personal data to Seismic in connection with this Agreement.

8.4. Seismic shall:

(a) process any personal data of the Client only on the documented instructions of the Client unless Seismic is required by Applicable Laws to otherwise process that data.

(b) implement the technical and organisational measures to protect against unauthorised or unlawful processing of personal data;

(c) ensure that any personnel engaged and authorised by Seismic to process personal data in connection with this Agreement have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

(d) provide reasonable assistance to the Client (at the Client’s cost) in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(e) notify the Client without undue delay on becoming aware of a personal data breach involving any personal data of the Client;

(f) at the written direction of the Client, delete or return any personal data of the Client and copies thereof to the Client on termination of the agreement unless Seismic is required by Applicable Law to continue to process that Client Personal Data.; and

(g) maintain records to demonstrate its compliance with this Clause 8.

8.5. The Client provides its prior, general authorisation for Seismic to in connection with the Services:

(a) appoint processors to process the personal data, provided that Seismic:

(i) shall ensure that the terms on which it appoints such processors comply with Applicable Laws, and are consistent with the obligations imposed on Seismic in this Clause 8;

(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Seismic;

(b) transfer personal data outside of the UK, provided that Seismic shall ensure that all such transfers are effected in accordance with Applicable Laws. For these purposes, the Client shall promptly comply with any reasonable request of Seismic, including any request to enter into standard data protection clauses required under Applicable Laws.

9. Limitation of Liability

9.1. Nothing in this Agreement limits any liability which cannot legally be limited, including but not limited to liability for:

9.1.1. death or personal injury caused by negligence; and

9.1.2. fraud or fraudulent misrepresentation.

9.2. Subject to Clause 9.1:

9.2.1. Seismic shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any Consequential Loss however arising under this Agreement; and

9.2.2. Seismic’s total aggregate liability in contract (including in respect any indemnities under this Agreement), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total fees paid by the Client to Seismic pursuant to this Agreement during the 12 months immediately preceding the date on which the claim arose.

10. Recruitment of Seismic Staff

10.1. The Client shall not, without the prior written consent of Seismic, at any time from the date of this agreement to the expiry of 12 months after the termination or expiry of this agreement, solicit or entice away from Seismic or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Seismic in the provision of the Services.

10.2. Any consent given by Seismic in accordance with Clause 10.1 shall be subject to the Client paying to Seismic a sum equivalent to 25% of the then current annual remuneration of Seismic’s employee, consultant or subcontractor or, if higher, 25% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.

11. Termination

11.1. 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:

11.1.1. the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;

11.1.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or

11.1.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

11.2. 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.

11.3. Upon termination the Client will pay Seismic any Fees and expenses due up to the termination date including work in progress.

11.4. Termination will not prejudice the accrued rights and liabilities of the parties.

12. Assignment

This Agreement shall be to the benefit of, and binding upon, the successors and permitted assignees of the parties. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party.

13. Amendments

Any amendment to this Agreement must be in writing, with consent given by both parties to be valid and binding.

14. Entire Agreement

This Agreement constitutes the entire agreement between the parties with respect to the subject matter described in this Agreement, and supersedes and replaces in its entirety all previous agreements, communications and understandings relating to the matters referred to in this Agreement.

15. Waiver

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy

16. Rights and Remedies

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

17. Severance

17.1. 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.

17.2. If any provision or part-provision of this Agreement is deemed deleted under Clause 17.1 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.

18. No Partnership or Agency

Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

19. Notices

19.1. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(ii) sent by email to the address specified in this Agreement.

19.2 Any notice shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(iii) 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.

19.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

20. Dispute Resolution

If any dispute arises in connection with this Agreement, Seismic and the Client will, within 14 days of a written request from a party to the other, meet in a good faith effort to resolve the dispute. If the dispute is not wholly resolved at that meeting, the matter shall be referred to a director of Seismic and the Client. If the matter is still not resolved the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre of Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of notice of the mediation, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (ADR notice) to the other party to the dispute, referring the dispute to mediation. A copy of the request should be sent to CEDR. Unless otherwise agreed, the mediation will start no later than 28 days after the date of the ADR notice. The commencement of mediation will not prevent the parties commencing or continuing court proceedings.

21. Law and Jurisdiction

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 and under the exclusive jurisdiction of the English courts.

This Agreement has been entered into on the date entered above by:

The Client

____

For and on behalf of

Company name

Print name:

Date:

Seismic