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Commercial Provision of Services - Terms and Conditions.


1.  BACKGROUND AND DEFINITION OF TERMS.

1.1  These Terms and Conditions, together with any and all other documents referred to herein, set out the terms under which Services are sold by Tirio to the Business and under which the Business shall be required to adhere and agree to. Please read these Terms and Conditions carefully and ensure that the Business, on whose behalf you are acting, fully understands these Terms and Conditions before entering into this Agreement. 

1.2  By engaging Tirio to provide the Services the Business agrees to accept these Terms and Conditions and is voluntarily entering into a legally binding contract (this Agreement) between the Business and Tirio. If the Business does not agree to comply with and be bound by these Terms and Conditions, the Business should not enter into this Agreement.

In this Agreement the following terms and phrases shall have the following meaning unless the context requires otherwise:  

          

Tirio - Means Tirio Cyf, Registered in Wales No 10478549 who’s registered office is at 19 Denbigh Street, LLANRWST, Conwy, LL260LL.

the Business - Means the organisation, association, membership body, business or company requesting the Services provided by Tirio, specified in the Schedule of services.

Commencement Date - The date of which the Business enters into this Agreement.

Services - The agreed services to be performed by Tirio as set out in the Schedule of services, such Services to be provided using reasonable skill and care.

Termination Date - The date on which Tirio’s engagement hereunder is terminated.     

    

Intellectual Property Rights - Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.

Data Protection Legislation - Means the Data Protection Act 2018 which incorporates the UK GDPR.

Deliverables - Means the items listed as ‘Deliverables’ in the Schedule of services.

Deadline - Means the time and date listed as ‘Deadline’ in the Schedule of services.

Cut Off - Means the time and date listed as the 'Cut Off' in the Schedule of services.

Fees - Means the monetary amount listed as the 'Fees' in the Schedule of services.

2.          Engagement

Tirio is (subject to Clause 6) engaged by the Business to carry out the Services.

3.         Services

Tirio agrees:

3.1 To undertake and provide the Services in accordance with any brief and deadline agreed with the Business and;

3.2 To manage and carry out the Services in an expert and diligent manner and to provide Tirio’s services to the best of their technical skill and to be solely responsible for how the services are provided; 

3.3 To the best of Tirio’s ability, promptly and faithfully to meet the Deliverables and Deadline agreed with the Business;

3.4 Tirio is free to undertake and accept other engagements, except those which lead or might lead to any conflict of interest between Tirio and the Business during his or her appointment;

3.5 To use such suitably qualified and experienced personnel as Tirio may from time to time deem appropriate;

3.6 Tirio has the right to supply a substitute of equivalent knowledge and expertise and acknowledges that the Business has the right to refuse the replacement if, in the reasonable view of the Business, the replacement is not sufficiently qualified to undertake the work. Where substitution occurs, the Business will remain responsible for its obligations under the agreement and will be responsible for the payment of the replacement, so that there will be no further payments outside of the agreed terms to pay for any handover period between the original consultant and the replacement.

3.7 To keep the Business informed of progress on the Services in which they are engaged and shall produce written reports on the same from time to time when so requested by the Business. While Tirio’s method of working is entirely their own and they are not subject to the control of the Business, they shall nevertheless comply with this and any other reasonable requests of the Business (or its clients) which do not impact upon Tirio’s method of working.

4.         Invoices and Payment

Fees for the Services shall be as set out in the Schedule of services, and: 

4.1 Where necessary, VAT will be added at the appropriate rate.

4.2 Unless specifically agreed otherwise, an invoice for a percentage of the total Fees (the Deposit), will be submitted to the Business prior to the Deliverables being undertaken, and the final balance of the total Fees will be submitted to the Business on receipt of the Deliverables.

4.3 Interest on overdue invoices shall accrue from the date when payment becomes due calculated on a daily basis until the date of payment at the rate of 8% per annum above the Bank of England base rate from time to time in force.  Such interest shall accrue after as well as before any judgment.

​4.4 The Business shall pay all invoices within 10 Business days of receipt.

4.5 The Business shall pay all accounts in full and not exercise any rights of set-off or counterclaim against invoices submitted by Tirio.

​5.         Confidentiality

5.1 Tirio hereby agrees that during the course of its engagement under this Agreement they may obtain knowledge of trade secrets and also other confidential information with regard to the business and financial affairs of the Business and those of the Business’s clients, customers and suppliers’ details of which are not in the public domain (‘Confidential Information’), and accordingly Tirio hereby undertakes to and covenants with the Business that:

5.1.1     They shall not at any time during this Agreement or at any time after the Termination Date use or procure the use of the name of the Business in connection with their own or any other name in any way calculated to suggest that they continue to be connected with the business of the Business or in any way hold themselves or herself out as having such connection;

5.1.2     They shall not use the Confidential Information other than during the continuance of this Agreement and in connection with the provision of the Services; and

5.1.3     They shall not at any time after the date of this Agreement (save as required by law) disclose or divulge to any person other than to officers or employees of the Business whose province it is to know the same any Confidential Information and he or she shall use his or her best endeavours to prevent the publication or disclosure of any Confidential Information by any other person.

5.2 The restrictions set out in Clause 5 shall cease to apply to information or knowledge which comes into the public domain otherwise than by reason of the default of Tirio.

6.         Termination of Agreement

​6.1 This Agreement will terminate 10 Business Days after the receipt of the Deliverables by the Business.

6.2 In addition, either party shall have the right to terminate this Agreement at any time by summary notice without any payment in lieu in the event of: 

6.2.1 The other party being in material or persistent breach of any of the terms of this Agreement; or   

6.2.2 The other party dying or becoming by reason of incapacity incapable of managing their affairs; or

6.2.3 The other party having a bankruptcy order made against him or her or making any arrangement with his or her creditors or having an interim order made against him or her; or

6.2.4 The other party taking 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.

6.2.5 There being a change of control of the other party; or

6.2.6 A party’s financial position deteriorates to such an extent that in the other party's opinion that party’s capability to adequately fulfil its obligations under this Agreement have been placed in jeopardy; or

6.2.7 A party doing any action manifestly prejudicial to the interests of the other party or which in the opinion of the other party may bring them into disrepute,

and that party shall have no claim against the terminating party in respect of the termination of his or her appointment for any of the reasons specified pursuant to Clauses 6.2.1 to 6.2.7.

6.3 In addition, the Business shall have the right to terminate this Agreement at any time by providing Tirio notice in writing, subject to the following:

6.3.1 Termination prior to Cut Off, specified in the Schedule of services, the Business shall be liable for the Deposit.

6.3.2 Termination on or after the Cut Off, specified in the Schedule of services, the Business shall be liable for 100% of the total fees.

6.4 In addition, Tirio shall have the right to terminate this Agreement at any time by providing the Business notice in writing. In the event of Tirio terminating this Agreement, Tirio shall repay to the Business the Deposit, Tirio shall make such payment in 5 Business days. 

​7.         Consequences of Termination

7.1 The Business shall immediately pay to Tirio all of Tirio’s outstanding unpaid invoices and interest.

7.2 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. 

7.3 The termination of this agreement howsoever occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination.

8.         Insurance

Tirio further warrants to the Business that they will:

8.1 Take out and maintain throughout the term of this Agreement, adequate professional indemnity insurance to protect themselves against any liabilities arising out of this Agreement and shall produce, at the request of the Business, a copy of the insurance policy or policies and relevant renewal receipts for inspection by the Business; 

8.2 Take out and maintain throughout the term of this Agreement, adequate public liability insurance coverage [minimum £5 million cover] to protect themselves against any liabilities arising out of this Agreement in respect of all and any contractors/employees they utilise to carry out the Services and shall produce, at the request of the Business, a copy of the insurance policy or policies and relevant renewal receipts for inspection by the Business.

9.         Data Protection and Data Processing

9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 9 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. In this Clause Applicable Laws means (for so long as and to the extent that they apply to Tirio) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.

9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Business is the data controller and Tirio is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

10.       Intellectual property 

10.1  All Intellectual Property Rights in or arising out of or in connection with the Services (other than intellectual property rights in any materials provided by the Business) shall be owned by Tirio.

10.2 Tirio grants to the Business, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Agreement to copy and modify the Deliverables (excluding materials provided by the Business) for the purpose of receiving and using the Services and the Deliverables in its business.

10.3      The Business shall not sub-license, assign or otherwise transfer the rights granted in Sub-clause 10.2.

11.        Limitation of Liability 

11.1 Nothing in this Agreement shall limit or exclude Tirio’s liability for:  

11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

11.1.2 fraud or fraudulent misrepresentation; 

11.1.3 or any matter in respect of which it would be unlawful for Tirio to exclude or restrict liability.

11.2     Subject to clause 11.1:

11.2.1 Tirio shall under no circumstances whatsoever be liable to the Business, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

i.          loss of profits;

                        ii.         loss of sales or business;

                        iii.         loss of agreements or contracts;

                        iv.         loss of anticipated savings;

v.         loss of use or corruption of software, data or information;

vi.         loss of damage to goodwill; and

vii.        any indirect or consequential loss, and  

11.3 Tirio’s total liability to the Business, in respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Fees.

11.4 This clause 11 shall survive termination of the Agreement.

12.       No Employment or Partnership

12.1 Tirio is an independent contractor and nothing in this Agreement shall render or be deemed to render Tirio an employee, worker or agent of the Business and Tirio shall not hold itself out as such.  This Agreement does not create any mutuality of obligation between Tirio and the Business and neither party seeks to create or imply any mutuality of obligation between the parties in the course of the performance of this engagement or during any notice period.  The Business is not obliged to offer work to Tirio, nor is Tirio obliged to accept work where it is offered.

12.2 Tirio may choose to delegate performance of the Services to such suitably qualified and experienced personnel as he or she may from time to time deem appropriate. The Business has the right to refuse the replacement if, in the reasonable view of the Business, the replacement is not sufficiently qualified to undertake the work.  Tirio must provide details of the name of the delegate/substitute.  Tirio will be responsible for remunerating the delegate/substitute, such that there will be no further payments outside of the agreed terms to pay for any handover period between Tirio and the delegate/substitute. 

12.3 This Agreement constitutes a contract for the provision of services and not a contract of employment and accordingly Tirio shall be fully responsible for and shall indemnify the Business for and in respect of:

12.3.1   Any income tax, National Insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Services, where the recovery is not prohibited by law. Tirio shall further indemnify the Business against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by the Business in connection with or in consequence of any such liability, deduction, contribution, assessment other than where the latter arise out of the Business’ negligence or wilful default;

12.3.2   Any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by Tirio or any substitute against the Business arising out of or in connection with the provision of the Services, except where such claim is as a result of any act or omission of the Business.

12.4 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between 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.

13.       Notices/Communications

13.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.

13.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address stated in this Agreement or to such other address (being in Great Britain) as the addressee may from time to time have notified for the purpose of this Clause; 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission. 

13.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

14.       Entire Agreement

14.1 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.

14.2 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.

15.       Force Majeure

15.1 If either party to this Agreement is prevented or delayed in the performance of any of its respective obligations under this Agreement by “force majeure”, then such party shall be excused the performance for so long as such cause of prevention or delay shall continue;

15.2      For the purpose of this Agreement ‘force majeure’ shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of such party and inter alia including, but not limited to the following:

15.2.1   Strikes, lockouts or other industrial action;

15.2.2   Terrorism, civil commotion, riot, invasion, war threat or preparation for war;

15.2.3   Fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, bad weather or other natural physical disaster;

15.2.4   Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and

15.2.5   Political interference with the normal operations.

16.       Assignment and Other Dealings

16.1 The Business shall not, without the prior written consent of Tirio, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement.            

16.2 Tirio shall not, without the prior written consent of the Business, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement.

17.       Survival of Causes of Action

The termination of this Agreement howsoever occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination.

18.       Severability

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the illegal or unenforceable provision eliminated.

19.       Waiver

A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default.  No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its 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.

20.       Variation

20.1 No variation of this Agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives). 

20.2 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

21.       Law and Jurisdiction

21.1 This 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 England and Wales.

21.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

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