Terms and Conditions for customers
1. Definitions and Interpretation
In these terms and conditions the following words shall have the following meanings:
- Appointment: any telephone call, discussion, meeting, survey, written response or other interaction which takes place between the Customer and an Expert in connection with the Project;
- TXP Personal Data: means all Personal Data (as defined in the Privacy Laws) disclosed by or on behalf of TXP to the Customer or accessed by the Customer or otherwise generated as a result of or in connection with the provision of the Services, including any Personal Data relating to or which ultimately belongs to, any Expert;
- Business Day: means a day (excluding Saturdays, Sundays and public holidays) which is also a day on which clearing banks in the City of London are open for business;
- Confidential Information: means the terms of this Agreement (including the Fees) and any information relating to either party or its affiliates or their business, finances, Intellectual Property Rights or (whether such information is provided in writing, orally or by another means and whether directly or indirectly) which the disclosing party regards, or could reasonably be expected to regard, as confidential, whether or not such information is reduced to a tangible form or marked in writing as “confidential”, and any and all copies thereof and information which has been or may be derived or obtained from any such information, including the Report (and any Expert Materials);
- Expert Materials: means any data, statistics, market intelligence, advice or other information provided by any Expert to the Customer (whether such information is provided in writing, orally or by another means) in connection with a Project;
- Data Security Breach: means any known, potential or actual breach of security leading to the actual, potential, accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, TXP Personal Data;
- Fees: means the Deposit and the Actual Fee agreed separately to these terms;
- Intellectual Property Rights: means any current and future intellectual property rights, including: (a) copyrights, trademarks, trade names, domain names, rights in logos and get-up, inventions, confidential information, trade secrets and know-how including commercial know-how, design rights, patents, utility models, semi-conductor topographies, all rights of whatsoever nature in computer software and data, rights in databases, privacy rights; (b) all intangible rights and privileges of a nature similar, analogous or allied to any of rights listed in (a); and (c) in every case in any part of the world and whether or not registered, including in relation to any of rights listed in (a) and (b): (i) all granted registrations and all applications for registration; (ii) all renewals, reversions or extensions; (iii) the right to sue for damages for past infringement; and (iv) all forms of protection of a similar nature which may subsist anywhere in the world; and
- Privacy Laws: means all applicable privacy and data protection laws including the Data Protection Act 1998 (as replaced by the GDPR with effect from 25 May 2018) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended) and all subordinate and ancillary legislation, directions of any competent privacy regulator, common law and other relevant court decisions and all relevant codes of practice that relate to privacy and/or data protection (whether in whole or part) in each case as may be amended or replaced from time to time.
In this Agreement, unless the context otherwise requires:
- save where otherwise stated references to any legislation are references to that legislation as amended, replaced or re-enacted from time to time and any subordinate legislation made under it;
- use of the term including shall be interpreted to mean “including but not limited to”; and
- references to a person include an individual, firm, company, corporation, unincorporated body, any State or any agency of the above.
- save where otherwise stated all consents, approvals, notices, directions and/or instructions that are required to be given or obtained pursuant to this Agreement shall be given in writing (which, other than in respect of any notice to be given pursuant to Clause 6, may be provided by email).
2. Commencement and Duration
This Agreement shall be deemed to have come into force on the agreed Start Date and shall continue until terminated in accordance with Clause 6 (the Term).
3. The Services
- In consideration for the payment Fees agreed to be paid to TXP by the Customer, TXP will perform the Services with reasonable skill and care in accordance with the terms of this Agreement.
- Each party appoints its representative specified in the “Key Contacts” who shall have authority contractually to bind his/her respective party on all matters relating to this Agreement.
- TXP shall not be liable to the Customer to the extent that it is unable to perform or is delayed in performing any part of the Services at any time as a result of any act or omission of the Customer, its agents, contractors, employees or directors.
- Following delivery by TXP of the Report of available experts, the Customer shall have three days to inspect and request in writing reasonable changes to the Experts named in the Report. If the Customer does not notify TXP in writing during this three-day period, the relevant Report shall be deemed to have been accepted by the Customer. If the Customer requests in writing reasonable changes to the Experts during this three-day period, TXP shall use reasonable commercial endeavours to identify and contact suitable replacement Experts and provide an updated version of the Report to the Customer within a reasonable time period. Following delivery of the updated Report (regardless of whether or not TXP has been able to identify a sufficient number of suitable replacement Experts, the Report shall be deemed to be accepted by the Customer.
- Following delivery of the Report and the acceptance of the Report by the Customer, the Customer shall be entitled to schedule an Appointment with one or more of the Experts to discuss the Project, in accordance with the process for booking Appointments set out in the Report (and provided always that the Customer must not use any other method to schedule an Appointment without TXP’s prior written approval). In the event that the Customer schedules an Appointment and subsequently cancels that Appointment or otherwise fails to attend that Appointment, the Customer shall remain liable to pay 50% of the estimated Fees for that Appointment. TXP shall be entitled to monitor and record the amount of time of all Appointments.
- The Customer acknowledges and agrees that:
- TXP is appointed to provide the Services on a non-exclusive basis and nothing shall prevent TXP from providing any services of the same or a similar nature to the Services or otherwise to any third party;
- the Fees due in respect of an Appointment shall become due and payable regardless of whether or not the relevant Expert was able to resolve one or more particular issues raised by the Customer;
- the Experts are independent contractors and have no employment relationship with TXP; and
- the Experts are not qualified to provide financial or investment advice and you should not rely on any Consultancy Materials to make any financial or investment decision, including but not limited to any decision to buy, sell or otherwise deal with any security or financial instrument such as shares or bonds.
- For the avoidance of doubt, TXP does not itself have any knowledge or expertise in the Field and is solely a technology platform that enables Customers to connect with Experts (and vice-versa). TXP is not a party to any contract between a Customer and a Expert nor (save as expressly set out herein) responsible for the provision of or failure to provide any services under that contract. If TXP provides a description of an Expert, or background information in relation to a Expert’s knowledge and skills, it is for your information only. The Customer should not rely on this information and agrees to do its own due diligence before arranging an Appointment with a Expert.
- If TXP makes available functionality which allows customers to provide a review of Experts and the Customer elects to provide such a review, the Customer agrees that:
- any such review represents their honestly-held belief;
- TXP has the right to use such reviews on its website or other media platforms and amend or modify their content at TXP’s discretion.
- In consideration of the performance of the Services, the Customer shall pay to TXP the Fees on the Payment Dates agreed separately to these terms and conditions.
- Unless otherwise agreed in writing by the parties, all sums due to TXP pursuant to this Agreement shall be paid in pounds sterling in cleared funds to such bank account as TXP shall notify to the Customer in writing in advance. If TXP agrees to accept payment in a currency other than pounds sterling, an administrative charge may be payable by the Customer.
- All monies to be paid pursuant to this Agreement shall be paid together with any VAT or other applicable sales taxes or duties chargeable thereon in accordance with the regulations in force at the time of making the relevant supply subject to receipt by the Customer of a valid, undisputed VAT invoice for the same.
- All sums due from the Customer which are not paid on the due date shall bear interest from day to day at the rate equal to 4% per annum above the Bank of England base rate from time to time.
- If any sums are outstanding and due for payment to TXP, in addition to its other rights and remedies, TXP reserves the right to immediately suspend the provision of any further Services to the Customer on written notice to the Customer (which may include TXP directing the Experts to cease providing advice and assistance to the Customer).
- Payment of the Fees shall be made to TXP by the Customer without any set-off, deduction or counter-claim.
- The Customer warrants and undertakes to TXP that it will not do any act or thing which seeks to circumvent or avoid TXP’s entitlement to receive the Fees, including: (i) any attempt to mislead TXP about the amount of time spent on any Appointment; (ii) any attempt to contract with or engage any Expert to provide any services similar to the Services without notifying TXP in writing in advance; or (iii) any attempt to make a direct payment or deliver any benefit to an Expert in connection with a Project.
5. Intellectual Property Rights
- The Customer agrees that TXP shall be entitled to use the Customer’s name and logo (subject always to the Customer’s approval, such approval not to be unreasonably withheld or delayed) on TXP’s website and in other TXP promotional materials on a non-exclusive, worldwide, perpetual, royalty-free basis.
- Similarly, the Customer agrees that TXP may use general information about your engagement with experts for marketing purposes, for example sharing the general topics that experts were engaged to speak on. We will not disclose any confidential information that could reasonably identify the Customer, nor link such information to the Customer’s name.
- TXP shall own and control all Intellectual Property Rights in the Report and shall grant the Customer an exclusive perpetual royalty-free licence to use the Report in connection with the Project (subject always to Experts’ rights under the Privacy Laws).
- The Expert shall own and control all Intellectual Property Rights in the Expert Materials but shall grant a non-exclusive licence to TXP to sub-license the Expert Materials to the Customer for use in connection with the Project (provided always that TXP shall remain subject to the confidentiality obligations set out in Clause 9 below).
- This Agreement shall continue until the agreed End Date.
- Either party (the Non-Defaulting party) may terminate this Agreement immediately by written notice to the other party (the Defaulting party) if:
- the Defaulting party commits a material breach of this Agreement which cannot be remedied;
- the Defaulting party commits a material breach of this Agreement which breach is capable of being remedied but which it fails to remedy within 14 days after receipt of a written notice from the Non-Defaulting party specifying the breach and requiring it to be remedied;
- in relation to the Defaulting party, there is the appointment of or the application to a court for the appointment of a liquidator, provisional liquidator, administrator, administrative receiver or receiver, the entering into a scheme of arrangement or composition with or for the benefit of creditors generally, any reorganisation, moratorium or other administration involving its creditors or any class of its creditors, a resolution or proposed resolution to wind it up, or becoming unable to pay its debts as and when they fall due or becoming deemed to become unable to pay its debts as and when they fall due within the meaning of Section 123 of the Insolvency Act 1986; and shall include any event that would, under the law of any jurisdiction in which the relevant person carries on business or has an asset, be equivalent or analogous to any of the events specified; or
- the Defaulting party is unable to perform any of its obligations under this Agreement for a period of at least 30 consecutive days as a consequence of a Force Majeure Event (as defined in Clause 1. below).
7. Effects of Termination
- Termination of this Agreement shall be without prejudice to any rights and/or obligations of the Customer and/or TXP accruing prior to the date of such termination.
- Each party’s further rights and obligations will cease immediately on termination except that Clauses 1, 4, 5, 7-9 and 11-14 (inclusive), together with those parts of this Agreement the survival of which is necessary for the proper interpretation or enforcement of this Agreement, will survive termination of this Agreement and will continue in full force and effect.
- Upon the termination of this Agreement:
- TXP shall cease to provide the relevant Services; and
- each party shall upon request return to the other party or destroy any Confidential Information of the other party.
- The Customer acknowledges and agrees that the Services are provided “as is” and accordingly that the Customer specifically disclaims any warranty, express or implied or statutory, that is not expressly included in this Agreement.
- TXP makes no representation or warranty with respect to the accuracy, completeness, quality or suitability of any Report, Expert or Expert Materials, or the success of the Project. TXP does not guarantee that any Expert named in the Report will provide any Consultancy Materials or agree to participate in any Appointment with the Customer.
- The Customer is solely responsible for any decisions they may take or decide not to take arising out of or in connection with any Report and/or Expert Materials, and/or for any results obtained from the use of the Report and/or the Expert Materials, and for any conclusions drawn from such use.
- Subject to Clause 7, but notwithstanding anything else contained in this Agreement, TXP shall under no circumstances be liable to the Customer or any other person (whether for negligence, breach of contract, misrepresentation or otherwise):
- for loss of profits, reputation, goodwill, business opportunity or anticipated savings or for any indirect or consequential loss of whatever nature and whether or not reasonably foreseeable, reasonably contemplated or actually contemplated; or
- as a result of the timing of the delivery of any Report; or
- as a result of any advice or information provided by any Expert in connection with this Agreement.
- Subject to Clause 7, TXP’s liability under this Agreement howsoever arising (whether for negligence, breach of contract, misrepresentation or otherwise) in any circumstances shall be limited to the amount of the Actual Fee paid by the Customer as at the date that the relevant liability first arose.
- Subject to Clause 7, each party shall be liable to the other as expressly provided in this Agreement but shall have no other obligation, duty or liability whatsoever in contract, tort or otherwise (including but not limited to liability for any negligent act or omission) to the other.
- Nothing in this Agreement shall exclude or restrict either party’s liability for fraud or fraudulent misrepresentation, or for any other liability which cannot be limited or excluded by law.
- Each party shall at all times during the Term and after termination of this Agreement for any reason do all within its powers to keep confidential (and to ensure that its directors, employees, sub-contractors, agents and representatives shall keep confidential) all Confidential Information of the other party and shall not use or disclose any such Confidential Information to any third party except:
- strictly as required to perform its obligations under this Agreement;
- with the prior written consent of the other party.
- The provisions of Clause 1 shall not apply to Confidential Information:
- which the receiving party is able to prove was already in its possession at the date it was received or obtained; or
- which the receiving party obtains from some other person with good legal title to the same who does not have any duty of confidentiality in relation thereto; or
- which comes into the public domain otherwise than through the default or negligence of the receiving party; or
- which is independently developed by or for the receiving party without reference to or reliance on any Confidential Information; or
- which the receiving party is required to disclose by law or by the rules or any recognised stock exchange, or governmental or other regulatory body provided the receiving party shall, if legally permitted, supply a copy of the required disclosure to the disclosing party before it is disclosed and incorporate any amendments or additions reasonably requested by the disclosing party.
- Without prejudice to any other rights or remedies that either party may have, each party acknowledges and agrees that the other party shall, without proof of special damage, be entitled to an injunction or other equitable relief for any threatened or actual breach of the provisions of Clause 1, in addition to any damages or other remedy to which it may be entitled.
- TXP undertakes that it shall procure that its terms and conditions with the Experts from time to time shall contain confidentiality obligations on the Experts which are on terms at least equivalent to the obligations set out herein.
10. Change to Services
- If at any time either party requires or desires any change the scope or nature of the Services then that party must inform the other as soon as possible.
- Upon either party notifying the other of a desired change to the Services TXP will notify the Customer whether such change is possible and, if it is possible, of the revised nature of Services, any changes to the Fees due and any other necessary variations to this Agreement. If such variations are agreed in writing by the parties the Services will continue on the basis of the variations. In the event that the parties are unable to agree the variations in writing then the Services shall continue on the same terms.
- A notice under or in connection with this Agreement (a Notice) must be in writing, must be in the English language and must be delivered personally or sent by first class pre-paid registered post (and air mail if overseas) or (other than in respect of any Notice pursuant to Clause 6) by email (marked “Urgent”) to the party due to receive the Notice at its address or email address or to another address, person, or email address specified by the receiving party from time to time.
- A Notice is deemed given (i) if delivered personally, when left at the company address referred to on the company website; (ii) if sent by post to an address within the United Kingdom, two Business Days after posting it; (iii) if sent by air mail to an address outside the United Kingdom, five Business Days after posting it; and (iv) if sent by email, at the time it is sent unless the sender receives an out of office response, provided that where such notice is sent after 5.30pm on any Business Day or on a non-Business Day, it shall be deemed given at 10.00am on the next following Business Day.
12. Data Protection
- The Customer’s attention is drawn to the Privacy Laws. For the purposes of this Clause 12, Data Processor, Data Controller, Personal Data, Process and Data Subject shall have the meanings ascribed to them in the Privacy Laws.
- The parties agree that the Customer shall process any TXP Personal Data that it may be required to process under this Agreement on behalf of TXP as a data processor, and shall not do, or omit to do, anything that may result in it acting as a data controller in respect of TXP Personal Data.
- The Customer warrants that it shall:
- duly observe all its obligations under the Privacy Laws which arise in connection with this Agreement and will process the TXP Personal Data in such a way as to ensure that TXP meets its obligations under the Privacy Laws;
- have no rights or interest in the TXP Personal Data processed under this Agreement and shall process TXP Personal Data only to the extent, and in such a manner, as is necessary for the purposes specified in writing by TXP and in accordance with TXP’s written instructions;
- process TXP Personal Data in accordance with all policies and procedures notified by TXP to the Customer in respect of the TXP Personal Data;
- not transfer any of the TXP Personal Data outside of the European Economic Area without TXP’s prior written consent and without complying with all requirements specified by TXP in such written consent relating to such transfer;
- take appropriate technical and organisational measures against the unauthorised or unlawful processing of TXP Personal Data and against the accidental loss or destruction of, or damage to, TXP Personal Data and to immediately inform TXP upon becoming aware of any unauthorised or unlawful processing of TXP Personal Data or if any TXP Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable;
- promptly comply with any request from TXP requiring it to amend, transfer or delete any TXP Personal Data, in any event, no later than 14 days following such request (without prejudice to TXP’s obligations to provide the Services under Clause 3 above).
- notify TXP immediately if it receives any complaint, notice or communication which relates to the processing of the TXP Personal Data and further, to provide TXP with full co-operation and assistance in relation to any such complaint, notice or communication;
- notify TXP within two Business Days if it receives a request from a data subject for access to TXP Personal Data or where such data subject wishes to exercise any of the other rights afforded to them in the Privacy Laws in respect of the TXP Personal Data, or if it receives any communication from a regulatory or other competent authority or any other person in respect of the TXP Personal Data. Further, the Customer undertakes to provide TXP with full co-operation and assistance in relation to any request made pursuant to this Clause 3.8;
- hold the TXP Personal Data in such a manner that it is capable of being distinguished from other data or information processed by the Customer;
- not disclose the TXP Personal Data to any third party in any circumstances other than at TXP’s specific, written request or with prior written consent;
- restrict the disclosure of the TXP Personal Data to those of its employees who are required to assist the Customer in meeting its obligations under this Agreement and no other employees shall have access to such TXP Personal Data and shall procure that none of its employees who are given access to the TXP Personal Data disclose any of the TXP Personal Data to any third party in any circumstances other than at TXP’s specific, written request or with prior written consent;
- notify TXP within 48 hours of becoming aware of any Data Security Breach or any matter relating to this Agreement which may cause TXP to become non-compliant with the Privacy Laws and provide such information about remediation as TXP shall reasonably require. TXP may require the Customer to suspend the processing of the TXP Personal Data until the breach or non-compliance is remedied to the satisfaction of TXP. If the breach or non-compliance is not remedied to the satisfaction of TXP, TXP (in its sole discretion) may terminate this Agreement entered into hereunder, immediately on written notice to the The Customer will not do, say or report anything relating to any Data Security Breach to any person (other than TXP) without the prior written approval of TXP;
- provide TXP with any information that TXP reasonably requires in order to prove the Customer’s compliance with this Clause 12 and provide all necessary co-operation and assistance (including complying with any audits and inspections conducted by TXP) to TXP to enable TXP to meet its requirements under the Privacy Laws;
- immediately cease processing, and delete from its systems, any TXP Personal Data in respect of which the underlying data subject has withdrawn their consent to the processing of such TXP Personal Data or processing is otherwise unlawful (as notified to it by TXP) or in any event, on termination of this Agreement. At TXP’s option, the Customer shall arrange for the prompt and safe return or irrevocable destruction of all of the TXP Personal Data in its possession or control and, if requested by TXP, certify that destruction has taken place;
- maintain records of the processing activities undertaken by it on behalf of TXP, in accordance with the record keeping requirements prescribed in the Privacy Laws; and
- not authorise any third party or sub-contractor to process the TXP Personal Data except with the prior written consent of TXP, and subject to any terms and conditions prescribed by TXP (as it sees fit). If the Customer sub-contracts its processing obligations, it will in any event remain liable to TXP for any acts or omissions of the sub-processor as if they were its own.
- If a party (the Affected party) is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by a Force Majeure Event the Affected party’s obligations under this Agreement are suspended while the Force Majeure Event continues and to the extent that it is prevented, hindered or delayed, provided that as soon as reasonably possible after the start of the Force Majeure Event the Affected party notifies the other party of the Force Majeure Event, the date on which the Force Majeure Event started and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement. The Affected party will use its reasonable endeavours to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement. For these purposes Force Majeure Event means an act of God, governmental act, storm, fire, flood, earthquake, riot, sabotage, strike, explosion, civil commotion, act of war or terrorism, royal bereavement or any other event or act which is outside the reasonable control of the Affected party.
- Each party undertakes to the other that it shall comply with any applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Anti-Bribery Law) and warrants that it has procedures and structures in place to prevent persons associated with it undertaking conduct that might amount to a breach of Anti-Bribery Law.
- No delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall:
- affect that right, power or remedy; or
- operate as a waiver of it.
- Nothing in this Agreement shall be deemed to constitute a partnership between the parties or constitute either party the agent of the other party for any purpose. A party has no authority or power to bind, to contract in the name of, or to create a liability for the other party in any way or for any purpose.
- This Agreement and any documents expressly referred to in this Agreement constitute the entire and only agreement between the parties in relation to the Services and replace and extinguish all prior agreements, undertakings, arrangements, understandings or statements of any nature made by the parties whether oral or written (and, if written, whether or not in draft form) with respect to such subject matter.
- Each party acknowledges that it is not relying on any statements, warranties or representations given or made by any of them in relation to the subject matter of this Agreement, save those expressly set out in this Agreement, and that it shall have no rights or remedies with respect to such subject matter otherwise than under this Agreement save to the extent that they arise out of the fraud or fraudulent misrepresentation of any other party.
- No variation of this Agreement shall be effective unless in writing and signed by or on behalf of a duly authorised representative of each party.
- If any part, term or provision of this Agreement, which is not of a fundamental nature, is held to be illegal, invalid or unenforceable, such part, term or provision shall be deemed deleted from this Agreement and the remainder of shall not be affected. Should the foregoing apply, the parties shall use all reasonable endeavours to agree upon any lawful and reasonable changes to this Agreement which may be necessary in order to effect, as close as possible, the commercial intent of this Agreement.
- This Agreement shall be binding on the parties and their respective successors and assigns.
- Neither party shall be entitled to (or to purport to) assign, transfer, sub-license, encumber, create in trust in respect of or otherwise deal with its rights or obligations under this Agreement, whether in whole or in part, without the prior written consent of the other party.
- The Contract (Rights of Third Parties) Act 1999 shall not apply to this Agreement. A person who is not a party to this Agreement shall not be entitled to enforce any term of this Agreement which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties. Any such agreement by the parties must refer to this Clause 11.
- This Agreement may be executed in any number of counterparts which together shall constitute one agreement. Either party may enter into this Agreement by executing a counterpart and this Agreement shall not take effect until it has been executed by both parties.
14. Governing Law and Jurisdiction
This Agreement and all matters arising from or connected with it (including any non-contractual obligations) shall be governed by and construed and interpreted in accordance with the laws of England and Wales, and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.