These terms and conditions govern the provision of any Service(s) by Advisor to Customer, unless Advisor has entered into a separate written agreement with Customer for the provision of a Service(s), in which case such separate written agreement shall supersede these terms and conditions in respect of the relevant Service(s) being provided.
DEFINITIONS AND INTERPRETATIONS
1.1 In addition to capitalised terms defined elsewhere in this Agreement, the following capitalised terms have the meaning given below.
“Advisor” means the 7 startup entity identified on the first page of the Agreement, as executed by 7 startup.
“Agreement” means this General Terms and Conditions, including any annex(s) attached hereto.
“Annex” means an annex as attached hereto this Agreement.
“Business Day” means a day other than a Saturday or Sunday or public holiday in England.
“Capitalised Investment” means third parties who have issued capital to the Company in the form of equity, shares, options, cash advances, bonds or any other financial instruments.
“Charges” means the charges payable by Company to Advisor pursuant to this Agreement.
“Commencement Date” means the date specified in the Signature Page.****
“Company IPRs” means all intellectual property rights owned by the Company prior to the appointment of the Advisor, and all intellectual property rights arising from the provision of the Services to the Company by the Advisor.
“Control” has the meaning set out in section 1124 of the Corporation Tax Act 2010 (and the terms “change of Control”, “Controlling,” “Controlled by,” and “under common Control with” shall be construed accordingly).
“Customer” means the customer legal entity stated on the Agreement and as accepted by Advisor.
“Deliverable” means the output created by the Advisor in performance of this Agreement.
“Effective Date” means the date stated on the Signature Page of this Agreement, or if no date is stated, the last date written on the signature block of this Agreement.
“General Terms and Conditions” means the terms and conditions contained in clause 1(Definitions and Interpretations) to clause 24 (Law and Jurisdiction).
“Initial Term” means the period set out in the Signature Page.
“Parties” means Advisor and Customer or their permitted successors or assigns, and “Party” shall mean either of them, as applicable
“Shares” means one of the equal parts into which the Company’s capital is divided, entitling the holder to a proportion of the profits or voting rights.
“Services” shall collectively refer to the services outlined in the Signature Page and annexes attached hereto this Agreement.
“Signature Page” means the first page of the Agreement as signed between the Parties.
“Tax” means all taxes, levies, duties, costs, withholdings, deductions, imposts, or charges of equivalent effect imposed on by any governmental body, whether collected by withholding or otherwise.
1.2 In this Agreement: (i) a reference to a statute or a statutory provision is a reference to it as amended, extended or re-enacted, from time to time, whether before or after the date of this Agreement; (ii) a reference to a document is a reference to that document as modified or replaced from time to time, whether before or after the date of this Agreement; (iii) the singular includes the plural and vice versa (unless the context otherwise requires); (iv) a reference to a clause or annex is a reference to a clause of or an annex to this Agreement (unless the context otherwise requires); (v) a “person” includes a natural person, company or unincorporated body (whether or not having separate legal personality), firm, association, joint venture, partnership, government, state or agency of state; (vi) a “company” includes a company, corporation or other body corporate, whatever and however incorporated or established; (vii) “in writing” includes email except for Notices under clause 13; (viii) headings are for convenience only and shall not affect its interpretation; and (ix) “includes” or “including” shall mean includes or including without limitation to the generality of the text to which it relates.
1.3 The Annexe(s) form and integral part of this Agreement and shall have effect as if set out in full in the body of this General Terms and Conditions. Any reference to Agreement includes the Annexe(s).
1.4 In the event of any ambiguity or inconsistency within this Agreement, it shall be resolved according to the following order of precedence where those items higher in the list shall take precedence over those items lower down: (i) Annexe(s), (ii) General Terms and Conditions.
2. ADVISOR’S OBLIGATIONS
2.1 The Advisor shall provide those Services to the Company as detailed in this Agreement.
2.2 In supplying the Services, the Advisor shall:
a. make themselves available on reasonable notice, to perform the Services with all reasonable care and skill, and to use their reasonable endeavours to promote the interests of the Company,
b. inform Target Investors that the Advisor will receive a fee from the Company in connection with the introduction; and
c. comply with all applicable enacted and active laws in England and Wales.
2.3 If the Advisor is unable to provide the Services due to illness, injury or other incapacity, they agree to notify the Company’s representative as soon as reasonably practicable.
2.4 The Advisor has no authority (and will not give to anyone the impression of having the authority) to commit the Company to any legal or contractual obligation or relationship, unless they have been expressly authorised to do so by the board of the Company, in writing and in advance of making any such commitment.
2.5 The Advisor is at all times an independent contractor and nothing in this Agreement shall create or confer employee, worker, agent or partner status for or on the Advisor. The Advisor agrees at all times to ensure that their relationship with and to the Company is clearly understood by any third party with whom the Advisor interacts in any way.
3. TERM AND EXCLUSIVITY
3.1 Irrespective of the Effective Date, the appointment of the Advisor commences on the Commencement Date and shall continue for the Initial Term and thereafter indefinitely, subject to clause 9 (Termination), or until terminated by either Party by providing not less than 6 (six) months’ written notice (“Term”), or when the Services have been completed in full.
4. REMUNERATION FOR THE SERVICES
4.1 Remuneration for the Services provided by the Advisor are to be found within the relevant Annex attached hereto this Agreement.
4.2 Both Parties agree that the above payment arrangements comprise the total payment due from the Company.
4.3 The above position is without prejudice to the Advisor’s right to claim reasonable expenses plus an additional 10% (ten percent) to cover Advisor administrative costs, for all costs necessarily incurred during the proper provision of the Services to the Company. The Advisor will retain, and provide the Company with copies of all receipts for these expenses that they may incur in providing the Services.
4.4 The Shares assigned to the Advisor, outlined in Annex 1, shall be referred to an individual of the Advisors choice.
5. OBLIGATIONS OF THE COMPANY
5.1 The Company shall:
a. comply with all applicable laws, regulations or decrees that may apply to it from time to time;
b. provide information and assistance to the Advisor in support of the Services;
c. acknowledge that the Advisor is in no way responsible for the content, use and consequences of the information provided by the Company and the Company shall take full responsibility for all information provided herein.
5.2 If the Advisor’s performance of Services is prevented, delayed or impacted by any act or omission by the Company, the Parties agree:
a. the Advisor shall not be liable to the Company for any delay;
b. the Advisor shall be entitled to payment of any Charges, despite such prevention or delay; and
c. the Advisor shall be entitled to recover any additional costs, Charges or losses the Advisor sustains due to such prevention or delay.
5.3 On a quarterly calendar basis, or as agreed between the Parties in writing, the Company shall provide the Advisor the following detailed reports:
a. accounting information, providing detailed information in accordance with the Company’s standard accounting principles;
b. provide an update as to Capitalised Investment(s);
c. any new employees which have been hired since the last report, with such information being in compliance with the Data Protection Act 2018; and
d. any other reports that the Advisor reasonably requests.
6.1 The applicable Charges are set out at as discussed in the applicable Annex of this Agreement. The Charges from each Annex shall be treated distinct and separate from any other Charges as identified in any other Annex. The Charges, and the currency in which they are denominated, may be adjusted from time to time by Advisor at its discretion, upon ninety (90) days’ written notice to Company. Company shall also pay such Tax as Advisor is obligated to add, impose or collect on or in relation to the Charges.
6.2 Advisor shall invoice Company electronically for the Services in accordance with the applicable Annex. Each invoice shall be due for payment (the “Payment Due Date”) fifteen (15) days from the date of the invoice. Where a Payment Due Date falls on a day other than a Business Day, payment shall be made by the last Business Day immediately before the Payment Due Date.
6.3 Any payment to be made under this Agreement shall be made by electronic funds transfer directly to the bank account designated by the Advisor in writing. Company shall be solely responsible for the costs associated with such electronic fund transfers.
6.4 Company may dispute the Charges in an invoice in good faith by notifying the Advisor as soon as possible but no later than the Payment Due Date and withhold payment of the disputed amount. Any such notice shall be in writing, shall include the reasons for the dispute and shall be sent in accordance with the provisions of clause 13. Company shall pay the undisputed amount of any invoice by the Payment Due Date.
6.5 If Company fails to pay an invoice by the Payment Due Date, Advisor may charge interest at a rate of the eight (8) percentage points plus the Bank of England base rate per annum. Such interest shall accrue daily from the date following the Payment Due Date until actual payment of the overdue amount, whether before or after judgment. If Company fails to pay an invoice within fourteen (14) days of Advisor providing written notice that Company is in breach of its payment obligation, Advisor may vary the Payment Due Date and/or suspend or terminate this Agreement in whole or in part.
7.1 The Advisor undertakes that they shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the Company, except as permitted by clause 7.2 below. Under this Agreement, “Confidential Information” means any information or matter that is not publicly known or publicly accessible, and which relates to the affairs of the Company or any of its business contacts.
7.2 The Advisor may disclose the Company’s Confidential Information:
a. if expressly authorised to do so by the Company, or
b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, or
c. where that information is already in, or comes into, the public domain otherwise than due to an unauthorised disclosure by the Advisor.
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. INTELLECTUAL PROPERTY
8.1 The Company shall retain ownership of all Company IPRs at all times.
8.2 Where necessary, the Company grants the Advisor a non-exclusive, royalty-free licence to use the Company IPRs, but only to enable the Advisor to provide the Services and achieve the Deliverables, during the term of this agreement.
8.3 The Advisor shall own all future intellectual property rights (including without limitation, patents, copyright, and related rights), that the Advisor creates as a result of the Services.
8.4 Company shall indemnify the Advisor for any losses, liabilities, damages and costs (including reasonable legal costs) suffered, which arise out of or in connection with a claim by a third party in use of Company IPRs, however arising.
9.1 Either Party (the “Initiating Party“) may terminate this Agreement in whole or in part (including in respect of one or more Services) with immediate effect by notice in writing to the other Party (the “Breaching Party“) on or at any time after the occurrence of any of the following events:
a. a material breach of this Agreement by the Breaching Party which is not capable of remedy;
b. a material breach of this Agreement by the Breaching Party which is capable of remedy but which the Breaching Party fails to remedy within thirty (30) days of notice of the breach being provided by the Initiating Party;
c. an order is made or an effective resolution is passed for the dissolution of or winding up of the Breaching Party unless for the purposes of an amalgamation, merger or restructuring;
d. a lien holder takes possession or a receiver is appointed over the whole or a material part of the undertakings or assets of the Breaching Party;
e. the Breaching Party becomes insolvent or makes any special arrangements, composition or assignment for the benefit of its creditors, or is the subject of a voluntary or involuntary filing under the insolvency or bankruptcy laws of any jurisdiction; or
f. an administration order is made in relation to the Breaching Party or the Breaching Party makes an application to a court of competent jurisdiction for protection from its creditors generally.
9.2 Advisor may terminate this Agreement in whole or in part, with immediate effect by notice in writing to Company on or at any time after a change of Control of Company.
9.3 Termination of this Agreement does not affect a Party’s accrued rights and obligations as at the date of termination.
9.4 Each Party’s further rights and obligations shall cease immediately on termination except that the provisions of Clauses 1, 4, 6, 7, 8, 10, 11, 21, 23, and 24 shall survive termination, as shall those other Clauses the survival of which is necessary for the interpretation or enforcement of this Agreement.
9.5 In the event of termination of this Agreement, Advisor may invoice all Charges accrued and all invoices issued by Advisor under this Agreement shall become immediately due and payable by Company, together with any interest accrued pursuant to the terms of this Agreement.
9.6 Upon termination of this Agreement each Party shall, at the instruction of the other Party, return to the other Party or destroy all material containing any Confidential Information of the other Party.
10. LIMITATION OF LIABILITY
10.1 Subject to Clause 10.2, neither Party shall be liable on any basis, whether in tort (including negligence), breach of contract, breach of statutory duty, misrepresentation or otherwise, for direct or indirect loss of profit, loss of goodwill, business or business opportunity, revenue, anticipated saving or any other indirect or consequential loss or damage, arising under or in connection with this Agreement.
10.2 Nothing in this Agreement shall exclude or limit a Party’s liability for: (a) death or personal injury to the extent resulting from its negligence; (b) that Party’s fraud or fraudulent misrepresentation; or (c) any loss, liability or cost to the extent that it cannot be excluded or limited by law.
10.3 Except as set out in this Agreement, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise, in respect of the Services and/or Deliverables provided under this Agreement are excluded to the fullest extent permitted by law.
10.4 Neither Party shall be liable to the other for loss suffered as a result of damage to, or corruption or loss of, data or information transmitted in connection with this Agreement.
10.5 Excluding Company’s obligation to pay Charges, or provide Advisor Compensation to Advisor, the aggregate liability of each Party to the other Party under or in connection with this Agreement, whether in tort (including negligence), breach of contract, breach of statutory duty, misrepresentation or otherwise, shall at all times be limited to £1,000 (one thousand pounds).
11.1 Company shall indemnify the Advisor and their representatives for any losses, liabilities, damages and costs (including reasonable legal costs) suffered by them which arise out of or in connection with a claim by a third party, however arising, as a result of or in connection with an alleged breach by Company of its obligations under this Agreement.
11.2 Company shall maintain either liability insurance from a reputable third party insurer or self-insurance in an amount sufficient to cover the indemnities which it has granted under this Agreement.
11.3 The Company shall indemnify the Advisor in full for any misrepresentation, accuracy or incomplete information originating from the Company and provided in good faith to any third party.
12. EVENTS BEYOND A PARTY’S CONTROL (‘FORCE MAJEURE’)
12.1 The Advisor shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any obligation under this Agreement if such delay or failure results from a cause beyond its reasonable control. If the period of delay or non-performance continues for 2 (two) months, the Party not affected may terminate this Agreement by giving 14 (fourteen) days’ written notice to the affected Party.
12.2 The Parties agree that these causes shall include (but are not limited to) acts, events, omissions or accidents beyond the reasonably control of one or both of them, such as:
a. strikes, lock-outs or other industrial action
b. terrorism, civil commotion, riot, invasion, war threat or preparation for war
c. fire, explosion, storm, flood, earthquake, subsidence, epidemic, communicable disease, bad weather or other natural physical disaster,
d. impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport and
e. political interference with the normal operations.
a. Any notice given to a Party under or in connection with this Agreement shall be in writing and shall be:
b. 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
c. sent by email to the address as set out in the Signature Page (or such other address as notified in writing by that party to the other):
13.2 Any notice shall be deemed to have been received:
a. if delivered by hand at the time the notice is left at the proper address;
b. 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 at the time recorded by the delivery service;
c. if sent by email, at 9.00 am on the next Business Day after transmission.
13.3 Clause 13.1(a) 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.
14. ENTIRE AGREEMENT
14.1 This Agreement contains the entire agreement between the parties and supersedes all previous agreements 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 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.
15.1 If any part of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant part shall be deemed deleted. Any modification to or deletion of such part under this clause shall not affect the validity and enforceability of the rest of this agreement.
16.1 A waiver of any right or remedy by any Party to this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
a. waive that or any other right or remedy.
b. prevent or restrict the further exercise of that or any other right or remedy.
17.1 No variation of this Agreement shall be effective unless it is in writing and signed by the Parties.
18.1 This Agreement is specific to the Advisor alone, who shall not assign, charge or deal in any other manner, with any, or all, of its rights or obligations under this Agreement to any third party without the express prior written approval of the Company.
19. THIRD-PARTY RIGHTS
19.1 This Agreement does not give any rights to any third party under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
20.1 Save as required by law, neither Party shall make or permit any public announcement relating to this Agreement, or its terms without the prior written consent of the other Party (which will not be unreasonably withheld or delayed).
21. NON SOLICTIATION
21. During the period commencing on the Effective Date and ending one year following the termination of the Agreement, the Company shall not, without the Advisor’s prior written consent, directly or indirectly; (i) solicit or encourage any person to leave the employment or other service of the Advisor; or (ii) hire, on behalf of the Company or any other person or entity, any person who has left the employment within the one year period following the termination of that person’s employment with the Advisor, unless such staff member has applied for the role in an open and transparent through a pubic forum.
22.1 Company shall allow the Advisor (acting itself or through its independent auditors), during normal working hours, to access any of Company’s premises, systems, personnel, accounts and records relating to the subject matter of this Agreement to verify that Company complies with its obligations under this Agreement
23. ANTI-CORRUPTION COMPLIANCE
23.1. Company shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including without limitation the Bribery Act 2010 (“Relevant Requirements”).
23.2. Without prejudice to the generality of the foregoing, Company shall:
a. not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
b. have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate;
c. promptly report to Advisor any request or demand for any undue financial or other advantage of any kind received by Company in connection with the performance of this Agreement; and
d. immediately notify Advisor (in writing) if a foreign public official becomes an officer or employee of Company or acquires a direct or indirect interest in Company (and Company warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the Effective Date).
23.3. For the purposes of this clause, the meaning of adequate procedures and foreign public official whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause, a person associated with Company includes any subcontractor of Company.
24. LAW AND JURISDICTION
24.1 The construction, validity and performance of this Agreement and all matters arising from or connected with it are governed by and construed in accordance with the laws of England without regard to its conflict of laws provisions.
24.2 If a dispute or claim arises out of, or connected with, this Agreement, the Parties will use their reasonable endeavours to resolve it within 20 (twenty) Business Days using good faith before instructing any third party to act on their behalf.
24.3 The Parties agree to submit to the exclusive jurisdiction of the courts of England and Wales in relation to any dispute or claim arising out of or connected with this Agreement.