In these terms and conditions, the following words shall have the following meanings:
'Services' means the obtaining of genealogical material based on information provided to the Client by the Company. The Company will use a combination of Internet resources; libraries; County archives and any other source deemed useful in order to provide the Client with the Services. All certificates and photocopies of original documents obtained by the Company in carrying out the Services will be supplied to the Client. The Client will receive a report from the Company detailing the documents searched and the relevance of information obtained. In addition, if expressly requested by the Client, the Company will supply a family tree chart.
'Completion Date' means any date that the Parties may agree.
'Fee' means the amount to be paid by the Client to the Company for the Services, calculated in accordance with the Company’s hourly rate plus expenses.
2.1. The Company shall provide the Services to the Client subject to the terms and conditions.
3.1. The Parties shall agree the time for performance of the Services, subject to the availability of the Company’s staff and or practitioners.
3.2. The Company shall use reasonable endeavours to complete the Services by the Completion Date or meet such other dates as agreed by the Parties.
3.3. Time shall not be of the essence:
3.3.1. for any times for when the Services are to be performed, whether given or agreed to by the Company; or
3.3.2. for the length of time that any of the Services are to take, or
3.3.3. for the Completion Date or such other date as agreed by the Parties.
4.1. the Client agrees to pay the Company the Fee within 30 days of the date of the invoice.
4.2. If payment of the Fee is not received by any due date, the Company shall be entitled (without prejudice to any other right or remedy):
4.2.1 to charge interest on the outstanding amount at the rate of 8% per annum above the base lending rate of HSBC plc, accruing daily;
4.2.2. to require that the Client make a payment in advance of any Services or part of the Services not yet made or supplied; or
4.2.3. not to provide any further Services or part of the Services;
4.3. All payments shall quote the Company’s invoice number.
5.1. The Client acknowledges and agrees that for the Company to be able to provide the Services the Client shall:
5.1.1. co-operate with the Company and the Company’s employees or practitioners as the Company reasonably requires;
5.1.2. provide to the Company such information and documentation as the Company reasonably requires;
5.2. The Company may charge the Client for any additional reasonable costs and expenses incurred by the Consultant caused by the Client's instructions, failure to provide instructions, or failure to comply with Clause 5.1.
6.1. Each Party ('Receiving Party') shall keep the confidential information of the other Party ('Supplying Party') confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for performing the Receiving Party's obligations under the Agreement made between the Parties.
6.2. The obligations of Clause 6.1 shall not apply to any information which:
6.2.1. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Providing Party;
6.2.2. is, or becomes, publicly available through no fault of the Receiving Party;
6.2.3. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
6.2.4. was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the Confidential Information supplied by the Supplying Party; or
6.2.5. is required to be disclosed by order of a court of competent jurisdiction.
6.3. This Clause 6 shall survive termination of this Agreement for a period of 6 years.
7.1. The Company warrants that it will use reasonable care and skill in performing the Services and to a standard which conforms to generally accepted industry standards and practices.
7.2. If any part of the Services is performed negligently or in breach of the provisions of the agreement then, at the request of the Client (if the request is given within 6 months of the Completion Date), the Company will re-perform the relevant part of the Services, always subject to Clause 7.4 and Clause 7.5 below.
7.3. The Company expressly does not warrant that any result or objective whether stated in the agreement or not shall be achieved, be achievable or be attained at all or by a given Completion Date or any other date.
7.4. Except in the case of death or personal injury caused by the Company's negligence, the Company's liability under or in connection with the Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the Fee paid to the Company under the Agreement. The provisions of this Clause 7.4 shall not apply to Clause 7.6.
7.5. Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this Clause 7.5 shall not apply to Clause 7.6.
7.6. The Client shall indemnify and hold harmless the Company from and against all Claims and Losses arising from loss, damage, liability, injury to the Company, the Company’s employees or practitioners, and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Client by the Company, its employees or practitioners, or supplied to the Company by the Client within or without the scope of the Agreement. 'Claims' shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and 'Losses' shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
7.7. Each of the Parties acknowledges that, in entering into an Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in the Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from the Agreement to the fullest extent permitted by law. Nothing in the Agreement excludes liability for fraud.
8.1. Without prejudice to other remedies or rights, either Party may terminate the Agreement at any time by written notice to the other Party ('Other Party') and the notice taking effect as specified in the notice:
8.1.1. if the Other Party is in material breach of its obligations under the Agreement, and where a breach is capable of remedy within 14 days, the breach is not remedied within 14 days by the Other Party receiving notice which specifies the breach and requiring the breach to be remedied; or
8.1.2. if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party's assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
9.1. Force majeure
Neither Party shall have any liability under or be deemed to be in breach of the Agreement for any delays or failures in performance of the Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate the Agreement by written notice to the other Party.
9.2. Assignment
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor.
9.3. Waiver
No failure or delay by the Company in exercising any right, power or privilege shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided are cumulative and not exclusive of any rights and remedies provided by law.
9.4. Agency, partnership etc
An agreement between the parties shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
9.5. Severance
If any provision of an agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from the agreement and rendered ineffective as far as possible without modifying the remaining provisions of the Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of the Agreement.
9.6. Interpretation
Unless the context otherwise requires:
9.6.1. words importing any gender include every gender;
9.6.2. words importing the singular number include the plural number and vice versa;
9.6.3. words importing persons include firms, companies and corporations and vice versa;
9.6.4. any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
9.6.5. the headings to the clauses, schedules and paragraphs of these terms and conditions are not to affect the interpretation;
9.6.6. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
9.6.7. where the word 'including' is used in these terms and conditions, it shall be understood as meaning 'including without limitation'.
9.7. Law and jurisdiction
The validity, construction and performance of the Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
9.8. Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 the Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.