The following definitions and rules of interpretation apply in these Terms of Business.
1.1 Definitions:
Affiliate means, in respect of a party, each and any subsidiary or holding company of that party and each and every subsidiary of a holding company of that party from time to time (subsidiary and holding company having the meaning given in section 1159 of the Companies Act 2006).
Applicable Data Protection Laws means (a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and (b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which The Modern Firm is subject, which relates to the protection of personal data.
Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Client means the person or firm who purchases Services from The Modern Firm.
Deliverables means any output of the Services to be provided by The Modern Firm to the Client as specified in the Engagement Letter.
Engagement means the Services and Deliverables to be provided by The Modern Firm to Client pursuant to the Engagement Letter.
Engagement Letter means the cover letter to this document of the same name that incorporates these Terms of Business and describes the Services and Deliverables to be provided by The Modern Firm to Client, including as modified by agreement in writing between The Modern Firm and the Client from time to time:
EU GDPR means the General Data Protection Regulation ((EU) 2016/679).
Fees means the fees payable by the Client for the supply of the Services pursuant to the Engagement Letter.
Intellectual Property Rights means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, 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.
Personal Data means the personal data to be processed by The Modern Firm in connection with the Engagement Letter.
Services means the services, including the Deliverables, supplied by The Modern Firm to the Client as set out in the Engagement Letter.
Terms of Business means these terms of business as amended from time to time in accordance with clause 11.4.
The Modern Firm means Finput Accounting Ops Ltd t/a The Modern Firm registered in England and Wales with company number 16535495 and with a registered address of Festival House, Jessop Avenue, Cheltenham, Gloucestershire, England, GL50 3SH.
UK GDPR means the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR).
1.2 Interpretation:
(a) A reference to legislation or a legislative provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes fax and email.
1.3 Acceptance of the Engagement Letter:
(a) The Client shall be deemed to have accepted the terms of the Engagement Letter upon the earlier of:
(i) the Client providing written acceptance of the Engagement Letter (including by email or electronic signature);
(ii) the Client executing (whether physically or electronically) a copy of the Engagement Letter; or
(iii) The Modern Firm commencing the performance of any Services specified in the Engagement Letter, with the Client’s express or implied consent.
(b) By accepting the Engagement Letter in any of the manners specified in clause 1.3(a), the Client shall be deemed to have accepted these Terms of Business in their entirety and to have entered into a legally binding contract with The Modern Firm.
2.1 The Modern Firm shall carry out the Services for the Client in accordance with the Engagement Letter in all material respects.
2.2 The Modern Firm shall use all reasonable endeavours to meet any performance dates specified in the Engagement Letter, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
2.3 The Client acknowledges and agrees that the Services described in the Engagement Letter may be performed by The Modern Firm and/or its Affiliates, at the sole discretion of The Modern Firm. Notwithstanding any involvement of any Affiliate of The Modern Firm in the provision of Services, the Client agrees that any and all claims, demands, or causes of action arising out of or in connection with the Services shall be brought solely against The Modern Firm, and not against any Affiliate or their respective personnel or contractors.
2.4 The Modern Firm’s Services and Deliverables are provided on an advisory basis. The Client undertakes to use the Deliverables supplied by The Modern Firm only to assist in making a business decision and not as the sole basis for any such decisions. The Client is responsible for any final decisions and any subsequent consequences of those decisions. Further, the Client shall ensure that its employees, directors, officers and contractors do not use the Deliverables for any purpose other than for the Client’s own internal business purposes.
3.1 The Client shall:
(a) co-operate with The Modern Firm in all matters relating to the Services;
(b) provide The Modern Firm with such information and materials as The Modern Firm may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects and does not infringe any intellectual property rights or confidentiality of any third party;
(c) provide, The Modern Firm, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client’s premises, office accommodation, office equipment and office IT systems, data and other facilities as reasonably required by The Modern Firm in order to supply the Services including any such access as is specified in an Engagement Letter;
(d) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(e) comply with any additional obligations as set out in the Engagement Letter.
3.2 If The Modern Firm's performance of the Services is prevented or delayed by any act or omission by the Client, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, The Modern Firm may at its option extend the time to perform its obligations equal to the delay caused by the Client. The Modern Firm shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from The Modern Firm's failure or delay to perform any of its obligations as set out in clause 2.
3.3 [The Client is deemed to have accepted the Services in conformity with the Engagement Letter or as agreed unless the Client notifies The Modern Firm in writing of its claim within 7 days of completion of the Services.]
4.1 In consideration of The Modern Firm carrying out the Services, the Client shall pay the Fees to The Modern Firm as set out in the Engagement Letter. The Client also agrees to pay for any expenses reasonably incurred by the individuals whom The Modern Firm engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, as approved in advance by the Client.
4.2 Unless otherwise stated in the Engagement Letter, the Client shall pay each invoice submitted by The Modern Firm within 14 days of the date of the invoice.
4.3 If the Client agrees to make payment of the Fees by direct debit, the Client shall use our Go Cardless Direct Debit facility. Once enrolled on Go Cardless our Fees will be automatically settled 5 days after the invoice date by Direct Debit. You will receive notification that the payment is to be taken. The Client and The Modern Firm shall enter into a Go Cardless Direct Debit agreement before The Modern Firm shall start providing the Services.
4.4 All amounts payable by the Client under an Engagement Letter are exclusive of amounts in respect of value added tax chargeable from time to time.
4.5 Without prejudice to any other right or remedy it may have, if the Client fails to make a payment due to The Modern Firm under the Engagement Letter by the due date, then, without limiting The Modern Firm's remedies under clause 8:
(a) 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 under this clause 4.5 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
(b) The Modern Firm may suspend all or part of the Services until payment has been made in full.
4.6 All amounts due to The Modern Firm shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.1 Except as expressly provided in these Terms of Business, Intellectual Property Rights shall remain the property of the party who owned or created the same and nothing in these Terms of Business shall be deemed to confer any assignment or licence of the Intellectual Property Rights of one party to the other party.
5.2 The Modern Firm grants the Client a limited non-exclusive, worldwide and royalty free licence for the term of the Engagement to use such of its Intellectual Property Rights as are strictly required by the Client in relation to its use of Services as envisaged under the Engagement Letter.
5.3 The Client grants The Modern Firm a non-exclusive, worldwide and royalty free licence to use such of its Intellectual Property Rights as are strictly required by The Modern Firm to provide the Services as described in the Engagement Letter.
5.4 Subject to clauses 5.1 to 5.3 (inclusive) above, The Modern Firm assigns to the Client all Intellectual Property Rights in the Deliverables on receipt of full payment of the Fees.
6.1 For the purposes of this clause 6, the terms Controller, Processor, Data Subject, Personal Data, Personal Data Breach and Processing shall have the meaning given to them in the UK GDPR.
6.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 6 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
6.3 The parties have determined that, for the purposes of Applicable Data Protection Laws, Client is the Controller and The Modern Firm is the Processor in relation to the Processing by The Modern Firm of any Personal Data.
6.4 Without prejudice to the generality of clause 6.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to The Modern Firm for the duration and purposes of each Engagement Letter.
6.5 The Modern Firm will:
(a) only Process the Personal Data (i) in accordance with the Client’s written instructions as set out in the Engagement Letter; or (ii) if required to do so by Applicable Data Protection Laws to which The Modern Firm is subject, subject to The Modern Firm informing the Client of such legal requirement in advance of the transfer;
(b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data;
(c) ensure that any personnel engaged and authorised by The Modern Firm to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to The Modern Firm), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection 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 the Personal Data;
(f) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client unless required by Applicable Data Protection Laws to store the personal data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause 6.
6.6 The Client provides its prior, general authorisation for The Modern Firm to:
(a) appoint processors to process the Personal Data, provided that The Modern Firm:
(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on The Modern Firm in this clause 6;
(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of The Modern Firm; and
(iii) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to The Modern Firm's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify The Modern Firm for any losses, damages, costs (including legal fees) and expenses suffered by The Modern Firm in accommodating the objection.
(b) transfer Personal Data outside of the UK, provided that The Modern Firm shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of The Modern Firm, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
7.1 Nothing in this clause 7 shall exclude or limit the liability of (a) either party for death or personal injury cause by negligence of such party, for fraud or fraudulent misrepresentation, or in respect of any other liability which cannot by law be excluded or limited; or (b) the Client any liability arising under or in relation to clause 4.
7.2 Subject to clause 7.1, neither party shall be liable to the other party for (a) any loss, whether direct or indirect, of business, profits, revenue, anticipated savings, loss of or depletion of goodwill; (b) any losses, fines and expenses imposed by a regulator, governmental authority or professional body; or (c) any indirect or consequential loss or damage, in each case, however arising, whether in contract, tort (including negligence), breach of statutory duty or otherwise, and whether or not either party was aware of the possibility of such loss arising.
7.3 Subject to clauses 7.1 and 7.2, The Modern Firm's total aggregate liability to the Client under or in connection with the Engagement Letter whether under contract, tort ((including negligence), breach of statutory duty or otherwise shall not for any and all causes of action arising under or relating to the Engagement Letter exceed an amount equal to the total Fees paid by the Client to The Modern Firm under the Engagement Letter.
8.1 The Modern Firm’s Engagement pursuant to these Terms of Business and the Engagement Letter shall begin on the date set out in the Engagement Letter and shall continue until the termination date set out in the Engagement Letter unless terminated earlier by either the Client or The Modern Firm in accordance with this clause 8.
8.2 Without affecting any other right or remedy available to it, either party may terminate the Engagement Letter with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Engagement Letter or these Terms of Business and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so; or
(b) 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.
8.3 Without affecting any other right or remedy available to it, The Modern Firm may terminate the Engagement Letter with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Engagement Letter on the due date for payment.
8.4 On termination or expiry of the Engagement Letter for any reason:
(a) the Client shall immediately pay to The Modern Firm all of The Modern Firm's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, The Modern Firm shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
9.1 During the term of the Engagement Letter, and for a period of six (6) months afterwards, each party will not (and will ensure that each of its Affiliates do not), whether on its own account or on behalf of any other person, firm or undertaking, either directly or indirectly employ, engage or solicit an employee or contractor of the other party and/or the other party’s Affiliates with whom it or its Affiliates (as the case may be), had contact as a result of the Engagement Letter in the six (6) months prior to such employment, engagement or solicitation.
10.1 In this clause 10, “Confidential Information” means any and all non-public information that would be regarded as confidential by a reasonable business person and relating to the business plans, financial information, operations, processes, know-how, designs, trade secrets or services of the Discloser as well as such information with respect to a third party disclosed by or on behalf of one party to the other party in connection with an Engagement and the Services, whether marked confidential or not. Without limitation, the terms of each Engagement Letter, these Terms of Business, the Deliverables and information about The Modern Firm’s directors and employees shall constitute Confidential Information.
10.2 Information is not Confidential Information if:
(a) it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Recipient or the Recipient’s Representatives in breach of this agreement;
(b) it was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;
(c) it was, is, or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient's knowledge, is not under any confidentiality obligation in respect of that information;
(d) it was lawfully in the possession of the Recipient before the information was disclosed by the Discloser; or
(e) it is developed by or for the Recipient independently of the information disclosed by the Discloser.
10.3 For the purposes of this clause 10, “Recipient” means a party receiving Confidential Information, directly or indirectly, from the other party; and “Discloser” means a party who discloses its Confidential Information, directly or indirectly, to the other party.
10.4 Each party undertakes that it shall not at any time use or disclose to any person (and shall use its best endeavours to prevent the use, publication or disclosure of) any Confidential Information except as permitted by paragraph 10.5.
10.5 Each party may disclose the other party's Confidential Information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this paragraph (“Recipient’s Representatives”); and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.6 Neither party shall use any other party's Confidential Information for any purpose other than to perform its obligations under the Engagement Letter.
10.7 The above provisions of this clause 10 shall survive termination of these Terms of Business, however arising.
10.8 The Modern Firm shall be permitted to include the Client’s name on its list of clients for the Services provided, without the Client’s prior written consent, provided that the Client, should it have reasonable grounds to do so, may revoke such right and require The Modern Firm to cease such use at any time upon reasonable notice to The Modern Firm. The Client may use The Modern Firm’s name in communications or other materials to identify themselves as recipients of the Services.
11.1 Force majeure. Neither party shall be in breach of the Engagement Letter nor liable for delay in performing, or failure to perform, any of its obligations under the Engagement Letter if such delay or failure result from events, circumstances or causes beyond its reasonable control. Nothing in this clause 11.1 shall relieve the Client from its obligations to pay the Fees as described in the Engagement Letter.
11.2 Assignment and other dealings.
(a) The Modern Firm may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Engagement Letter.
(b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Engagement Letter without the prior written consent of The Modern Firm.
(c) The Client agrees to notify the Modern Firm in writing of any change of ownership of the Client within 7 days of the date of such change.
11.3 Entire agreement.
(a) The Engagement Letter 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.
(b) Each party acknowledges that in entering into the Engagement Letter it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Engagement Letter. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Engagement Letter.
11.4 Variation. Except as set out in these Terms of Business, no variation of the Engagement Letter or these Terms of Business shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5 Waiver. A waiver of any right or remedy under the Engagement Letter or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Engagement Letter or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Engagement Letter or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.6 Severance. If any provision or part-provision of the Engagement Letter 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. If any provision or part-provision of the Engagement Letter deleted under this clause 11.6 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.
11.7 Notices.
(a) Any notice required to be given under these Terms of Business (“Notices”) shall be in writing and in English and, where sent (i) in physical form, shall be sent by commercial courier, or a Royal Mail service that provides for evidence of time and date of delivery, to the other party at its address set out in the Engagement Letter, or such other address as may have been notified by that party for such purposes; and (ii) by email to the representative email address notified by that party in the relevant Engagement Letter and shall be deemed received when sent, provided no bounce back or notification of failed delivery has been received by the sender.
(b) This clause 11.7 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.8 Third party rights. Unless it expressly states otherwise, the Engagement Letter does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Engagement Letter.
11.9 Governing law. The Engagement Letter and these Terms of Business and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with their subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Engagement Letter and/or these Terms of Business or their subject matter or formation.
If you have any questions about these Termsof service, please contact us at:
Email: hello@modernfirm.co.uk
Address: Festival House, Jessop Ave, Cheltenham GL50 3SH.
