Terms of Appointment for Professional Services

1. Definitions. In this Agreement the following terms shall mean:
“Agreement”: the contract between the Parties consisting of a written quotation or estimate from Newsteer to the Client, identifying the Services, the Charges and any other relevant matters pertaining to the Services, and incorporating these standard terms of appointment;
“Charges”: the charges payable by the Client to Newsteer for the Services;
“Client”: the client for whom Newsteer is to carry out the Services;
“Client Data”: any personal data transmitted by or on behalf of the Client to, or otherwise processed by, Newsteer under this Agreement or which is generated under this Agreement;
“controller”, “data subject”, “personal data”, “personal data breach”, “Process” and “processor” shall have the meanings in the Data Protection Legislation.
“Data Protection Legislation”: the Data Protection Act 2018 UK GDPR (as defined by the previously mentioned Act) and any replacement legislation from time to time;
”Deliverables”: all drawings, software, reports, specification, bills of quantities, calculations and other documents and information prepared by or on behalf of Newsteer in connection with the Services;
“Newsteer” means Newsteer Ltd (registered in England & Wales under company number 11759239 , registered office: 12a Fleet Business Park, Fleet, GU52 8BF );
“Parties” Newsteer and the Client together (each a “Party”)
“Services”: the services (or any part thereof) carried out by Newsteer for the Client pursuant to this Agreement;
2. References to persons shall include firms, limited liability partnerships, corporations and unincorporated associations and vice-versa; references to statutes shall include any modification, amendment or re-enactment in force.
3. Variation. Any amendment to this Agreement must be agreed by the Parties in writing.
4. Entire Agreement. This Agreement is the entire agreement between the Parties with respect to the Services and, save in the case of fraud, the Parties have no rights or liabilities in respect of pre-contractual statements. These standard terms of appointment shall apply to the Agreement to the exclusion of any other terms which the client seeks to impose or incorporate or which are implied by law, trade custom, practice or course of dealing.
5. Third Party Rights. A person who is not Party shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
6. Assignment. The Client may only assign this Agreement with Newsteer’s written consent.
7. Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with English Law and subject to the exclusive jurisdiction of the English Courts.
8. Supply of Services. Newsteer shall carry out the Services to a professional standard using qualified individuals and using reasonable skill and care and in doing so shall be entitled to rely on information provided by the Client or on the Client’s behalf.
9. Reliance on information. Newsteer shall be entitled to rely on information provided by the Client or on the Client’s behalf which the Client warrants is complete and accurate.
10. Client responsibilities. The Client shall provide or procure the provision of all necessary safety information, access and
assistance, all data, reports, plans, drawings and other relevant information to Newsteer (free of charge) in relation to the Services:
11. No liability for delays. If there is a material alternation in the Services and/or Newsteer are prevented from or delayed in undertaking the Services by reasons beyond its reasonable control (including being prevented or delayed by the Client or its subcontractors, its consultants or agents). Newsteer shall not be liable for any consequent delays or failures and may require payment by the Client of any reasonable additional charges directly relating to such alteration or delay. Any dates specified for performance of the Services are estimates only and time shall not be the essence for performance of the Services.
12. Liabilities not excluded. Nothing in this Agreement shall restrict either Party’s liability for fraud or any loss that cannot be limited by law.
13. Indirect and consequential losses. Subject to clause 12 neither Party shall have any liability in connection with this Agreement or the project to which it relates for:
13.1 any indirect or consequential loss or loss of profit;
13.2 loss of use or loss or corruption of data or information;
13.3 loss of anticipated savings; or
13.4 depletion of goodwill, reputation or similar losses.
14. Force Majeure. Newsteer will not be liable for any delay or failure to fulfil its obligations under this Agreement as a result of causes beyond Newsteer’s reasonable control, or as a result of Newsteer terminating this Agreement or suspending the Services pursuant to any term of this Agreement.
15. Limitation of liability. Subject to clause 12 and 13 Newsteer’s total aggregate liability, and the liability of its directors, employees and subcontractors under or in connection with this Agreement whether in contract, tort or breach of statutory duty or otherwise shall be limited to the lower of: (i) £1,000,000 (unless otherwise agreed in writing at the project outset), or (ii) 10 x the total Charges (excluding VAT and expenses). Newsteer’s liability to the Client under this Agreement shall be reduced to the extent that Newsteer proves that it would have been able to recover a contribution pursuant to the Civil Liability (Contribution) Act 1978 from one of more of the Client’s other consultants, contractors or suppliers on the assumption that the Client’s other consultants, contractors or suppliers have entered into an agreement with the Client containing terms generally similar to this Agreement having regard to the differing nature of their respective functions in relation to the project
16. No liability. The liability of Newsteer and/or its officers, directors, employees and subcontractors under or in connection with this Agreement arising from or in connection with asbestos, pollution, contamination or fire safety and whether in contract, tort, breach of statutory duty or otherwise, is excluded.
17. Survival on termination. The clauses on liability set out above shall survive termination of this Agreement.
18. No obligation to provide collateral warranties. Newsteer shall be under no obligation to provide collateral warranties or letters of reliance unless it agrees to do so, for a fee to be agreed.
19. Intellectual Property Rights. All copyright and other intellectual property rights in the Deliverables shall remain vested in Newsteer. Newsteer shall not be liable for any use of Deliverables other than the purpose for which it was prepared. Subject to prompt payment of all Charges, Newsteer grants a non-transferable, royalty free licence to the Client to use the Deliverables in connection with the Services and such licence shall not be sub-licensed without Newsteer’s written consent.
20. Payment of invoices shall be due within 28 days of receipt of the invoice. If an invoice or a balance of an invoice remains outstanding after 28 days from the invoice date, at Newsteer’s discretion the following sums will be payable in addition
(i) Interest from the date of the invoice at the rate of 1.5% per month, compounded on a monthly basis from the date the invoice fell payable and the date of payment;
(ii) Newsteer’s administrative and other costs incurred in recovering any unpaid sum including legal costs and disbursements on an indemnity basis.
21. No right of set off. Neither Party shall have a right of set-off. If any deductions or withholdings are required by law the Client shall pay to Newsteer such further sums as will ensure that the aggregate of the sums paid or payable under this Agreement shall, after deducting all such deductions or withholdings, leave Newsteer which the same amount as it would have been entitled to receive under this Agreement in the absence of any such deductions or withholdings.
22. Termination for convenience. Newsteer may terminate this Agreement by giving at least 30 days’ notice in writing to the Client. The Client shall pay for the Services performed up to date of termination.
23. Termination for breach or insolvency. Newsteer may terminate or suspend this Agreement with immediate effect if:
23.1 It is prevented from discharging the Services by any cause beyond its reasonable control, or if, in Newsteer’s reasonable opinion, the health and/or safety of its staff is put at risk;
23.2 the Client is in breach of any part of it; or
23.3 the Client 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; or
23.4 the Client suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
23.5 the Client’s financial position deteriorates to such an extent that in Newsteer’s reasonable opinion the Client’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy
Newsteer shall not be liable for any costs incurred by the Client as a result of such a suspension or termination.
24. VAT. The Charges are exclusive of VAT (or other applicable taxes) which, if applicable, shall be payable in addition to such Charges at the rate in force from time to time.
25. Waiver. Any delay by Newsteer in enforcing this Agreement will not limit Newsteer’s rights under this Agreement.
26. Transfer of employees. The Client shall be liable for any costs claims liabilities and expenses incurred by Newsteer arising from the transfer of any employees due to operation of law in connection with this Agreement or the Services.
27. Confidentiality. The Parties shall keep confidential, and not without the other Party’s written consent disclose to any third party, any trade or business secrets or other confidential information supplied by the other Party except as absolutely necessary for the property performance of this Agreement or as may be required by law or a court or government or regulatory authority.
28. Anti-bribery. The Parties shall comply with all applicable law relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
29. Notification of public officials. The Client shall immediately notify Newsteer (in writing) if a public official in any jurisdiction becomes an officer or employee of the Client or acquires a direct or indirect interest in the Client (and the Client agrees that it has no public officials in any jurisdiction as officers, employees or direct or indirect owners at the date of the Agreement).
30. Client Data. In relation to any Client Data, the Client is a controller and Newsteer is a processor for the purposes of the Data Protection Legislations.
31. Data protection. The Parties shall comply with their respective obligations under the Data Protection Legislation. The Client shall ensure that it has all necessary and appropriate consents and notices in place to enable the lawful transfer of Client Data to Newsteer for the duration and purposes of this Agreement.
32. Processing personal data. Where Newsteer processes Client Data in connection with this Agreement, it shall:
32.1 save as required otherwise by law, only process such Client Data as necessary and only in accordance with the Client’s documented instructions;
32.2 put in place appropriate technical and organisational measures to meet its own obligations under the Data Protection Legislation;
32.3 ensure Newsteer staff who have access to Client Data are subject to appropriate confidentiality obligations;
32.4 be entitled to engage sub-processors, provided that they are subject to equivalent requirements to those set out in this clause;
32.5 not process or transfer Client Data outside the United Kingdom without the prior documented consent of the Client;
32.6 notify the Client without undue delay after becoming aware of any personal data breach involving Client Data;
32.7 take appropriate technical and organisational measures, insofar as is possible, to assist the Client in responding to requests for data;
32.8 permit and contribute to audits conducted by the Client (or its appointed auditors) pursuant to the Data Protection Legislation. The Client will give reasonable notice of any audit and will be liable for all associated costs; and
Provided that Newsteer shall only provide any such assistance in relation to the Services and Newsteer may charge the client its own reasonable costs for its time spent in providing the Client with co-operation and assistance in connection with the Data Protection Legislation;
33. Notification of infringing instructions. Newsteer shall inform the Client in writing if, in Newsteer’s opinion, an instruction from the Client infringes the Data Protection Legislation. Such information shall not be legal advice or guidance in anyway and shall not relieve the Client of its obligation to ensure that all instructions comply with all applicable legislation.
34. Notices. Any notice to a party under this Agreement shall be in writing and shall be delivered personally, or sent by pre-paid recorded delivery or by commercial courier, to each party required to receive the notice at its registered office (if a company) or its main trading address (if not a company) or as otherwise specified by the relevant party by notice in writing to each other party. A notice shall be deemed to have been duly received at the time of delivery, if delivered personally or by courier, or 2 Business Days after posting for an address in the United Kingdom and 5 Business Days after posting for any other address.