Advisory services terms of business

When you engage Ascential to provide bespoke advisory services to you, your agreement will be subject to the terms and conditions below (‘Advisory Terms’).

1. Structure of this Agreement

a. This Agreement (as defined below) is a contract between:

i. the client organisation or individual identified as such in the Order Form (‘You’, ‘you’, ‘your’); and

ii. the Ascential Group company identified in the Order Form as the provider of the relevant products and services (‘Ascential’).

b. Your contract with Ascential is made up of the Order Form and these Advisory Terms, together with any authorised variations of any of the foregoing and any documents incorporated by reference into any of the foregoing (together the ‘Agreement’).

c. Where you access services or products via a website operated by Ascential, these Advisory Terms should be read and will apply in conjunction with the terms and conditions applicable to your use of that website (the ‘Website Terms and Conditions’), which will form part of this Agreement.

d. In the event of any conflict or inconsistency between the Order Form, these Advisory Terms, the relevant Website Terms and Conditions, and between any of the foregoing and a document referred to in the Agreement, the documents will take precedence in the order listed above.

2. Scope of these Advisory Terms

a. These Advisory Terms govern Ascential’s provision and your receipt of:

i. the advisory services described on the Order Form (the ‘Services’); and

ii. any materials in whatever form to be delivered to you as a result of Ascential’s provision of the Services (‘Deliverables’).

b. In some circumstances Ascential may decide that the standard Order Form cannot accommodate full details of the Services to be provided. In that situation Ascential will set out full details of the Services on a ‘Statement of Work’. Each Statement of Work will refer to the Order Form under which the relevant Services are procured, and for the purposes of this Agreement will be deemed to form part of the Order Form to which it refers.

3. General Mutual Obligations

a. Each party will carry out its obligations under this Agreement in accordance with the terms of this Agreement and with due skill and care.

b. Each party will comply with all applicable laws and regulations with respect to its activities under this Agreement.

c. Nothing in this Agreement will require Ascential to do or omit to do anything which would contravene any applicable laws or regulations.

4. Ascential’s General Obligations

a. Ascential will provide the Services to you with effect from the date specified on the Order Form.

b. Ascential will use reasonable endeavours to complete its provision of the Services and to deliver the Deliverables in accordance with any timetable set out on the Order Form. Any such dates are estimates only and, unless otherwise agreed in writing, time for performance by Ascential is not of the essence of this Agreement.

c. If Ascential’s performance of any of its obligations under this Agreement is prevented or delayed by your (or your affiliated companies’, employees’ or agents’) act or omission, then Ascential will automatically be given an extension of time to perform the affected obligations equal to that delay.

d. At your request, Ascential will consider in good faith any change required to the Services and the parties will act reasonably to agree any adjustment to the Charges to reflect any change in the Services.

5. Your General obligations

a. You will co-operate with Ascential in all matters relating to this Agreement.

b. You will provide Ascential with all such assistance (including access to premises, staff, data and other facilities) as Ascential may reasonably request to enable it to provide the Services and deliver the Deliverables.

c. You will be deemed to have accepted the Deliverables provided unless you notify Ascential in writing within three (3) business days of receipt of the Deliverable in question.

6. Charges and Payment

a. In consideration of Ascential’s provision of the Services and delivery of the Deliverables, you will pay the charges set out on the Order Form (the ‘Charges’).

b. The Charges exclude hotel, subsistence, travel and other ancillary expenses reasonably incurred by the individual whom Ascential engages in connection with the Services.

c. Ascential may increase the Charges on an annual basis with effect from the anniversary of the date of this Agreement by an amount equal to the greater of three percent (3%) or the percentage increase in the Retail Prices Index in the preceding twelve (12) month period. If Ascential wishes to increase the Charges by an alternative percentage it will obtain your prior written agreement to such increase.

d. Ascential is entitled to charge an overtime rate of twenty five percent [25%] of the standard daily fee rate on a pro-rata basis for any time worked by individuals whom it engages in connection with the Services, outside the hours specified in the Order Form.

e. Ascential will invoice you for the Charges at the intervals specified on the Order Form. If no intervals are specified, Ascential will invoice you at the end of each month for Services performed during that month.

f. The Order Form will specify whether the Charges are fixed or are calculated on a time and materials basis. If Charges are stated as a fixed total amount, that amount is not a guarantee the Services will be completed and Deliverables will be delivered for that amount. If the fixed amount of Charges is expended, Ascential will continue to provide Services on a time and materials basis.

g. The Order Form or Ascential’s invoice will set out instructions and terms for payment of the relevant Charges. You must pay each invoice submitted to you by Ascential in accordance with those instructions and terms. If no terms are specified on the Order Form or invoice, you will pay each invoice submitted to you by Ascential within thirty (30) days of receipt.

h. The Order Form will specify whether sums payable to Ascential are inclusive or exclusive of VAT. Unless otherwise stated, you are responsible for any taxes that you are obligated to pay or that Ascential may collect from you in connection with your purchase of the relevant products or services. If you do not pay the sales or other taxes or fees on a transaction, you will be responsible for the taxes or fees in the event they are later determined to be payable on the relevant products or services, and Ascential reserves the right to collect the taxes or other related fees from you at any time. In certain jurisdictions, Ascential may be required to collect and remit sales tax in connection with your purchase of products and services. Any such taxes will be added to the agreed Fee and reflected on your invoice.

i. You will pay sums due under this Agreement in full without any set-off, counterclaim, deduction or withholding (save as required by law).

j. Without prejudice to any other rights and remedies available to Ascential, Ascential will be entitled to charge you statutory interest (at the then-current rate) on any overdue amount under this Agreement, accruing on a daily basis from the due date until the date of actual payment of the overdue amount whether before or after judgment and compounding every ninety (90) days.

7. Time and Materials Charges

a. Where the Charges are calculated on a time and materials basis, the Order Form will show Ascential’s daily rate for each individual person which is calculated on the basis of an eight hour day worked during the hours of 9am to 5.30pm in the jurisdiction in which the Services are performed.

8. Intellectual Property Rights Ownership and Licence

a. You will retain ownership of or other rights of material in whatever form which is provided by you to Ascential in connection with the Services or Deliverables (‘Customer Materials’).

b. You grant Ascential and its affiliated companies and its and their officers, employees, directors, consultants and agents a fully paid-up, royalty-free, non-transferable licence to copy and modify the Customer Materials for the terms of this Agreement for the purposes of Ascential’s proper performance of its obligations and exercise of its rights under this Agreement.

c. Nothing in this Agreement will operate to transfer ownership of any intellectual property rights in or to any material in whatever form which is used by Ascential in connection with or incorporated into its performance of the Services or provision of Deliverables and in relation to which the intellectual property rights are owned by Ascential as at the date of this Agreement (‘Ascential Materials’).

d. Ascential and its licensors will retain ownership of all intellectual property rights in and to the Deliverables excluding the Customer Materials.

e. Ascential grants to you a worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of your proper enjoyment of the Services and the Deliverables in your business. You may sub-licence the Deliverables to companies within your corporate group from time to time. Otherwise you may not sub-licence, assign or otherwise transfer the rights granted in this clause 8(e) without Ascential’s prior written consent.

f. Without affecting the generality of clause 8(e) above (and except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties), you may not reproduce, modify, transfer, use to create derivative works, distribute, dispose of or otherwise use the Deliverables outside your corporate group. You may not reproduce, modify, transfer, exploit, distribute, dispose of or otherwise use the Deliverables in a manner that could compete with Ascential and you may not license, sell, rent, lease, transfer, assign or otherwise commercially exploit the Deliverables in any way.

9. Intellectual Property Warranties and Indemnities

a. Ascential warrants that the receipt or use of any Ascential Materials by you and your permitted licensees will not infringe the intellectual property rights of any third party. Ascential will keep you and your permitted sub-licensees indemnified against all costs, expenses, damages and losses awarded against or incurred or paid by you or your permitted sub-licensees as a result of any claim that your receipt or use of the Ascential Materials infringe a third party’s intellectual property rights.

b. Ascential will have no liability under the warranty or the indemnity given in clause 9(a) above to the extent that the alleged infringement arises from the combination of the Ascential Materials with the Customer Materials or any modification of the Ascential Materials other than by Ascential. Ascential will have no such liability where the alleged infringement is caused by Ascential complying with your specifications or express instructions.

c. You warrant that the receipt and use of the Customer Materials by Ascential and its affiliated companies and its and their officers, employees, directors, consultants and agents will not infringe the intellectual property rights of any third party. You will keep all of the foregoing indemnified against all costs, expenses, damages and losses awarded against or incurred or paid by any of them as a result of any claim that the Customer Materials infringe a third party’s intellectual property rights.

d. Where a party is required to indemnify the other party under the foregoing provisions of this Agreement, the indemnified party will forthwith notify the indemnifying party in writing of any claim against it in respect of which it wishes to rely on the indemnity. The indemnified party will allow the indemnifying party to (and the indemnifying party will at its own cost) conduct all negotiations and proceedings and settle the relevant claim. The indemnified party will provide the indemnifying party with such reasonable assistance as the indemnifying party may request in connection with the relevant claim and will not make any admission in relation to or attempt to settle such claim.

10. Confidentiality

a. Each of Ascential and you agree that it will not at any time during the Agreement and for a period of five (5) years after termination of this Agreement disclose to any person any of the other party’s confidential information. Confidential information means information that relates to or is provided by or on behalf of the other party and that is either marked confidential or is by its very nature clearly confidential.

b. Each of us may disclose the other’s confidential information to its affiliated companies and to its and their officers, employees, directors, consultants and advisers who need to know that information for the purposes of properly exercising that party’s rights or performing its obligations under this Agreement, provided that any such individual is aware of the confidential nature of the material and is bound by obligations of confidence at least as onerous as the ones in this Agreement.

c. Each of us may disclose the other’s confidential information as required by law, by a court of competent jurisdiction or by a governmental or regulatory authority.

d. The obligations of confidence set out above do not apply to information that is or becomes public knowledge other than by breach of this Agreement, that is received from a third party without obligation of confidence, that is independently developed by the receiving party without access to the relevant confidential information or that is required to be disclosed to potential acquirers of that party under equivalent obligations of confidence.

11. Term and termination

a. The rights and liabilities of each party under this Agreement will come into effect on the date specified on the Order Form and will continue for the period specified on the Order Form unless terminated earlier in accordance with its terms. Where no currency period is specified on the Order Form, this Agreement will continue until completion of the Services and delivery of the Deliverables procured under the relevant Order Form, unless terminated earlier in accordance with its terms.

b. Ascential may, with or without notice, cease its provision of the Services or terminate this Agreement in its entirety if you are delinquent in paying all or any portion of the Charges, provided that you have been served with a written demand for payment of the overdue amount and have not made payment within fourteen (14) days of your receipt of such notice.

c. Either party has the right at any time to terminate this Agreement immediately by giving written notice to the other in the event that the other commits a material breach of any of its obligations under this Agreement and has not remedied such breach (if capable of remedy) within fourteen (14) days of being required to do so by written notice.

d. Ascential may terminate this Agreement forthwith on written notice to you if you cease or threaten to cease to carry on business, are unable to meet your debts as they fall due, have an order made or a resolution passed for your winding-up, have an administrator, receiver or manager appointed, make any arrangement or composition with your creditors, or make an application for the protection of your creditors in any way.

12. Consequences of Termination

a. On termination or expiry of this Agreement:

i. in respect of any Services supplied for which no invoice has been submitted, Ascential may submit an invoice which will be payable immediately on receipt;

ii. each party will return or destroy (at the other party’s option and to the extent technologically possible) any of the other party’s confidential information (and in Ascential’s case any Customer Materials not used up in the provision of the Services and Deliverables) in its power, possession or control.

b. Termination or expiration of this Agreement or any part thereof will not affect the continuance in force of any provision of this Agreement or the relevant constituent part which is expressly or by implication intended to survive termination.

c. On termination of this Agreement for any reason other than an uncured material breach by Ascential, all committed unpaid Charges will become immediately due and owing in full. In addition, you will be liable for any collection costs (including without limitation legal fees and expenses, collection agency fees and expenses, court costs, collection bonds, and reasonable staff costs at standard billing rates for time spent in efforts to collect) incurred by Ascential or its agents to collect sums due and owing under an Agreement.

13. Disclaimers and Limitation of Liability

a. Nothing in this Agreement limits the liability of a party under the IPR indemnities given in clause 9 above or for a breach of its obligations of confidence set out in clause 10 above.

b. Nothing in this Agreement operates to exclude or limit a party’s liability for death or personal injury caused by its or its employees or subcontractors’ negligence, or for any fraudulent misrepresentation by any of the foregoing or for any other liability which cannot be excluded or restricted by law.

c. Save as expressly set out in this Agreement:

i. the Deliverables are provided on an ‘as is’ basis without guarantee of accuracy or completeness and all implied warranties or conditions of satisfactory quality, and fitness for a particular purpose are excluded to the fullest extent permitted by law;

ii. the Client is solely responsible for ensuring that the Deliverables are appropriate and suitable for its needs and that the assumptions (if any) set out in the Order Form are accurate; and

iii. the Deliverables do not constitute any form of advice, recommendation or arrangement by Ascential and must not be relied upon by you in making (or refraining from making) any specific investment or other business or personal decisions.

d. Subject to the foregoing, neither party will be liable to the other under or in connection with this Agreement for any indirect, special, economic or consequential damages, claims, losses or expenses of any kind arising out of or in connection with this Agreement and whether for breach of contract, tortious behaviour (including negligence) or any other cause of action. This limitation of liability applies to any damages or injury caused by any failure of performance, error, omissions, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure or theft of, destruction of, unauthorised access to, alteration of or use of content or data.

e. Subject always to the remaining provisions of this clause 13, Ascential’s total liability to you, whether in contract, tort (including negligence), for breach of statutory duty or otherwise arising under or in connection with this Agreement, will be limited to an amount equal to the total amount of Charges paid under this Agreement.

f. The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.

14. How we may use your personal Information

We will only use your personal information as set out in our Privacy Policy.

15. Anti-Bribery and Sanctions

a. You warrant that you will:

i. comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;

ii. put in place, comply with and maintain codes of conduct and anti-bribery and anti-corruption policies as are appropriate to meet your statutory responsibilities in this regard; and

iii. promptly notify Ascential of any request or demand for any undue financial or other advantage of any kind received by or on behalf of you in connection with this Agreement.

b. Ascential is part of an enlarged corporate group which pledges to trade legally and respect all laws including the Trade Sanctions imposed by EU and US Governments. Ascential operates a Group Sanctions Policy which means that Ascential cannot accept subscriptions or other orders from individuals or organisations based or residing in, or connected with, a country or organisation that is subject to EU or US Government sanctions. Ascential reserves the right to refuse to accept an order from any such person or organisation.

c. Notwithstanding anything else in this Agreement, breach by you of the foregoing Anti-Bribery and Sanctions provisions will be deemed a material breach of this Agreement.

16. General

a. The documents comprising this Agreement (together with any documents referred to therein or required to be entered into thereunder) contain the entire agreement and understanding between the parties and supersede all prior agreements, understandings or arrangements (both written and oral) relating to the subject matter of this Agreement and any such document.

b. The Agreement will apply to the exclusion of all other terms and conditions (including any which you purport to apply under any purchase order, confirmation of order, specification or other document).

c. Where and to the extent that you are entering into this Agreement on behalf of an organisation, you represent and warrant that you have the authority to bind such organisation. Any person who has access to any of the products or services which you procure from Ascential, by virtue of being designated by you as an individual user of the same, similarly agrees to be bound by the terms of this Agreement.

d. Notices required under this Agreement will be sent by email to the relevant party’s address on the Order Form or as otherwise agreed in writing for such purpose. Notice by email is deemed effective three hours from transmission. Ascential may also give notice to you via its website and such notice is deemed effective at the time at which it appears on the relevant website.

e. You acknowledge and agree that communication with Ascential may be electronic. Ascential may contact you by email or provide you with information by posting on its main website or one of its brand’s websites. You agree to this electronic means of communication and you acknowledge that any communications that Ascential sends to you electronically comply with any legal or contractual requirement that such communication be made in writing.

f. You may not assign, sub-license, subcontract or otherwise transfer to any third party (including any company within your corporate group, if applicable) any of your rights or obligations under this Agreement. Ascential may assign, sub-license, subcontract or otherwise transfer to any third party (including any Ascential Group company) any of its rights or obligations under this Agreement at any time and without notice.

g. In the event that any provision of this Agreement is held to be invalid or unenforceable, that portion shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, the remainder of this Agreement will remain valid and enforceable.

h. The official version of this Agreement is in the English language. Any translations of this Agreement are provided merely for convenience and will not be legally binding. In the event of any conflict between the English language version and any translations, the English version will prevail.

i. Where this Agreement uses the words ‘include’ and ‘including’, these are illustrative and not limiting.

j. This Agreement will not create, nor will it be construed as creating, any partnership or agency relationship between the parties.

k. You must effect and will maintain in place appropriate insurance cover for an amount sufficient to cover your liabilities under this Agreement, including all insurances required by law.

l. Each party acknowledges that in entering into this Agreement it has not relied on, and will have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person other than as expressly set out in the Agreement.

m. No person who is not a party to the Agreement will have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999 and the rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Agreement will not be subject to the consent of any third party.

n. Ascential will have no liability to you for any failure or delay in performing any obligation under this Agreement as a result of any event beyond its or its subcontractors’ reasonable control.

o. Ascential may revise this Agreement at any time by posting an update on its principal website. It is your responsibility to check that website from time to time and to review the most up-to-date version of this Agreement.

17. Choice of Law

a. This Agreement will be governed by and construed in accordance with English law and the courts of England will have exclusive jurisdiction to settle any disputes arising out of or in connection with this Agreement.

b. This choice of law and jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of intellectual property rights.