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ACUITY GROUP TERMS AND CONDITIONS

Acuity Group Ltd, a company incorporated in England under company number 6400611 having its registered office at Littlehaven House, Littlehaven Lane, Horsham.  RH12 4HT (the “Acuity).

Recitals

Acuity has specialist skill and expertise in providing business advisory and consultation services, offering a range of products and services to enable its clients to meet their Governance, Risk and Compliance needs and or requirements.

Acuity represents it’s experience in the supply of business advisory and consulting services, expressly in relation to the services, offerings and solutions to enable our client to meet their Governance, Risk and Compliance needs and or requirements.

Based upon Acuity's representations, as detailed above, our clients agreed to enter a relationship with Acuity by which Acuity may supply Services and Deliverables to the terms agreed.

Each supply of Deliverables and/or Services will be documented in Statements of Work which, all read together with a Master Services Agreement, will form one contract between the Parties, as described below.

Definitions

For the purposes of our Terms and Conditions, the capitalised terms shall have the meanings set forth below:

‘‘Acceptance Criteria’’ means those criteria as set out in our Master Services Agreement.

"Acuity Personnel" means all employees, staff, other workers, agents and consultants, of Acuity and/or any sub-contractor who are engaged in the provision of the Services and/or Deliverables, from time to time.

‘‘the Agreement’’ means this Master Services Agreement together with any related Statements of Work entered into by the Parties.

“Client Data” shall mean any data and/or information provided to Acuity by our client or its employees or created by or generated by use of the Services.

“Approved Third Parties” shall mean consultants, partners, representatives, subcontractors and other individuals and entities not employed by or affiliated to Acuity who are authorised by our client to provide any part of the Services on behalf of Acuity.

“Associated Persons” shall mean all employees, directors or Approved Third Parties acting for or on behalf of Acuity.

“Business Day” means a day other than a Saturday, Sunday or public holiday in England & Wales when the banks in London are open for business.

“Commencement Date” means the date set out in a Statement of Work.

“Confidential Information” shall mean information in any form of medium, whether disclosed orally or in writing in our Master Services Agreement (together with any reproductions of such information) including (but not limited to) information relating to the business affairs, personnel, finances, systems, processes, methods of operation, plans, products, developments, trade secrets, know how, clients or suppliers of the disclosing party or any member of its group or any details defined in our Master Services Agreement, Personal Data, client Data or any other information that is proprietary or confidential and is labelled or identified as such.

‘‘Control’’ shall be defined in accordance with section 1124 of the Corporation Tax Act 2010, and the expression ‘Change of Control’ shall be construed accordingly.

"Deliverables" means the outcomes of the Services and/or any products, documents and/or materials provided by Acuity to our client as specified in a relevant Statement of Work.

“DPA” shall mean the Data Protection Act 1998.

"Effective Date" means the date of signature of our Master Services Agreement.

“Fees” shall mean the fees payable by our client to Acuity for the use of the Services and/or Deliverables as specified in a relevant Statement of Work.

‘’Holding Company’’ or a ‘Subsidiary’ means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.

‘‘Key Personnel’’ shall mean Charles Critchley, Naushad Saboor and Stephen Hall and any individuals identified as Key Personnel in a Statement of Work or any replacement individuals appointed by Acuity.

‘‘Milestones’’ shall mean the Services and/or Deliverables as defined in the relevant Statement of Work.

“Personal Data” shall have the meaning set out in s.1 (1) of the DPA.

“Services” shall mean the services and Deliverables to be provided by Acuity to our client as set out in a Statement of Work and includes any services which are incidental or ancillary to the Services, Deliverables or other outcomes.

“Statement of Work” means an agreed statement of work in the form or substantially in the form set out in ‎Schedule 1 (Statement of Work Template).

“Term” shall mean the term of the Agreement.

“Third Party Products” means computer hardware, computer software, digital and hardcopy files, photos, music, video, and all other technology, creative work, or other materials owned, licensed or distributed by third parties (including suppliers of Acuity).

Acuity’s obligations

Acuity shall ensure that the Services and Deliverables provided by Acuity:

  • Fully comply with the terms of the Agreement;
  • Are fit for any purpose expressly or implicitly made known to Acuity by our client and/or its Group Companies,
  • Are free from defects in design, and
  • Are in accordance with Good Industry Practice.

Acuity shall:

  • Before the Effective Date, obtain and maintain during the term of the Agreement, all necessary licences and consents necessary to provide the Services and Deliverables,
  • Comply with all applicable laws and recognised industry standards in the performance of its obligations under the Agreement,
  • Notify our client in writing immediately upon a Change of Control of Acuity, and Comply with any additional obligations imposed on it as agreed in a Statement of Work.

Acuity Personnel

Acuity shall use, and shall procure that any of its sub-contractors (the use of such sub-contractors shall only be upon the prior written consent of our client) shall use, suitable, appropriately qualified, experienced and competent personnel in the provision of the Services and/or Deliverables.

Acuity shall be fully responsible for the management of, and the acts and omissions of, all Acuity Personnel and any of its sub-contractors in the provision of the Services and/or Deliverables.

Our client may, on reasonable notice to Acuity require the immediate removal from its premises and/or the provision of the Services, of any member of Acuity Personnel who, in our clients reasonable opinion, is not performing to an acceptable standard or represents a threat our client’s security or confidentiality or is in breach of applicable policies or our clients or is otherwise disruptive to our client’s business or reputation.  The exercise of this right shall not relieve Acuity of its obligations under the Agreement.

Acuity shall use all reasonable endeavours to ensure the continuity of Acuity Personnel.

Acuity’s Warranties and Representations

Acuity hereby represents and warrants that:

  • it will provide the Services and Deliverables contemplated by the Agreement in accordance with Good Industry Practice;
  • it and its personnel have (and shall maintain during the term of the Agreement) the skills, qualifications and resources needed to meet its obligations under the Agreement,
  • has and will maintain all necessary licences, consents and permissions necessary for the proper and lawful performance of its obligations under the Agreement;
  • it has the full right and authority to enter into the Agreement;

Invoicing & Payment

In consideration of the provision of the Services, our clients agree to pay to Acuity the Fees, as specified and on the terms set out in the relevant Statement of Work.

Acuity shall invoice our clients for the Fees at the intervals specified, or on the achievement of the Milestones indicated in the relevant Statement of Work. If no intervals are specified, Acuity shall invoice after the end of each month for Services and/or Deliverables performed or delivered during that month in accordance with the relevant Statement of Work.

Payment will be made thirty (30) calendar days from the date of receipt of Acuity’s invoice and will not delay or withhold payment of any part of the invoice that is not disputed.

Change Control

Either party may propose changes to the scope or execution of the Services and/or Deliverables, but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect those changes will have on the relevant Statement of Work.

If our client wishes to make a change to the Services and/or Deliverables:

  • it shall notify Acuity, providing as much detail as is reasonably necessary to enable Acuity to prepare the draft Change Order; and
  • Acuity shall, within 24 hours of receiving a change request, provide a draft Change Order to our client.

If Acuity wishes to make a change to the Services and/or Deliverables, it shall provide a draft Change Order to our client. 

If Acuity submits a draft Change Order in order to comply with any applicable safety or regulatory requirements and such changes do not affect the nature, scope of, or charges for the Works, our clients shall not unreasonably withhold or delay consent to it.

If the parties agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Statement of Work.

Insurance

For the Term and for a period of one (1) year thereafter, Acuity shall hold professional indemnity insurance cover with a reputable insurance company to an amount of £1M to cover the liability assumed by it under the  Agreement.

Confidentiality

Both parties undertake, for the duration of the Agreement and afterwards, to keep strictly confidential all Confidential Information and unless required by law, not to make it available to any third party other than as expressly permitted herein. Neither party shall use the Confidential Information for any purpose other than the proper performance of their obligations under the Agreement.

The obligations of confidentiality shall not apply to Confidential Information that:

  • is or becomes publicly known other than through an act or omission of the receiving party;
  • was in the receiving party’s lawful possession before the disclosure;
  • is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
  • is independently developed by the receiving party, which independent development can be shown by written evidence; or
  • is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

Each party undertakes to ensure that all its employees, agents, consultants, partners, representatives, subcontractors and other third parties to whom it may be entitled to disclose Confidential Information under the Agreement shall be bound by obligations of confidentiality no less onerous than imposed under the Agreement.

Term and Termination

Unless terminated earlier our Master Services Agreement shall take effect from the Effective Date and shall continue in force for an initial term of two (2) years.  Each Statement of Work shall take effect from the relevant commencement date and terminate or expire (as the case may be):

  • when the parties have fulfilled their obligations, as agreed and set out within it;
  • at the expiry date documented within it;

Our clients may terminate our Master Services Agreement, the Agreement and/or any Statement of Work for any reason upon thirty (30) days prior written notice.

Without prejudice to any other remedies available to it by operation applicable regulation or law, either party may terminate this Master Services Agreement, the Agreement and/or any Statement of Work immediately if:

  • the other party fails to pay any amount due under the Agreement, save for amounts disputed in good faith, on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment;
  • the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of five (5) Business Days after being notified in writing to do so;
  • the other party repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;
  • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

On termination or expiry of the Agreement:

All existing Statements of Work will not automatically terminate but may be terminated on five (5) Business Days’ notice.

Acuity shall immediately deliver to our client all Deliverable documents or other materials contemplated by the Agreement (whether or not complete) and return all of our client Data, Confidential Information and any other materials, documents, programmes or other items belonging to our client, its Group Companies.

Termination or expiry of the Agreement and/or a Statement of Work shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of a breach of the Agreement which existed at, on or before the date of termination or expiry of the Agreement.

General

Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party, the agent of another party for any purpose.  No party shall have authority to act as agent for, or to bind the other party in any way.

No variation of the Agreement shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.

A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given.  No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise.  No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.

Any notice given by one party to another under the Agreement shall be in writing, delivered by hand or by prepaid first class or special delivery post to the address given at the start of this Master Services Agreement.

Unless specifically provided otherwise, rights and remedies arising under the Agreement are cumulative and do not exclude rights and remedies provided for by law.

The Agreement may be executed in any number of counterparts, each of which when executed shall be an original and together shall constitute one and the same instrument.

Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including strikes; lock-outs or other industrial disputes; failure of a utility service or transport or telecommunications network or the internet; act of God; war; riot; civil commotion; malicious damage; compliance with any law or governmental order, rule, regulation or direction; accident; breakdown of plant or machinery; fire, flood, or storm; or default of customers or sub-contractors (Force Majeure). In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for one (1) month, the Party not affected may terminate the Agreement by giving thirty (30) days’ written notice to the other Party.

The Agreement (and for the avoidance of doubt, the Statements of Work contemplated by it) 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.

Each Party agrees that it shall have no remedies in respect of any statement or representation (whether made innocently or negligently) that is not set out in the Agreement.

The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.

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 Agreement or its subject matter or formation.

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