Business Sale Basecamp Limited General Terms of Business for the Provision of Services

1. Definitions and Interpretation

1.1 In these Terms of Business, unless the context requires otherwise, the following words and phrases shall have the meanings opposite them:

1.2 In these Terms of Business, unless the context requires otherwise:

1.2.1. Clause headings shall not affect the interpretation of these Terms of Business.

1.2.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.2.3. A clause, unless the context otherwise requires, is a reference to a clause to these Terms of Business.

1.2.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.2.5. A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that legislation or legislative provision.

1.2.6. A reference to writing or written includes email but excludes fax.

1.2.7. 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.

1.2.8. If there is a conflict between the provisions of the Written Proposal and these Terms of Business, then the provisions of these Terms of Business shall take precedence unless any term of the Written Proposal expressly provides otherwise.

2. Acceptance of Written Proposal

2.1. The Written Proposal constitutes an offer by BSB to provide the Services in accordance with these Terms of Business.

2.2. The Written Proposal shall be accepted on the Customer issuing a written acceptance of the Written Proposal to BSB, at which point the Agreement shall come into existence.

2.3. These Terms of Business apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which would otherwise be implied by trade, custom, practice or course of dealing.

3. Commencement and Duration
3.1. The Agreement shall commence on the Effective Date and shall continue, unless terminated otherwise in accordance with its terms, until the completion of the Services by BSB.

3.2. Notwithstanding the provisions of clause 3.1, BSB shall not be required to commence the provision of the Services until such time as any advance payment of the Charges has been paid to BSB by the Customer in accordance with clause 6 (Charges and Payment).

4. Supplier’s Responsibilities
4.1. BSB shall;
4.1.1. provide the Services, and deliver the Deliverables, in accordance with the Written Proposal;4.1.2. use reasonable skill and care when providing the Services;

4.1.3. maintain certification under the UK Government’s Cyber Essentials scheme;

4.1.4. obtain and maintain all necessary licences, permissions and consents which may be required for the provision or delivery of the Services; and

4.1.5. comply with all Applicable Laws.

4.2. BSB shall use all reasonable endeavours to meet any performance dates specified in the Written Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

4.3. If BSB’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, BSB shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.

4.4. The parties acknowledge and agree that in providing the Services BSB shall not:

4.4.1. provide the Customer with any regulated professional advice, including any advice in relation to taxation or in relation to any accounting, commercial, corporate finance or insurance matters and to the extent that the Customer requires such advice, the Customer acknowledges that it shall obtain such advice separately;

4.4.2. act as a deal broker;

4.4.3. arrange or progress the sale of the Customer’s business to any third party; or

4.4.4. be entitled to receive any commission payment arising from any sale of the Customer’s business.

4.5. BSB may on occasion refer the Customer to third parties for specialist advice. The Customer acknowledges and agrees that it shall retain sole responsibility for deciding whether to instruct such third parties. BSB shall not be responsible in any way for any loss or liability incurred by the Customer as a result of any decision to instruct any third party referred to the Customer by BSB.

4.6. Where the Customer obtains specialist advice from third party advisors BSB shall be entitled to rely on such advice without having any responsibility to verify its accuracy.

5. Customer’s Obligations
5.1. The Customer shall:

5.1.1. co-operate with BSB in all matters relating to the Services;

5.1.2. obtain and maintain all necessary licences, permissions and consents which may be required for the performance of the Customer’s obligations under the Agreement; and

5.1.3. comply with all Applicable Laws.

5.2. The Customer shall provide, in a timely manner, and in any event within 28 days of the date of request (or such alternative timescale as may be set out in the Written Proposal or agreed between the parties from time to time), such information for the provision of the Services as BSB may reasonably request and ensure that all information the Customer provides is accurate in all material respects. The Customer acknowledges and agrees that if the Customer fails to provide such necessary information in a timely manner, BSB shall be entitled to provide the Services based on the information available to them and to invoice the Customer for the Charges in accordance with clause 6 (Charges and Payment).

5.3. The Customer shall not disclose to any third party any advice, documentation, guidance or information provided by BSB, including the Deliverables, without the prior written consent of BSB. BSB reserves the right to withhold consent at its absolute discretion.

6. Charges and Payment

6.1. The Charges for the Services shall be set out in the Written Proposal.

6.2. BSB shall invoice the Customer for the Charges in the instalments specified in the Written Proposal. If no instalments are specified in the Written Proposal, BSB shall invoice the Customer for the Charges in advance of the commencement of the Services.

6.3. The Customer shall pay each undisputed invoice submitted to it by BSB within 7 days of receipt to a bank account nominated in writing by BSB from time to time.

6.4. If the Customer disputes any invoice, the Customer shall notify BSB in writing as soon as practicable, and in any event within 7 days of the date on which the invoice was received. If the Customer fails to notify BSB in writing within 7 days of the date on which the invoice was received, the invoice shall be deemed to have been accepted by the Customer. If a notice of dispute is issued within 7 days of the date on which the invoice was received, the parties shall negotiate in good faith to attempt to resolve the dispute promptly, and in any event within 28 days of the date on which the notice of dispute was received. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date as set out in clause 6.3.

6.5. If the Customer fails to make any payment due under the Agreement by the due date, then, without prejudice to any other right or remedy that BSB might have, BSB may charge interest on the overdue sum at the rate of 5% per annum above the Bank of England’s base rate from time to time, but at 5% per annum for any period where the base rate is below 0%, from the due date until payment of the overdue sum, whether before or after judgement. The parties acknowledge that the Customer’s liability under this clause is a substantial remedy for the purposes of section 9(1) of the Late Payment of Commercial Debts (Interest) Act 1998.

6.6. Unless the Written Proposal specifies otherwise, all sums payable to BSB under the Agreement:

6.6.1. are expressed exclusive of VAT, which the Customer shall be required to pay where applicable following receipt of a VAT invoice; and
6.6.2. 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).

7. Intellectual Property Rights

7.1. All Intellectual Property Rights in or arising out of or in connection with the Services and any Deliverables (other than Intellectual Property Rights in any Customer Materials) including any Intellectual Property Rights in any reports, written advice and other materials prepared by BSB shall be owned by BSB.

7.2. BSB grants to the Customer, or shall procure the direct grant to the Customer of a perpetual, worldwide, non-exclusive, royalty-free licence to copy the Deliverables including any reports, written advice and other materials prepared by BSB for the purpose of receiving and using the Services and the Deliverables for internal business purposes in accordance with clause 5.3 (Customer’s Obligations).

7.3. The licence granted by BSB to the Customer under clause 7.2 shall only be transferable to third parties with the prior written consent of BSB in accordance with clause 5.3 (Customer’s Obligations).

7.4. All Customer Materials are, and shall remain, the exclusive property of the Customer.

7.5. The Customer grants BSB a worldwide, non-exclusive, royalty-free licence to use any Customer Materials for the term of the Agreement for the purpose of providing the Services to the Customer.

8. Communications
8.1. Unless the Customer provides BSB with written instructions to the contrary, BSB shall take instructions in relation to the Services from any director, officer or partner of the Customer or from any authorised representative of any director, officer or partner of the Customer (each an “Instructing Party”). The Customer shall be entitled to assume that each Instructing Party has the requisite authority to issue instructions to the Customer.

8.2. BSB shall not discuss the Services or take instructions from any individual other than an Instructing Party without the prior written consent of an Instructing Party.

9. Data Protection
9.1. The Customer is the data controller and BSB is the data processor of any personal data which BSB processes on behalf of the Customer for the purposes of providing the Services (“Personal Data“).

9.2. BSB shall:

9.2.1. except as required by law, process the Personal Data only in accordance with the Customer’s documented reasonable and lawful instructions from time to time, for the purposes of providing the Services and for no other purpose;
9.2.2. implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of the processing the Personal Data taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing;

9.2.3. ensure that persons authorised by BSB to process the Personal Data are under appropriate confidentiality obligations in respect of the Personal Data;

9.2.4. at the Customer’s cost, provide reasonable assistance on request to the Customer in complying with the rights of data subjects and with the Customer’s statutory obligations relating to data security, data breach notification, data protection impact assessments and related prior consultation procedures taking into account the nature of processing and the information available to BSB;

9.2.5. save only to the extent required by law, after expiry or termination of the Agreement return to the Customer or destroy, at the request of the Customer at the Customer’s cost, all Personal Data in the possession or control of BSB;

9.2.6. at the Customer’s cost, make available to the Customer such information as is reasonably necessary to demonstrate BSB’s compliance with this clause 9;

9.2.7. at the Customer’s cost, allow the Customer to appoint an independent auditor to audit and inspect BSB’s compliance with this clause 9. Such audit may occur once per calendar year, unless the Customer can demonstrate that it has genuine suspicion that BSB has breached its obligations in this clause 9. Such an audit shall be carried out during business hours and the Customer shall provide at least 30 Business Days’ notice of any such audit, unless the Customer can demonstrate that it has genuine suspicion that BSB has breached its obligations in this clause 9 in which case the Customer shall provide at least 3 Business Days’ notice of any such audit; and

9.2.8. not transfer the Personal Data to a country outside the EEA without the authorisation of the Customer unless the relevant territory ensures an adequate level of protection or appropriate standard contractual clauses approved by the UK Information Commissioner have been put in place or other appropriate safeguards have been implemented.

9.3.  If the Customer requests BSB to transfer the Personal Data outside the EEA, the Customer shall ensure that appropriate safeguards are in place to permit the transfer of the Personal Data outside the UK or EEA and that the appropriate data subjects have been properly informed of the proposed transfer.

9.4.  If requested by BSB, the Customer shall provide BSB with such evidence as BSB requests to demonstrate that any documented instructions given by the Customer are in compliance with the Data Protection Laws, including but not limited to circumstances where the Customer instructs BSB to transfer the Personal Data outside the UK or EEA.

9.5.  BSB shall not authorise a third party (subcontractor) to process Personal Data without the prior written permission of the Customer (not to be unreasonably withheld or delayed). If such permission is granted, the subcontractor’s contract must incorporate terms which are substantially the same as those set out in this clause 9.

10. Confidential Information
10.1. Both parties undertake:
10.1.1. to treat and keep the Confidential Information of the other which it has obtained or received as a result of discussions leading up to or the entering into of the Agreement or which it obtains or receives in performance of the Agreement as secret and confidential and not, without the prior written consent of the other party (which may be given on such terms as that other party considers appropriate) directly or indirectly communicate or disclose, or allow to be communicated or disclosed, (whether in writing or orally or in any other manner) any Confidential Information to any other person other than to its officers, employees, professional advisors and agents who need to know it strictly for the purposes of considering, evaluating or performing the Agreement; and

10.1.2. not to use the Confidential Information for any purpose other than solely in connection with the performance of the Agreement and in particular not to use the Confidential Information for any competitive or commercial purpose.

10.2. Each party shall ensure that each of its officers, employees, professional advisers and agents to whom the Confidential Information is to be made available are made fully aware of the confidentiality obligations set out in the Agreement and each party shall procure that such persons will observe the terms of this clause.

10.3. Each party shall, at its own expense, take all reasonable and appropriate steps to enforce any duty of confidence owed to it by any person to whom the Confidential Information is made available insofar as such enforcement appears to be necessary for the protection of the confidentiality of the Confidential Information.

10.4. The provisions of clause 10.1 shall not apply to any Confidential Information which:
10.4.1. is required to be disclosed by law or, to the extent relevant, the regulations of any stock exchange or listing authority or the Panel on Takeovers and Mergers or any other governmental or regulatory organisation and in those circumstances only after prior consultation with the other party; or
10.4.2. is disclosed with the prior written consent of the other party.

10.5.The provisions of this clause shall continue to apply after the termination of the Agreement.

10.6. Each party warrants that it has not made or published any statement relating to, or disclosed, any Confidential Information prior to the date of the Agreement which would constitute a breach of clause 10.1 if it had occurred after the date of the Agreement.

11. Limitation of Liability
11.1. Nothing in the Agreement limits or excludes liability for:

11.1.1.  death or personal injury caused by breach of duty;

11.1.2.  fraud or fraudulent misrepresentation; or

11.1.3. any other liability that cannot lawfully be limited or excluded.

11.2.  Subject to clause 11.1 and 11.3, BSB’s total liability to the Customer whether arising from delict (including negligence), breach of contract or otherwise under or in connection with the Agreement in any 12 month period shall in no event exceed the value of the Charges paid by the Customer for the supply of the Services in that 12 month period.

11.3.  Subject to clause 11.1, BSB shall have no liability whatsoever to the Customer whether arising from delict (including negligence), breach of contract or otherwise for loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill, or any special, indirect or consequential loss.

11.4. BSB’s duties are owed to the Customer only and BSB shall have no responsibility or liability to any other person in connection with the Services and/or the Deliverables provided to the Customer under the Agreement. Any Services or Deliverables provided to the Customer are for the benefit of the Customer only and may not be relied on by any other person without BSB’s prior written consent.

11.5. The Customer shall retain sole responsibility for deciding on what course of action to take for the management, conduct and operation of its business, including for deciding on the use it makes of, the extent to which it relies on, and the extent to which it implements the advice or recommendations made by BSB in the course of providing the Services.

12.  Termination
12.1.  Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if the other party:
12.1.1. commits a material breach of any other term of the Agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
12.1.2. fails to make payment of any sum due under the Agreement by the due date for payment and fails to remedy that breach within a period of 14 days after being notified in writing to do so;

12.1.3. passes a resolution for its winding up;

12.1.4. is subject to an order or notice issued by a court or other authority of competent jurisdiction for its winding up or striking off;

12.1.5. has an administrator appointed in respect of it or is the subject of a notice of appointment of an administrator filed at any court;

12.1.6. has a receiver or a provisional liquidator appointed over any of its assets, undertaking or income;

12.1.7. 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 (“IA 1986“) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986; or

12.1.8. is subject to any event which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses 12.1.3 to 12.1.7 (inclusive).

12.2. On termination of the Agreement by the Customer in accordance with clause 12.1, BSB shall repay to the Customer any advance payment (or such portion thereof) made by the Customer relating to Services which have not been provided by BSB in accordance with the Agreement.

12.3. On termination of the Agreement for whatever reason:
12.3.1. the Customer shall immediately pay to BSB all of BSB’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, BSB may submit an invoice, which shall be payable immediately on receipt;

12.3.2. each party shall, at the request of the disclosing party, return to the disclosing party or destroy or erase any Confidential Information of the disclosing party which it has in its possession in tangible or electronic form exclusively for purposes connected with the Agreement, save to the extent it is necessary to retain such Confidential Information for the purpose of complying with any Applicable Laws; and

12.3.3. any provision of the Agreement that expressly or by implication is intended to come into force or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect including the provisions of clauses 5 (Customer’s Obligations), 6 (Charges and Payment), 7 (Intellectual Property Rights), 9 (Data Protection), 10 (Confidential Information), 11 (Limitation of Liability), 12 (Termination), 17 (Waiver), 21 (Third Party Rights) and 22 (Governing Law and Jurisdiction).

12.4. Termination or expiry of the Agreement shall not affect any of the 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 any breach of the Agreement which existed at or before the date of termination or expiry.

13. Force Majeure

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.

14. Assignation and other dealings
14.1. Subject to the provisions of clause 14.2, neither party shall assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement without the prior written consent of the other party.

14.2. Notwithstanding the provisions of clause 14.1, BSB shall be entitled to:

14.2.1. transfer its rights and obligations under the Agreement as part of a transaction involving a change of control of BSB or a sale or other disposition of all or substantially all of the business or operations of BSB; and
14.2.2. sub-contract the whole or any part of the Agreement without the prior written consent of the Customer provided that BSB remains responsible for the acts and omissions of its sub-contractors and their respective employees, agents and invites as if they were its own.

15. Notices
15.1. Any notice given to a party under or in connection with the Agreement shall be in writing and shall be:

15.1.1. delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
15.1.2. sent by email to such address as may from time to time be notified to the party giving such notice or other communication by the party to whom such notice or other communication is given.

15.2.  Any notice shall be deemed to have been received:

15.2.1. if delivered by hand, at the time the notice is left at the proper address;

15.2.2. if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting; or

15.2.3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 15.2.3, business hours means 9.00am to 5.00pm on a Business Day.

16. Variation

No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17.  Waiver
17.1.  A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

17.2. A failure or delay by a party to exercise any right or remedy provided under the Agreement 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 Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

18. Entire Agreement
18.1. The Agreement 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.

18.2.  Each party acknowledges that in entering into the Agreement 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 Agreement.

19. Severance
19.1. If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected. If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend that provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
19.2. Any modification to or deletion of a provision or part-provision under this clause 19 shall not affect the validity and enforceability of the rest of the Agreement.

20.  No partnership or agency

Nothing contained in the Agreement, and no action taken by the parties pursuant to the Agreement, is intended or shall be deemed to constitute a relationship between the parties of partnership, joint venture, principal and agent or employer and employee. Neither party has, nor may it represent that it has, any authority to act or make any commitments on the other party’s behalf or otherwise bind the other party in any way.

21. Third party rights

The Agreement does not give rise to any rights under The Contract (Third Party Rights) Scotland Act 2017 to enforce any term of the Agreement.

22. Governing Law and Jurisdiction
22.1. The formation, existence, construction, performance, validity and all aspects whatsoever of the Agreement or any term of it shall be governed by the laws of Scotland.
22.2. The courts of Scotland shall have exclusive jurisdiction to settle any disputes (including non-contractual disputes or claims), which may arise out of or in connection with the Agreement. The parties irrevocably agree to submit to that jurisdiction.