1.1 Terms – These terms apply to the delivery of consultancy services by us to you under the engagement letter which encloses these terms and records the engagement between you and us (the “Engagement Letter”). These terms together with the Engagement Letter form the entire agreement between you and us. If anything in these terms is inconsistent with the Engagement Letter, these terms take precedence, unless the Engagement Letter specifically amends any of them.
1.2 Commencement – The Agreement will start on the date that you sign and return the Engagement Letter.
1.3 Interpretation - In this Agreement the following words and expressions have the meanings given to them below:
Services – the services to be delivered by us and as set out in the Engagement Letter;
Agreement – the contractual agreement formed by the Engagement Letter and these terms;
We, us (and derivatives) – refers to either Lightbulb Credit Ltd a company incorporated in England with registered number 11018627 and having its registered office at Bramley House Bramley Road, Long Eaton, Nottingham, England, NG10 3SX or such other associated company of Lightbulb Credit Ltd named as the contracting party in the Engagement Letter;
Lightbulb Persons - means the contracting party, each and all of our directors, employees and agents, together with any other body associated with us and each and all of its directors, employees and agents and “Lightbulb Person” shall mean any one of them.
you (and derivatives) – the party or parties to this Agreement (excluding us), being the addressee (or addressees) of the Engagement Letter; and
Other Beneficiaries -any person or organisation identified in and for whom you sign the Engagement Letter (other than you) as a beneficiary of the Services or who is otherwise identified as an Other Beneficiary by written agreement between you and us.
2.1 Services – We will perform the Services with reasonable skill and care. You confirm that the scope of these Services as set out in the Engagement Letter is sufficient for your purpose. The Services are provided solely for you for the purpose set out in the Engagement Letter.
2.2 Disclosure – You may not disclose any materials delivered by us to you under the Agreement or make the benefit of the Services available to anyone else or refer to the contents of any material delivered by us or the findings of our work in performing the Services, except (i) as stated in the Agreement, (ii) with our prior written consent on terms to be agreed, (iii) where required by law or regulation, or (iv) to your auditors, lawyers or group members as long as you tell them, in advance, that we accept no liability to them and that no onward disclosure may be made.
2.3 Liability to you alone – We accept no liability to anyone, other than you, in connection with our Services, unless otherwise agreed by us in writing. You agree to reimburse us for any liability (including legal costs) that we incur in connection with any claim by anyone else in relation to the Services (including without limitation any credit rating agency to whom we may make any submission or deliver any information on your behalf) where such claim arises in respect of information that you have provided to us.
2.4 Changes – Either we or you may request a change to the Services or the Agreement. A change will be effective only when agreed in writing.
2.5 Extent of Services – In performing the Services, we will not be (i) carrying out an audit or other assurance engagement in accordance with applicable professional standards, or (ii) attempting to detect fraud or other wrongdoing.
2.6 Reliance and Communication - We may rely on any instructions, requests or information supplied, orally or in writing, by such persons whom you specify in the Engagement Letter (or otherwise notify to us in writing) as being authorised by you to communicate with us for such purposes and may rely on communications that on their face are provided to us by such persons. We may communicate with you by electronic mail where any such person wishes us to do so, on the basis that in consenting to this method of communication you accept the inherent risks, that to the extent permitted by law we may intercept such communications in order to monitor them for internal compliance or other statutory purposes, and that you shall perform virus checks. We may at your request send documents to an electronic storage facility hosted or controlled by you or at your direction, in which event you shall be responsible for security and confidentiality at such facility.
2.7 No Liability for Information - We may receive information from you or from other sources in the course of delivering the Services. To the fullest extent permitted by law, we shall not be liable to you for any loss or damage suffered by you arising from fraud, misrepresentation, withholding of information material or relevant to the Services or required by us, or other default relating to such information, whether on your part or that of the other information sources, unless such fraud, misrepresentation, withholding or such other default is evident to us without further enquiry.
2.8 No Guarantee or Warranty - WE DO NOT GUARANTEE OR WARRANT THE OUTCOME WITH ANY THIRD PARTY OF ANY OF OUR SERVICES AND YOU ACKNOWLEDGE AND ACCEPT THAT NEITHER WE NOR ANY OTHER LIGHTBULB PESON HAS ANY RESPONSIBILITY FOR ANY DECISION WHICH MAY BE TAKEN BY ANY CREDIT RATING AGENCY FOLLOWING THE MAKING OF ANY SUBMISSION TO THEM OR PROVISION OF INFORMATION TO THEM ON YOUR BEHALF AS PART OF THE SERVICES.
3. YOUR RESPONSIBILITIES
3.1 Information – In order for us to properly provide the Services you will make sure that (i) any information given to us by you, or anyone else working with or for you, is (a) given promptly, (b) accurate and (c) complete; and (ii) any assumptions are appropriate. We will not verify any information given to us relating to the Services but we may, but are not obliged to, ask you to verify any information you provide to us or that we may make available directly or in any submission to any credit rating agency on your behalf. Whenever you deliver information to us, you warrant to us at that time that it is accurate and complete (except to the extent otherwise identified in writing to us at the time of delivery).
3.2 Supply of Information - You shall inform us of any information or developments which may come to your notice and which might have a bearing on the Services. You shall supply information in response to our enquiries (if any) to enable us to comply with our statutory responsibilities to make disclosures to relevant authorities in respect of money laundering and any other criminal activity that we may encounter during performance of the Services and any such disclosures may include Confidential Information (as defined in 5 below).
3.3 Your obligations – Our performance depends on you performing your obligations under the Agreement. We are not liable for any loss arising from you not fulfilling your obligations.
4.1 Payment for services – You agree to pay us for our Services as set out in the Engagement Letter (together with any taxes specified in 4,2, the “Fees”).
4.2 Taxes – You will also pay any taxes, including VAT, that are due in relation to our Services. You will pay us the full amount of any invoice, regardless of any deduction that you are required by law to make.
4.3 Invoices and payment – We will invoice you our Fees as set out in the Engagement Letter and all invoices are payable within 7 calendar days of the date of the invoice. If you do not pay an invoice on time we may charge you interest at statutory rate from time to time in force (this rate applying after as well as before any court award or judgement in our favour in respect of outstanding balances).
5.1 Confidential information – We may acquire sensitive information concerning your business or affairs while delivering the Services (“Confidential Information”). We shall preserve the confidentiality of Confidential Information and, save as set out below we shall not disclose it beyond those of us involved in delivering the Services (which may include other Lightbulb Persons) and to any credit rating agency identified in the Engagement Letter (or otherwise agreed in writing between us) and where you have provided a letter of authority to such agency for us to furnish them with information on your behalf. We shall be entitled to comply with any requirement of English law or regulation. We may remove, or arrange for the removal of, names and any other identifiers from Confidential Information and then use such anonymised information for lawful purposes chosen at our discretion. This clause shall not prohibit our disclosure of Confidential Information, in confidence, to our professional indemnity insurers or advisers. The above will not apply to information which (i) is publicly available, or (ii) has been received from someone else who owes no duty of confidence in relation to it, or (iii) was already known by the receiving party.
5.2 Referring to you and the Services – We may wish to refer to you and the Services we have performed for you when marketing our services, we and they may also wish to use your company logo when citing our experience in proposal documents. You agree that we and they may do so, as long as we do not disclose your Confidential Information.
5.3 Performing services for others – You agree that we may perform services for your competitors or other parties whose interests may conflict with yours, as long as we do not disclose your Confidential Information.
6. INTELLECTUAL PROPERTY RIGHTS
Where there are any intellectual property objects in any materials created under the Services, we will own the intellectual property rights in those materials, and to the extent that any information or materials you provide to us includes intellectual property rights owned by or licensed to you hereby grant us a non-exclusive, non-transferable licence to use such intellectual property for the purposes of performing the Services and for our own internal purposes.
7. DATA PROTECTION
7.1 Your processing of personal data – You warrant that all personal data that you transfer to us in connection with the execution of the Services and the Engagement Letter will be collected, processed, and held by you in accordance with the provisions and principles of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”).
7.2 Our processing of personal data - All personal data that we may use will be collected, processed, and held in accordance with the provisions and principles of GDPR. We will take the appropriate technical and organisational measures in order to protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction of or damage to the personal data in accordance with the GDPR.
7.3 Loss of personal data – In the event of loss of personal data, data breach or performance of a data protection impact assessment, each party will respond to any reasonable request for assistance from the other.
7.4 Requests and breaches – each of you and us shall notify each other promptly (i) upon receiving a request from a data subject, or if they receive any claim, complaint or allegation relating to the processing of personal data; (ii) upon becoming aware of any breach leading to the destruction, loss or unlawful disclosure of personal data in their possession.
7.5 Notification – you will notify us promptly if you acquire knowledge of an infringement of the GDPR regarding the processing of personal data referred to in this clause 7.
8.1 Specific types of loss – You and the Other Beneficiaries agree that we will not be liable for (i) loss or corruption of data from systems, (ii) loss of profit, goodwill, business opportunity, anticipated savings or benefits or (iii) indirect or consequential loss.
8.2 Our liability – You and the Other Beneficiaries agree that we will be liable only when we are at fault for our actions or omissions. Our total liability (including interest) to you and the Other Beneficiaries for all claims connected with the services or the Agreement (including but not limited to negligence but not for any claim for fraud or other deliberate breach of duty) is limited to twice the fees payable for the Services or the actual damages whichever is the lesser. It is agreed that our fees have been determined in consideration of, and reflect, the limitations set forth in this clause. Any parts of the Agreement which do or may exclude or limit our liability in any respects shall not apply beyond the extent permitted by law.
8.3 Sharing of limit – Where we agree in writing to accept liability to more than one party, the limit on our liability in clause 8.2 will be shared between them, and it is up to those parties how they share it.
8.4 No claims against individuals – You and the Other Beneficiaries agree to bring any claim in connection with the Services only against us, and not against any individual, including any other Lightbulb Person, however described.
8.5 Restriction on claims – Any claim from you or Other Beneficiaries in respect of loss or damage suffered as a result of, arising from or in connection with the Agreement, whether in contract or tort or under statute or otherwise, must be made within:
i. If Services have been delivered, within four years of the date of the activity giving rise to the claim;
ii. if the Agreement has been terminated, within four years of the date of termination (subject to (i) above);
iii. if the claim relates to our unauthorised disclosure of Confidential Information, within four years of the date on which the unauthorised disclosure took place,
and in any of these cases that shall be the date when the earliest cause of action (in contract or tort or under statute or otherwise) shall be deemed to have accrued in respect of the relevant claim. For the purposes of this clause a claim shall be made when court proceedings are commenced.
8.6 Third Parties – If you breach any of your obligations under the Agreement and there is any claim made or threatened against us by a third party, you shall compensate us and reimburse us for and protect us against any loss, damage, expense or liability incurred by us which results from or arises from or is connected with any such breach and any such claim. If any payment is made by you under this clause you shall not seek recovery of that payment from us at any time. In this clause “us” shall include all Lightbulb Persons and “you” shall include Other Beneficiaries.
9.1 Retention – We may retain copies of all materials relevant to the Services, including any materials given to us by you or on your behalf.
9.2 Release – We will not release materials which belong to us (including any internal or working papers) unless we have specifically agreed to do so. We may require a release letter from the recipient as a condition of disclosure.
10.1 Immediate notice – Either we or you may end the Agreement immediately by giving written notice to the other if (i) the other materially breaches it and does not remedy the breach within five business days upon receipt of a notice, (ii) the other is or appears likely to be unable to pay its debts or becomes insolvent or (iii) the performance of it (including the application of any fee arrangements) may breach a legal or regulatory requirement.
10.2 30 days’ notice – Either we or you may end the Agreement on 30 calendar days’ written notice.
10.3 Consequences of Termination – Termination under this clause does not affect any rights that may be accrued for either you or us before termination and all sums due to us shall become payable in full when termination occurs.
11. LAW AND JURISDICTION
The Agreement shall in all respects be subject to and governed by English law and all disputes arising on any basis from or under the Agreement (whether in contract or otherwise) shall be subject to the exclusive jurisdiction of the English courts.
12.1 Matters beyond reasonable control – No party will be liable to another if it fails to meet its obligations due to matters beyond its reasonable control.
12.2 Sub-contracting – we may delegate or sub-contract any part of the Services to another Lightbulb Person, provided that we alone shall remain responsible for their activities which shall form part of the Services and any claim you may have in respect of the Services will only be against us and not any other Lightbulb Person.
12.3 Entire agreement – The Agreement forms the entire agreement between the parties in relation to the services. It replaces any earlier agreements, representations or discussions. No party is liable to any other party (whether for negligence or otherwise) for a representation that is not in the Agreement.
12.4 Your actions – Where you consist of more than one party, an act or omission of one party will be regarded as an act or omission of all.
12.5 Severability - Each clause or term of the Agreement constitutes a separate and independent provision. If any provisions of the Agreement are judged by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect.
12.6 Capacity - You agree to and accept the provisions of the Agreement on your own behalf and as agent for Other Beneficiaries. You shall procure that any Other Beneficiaries shall act as if they had each signed a copy of the Engagement Letter and agreed to be bound by the Agreement. However, you alone shall be responsible for payment of our Fees. We accept your agreement to and acceptance of the Agreement on our own behalf and in doing so confer benefits on all Lightbulb Persons.
12.7 Third Party Rights - Save where the Agreement expressly confers benefits on other Lightbulb Persons, no-one who is not a party to the Agreement shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any part of the Agreement. We and you may rescind or vary the Agreement without anyone else’s consent. Other Beneficiaries (if any) shall acquire rights under the Agreement through signature by the addressee of the Engagement Letter on their behalf.
12.8 Assignment – Unless the Agreement expressly provides otherwise, no party may assign, transfer or deal with their rights or obligations under the Agreement without the prior written consent of the other party, except we may assign any debts to another party for collection. Any assignment without the prior written consent (except as provided above) shall be null and void.
12.9 Survival - The provisions of the Agreement which expressly or by implication are intended to survive its termination or expiry will survive and continue to bind each of the parties including, but not limited to, 1.3, 2.2, 2.3, 2.4, 2.6, 2.7,2.8, 4, 5, 6, 7, 8, 10.3, 11 and 12.