FULL TERMS AND CONDITIONS OF TRADING

1. Definitions
1.1 In these conditions (unless the context otherwise requires):
a) “Client” means the person, or company with whom the contract is made.
b) “Company” means Epica Management Solutions Ltd and any sub-contractors of the Company.
c) “Contract” means the contract between the Company and the Client for the provision of Services.
d) “Premises” means the premises of the Client in respect of which the Services are provided.
e) “Advisor” means any person employed, appointed or used by the Company and acting on its behalf in that capacity.
f) “Services” means the consultancy and other Services to be provided by the Company pursuant to the Contract as more particularly set out in the Company’s quotation.
g) “Data Controller” has the meaning set out in section 1(1) of the Data Protection Act 1998.
h) “Data Subject” an individual who is the subject of Personal Data.
i) “Personal Data” has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Epica Management Solutions Ltd is providing services under this agreement.
j) “Processing and process” have the meaning set out in section 1(1) of the Data Protection Act 1998.

2. General
2.1 These terms and conditions shall apply to the Contract to the exclusion of any other item and conditions contained or referred to in an order, letter, form of contract or other communication sent by the Client to the Company. These conditions shall prevail unless expressly varied in writing and signed by a director on the Company’s behalf.

2.2 Any concession made or latitude allowed by the Company to the Client shall not affect the rights of the Company under the Contract.

2.3 If in any particular case any of these terms or conditions shall be or be held to be invalid or shall not apply to the Contract the other terms and conditions shall continue in full forces and effect.

3. Orders
3.1 Notwithstanding that the Company may have given a detailed quotation, no order for Services shall be binding on the Company unless and until it has been accepted in writing by the Company.

4. Prices
4.1 Unless otherwise agreed by the Company in writing:
a) The price payable for the Service shall be the price charged by the Company current at the date of performance of the Service.
b) The Company’s prices are subject to adjustment to take account of any increase in the business undertaken for or Service required by the Client. Increases in the Company’s costs including (but not limited to) variations in wages and overheads since the date of the Company’s quotation or (if no quotation is issued) the Clients order. The Company accordingly reserves the right to adjust the invoice price by the amount of any increase in such costs after the initial price quoted and the invoices so adjusted shall be payable as if the price set out therein were the original contract price.
c) The fees are based on an assessed workload and any under assessment of either time taken or workload will result in an adjustment of fees accordingly and the Company reserve the right to backdate such increases to the relevant date when such underassessment became apparent to the Company. Notification of such increases will be given to the Client in writing by the Company as soon as is reasonably practicable.
d) The Client may request more or further Services in which event an adjustment of fees will be negotiated by the Company with the Client in line with the Company’s then current rates. Any such further business will be undertaken or such further Services will be provided pursuant to these terms and conditions.
e) If the Advisor is required to stay at the Clients premises longer than anticipated. Either at the Clients request or due to unsafe situations requiring such extension including but not limited to an accident or other potentially dangerous situation, the Company will charge then additional fees to the Client. These will be proportionate to the additional time expended by the Advisor on behalf of the Company.
f) It is the responsibility of the Client to notify the Company in writing of any required decrease in assessed fees as a result of falling workload and any subsequent decrease in fees will apply only from the date of receipt by the Company of such notification.

4.2 The Company is registered for VAT and this is charged at the appropriate rate.

5. Provision of Service
5.1 The Company may provide the Service through any one or more of its employees, consultants or agents.

5.2 The Advisor will endeavour to identify to the Client any matter relating to problems affecting or being made by the Client which he considers unsafe or not in compliance with relevant legislation at the date of providing the relevant service by him. It remains solely the responsibility of the Client to ensure that such legislation is complied with and the Clients duties are fulfilled in accordance with such statues, regulations and systems of work as may be applicable to the Clients specific industry. The Company shall not be responsible for any matter not reasonably apparent upon reasonable inspection by the Company at the date of providing the service.

5.3 The Client acknowledges that the advice given by the Advisor will have regard to the skill, expertise and level of competence, which might reasonably be, expected of such an advisor according to his level of experience and qualification.

5.4 Where the Company advises the Client that additional specialist Services are required the Company will use all reasonable endeavours to assist the Client in identifying suitable providers of such Services. The provision and cost of such additional advice remains at all times the sole responsibility of the Client.

6. Statutes, regulations and systems of work
6.1 The Advisor will endeavour to advise the Client as to the statutes, regulations and system of work appropriate to the problems of the Client. The aim being to assist the Client in fulfilling its duties in accordance with such statutes, regulations and systems of work that will be applied to the Clients specific industry but it remains solely the Clients responsibility to ensure that such duties are fulfilled.

6.2 The Client acknowledges that whilst the Advisor will use his best endeavours to point out those matters, which he considers, represent unsafe working practices or breaches of statute, and which he observes.

7. Access and records
7.1 It is the responsibility of the Client:
a) To make access to the premises (and any relevant part thereof) available to the Company and any of its employees or agents.
b) To make available all relevant documents, information and personnel as the Company reasonably requires for the performance of the Services.

8. Extent of the Services
8.1 The Client shall specify those parts of the Premises and of its business in respect of which it wishes the Company not to provide the Services. The Company shall incur no liability whatsoever in respect of the premises or of its business so specified by the Client or in respect of any defect in the Services caused by any failure by the Client to comply with its obligations under 7.1 above.

9. Additional costs
9.1 The Client shall indemnify the Company in respect of any loss, cost or expense incurred by the Company as a result, directly or indirectly, of the Clients instructions or lack of instructions. Along with those losses incurred through any other act, neglect or default on the part of the Client, its servants, agents or employees.

10. Terms of payment
10.1 The Client shall pay for the Services not later than thirty days from the date of the Company’s invoice. The time of payment shall be the essence of the Contract. When payment exceeds 30days access to safetymate™ will cease until monies are up to date

10.2 Without prejudice to any other rights it may have the Company is entitled (both before and after any judgement) to charge interest at a rate equal to the higher of the interest payable on court judgement or 10% above the base rate from time to time of Santander on overdue payments.

10.3 The Director or Proprietor who signs the quotation of services is signing to these Terms and Conditions to signal their agreement to me, indemnifying Epica Management Solutions Ltd should the said Client fail to pay any invoice in full.

11. Confidentiality
11.1 Subject to clause 11.2 below at all times during the Contract thereafter the Company shall keep secret and confidential all business and trade secrets and other confidential information and material disclosed by, or obtained from, the Client in connection with the Contract. The Company undertakes not to disclose any such material or information to any third party other than to its responsible employees, consultants and agents who require such disclosure for the proper performance of their duties. The Company undertakes to take all reasonable steps to minimise the risk of disclosure of such confidential information by its employees, consultants and agents.

11.2 The obligations of confidentiality under clause 11.1 above shall not apply to any information or material which:
a) Was already known to the Company prior to its receipt.
b) Was subsequently disclosed to the Company lawfully by a third party who lawfully obtained the same and who was not bound by any obligation of confidence in respect thereof to the Client.
c) Was in the public domain at the time of receipt by the Company or has subsequently entered into the public domain other than by reasons of the breach of provisions of this clause.
d) The Company is required to disclose by law.

12. Commencement, Minimum Term and Termination
12.1 Subject to 13 below the Contract shall commence on the date the Company notifies the Client of the acceptance of its order and shall continue for a minimum period of twelve months.

12.2 Subject to 13 below termination of the Contract shall require notice, given by either party, of a minimum period of four calendar months, subject to 12.1.

12.3 Subject to 13 below following termination access to safetymate™ will be removed on the final day on the termination period. If further access is required for any reason a one off payment will be required and access will be permitted for an agreed period.

13. Default or Insolvency of Client
13.1 If the Client shall be in breach of any of its obligations under the Contract or in any distress or execution shall be levied on the Client’s property or assets or if the Client shall make or offer to make any arrangements or composition with his creditors or commit any act of bankruptcy or if any bankrupt petition be presented against him or (if the Client is a company) if any resolution or partition to wind up such company shall be passed or represented or if a receiver, administrative receiver or administrator of the whole or any part of such company’s undertaking property or assets shall be appointed the Company, in its discretion and without prejudice to any other right to claim, may (without prejudice to the Company’s right subsequently to determine the Contract from the same cause should it so decide) by notice in writing suspend performance or any further performance (as the case may be) of the Services until any default by the Client be remedied.

14. Limitation of liability
14.1 The aggregate liability of the Company (whether in Contract or for negligence or breach of statutory duty or otherwise howsoever) to the Client for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed £250 000 in respect of any one incident or series of incidents arising out of the same or subsequently the same cause.

14.2 These limitations do not apply in respect of death, personal injury or fraudulent misrepresentation.

14.3 At the Client’s written request for an increased limit of liability and upon payment by the Client of any additional premium required by the Company’s insurer to cover that increased limit the Company will agree to increase its liability under the Contract that the sum referred to in 14.1 above shall be increased accordingly.

14.4 The Client shall indemnify the Company against all liability and all loss, damage, costs and expenses whatsoever relating thereto in excess of the limit of liability referred to in 14.1 above (or as may be increased under 14.2 above) which arise directly or indirectly out of the provision of the Services and whether such liability be to the Client or to any third party.

15. Consequential loss
15.1 The Company shall not be liable for any costs, claims, damages or expenses arising out of any negligent or tortuous act or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis.

16. Restrictions on the Client
16.1 The Client herby undertakes on behalf of itself and any Associated Company for the time being of the Client that it will not and they will not at any time during the Prescribed Period without the prior consent in writing of the Company:
a) Directly or indirectly solicit or entice away or endeavour to solicit or entice away a Prescribed Person from the Company or any Associated Company of the Company for the purpose of employing or engaging the Prescribed Person to provide Services similar to the Services, whether or not such Prescribed Person would commit any breach of contract of employment or for Services with the Company or such Associated Company.
b) Directly or indirectly employ or otherwise engage a Prescribed Person under any contract or arrangement whatsoever involving the provision of Services similar to the Services.

16.2 Whenever the Company gives its consent in writing in respect of a Prescribed Person as Provided in 16.1 it may at its discretion charge to the Client as a condition of such consent a fee not exceeding an amount equal to 20% of either:
a) The total remuneration (as the case may be) (including any bonus) paid by the Company or Associated Company of the Company to the Prescribed Person during the last twelve months of his employment or engagement by the Company or Associated Company immediately prior to his employment or engagement by the Client.
b) Or (if the Prescribed Person was not so employed or engaged throughout the last twelve months) the total gross remuneration or fee (as the case may be) (including any bonus) which would have been paid by the Company or any Associated Company of the Company to the Prescribed Person had he been so employed or engaged, such fee or remuneration to be calculated by multiplying by 52 the average weekly amount of the remuneration or fee paid by the Company or Associated Company to the Prescribed Person during the shorter of the last 12 months of his employment or engagement by the Company or Associated Company or the Total period of such employment or engagement.

16.3 Each of the under takings set out in 16.1 shall be read as a separate and distinct undertaking and enforceable accordingly.

16.4 While the undertaking set out in 16.1 are considered by the Company and the Client to be reasonable in all the circumstances, it is agreed that if any such undertakings taken together shall be adjudged to go beyond what is reasonable in all the circumstances for the protection of the interests of the Company or Associated Company of the Company, but would be adjudged reasonable if part or parts of their wording or that of 16.5 below were deleted or amended or qualified, then the relevant undertaking or undertakings shall apply with such modifications as may be necessary to make it or them valid and effective.

16.5 In this condition16:
a) “Associated Company” means subsidiary for the time being of the Company or the Client (as the case may be) or of the holding company of the Company or the Client (as the case may be), and “subsidiary” and “holding company” shall have the meanings set out in section 736 of the Companies Act 1985.
b) “Prescribed Period” means the period of duration of the contract and the 24 months thereafter.
c) “Prescribed Person” means the person who has at any time been employed or engaged by the Company to provide the Service under 3.1 above.

17. Force majeure
17.1 The Company shall be entitled to delay or cancel performance of the Services if and to the extent that it is prevented from or hindered or delayed in performing the Services through any circumstances beyond its control including (but not limited to) strikes, lock-outs, accidents, war or fire.

18. Sub-contracting
18.1 The Company may assign the Contract with the Client or sub-contract the whole or any part to any person, firm or company.

19. Proper law
19.1 The Contract shall in all respect be governed by and construed in accordance with English law and shall be deemed to have made in England and the Client and the Company agree to submit to the non-exclusive jurisdiction of the English courts.

20. Data Processing
20.1 The Company Obligations
a) The Client and the Company acknowledge that for the purposes of the Data Protection Act 1998, the Customer is the Data Controller and the Company is the data processor in respect of any Personal Data.
b) The Company shall process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purpose other than those expressly authorised by the Customer.
20.2 The Company shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.

20.3 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

20.4 The Company warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
I. the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
II. the nature of the data to be protected [including, but not limited to, the security measures such as SSL certification, log in, system generated and encrypted individual passwords, restrict access to raw data, latest software and maintained, security patches].
b) take reasonable steps to ensure compliance with those measures.

20.5 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this agreement.
20.6 The Customer acknowledges that the Company is reliant on the Customer for direction as to the extent to which the Company is entitled to use and process the Personal Data. Consequently, the Company will not be liable for any claim brought by a Data Subject arising from any action or omission by the Company, to the extent that such action or omission resulted directly from the Customer’s instructions.

20.7 the Company may authorise a third party (sub-contractor) to process the Personal Data provided that the sub-contractor’s contract:
a) is on terms which are substantially the same as those set out in this agreement; and
b) terminates automatically on termination of this agreement for any reason.