Terms & Conditions - People Advisor
Contents
1. Interpretation – This Agreement
2. Service Levels
3. Exclusions
4. Special Services
5. Data Protection Legislation
6. Intellectual Property Rights
7. Confidentiality and Property owned by J Mann Associates Limited
8. Limitation of Liability
9. Fees and Terms of Business
10. Termination
11. Payment of Fees, Invoicing and Charges
12. Waiver
13. Force Majeure
14. Variation
15. Severance
16. Entire Agreement
17. Assignment
18. No Partnership or Agency
19. Rights of Third Parties
20. Notices
21. Governing Law and Jurisdiction
1. Interpretation – In this agreement the expression ‘this agreement’ shall be deemed to incorporate any and all documents or verbal undertakings or arrangements that shall have been agreed or entered into between the parties including but not limited to this document and any other contract, sub-contract, agreement or instruction issued pursuant to this agreement.
2. Service Levels -J Mann Associates Ltd will provide the following advisory and support services on HR matters in respect of all statutes and statutory instruments passed under English law and case law of the English courts which may affect the legal rights and obligations of employers and/or employees under English law including any relevant provisions of the laws of the European Union affecting such rights and obligations under English law:
a) 60 minutes of telephone support to be used each month. Monday – Friday 9am -5pm
b) Access to membership site– providing template letters & how to guides.
3. Exclusions - This agreement does not cover:
a) Health and safety advice.
b) Costs of printing, copying and production for employment related materials for in-house use (e.g. staff handbooks, staff contracts, etc).
c) Employment Tribunal or Court assistance or dealing with claims from the date when proceedings are issued
d) Advising you on any arrangements, contracts or disputes you may have with sub-contractors.
e) Any disbursement payment or other payments of whatever nature we make or are required to make on your behalf relating to any matter we deal with.
4. Special Services - In the event of your requesting services or support not covered by the terms of this retainer agreement, we will give you a quotation for the cost involved. We will not start work until you have confirmed that this cost is acceptable, and will ask you to confirm your acceptance in writing.
Our fees are normally computed on the basis of time spent and expenses incurred on the assignment having regard to the degree of responsibility, complexity, urgency and skill involved. If for any reason a matter is not completed a charge will be made for work already undertaken.
5. GDPR Legislation
During the period of the contract you acknowledge that we shall retain certain information about you and your business to enable us to provide the services to you under the contract (including your names, address and other details). You accept that this information may be held on our behalf by third parties and accessed by a
password, the nature of which shall be restricted to employees of J Mann Associates Limited who need to know the same. We shall ensure that all information is held and divulged in a protected manner conformant with GDPR regulations.
a) We will only process personal data and act in accordance with your written instructions and the applicable data protection laws in the UK and for the purpose of performing our obligations and/or exercising our rights under the terms of the Agreement.
b) We have in place, and undertake to maintain throughout the duration of the Agreement, appropriate technical and organisational measures against the unauthorised or unlawful processing of personal data, and against the accidental loss, destruction or disclosure of, or damage to, personal data, including ensuring that any personal data that is to be disposed of is done so securely. We will take all reasonable steps to ensure compliance with these measures.
c) We have in place, and undertake to maintain throughout the duration of the Agreement, adequate and appropriate data security programmes and procedures to ensure that unauthorised persons do not have access to the personal data or to any equipment used to process personal data.
d) We carry out appropriate data protection training, on all our staff who are given access to personal data.
e) We will immediately report to the Company, in writing, any security breaches or other problems relating to personal data, providing full details of the breach or problem.
6. Intellectual Property Rights - In this retainer agreement the following definition of intellectual property rights shall apply:
‘Intellectual Property Rights’: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
As between J Mann Associates Limited and you all Intellectual Property Rights in any documents, information and materials provided by us or our agents, subcontractors, consultants and employees in relation to the services we provide in any form including computer programs, data, reports and specifications (including drafts) shall be owned by us. We licence all such rights to you on a non-exclusive basis to such extent as is necessary to enable you to make reasonable use of our services. If we terminate this retained agreement this licence shall automatically terminate.
7. Confidentiality and Property owned by J Mann Associates Limited -You shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to you by us, our employees, agents, consultants or subcontractors and any other confidential information concerning our business or our products or services which you may obtain.
You may disclose such information
a) to your employees, officers, representatives, advisers, agents or subcontractors who need to
b) know such information; and
c) as may be required by law, court order or any governmental or regulatory authority.
You shall ensure that your employees, officers, representatives, advisers, agents or subcontractors to whom you disclose such information comply with this section of the retainer agreement. You shall not use any such information for any purpose other than to perform your obligations.
All materials, equipment and tools, drawings, specifications and data supplied by us to you shall, at all times, be and remain as between you and us, our exclusive property, but shall be held by you in safe custody at your own risk and maintained and kept in good condition by you until returned to us and shall not be disposed of or used other than in accordance with our written instructions or authorization.
8. Limitation of Liability - This section sets out the entire financial liability of J Mann Associates Limited (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to you in respect of
a) any breach of this retainer agreement including any deliberate breach of this agreement by us or our employees, agents or subcontractors;
b) any use made by you of the services provided by us or any part of them; and
c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this retainer agreement.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement. Nothing in this agreement limits or excludes our liability:
a) for death or personal injury resulting from negligence; or
b) for any damage or liability incurred by you as a result of fraud or fraudulent misrepresentation by us.
Subject to the earlier paragraphs in this section:
a) J Mann Associates Limited will not be liable for
i) loss of profits; or
ii) loss of business; or
iii) depletion of goodwill and/or similar losses; or
iv) loss of anticipated savings; or
v) loss of goods; or
vi) loss of contract; or
vii) loss of use; or
viii) loss of corruption of data or information; or
ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; or
x) anything that results from your actions or omissions that prevents us from discharging our obligations under this agreement.
b) Your total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of this agreement shall be limited to the price paid for one year’s services provided by us or the overall price actually paid (whichever is the lesser).
c) All of the documents in our membership site are available to download but should not be used by clients as a substitute for taking proper HR advice from J Mann Associates Ltd. Commentary and other materials posted on our site are not intended to amount to advice on which reliance should be placed. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor to our site, or by anyone who may be informed of any of its contents.
9. Fees and Terms of Business - This agreement shall come into force with effect from your date of purchase and (unless any of the circumstances set out in clause 10 arise) will be for an initial 1-year period, with no provision for early termination. The agreement shall continue automatically thereafter annually from year to year, unless terminated by either party giving a minimum of three months’ notice in writing at any time following the expiry of the initial 1-year period. The fees are £250.00 per month plus VAT. All sums payable to us under this agreement shall become due immediately on its termination for any reason, despite any other provision. In respect of services supplied by us but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt. This provision is without prejudice to any right to claim for interest under the law, or any such right under this agreement. After the initial 1-year period you will be given three months’ notice in writing of any increase in price to reflect current market conditions. Our fees are reviewed annually on 1st May.
10. Termination - Without prejudice to any other rights or remedies which we may have, we may terminate this agreement without liability to the other immediately on giving notice to you if
a) you fail to pay any amount due to us on the due date for payment and remain in default not less than seven days after being notified in writing to make such payment; or
b) you commit a material breach of any of the terms of this agreement and (if such a breach is remedial) fail to remedy that breach within 3 days of being notified in writing of the breach; or
c) you repeatedly breach any of the terms of this agreement; or
d) you suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or admit inability to pay your debts or (being a company) are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 OR (being a natural person) are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) have any partner to whom any of the foregoing apply; or
e) you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or a solvent reconstruction; or
f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or your solvent reconstruction; or
g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over you; or
h) a floating charge holder over your assets has become entitled to appoint or has appointed an administrative receiver; or
i) a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets; or
j) a creditor or encumbrancer of yours attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days; or
k) any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in condition (d) to condition (j) (inclusive) of this section; or
l) you suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part of your business; or
m) there is a change of control of you (as defined in section 574 of the Capital Allowances Act 2001); or
n) in our opinion you behave unreasonably; or
o) in our opinion you prevent us through your actions or omissions from discharging our obligations under this agreement.
11. Payment of Fees, Invoicing and Charges - The retainer service you have chosen allows for the payment of the retainer fee on a monthly basis. Payment will be taken in advance for each month by the card we have on file or by direct debit. It is your responsibility to keep the card details up to date. If an invoice is not paid within 30 days, we may charge interest on the balance outstanding at the rate of 2% per month calculated daily from the invoice date until clearance of payment.
In the event of an invoice being overdue for payment then we may stop work on all matters on which we act for you, although we shall not take this action without first informing you. In such circumstances, the balance of the entire annual sum under the retainer agreement shall become due. Until payment of the full amount due, we reserve the right to take further action.
Should it be necessary for us to seek to recover charges or expenses from you, we may do so on a full indemnity basis in respect of any costs we incur, including the costs of all agents we appoint to collect such amounts. We may retain all documents and any items in our possession relating to any matter until our invoices have all been paid in full.
We may, without prejudice to any other rights we may have, set off any liability you may have to us against any liability we may have to you.
If you require us to start providing the services as set out in this agreement and we duly start work in accordance with your instructions, this will constitute acceptance on your part of the terms and conditions of this agreement and this agreement shall be binding between the parties
12. Waiver - A waiver of any right under this 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 either party in exercising any of its rights under this agreement shall be deemed to be a waiver of that right, and no waiver by either party of any breach of this agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision. 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. Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
13. Force Majeure - If your performance of your obligations under this agreement is prevented or delayed by your acts or omissions or those of your agents, subcontractors, consultants or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay. We shall have no liability to you under this agreement if we are prevented from, or delayed in performing, our obligations under this agreement or from carrying on our business by acts, events, omissions or accidents beyond our reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving your workforce or any other party), failure of a utility service or transport network, 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, storm or default of suppliers or subcontractors.
14. Variation- We may, from time to time and without notice, change the services provided to you in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the services.
Subject to the previous paragraph, no variation of this agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
No other terms of business will apply and no amendment to these terms of business will apply unless expressed in writing and signed by a Director.
15. Severance - If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this agreement, and the validity and enforceability of the other provisions of this agreement shall not be affected.
If a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16. Entire agreement- These Terms constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
Each party acknowledges that, in entering into this agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract). Nothing in this section shall limit or exclude any liability for fraud.
17. Assignment - You shall not, without our prior written consent, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement. We may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under this agreement and may subcontract or delegate in any manner any or all of our obligations under this agreement to any third party or agent. Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.
18. No partnership or agency - Nothing in this agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of 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.
19. Rights of third parties - A person who is not a party to this agreement shall not have any rights under or in connection with it.
20. Notices - Any notice or other communication required to be given under this agreement shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of the person specified below, or as otherwise specified by the relevant party by notice in writing to the other party.
Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address and for the contact referred to below (or as otherwise notified in writing to the other party) or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed (‘Business Day’ shall mean any day on which clearing banks are open for business in the City of London). This section shall not apply to the service of any in any proceedings or other documents in any legal action. A notice or other communication required to be given under or in connection with this agreement shall not be validly served if sent by e-mail.
21. Governing law and jurisdiction - This agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England.
The parties irrevocably agree that the courts of England shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).
