Assured Hotels Limited – Terms of Business

N.B. THESE TERMS CONTAIN LIMITATIONS & EXCLUSIONS OF LIABILITY

1. Interpretation

1.1 In these Terms of Business the following expressions       have the following meanings:

 

Assured Hotels	Assured Hotels Limited, a company registered in England and Wales (company number 06757100), whose registered office is at Langrick’s, Aus-Bore House, 19-25 Manchester Road, Wilmslow, Cheshire, England, SK9 1BQ;
Client	means the client referred to in the Engagement Letter, being the client for whom Assured Hotels has agreed to provide the Services;
Contract	means the contract between Assured Hotels and the Client for provision of the Services, comprising these Terms of Business and the Engagement Letter;
Engagement Letter	means an engagement letter, proposal or other similar document which has been issued by Assured Hotels and describes particular services that Assured Hotels is willing to provide for a particular client;
Insolvency Event	the other party (a) has entered liquidation; (b) has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets; (c) proposes to make any arrangements with its creditors or goes into liquidation; or (d) suffers an event which, under the law of a different country, is equivalent to any of the previously specified acts or events;
Representative	means any individual assigned by Assured Hotels to provide particular Services (whether a director, employee, consultant of Assured Hotels or otherwise); and
Services	means the services that Assured Hotels has agreed to provide to the Client, as more particularly described in the Engagement Letter.

1.2 In these Terms of Business, unless the context otherwise requires:
1.2.1 any phrase introduced by the terms “include”, “including”, “particularly” or “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
1.2.2 the headings are for convenience only and are not to affect the interpretation of these Terms of Business.

2. Scope of Contract
2.1 The Contract shall constitute the entire agreement and understanding between the parties (superseding any previous agreements) in relation to the provision of Services by Assured Hotels to the Client and shall govern the contractual relationship between the parties to the exclusion of any separate terms and conditions put forward by the Client. No conduct by Assured Hotels shall be deemed to constitute acceptance of any terms put forward by the Client, other than to the extent expressly set out in the Contract or subsequently agreed under clause 2.4 below. Any instruction given by the Client to Assured Hotels to proceed with the provision of the Services shall be treated as constituting an acceptance by the Client of these Terms of Business and the terms set out in the Engagement Letter.
2.2 In the event of any conflict or ambiguity between these Terms of Business and the relevant Engagement Letter, the Terms of Business shall prevail over the Engagement Letter except for any provisions in the Engagement Letter described as “special conditions” or otherwise expressly stated to vary or prevail over a particular provision in the Terms of Business.
2.3 The Client acknowledges and agrees that it has not been induced to enter into the Contract in reliance upon, and does not have any remedy in respect of, any warranty, representation, statement, agreement or undertaking of any nature whatsoever other than as expressly set out in the Contract.
2.4 No variation to the Contract shall be binding on Assured Hotels unless made in writing and signed by an authorised representative of Assured Hotels.

3. Supply of Services
3.1 Assured Hotels shall supply and the Client shall pay for the Services subject to and in accordance with the Contract.
3.2 Assured Hotels shall use all reasonable endeavours to meet any performance dates for the Services specified in the Engagement Letter (if any), but such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.3 Assured Hotels reserves the right to amend the description of the Services in the Engagement Letter, if necessary, to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Assured Hotels shall notify the Client in any such event.
3.4 Assured Hotels warrants to the Client that the Services will be provided using reasonable care and skill.

4. Client Obligations
4.1 The Client shall:
4.1.1 co-operate with Assured Hotels in all matters relating to the Services;
4.1.2 provide Assured Hotels, its employees, agents, consultants and subcontractors with access to the Client’s premises as is reasonably required by Assured Hotels;
4.1.3 provide Assured Hotels with such information and materials as Assured Hotels may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all respects;
4.1.4 comply with any additional obligations set out in the Engagement Letter at the times set out in the Engagement Letter or otherwise in a timely manner in accordance with any reasonable directions given by Assured Hotels;
4.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services; and
4.1.6 keep all materials, equipment, documents and other property of Assured Hotels at the Client’s premises in safe custody at its own risk and not dispose of such materials, equipment, documents and other property other than in accordance with Assured Hotels’ written instructions or authorisation.
4.2 If Assured Hotels’ performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
4.2.1 without limiting or affecting any other right or remedy available to it, Assured Hotels shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Assured Hotels’ performance of any of its obligations;
4.2.2 Assured Hotels shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Assured Hotels’ failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Client shall reimburse Assured Hotels on written demand for any costs or losses sustained or incurred by Assured Hotels arising directly or indirectly from the Client Default.
4.3 It is the Client’s responsibility to authorise and make all payments. If Assured Hotels makes payments on the Client’s behalf then the Client shall remain responsible for the payments. Assured Hotels will not be liable for any incorrectly made payments (whether arising through fraud, negligence or otherwise) and the Client will maintain insurance to cover such risk in accordance with clause
4.4 The Client shall also, at its own expense, obtain and maintain cyber security insurance for such amount as Assured Hotels may stipulate or in absence of such stipulated amount as is prudent in all the circumstances, such policy to provide that any payments made under it be made directly in or towards satisfaction of the claim in respect of which such payment is made. The Client shall procure that all premiums are punctually paid for the insurance and shall produce on request the policy together with evidence of payment of the premiums. Assured Hotels may effect the insurance if the Client fails to do so, in which case the Client shall reimburse Assured Hotels on demand for the cost of doing so.

5. Confidentiality
5.1 Each party shall safeguard and keep confidential the terms of the Contract and any and all confidential information that it may acquire in relation to the business or affairs of the other party. Neither party shall use or disclose the other party’s confidential information, except to the extent that such use or disclosure is necessary for the purposes of performing its obligations or exercising its rights under this Contract. Each party shall ensure that its officers and employees and any other persons to whom the other party’s confidential information is disclosed comply in respect of that information with the provisions of this clause 4.
5.2 The obligations on a party set out in clause 4.1 shall not apply to any information that:
5.2.1 is publicly available or becomes publicly available through no act or omission of that party;
5.2.2 is required to be disclosed by law;
5.2.3 the parties agree in writing is not confidential.
5.3 The provisions of this clause 4 shall survive any termination of the Contract.

6. Data Protection
6.1 Each party shall comply with its applicable requirements of the Data Protection Legislation. This clause 6 is in addition to and does not replace a party’s obligations under the Data Protection Legislation. The terms “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Process” and “Processing” have the meanings prescribed in the Data Protection Legislation.
6.2 For the purposes of the Data Protection Legislation, the Client is the Controller and Assured Hotels is the Processor. Schedule 1 sets out the subject matter, nature and purpose of processing by Assured Hotels, the duration of the processing, the types of Personal Data, categories of Data Subject and the obligations and rights of the Client as Controller.
6.3 The Operator shall:
6.3.1 process Personal Data only on written instructions of the Client. If Assured Hotels is required by any applicable laws to process Personal Data it shall, to the extent legally permitted, notify the Client before doing so;
6.3.2 have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of, accidental loss or destruction of or damage to Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected;
6.3.3 not engage another processor without prior general written authorisation from the Client and without ensuring that the same data protection obligations as set out in the Agreement are imposed on that other processor and Assured Hotels shall remain fully liable to the Client for the performance of the other processor’s obligations to the extent the other processor fails to fulfil their data protection obligations;
6.3.4 ensure that persons who have access to or process Personal Data keep the Personal Data confidential (either under contractual or statutory obligations);
6.3.5 ensure that any transfer of Personal Data outside of the European Economic Area takes place only on documented instructions of the Client and that the organisations to which the Personal Data is transferred ensure an adequate level of protection;
6.3.6 assist the Client to respond to any request from a Data Subject;
6.3.7 notify the Client without undue delay of a Personal Data breach (which has the meaning given to it in the Data Protection Legislation) and provide reasonable assistance to the Client complying with its obligations pursuant to Articles 32 to 36 of GDPR;
6.3.8 at the written direction of the Client, delete or return Personal Data to the Client on termination of this Agreement unless Assured Hotels is required by law to store the Personal Data; and
6.3.9 maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Client or the Client’s designated auditor, provided that the Client shall provide reasonable notice of any audit it wishes to carry out and no more than one audit shall be carried out in any rolling 12 (twelve) month period.
6.4 Assured Hotels shall immediately inform the Client if, in its opinion, an instruction from the Client infringes the Data Protection Legislation.

7. Fees & Payment Arrangements
7.1 The Client shall pay to Assured Hotels:-
7.1.1 the fees stated in the Engagement Letter; and
7.1.2 unless otherwise stated in the Engagement Letter, all travel, accommodation, subsistence and other expenses reasonably incurred by Assured Hotels in providing the Services
7.2 Assured hotels standard day rate fees (or part thereof) apply if no agreement is set out in an engagement letter. Time billed will be supported by a timesheet our standard day rate fees are as follows:
Director day rate (or part thereof) – £1,375.00 net of VAT
Associate day rate (or part thereof) – £650.00 net of VAT

7.3 Assured Hotels shall be entitled to invoice the Client for the fees, expenses and tax described at clause 7.1 above, together with any other sums payable under the Contract:-
7.3.1 at the times specified in the Engagement Letter; or
7.3.2 if no such times are specified, on completion of the Services or monthly in arrears (that is to say, at any time after the end of each calendar month in respect of Services provided during that month), whichever is the earlier.
7.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Assured Hotels to the Client, the Client shall, on receipt of a valid VAT invoice from Assured Hotels, pay to Assured Hotels such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.5 Each invoice raised by Assured Hotels shall be payable by the Client within such payment period as is specified in the Engagement Letter, or if no such period is specified, within 14 days of receipt by the Client.
7.6 All amounts due from the Client under the Contract 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).
7.7 As a condition to be satisfied by the Client prior to Assured Hotels having any obligation to start providing the Services or (if Services have already commenced) to continue providing any Services, Assured Hotels may require the Client to do either of the following:-
7.7.1 to complete and return to Assured Hotels a direct debit instruction, in such form as Assured Hotels may reasonably specify having regard to the terms of the Contract, providing for particular fees to be payable to Assured Hotels at particular times by way of direct debit;
7.7.2 to complete and return to Assured Hotels a letter of authority, in such form as Assured Hotels may reasonably specify having regard to the terms of the Contract, directing the Client’s bank to debit the Client’s bank account and transfer to Assured Hotels, on receiving a written request to this effect from Assured Hotels, with an amount equal to such fees or other sums as have become due for payment from time to time under the Contract.
7.8 If Assured Hotels requires the Client to provide either a direct debit instruction or letter of authority in accordance with clause 5.4.1 or 5.4.2 respectively, then:-
7.8.1 until such instruction or letter has been completed, returned and accepted by the relevant bank, Assured Hotels shall not have any obligation to commence or (if already commenced) to continue providing any of the Services; and
7.8.2 if any such instruction or letter is subsequently cancelled or revoked or otherwise ceases to have effect, Assured Hotels shall be entitled to immediately cease providing any further Services pending the situation being remedied to the reasonable satisfaction of Assured Hotels.
7.9 If (whether or not clause 5.4 applies) any sum payable under the Contract is not paid by the due date for payment, Assured Hotels shall be entitled (but without prejudice to any other right or remedy it may have):
7.9.1 to charge the Client interest on the amount outstanding from time to time at the rate per annum of 4% over the base rate of Barclays Bank plc applicable at the due date, such interest to accrue on a daily basis from the due date until the date of payment in cleared funds (whether before or after the date of any judgement); and/or
7.9.2 to suspend the further provision of any Services to the Client until the sum in question has been paid in full.

8. Liability

8.1 Assured Hotels shall not be liable to the Client in respect of, and shall not be deemed to be in breach of the Contract as a result of, any failure or delay in complying with its obligations under the Contract to the extent that such failure or delay is caused by:-
8.1.1 any failure on the part of the Client to comply with its own obligations under the Contract; and/or
8.1.2 any circumstances beyond the reasonable control of Assured Hotels, including (but specifically not limited to) the sickness or incapacity of any Representatives or other personnel.
8.2 Subject to clause 8.5, Assured Hotels shall under no circumstances be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any loss of profit, loss of contract, or any indirect or consequential loss arising under or in connection with this Contract.
8.3 Subject to clause 8.5, Assured Hotels’ total liability to the Client in respect of all losses arising under or in connection with the Contract, whether in tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed a sum equal to the total fees paid or payable to Assured Hotels under the Contract for the Services which give rise to the liability.
8.4 If Assured Hotels’ performance of any of its obligations under this Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Assured Hotels shall not be liable for any costs, charges, or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
8.5 Nothing in the Contract shall operate to limit or exclude the liability of Assured Hotels to the Client for: (a) death or personal injury caused by the negligence; (b) fraud or fraudulent misrepresentation; or (C)any other matter which liability cannot lawfully be limited or excluded.

9. Duration & Termination
9.1 Unless terminated earliery under clause 9.2, the Contract shall continue in force until:-
9.1.1 the Services have been completed; or
9.1.2 the Contract has been terminated by Assured Hotels after giving to the Client at any time not less than 30 days notice of termination (or such other period of notice as may be specified in the Engagement Letter).
9.2 Either party may terminate the Contract immediately by serving written notice to that effect on the other party at any time after the occurrence of any of the following events:
9.2.1 the other party commits a material breach of any of the provisions of this Contract and in the case of a breach capable of remedy, fails to remedy the same within 30 days after receipt of a written notice specifying the breach and requiring it to be remedied; or
9.2.2 the other party ceases to trade and/or is unable to pay its debts and/or suffers an Insolvency Event.

10. Consequences of Termination
10.1 On termination of the Contract for any reason, the Client shall immediately pay to Assured Hotels any unpaid invoices and interest, for any Services which have been supplied but for which no invoice has been raised.
10.2 Any termination of the Contract shall be without prejudice to any other rights or remedies a party may be entitled to under the Contract or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this Contract which is expressly or by implication intended to come into or continue in force on or after such termination

11. General
11.1 Force Majeure. Assured Hotels shall not be liable to the Client for any delay or non-performance of its obligations under this Contract arising from an event beyond its control.
11.2 Notices. Any notice under the Contract shall be in writing and shall be sent by pre-paid, first class, recorded delivery post, hand delivery or fax to the address/number for the relevant party as stated in the Contract or otherwise notified to the other party for this purpose. Any such notice shall be deemed to have been duly received (provided it was sent to the proper address/number):
11.2.1 if despatched by first class, recorded delivery post – 48 hours from the time of posting (subject only to any delays caused by industrial action affecting the postal service);
11.2.2 if delivered by hand – at the time of actual delivery;
11.2.3 if despatched by fax – 24 hours after the time of the despatch
provided in each case that if the deemed receipt time occurs either on a day that is not a working day or after 5.00pm on a working day, then the notice shall not in fact be deemed to have been received until 10.00am on the next following working day.
11.3 Entire Agreement. This Contract 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 acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation or warranty (whether made innocently or negligently) that is not set out in the Contract. All warranties, conditions and other terms (whether express or implied) which are not set out in this Agreement are (to the fullest extent permitted by law) excluded from this Contract.
11.4 Assignment and Sub-Contracting. The Client shall not be entitled to assign, sub-contract or otherwise dispose of any of its rights or obligations under the Contract without the prior written consent of Assured Hotels.
11.5 Waiver. No delay or failure on the part of either party in enforcing any provision in the Contract is to be treated as a waiver or as having created a precedent or in any way as having prejudiced that party’s rights under the Contract. The rights and remedies provided in the Contract are cumulative and are additional to any rights or remedies provided by law.
11.6 Severability. If any provision in the Contract is declared void or unenforceable by any court or other body of competent jurisdiction, or is otherwise rendered so by any applicable law, such provision shall to the extent of such invalidity or unenforceability be treated as severable and all other provisions of the Contract not affected by such invalidity or unenforceability shall remain in full force and effect.
11.7 For the purposes of the Contracts (Rights of Third Parties) Act 1999, except as expressly set out in this Contract, no person who is not a party to this Contract shall have any right to enjoy the benefit or enforce any of the terms of this Contract. This clause shall survive termination.
11.8 Governing Law and Jurisdiction. The Contract shall be governed by English law. The parties agree to submit to the exclusive jurisdiction of the English Courts.