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, utilities and network data 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 provide Assured Hotels with complete and accurate copies of all policies and procedures applicable to the Client’s business, including updates as applicable from time to time;
4.1.6 obtain and maintain all necessary licences, permissions and consents which may be required in connection with the provision of the Services; and
4.1.7 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, its agents, subcontractors, consultants or employees, 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 all or part of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of such 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 bank and other automated payments in connection with its business. If Assured Hotels is required to make any payments on the Client’s behalf, then the Client shall remain responsible for such 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 4.5.
4.4 The Client shall, at its own expense, obtain and maintain with a reputable insurer and for amounts prudent to be insured by a business similar to that of the Client, all applicable insurances (including buildings, contents, public liability, employee liability and interruption of business) in relation to its business.
4.5 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.
4.6 The Client shall procure that all premiums are punctually paid for the insurances and shall produce on request the policies together with evidence of payment of the premiums. Assured Hotels may (at the cost of the Client) effect insurance if the Client fails to do 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 the 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 5.
5.2 The obligations on a party set out in clause 5.1 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 or a court of competent jurisdiction; or
5.2.3 the parties agree in writing is not confidential.

6. Data Protection
6.1 Each party shall comply with the 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. The purpose of the processing by Assured Hotels is to enable Assured Hotels to provide the Services to the Client, and the duration of the processing shall be the term of the Contract. The Client consents to, (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by Assured Hotels in connection with the processing of Personal Data, provided these are in compliance with the then-current version of the Assured Hotel’s privacy policy available at Privacy Policy – Assured Hotels (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and the Contract, the Privacy Policy will take precedence.
6.3 Without prejudice to clause 6.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to Assured Hotels and lawful collection of the same by Assured Hotels for the duration and purposes of the Contract.
6.4 Without prejudice to clause 6.1, Assured Hotels shall:
6.4.1 process Personal Data only on written instructions of the Client, which shall be to process the Personal Data in accordance with the Contract and the Privacy Policy. 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;
6.4.2 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;
6.4.3 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 Contract are imposed on that other processor and Assured Hotels shall remain liable to the Client for performance of the other processor’s obligations to the extent the other processor fails to fulfil their data protection obligations;
6.4.4 ensure that persons who have access to or process Personal Data keep the Personal Data confidential (either under contractual or statutory obligations);
6.4.5 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;
6.4.6 assist the Client to respond to any request from a Data Subject;
6.4.7 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 the Data Protection Legislation;
6.4.8 at the written direction of the Client, delete or return Personal Data to the Client on termination of the Contract unless Assured Hotels is required by law to store the Personal Data; and
6.4.9 maintain complete and accurate records and information to demonstrate its compliance with this clause 6 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.

7. Fees & Payment Arrangements
7.1 The Client shall pay to Assured Hotels:
7.1.1 the Fees; 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 shall be entitled to invoice the Client for the Fees and expenses, together with any other sums payable under the Contract:
7.2.1 at the intervals specified in the Engagement Letter; or
7.2.2 if no such intervals are specified, on completion of the Services or monthly in arrears (at any time after the end of each calendar month for the Services provided during that month), whichever is the earlier.
7.3 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 and fee narrative supporting our scope of works, our standard day rate fees are as follows:
7.3.1 Director day rate (or part thereof) – £1,375.00 net of VAT
7.3.2 Manager day rate (or part thereof) – £950.00 net of VAT
7.3.3 Associate day rate (or part thereof) – £650.00 net of VAT
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 Unless stated otherwise in the Engagement Letter, 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 the date of invoice.
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 7.6.1 or 7.6.2 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 7.6 applies) any sum payable by the Client 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 judgment); 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 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Save where liability is expressly assumed by Assured Hotels in connection with the provision of the Services, Assured Hotels shall not be liable to the Client (customer, regulatory body or other third party) in respect of any claims or demands brought against the Client by third parties in relation to the Client’s business whether before, during or after the term of the Contract including (without limitation) the operation and management of the hotels, employment or engagement of Hotel Employees and general compliance with laws and regulatory requirements.
8.3 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:
8.3.1 any failure on the part of the Client to comply with its own obligations under the Contract; and/or
8.3.2 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.
8.4 Subject to clause 8.6, Assured Hotels shall under no circumstances be liable to the Client for any loss of profit, loss of contract, or any indirect or consequential loss arising under or in connection with the Contract or otherwise.
8.5 Subject to clause 8.6, Assured Hotels’ total liability to the Client in respect of all losses arising under or in connection with the Contract 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.
8.6 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.
8.7 Assured Hotels has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.8 Unless the Client notifies Assured Hotels that it intends to make a claim in respect of an event within the notice period, Assured Hotels shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail and provide a reasonable estimate of the quantum of such claim.

9. Hotel Employees
9.1 The Client shall:
9.1.1 continue to employ and be responsible for all Hotel Employees; and
9.1.2 be solely responsible for the payment of all salaries and benefits to the Hotel Employees, deduction of PAYE, National Insurance Contributions and/or other contractual or statutory payments together with any other costs, expenses, fees, liabilities or obligations in connection with the Hotel Employees (including in connection with any Hotel Employees that may be recruited by Assured Hotels on behalf of the Client or any Hotel Employees made redundant by Assured Hotels on behalf of the Client in connection with the provision of the Services).
9.2 Assured Hotels shall refer any issues relating to the Hotel Employees that comes to its attention during the term of the Contract to the Client. The Client shall be responsible for addressing and dealing with any employment related issues, following consultation with Assured Hotels which shall use reasonable endeavours to provide any information, documentation, and assistance as may reasonably be requested by the Client in order to manage and resolve any such issues.
9.3 All information regarding Hotel Employees including, without limitation, employee records and individual compensation information, is proprietary to the Client and shall remain confidential.

10. Non-solicitation
The Client shall not, without the prior written consent of Assured Hotels, at any time from the date of the Contract to the expiry of 24 months after the termination of the Contract, solicit or entice away from Assured Hotels or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Assured Hotels in the provision of the Services.

11. Duration and Termination
11.1 Unless terminated earlier under clause 11.2, the Contract shall continue in force until:
11.1.1 the Services have been completed; or
11.1.2 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).
11.2 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:
11.2.1 the other party commits a material breach of any of the provisions of the 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
11.2.2 the other party ceases to trade and/or is unable to pay its debts and/or suffers an Insolvency Event.
12. Consequences of Termination
12.1 On termination of the Contract for any reason, the Client shall immediately pay to Assured Hotels all unpaid invoices and interest and, for any Services which have been supplied but for which no invoice has been raised, Assured Hotels may raise an invoice, which shall be payable immediately on demand.
12.2 On termination of the Contract, the following clauses shall continue in force: clause 1 (Interpretation), clause 5 (Confidentiality), clause 6 (Data Protection), clause 7 (Fees and Payment Arrangements), clause 8 (Limitation of liability), clause 9 (Non-solicitation), clause 12 (Consequences of termination) and clause 14 (General).
12.3 Termination or expiry 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.

13. Force Majeure
Assured Hotels shall not be liable to the Client for any delay or non-performance of its obligations under the Contract arising from an event beyond its control. Such events include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.

14. General
14.1 TUPE. It is the parties’ intention and belief that TUPE will not apply on the commencement or termination of the Contract by virtue of TUPE or otherwise. The Hotel Employees shall at all times remain employees of the Client and shall not at any time transfer to Assured Hotels. Assured Hotels’ employees shall at all times remain employees of Assured Hotels and their employment shall not at any time transfer to the Client
14.2 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 email to the address 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):
14.2.1 if sent 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);
14.2.2 if delivered by hand – at the time of actual delivery; or
14.2.3 if sent by email – 24 hours after the time of transmission resume (unless an automated delivery failure receipt has been received by the sender, in which case service shall not be effective),
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.
14.3 Entire Agreement. The 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 the Contract are (to the fullest extent permitted by law) excluded from the Contract.
14.4 Variation. No variation to the Contract shall be binding on the parties unless made in writing and signed by an authorised representative of each party to the Contract.
14.5 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.
14.6 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.
14.7 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.
14.8 Third Party Rights. For the purposes of the Contracts (Rights of Third Parties) Act 1999, except as expressly set out in the Contract, no person who is not a party to the Contract shall have any right to enjoy the benefit of, or enforce any of the terms of, the Contract.
14.9 Governing Law and Jurisdiction. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the English law. The parties agree to submit to the exclusive jurisdiction of the English Courts.
.