TERMS OF BUSINESS – STEPHEN J PEGRAM CONSULTING (SJPC)


Stephen John Pegram, a sole trader and trading in the UK as Stephen J Pegram Consulting (“SJPC” or “we”) is pleased to set out the Terms of Business which will apply to the work we do for you. These Terms of Business and the Engagement Letter together form the Contract between us. The definitions used in these Terms of Business are set out in clause 12 below. Unless otherwise indicated either expressly or by the context, means both in these Terms of Business and more generally in our dealings with you. Where there is any conflict between the Engagement Letter and these terms of business, the Engagement Letter shall prevail. If an Engagement Letter has not been agreed, received or duly signed, these terms of business shall prevail and apply.       


1. The Services
1.1 We will provide the services described in the Engagement Letter (the “Services”). The Services will be provided to assist you with your Project. We will use reasonable skill and care in the provision of the Services.
1.2 We will be responsible for providing, and for the quality of any Deliverables identified in the Engagement Letter. All other Services are services of advice or assist. This means that, except in those areas where we have expressly agreed otherwise, you will be responsible for the overall management and control of the Project and for the results to be achieved from it and we will advise and/or assist you with those areas of your Project specified in the Engagement Letter.
1.3 The Services will cover the areas agreed with you in the Engagement Letter. Except to the extent expressly stated in the Engagement Letter, the Services will not include financial due diligence, an Audit conducted in accordance with generally accepted auditing standards, a report on internal controls, or other Review or Assurance Services. Except to the extent expressly agreed to the contrary, where we comment on the use of internet technologies in key business processes, we will do so as providers of general business consultancy services rather than as information technology specialists.
1.4 Our work will be based on information supplied to us by you or Management and/or you to us, including Management’s business plan and forecasts and other management reports. Except to the extent otherwise stated in any Deliverables, our work will be carried out on the basis that such information is accurate and not misleading and we will not verify it or check it in any way.
1.5 Where the Services include consideration of any financial information about the future (projections) this clause 1.5 applies:
1.5.2 Our work will not constitute an Examination or Compilation engagement and we will not prepare projections. When we comment on bases and assumptions underlying the projections, our report may include tables aggregating quantifiable vulnerabilities and sensitivities in order to illustrate effects of possible alternative assumptions. These tables should not be regarded as a restatement of Management’s projections, or preparation of revised projections; they are provided as a means of summarising our comments to assist you in considering their implications for the Transaction.
1.5.3 In the event that any projections presented to us for comment are of such poor quality that suggesting adjustments in our Report would amount to preparation or re-preparation of projections, we will not propose adjustments but will discuss with you whether revised projections will be prepared for us to consider.
1.5.4 You acknowledge that when considering information presented in our Report, including likely future profitability and cash flows, it is your responsibility to consider any comments we may make and make your own decision based on the information available to you.
1.5.5 Because events and circumstances frequently do not occur as expected, there will usually be difference
between predicted and actual results, and those deficiencies may be material. We take no responsibility for the achievement of projected results.
1.5.6 Where Deliverables are skeleton, draft or outline documents, they will be provided as aids for you to formulate, document and implement your plans; they will require input from your management team and are not offered as final documents or recommendations.
1.6 The Services do not include the provision of legal advice.
1.7 You confirm that you do not require us to: make investment decisions; prepare a valuation of any Target; provide investment advice (which includes such services as recommending whether the Transaction should proceed and advising on price); determine levels of finance; act or negotiate on your behalf or act as management. These matters are your responsibility. On this basis, we do not consider that the Services amount to regulated activities for the purpose of the Financial Services Act 2012.


2. Deliverables
2.1 We will prepare any Deliverables specified in the Engagement Letter and deliver these to you.
2.2 A Deliverable will be accepted by you ten working days after delivery to you, unless we have received written notice of non-acceptance.
2.3 In the course of providing the Services we may provide oral comments, or drafts of written reports, presentations, letters, schedules or hard or soft copies of computer models. In so far as any such draft or oral report is inconsistent with any subsequent final Deliverable or written confirmation, it will be deemed to be superseded by the final Deliverable or written confirmation.


3. Confidentiality and related matters

3.1 Responsibilities:
3.1.1 We will treat Confidential Information as confidential. In respect of any Personal Data you provide to us in connection with the Services we will comply with our obligations under the Data Protection legislation of England (“Data Protection legislation”) and keep such data confidential and secure.
3.1.2 You agree to treat all Deliverables as confidential. You agree not to pass our Deliverables to third parties by any means without our prior written consent.
3.1.3 In respect of any Personal Data provided to you by SJPC in connection with the services you agree to comply with the Data Protection legislation and in particular undertake to keep such data confidential and secure.
3.1.4 In respect of any Personal Data that you provide to us in connection with the Services, you confirm that processing such data in accordance with the terms of this Contract will not place SJPC in breach of the Data Protection legislation.
3.1.5 The Personal Data provisions of clauses 3.1.1, 3.1.3 and 3.1.4 are for the benefit of and may be enforced by any Data Subject whose Personal Data is processed in connection with the Services, but only to the extent that the Data Subject would be entitled in the same or similar circumstances to enforce the equivalent provisions under UK Data Protection legislation.
3.2 Disclosure:
3.2.1 Nothing in clauses 3.1.1 or 3.1.2 requires either of us to keep confidential any information or document which:
(i) is or becomes generally available to the public other than as result of a breach of an obligation under clause 3.1; or
(ii) is known to us prior to starting to provide the Services; or
(iii) is received from a third party who owes no obligation of confidence in respect of the information
3.2.2 Notwithstanding clauses 3.1.1 and 3.1.2 either of us may disclose information or documents to the extent that the disclosing party reasonably believes that the disclosure is required by law or professional regulation.
3.2.3 You agree that we may share Confidential Information and Personal Data with Contractors on the understanding that we shall take reasonable steps to ensure that recipients are required to safeguard confidentiality and to maintain technical and organisational security measures to prevent any unauthorised or unlawful disclosure or processing of such information and data and/or accidental loss or destruction of or damage to such information and data.
3.2.4 We may disclose Confidential Information to our insurers and/or legal advisers, provided that Confidential Information remains confidential.
3.2.5 Subject to 3.1.1 above, and once the Transaction/Service is no longer confidential, we may cite the performance of the Services to our clients and prospective clients as an indication of our experience.
3.2.6 You may disclose our Deliverables to third parties to the extent that we have given our express written consent, whether in these Terms of Business or otherwise. Unless we have given our consent in these Terms of Business, we may, at our discretion, withhold consent or give our consent subject to receiving a letter in a form acceptable to us signed by the proposed recipient third party seeking access (or by you) promising to reimburse us and/or Contractors, in respect of claims by any third party.
3.2.7 You may make copies of our Deliverables available to your directors and those employees involved in the management of the Transaction/Services, your financial and other professional advisers provided that in each case you take reasonable steps to ensure that you understand that:
(i) our Deliverables are confidential and may not be disclosed to any other person without our prior written consent;
(ii) in respect of Personal Data, they are required to comply with the Data Protection legislation
(iii) they may use our Deliverables only for the purpose of advising you in relation to the Transaction; and
(iv) we accept no duty of care to them in respect of any use they may make of our Deliverables.

4. Your responsibilities
4.1 You confirm that the Services as described in this Contract are appropriate to meet your needs. Should you choose to act on any advice we give, you will be responsible for implementation, while we will assist you in achieving desired outcomes.
4.2 You will obtain and maintain all third party consents necessary to permit us to use any software, or any other proprietary information or property of any third party, used by you in the course of your business which we need to use in order to provide the Services. Where a Deliverable comprises a document in electronic form prepared using third party software, you will obtain and maintain all third party consents or licences necessary in respect of your use of the Deliverable.
4.3 You will take reasonable steps to ensure that members of your staff and senior management are available to provide such assistance and consultation as we reasonably require to enable us to provide the Services and that such personnel have the appropriate skills to work effectively with us.
4.4 You agree to provide on a timely basis all information, materials and assistance reasonably required to enable us to provide the Services. You will take reasonable steps to ensure that all information provided is accurate and not misleading in any material respect. You agree to notify us if you subsequently learn that any information provided is, to any material extent, incorrect or incomplete or otherwise should not be relied upon.
4.5 You will:
i) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier; and
ii) keep and maintain all materials, equipment, documents and other property of SJPC at your premises in safe custody at your own risk, maintain them in good condition until returned to the Supplier, and not dispose of or use them other than in accordance with our written instructions or authorisation.
4.6 If performance of any of our obligations under the Contract is prevented or delayed by any act or omission on your part or your failure to perform any relevant obligation, then:
i) SJPC shall without limiting its other rights or remedies have the right to suspend performance of the Services until you remedy your default, and to rely on such default to relieve it from the performance of any of its obligations to the extent that default prevents or delays the performance of any of our obligations.
ii) We shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations; and
iii) you will reimburse SJPC on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from your default.


5. Electronic Communications
5.1 During the engagement we may wish to communicate electronically with each other. However the electronic transmission of information cannot be guaranteed to be secure or virus or error free and consequently such information could be intercepted, corrupted, lost, destroyed, arrive late or otherwise be adversely affected or unsafe to use. SJPC may also need to access SJPC electronic information and resources during the engagement. You agree that there are benefits to each of us in being able to access the SJPC network via your internet connection and that they may do this by connecting their SJPC laptop computers to your network. We each understand that there are risks to each of us associated with such access, including in relation to security and the transmission of viruses.
5.2 Each of us will be responsible for protecting our own systems and interests in relation to electronic communications and, save to the extent provided by clause 8.1, neither you nor SJPC (in each case including our respective partners , employees, contractors, sub-contractors or agents) will have any liability to each other on any basis, whether in contract, tort (including negligence) or otherwise, in respect of any error, damage, loss or omission arising from or in connection with the electronic communication of information between us and our respective reliance on such information or our use of your network or internet connection.


6. Fees
6.1 You agree to pay our fees for the Services and our out of pocket expenses reasonably and properly incurred in providing the Services. Details of our fees for the Services will be set out in writing which for this purpose will include electronic mail and agreed with you and will form part of this Contract.
6.2 Our fees will reflect such factors as complexity, specialist input (including the use of expertise, systems, techniques, methodologies, ideas, concepts, information and know-how developed by SJPC and time spent, and will take into account urgency and inherent risks.
6.3 Any fee estimate given by us will be given in good faith but is not contractually binding. Fee estimates will be subject to the stated caveats and assumptions and to any factors outside our control. We will notify you if it becomes reasonably apparent that an estimate is likely to be materially exceeded.
6.4 Fees will be invoiced monthly in advance and will be payable within 14 days of your receipt of the invoice. Monthly expenses will be invoiced monthly in arrears, and added to next fee invoice.
6.5 You will pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).


7. Commencement and Changes
7.1 If we have commenced the performance of the Services prior to the date on which you sign this Contract, this Contract will nonetheless cover the performance of such Services. The Contract will continue until all the Services and Deliverables have been provided unless it is terminated earlier in accordance with clause 9.
7.2 Either of us may request changes to the Services. Changes must be agreed between us and will be subject to reasonable adjustments to the fees and timetable. Changes which amount to the provision of additional services, rather than adjustment to the services already agreed, must be agreed in writing. Nevertheless, if in connection with the Services we provide additional services which have not been agreed in writing, those additional services will be carried out as part of this Contract and subject to its terms (unless at our discretion they are expressly subject to a separate written engagement contract).


8. Limitation of Liability - YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 Nothing in the Contract shall limit or exclude the Supplier's liability for:
i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
ii) fraud or fraudulent misrepresentation; or
iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
8.2 Subject to clause 8.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
i) loss of profits;
ii) loss of sales or business;
iii) loss of agreements or contracts;
iv) loss of anticipated savings;
v) loss of use or corruption of software, data or information;
vi) loss of damage to goodwill; and
vii) any indirect or consequential loss.
8.3 Subject to clause 8.1, the Supplier's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to three times the total fees paid under the Contract.
8.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.5 This clause 8 shall survive termination of the Contract.
8.6 Deliverables will be prepared for the purpose of the Project. We have no responsibility to you in respect of any use you make of the Deliverables for any other purpose.


9. Termination
9.1 Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party three months' written notice provided that you will pay us reasonable fees and expenses, taking into account the circumstances of termination, for us providing the Services up to the date of termination. Where you terminate the Contract before its completion other than for material breach, you will pay any additional costs that we may reasonably incur in connection with the early termination.
9.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
i) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 21 days of that party being notified in writing to do so;
ii) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
iii) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
iv) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without limiting our other rights or remedies, we may terminate the Contract with immediate effect by giving written notice to you if you fail to pay any amount due under the Contract on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment.
9.4 Without limiting its other rights or remedies, we may suspend provision of the Services under the Contract or any other contract between us if you become subject to any of the events listed in clause 9.2 ii) to clause 9.2
iv) or we reasonably believe that you are about to become subject to any of them, or if you fails to pay any amount due under this Contract on the due date for payment.


10. Consequences of Termination
On termination of the Contract for any reason:
i) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
ii) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
iii) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
iv) clauses which expressly or by implication survive termination shall continue in full force and effect.


11. General
11.1 Timetable Where a timetable is agreed, we will each use reasonable efforts to carry out our respective obligations in accordance with the timetable.
11.2 Ownership of rights and documents We own the intellectual property rights (including, without limitation, any copyright) in our working papers, letters and Deliverables. You may however make copies of the Deliverables for use in accordance with the provisions of this Contract. However:
11.2.1 SJPC and our clients may use any of the following in any way we deem appropriate and without any obligation to account to you for such use: (i) Pre-existing Works, and (ii) subject to clause 3.1.1, anything developed during the course of the Contract by SJPC Personnel, including any spreadsheets, databases, systems, techniques, methodologies, ideas, concepts, information and know-how.
11.2.3 On termination or completion of the Contract, we may retain one copy of any documentation or software prepared by us or any other documentation upon which our Services are based to enable us to maintain a professional record of our involvement. You may maintain your originals and any copies of Deliverables and letters made in accordance with the provisions of this Contract.
11.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed
deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.4 Entire agreement
a) This agreement 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.
b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
11.5 Conflicting terms In the event of any conflict between the Engagement Letter, Terms of Business or any other document which forms part of the Contract, the Terms of Business will take precedence except to the extent amended in the Engagement Letter by specific reference to the relevant clause of these Terms of Business. In the event and only to the extent of any conflict between the Engagement Letter and any other document which forms part of the Contract, other than the Terms of Business, the Engagement Letter will take precedence.
11.6 Staff. Where individual or members of our staff are named in the Engagement Letter we will use reasonable efforts to ensure that the named individual(s) are available to support our work for you for the estimated period stated in the Engagement Letter. Where we consider changes in our named staff are necessary or appropriate, we will give you reasonable notice of the changes and we will provide you with details of the replacement staff.
11.7 Subsequent employment. During the period of this Contract and/or within 6 months of its termination neither you nor we will:
i) solicit directly or indirectly any Contract Team Member of the other to leave the employment of the other; nor
ii) seek to employ or employ any Contract Team Member of the other.
11.8 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.9 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
i) waive that or any other right or remedy; or
ii) prevent or restrict the further exercise of that or any other right or remedy.
11.10 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.11 Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
11.12 Assignment.
a) We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of our rights under the Contract and may subcontract or delegate in any manner any of our obligations under the Contract to any third party or agent.
b) You shall not, without our prior written consent, which we will not unreasonably withhold, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights or obligations under the Contract.
11.13 Notices.
a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next-working day delivery service, commercial courier, fax or email.
b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.13 a); if sent by pre-paid first class post or other next working day delivery service, at 10.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.14 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.15 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.


12. Definitions
For the purpose of the Contract the following expressions shall have the following meanings:
12.1 “Each of us”, “Either of us” or any similar expressions refer to SJPC and the addressee(s) of the Engagement Letter.
12.2 “you” or the “Client” mean the addressee or addressees of the Engagement Letter
12.3 “Confidential Information” means information or documents which we receive or produce for the purpose of providing the Services and which are market confidential or are manifestly confidential, but does not include any information which:
(i) is or becomes generally available to the public other than as a result of a breach of an obligation under clause 3.1, or
(ii) is known to us prior to starting to provide the Services, or
(iii) is received from a third party who owes no obligation of confidence in respect of the information.
12.4 The “Contract” means the agreement between us as set out in these Terms of Business and the Engagement letter, and any changes to the Contract agreed between us under clause 7.2 above.
12.5 “Contract Team Member” means any person who is or was involved in providing or receiving the Services or is or was otherwise connected with this Contract.
12.6 “Contractor” means any third party entity or individual engaged by SJPC whether in respect of the Services or more generally to support the administration and management of SJPC.
12.7 “Damage” means the aggregate of all losses or damages (including interest thereon if any) and costs suffered or incurred, directly or indirectly, by the Clients under this Contract or in connection with the Services or the Deliverables, whether as a result of breach of contract, breach of statutory duty, tort (including negligence), or other act or omission by us.
12.8 “Data Controller”, “Data Processor”, and “Data Subject” have the same meanings in this contract as in the Data Protection legislation.
12.9 The “Deliverables” are specified in the Engagement Letter. A Deliverable may be an oral comment or a draft or final document, report, software, presentation, training session or other work product, as the context requires and whether in hard copy or electronic form, provided to you in connection with the Services. References to Deliverable includes reference to any part of any Deliverable.
12.10 “Engagement Letter”: means the letter sent to you with these Terms of Business, setting out further details of the Services and the terms of the Contract between us. The Engagement Letter includes its (if any) and any separate agreement on fees.
12.11 “Engagement Director” means the individual responsible for the provision of the Services and named in the Engagement Letter.
12.12 “Management” means the managers of any entity or business that supplies information to us in connection with the Services, as the context requires.
12.13 “Personal Data” has the same meaning in this Contract as in the Data Protection legislation.
12.14 “Personnel” means each of those individuals who is a Contractor, a director or employee of a Contractor, or a director or employee of SJPC.
12.15 “Pre-Existing Works” means any materials or software (whether written or machine-readable) proprietary methodologies, templates, forms, spreadsheets, databases and other electronic tools created by or licensed by SJPC to this Contract or outside this engagement, and any subsequent modifications thereto.
12.16 the “Project” means your project as described in the Engagement Letter in connection with which we have been engaged to provide the Services.
12.17 the “Services” are those services to be provided under the terms of this Contract; they are described in the Engagement Letter. The Services also include any changes agreed under clause 7.2 above to the scope of the work.
12.18 the “Transaction” means any specific transaction or proposed transaction identified in the Engagement Letter, in connection with which we have been engaged to provide the Services. Typically, a Transaction will involve the sale or purchase of an interest in a company or business.