Watts Sustainability Ltd Terms and Conditions
Sustainability Services Agreement (“SSA”)
1. Scope
1.1. This Agreement sets out the basis upon which Watts Sustainability shall undertake Services for the Client in accordance with the associated Proposals. This Agreement governs all business entered into or outstanding between Watts Sustainability and the Client on or after the Commencement Date until the Termination Date (Term).
1.2. Watts Sustainability will undertake Services on the basis of individual Proposals.
1.3. The Client shall be entitled from time to time to request in writing the provision of Services from Watts Sustainability.
1.4. Within a reasonable period, Watts Sustainability shall:
1.5. either notify the Client that it is not able to provide the requested Services; or
1.6. Raise a new Proposal to the client which the Client shall duly execute before Services commence.
1.7. Each Proposal forms a separate contract between the Parties.
1.8. Any amendments to this SSA agreed by the Client and Watts Sustainability in accordance with clause 11.1 shall be deemed to apply to all future Proposals entered after the date of such amendment.
1.9. The termination of any Proposal shall not affect any other Proposals or this SSA.
1.10. In the case of any conflict between this SSA and a Proposal, the terms of the Proposal takes precedence in relation to the given Project.
2. Services
2.1. Watts Sustainability shall provide, and the Client shall receive and pay for the Services.
2.2. For the avoidance of doubt, the Services shall not include the Excluded Services which shall be Additional Charges.
3. Watts Sustainability
3.1. Watts Sustainability agrees:
3.1.1. to carry out the Services with reasonable skill and care;
3.1.2. that the Team will perform their respective roles, responsibilities, obligations and duties as efficiently as reasonably possible;
3.1.3. to communicate progress as set out in the relevant Proposal;
3.1.4. to update the Client as soon as reasonably possible when issues arise; and
3.1.5. with respect to Training, that Watts Sustainability and/or the Training provided has the stated accreditation set out in the Proposal.
3.2. Watts Sustainability warrants to the Client that at the date of this Agreement, Watts Sustainability has obtained and will use reasonable endeavours to maintain for the duration of this Agreement all permissions, licences and consents for Watts Sustainability to perform the Services including in respect of the Watts Sustainability Background IPRs.
3.3. Watts Sustainability warrants to the Client to comply with all Client guidelines and regulations of which it is notified with respect to access to Client Materials, premises, website, software and services in the course of the Services to the extent reasonable.
3.4. It is acknowledged that any Deliverables are informational only as relevant requirements and input information are subject to change.
3.5. All other conditions, warranties or other terms which might have effect between the Parties whether express, implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for a particular purpose and the use of reasonable skill and care.
3.6. Watts Sustainability shall not be accountable for any information or input provided by the Client or beyond Watts Sustainability’ reasonable control.
4. Clients
4.1. The Client shall :
4.1.1. obtain and shall maintain all necessary licences, consents, and permissions necessary for Watts Sustainability to perform its responsibilities, obligations and duties under this Agreement, including with respect to sharing the Client Materials;
4.1.2. supply Watts Sustainability with all requested information and Client Materials on request and in a timely manner, ensuring the accuracy of all Client Materials.
4.1.3. actively co-operate with Watts Sustainability in the provision of the Services promptly including:
4.1.3.1. participating in all reasonably requested meetings, calls and updates, responding promptly and providing feedback to the Team;
4.1.3.2. granting Watts Sustainability reasonable access to the Client’s premises, website, software, services, systems and tools as required for the provision of the Services at mutually convenient times, free of charge.
4.1.4. ensure that the required Services are clearly set out in the Proposal at the outset.
4.2. The Client shall be accountable for all information provided by the Client including without limitation in the Client Materials and acknowledges that Watts Sustainability shall have no liability for any loss or damage to the Client Materials, howsoever caused.
4.3. The Client acknowledges that whilst Watts Sustainability will employ reasonable endeavours to complete stages within corresponding timeframes cited in a Proposal, such timeframes are indicative and rely on Client collaboration, timely provision of information and factors beyond Watts Sustainability’s reasonable control.
5. Payment
5.1. In consideration of the Services provided by Watts Sustainability to the Client, the Client shall pay Watts Sustainability the Project Fee in addition to any Additional Costs and Disbursements notified by Watts Sustainability to the Client per Invoicing Period in accordance with the relevant Proposal.
5.2. The first Invoicing Period starts on the Commencement Date defined in the associated Proposal.
5.3. Watts Sustainability shall determine when a stage has completed in accordance with the Proposal and will then raise an invoice.
5.4. All amounts charged to the Client by Watts Sustainability shall be exclusive of VAT or relevant local sales tax (if any) which shall be paid by the Client at the rate and in the manner for the time being prescribed by law.
5.5. The Client shall pay all invoices to Watts Sustainability by the due date stated in that invoice or within thirty calendar days of the date of invoice, whichever is earlier, in full, without any set-off or deduction. Time is of the essence with respect to payment.
5.6. All invoices are final. The Client agrees that all proposed outputs are indicative and are not conditions of payment.
5.7. If the Client fails to make any payment due to Watts Sustainability under this Agreement by the due date for payment, then, without limiting Watts Sustainability’ remedies under this Agreement, Watts Sustainability may, at its discretion:
5.7.1. cease providing the Services in which case all outstanding invoices and costs incurred to date in respect of the Project shall remain payable in accordance with clause 10;
5.7.2. send out a reminder to the Client on or around 30 days following the date of invoice (invoice+30 days) and will include an additional £30.00 in administration fees plus compound interest of 5% over the base rate per month on the full invoice amount from the original due date, this interest will continue to accrue until full settlement is received on each late payment; and
5.7.3. following a further 30 days (invoice+60 days) forward the case to the appropriate debt recovery service for the invoiced amount plus charges. The Client shall reimburse Watts Sustainability in full for the cost of any fees or other costs incurred in connection with such debt collection.
6. Training Cancellation and Postponement
6.1. Where the Project includes Training, such Training booking will be subject to the cancellation and postponement conditions set out in this clause 6.
6.2. The following percentages of the Project Fee set out in the relevant Proposal will be payable should the Client postpone or cancel Training:
6.2.1. in writing in excess of 15 days of the Training Delivery Date, the Project Fee will not be payable, only expenses incurred (such as travel and accommodation) will be payable;between 8-14 days prior to the Training Delivery Date; 50% of the Project Fee will be payable; and
6.2.2. within 7 days of the Training Delivery Date; 100% of the Project Fee will be payable
7. Liability
7.1.The Client acknowledges and agrees that, except as expressly provided in this Agreement, the Client assumes sole responsibility for:
7.1.1. results obtained from the use of the Deliverables by the Client, and for conclusions drawn from such use;
7.1.2. all problems, delays and delivery failures and all other loss arising from or relating to the Client’s network connections, telecommunications links or facilities and acknowledges that the Services and the Deliverables may be subject to limitations, delays and other problems inherent in the use of such connections, links or facilities;
7.1.3. loss or damage arising from or relating to any Relief Event.
7.2. Neither Party excludes or limits liability to the other Party for:
7.2.1. fraud or fraudulent misrepresentation;
7.2.2. death or personal injury caused by negligence;
7.2.3. any other liability which cannot be limited or excluded by applicable law.
7.3. Watts Sustainability shall not be liable to the Client or any other person for any loss or liability (whether direct or indirect) under or in relation to this Agreement or any other contract, or for any consequential or pure economic loss or damage of any kind in connection with this Agreement or the Services being inaccurate or incomplete in any way.
7.4. Watts Sustainability shall have no liability for failure to perform the Services or its other obligations under this Agreement if it is prevented, hindered or delayed in doing so as a result of any Relief Event.
7.5. If Watts Sustainability incurs any loss or expense as a result of a Relief Event, Watts Sustainability shall be entitled to compensation from the Client to place Watts Sustainability in the same position it would have been in had the Relief Event not occurred.
8. Confidential Information
8.1. Each of the Parties shall (and shall ensure that each of its Representatives shall) keep the other Party’s Confidential Information confidential and shall not:
8.1.1. use such Confidential Information except for the purpose of exercising its rights or performing its roles, responsibilities, duties and obligations under this Agreement (Permitted Purpose); or
8.1.2. disclose such Confidential Information in whole or in part to any third party except as expressly permitted by this clause.
8.2. A Party may disclose the other Party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
8.2.1. it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
8.2.2. at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
8.3. A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including any relevant securities exchanges) or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible.
8.4. Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this agreement are granted to the other Party, or to be implied from this agreement.
8.5. The provisions of this clause 8 shall survive for a period of five years from termination of this agreement.
9. Intellectual Property Rights
9.1. Watts Sustainability and its suppliers shall retain ownership of all Watts Sustainability Background IPRs. The Client and its licensors shall retain ownership of all Client Background IPRs and the Client shall own all Foreground IPRs.
9.2. Watts Sustainability assigns to the Client the Foreground IPRs.
9.3. The Client acknowledges that the Client’s use of any Digital Assets is conditional on the Client obtaining a written end-user license (or sub-license) of such rights from the relevant licensor or licensors.
10. Implementation,Duration and Termination
10.1. This Agreement shall commence on the Commencement Date and, subject to clause 10.2, shall continue indefinitely thereafter until terminated by either Party giving at least one month’s prior written notice provided that:
10.1.1. any Termination Compensation shall be payable by the Client; and
10.1.2. this Agreement shall remain in full force while Services are being provided pursuant to a Proposal and termination of this Agreement under such written notice shall be deemed to occur on termination of any outstanding Proposals (Deemed Termination).
10.2. This Agreement may be terminated immediately by notice in writing:
10.2.1. by Watts Sustainability if the Client fails to pay any sums due under this Agreement in accordance with clause 5.7.1; or
10.2.2. by either Party if the other Party is in material breach of any of its obligations under this Agreement and fails to remedy the breach (if capable of remedy) within 30 days of receiving written notice specifying the details of the breach and requiring it to remedy that breach; or
10.2.3. by either Party if an order is made or resolution passed for winding-up of the other Party or an application is made for administration (or filing of documents with the court in support of such an application) in relation to the other Party, or the other Party’s directors make a proposal for a voluntary arrangement or the other Party makes or seeks to make any composition or arrangement with its creditors or is unable to pay its debts or a receiver or an administrative receiver is appointed over all the assets of the other Party or any substantial part of its assets or if the other Party ceases or threatens to cease to carry on business.
10.3. Termination of this Agreement, however arising, shall not affect or prejudice the accrued rights of the Parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination including without limitation clause 12 (Definitions), clause 5 (Payment), clause 7 (Liability), clause 8 (Confidential Information), clause 9 (Intellectual Property Rights), clause 10 (Termination), clause 11 (General Terms).
11. General Terms
11.1. Variation: Watts Sustainability may at any time, by notifying the Client, make any changes to the Services which are necessary to comply with any applicable safety or legal/regulatory requirements. No other variation of the terms of this Agreement or a Proposal shall be valid unless modified in writing by directors or authorised signatories of both Parties.
11.2. Entire Agreement: This Agreement represents the entire agreement between the Parties and supersedes any prior agreement (whether oral or written) relating to the matters in this Agreement. No terms and conditions from the Client shall form part of the Agreement. It is agreed that (a) no Party shall have any claim or remedy in respect of any statement, representation, warranty or undertaking made by or on behalf of the other Party (or any of its Representatives) which is not expressly set out in this Agreement; and (b) the only right or remedy of a Party in relation to any provision of this Agreement shall be for breach of this Agreement; provided that this clause shall not exclude any liability for (or remedy in respect of) fraud or fraudulent misrepresentation.
11.3. Non-solicitation Each Party hereby agrees that it will not at any time during the engagement or for a period of
twelve months immediately following the Termination Date either directly or indirectly induce, solicit, entice or procure any person employed or engaged by the other Party within the previous 12 months. In the event that either Party fails to comply with this clause a non-compensatory fine shall be payable to the other Party for each individual employed and/or contracted, in the amount of £[ ].
11.4. Advisory: Watts Sustainability shall not be restricted in providing similar services to other third parties.
11.5. Severability: If any of the provisions of this Agreement are judged to be illegal or unenforceable to any extent then that provision will to that extent be severed from the remaining terms which will continue to be valid and will remain in full force and effect.
11.6. Waiver: No forbearance or delay by either Party in enforcing its respective rights will prejudice or restrict the rights of that Party and no waiver of any such rights or of any breach of contractual terms will be deemed to be a waiver of any other right or of any later breach.
11.7. Assignment: Neither Party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any manner with any or all of its rights and obligations under this Agreement without the prior written consent of the other Party (such consent shall not be unreasonably withheld or delayed).
11.8. Notices: Any notice given under this Agreement must be in writing and may be delivered by email to the address set out in the Agreement and any such notice will be deemed to have been served, on confirmation of receipt by the receiving Party.
11.9. Force Majeure: Neither Party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from a Force Majeure Event. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 90 days, the Party not affected may terminate this agreement by giving 30 days’ written notice to the affected Party.
11.10. No Partnership or Agency: Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
11.11. Rights of Third Parties: This Agreement is not intended to be for the benefit of third parties and shall not be exercisable by any other person.
11.12. Data Protection: The Client may not transfer Watts Sustainability personal data collected by the Client. In the event that Watts Sustainability does process any Client personal data, it will do so in accordance with the privacy notice on its website, to which the Client has obtained the applicable consent.
11.13. Marketing: Watts Sustainability is entitled to refer to the Client on the Watts Sustainability’ websites, and in all press releases and marketing materials.
11.14. Counterparts: This Agreement and any amendments hereto may be executed in writing or in electronic form and be delivered by electronic mail or any other transmission method. All counterparts so executed and delivered shall be deemed to have been duly executed and validly delivered. Each such counterpart will be considered an original, and when taken together, they will constitute a single and binding agreement for all evidentiary purposes.
11.15. Applicable Law: This Agreement 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 laws of England and Wales. Each Party irrevocably agrees that the courts of England & Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement.
11.16. Ethical Trading: Watts Sustainability is committed to upholding the Ethical Trading Initiative Base Code on ethical trade, and we expect all clients and suppliers to adhere to the same principles in their own operations and supply chains.
12. Definitions
12.1. Additional Charges: any additional costs (with reference to the Contract Day Rate) incurred by Watts Sustainability as a result of variations to the Proposal or specifications set out therein or the actions or inactions of the Client not in accordance with this SSA;
12.2. Agreement: this agreement together with any Proposal between the Parties, schedules and appendices thereto and any accompanying documents and resources being used as agreed by both Parties in writing from time to time;
12.3. Business Systems: the information technology and communication systems, including networks, hardware, software and interfaces owned by, or licensed to, the Client or its group companies or any of its agents or contractors;
12.4. Client Background IPRs: all Intellectual Property Rights in the Client Materials;
12.5. Client Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Client in any form;
12.6. Commencement Date: as set out in the Agreement;
12.7. Confidential Information: any information disclosed by a Party, its employees, officers, representatives, contractors or advisers (together Representatives) to the other Party and that Party’s Representatives in connection with the Client Project concerning:
12.7.1. any information that would be regarded as confidential by a reasonable business person relating to:
12.7.1.1. the business, affairs, customers, clients, suppliers or plans, intentions or market opportunities of the disclosing party; and
12.7.1.2. the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party or a party connected to the disclosing party;
12.7.2. any information or materials developed by the Parties in the course of carrying out or in connection with this Agreement;
12.8. Contract Day Rate: as set out in the relevant Proposal in respect of any Additional Charges incurred (Project specific);
12.9. Deliverables: all products and materials developed by Watts Sustainability in any media pursuant to this Agreement including without limitation computer programs, data, diagrams, Training slides/programs, reports and specifications (including drafts);
12.10. Digital Assets: includes without limitation files, electronic mails, digital documents, audible content, images, motion picture, and relevant digital files;
12.11. Disbursements: are in addition to the Project Fee and includes:
12.11.1. the cost of hotel, travel costs and any ancillary expenses reasonably incurred by Watts Sustainability in connection with the Project; and
12.11.2. the cost of any materials or services provided by third parties agreed by the Client for the supply of the Services;
12.12. Excluded Services: any services other than those expressly specified as Services in the relevant Proposal as agreed between the Parties;
12.13. Force Majeure Event: event, circumstance or cause beyond either Party’s reasonable control, including fire, strikes, insurrection, riots, embargoes, shortage of materials, power or fuel, terrorist activity, delays in transportation, requirements of civil or military authority, war, civil unrest, failures and delays in the banking or payment collections or payment transfer systems, any breakdown of plant or machinery, any failure of any computer software or hardware, any failure in a communications network or any default of suppliers or sub-contractors or illness of a Team member who cannot be replaced;
12.13. Foreground IPRs: all Intellectual Property Rights in the Deliverables, other than Watts Sustainability Background IPRs;
12.14. Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
12.15. Invoicing Period: as set out in the relevant Proposal;
12.16. Project: a project undertaken by Watts Sustainability for the Client in which Watts Sustainability provide Services as set out in the relevant Proposal;
12.17. Project Fee: the agreed Project Fee set out in each Proposal plus any Additional Charges incurred with reference to the Contract Day Rate cited for the Project exclusive of VAT;
12.18. Proposal: an agreement for the provision of Services by Watts Sustainability to the Client under this SSA agreed in accordance with clause 1;
12.19. Watts Sustainability Background IPRs: all Intellectual Property Rights that are owned by or licensed to Watts Sustainability and which are or have been developed independently of this Agreement;
12.20. Relief Events: The following events:
12.20.1. Any failure by the client to comply with their obligations or roles under this agreement
12.20.2. Any errors or malfunction in the Client Materials, Business Systems or any other software, hardware or systems for which Watts Sustainability is not responsible;
12.20.3. Any failure by the Client, its stakeholders, suppliers, agents or contractors to provide any information, co-operation or instructions to Watts Sustainability which is reasonably required by Watts Sustainability for the proper performance of its obligations under this agreement; or
12.20.4. Any act or omission of the Client, or any other third par
12.21. Services: the services to be provided by Watts Sustainability to the Client as set out in the relevant Proposal;
12.22. Team: Watts Sustainability key personnel identified in the Proposal provided that Watts Sustainability may nominate alternative personnel if any or all of the key personnel become unavailable or due to recruitment of new personnel;
12.23. Training: sustainability training delivered by Watts Sustainability for the Project in accordance with a Proposal;
12.24. Termination Compensation: Payment for the resources committed to the outstanding Invoicing Period where a Client wishes to terminate a Proposal for convenience prior to the expiry of the Project plus accrued costs relating to the Project Fee, Disbursements and Additional Costs incurred;
12.25. Termination Date: date of termination or expiry of this Agreement;
12.26. Training Delivery Date: date on which Training has been agreed to be delivered by Watts Sustainability to a Client in a Proposal
