Terms and Conditions document - May 2024
IT IS HEREBY AGREED AS FOLLOWS 1. Interpretation
1.1. Except where the context requires otherwise, words importing the masculine shall include the feminine; words importing the singular shall include the plural; words importing natural personage shall be equally applicable to corporate personage; and vice versa.
1.2. References to any statutory provision, authority, rule or code of practice shall be deemed to include the amended versions, replacements or successors of such.
1.3. The following definitions apply in this agreement:
‘Client Property’: all documents, books, manuals, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the business or affairs of the Client or its customers and business contacts, and any equipment, keys, hardware or software provided for SBM Services (uk) Ltd’s use by the Client during the agreement, and any data or documents (including copies) produced, maintained or stored by SBM Services (uk) Ltd on the Client or SBM Services (uk) Ltd’s computer systems or other electronic equipment during the agreement.
‘Confidential Information’: information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of the Client for the time being confidential to the Client and trade secrets including, without limitation, technical data and know-how relating to the business of the Client or any of its pupils, suppliers, customers, agents, distributors, shareholders, management or business contacts and including (but not limited to) information that SBM Services (uk) Ltd creates, develops, receives or obtains in connection with this agreement, whether or not such information (if in anything other than oral form) is marked confidential.
’Intellectual Property’: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world as at the date of this agreement or in the future.
2. Relationship Between the Parties
2.1. The Client shall engage SBM Services (uk) Ltd who shall provide the services on the terms of this agreement as outlined in the quotation documentation.
2.2. The relationship of SBM Services (uk) Ltd to the Client will be that of independent contractor and nothing in this agreement shall render him or any representative of SBM Services (uk) Ltd as an employee, worker, agent or partner of the Client and the SBM Services (uk) Ltd representative shall not hold himself out as such.
2.3. Neither party shall assign or transfer any of their rights, liabilities or obligations arising under this agreement without the prior written consent of the other party.
3. Term of Agreement
3.1. For subscription clients (financial management support packages, data protection support packages and the SBM Toolkit subscriptions), this agreement will commence immediately and will auto renew in 12 months, unless notice is provided (see section 13).
3.2 For all other clients, this agreement will run for the duration of the contract that is in place between SBM Services and the Client.
4. The Services Provided: Consultancy Support
4.1. SBM Services (uk) Ltd shall provide consultancy services to the client as required and as mutually agreed with all due care, skill and ability and use his best endeavours to promote the interests of the Client.
4.2. The exact nature and detail of the services are as set out in the quote which will also require signing prior to the engagement of services.
4.3. Any amendment, extension or addition to the services must be agreed in writing.
4.4. SBM Services (uk) Ltd makes no guarantee that any particular services will be provided within a specific time frame or on any agreed dates and shall not be liable for any loss, damage or expense suffered by the Client as a result of any delay in service provision. However, all reasonable endeavours will be made to ensure that services will be delivered within the timescales agreed between the client and SBM Services (uk Ltd.)
4.5. SBM Services (uk) Ltd shall use reasonable endeavours to ensure that he is available at reasonable notice to provide such assistance or information as the Client may require but this will be subject to availability.
4.6. SBM Services (uk) Ltd shall:
a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
b) comply with the Client’s Anti-bribery and Anti-corruption Policies as the Client may update from time to time.
c) promptly report to the Client any request or demand for any undue financial or other advantage of any kind received by SBM Services (uk) Ltd in connection with the performance of this agreement.
d) ensure that all persons associated with SBM Services (uk) Ltd or other persons who are performing services in connection with this agreement comply with this Clause 4.6
4.7. Failure to comply with Clause 4.6 may result in the immediate termination of this agreement.
5. The Services Provided: The SBM Toolkit
5.1. SBM Services (uk) Ltd shall provide access to The SBM Toolkit to the Client where a Silver Toolkit, Gold Toolkit or Platinum Toolkit subscription has been entered into.
5.2. SBM Services (uk) Ltd hereby grant the Client a non-exclusive, non- transferable licence to access all resources within the SBM Toolkit solely for their business purposes (and for the avoidance of doubt, nothing in this Agreement grants the Client any rights whatsoever in or relating to the source code of the tools and resources). The Client may use, view, search and print the content of the SBM Toolkit for their own business purposes.
5.3. The Client can nominate Authorised Users from their organisation who will be provided with an account to access The SBM Toolkit. The number of Authorised Users is not restricted. However, where the Client is a multi-academy trust (MAT), Authorised Users are restricted to those that are employed by the settings within the MAT that individually have a valid subscription in place.
5.4. Whilst SBM Services (uk) Ltd will endeavour to ensure that all tools and resources are reflective of current legislation and guidance, the Client is solely responsible for the appropriate use and adaption of The SBM Toolkit tools and resources for their own use. The Client is also responsible for seeking appropriate financial, legal and technical advice; using resources within The SBM Toolkit does not take the place of appropriate technical advice.
5.5. The Client is responsible for configuring their own information technology, computer programmes and platforms in order to access the SBM Toolkit. The Client should use their own virus protection software.
5.6. SBM Services (uk) Ltd will use all reasonable endeavours to ensure that The SBM Toolkit platform is available continuously and that access to The SBM Toolkit is not interrupted by any event within their control. SBM Services (uk) Ltd will notify the Client in advance of any planned downtime, which, if reasonably practicable, will be scheduled outside normal UK office hours.
5.7. The Client must not allow any third party to make use of or benefit from information and resources contained within The SBM Toolkit. The Client and any Authorised Users must not grant any other third party permission to host or make use of any information and/or resources derived from The SBM Toolkit.
5.8. SBM Services (uk) Ltd have the right to immediately disable the Client’s access to The SBM Toolkit at any time if the Client has failed to comply with any of the provisions of this Agreement.
5.9. The Client will take steps to ensure that Authorised Users are aware of and comply with these terms and conditions.
6. Payment for Services6.1. Where SBM Services (uk) Ltd provides services to the Client as mutually agreed he shall charge the Client the sum agreed in the quote plus VAT.
6.2. SBM Services (uk) Ltd will raise invoices for the Client in accordance with the following billing schedule:
| Financial management consultancy: bespoke contracts £10,000 or higher per annum | Evenly split, termly invoices |
| Financial management consultancy: bespoke contracts under £10,000 per annum | Invoiced in full at the start of the contract |
| Financial management consultancy: pay as you go | One month in arrears |
| Financial management consultancy: subscription | Invoiced in full at the start of the contract |
| Internal Audit | Start of the term that the audit is booked for |
| Data Protection subscriptions | Invoiced in full at the start of the contract |
| SBM Toolkit | Invoiced in full at the start of the contract |
6.3. The Client shall settle all invoices which are raised against him by SBM Services (uk) Ltd within the credit terms specified on the invoice. Where the Client is late in making payment SBM Services (uk) Ltd shall be entitled to recover from him all reasonable costs and expenses incurred in securing payment.
6.4. Payment in full or in part of the fees claimed under Clause 5 or any expenses claimed under Clause 6 shall be without prejudice to any claims or rights of the Client against SBM Services (uk) Ltd in respect of the provision of the services.
7. Expenses
7.1. Fees quoted for services are usually inclusive of all expenses incurred in the provision of such services. Where this is not the case this will be explicitly stated in the quotation documentation, including the process for claiming. The Client shall reimburse all reasonable expenses as set out in the quotation documentation.
8. Client’s Obligations
8.1. The Client shall provide SBM Services (uk) Ltd with such information, support, co-operation and facilities as may be necessary in order to provide the services.
8.2. The Client agrees and covenants that he will not recruit or attempt to procure the recruitment of any employee of SBM Services (uk) Ltd between the signing of this agreement and the expiration of 12 months from the completion of the services or any extension or addition to these services which is agreed in writing.
9. Confidentiality
9.1. SBM Services (uk) Ltd acknowledges that in the course of this agreement they will have access to Confidential Information. SBM Services (uk) Ltd has therefore agreed to accept the restrictions in this Clause 8.
9.2. SBM Services (uk) Ltd shall not (except in the proper course of his duties), either during the term of this agreement or at any time after the termination of this agreement, use or disclose to any third party (and shall use his best endeavours to prevent the publication or disclosure of) any Confidential Information. This restriction does not apply to:
a) any use or disclosure authorised by the Client or required by law; or
b) any information which is already in, or comes into, the public domain.
9.3. At any stage during this agreement, SBM Services (uk) Ltd will promptly, on request, return all and any Client Property in their possession to the Client.
9.4. Where SBM Services (uk) Ltd provides services to the Client through a delegate such a subcontractor, SBM Services (uk) Ltd will ensure that the said delegate signs a comparable confidentiality undertaking.
10. Data Protection
10.1. SBM Services (uk) Ltd consents to the Client holding and processing data relating to them for legal, personnel, administrative and management purposes.
10.2. SBM Services (uk) Ltd holds and processes data relating to the Client in order to enable them to fulfil their contractual obligations and related to managing the administration of the contract. Data will be held and processed in line with their privacy notice and in accordance with the Data Protection Act 2018.
11. Intellectual Property
11.1. Where the Client provides SBM Services (uk) Ltd with documentation, literary materials or media in order to enable SBM Services (uk) Ltd to provide the services, there shall be no transfer of Intellectual Property vested in these, and the aforementioned Intellectual Property shall remain the sole property of the Client.
11.2. All Intellectual Property in the services provided and delivered to the Client by SBM Services (uk) Ltd shall remain the sole property of SBM Services (uk) Ltd and the Client shall not redistribute or publish this Intellectual Property without the prior written consent of SBM Services (uk) Ltd.
11.3. Neither the Client nor SBM Services (uk) Ltd claim or assert any rights to Intellectual Property belonging to any third party which may be used under licence or otherwise lawfully during the course of this agreement.
12. Termination
12.1. Without prejudice to Clause 3.1, either party may terminate this agreement with immediate effect without notice if the other party:
a) expressly or impliedly repudiates this Agreement by refusing or threatening to refuse to comply with any of the provisions of this agreement; or
b) goes into liquidation either compulsory or voluntary (save for the purpose of reconstruction or amalgamation); or
c) convenes any meeting of creditors or passes a resolution for winding up or suffers a petition for winding up; or
d) has an administrative receiver or receiver appointed over the whole or part of its assets or suffers the appointment of an administrator; or
e) being an individual has a bankruptcy order made against him or is declared en désastre, or compounds with his creditors or comes to any arrangements with any creditors; or
f) is wound up or a court of competent jurisdiction makes an order to that effect; or
g) commits a material breach of any term of this agreement (and, except in the case of a breach not capable of being remedied), such breach has not been remedied within 30 days of receipt of a written request to remedy the breach: or
h) is directed to do so by any regulatory authority; or
i) there is a change in control of such other party and for this purpose “control” shall have the meaning ascribed to it in Section 840 of the Income and Corporation Taxes Act 1988.
12.2. Upon termination of this agreement, outstanding payments in respect of services provided by SBM Services (uk) Ltd shall become immediately due.
13. Notices
13.1. Any notice given to a party under or in connection with this contract shall be in writing and shall be sent by email to info@sbmservices.co.uk:
13.2. Any notice shall be deemed to have been received at 9.00am on the next business day after transmission.
13.3. This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13.4. Notice periods for either party to end the contract are in accordance with the following schedule:
| Financial management consultancy: bespoke contracts £10,000 or higher per annum | One terms’ break clause can be invoked by either party during the contract period specified in 3.1.
Otherwise, SBM Services (uk) Ltd will send the renewal invite out 3 months ahead of the renewal date; the Client needs to confirm renewal within 2 months of the renewal date otherwise the contract will end in line with 3.1. |
| Financial management consultancy: bespoke contracts under £10,000 per annum | SBM Services (uk) Ltd will send the renewal invite out 3 months ahead of the renewal date; the Client is required to confirm renewal within 2 months of the renewal date otherwise the contract will end in line with 3.1. |
| Financial management consultancy: pay as you go | The Client is required to provide 1 weeks’ notice to cancel an appointment otherwise payment in full is required. |
| Financial management consultancy: subscription | The Client is required to give notice 60 days prior to their annual renewal date if they do not want to renew, otherwise this contract will auto renew for a further 12 months. |
| Internal Audit | The Client is required to give 1 weeks’ notice to reschedule the internal audit visit. Failure to provide notice will incur a charge of 1 days’ audit.
For a full cancellation, the Client is required to give 2 months’ notice prior to the term that the audit work is scheduled to happen. |
| Data Protection subscriptions | The Client is required to give notice 60 days prior to their annual renewal date if they do not want to renew, otherwise this contract will auto renew for a further 12 months. |
| SBM Toolkit | The Client is required to give notice 60 days prior to their annual renewal date if they do not want to renew, otherwise this contract will auto renew for a further 12 months. |
14. Limitation of Liability
14.1. SBM Services (uk) Ltd shall not be responsible in any circumstances to the Client or any third party for any indirect or consequential or inconsequential or economic damage or loss, howsoever caused, whether as a result of negligence, misrepresentation, breach of contract or otherwise.
14.2. Nothing in the forgoing shall be read as restricting or limiting in any way SBM Services (uk) Ltd liability for death or personal injury.
15. Indemnity
15.1. The Client shall indemnify SBM Services (uk) Ltd against any loss or damage which results from the Client’s breach of this agreement or failure to abide by any of its terms.
16. Warranties
16.1. Both parties and the signatories to this agreement warrant that they are authorised and permitted to enter into this agreement and have obtained all necessary permissions and approvals.
16.2. Both parties warrant and undertake that they are not aware, as at the date of this agreement, of anything within their reasonable control which might or will adversely affect their ability to fulfil the obligations under this agreement.
17. Counterparts
17.1. This agreement may be executed in any number of counterparts, each of which, when executed, shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
18. Entire Agreement and Variation
18.1. This agreement constitutes the entire agreement between the parties. It supersedes and extinguishes any previous agreements, promises, assurances, warranties, representations and understandings between them, whether orally or in writing, relating to the subject matter.
18.2. Each party acknowledges that, in entering into this agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement. Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.
18.3. Any variation of this agreement must be made in writing and signed by both SBM Services (uk) Ltd and the Client.
19. Governing Law
19.1. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
19.2. The parties irrevocably agree to submit to the exclusive jurisdiction of the courts of England over any claim or matter arising under or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
20. Severability
20.1. If any term or provision in this agreement shall in whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law that term or provision or part shall to that extent be deemed not to form part of this agreement and the enforceability of the remainder of this agreement shall not be affected.
21. Third Party Rights
21.1. A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.