Common Sense Services

Introduction
The terms contained in this document (the “Terms”) apply to each matter in relation to which Commonsense Services undertakes work for you and shall be deemed to include any quotation sent to you by us (“Quotation”) and/or any Statement of Work setting out the service specifications (“SOW”).

If there is any conflict between these Terms and a SOW, these Terms shall prevail.

These Terms apply to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

Agreement
These Terms will be accepted by you upon you instructing us and accepting a Quotation or SOW. If you fail to sign a copy of the relevant SOW but continue to receive the Services, these Terms and the SOW will be deemed to be accepted and will be binding on both parties.

Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

The terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be illustrative only and are not intended to limit the sense of the words preceding those terms.

The headings of the clauses of this Agreement are for convenience of reference only and are not intended to be part of, or affect, the meaning or interpretation of this Agreement.

A reference to ‘writing’ or ‘written’ includes faxes and email unless stated otherwise.

About Us
We are COMMONSENSE SERVICES (NORFOLK) LIMITED, a limited company registered in England and Wales under registration number 09097398 with its registered address at Unit 81, Centaur Court, Claydon Business Park, Great Blakenham, Ipswich, Suffolk, England, IP6 0NL (“Commonsense Services” / “we” / “us”).

We offer services relating to mediation, coaching, conflict management, business consultancy, change consultancy and skills development through workshops, workplace mediations and one-to-one coaching sessions (“Services”).

We maintain professional indemnity and public liability insurance. Details of the insurer and the scope of the insurance are available on request.

Quotations
If we are requested to do so by you, we will provide you with a Quotation for the Services that you have enquired about.

If you decide to proceed with the Quotation, your instruction for the Services will become binding once it has been agreed in writing (including in a SOW), and will be subject to the last Quotation provided to you by us.

We shall use our reasonable endeavours to ensure that all information provided to you is correct, but if any typographical or clerical error or omission is found in any Quotation, SOW, invoice or other document provided by us to you, it shall be subject to correction by us without any liability on our part.

What We Will Do for You
We will provide the Services to you using our reasonable skill and care, and in accordance with specifications set out in the applicable SOW.

The parties acknowledge that there are no guarantees in relation to the results of the Services, however Commonsense Services representatives will use their personal experience, skill, judgment and intuition to assist you to achieve the desired results.

We will use reasonable efforts to adhere to any timeframes set out in a SOW, but time shall not be of the essence for the performance of the Services.

If we are to provide the Services at our premises, we will ensure that they are adequate for the purpose of performing the Services and we will ensure such premises are insured.

What We Need from You
You will need to provide us with clear instructions and give us all the information, cooperation and assistance which we request in order to provide the Services to you. We will not be responsible for any loss, damage or expense incurred (direct, consequential or otherwise) if it arises from your failure to provide information which may affect the advice or Services that we recommend or provide to you.

We will not be responsible for any delays encountered in the performance of the Services as a result of your failure to comply with this clause.

You will check that the terms of the SOW and any other information provided to us is correct and accurately reflects your requirements. If the information contained in the SOW is incorrect, you must promptly inform us of this before the Services commence.

If we are to provide the Services to you at your premises (or any other location which is not part of our premises), you are responsible for ensuring that the premises have adequate facilities which are suitable for the performance of the Services. You should make sure that you have the benefit of adequate insurance for that location, and you will indemnify us against any liability for any damage or loss that may occur to the location where we provide the Services to you.

If your address or contact details should change you must advise us promptly of any such changes.

Our Fees and Payment
The fees charged for the provision of the Services will be detailed in the Quotation or the applicable SOW and any fees are exclusive of VAT, which will be charged in addition to the fees (where applicable). Where we are required to travel for the performance of the Services, you will be required to reimburse us for any reasonably incurred travel and accommodation expenses.

Unless stated otherwise in a SOW, you must pay our invoices within 30 days of the date of each invoice.

If you have any queries in relation to an invoice, please contact us as soon as possible.

Unfortunately, we do sometimes experience problems in receiving payment of our invoices. We reserve the right to take any of the following action if you do not pay invoices issued to you, by the relevant due date:

• charge interest on any outstanding sums from the due date for payment in accordance with the Late Payments of Commercial Debts (Interest) Act 1998, with such interest accruing on a daily basis until payment has been received in full; and
• suspend the Services we provide to you. We will not be liable for any loss that may occur in relation to the suspension of the Services.

You will not be entitled to set-off, counterclaim, deduct or withhold payment under these Terms.

Occasionally we may recommend, or you may request, additional work to be undertaken which is not included within the scope of the Services to be provided in the initial SOW. In these circumstances, we will provide you with a further Quotation, and once you have approved the revised fees, we will issue a further SOW to account for the additional work. We will have no obligation to provide Services in excess of the scope set out in a SOW until a further quotation has been agreed.

If these Terms are terminated for any reason, all sums for the Services received by you up to the date of termination (and any costs we have incurred on your behalf which cannot be reasonably cancelled) shall become immediately due and payable and you will be responsible for immediately making any payment of such sums to us. Please note that this is without prejudice to any other claim we may have under these Terms.

We may also set-off any liability that you may have to us against any liability that we may have to you.

Disbursements
We will use our reasonable endeavours to advise you of any disbursements or charges that are likely to be incurred in the provision of the Services to you, details of which will be contained in the applicable SOW.

If it is necessary for us to incur any disbursements or other charges in the provision of the Services, we will promptly advise you of this in order to seek your approval before incurring such costs on your behalf.

VAT will be added to disbursements and other charges, where applicable.

Cancellation
Subject to clause 9.3, if you cancel the Services at any time, or if you fail to attend a workshop, mediation or coaching session (as applicable) as part of the Services, for any reason, you must pay the full fees for the instruction to us, as detailed in the relevant Quotation or SOW (“Cancellation Fee”).

In rare circumstances, we may be required to cancel or re-arrange the performance of the Services, for example, due to ill health. In this event, we will use reasonable efforts to agree another date with you upon which the Services will be provided. You will not be charged the Cancellation Fee in circumstances where we have cancelled the Services.

If you instruct us as a consumer (and not in the course of business) you will have the right to terminate the Services at any time within 14 days from the date of the SOW (“Cancellation Period”) under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

Notice to terminate the Services within the Cancellation Period can be given to us in writing either by using the notice form contained at Annex 1 of these Terms (“Cancellation Notice”) or by any other means, provided that such notice is given in writing and contains all the information included in the Cancellation Notice.

The Cancellation Notice must be sent to us in one of the following ways:

• By post or by hand to Unit 81, Centaur Court, Claydon Business Park, Great Blakenham, Ipswich, Suffolk, IP6 0NL; or
• By email to [email protected]

The Cancellation Notice shall be deemed served:

• If served by post, at the time of posting; and
• If sent by email, the date upon which it is sent.

If you are a consumer and require the Services to be provided within the Cancellation Period, we will need your express written confirmation before we can provide the Services to you. Please note that instructing us to commence the Services within the Cancellation Period will be deemed to be a waiver of your right to cancel your instruction for the provision of the Services. Where the Services have been provided within the Cancellation Period, if you then terminate the Services in accordance with clause 11, you will be liable to pay us for the fees for any work that has been undertaken in the Cancellation Period, up to the date that the Cancellation Notice is received by us.

Confidentiality
A party (“Receiving Party”) will keep in strict confidence the fact that the Services are being provided and all technical or commercial know-how, specifications, discussions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”) or its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain (“Confidential Information”).

In relation to any Confidential Information received from the Disclosing Party or from a third party on behalf of the Disclosing Party, the Disclosing Party and the Receiving Party agree:

• to treat the Confidential Information in confidence and to use it only for the purpose of discharging the Receiving Party’s obligations under this Agreement;
• not to disclose the Confidential Information to any third party without the express written permission of the Disclosing Party (except that the Receiving Party may disclose the Confidential Information to its employees, agents and sub-contractors who need access to the Confidential Information in connection with discharging the Receiving Party’s obligations under this Agreement and provided that such employees, agents and sub-contractors are made aware of the confidential nature of the Confidential Information and are subject to confidentiality obligations at least as onerous as those set out in this Agreement); and
• to treat the Confidential Information with the same degree of care and with sufficient protection from unauthorised disclosure as the Receiving Party uses to maintain its own confidential or proprietary information.

Nothing in this Agreement will prevent the Receiving Party from using or disclosing any Confidential Information which:

• is in or comes into the public domain in any way without breach of this Agreement by the Receiving Party or any person or entity to whom it makes disclosure;
• the Receiving Party can show was (i) in its possession or known to it by being in its use or being recorded in its files prior to receipt from the Disclosing Party and was not acquired by the Receiving Party from the Disclosing Party under an obligation of confidence or (ii) to have been independently developed by the Receiving Party without reference to the Confidential Information;
• the Receiving Party obtains or has available from a source other than the Disclosing Party without breach by the Receiving Party or such source of any obligation of confidentiality or non-use;
• is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or
• is required by law to be released (e.g. by a court order), provided that, when permitted by the applicable law, the Disclosing Party is given as much prior written notice as possible of such request.

Each party agrees that it will process any data relating to the other party in accordance with the Data Protection Act 1998.

This clause 10 shall survive termination of these Terms, however arising.

Termination
Subject to clause 9.3, once a SOW has been accepted by you in accordance with clause 2, the agreement for the provision of the Services under that SOW can only be terminated with our prior written consent. If we agree to terminate a SOW, you will be responsible for payment of our fees, disbursements or charges for all Services that have been provided to you up to the effective date of termination.

Without limiting any other rights or remedies, either party (“Terminating Party”) may terminate this Agreement with immediate effect by providing written notice to the other party (“Defaulting Party”) on or at any time after the occurrence of any of the events specified below:

• a breach by the Defaulting Party of its obligations under this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 14 days after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so;
• an event, including (or similar in nature to) the following:

- the Defaulting Party is unable to pay its debts as they fall due;
- the Defaulting Party goes into bankruptcy or liquidation either compulsorily (except for the purpose of reconstruction or amalgamation) or voluntarily;
- a receiver is appointed in respect of the whole or any part of the Defaulting Party; or
- a provisional liquidator is appointed to the Defaulting Party or the Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors or has a winding-up order or passes a resolution for the voluntary winding-up or has an administrative receiver appointed or takes steps towards any such event; or
- the Defaulting Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

Any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

Force Majeure
Neither party shall in any circumstances have any liability to the other party under this Agreement if it is prevented from, or delayed in, performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes or illness involving the workforce of Commonsense Services, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. If the force majeure event continues for a period of four weeks or more, the unaffected party may terminate this Agreement by providing the other party with written notice.

Intellectual Property Rights
We will retain full ownership of all intellectual property rights (including copyright) in all documents, materials, advice or other works that are created or developed by us or our agents and contractors on your behalf in the performance of the Services.

You agree to grant us a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to use the information and materials you provide to us in order that we can provide the Services to you.

We will grant you a non-exclusive, perpetual, irrevocable, royalty-free, non-transferable worldwide licence to use any documents, materials, advice and other works which we create for you in the provision of the Services solely for the purpose for which the Services were provided.

Liability
This clause sets out the liability of each party under these Terms.

All warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.

Neither party shall be liable to the other party for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

Each party’s maximum liability to the other party in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with these Terms will be limited to the price paid or payable for the Services provided to you by Commonsense Services giving rise to such claim for damages.

The limitations at clauses 14.3 and 14.4 above apply to the fullest extent permitted by law and nothing in these Terms shall limit or exclude the liability of either party for death or personal injury resulting from negligence, or for any damage or liability incurred by the other party as a result of fraud or fraudulent misrepresentation by the other party.

You agree that the agreement for Services is strictly with Commonsense Services. Any liability will therefore lie solely with Commonsense Services and you agree that you will not bring a claim against any directors or shareholders of Commonsense Services or any of its employees, consultants, representatives or agents.

General
These Terms constitute the entire agreement between the parties and supersede and extinguish 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 these Terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.

If either party fails to enforce these Terms, or fails to exercise, or delays in exercising, any rights or remedies under these Terms and/or at law, it shall not be deemed a waiver of that party’s right to enforce them at any subsequent time.

Third parties shall not have any right to enforce these Terms under the Contracts (Rights of Third Parties) Act 1999.

All notices must be in writing and are deemed given when mailed by registered or certified mail, return receipt requested, to the other party’s address specified in a SOW or such other address as is notified to the other party in writing. It is agreed that serving notice by email or fax will not be an effective method of providing a notice of a claim under these Terms.

We reserve the right at any time to modify these Terms and to impose new or additional terms or conditions. If you continue to use the Services after being notified of any such modification or additional terms, you will be deemed to have accepted these changes and they will be incorporated into the contract between us.

Subject to clause 15.5, no variation of these Terms will be effective unless it is in writing and signed by both parties.

The Terms are personal and therefore you may not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.

Nothing in these Terms 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 without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

If any provision in these Terms is found by any court to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be severed and the remainder of this Agreement will continue in full force and effect as if this Agreement had been executed with the illegal or unenforceable provision eliminated.

These Terms are governed by the law of England and Wales and the parties agree to irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.