The Letter of Engagement together with these Terms & Conditions of Engagement shall constitute, and be construed as, the “Agreement”. Under the Agreement, “Consultant” shall mean Geißel Federn Partners SAS whose registered office is at 11 Boulevard Sebastopol, 75001 Paris, France and “Client” shall mean the person or persons identified as such in the Letter of Engagement. (The Consultant and the Client shall be hereinafter referred to, individually or collectively, as “Party(ies)”.)
In consideration of the payments to be made by the Client to the Consultant under this Agreement, the Consultant hereby agrees with the Client to perform the Services in conformity with the provisions of the Engagement Letter and these Terms & Conditions. The Client hereby agrees to pay the Consultant in consideration of the performance of the Services such amounts as may become payable under the Engagement Letter at the times and in the manner prescribed by these Terms & Conditions.
Where the Services are undertaken from the Client’s office or site, the Client will provide the Consultant, free-of-charge, with suitable office facilities. These facilities will include a personal computer connected to the Client’s project information data base, the world-wide-web and consent to install Google Drive File Stream Software or a similar software for file storage and synchronization with the Consultant’s office-based server (as applicable).
For the avoidance of doubt, in the absence of formal Letter of Engagement, the Client’s consent to the Consultant’s start of the relevant assignment will be construed as an acceptance of these Terms & Conditions (a copy of which is provided to the Client as an enclosure to the Consultant’s Proposal and/or draft Letter of Engagement).
Professional Fees & Expenses
Unless otherwise stated in the Engagement Letter, the Consultant’s Professional Fees will be based on the Consultant’s standard Euro-denominated hourly rates that take into account the expertise and the level of experience of the consultant(s) assigned to the engagement.
In addition to the Consultant’s Professional Fees, any out-of-pocket expenses reasonably incurred by the Consultant in discharging his duties under the Engagement Letter (such as travel expenses (e.g. airfare (business class by the most direct route), train (first class by the most direct route), hotel (at least four stars), meals and ground transportation), communications expenses (e.g. registered mail, shipping and postage), and administrative expenses (e.g. translation, printing, binding)) will be charged at cost and reimbursed by the Client to the Consultant.
Travel time within normal working hours to and from destinations outside the Consultant’s home country will be charged at the hourly rates included in the fee schedule included in the Consultant’s Proposal and/or draft Letter of Engagement.
All fees and expenses will be subject to VAT (or exempt from VAT) in accordance with VAT regulations and guidance (and the Consultant’s interpretation thereof) applicable in the country where the Agreement is performed in accordance with the Letter of Engagement.
Terms of Payment
The Client shall pay to the Consultant all sums invoiced by the Consultant to the Client no later than thirty (30) calendar days from the date of invoice.
The Consultant will attach to its invoice timesheets which will briefly describe the Services provided. Should the Client have any queries regarding the said timesheets, then the Client should raise such queries within ten (10) working days from the date of the relevant invoice. Should the Client fail to do so, the timesheets will be deemed to represent a true and accurate record of the Services provided by the Consultant to the Client.
The Consultant reserves the right to request an appointment fee, mobilisation fee or advance payment (collectively termed “Fee Advance”). The Fee Advance (if any) must be paid before work on the commission commences or continues, as required by the Consultant.
The Client may not withhold or reduce any sum payable to the Company under the appointment by reason of claims or alleged claims against the Consultant. If the Client disputes the amount included for payment in an invoice a written notice must be served on the Consultant by the Client before the final date for payment. If no notice is given the amount payable shall be the amount stated in the invoice. If any item or any part of an item of any invoice is disputed or subject to question by the Client, the payment by the Client of the undisputed remainder shall not be withheld on those grounds.
The Consultant may charge interest on all invoiced amounts that remain unpaid after the period stated-above. Interest will be charged at EIBOR 6 Months (as published by the French Central Bank) plus 2%.
All rates and prices quoted are fixed from January 1 until December 31 of the year when the Agreement has been entered into by the Parties. Thereafter the rates may be revised on January 1 each year and, as a minimum, be increased in direct proportion to the increase resulting from the Consultant’s annual salary review.
Client’s Duty to Cooperate
The Client shall promptly provide the Consultant with all documents, information and data reasonably requested by the Consultant and/or which would assist the Consultant in performing the Services. The Client shall allocate staff to answer to the Consultant’s reasonable queries with respect to any such documents, information or data. On all matters properly referred to him in writing by the Consultant the Client shall give his decision in writing within a reasonable time so as not to delay the Services.
The Client shall in respect of the Consultant’s personnel and dependants (as the case may be), do all in his power to assist in : (i) the provision of documents necessary for entry, residency, working and exit; (ii) providing unobstructed access wherever it is required for the Services; (iii) import, export and customs clearance of personal effects and of goods required for the Services; and (iv) providing access to other organisations for collection of information which is to be obtained by the Consultant.
The Client undertakes to notify the Consultant promptly if anything occurs after information has been provided to render any such Information untrue, unfair or misleading. The Client undertakes further, if so required by the Consultant, to take all reasonable steps to correct any document, announcement or communication issued, containing, referring to or based upon any such information. (The Consultant will not direct its work to the discovery of errors or misstatements that he considers to be immaterial nor his work will be planned in order to prevent or detect irregularities, fraud or misrepresentation by management or external parties.)
The Parties will discuss the nature and timing of the engagement and the most effective way of implementing it. Deadlines for completing the various aspects of the engagement will be agreed by the Parties following consultation. The completion of the engagement and aspects of it assumes that the information required by the Consultant will be made available in good order on a timely basis.
Exclusivity and Confidentiality
The functions and duties that the Consultant undertakes on behalf of the Client shall not be exclusive in that nothing in the Engagement Letter shall prevent or restrict the Consultant from carrying on its profession or business. In particular, the Consultant reserves the right to act at any time for other clients who may be competitors of the Client or in respect of whom issues of commercial conflict may arise, subject to the absence of conflict of interest in the Consultant’s reasonable opinion.
The Consultant shall treat, and cause his directors, employees, sub-contractors and agents to treat, as confidential any and all information, data or documents, whatever their nature or form, received form or developed for the Client under this Agreement (hereinafter the “Confidential Information”).
During the continuance of this Agreement, the Consultant shall: (i) protect and keep the Confidential Information in strict confidence with the same degree of precaution and safeguards utilised in treating its confidential information of like importance, but with no less than reasonable care; (ii) not disclose or use (or permit the disclosure or use) of any Confidential Information for any other purposes than the purpose of this Agreement; (iii) not disclose or use (or permit the disclosure or use) of any Confidential Information to any third party other than those persons within his organisation with a need to know for discharging the Consultant’s obligations and duties under this Agreement.
The above confidentiality obligations shall not apply to documents, information or data available in the public domain, or that have been developed, acquired or obtained by the Consultant without breach of the above provisions, or that are required to be disclosed by law.
Relationship of the Parties
The Consultant is and shall be an independent contractor in the performance of Services under this Agreement, maintaining complete control of its employees and operations. Neither the Consultant nor anyone employed by it shall be the agent, representative, employee or servant of the Client in the performance of the Services under this Agreement.
During the term of this Agreement and for a period of one (1) year after its expiration, cancellation or termination, the Client and its affiliates, subsidiaries and agents shall not without the prior written consent of the Consultant (or the Consultant’s Partner, as applicable), directly or indirectly solicit, recruit or employ or otherwise engage as an agent, representative, consultant or independent contractor, any person who was an employee of the Consultant during the term of this Agreement. Should the Client breach this condition, the Client shall be render liable to pay to the Consultant liquidated damages equal to six (6) months of fees for the concerned Staff.
Limitation of Liability
The Consultant shall only be liable to pay compensation to the Client arising out of or in connection with the Agreement if a breach of the aforementioned duty is established against him.
Should either Party be considered to be liable to the other Party, compensation shall be payable only on the following terms: (i) such compensation s hall be limited to the amount of reasonably foreseeable loss and damage suffered as a result of such breach but not otherwise; (ii) in any event, the amount of such compensation shall be limited to the amount specified in Clause 23; (iii) if either Party is considered to be liable jointly with third parties to the other, the proportion of compensation payable by that Party shall be limited to that proportion of liability which is attributable to his breach.
Notwithstanding any other provisions in this Agreement or any statutory requirement of any jurisdiction (including the jurisdiction of the place of establishment of the Consultant), neither Party shall be considered liable for any loss or damage resulting from any occurrence unless a claim is form ally made on him no later than one (1) year after the termination or expiry of this Agreement.
Notwithstanding any other provisions in this Agreement, the maximum amount of compensation payable by either Party to the other in respect of liability under Clause 21 shall not exceed twenty-five percent (25%) of the Professional Fees or the amount claimable and recoverable under the relevant professional and/or third party liability insurance policy taken out and maintained by the liable party (if any) whichever is greater.
Each Party agrees to waive and forfeit, to the fullest extent permitted by law, any and all rights, claims and demands against the other in so far as the aggregate of compensation which might otherwise be payable exceeds the maximum amount payable pursuant to the foregoing provisions.
Neither Party will be liable to the other for any delay or failure to fulfil obligations caused by circumstances outside their reasonable control.
Representation & Warranties
The Client warrants that, when entering into the Engagement Letter, it has not relied on any representation made by the Consultant except for any such representation expressly set out in the Engagement Letter.
Each Party hereby represents and warrants that, at the time of signing this Agreement and thereafter: (i) this Agreement has been duly authorised by all necessary actions for signature by its representatives, (ii) the signature hereof does not contravene any applicable law or regulation, (iii) this Agreement does not contravene, or result in any breach of, or does not constitute any default under, any agreement or document to which such Party is a party or is bound, and (iv) It complies and shall comply with all applicable laws and regulations in force.
If the Client constitutes (under applicable laws) a joint venture, consortium or other unincorporated grouping of two or more persons then: (i) these persons shall be deemed to be jointly and severally liable to the Consultant for the performance of this agreement, (ii) these persons shall notify the Consultant of their leader who shall have authority to bind the Client and each of these persons; and (iii) the Client shall not alter its composition or legal status without the prior consent of the Consultant.
Suspension & Termination
This Agreement may be suspended and/or terminated by either Party, at any time, for cause (notably in case of bankruptcy or in case of material breach hereunder) or convenience, subject to that Party serving to the other Party a one-(1)-month prior written notice to that effect, without any compensation or indemnity to the other Party. In case of termination for cause, the Party at fault shall indemnify and hold harmless the other Party from and against any loss, cost or expense which the other Party may sustain or incur as a result of the act or omission having triggered such termination. The termination of this Agreement shall be without prejudice to the rights or obligations accrued or incurred to the Parties prior to the date of termination.
Applicable Law & Dispute Settlement
This Agreement shall be governed by and construed in accordance with the Federal Law of Switzerland. In the event of any dispute arising out of or in connection with this Agreement, the Parties shall first refer the dispute to proceedings under the International Chamber of Commerce (ICC) Mediation Rules. If the dispute has not been settled pursuant to the said Rules within forty-five (45) days following the filing of a Request for Mediation or within such other period as the Parties may agree in writing, such dispute shall thereafter be finally settled under the ICC Rules of Arbitration by one or more arbitrators appointed in accordance with the said Rules of Arbitration. The parties agree, pursuant to Article 30(2)(b) of the ICC Rules of Arbitration, that the Expedited Procedure Rules shall apply irrespective of the amount in dispute. The arbitration shall take place in Geneva (Switzerland). The arbitration proceedings shall be in English. The arbitration award shall be final and binding on the Parties who shall give it immediate effect.
This Agreement constitutes the entire agreement of the Parties hereto with respect to its object and supersedes and cancels any prior representation, commitment, undertaking or agreement between the Parties, whether oral or written, with respect to or in connection with any of the matters or things to which this Agreement applies or refers.
No change, variation or amendment to this Agreement shall be valid unless it is by means of a written instrument duly executed by all the Parties hereto. Neither Party shall be entitled to assign, transfer, in whole or in part, any of its rights or obligation hereunder without the prior written consent of the other Party. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
All communications or notices required for the performance of this Purchase Order shall be made in English and shall be sent to the Parties by fax (with a Parties to exercise, nor any delay in exercising, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.