Terms & Conditions.
1.1 The definitions and rules of interpretation in this clause 1.1 apply in this agreement (unless the context requires otherwise).
Client: the party named in the [Consultancy Particulars] for whom the Consultancy Services are being carried out by Motionspot.
Commencement Date: the date stated in the [Consultancy Particulars] for commencement of the Consultancy Services.
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.
Consultancy Services: the Consultancy Services described in [Consultancy Particulars].
Engagement: the engagement of Motionspot by the Client on the terms of this agreement.
Fee: the amount payable by the Client to Motionspot for the Consultancy Services outlined in the [Consultancy Particulars].
Intellectual Property Rights: patents, rights to invention, copyright and related rights, trade marks, trade names and domain names, rights in 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, 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 (or rights to apply) for, and renewals or extensions of, 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.
Motionspot: Motionspot Limited of First Floor, 8 Waldegrave Road, Teddington, TW11 8GT.
Termination Date: the date of termination of this agreement, howsoever arising.
1.2 A reference to a party includes its personal representatives, successors and permitted assigns.
1.3 The headings in this agreement are inserted for convenience only and shall not affect its construction.
1.4 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6 Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
1.7 The [Consultancy Particulars] form part of (and is incorporated into) this agreement.
Term of engagement
1.8 The Client shall engage Motionspot to provide the Consultancy Services on the terms of this agreement.
1.9 The Engagement shall be deemed to have commenced on the Commencement Date and shall continue unless and until terminated:
(a) as provided by the terms of this agreement; or
(b) by either party giving to the other not less than 2 weeks’ prior written notice.
Duties and obligations
1.10 During the Engagement Motionspot shall provide the Consultancy Services with all due care, skill and ability.
1.11 Motionspot shall on the last working day of the provision of Consultancy Services submit to the Client an invoice for the Fees.
1.12 In consideration of the provision of the Consultancy Services, the Client shall pay any invoice submitted by Motionspot within 30 45 days of receipt.
1.13 If the Consultancy Services are to be provided in instalments as set out in the [Consultancy Particulars], each instalment shall be deemed to constitute a separate contract, and Motionspot shall invoice each instalment separately. Any invoices for an instalment shall be payable in accordance with the terms of this agreement without reference to any other instalment.
1.14 The Client shall reimburse all reasonable expenses properly and necessarily incurred by Motionspot in the course of the Engagement, subject to production of receipts or other appropriate evidence of payment.
Confidential information and client property
1.15 Motionspot acknowledges that in the course of the Engagement it will have access to Confidential Information and shall not, either during the Engagement or at any time after the Termination Date, use or disclose to any third party (and shall use its best endeavours to prevent the publication or disclosure of) any Confidential Information.
1.16 The restriction under clause 6.1 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 otherwise than through the unauthorised disclosure of Motionspot.
Any Intellectual Property Rights created during the Engagement shall, unless the parties agree otherwise in writing, belong to Motionspot.
1.17 Nothing in this agreement shall limit or exclude Motionspot’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
1.18 Subject to clause 1.17,
(a) Motionspot shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or loss of business or any indirect or consequential loss arising under or in connection with the Engagement;
(b) Motionspot shall under no circumstances whatever be liable to the Client for repairing any pre-existing faults, defects or damage to the Client’s property or premises discovered in the course of the supply of Consultancy Services;
(c) Motionspot’s total liability to the Client in respect of all other losses arising under or in connection with the Engagement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total fee paid under this contract.
1.19 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and 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 this Agreement.
The relationship of Motionspot to the Client will be that of independent contractor and nothing in this agreement shall render it (nor any individuals employed by it) an employee, worker, agent or partner of the Client and Motionspot shall not hold itself out as such.
The Client will not at any time during the provision of the Consultancy Services and for 12 months after the completion of the Consultancy Services without written consent from Motionspot, directly or indirectly employ, solicit, negotiate with, or engage the services of any employee, consultant, or sub-contractor of Motionspot. Any breach of this obligation will result in the Client being required to pay to Motionspot by way of compensation an amount equivalent to 12 months’ salary (or equivalent) of the person engaged. This obligation shall not apply in circumstances where the person engaged is engaged by the Client as a result of a response to a publicly-advertised vacancy without the encouragement or solicitation of the Client.
1.19 Any notice given under this agreement shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally, or sending it by pre-paid recorded delivery or registered post to the relevant party at its registered office for the time being. Any such notice shall be deemed to have been received:
(a) if delivered personally, at the time of delivery; and
(b) in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting.
1.19 In proving such service it shall be sufficient to prove that the envelope containing the notice was addressed to the address of the relevant party and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery or registered post.
Entire agreement and previous contracts
Each party on behalf of itself acknowledges and agrees with the other party that this agreement together with any documents referred to in it constitute the entire agreement and understanding between Motionspot and the Client and supersedes any previous agreement between them relating to the Engagement (which shall be deemed to have been terminated by mutual consent). Nothing in this agreement shall, however, operate to limit or exclude any liability for fraud.
No variation of this agreement or of any document referred to in it shall be valid unless it is in writing and signed by or on behalf the parties.
This agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.
Third party rights
1.22 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 but this does not affect any right or remedy of a third party which exists, or is available, apart from under that Act.
1.23 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any person that is not a party to this agreement.
Governing law and jurisdiction
1.24 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.
1.25 The parties irrevocably agree to submit to the exclusive jurisdiction of the courts of England and Wales 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).
Participation in Disability Confident Scheme
1.26 Motionspot encourages the Client to review the UK Government’s Disability Confident scheme (details of which can be found here) with an aim to qualify for Stage 1 or above. Client shall notify Motionspot if it chooses to participate in the Disability Confident scheme, and shall provide Motionspot with updates on its participation in the scheme upon Motionspot’s reasonable request. The Client agrees that Motionspot shall be permitted to share information about Client’s participation in the scheme (in anonymised format if request by the Client), subject to Client’s prior written agreement.
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