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1. Introduction

These terms together with the accompanying client engagement letter (Engagement Letter) set out the terms and conditions upon which SME Finance Partners Ltd (We) will provide the services set out in our Engagement Letter (Services) to you. Please read these terms carefully. They will apply to the provision of the Services to the exclusion of any other terms you may seek to impose or incorporate or which are implied by trade, custom, practice or course of dealing. Should you have any queries in relation to any matter set out in these terms, please do not hesitate to contact us on 02920 782548 or email us at info@smefp.co.uk.

2. Information About Us

We are a limited company registered in England and Wales under company number 08567142 and our trading address is The Business Centre, Miskin Manor, Pendoylan rd, Groesfaen, Pontyclun CF72 8ND. Our VAT number is 169633473.

3. Commencement and Duration

We will commence the provision of the Services from the date set out in our Engagement Letter or such other date as we shall agree.

We will continue to provide the Services for the term set out in the Engagement Letter unless this agreement is terminated in accordance with clause 13 below.

If no term is specified in the Engagement Letter, we will continue to provide the Services until such time as this agreement is terminated in accordance with clause 13 below.

4. Our responsibilities

We will perform the Services using all reasonable skill and care.
We will use all reasonable endeavours to meet any performance dates either specified in our Engagement Letter or subsequently agreed in writing between us, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
We reserve the right to make any changes to the Services which are necessary to comply with any applicable laws or which do not materially affect the nature or quality of the Services and we will notify you of such changes.

5. Your obligations

You will:-
(a) cooperate with us in all matters relating to the provision of the Services;
(b) provide us with clear, timely and accurate instructions;
(c) provide us with such information and documentation as we may reasonably require to perform the Services and ensure such information is accurate in all material respects;
(d) promptly notify us of any inaccuracies in any information supplied by you and supply us with the correct information;
(e) provide us at no charge with such office accommodation and other facilities as we may reasonably require to enable us to perform the Services;
(f) obtain all licences, permissions, approvals and consents which may be required to enable you to perform your obligations under this agreement and to enable us to provide the Services;
(g) inform us of any matter of which you are aware, or later become aware, which could affect our ability to provide the Services;
(h) not deliberately mislead us;
(i) safeguard any documents/information which are/is likely to be required in relation to the Services.

Please note that if our performance of the Services is delayed or prevented by an act or omission on your part (or that of your officers, employees, agents or contractors) or any failure to comply with your obligations (Default):-
(a) we may, without limiting our other rights and remedies, suspend performance of the Services until such time as the Default is remedied;
(b) we will not be liable for any costs, charges or losses you incur or sustain;
(c) you shall reimburse us on written request for any costs or losses we sustain or incur arising from your Default.

6. Our Charges

Our charges for providing the Services are set out in our Engagement Letter.

In addition to our charges, you will reimburse us all reasonable expenses incurred by us in the course of providing the Services subject to production of receipts or appropriate evidence of payment.

Unless otherwise agreed, we will invoice you monthly in arrears.

You will pay all sums due within 14 days of the date of our invoice.

VAT will be added to our charges, when applicable, at the rate in force at the time.

If you fail to make any payment due to us by the due date for payment (Due Date) we may suspend the Services with immediate effect until you have paid us the outstanding amount. We will contact you to tell you this. This does not affect our right to charge interest in accordance with the paragraph below or any other right or remedy available to us.

Interest shall be payable on any overdue amount at the rate of 4% per cent per annum above the then current Bank of England base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

Payment by you of all sums due shall be made in full without deduction, set off or counterclaim.

We (without limiting our rights) may offset any sums owed to us by you from any amounts that are payable by us to you.

7. Changes to the Services

If you require a change to the Services, please provide us with details of the requested change in writing. We will use all reasonable endeavours to accommodate your change. Upon receipt of your request, we will advise you of any impact of the proposed changes upon any agreed timescales, any necessary variations to our charges and any other impact upon this agreement. No change will be implemented until such time as you and we have agreed the necessary changes to the Services and any additional charges payable.

8. Intellectual Property Rights

Unless we otherwise agree, all intellectual property rights in or arising out of or in connection with the Services shall be owned by us.
Where in the provision of the Services we are required to use, at your request, any intellectual property rights owned by you or a third party (including but not limited to any software) you warrant you are the owner of such intellectual property rights or are duly licensed to enable us to use such intellectual property rights. You will reimburse us any damages, losses, costs or expenses we incur if our use of such intellectual property rights is deemed to breach the rights of any third parties.

9. Complaint Procedure

We are committed to providing a high quality of service. If you are unhappy about any aspect of the Services please contact us. We have a complaints procedure which details how we handle complaints. This procedure is available on request. Any complaint will be handled promptly, efficiently and fairly in accordance with our complaints procedure.

10. Limitation on Liability

Nothing in these terms shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our 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); or
(d) in any other circumstances where it would be unlawful to do so.

We shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this agreement.

Our total liability to you in respect of all other losses arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £250,000.

11. Force Majeure

We will not have any liability to you if we are prevented from or delayed in the performance of our obligations under this agreement by acts, events, omissions, or accidents beyond our control including but not limited to strikes, lockouts or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, accident, fire, flood or storm, malicious damage or compliance with any law, government order, rule, regulation or direction.

12. Confidentiality

Each party will keep confidential all technical and commercial knowhow and any other information relating to the business of the disclosing party which may be disclosed in the performance of the Services and shall not use the same except for the purpose of exercising or performing respective rights and obligations under these terms and our Engagement Letter. The receiving party will restrict disclosure of such confidential information to such of its employees, agents or sub-contractors as need to know for the purpose of discharging its obligations under this agreement and shall ensure such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which are binding on the receiving party. Nothing shall prevent either party disclosing information as may be required by law, court order, government or regulatory authority.

13. Termination

Either party shall have the right to terminate this agreement by giving the other party not less than 1 months’ written notice.
Without limiting its other rights or remedies, each party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of this agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in paragraphs (a) to (i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
Without limiting our other rights or remedies, we may terminate this agreement with immediate effect by giving written notice to you if you fail to pay any amount due under this agreement on the due date for payment.

14. Consequences of Termination

Termination of this agreement shall be without prejudice to any rights or liabilities accrued at the date of termination.
On termination of this agreement you will immediately pay all outstanding unpaid invoices and interest and in respect of Services supplied, but for which no invoice has been raised, we shall submit an invoice for all charges then due which you will pay immediately upon receipt.
Termination shall not affect the provisions of clauses 8 (intellectual property rights), 10 (limitation on liability), 12 (confidentiality), 14 (consequences of termination) and 15 (non-solicitation) which shall remain in full force and effect.
Notwithstanding the termination of the agreement between us, we may retain all papers and documents within our possession whilst there is still money owing to us in respect of our charges and expenses.

15. Non-solicitation

During the provision of the Services and for a period of 6 months following the termination of this agreement (Restricted Period), you will not, without our consent directly or indirectly induce or attempt to induce any of our employees, or sub-contractors (Restricted Party) engaged in the provision or management of the Services or otherwise to leave our employment or service. If during the Restricted Period, whether with our consent or otherwise, you fail to comply with this paragraph 15 and directly or indirectly employ or engage a Restricted Party with a view to that Restricted Party providing (whether in whole or part) the services being provided by us under this agreement, you shall be liable to pay us the sum equal to the greater of either 20% of the full annual salary paid to the Restricted Party or the charges paid by you under this agreement in respect of the provision of the Services in the 6 months period preceding the termination of the employee’s employment or the sub-contractors engagement.

16. Other important terms

If there is any conflict between the Engagement Letter and these terms, the Engagement Letter will take priority.
We may transfer or subcontract our rights and obligations under this agreement to another organisation, but this will not affect your rights or our obligations under these terms.
Save as permitted under these terms, no variation to these terms shall be valid unless agreed in writing by us.
You may only transfer your rights or your obligations under this agreement to another person if we agree in writing.
Where the individual who has primary responsibility for services provided is unavailable, then a suitably qualified replacement will be provided.
This agreement is between you and us. No other person shall have any rights to enforce any of its terms, whether under the Contracts (Rights of Third Parties Act) 1999 or otherwise.
Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.

If we fail to insist that you perform any of your obligations under these terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.

This agreement is governed by English and Welsh law. You and we both agree that the courts of England and Wales will have non-exclusive jurisdiction.