Terms of Business.
Please note that our terms contain provisions limiting
our liability. These provisions are important and you
should read them carefully.
If this limit is not sufficient for your purposes, or
you require any explanation of the provision, please
contact us to discuss it further. If appropriate, we
may then consider whether we are able to provide a
higher limit at extra cost.
1. Our Agreement
1.1
These terms of business, together with our letter of
engagement, form the Retainer between (1) the client
named on the letter of engagement (“you”) and (2) Fair
Copyright Licensing Alliance (“us” or “FCLA”).
Your agreement to these terms, and the Retainer generally,
can be given by signing and returning a copy of this
document; confirming your agreement in an email or
letter; or just by continuing to instruct us.
2. Instructing Us
2.1
FCLA will carry out work for you as set out in our letter
of engagement. We will take instructions from you
personally and anyone else nominated in writing by you.
3. Who We Are
3.1
FCLA is a business consultancy based in Saffron Walden,
providing advice, lobbying and management of copyright
licensing issues to companies and organisations.
4. Conflicts of Interest
4.1
We take conflicts or potential conflicts of interest very
seriously. FCLA undertakes searches of its client database
before accepting new clients and new instructions for
this reason but, if you ever feel there could be a
conflict of interest, please let us know straight away.
It is also possible that a conflict of interest could
arise during the course of your Retainer. We will work
with you to resolve any conflict as quickly as possible,
but it is sometimes possible that a conflict cannot be
resolved. In that event we may, unfortunately, have to
cease acting for you.
4.2
If we carry out work for you in relation to a speculative
bid or tender which is unsuccessful, we reserve the right
to act for the successful party provided there is no
conflict of interest.
5. How Our Charges Are Calculated
5.1
Where we can, we will seek to agree a fixed fee with you
in advance for each matter or stage of any matter.
Otherwise, we will provide you with an estimate and base
our charges on our hourly rates.
Any fee estimates we give you are for guidance only,
based upon the information available at the time. They
are not a fixed fee or a fee limit. The hourly rates that
will apply to this Retainer are as set out in the letter
of engagement.
5.2
If the matter is urgent, we reserve the right to amend
any fee estimate to take account of a change in
circumstances.
5.3
We can agree a fee limit which we will not exceed without
your authority. However, in such cases we cannot
guarantee that the work will have reached any particular
stage when we reach that fee limit.
If we cannot then agree a further fee limit with you, we
will stop work on your matter and invoice you for the
work done to that date and any expenses and disbursements
that we have incurred.
5.4
We may also charge for expenses such as copying, as well
as third-party expenses, often referred to as
disbursements, such as court fees, search fees, travelling
expenses and external copying charges.
All time spent on your Retainer will be charged,
including meeting you or others, making and receiving
telephone calls, writing and receiving letters and
emails, preparing, reading or considering documents,
preparatory work, travelling, waiting and attending
meetings.
5.5
Individual expenses over £100 will be agreed with you in
writing before the expense is incurred. We may also ask
By agreeing to these terms, you are consenting to us
outsourcing services, such as photocopying, where third
parties who have signed confidentiality agreements with
us may see documents and other information relating to
the work we do for you.
5.6
Our hourly rates are reviewed periodically and we will
let you know of any changes in advance.
6. Billing and Payment
6.1
Our bills will be sent to you electronically rather than
by post and are payable on receipt by you.
We reserve the right to charge interest at the rate of
8% above the Bank of England base rate under the Late
Payment of Commercial Debts (Interest) Act 1998 on any
bill that is unpaid 30 days after its receipt.
We also reserve the right to suspend our services or to
cease to act for you on giving written notice if payment
of any fees is severely delayed. We intend to exercise
these rights only in extreme circumstances where it would
be fair and reasonable to do so.
6.2
If you do not accept that a billed fee is fair and
reasonable, you must notify FCLA within 21 days of
receipt, failing which you will be deemed to have
accepted that payment is due.
6.3
We prefer to be paid electronically. Our bank account
details are:
Metro Bank
Sort Code: 23-05-80
Account Number: 56401512
IBAN: GB94MYMB23058056401512
SWIFT Reference: MYMBGB2L
We do not accept payment by cash. If a third party is
making a payment on your behalf, please contact us before
any money is sent.
Where our client is more than one individual or entity,
you are each liable for the full amount of our invoices
on a joint and several basis, regardless of any
arrangement you may have with other parties.
7. Early Payment Option
7.1
Where we have agreed a fixed fee with you, we may at our
discretion choose to offer you a discount of 5% on that
fee if the fee, plus any disbursements and VAT, is fully
paid in advance of our carrying out any work on your
behalf.
8. Independence
8.1
We always provide independent advice and, when making or
receiving referrals of clients to or from third parties,
we will do nothing to compromise our independence or our
ability to act and advise in the best interests of our
clients.
9. Reliance on Our Advice by Third Parties
9.1
Save as expressly provided in clause 10.2, it is not
intended by the parties to this Retainer that any term
which may be construed as conferring a benefit on any
person who is not a party to the Retainer should be
enforceable by such party, whether under the provisions
of the Contracts (Rights of Third Parties) Act 1999 or
otherwise.
9.2 Unless we agree otherwise expressly and in writing, signed by a Director, no other party may rely on our advice. The granting of such agreement may be subject to payment of an additional fee. If, arising out of our Retainer, a third party makes a claim against FCLA or we are joined in any proceedings, you agree to indemnify FCLA against any loss or damage, including all reasonable costs and expenses, which we may suffer in connection with any such claim or proceedings, unless the losses arise from:
- Our professional negligence, breach of contract or breach of duty to you, fraud, wilful misconduct or gross negligence; or
- Allegations of the same.
10. Our Liability
10.1
In this clause, “The Liability Cap” means £0.5 million or
such larger sums as we have agreed with you in any
particular case.
Any such agreement for a larger sum will not be binding
on us unless it is in writing and confirmed in writing
by a Director.
10.2
Your agreement is solely with FCLA operating as a limited
company, and no Director, consultant or employee assumes
or will assume personal liability for the conduct of the
work you instruct us to carry out.
You and we intend that this clause is for the benefit of,
and shall be enforceable by, the Directors, consultants
and employees under the Contracts (Rights of Third
Parties) Act 1999.
10.3
In this clause, the term mistake includes, but is not
limited to, negligence; it does not include fraud.
10.4
Our maximum liability for any mistake, except for fraud,
including interest, is The Liability Cap, unless a
different amount is agreed with you in writing by the
Chief Executive Officer.
10.5 The Liability Cap shall apply to:
- Any claim arising from an act or omission, or a series of acts or omissions;
- Any claim arising from the same or similar acts or omissions in a series of related matters or transactions; and
- All claims arising from one transaction or matter.
10.6 Where we are instructed jointly by more than one party, The Liability Cap shall apply to all of you collectively and in total and also include anyone claiming through you.
10.7 We shall not be liable for any:
- Indirect or consequential loss or loss of anticipated profit or other benefit;
- Damage to your reputation; or
- Loss or corruption of data where the total liability, together with any other liability, exceeds The Liability Cap.
10.8
If you accept any express exclusion or limitation of
liability from other professional advisers, our total
liability to you will not exceed the remaining amount
from which we would otherwise have been liable after
deducting any amount which we would have been entitled
to recover from that other party pursuant to the Civil
Liability (Contribution) Act 1978, but are prevented from
doing so as a result of any such exclusion or limitation
of liability, subject to the minimum £0.5 million
restriction.
10.9
If other professional advisers are liable for the same
losses as we are, our liability shall be limited to that
proportion of your losses that it would be equitable,
fair and reasonable to require us to pay, having regard
to the extent of our liability for the same.
10.10
These limits on our liability shall apply to work done
under this Retainer and any future work unless we agree
different terms with you.
10.11
We shall not be liable for any loss arising from or
connected with our compliance with any statutory
obligation which we may have, or reasonably believe we
may have, to report matters to the relevant authorities
under the provisions of money laundering or financial
sanctions legislation.
10.12
We believe the limitations on our liability set out in
this section are a reasonable amount, having regard to
our assessment of the amount of any likely liability to
you if we make a mistake, the availability and cost of
professional indemnity insurance, possible changes in the
future availability and costs of insurance, and the
insolvency of insurers.
We are happy to discuss the limit with you if you
consider it insufficient for your purposes and, if
appropriate, we may then consider whether we are able to
provide a higher limit at extra cost.
10.13
We will not be liable if the performance of our services
is affected by an event outside our reasonable control,
including acts by governments and regulators, acts of
terrorism, strikes, accident, fire, flood, storm or civil
disturbance.
11. Points in Relation to Third Parties
11.1
By agreeing to these terms, you are consenting to us
outsourcing services at our discretion, such as
photocopying, to third parties. These third parties may
see documents and other information relating to the work
we do for you.
11.2
We may sometimes have to give an unconditional
undertaking to pay a third party’s legal or other
professional fees on your behalf. In these circumstances,
we will need you to send us the full amount, including
any disbursements and VAT, before we can give the
undertaking.
11.3
Where we have to pay money to a third party on your
behalf by a particular deadline, you must ensure that we
have cleared funds by the day payment is due.
If we are not in possession of cleared funds, we will not
be able to pay the money to the third party on your
behalf, which may put you in breach of contract or other
obligations.
11.4
During a matter, you may reach an agreement or get a
Court Order that another party has to pay some or all of
your legal costs. In such cases, you will remain primarily
liable for the payment of our fees when they are due.
We will not postpone your obligation to pay our invoices
in the hope that they might be paid by another person.
11.5
We also sometimes undertake matters where, at the outset,
you agree with a third party that they will pay your
legal costs. Again, in these circumstances you, as the
client, will remain primarily responsible for paying our
fees.
It will not be our role to attempt to recover your fees
from that third party on your behalf.
12. Preservation of Documents
12.1
Parties to a dispute are obliged to list and make
available to their opponents documents which either
support or harm their case or their opponent’s case. This
process is called “disclosure”.
If you have instructed us in relation to any dispute, it
is very important that you locate now, and retain in a
safe place, all documents that are relevant to that
dispute. This may mean suspending document deletion or
destruction processes for the duration of the dispute.
13. Alternative Dispute Resolution
13.1
In disputes, you may want to consider Alternative Dispute
Resolution (ADR), which is a less formal way of trying to
resolve disputes.
Both parties have to agree to submit to ADR, although in
some cases the Court may insist that the parties consider
ADR and can subsequently impose cost penalties if they do
not. ADR can take place at any time before or during
formal Court proceedings. The most common form of ADR is
mediation.
13.2
In mediation, the parties have the opportunity to present
their case to an independent trained mediator who will
then try to encourage a settlement.
If an agreement is reached and signed, it is binding on
the parties and can be enforced like any judgment of the
Court. There is no obligation on either party to settle.
The mediator cannot impose their own decision.
13.3
If the ADR fails, the parties can still resort to Court
proceedings. The costs associated with the ADR will be
dealt with in any settlement.
If the ADR does not result in settlement, each party will
have to pay its own costs of the ADR unless they agree
otherwise. ADR can be an attractive alternative in
appropriate circumstances.
The Court will also encourage settlement at all stages of
any Court proceedings. If you think any dispute may be
suitable for ADR, we will be happy to discuss that option
with you at any stage of the dispute.
14. Termination or Suspension of Work
14.1
As we have explained above, there are certain
circumstances in which we have the right to suspend work
or terminate our Retainer. We will only do this if we
have a good reason.
This would include being conflicted, your failing to
provide adequate instructions or failure to accept our
advice, non-payment of our bills or not letting us have
money on account, particularly before a Court hearing,
even if that may put you in a difficult position.
14.2
If you decide to terminate our Retainer, you should do so
in writing or by email, and you should set out the reason
why.
14.3
Regardless of who terminates our Retainer, we will be
entitled to keep your papers and documents until you pay
any outstanding fees and expenses.
If we are working for you on a fixed-fee basis, you will
pay our fees on a pro-rata basis, together with our
expenses for the work we have done.
14.4
We will also be entitled to charge for any other work we
are obliged to do after termination of the Retainer.
15. Storage of Papers and Documents
15.1
After completing a matter, FCLA will retain your file of
papers for as long as we think it is appropriate and it
will then be destroyed.
15.2
If you require your papers to be retained for any
specific period, you should let us know.
16. Money Laundering
16.1
We are obliged to comply with the anti-money laundering
(AML) legislation which applies to the business which we
conduct.
This obliges us to carry out due diligence and other
enquiries of our clients to satisfy ourselves as to their
identity, including, where relevant, the identity of
company directors, trustees, donors or powers of attorney,
ultimate beneficial owners of companies and beneficiaries
and settlors of trusts, the legitimacy of their
activities, and the sources and destinations of their
funds.
16.2
These enquiries may include electronic checks with
commercial providers of information and may also require
us to see original documents evidencing identity and
address.
We cannot accept money or do any work until we have
completed our enquiries. We may sometimes ask you for
information about funds you are sending to us.
Should you fail to co-operate with this process, or if we
are not satisfied with the information that you have
provided, then we will cease to act for you.
16.3
The level of due diligence that we are required to carry
out may vary from matter to matter, depending on the type
of business involved.
It may therefore be the case that we need to make certain
enquiries in relation to a current matter that we have
not needed to make with you in the past.
16.4
Under the terms of the Proceeds of Crime Act, we may be
obliged to report any suspicion of money laundering to
the National Crime Agency (NCA), or any delays caused by
your failure to deal with any reasonable AML requirement
during the course of a matter, notwithstanding any duties
of confidentiality to our client.
The Act generally precludes us from notifying clients of
any such disclosure, or from explaining why we have
ceased work, if that is the case. We shall not be liable
for any loss suffered by you as a result of any report to
the NCA.
17. Quality Assurance
17.1
From time to time, files are randomly sampled by quality
assessors.
17.2
It is also possible that if FCLA has to make a
notification under the terms of its professional
indemnity policy, information about you and your file may
be seen by our insurers, brokers and external legal
advisers.
Your file may therefore be seen by an assessor or another
person unconnected with FCLA Limited in the future, unless
you notify us that you do not agree to this.
17.3
Please refer to our Data Protection policy, available on
request, for further details about the sharing of your
personal data in the above and other circumstances.
18. Data Protection
18.1
We will only use your personal information as set out in
our Data Protection policy, a copy of which is available
on request.
You can also read our
Privacy Policy
on our website.
18.2
We may from time to time send you updates or contact you
regarding events or seminars FCLA is hosting.
If you do not want to receive such information, you can
opt out. You do not have to receive such communications
for us to work with you.
If at any time you decide you no longer wish to hear from
us, you can opt out using the link provided at the bottom
of any email marketing communication.
18.3
Our bank may require us to provide it with our Customer
Due Diligence documentation in connection with its
anti-money laundering compliance requirements relating to
our use of a bank account for the purpose of holding
client money.
You agree that we may provide documentation of this type
to the bank whether or not the services we provide to you
are subject to regulation for anti-money laundering
purposes.
19. Intellectual Property Rights
19.1
You agree that the copyright and all other intellectual
property rights in all advice, reports, letters,
information, images and other documents that we create
for you belong to us, except where the information was
provided by you.
20. Excluded Advice
20.1
FCLA is a consultancy. It does not provide formal legal
advice. However, should we consider that this is
necessary, we have a number of firms of solicitors and
barristers, both in the UK and internationally, that we
can recommend.
We also do not provide tax or pension advice.
21. Email
21.1
Unless you notify us otherwise, you agree that we may
communicate with you and send our invoices to you by
email.
If we communicate by email, you accept that email is not
a secure form of communication and the contents of an
email could be intercepted and read by a third party.
Encrypted emails can be arranged by prior agreement.
22. Audit Enquiries
22.1
We may occasionally be approached by your auditors to
provide information. We may charge you for giving
certificates or information to your auditors. You hereby
authorise the disclosure of such information.
23. Applicable Law and Jurisdiction
23.1
This Retainer is governed by English Law. Any dispute
between us, other than the enforcement of any judgment
obtained in England and Wales, shall be governed by the
exclusive jurisdiction of the Courts of England and
Wales.
Our address for service is:
FCLA Limited
Springlands
Hill Top Lane
Saffron Walden
CB11 4AS
We do not accept service by fax or any electronic means,
save for the service of a notice of cancellation under
the provisions of clause 15.2.
24. Conclusion
24.1 If you have any questions about our Terms of Business, please let us know and we will be happy to answer them.