Clear Financial Consultants Limited
Terms and Conditions
1 Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
“Applicable Laws” (for so long as and to the extent that they apply to Clear Financial Consultants) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK and any regulation or guidance issued by the FCA.
“Business Day” a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Charges” the charges payable by the Customer for the supply of the Services in accordance with clause 5. “Clear Financial Consultants” Clear Financial Consultants Limited registered in England and Wales with company number 09682703.
“Commencement Date” has the meaning given in clause 2.2. ”Conditions” these terms and conditions as amended from time to time in accordance with clause 11.5. ”Contract” the contract between Clear Financial Consultants and the Customer for the supply of Services as set out in a Specification and in accordance with these Conditions.
“Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures” as defined in the Data Protection Legislation.
“Customer” the person or firm who purchases Services from Clear Financial Consultants, as set out in the Specification.
“Customer Default” has the meaning set out in clause 4.2.
“Data Protection Legislation” the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
“Deliverables” the deliverables set out in the Specification, if any, to be provided to the Customer by Clear Financial Consultants.
“FCA” the Financial Conduct Authority or any replacement or successor body.
“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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.
“Services” the services, including if relevant the Deliverables, to be supplied by Clear Financial Consultants to the Customer as set out in the Specification.
“Specification” the document setting out the Services to be provided, the Charges, any Deliverables, and any other relevant details, as provided in writing to the Customer by Clear Financial Consultants.
“UK Data Protection Legislation” all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.2 Interpretation:
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2 Unless the context otherwise requires, any reference to European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended, re-enacted or otherwise given effect on or after 11pm on 31 January 2020.
1.2.3 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.4 A reference to writing or written includes email.
2 Basis of contract
2.1 Clear Financial Consultants shall provide the Customer with a Specification. The Customer’s acceptance of such Specification in writing constitutes an offer by the Customer to purchase Services in accordance with these Conditions. If the Customer wishes to make amendments or additions to a Specification it may do so by giving notice to Clear Financial Consultants before accepting the Specification and Clear Financial Consultants shall consider such amendments or additions and if accepted issue a revised Specification for the Customer to consider and, if it wishes, accept in writing.
2.2 The offer made by the Customer is only accepted once the Supplier issues written confirmation of the Contract and the Contract shall come into existence on that date (the “Commencement Date”).
2.3 Any descriptive matter or advertising issued by Clear Financial Consultants, and any descriptions or illustrations contained in Clear Financial Consultants’ website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by Clear Financial Consultants shall not constitute an offer, and is only valid for a period of seven Business Days from its date of issue.
3 Supply of Services
3.1 Clear Financial Consultants shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 Clear Financial Consultants shall use all reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Clear Financial Consultants reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Clear Financial Consultants shall notify the Customer in any such event.
3.4 Clear Financial Consultants warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 The Services do not include:
3.5.1 legal, accountancy or tax advice;
3.5.2 the outsourcing of the Customer’s regulatory obligations as required by the FCA;
3.5.3 advice upon which categories of registration with the FCA or any other regulatory body may be required;
3.5.4 risk assessment, file audits, professional indemnity insurance cover, or any direct interaction with the Customer’s clients; or
3.5.5 anything other than the Services and Deliverables set out in the Specification.
4 Customer’s obligations
4.1 The Customer shall:
4.1.1 ensure that the terms of the Specification are complete and accurate before it accepts the Specification;
4.1.2 co-operate with Clear Financial Consultants in all matters relating to the Services;
4.1.3 provide Clear Financial Consultants and its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Clear Financial Consultants;
4.1.4 provide Clear Financial Consultants with such information and materials as Clear Financial Consultants may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.5 comply with all Applicable Laws and any directions or guidance issued by the FCA or another relevant regulatory body;
4.1.6 keep all materials, equipment, documents and other property of Clear Financial Consultants (“Materials”) at the Customer’s premises in safe custody at its own risk; and
4.1.7 comply with any additional obligations and responsibilities as set out in the Specification.
4.2 If Clear Financial Consultants’ performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
4.2.1 without limiting or affecting any other right or remedy available to it, Clear Financial Consultants shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Clear Financial Consultants’ performance of any of its obligations;
4.2.2 Clear Financial Consultants shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Clear Financial Consultants’ failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Customer shall reimburse Clear Financial Consultants on written demand for any costs or losses sustained or incurred by Clear Financial Consultants arising directly or indirectly from the Customer Default.
5 Charges and payment
5.1 The Charges for the Services shall be as set out in the Specification.
5.2 Clear Financial Consultants shall submit invoices in accordance with the Specification and the Customer shall pay each invoice submitted by Clear Financial Consultants:
5.2.1 within seven Business Days of the date of the invoice; and
5.2.2 in full and in cleared funds to a bank account nominated in writing by Clear Financial Consultants, and
5.2.3 time for payment shall be of the essence of the Contract.
5.3 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Clear Financial Consultants to the Customer, the Customer shall, on receipt of a valid VAT invoice from Clear Financial Consultants, pay to Clear Financial Consultants such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.4 If the Customer fails to make a payment due to Clear Financial Consultants under the Contract by the due date, then, without limiting Clear Financial Consultants’ remedies under clause 8.1, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.4 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.5 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6 Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Clear Financial Consultants.
6.2 Clear Financial Consultants grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
6.4 The Customer grants Clear Financial Consultants a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Clear Financial Consultants for the term of the Contract for the purpose of providing the Services to the Customer.
7 Data protection
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, in relation to the Services the Customer is the controller and Clear Financial Consultants is the processor.
7.3 Without prejudice to the generality of clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Clear Financial Consultants for the duration and purposes of the Contract.
7.4 Without prejudice to the generality of clause 7.1, Clear Financial Consultants shall, in relation to any personal data processed in connection with the performance by Clear Financial Consultants of its obligations under the Contract:
7.4.1 process that personal data only on the documented written instructions of the Customer unless Clear Financial Consultants is required by Applicable Laws to otherwise process that personal data. Where Clear Financial Consultants is relying on Applicable Laws as the basis for processing personal data, Clear Financial Consultants shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Clear Financial Consultants from so notifying the Customer;
7.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
7.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
7.4.4 not transfer any personal data outside of the UK or European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(a) the Customer or Clear Financial Consultants has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) Clear Financial Consultants complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(d) Clear Financial Consultants complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
7.4.5 assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.4.6 notify the Customer without undue delay on becoming aware of a personal data breach;
7.4.7 at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Laws to store the personal data; and
7.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and allow for audits by the and immediately inform the Customer if, in the opinion of Clear Financial Consultants, an instruction infringes the Data Protection Legislation.
7.5 Clear Financial Consultants may, at any time on not less than 30 days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
8 Limitation of liability:
8.1 Except as expressly provided in the Contract and to the fullest extent permitted by applicable law:
8.1.1 Clear Financial Consultants shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Clear Financial Consultants by the Customer in connection with the Services; and
8.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from the Contract.
8.2 Neither party excludes or limits liability to the other party for fraud or fraudulent misrepresentation, death or personal injury caused by negligence, or any matter for which it would be unlawful for the parties to exclude or limit liability.
8.3 Subject to clause 8.2, Clear Financial Consultants shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
8.3.1 any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
8.3.2 any loss or corruption (whether direct or indirect) of data or information;
8.3.3 loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
8.3.4 any loss or liability (whether direct or indirect) under or in relation to any other contract.
8.4 Subject to clause 8.2, Clear Financial Consultants’ total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Services shall be limited to the payment of Charges received by Clear Financial Consultants for the Services set out in the Specification.
9 Termination
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one month’s written notice.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
9.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
9.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, Clear Financial Consultants may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment or if the Customer breaches any Applicable Laws.
9.4 Without affecting any other right or remedy available to it, Clear Financial Consultants may suspend the supply of Services under the Contract or any other contract between the Customer and Clear Financial Consultants if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.2.2 to clause 9.2.4, or Clear Financial Consultants reasonably believes that the Customer is about to become subject to any of them.
10 Consequences of termination
10.1 On termination of the Contract:
10.1.1 the Customer shall immediately pay to Clear Financial Consultants all of Clear Financial Consultants’ outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Clear Financial Consultants shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
10.1.2 the Customer shall return all Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Clear Financial Consultants may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11 General
11.1 Force majeure: Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings:
11.2.1 Clear Financial Consultants may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
11.2.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Clear Financial Consultants.
11.3 Confidentiality:
11.3.1 Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3.2.
11.3.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(b) as may be required by Applicable Law, a court of competent jurisdiction, the FCA or any governmental or regulatory authority.
11.3.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement:
11.4.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.4.2 Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.4.3 Nothing in this clause shall limit or exclude any liability for fraud.
11.5 Variation: Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver: A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance: If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 11.7 shall not affect the validity and enforceability of the rest of the Contract.
11.8 Notices:
11.8.1 Any notice or other communication required to be given under the Contract, shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier or by email, to each party required to receive the notice or communication as set out in the Specification or as otherwise specified by the relevant party by notice in writing to each other party.
11.8.2 Any notice shall be deemed to have been duly received:
(a) if delivered personally, when left at the address and for the contact referred to in this clause;
(b) if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting;
(c) if sent by email, upon transmission of the email or
(d) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
11.8.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.9 Third party rights:
11.9.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.9.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.10 Governing law: The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.11 Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.