Counterespionage Solutions
Ensuring the Integrity of your Confidential Information
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1 Interpretation
1.1 In these Terms and Conditions:
1.1.1 "Agreement" means the agreement comprised by the combination of the Order Form and the Terms and Conditions;
1.1.2 "Charges" means the charges shown in the Order Form or otherwise payable pursuant to clause 3 below;
1.1.3 "Client" means the person or company named as such in the Order Form;
1.1.4 "Consequential Loss" means pure economic loss, loss of profit, loss of business and like loss;
1.1.5 "Staff/Resources" means the number of Esoteric employees shown on the Order Form who will carry out the Specified Service;
1.1.6 "Day and Hours" means the days and hours anticipated for completion of the service;
1.1.7 "Location" means the location shown in the Order Form;
1.1.8 "Order Form" means the order form attached hereto or otherwise referring to these Terms and Conditions;
1.1.9 "Period" means the period shown in the Order Form;
1.1.10 "Special Conditions" means the special conditions shown in the Order Form;
1.1.11 "Specified Service" means the specified service shown in the Order Form;
1.1.12 "Terms and Conditions" means these terms and conditions which together with the Order Form comprise an agreement between Esoteric Ltd and the Client.
1.2 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
2 Contractor
2.1 Esoteric Ltd shall supply to the Client its staff to carry out the Specified Service at the Location for the Period, during the Days and Hours, at the Charges and in compliance with any Special Conditions. Any changes or additions to the Specified Service or these Terms and Conditions must be agreed in writing and signed by a duly authorised representative of Esoteric Ltd.
2.2 Unless otherwise agreed in advance with Esoteric, weekday surveys will commence at approximately 18:00hrs and weekend surveys will take place during daylight hours (08:00 ~ 18:00). Surveys outside of these times may incur additional
2.3 Esoteric Ltd shall, in the time available and having regard to all the circumstances, use its reasonable endeavours to provide Staff/Resources capable of providing the Specified Service at the Location.
2.4 The Client shall supply Esoteric Ltd with the work environment, facilities, training, information and instructions necessary for its employees to perform the Specified Service.
2.5 The Client warrants that it has the authority to enter into this Agreement and that the signatory on its behalf on the Order Form has authority to bind the Client.
3 Charges
3.1 The Client shall pay to Esoteric Ltd the Charges.
3.2 All Charges are exclusive of any Value Added Tax, or other duties or taxes that may be levied in respect of the Charges, for which the Client shall be additionally liable.
3.3 Unless otherwise agreed in writing, the Charges are exclusive of any disbursements or expenses which may be incurred by Esoteric Ltd in connection with the provision of the Specified Service and any other sums which are agreed between Esoteric Ltd and the Client for which Esoteric Ltd shall be entitled to charge additionally.
3.4 Esoteric Ltd shall be entitled to invoice the Client at the conclusion of each visit.
3.5 The Client shall pay the Charges within 30 days of the date of Esoteric Ltd’s invoice and without any set-off or other deduction.
3.6 If any payment due from the Client to Esoteric Ltd is outstanding, Esoteric Ltd shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 8% above the base rate from time to time of National Westminster Bank Plc from the due date until the outstanding amount is paid in full.
4 Liability
4.1 Esoteric Ltd shall exercise the same standard of skill and care in the performance of its obligations under this Agreement as would ordinarily be expected of a similar professional service provider providing services of a similar nature. Subject to the foregoing and to the maximum extent permissible in law, all conditions and warranties, which are to be implied by statute or otherwise by general law into this Agreement or relating to the Specified Service, are hereby excluded.
4.2 Esoteric Ltd's Charges are determined on the basis of the exclusions from, and limitations of, liability contained in this Agreement. The Client expressly agrees that these exclusions and liabilities are reasonable because of (amongst other matters) the likelihood that the amount of damages awardable to the Client for a breach by Esoteric Ltd of this Agreement may be disproportionately greater than the price of Esoteric Ltd's Charges.
4.3 The following provisions in this clause 4 set out Esoteric Ltd's entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Client in respect of:
4.3.1 a breach of Esoteric Ltd's contractual obligations;
4.3.2 a tortious act or omission for which Esoteric Ltd is liable;
4.3.3 an action arising out of a misrepresentation by or on behalf of Esoteric Ltd;
arising in connection with the performance or contemplated performance of this Agreement; or out of
4.3.4 an act which Esoteric Ltd would not have done; or
4.3.5 an omission which Esoteric Ltd would not have made;
but for the entry by Esoteric Ltd into this Agreement.
4.4 The total liability, which Esoteric Ltd shall owe to the Client and in respect of all claims, shall not exceed £250,000 and Esoteric Ltd warrants that it has a professional indemnity insurance policy in place providing cover of at least £250,000 per claim.
4.5 Esoteric Ltd shall in no circumstances be liable to the Client for any Consequential Loss.
4.6 The Client shall only be entitled to bring a claim against Esoteric Ltd where the Client issues legal proceedings against Esoteric Ltd within the period of three months commencing on the date upon which the Client ought reasonably to have known of its entitlement to bring such a claim.
4.7 Notwithstanding anything to the contrary contained in this Agreement, Esoteric Ltd's liability to the Client for:
4.7.1 death or personal injury resulting from the negligence of Esoteric Ltd, its employees, agents or sub-contractors;
4.7.2 damage suffered by the Client as a result of a breach by Esoteric Ltd of the condition as to title or the warranty as to quiet possession implied by s 12 of the Sale of Goods Act 1979 or s 2 of the Supply of Goods and Services Act 1982; and
4.7.3 damage for which Esoteric Ltd is liable to the Client under Part I of the Consumer Protection Act 1987;
shall not be limited save that nothing in this clause 4 shall confer a right or remedy upon the Client to which the Client would not otherwise be entitled.
4.8 The exclusions from, and limitations of, liability set out in this clause 4 shall be considered severally. The validity or unenforceability of any one clause, sub-clause, paragraph or sub-paragraph of this clause 4 shall not affect the validity or enforceability of any other part of this clause 4.
4.9 The provisions of this clause 4 shall survive the termination of the whole or any part of this Agreement.
4.10 There is nothing knowingly unlawful in the Client’s request for Esoteric to conduct the work specified in the attached Order Form, and that the Client is not engaged in any unlawful activity which may have resulted in Police or other investigative bodies carrying out lawful surveillance upon the said premises.
5 Termination
5.1 Either party shall be entitled to terminate this Agreement at any time by giving the other not less than one month's notice from the end of the contract period.
5.2 Esoteric Ltd shall be entitled to terminate this Agreement at any time by giving notice to the Client in the event that the Client:
5.2.1 goes into liquidation, has a receiver or administrator appointed over any of its assets or otherwise makes any arrangement with its creditors;
5.2.2 fails to pay the Charges;
5.2.3 materially or persistently breaches any term of this Agreement; or
5.2.4 is responsible for any action or omission that brings, or may in the reasonable opinion of Esoteric Ltd bring, Esoteric Ltd into disrepute.
5.3 The Client shall be entitled to terminate this Agreement at any time by giving notice to Esoteric Ltd in the event that Esoteric Ltd is fundamentally unable to provide the Specified Service.
5.4 Termination shall not prejudice or affect any right or action or remedy which shall have accrued or shall thereafter accrue to either party in respect of the period up to such termination.
5.5 Once work has been confirmed and scheduled, if the client, for any reason, has to cancel or postpone the work at any time prior to the scheduled date or time, Esoteric Ltd will make every effort to find other work to cover the scheduled period.
If however, Esoteric is unable to secure work to cover the scheduled period, the following scale of cancellation charges will apply:
• 48 hours notice or less: 50% of the service fee is payable
• 24 hours notice or less 100% of the service fee is payable
Any agreed disbursements/charges incurred by Esoteric up until the time of cancellation or postponement will also be charged at cost.
Notification of cancellation should be made to the Operations Manager in the first instance verbally by calling +44 (0) 1483 740423. Cancellations should also be put in writing (via email to ) by the client.
5.6 Should Esoteric Ltd, for reasons beyond its control, need to make any amendments to the agreed date and time of the proposed work, we reserve the right to offer an alternative date/time. Esoteric will not be liable for any loss or damage arising from such amendments. Esoteric may cancel any outstanding work:
• If the client fails to make full payment determined for the scheduled work (unless credit
has been agreed)
• If the work might, in its opinion, prejudice the reputation of the Esoteric Ltd
• If the client is more than 30 days in arrears of previous payments.
• If Esoteric becomes aware of any alteration in the client's financial situation.
6 Status And Tax Liabilities
6.1 The parties declare that it is their intention that this Agreement shall not at any time create between the parties a relationship of employment, agency, partnership or joint venture.
7 Restraint of Trade
7.1 The Client agrees that in the event of it (or any group company of it) directly or indirectly agreeing to employ or engage on any other basis Esoteric Ltd staff or its associates to carry out the Specified Service or any similar service during the period of this Agreement or for a period of 12 months thereafter (in each case an "Engagement in Breach") then it shall forthwith pay to Esoteric Ltd a sum equal to 35% of the annualised value of the remuneration package for such employment or engagement. In the event that such employment or engagement subsists for less than 12 months Esoteric Ltd shall, within 30 days of receiving written notice of the termination of such employment or engagement, pay to the Client a sum equal to 1/12th of the monies previously received by Esoteric Ltd pursuant to the provisions of this clause for each full month by which the Engagement in Breach was for a period of less than 12 months.
8 Non-solicitation of employees
8.1 Each party agrees that it will not solicit for employment or employ any employee of the other with whom it may have had contact as a result of this Agreement. This restriction shall apply during the course of this Agreement and for eighteen months after its termination. Any breach of this clause will result in court action.
9 Assignment
9.1 The Client may not assign, transfer, sub-contract or in any other manner make over to any third party the benefit and/or burden of these Terms and Conditions without the prior written consent of Esoteric Ltd.
9.2 Esoteric Ltd shall be entitled to assign, transfer or in any manner make over the benefit and/or burden of these Terms and Conditions.
9.3 This Agreement shall be binding upon the successors and assigns of the Client provided always that nothing shall permit any assignment by either party except as expressly provided herein.
9.4 Esoteric Ltd cannot enter into any commitment which would involve assuming the powers of the civil police.
9.5 It is the obligation of the Client to identify and consult with Esoteric Ltd on any specific health and safety requirements that apply, or are likely to apply, during the period of the contract:
9.6 It is the obligation of the Client to provide and/or maintain any specified item, service or information which the Client has agreed to provide and which is necessary for fulfilling the Specified Service.
10 Force Majeure
10.1 Neither party shall be in breach of these Terms and Conditions if there is any total or partial failure of performance by it of its duties and obligations under these Terms and Conditions occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining supplies, labour disputes of whatever nature and any other reason beyond the reasonable control of either party. If either party is unable to perform its duties and obligations under these Terms and Conditions as a direct result of the effect of one of those reasons, that party shall give written notice to the other of the inability, which sets out full details of the reason in question. The operation of these Terms and Conditions shall be suspended during the period (and only during the period) in which the reason continues. Forthwith upon the reason ceasing to exist, the party relying upon it shall give written advice to the other of this fact. If the reason continues for a period of more than 30 days and substantially affects the commercial intention of these Terms and Conditions, the party not claiming relief under this clause 9 shall have the right to terminate these Terms and Conditions upon giving 30 days' written notice of such termination to the other party.
11 General
11.1 These Terms and Conditions (together with the Order Form) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in accordance with clause 2.1 above. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
11.2 Any notice required or permitted to be given by either party to the other under these Terms and Conditions shall be in writing addressed to the other party at its registered office or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any notice or other document to be given under these Terms and Conditions shall be in writing and shall be deemed to have been duly given if left at or sent by:
11.2.1 first class post or express or air mail or other fast postal service; or
11.2.2 e-mail, facsimile or other electronic media to a party at the address or relevant telecommunications number for such party or such other address as the party may from time to time designate by written notice to the other[s] in accordance with clause 10.2 above.
11.3 All such notices and documents shall be in the English language. Any notice or other document shall be deemed to have been received by the addressee two working days following the date of despatch of the notice or other document by post or, where the notice or other document is sent by hand or is given by e-mail, facsimile or other electronic media, simultaneously with the delivery or transmission. To prove the giving of a notice or other document it shall be sufficient to show that it was despatched.
11.4 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.5 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected.
11.6 In the event of there being a conflict between the provisions of these Terms and Conditions and/or the Order Form, these Terms and Conditions shall prevail.
11.7 Each of the parties hereto shall be responsible for its respective legal and other costs incurred in relation to the preparation and execution of these Terms and Conditions.
12 Governing Law and Jurisdiction
12.1 The validity, construction and performance of these Terms and Conditions shall be governed by English Law.
12.2 All disputes, claims or proceedings between the parties relating to the validity, construction or performance of these Terms and Conditions shall be subject to the non-exclusive jurisdiction of the High Court of Justice in England to which the parties hereto irrevocably submit. Each of the parties irrevocably consents to the award or grant of any relief in any such proceedings before the High Court of Justice in England. Either party shall have the right to take proceedings in any other jurisdiction for the purposes of enforcing a judgment or order obtained from the High Court of Justice in England.
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