Terms of Business
In these Terms of Business “VTK” refers to VTK Investigations Limited a company registered in England under number 8610249 and “you” refers to you, VTKs’ client (“Client”)
These are the Terms of Business referred to in the engagement correspondence between VTK and you.
Unless otherwise agreed, VTK will take your agreement to its carrying out work on your behalf as your acceptance of these Terms of Business. In those circumstances, these Terms of Business will govern the agreement between you and VTK save that all references in these Terms of Business to the “Services” will be construed as referring to the work which VTK performs on your behalf.
1. VTKs’ Responsibilities to You
1.1
VTK will provide the Services described in any communications (or such variations as may subsequently be agreed between VTK and you) with reasonable skill and care and in a timely manner although you acknowledge that any timetable suggested or agreed is contractually non-binding.
1.2
VTK will provide advice only in relation to the Services as set out in the communications and for no other purpose. VTK disclaims any responsibility for the use of its advice for a different purpose or in a different context.
1.3
So far as it is practicable, any persons noted in the communications will perform the Services. However, in order to provide the Services on a cost effective basis, VTK reserves the right to use any personnel or sub-contractors to provide any part of the Services.
1.4
In providing the Services VTK may be subject to various legislative requirements, including, but not restricted to: the Regulation of Investigatory Powers Act 2000; the Police and Criminal Evidence Act 1984; the Criminal Procedures and Investigations Act 1996; the Proceeds of Crime Act 2002; the Money Laundering Regulations 2007; Data Protection Act 1998 and GDPR legislation. To the extent required VTK will act in accordance with the legislation stated above in connection with the conduct of investigations and the provision of the Services.
1.5
VTK is required in certain instances by the Proceeds of Crime Act 2002 and the Money Laundering Regulations 2007 to obtain and retain evidence of the identity of all clients. To comply with the legislation we may also be required to obtain further evidence of funds held by or accruing to you.
2. Your Responsibilities to VTK
2.1
It is your responsibility to ensure that the Services are suitable for your requirements.
2.2
In order to enable VTK to fulfil its responsibilities you agree, on request, to provide VTK with legally obtained, complete and accurate information so far as such information is available, which may assist VTK in performing the Services, on a timely basis including promptly making decisions as required. You agree that all information you provide to VTK is not misleading and that you are authorised to disclose such information.
2.3
You agree that you will be solely responsible for any commercial decisions that you make which do not rely upon advice provided by VTK and that to the extent that you make any commercial decision in reliance upon the advice provided by VTK, you will take into account the restrictions on the scope of the Services and any other factors, commercial and otherwise, of which you and your other advisers are, or should be, aware from sources other than VTK.
2.4
You agree when engaging and/or instructing VTK, you are authorising and accepting the use of our sub-contracted agents handling any personal data. A copy of our sub-contractor agent agreement is available on request.
3. Fees
3.1
Unless otherwise specifically agreed in correspondence, VTKs’ fees will be based on standard contingent or underwritten hourly rates, whichever VTK in its absolute discretion deems appropriate, taking into account the level of personnel assigned to the engagement. The seniority of personnel assigned will be determined by the complexity of the matter and the degree of skill and responsibility involved, and will be at VTKs’ discretion.
3.2
Unless otherwise specifically agreed in correspondence, any estimates given by VTK are only estimates and VTKs’ fees may be lower or higher. VTK will inform you on a timely basis if it considers that the estimate is likely to be exceeded. If delays or other unanticipated problems occur which are beyond VTKs’ control, this may result in additional fees over and above the fee estimate.
3.3
VTK will be entitled to require payments to be made on account, once significant amounts of time have been incurred or for payment of expenses. Any such payments on account will be agreed with you before an invoice for such amount is presented.
3.4
VTKs’ invoices will normally be presented on completion of the Services or an agreed proportion of the Services. It may be appropriate to issue invoices weekly, monthly or quarterly where general advice is being given on a regular basis or where you would, in any event, prefer VTK to issue invoices on this basis.
3.5
Unless otherwise stated in correspondence, expenses, including travel and subsistence, and for goods and services purchased on your behalf, are charged in accordance with VTKs’ standard policies.
3.6
All fees and expenses will be subject to VAT at the prevailing rate.
4. Payment
4.1
Unless otherwise provided for in correspondence, invoices presented on completion are payable within 28 days or as per the terms on the invoice. Disbursement invoices are payable within seven working days.
4.2
VTK reserves the right to charge interest on amounts overdue by 14 days from the date when payment should have been made to the date when payment is made at an annual rate of eight per cent (8%) plus late payment charges of £25.00 per outstanding invoice. (Late Payment of Commercial Debts (Interest) Act 1998).
5. Termination
5.1
You may terminate VTKs’ obligation and/or right to provide the Services at any time. VTK reserves the right to submit an invoice or invoices for all un-billed time charges recorded in respect of the Services up to the date of termination at its standard contingent charge-out rates for the personnel involved in addition to all disbursements and other outlays expended by VTK on your behalf.
VTK reserves the right to make a cancellation fee, should short notice be given and where personnel and resources have already been allocated to the assignment.
5.2
VTK reserves the right to terminate its obligation to provide the Services in the event that:
5.2.2
Fundamentally damaging information comes to VTKs’ attention which in VTKs’ opinion would preclude VTK from providing or continuing to provide the Services; or
5.2.3
VTK forms the view that by continuing to act for you, VTK is or may be breaking the law or compromising the good standing of VTK such decision to be at the sole discretion of VTK; or
5.2.4
You are adjudicated bankrupt, convene a meeting of creditors, a proposal is made in relation to you for a voluntary arrangement under Part 1 of the Insolvency Act 1986, a proposal is made for any other composition, scheme or arrangement with (or assignment for the benefit of) your creditors; you are unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986; a trustee receiver administrative receiver or similar officer is appointed in respect of all or part of your assets or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of you, or for the making of an administration order in relation to you (otherwise than for the purpose of an amalgamation or reconstruction).
6. Limitation of Liability and Indemnities
6.1
Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, or for death or personal injury caused by its negligence. Subject to:
(a) Maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed the higher of (i) the total fees payable to VTK hereunder and (ii) £20,000.
(b) VTK will not be liable under this Agreement for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss of damage is foreseeable, foreseen or known.
6.2
The parties agree that any condition, warranty, representation or other term concerning the performance of the Services, which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by law.
6.3
The Client shall indemnify VTK and their officers, directors, employees and agents from and against any and all costs, claims, demands, liabilities, damages, expenses and losses (including without limitation, indirect and consequential losses, loss of profit, loss of revenue and loss of reputation, and all other interest, penalties and legal and other professional costs and expenses) incurred or suffered by VTK as a result of:
(a)
The Client’s breach of Clause 3, 7 and/or 8;
(b)
The investigation of, preparation for or defence of, any pending or threatened litigation or claim by any third party in connection with this Agreement, the Services or the relationship between the parties; and
(c)
The Client’s negligence, recklessness or fraud (or that of any of its officers, employees subcontractors or agents).
7. Confidentiality
7.1
Save in the case of information that is already in the public domain (other than by breach of any agreement between you and VTK) and save to the extent that VTK needs to provide information to other entities which provide support facilities, VTK will keep all information provided by you in relation to the Services confidential and separate from all other information held on behalf of any other clients or third parties and will not disclose it to any third party. VTK will use such information only for the purposes required to provide the Services or only so far as it is required to disclose the same in order to comply with any legislation, directive or regulation of any prescribed regulatory body.
7.2
VTK is keen to obtain publicity for work it undertakes. This could include both internal and external publicity. Permission publicly to attribute work provided as part of the Services and/or as having been performed on your behalf will always be obtained from you in advance. Notwithstanding the provisions of this clause of these Terms of Business, unless you notify VTK in writing that you do not agree to such disclosure, VTK reserves the right to refer to any matters completed on your behalf in proposals or other similar submissions made to VTKs’ prospective clients.
7.3
All reports and information supplied by VTK to you in connection with the Services are provided for your benefit only and solely for the purpose of the engagement to which they relate. They must not be used or relied on for any purpose or disclosed by you in whole or in part without prior written consent.
8. Data Protection
8.1
Information which VTK hold about you may include personal data which falls within data protection/GDPR legislation. VTK will ensure that it complies with the provisions and obligations imposed on it by GDPR and the Data Protection Act 1998 and any other applicable legislation.
8.2
All personal data acquired by VTK or you will be returned or deleted (at the option of the requesting party) on request, except to the extent required by that party to perform the Services or its obligations under any agreement set out in correspondence or as required by law.
8.3
You acknowledge that you are the data controller of all personal data processed by VTK for you in providing the Services. You acknowledge that in performing the Services VTK is permitted to use the personal data. VTK will only do so as instructed by you or as part of its file management procedures or as otherwise permitted by law. You warrant that all such personal data has been processed in accordance with data protection legislation and you agree to indemnify VTK and all other affected entities against all and any loss or damage they may suffer as a result of the use of such personal data.
8.4
VTK will, having regard to the state of technological development and to the cost of implementing any measures:
8.4.1
Provide a level of security (including appropriate technical and organisational measures) appropriate to:
(a)
The harm that might result from unauthorised or unlawful processing of such personal data or accidental loss, destruction or damage of such personal data; and
(b)
The nature of the data
8.4.2
Take reasonable steps to ensure the reliability of the personnel who have access to the personal data.
For the avoidance of doubt, the instructions are accepted on the basis that our services are conducted under the direction of the client and as such we are deemed the Data Processor and the client, and/or the principal is deemed Data Controller. The handling of personal data will be in accordance with your instructions and direction and in accordance with the Data Protection Policy published by The Association of British Investigators (www.theABI.org.uk). All searches and enquiries that we conduct are compliant and discreet but in any event by instructing us, you confirm that you are acting in compliance with at least one of the conditions contained in Schedule 2 of the Data Protection Act.
9. Electronic Communications
9.1
VTK has the capacity to communicate by way of email. This may include correspondence, documents or other information. VTK may also require access to your networks in order to provide the Services. The Internet is inherently insecure, is sometimes affected by viruses and data can be corrupted and messages are not always delivered on time. Unless you specifically instruct VTK not to do so, it will use ordinary email for many of its communications with you and to send you documents. It is possible that information sent in this format, may be intercepted intentionally or by accident and read by a third party. If you do not wish VTK to communicate with you by email or to send any specific piece of advice by email you should advise VTK accordingly in writing. By agreeing to work together, both you and VTK agree to utilise virus checks and such other security measures as a prudent operator of information and communications technologies would use. If, despite the use of such measures to such standard, you or VTK suffers any loss or damage, neither party shall be liable to the other whether in contract, tort (including negligence) or otherwise.
9.2
VTK Investigations Limited will not accept service via any electronic means.
10. Quality of Service
10.1
It is VTKs’ policy to maintain a high quality of service to all clients and it is VTKs’ usual aim to obtain, either formally or informally, a regular assessment of VTKs’ performance. Vince Butler will always be pleased to hear any suggestion as to how VTKs’ service can be improved. If, on the other hand, you wish to make a complaint, please take it up with the person named in the relevant correspondence as having overall responsibility for the provision of the Services or if you would prefer, you should contact Vince Butler on tel. no. 01422 257954 or by email.
10.2
VTK undertakes to look into any concern which you may have carefully and promptly and to do all it can to explain the position to you and where appropriate, to do everything reasonable to put it right.
11. Governing Law and Jurisdiction
11.1
You agree on your own behalf that this Agreement shall be governed by, and interpreted and construed in accordance with English Law and you submit to the exclusive jurisdiction of the courts of England and Wales to settle any disputes (including claims for set-off and counterclaims), which may arise in connection with the validity, effect, interpretation or performance of the legal relationship established by this Agreement or otherwise arising in accordance with this Agreement.
12. Separate Provisions
12.1
If any provision of these Terms of Business or any provision set out in correspondence (or in each case, any part of any such provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the agreement between you and VTK and the validity and enforceability of the other provisions of such agreement shall not be affected.
12.2
No person has been authorised to give any representations on behalf of VTK as regards the subject matter or terms of any correspondence or these Terms of Business and any representations which have been or may be given shall not be relied upon.
13. General
13.1
Nothing in any agreement entered into between you and VTK will constitute either party, a partner, agent or employee of the other party.
13.2
No amendment or variation of the terms of the agreement set out in any correspondence or to which these Terms of Business otherwise apply will be effective unless made or confirmed in writing and signed by both you and VTK.
13.3
No party other than you, VTK and any other entities referred to in these Terms of Business shall have any rights under or in connection with the agreement between you and VTK to which these Terms of Business apply.
13.4
VTK reserves the right to decline your instructions.
13.5
From time to time an actual or potential conflict may arise between clients of VTK If such a situation arises, whenever possible, VTK will discuss the matter with you to agree an appropriate course of action. However, wherever VTK deems it unavoidable to do so, it may decline your instructions without giving a reason.
14. Services
14.1
Any timescales provided in relation to services are approximate. They are only relative to working hours which shall be deemed to be 08.30 – 17.30 hours, Monday to Friday. Public holidays are excluded. VTK cannot be held responsible for any delays caused by third parties, technological failures, incorrect or insufficient information provided, payment problems or any other unforeseen circumstances or acts of god. All efforts, however, will be made by VTK to meet timescales as advertised and/or agreed between you and VTK.
14.2
Where information is provided by third parties, or has been compiled by third parties, VTK cannot be held responsible for any inaccuracies. Whilst every effort will be made to insure that information provided is accurate, we cannot be held responsible if this does not prove to be so. Any information reports issued by VTK are valid for 21 days from date of reporting, if queried after this time, VTK can charge all and any appropriate fees.