General terms of engagement
These are the General Terms of Engagement on client assgnments at ARTEMIS Transition Partners, hereinafter ATP. Where there will be found variation of any kind between these General Terms of Engagement and any specific, signed contract governing a particular engagement, the contract as executed by the Client and ATP will apply.
ATP will make explicit these General Terms of Engagement on all relevant written documents submitted to the Client in advance of any one Assignment and it will be assumed that the Client is familiar with them prior to engaging ATP for any services that ATP may offer the Client. Where no other formal contract will have been executed between ATP and the Client for services that ATP may offer a client, therefore, these General Terms of Engagement shall be deemed to be the contractual agreement between ATP and the Client. (see Definition H below).
No variation of these terms shall be made without mutual consent of both parties in writing.
A. ATP shall mean ARTEMIS Transition Partners, and any parent, subsidiary, holding or associated company thereof as identified to the Client.
B. 'Client 'shall mean the individual person or corporate entity that engages ATP to provide professional services subject to these General Terms.
C. "The Parties" shall refer to ATP and the Client in a singular, collective context.
D. ‘Client Contact’ shall mean the individual person or persons acting for the Client in matters entailed in the transacting of business between the parties subject to these General Terms.
E. ‘The Proposal’ shall mean the communication from ATP to the Client articulating ATP’s understanding of the Client’s requirements and detailing how ATP proposes to meet these requirements, budgetary implications thereof, timeframes, and related logistical considerations, based on ATP’s understanding of the Client’s requirements, and in response to the Client’s request for such proposals.
F. ‘Assignment Brief’ shall mean the formal, written communication from ATP to the client to confirm discussions between the parties based on their mutual review of the Proposal and will serve as the parties’ Service Level Agreement (SLA) on the ‘Assignment’.
G. 'Agreement 'shall mean the contracted engagement by the Client of the services offered by ATP pursuant to the Proposal or as subsequently amended and confirmed in the Assignment Brief, and subject to these General Terms.
H. 'Engagement ' shall mean the binding request by the Client made to ATP to engage the services of ATP subject to acceptance by the Client of these General Terms. Such acceptance shall be considered confirmed by the Client through verbal instructions given to ATP by the Client, through written exchange of communication in which such instructions are given, implied or understood, through the formal issuance of a Purchase Order, or through the Client’s request via any written or verbal medium for fees estimates, a Pro‐forma Fee Note or Tax Fee Note for services the parties will have agreed ATP will provide.
I. ‘Assignment’ shall mean the specific set of tasks and activities within the professional services that the Client will have engaged ATP to provide as detailed in the Engagement.
J. 'Fees' shall mean the professional fees due to ATP for services rendered as detailed in the Proposal or as otherwise subsequently amended and confirmed in the Assignment Brief as well as disbursements incurred in the course of the Assignment, all subject to these General Terms.
K. ‘Pro‐Forma Fee Note’ shall mean the formal document giving indication of fees chargeable for services that the parties have agreed ATP will provide the Client as per the Proposal or as otherwise subsequently amended and confirmed in the Assignment Brief. The Pro‐Forma Fee Note will not be considered a tax Fee Note and will be received by the Client at least one week in advance of the commencement of work entailed therein. An official Tax Fee Note will follow the Client’s receipt of the Pro‐Forma Fee Note.
Scope and modalities of engagement
1. The scope of services that ATP offers the Client, related timeframes and Fees estimates are obtained from information made available to ATP prior to the Engagement. Their realisation will depend, to a large extent, on the degree of cooperation afforded by the Client in the course of the Assignment, as well as the Client’s degree of accuracy in presenting their requirements to ATP.
2. The Client undertakes, upon engagement of ATP, to provide true and accurate information and related data as may be required for purposes of execution of the Assignment and to make any third parties to this Agreement aware of this understanding. Further, the Client hereby indemnifies ATP for any loss or damage ATP may suffer directly or indirectly as a result of the Client’s breach of this clause, such loss or damage including but not being limited to the legal costs of defending any civil claim or criminal penalty against ATP arising from the Client’s breach hereof.
3. Where the Client is a corporate entity, it is taken that the Client Contact is legitimately and with full authority acting for the Client. The Client here warrants that any engagement of ATP or other third parties duly authorised as detailed herein by the Client Contact shall be considered legitimately so and fully supported by the Client. At no time shall this understanding be disputed by the Client on the grounds that such individuals are not or should not be seen to have been duly authorised by the Client to act on its behalf in the capacity they do.
4. While ATP undertakes to provide professional services of the full range that the Client contracts it, it shall remain within ATP’s discretion, subject to agreement with the Client to engage other expert personnel to meet unanticipated client needs on this Assignment, and it is in this regard agreed that the Client will be liable for the costs of such expertise where such need will not have been foreseen.
5. While ATP will endeavour to achieve the best results possible on the Assignment that is the subject of this Agreement, nothing in this Agreement or anywhere within ATP's obligations in this Agreement is to be considered a guarantee of the Assignment's anticipated outcomes. ATP cannot, in this respect, under any circumstances, be required by the Client to appear as a third party in the context of any claim for damages filed against the Client by an end consumer or any third-party to this Agreement for the Client's failure to perform as required by the third party or end-consumer on account of ATP having failed to perform as required or agreed.
A. Basis of fees charged
6. Fees payable on this assignment will be charged for time spent on the Client’s work, whether at the Client's premises or elsewhere.
7. Pursuant to 1 above, unless in exceptional circumstances, re‐work after conclusion of the Assignment and over‐runs which are the responsibility of the Client will be billed as separate Engagements.
8. If, during the course of the Assignment, the need for ancillary services not previously specified is identified, agreement to their use will be obtained from the Client before any expenditure is incurred.
9. Notwithstanding clauses 1, 6 and 7, ATP may offer a limited amount of otherwise billable professional services free of charge prior, during or after the Assignment. This is at ATP’s absolute discretion, and may be withdrawn at any time, for any reason and without obligation whatsoever. ATP will give the Client due notice of ATP’s intention to stop giving such services and clarify any charges that may subsequently apply. On no occasion shall ATP’s professional services offered without pay be construed as free or as obligatory components of the other paid‐for services.
10. ATP may on the basis of, including but not limited to repeat business and volume of work offer the Client discounts on professional fees payable. In no way does any such discount qualify or guarantee the Client future or indefinite discounts, or in any way imply a change in the fees payable for similar services provided the Client in future.
11. Fees are payable in advance or as otherwise stated in the Assignment Brief.
B. Modes of payment for services rendered
12. Cheques payments will be made in the name ARTEMIS Transition Partners.
13. KES EFT/RTGS payments will be made to: ARTEMIS Transition Partners, Absa Bank, Swift code: BARCKENX; Bank Code: 003; Branch Code: 094; Acc. No. 8001292.
14. USD EFT/RTGS payments will be made to ARTEMIS Transition Partners, Absa Bank, Swift code: BARCKENX; Bank Code: 003; Branch Code: 022; Acc. No. 2039215317.
15. Mobile money payments will be made to Safaricom M-Pesa Paybill Number: 228 849; Account. Number: Client name.
16. All payments made to ATP by the Client for services rendered this Agreement will be subject to deduction of tax at source by the Client as provided in applicable tax law. The Client expressly indemnifies ATP from any tax-related costs and liabilities howsoever arising that may be visited on themselves, which costs and liabilities include the cost of defending any civil claim or criminal penalty against ATP arising from the Client’s breach hereof.
17. The Client undertakes to submit all taxes withheld to the local revenue Authority/Authorities so as to cause the said Authority/ies to issue to ATP the applicable tax certificates for taxes deducted at source within thirty (30) days of such deduction.
18. Notwithstanding clauses 16 and 17 all tax liabilities on the part of ATP arising from and in connection with transactions relating to this Agreement shall be the responsibility of ATP.
D. Data protection
19. ATP acknowledges that the Services under this Agreement may be subject to the requirements of data protection legislation and undertakes to comply and assist the Client in complying with obligations thereunder in connection with the Services provided under this Agreement.
20. Each Party to this Agreement acknowledges the confidential nature of any and all information which may be disclosed to or otherwise come to its possession in any manner directly or indirectly arising from performance of this Agreement, where confidential information will mean all information (whether commercial, financial, technical or otherwise) relating to the disclosing party, its sub-contractors, other clients and service providers disclosed to or otherwise obtained by the recipient party in connection with this Agreement and which is designated as being confidential by the disclosing party or which is by its nature clearly confidential.
21. Both Parties undertake not to divulge confidential information to any person nor permit such to be divulged or otherwise communicated among its employees, agents or sub-contractors save to the extent that is necessary for the performance of this Agreement without either Party’s prior written consent.
22. To specifically guarantee confidentiality on the Assignment, each party undertakes to obtain from its employees, agents or sub-contractors to whom confidential information is to be disclosed on account of their involvement in the performance of this Agreement an appropriate personal undertaking no less binding upon such persons as the terms of this Agreement.
23. Notwithstanding Clauses 21 and 22 of this Agreement, each party and its employees, agents and sub-contractors shall be jointly and severally liable for loss and damages arising from breach of the confidentiality clauses on this Agreement.
24. Obligations in this Agreement relating to confidentiality shall not apply to potentially confidential Information:
a. in the recipient’s possession (with full right to disclose) before receiving it; or
b. which is, or becomes, public knowledge other than by breach of this clause; or
c. is independently developed by the recipient without access to or use of the confidential information; or
d. is lawfully received from a third party with full right to disclose.
25. This Confidentiality clause will continue in force notwithstanding the termination of this Agreement for any reason.
F. Intellectual property
26. Any material submitted to Client in writing, verbally, electronic or other media, remains the intellectual property of ATP and should under no circumstances be used by Client or shared with third parties without ATP’s prior consent. Upon commissioning and sign‐off of the Assignment and the payment of all Fees due, the intellectual property will pass to the client. Notwithstanding, nothing in this clause confers a license, a waiver or constitutes conveyance of ATP’s intellectual property rights over the material in question and ATP will hold Client liable for loss and damages arising from theft of such intellectual property or other use of it that may at ATP’s sole discretion be considered prejudicial to ATP .
27. Any information made available to ATP by the Client, in writing, verbally, electronic or other media will be treated in the utmost confidence. Such material will be kept secure and destroyed or otherwise returned to the Client at the conclusion of the Assignment, and all access credentials and other privileges immediately withdrawn, unless there shall be reason to retain such material and access privileges beyond conclusion or expiry of the Assignment and in any case with full knowledge and consent of the Client .
28. ATP shall have no liability or obligation to the Client with respect to any intellectual property right infringement or claim thereof which may arise from ATP’s re‐use of intellectual material and methodologies obtaining from the Assignment for purposes beyond those relating to this Agreement. The Client in this regard undertakes to indemnify and hold ATP harmless from all costs, damages and expenses arising from any intellectual property infringement claim.
29. Both Parties in this Agreement undertake not to use, reference, or authorize others to use or reference, any name, service mark, logo or other trademark of the other in any advertising, promotional, or business development material or other communication, including on its website and on customer lists, without the prior written consent of the other, which consent may be withheld at the withholding party’s sole discretion. Neither party shall make or authorize others to make any form of representation or statement that would constitute an express or implied endorsement of the other without prior approval from the other.
30. Notwithstanding Clause 29 of this Agreement, where there is any
question of work of a similar nature that ATP may bid for in future, reference
may be made to the Client but only after appropriate consultation with the
Client with respect to such divulgence.
H. Limit of liability
31. In any event ATP’s liability shall be limited to the amount of Fees payable for professional services within the Engagement and from which such liability may arise.
32. ATP shall not be liable for any loss or damage whatsoever that the Client may suffer as a result of ATP being unable to fulfil any of its obligations herein due to the occurrence of an event of force majeure, which term shall include, inter alia, legislative and regulatory acts of government, armed conflict, civil insurrection, strike, lockout, computer failure, failure of power supplies, earthquake, typhoon, tidal wave, and Acts of God.
I. Termination and cancellation
33. Termination of the Engagement by either party will only be accepted following notice of such intention given in writing, at least two weeks in advance of the intended termination date.
34. It is accepted by the Client that upon the Client’s receipt of the Pro‐Forma Fee Note, ATP will immediately commence the work to be done. Consequently, full Fees will be payable for all work done up to the date of termination, in the event that the assignment is terminated, suspended or postponed. The same will apply for all work done within the period of engagement where the Client will fail to communicate termination, suspension or postponement of the Assignment in writing at least two weeks in advance of the intended termination date following commencement of the Assignment.
35. ATP reserves the right to temporarily or indefinitely suspend work on this Assignment and, or withhold its output if, despite written notification, Fees will not have been paid as due and will not be liable for loss or damages arising from such action.
36. This agreement shall otherwise terminate immediately upon any other material breach of its terms without remedy. The provisions of this Agreement concerning remuneration and limitations of liability shall nonetheless survive its termination.
37. Upon termination of this Agreement, the Parties’ liability pursuant to this Agreement shall cease immediately, with the exception of liabilities and obligations in clauses where such termination is expressly negated in this Agreement.
J. Warranties and representations
38. Both parties warrant and represent that they are legally constituted as referenced in this Agreement, are duly licensed to operate in their respective capacities in this Agreement, and that they are legally able to and not barred by any laws or existing statues from entering this Agreement.
39. Both parties warrant and represent to each other that they are independent Parties and nothing in this Agreement shall render either an agent or other partner of the other’s. There shall therefore be no transfer of liability whatsoever between the Parties, other than that envisaged in this Agreement.
40. Both parties warrant and represent that they are in compliance, and will at all times comply with relevant legal, regulatory and statutory obligations in the jurisdictions within which this Agreement will apply, and which may impact their ability to meet their obligations in this Agreement.
41. ATP warrants that it shall execute the Assignment in a professional manner, and in accordance with the level of skill, knowledge, professional judgement, care and diligence customarily applied by reputable professionals in performing services of a similar nature.
42. ATP further warrants that it has no affiliation with the Client, any organization affiliated with the Client, or with any third party that could potentially lead to an actual or apparent conflict of interest with ATP’s performance of Services under this Agreement.
43. ATP specifically warrants that it is not named on any list of suspected terrorists or blocked individuals maintained by any Government, is not named on any Government’s sanctions list; is not an entity owned or controlled by any person named in any sanctions list; and is not located in any country or territory against which any Government maintains comprehensive sanctions.
44. ATP further warrants that it will at all times comply with applicable laws, policies and professional standards related to ethical conduct of business and to the protection of children and vulnerable adults and further undertakes to immediately report any violations of applicable laws, policies and professional standards to the relevant parties and civil authorities for investigation and further action.
K. Force Majeure
45. Both Parties shall be released from their respective obligations in this Agreement in the event of national emergency, war, prohibitive governmental regulation or any other cause beyond the reasonable control of the Parties renders the performance of this agreement impossible whereupon all money due at the time of the event shall be paid immediately and any unutilised payments already made refunded. Both Parties shall endeavour to continue to perform their obligations under this Agreement so far as reasonably practicable and shall make all reasonable efforts to reduce to a minimum and mitigate the effect of any delay occasioned by an event of Force Majeure. In the event that the condition persists for a period exceeding three (3) months and with no likelihood of improvement this Agreement shall automatically terminate.
L. General provisions
46. The failure of either party at any time to enforce a provision of this Agreement shall in no way constitute a waiver of the provision, nor in any way effect on the validity of this Agreement or any part hereof, or the right of such party thereafter to enforce each and every provision of this Agreement.
47. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof which will not be amicably resolved by the Parties within ninety (90) days of either Party notifying the other of the dispute shall be settled by a sole arbitrator in accordance with The United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, and the International Institute for the Unification of Private Law (UNIDROIT) Principles of International Commercial Contracts 2010, to the exclusion of any single national system of law. The parties nonetheless agree that disputes arising from or relating to this Agreement shall first be addressed by three arbitrators, of whom one shall be appointed by each party and the third by the two arbitrators so appointed by the Parties.
48. Subject to other provisions in this Agreement, each Party shall indemnify and hold harmless the other Party’s employees, representatives, and executive officers, from and against any liability, damages, costs or expenses, or any claim, action, suit or other proceeding arising out of the execution or implementation of this Agreement, except to the extent that:
a. such liability, damages, claim, action, suit or other proceeding is caused willfully by the Party being held liable, or
b. such liability, damages, costs or expenses, claim, action, suit or other proceeding is caused by or results from negligence on the part of such a Party.
49. If any part of this Agreement is found void and, or unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
50. This Agreement may only be modified in writing through a replacing Agreement.
51. This Agreement in company with the Assignment Brief on which it is based constitute the entire agreement between the parties and supersede and replace all prior representations, understandings, oral or written, and all other communication between the parties relating to the subject of this Agreement, and to which no further reference will be made at any time.
Where the Client will require
ATP to undertake contracting obligations parallel or in addition to this
Agreement, interpretation of the ensuing contracting relationship will be based
on this Agreement with any derogation needing to be expressly agreed to in
advance in writing and with any disputes arising from this joint interpretation
being subject to Clause 47 of this Agreement.