Models Trust
Terms and Conditions
These terms (the “Terms”) together with the relevant service agreement (“Service Agreement”) form a legal agreement (“Agreement”) between Responsible Trust for Models, trading as Models Trust, incorporated and registered in England and Wales with company number 10714093 (“Models Trust”, “us”, “we”, “our”) and the company as set out in the Service Agreement (“you”, “your”, “Client”). Models Trust and Client shall be referred to throughout these Terms as a “Party” or together, “Parties”. In the event of a conflict between these Terms and any Service Agreement, the Service Agreement shall take priority.
1. DEFINITIONS
Charges
the charges payable by you for the supply of the Services by us, as set out in the Service Agreement;
Client Materials
all materials, data, and other information provided by you to Models Trust;
Data Protection Legislation
any applicable legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK);
Deliverables
any materials provided by us to you, including without limitation, data, data reports and survey results;
Expenses
our reasonable out-of-pocket, travel and subsistence expenses;
Group
in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company;
Intellectual Property Rights
patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets) 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;
Models Trust IPRs
all Intellectual Property Rights owned by the us or our licensors prior to the commencement of the Services or which are otherwise authored, created, produced and/or developed by us independently of our performance of the Services;
Services
the services to be provided by Models Trust as set out in the Service Agreement;
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. A reference to writing or written includes email.
2. APPOINTMENT
You agree to appoint Models Trust to provide the Services. Models Trust shall from the date set out in the Service Agreement and for the duration of this Agreement, supply the Services to you in accordance with the terms of this Agreement. We agree to perform the Services in a professional manner in accordance with good industry practice, using reasonable skill, care and diligence. The term of this Agreement shall be as set out in the Service Agreement (“Term”), unless terminated earlier pursuant to Clause 10 (Termination) or the terms of the Service Agreement.
3. YOUR OBLIGATIONS
You shall: co-operate with us in all matters relating to the Services; (b) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable us to provide the Services; and (c) provide, in a timely manner, such necessary information for the provision of the Services as we may reasonably request.
4. INTELLECTUAL PROPERTY
4.1 We shall retain ownership of all Models Trust IPRs and the Deliverables. Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials.
4.2 Client hereby grants to Models Trust a non-exclusive licence during the Term to use the Client Materials solely for the purposes of providing the Services and Deliverables. We grant to you, or shall procure the direct grant to you of, a fully paid-up, non-exclusive, royalty-free, licence to use Models Trust IPRs and the Deliverables solely for your internal business use and for receiving and using the Services and/or Deliverables.
4.3 Notwithstanding any other provision of this Agreement, we shall be able during and after the Term to use any Deliverables and your name and logo for the purposes of promoting our work and our business including on our website.
5. CHARGES AND PAYMENT
5.1 As consideration for the Services, you shall pay us the Charges in accordance with this Clause 5. Where agreed with you in advance, we shall charge you the Expenses incurred by us in connection with the provision of the Services. All amounts payable by you exclude amounts in respect of value added tax (“VAT”) which you shall additionally be liable to pay to us at the prevailing rate (if applicable).
5.2 Except as otherwise agreed between the Parties in the Service Agreement you shall pay all invoices submitted by us within thirty (30) days of the date of invoice.
5.3 If you fail to make any payment due to us under the Agreement by the due date for payment, then we may charge interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 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%.
5.4 The Charges do not cover the provision of services other than the Services. You may request that we provide additional services (“Additional Services”) and, as soon as reasonably practicable, we shall submit to you a written statement of any changes that would be required to this Agreement (or any part thereof) as a result of the provision of the Additional Services including any additional charges and amendments to any timeframes for the performance of the Services. The Parties will agree upon the additional charges payable by you in writing prior to us commencing work on such Additional Services.
6. CONFIDENTIALITY
6.1 Each Party may be given access to information that is proprietary or confidential and is either clearly labelled as such or identified as confidential information in the Agreement or is information which a reasonable personal would understand to be confidential (“Confidential Information”). Each Party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other Party or of any member of the Group to which the other Party belongs, except as permitted by Clause 6.2.
6.2 Each Party may disclose the other Party's Confidential Information: (a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the Party's obligations under the Agreement and 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 6; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
6.3 Neither Party shall use the other Party's Confidential Information for any purpose other than to perform its obligations under the Agreement.
7. DATA PROTECTION
7.1 Both Parties will comply with all applicable requirements of the Data Protection Legislation.
7.2 The Client will ensure that it has all necessary and appropriate consents and notices in place to enable the lawful transfer of any personal data to Models Trust or Talent Trust for the duration and purposes of the Agreement.
8. INDEMNITIES
8.1 Models Trust shall ensure that the Deliverables (excluding the Client Materials), in all material respects, as delivered by Models Trust and in accordance with the terms of this Agreement shall comply with all applicable laws and regulations.
8.2 Client shall ensure that the Client Materials shall comply with all applicable laws and regulations, shall not infringe the Intellectual Property Rights of any third party and shall not be defamatory, obscene or otherwise offensive. Client releases Models Trust from any liability under or in connection with this Agreement and hereby indemnifies Models Trust against any losses, damages, liabilities, claims, demands, penalties, fines, awards, costs and expenses (including reasonable legal fees) (“Losses”) incurred by Models Trust to the extent that such Losses arise as a result of: (a) the Client Materials infringing third party Intellectual Property Rights; and/or (b) the incorporation of Client Materials into the Deliverables provided that Client has incorporated and used the Client Materials in the Deliverables in accordance with any instructions given by Client from time to time.
8.3 Where one Party (“Indemnifying Party”) agrees to indemnify and keep the other Party (“Indemnified Party”) indemnified under this Agreement, such indemnity is subject to the Indemnified Party complying with the following process in the event that a third-party claim arises:
8.3.1 the Indemnified Party must notify the Indemnifying Party in writing of such claim;
8.3.2 the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party;
8.3.3 the Indemnified Party must give the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence of the claim; and
8.3.4 the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such claim as the Indemnifying Party may reasonably require at the Indemnifying Party’s cost and expense.
9. LIABILITY
9.1 Nothing in this Agreement shall limit or exclude a Party’s liability in respect of (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; (iii) liability arising under Clause 8.2; or (iv) any other liability which cannot be validly limited or excluded by law.
9.2 Subject to Clause 9.1, neither party shall be liable, under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, for any indirect or consequential loss.
9.3 Subject to Clause 9.1 and 9.2, neither party shall be liable in contract, tort (including negligence), breach of statutory duty, or otherwise for any: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of or damage to goodwill; or (f) any indirect or consequential loss.
9.4 Except as expressly and specifically provided in this Agreement, the Client assumes sole responsibility for use and conclusions drawn from use of the Services and Deliverables and we shall have no liability in respect of your actions taken from the Services and Deliverables or for any damage caused by errors or omissions in any information or instructions provided to us by you in connection with the Services and/or Deliverables, or any actions taken by us at your direction. All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
9.5 Subject to Clause 9.1, 9.2, 9.3 and 9.4, our aggregate liability under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, shall in no event exceed the Charges paid or payable by you to us under this Agreement.
10. TERMINATION
10.1 Without affecting any other right or remedy available to it, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if:
10.1.1 the other Party commits a material breach of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
10.1.2 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 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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.
10.2 Without affecting any other right or remedy available to it, either Party may terminate this Agreement on 30 days’ written notice to the other. Without affecting any other right or remedy available to it we may suspend or terminate the Agreement on written notice in the event that you fail to pay any sum due to us by the due date for payment.
10.3 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
11. CONSEQUENCES OF TERMINATION
On termination of the Agreement, you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied up until the date of termination but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt. Termination or expiry of the Agreement shall not affect any of the 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 Agreement which existed at or before the date of termination or expiry.
12. GENERAL
12.1 Force majeure. Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 3 months, the Party not affected may terminate the Agreement by giving 7 days' written notice to the affected Party.
12.2 Entire agreement. The Agreement 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.
12.3 Variation. We may vary the Agreement upon giving reasonable notice to you.
12.4 Waiver. No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 Severance. If any provision or part-provision of the Agreement 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 12.5 shall not affect the validity and enforceability of the rest of the Agreement.
12.6 Notices. Any notice required to be given under this Agreement shall be in writing or email, and, in the case of post shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other Party at its address set out on the Service Agreement or such other address as may have been notified by that Party for such purposes. Any notice shall be deemed to have been received: (a) if delivered personally, at the time of delivery; (b) in the case of a notice sent by first class prepaid or registered mail, 48 hours after the date of posting; or (c) if sent if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. Business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
12.7 No partnership. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
12.8 Third party rights. Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
12.9 Governing law and jurisdiction. The Agreement, 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. 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 Agreement or its subject matter or formation.
10 August 2023