AGM Transitions will perform the transition or sounding board services (“the Services”) in accordance with the following terms and conditions (“Terms”).

 

1.  Services. It is understood and agreed that AGM Transitions’ services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by the Client. In connection with its services hereunder, AGM Transitions shall be entitled to rely on all decisions and approvals of the Client.

 

In particular, when offering transition services to clients, we will use our best endeavours to support them in transitioning successfully to their new positions. As there are many variable and subjective factors (a number of which are out of our control) relating to the delivery of transition services, we cannot guarantee that clients will achieve successful transitions, nor shall we be held responsible if clients are unable for whatever reason to do so.

 

2.  Subsequent Work. We, by reason of these Services, are not required to furnish additional work unless such services are specifically set forth in our Proposal / Engagement Letter. We will have no responsibility to update any report(s) resulting from the Services for any changes occurring subsequent to the issuance of such reports.

 

3.  Sufficiency of Procedures. It is understood that this engagement will be carried out in accordance with the approach described in our Proposal / Engagement Letter. By accepting the Proposal / Engagement Letter or contract, you agree that the procedures relating to the approach described in the Proposal / Engagement Letter are sufficient for your purposes.

 

4.  Fees and expenses. Our fees assume the performance of all procedures set out in the scope of work of our Proposals / Engagement Letters. Should any further work be required in the course of the engagement, we will agree with the Client any additional procedures necessary to carry out the additional work, as well as the relevant fees. All of our fees and expenses are exclusive of any Value Added Tax (or its non-UK equivalent) payable in respect of our services and are stated after deduction any withholding tax withheld by the client under local laws.

 

Our fees shall include all out of pocket expenses necessary to deliver engagements in the Greater London area. For engagements involving travel and overnight stays within a three hour journey time from Greater London, we shall be entitled to charge to the client economy class rail and air travel and overnight accommodation in a quality hotel. For engagements involving travel and overnight stays beyond a three hour journey time from Greater London, we shall be entitled to charge to the client business class rail and air travel and overnight accommodation in a quality hotel.

 

5.  Payment of Invoices. AGM Transitions’ invoices are due within fourteen (14) days of signature of the Proposal / Engagement Letter or contract. Without limiting its rights or remedies, AGM Transitions shall have the right to halt or terminate its services entirely if payment is not received within thirty (30) days of the invoice date.

 

If the AGM Transitions fee is agreed in a currency other than Pounds Sterling (GBP), the foreign currency fee quoted in the Proposal / Engagement Letter assumes an exchange rate available at the time the proposal is prepared. Should exchange rates vary when the engagement is awarded or vary between the billings and payment dates, the Client agrees to compensate AGM Transitions for any losses resulting from the change of currency exchange rates.

 

6.  Independence. We are an independent professional services firm and our compensation is not contingent in any way upon our findings or recommendations or other conditions.

 

7.  Non-Exclusivity. Nothing in this Proposal / Engagement Letter shall be construed as precluding or limiting in any way the right of AGM Transitions to provide advisory, consulting, or other services of any kind or nature whatsoever to any person or entity as AGM Transitions in its sole discretion deems appropriate.

 

8.  Deliverables.

 

    a) AGM Transitions Intellectual Property. AGM Transitions has created, acquired or otherwise has rights in, and may, in connection with the performance of the Services, employ, provide, modify, create, acquire or otherwise obtain rights in, various concepts, ideas, methods, methodologies, procedures, processes, know-how, and techniques (including, without limitation, function, process, system and data models); templates; generalized features of the structure, sequence and organization of software, user interfaces and screen designs; general purpose consulting and software tools, utilities and routines; and logic, coherence and methods of operation of systems (collectively, the “AGM Transitions Intellectual Property”).

 

    b) Ownership of AGM Transitions Intellectual Property. To the extent that AGM Transitions utilizes any of its property (including, without limitation, the AGM Transitions Intellectual Property or any hardware or software of AGM Transitions) in connection with the performance of services hereunder, such property shall remain the property of AGM Transitions and, except for the license expressly granted in the preceding paragraph, the Client shall acquire no right or interest in such property. Notwithstanding anything herein to the contrary, the parties acknowledge and agree that (a) AGM Transitions shall own all right, title, and interest, including, without limitation, all rights under all copyright, patent and other intellectual property laws, in and to the AGM Transitions Intellectual Property and (b) AGM Transitions may employ, modify, disclose, and otherwise exploit the AGM Intellectual Property (including, without limitation, providing services or creating programmes or materials for other clients). AGM Transitions does not agree to any terms that may be construed as precluding or limiting in any way its right to (a) provide consulting or other services of any kind or nature whatsoever to any person or entity as AGM Transitions in its sole discretion deems appropriate or (b) develop for itself, or for others, materials that are competitive with those produced as a result of the Services, irrespective of their similarity to the Deliverables.

 

9.  Single Purpose. Any Deliverables prepared by AGM Transitions are valid only when presented in their entirety and only for the purpose stated therein.

 

10.  Staffing. Both parties undertake that, for the duration of the engagement and for one year thereafter, they shall not solicit for employment, nor offer employment directly or indirectly, nor enter into any contract for services, nor engage the services of any staff of the other party. In the event a party breaches this provision, the breaching party shall be liable to the aggrieved party for an amount equal to thirty percent (30%) of either the annual base compensation of the relevant personnel in his / her new position or the annual base compensation of the relevant personnel in his / her last position with AGM Transitions, whatever is higher. Although such payment shall be the aggrieved party’s exclusive means of monetary recovery from the breaching party for breach of this provision, the aggrieved party shall be entitled to seek injunctive or other equitable relief.

 

11.  Limitation on Warranties. This is a services engagement. AGM Transitions warrants that it shall perform the services in good faith and in a professional manner. AGM Transitions disclaims all other warranties, either express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose.  The Client’s exclusive remedy for any breach of this warranty shall be for AGM Transitions, upon receipt of written notice, to use diligent efforts to cure such breach.

 

12.  Limitation on Damages and Indemnification.

 

     a) The Client agrees that AGM Transitions, its partners, employees and subcontractors, and their respective personnel shall not be liable to the Client for any claims, liabilities, or expenses (collectively, “Claims”) relating to this engagement for an aggregate amount in excess of three times the fees paid by the Client to AGM Transitions pursuant to this engagement, except to the extent finally judicially determined to have resulted primarily from the bad faith or intentional misconduct of AGM Transitions or its subcontractors. In no event shall AGM Transitions, its partners, employees and subcontractors, or their respective personnel be liable for consequential, special, indirect, incidental, punitive or exemplary loss, damage, or expense relating to this engagement.

 

    b) The Client shall indemnify and hold harmless AGM Transitions, its partners, employees and subcontractors, and their respective personnel from all claims, liabilities, and expenses relating to this engagement, except to the extent finally judicially determined to have resulted primarily from the bad faith or intentional misconduct of AGM Transitions or its subcontractors.

 

   c) The provisions of this Paragraph and Paragraph 14 shall apply to the fullest extent of the law, whether in contract, statute, tort (such as negligence), or otherwise. In circumstances where all or any portion of the provisions of this Paragraph are finally judicially determined to be unavailable, AGM Transitions’ aggregate liability for any Claims relating to this engagement shall not exceed an amount which is proportional to the relative fault that AGM Transitions’ conduct bears to all other conduct giving rise to such Claims and on no account shall exceed three times our paid fees.

 

13.  Client Responsibilities. The Client shall cooperate with AGM Transitions in the performance by AGM Transitions of the Services, including, without limitation, providing AGM Transitions with timely responses to requests for data and information, and making contact with relevant organisations and individuals, where it is agreed by AGM Transitions and the Client that the Client shall initiate contact. The Client shall be responsible for the accuracy and completeness of all data and information provided to AGM Transitions for purposes of the performance by AGM Transitions of the Services.  It is understood that we are entitled to assume, without independent verification, the accuracy of all data provided to us by the Client and its related parties. By accepting this Proposal/ Engagement Letter, the Client warrants to AGM Transitions that the information to be supplied will be complete and accurate to the best of their knowledge. We will use information furnished by others if we believe it to be reliable; however, we are not responsible for, and we provide no assurance regarding, the accuracy of any such information. The Client acknowledges and agrees that AGM Transitions’ performance is dependent upon the timely and effective satisfaction of the Client’s responsibilities hereunder and timely decisions and approvals of the Client in connection with the Services.

 

AGM Transitions shall be entitled to rely on all decisions and approvals of the Client.  The Client shall be solely responsible for, among other things: (a) making all decisions and performing all functions; (b) evaluating the adequacy and results of the Services; and (c) accepting responsibility for the results of the Services.

 

14.  Force Majeure. Except for the payment of money, neither party shall be liable for any delays or non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate by the Client (including, without limitation, entities or individuals under its control, or any of their respective officers, directors, employees, other personnel and agents), acts or omissions or the failure to cooperate by any third party, fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.

 

15.  Limitation on Actions. No action, regardless of form, relating to this engagement, may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment may be brought by a party not later than one year following the date of the last payment due to such party bringing such action.

 

16.  Independent Contractor. It is understood and agreed that each of the parties hereto is an independent contractor and that neither party is, nor shall be considered to be, the other’s agent, distributor, partner, fiduciary, joint venturer, co-owner or representative. Neither party shall act or represent itself, directly or by implication, in any such capacity in respect of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.

 

17.  Confidentiality and Internal Use.

 

    a) The Client agrees that all Services and Deliverables shall be solely for the Client’s informational purposes and internal use, and are not intended to be, and should not be, used by any person or entity other than the Client.  Except as otherwise specifically provided in the Proposal / Engagement Letter, the Client further agrees that such Services and Deliverables shall not be circulated, quoted, disclosed, or distributed to, nor shall reference to such Services or Deliverables be made to, any person or entity other than the Client.

 

    b) To the extent that, in connection with this engagement, either party (each, the “receiving party”) comes into possession of any trade secrets or other proprietary or confidential information of the other (the “disclosing party”), it will not disclose such information to any third party without the disclosing party’s consent, except (1) to subcontractors that are providing services in connection with this engagement and that have agreed to be bound by confidentiality obligations similar to those in this paragraph 17(b); (2) as may be required by law, regulation, judicial or administrative process, or in accordance with applicable professional standards or rules, or in connection with litigation pertaining hereto, or (3) to the extent such information (i) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure in breach hereof, (ii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party that the receiving party believes is not prohibited from disclosing such information to the receiving party by obligation to the disclosing party, (iii) is known by the receiving party prior to its receipt from the disclosing party without any obligation of confidentiality with respect thereto, or (iv) is developed by the receiving party independently of any disclosures made by the disclosing party to the receiving party of such information.

 

18.  Restrictions on Use.

 

    a) Our reports will be for the sole internal use of the Client. Provision of our reports to third parties requires our prior written approval. Third party recipients of our reports will be required to enter into separate arrangements with AGM Transitions, specifying their intended use of the report(s), or indemnify AGM Transitions by providing “hold harmless” letters. We will not unreasonably withhold our consent for further distribution of our reports, provided that these terms are adhered to.

 

    b) The Client agrees not to reference AGM Transitions’ name or AGM Transitions’ reports, analysis or other documents prepared by AGM Transitions in whole or in part, in any document distributed to third parties other than the intended users without our written consent.

 

    c) AGM Transitions owes no duty of performance to any party other than the Client.

 

19.  Draft Reports. With regard to advisory work, our draft reports will be reviewed within one week. If no feedback is obtained from the Client, the reports will be considered approved. Future changes to our reports will be considered as a change request and will be billed separately.

 

20.  Electronic Communication.

 

    a) We may correspond, convey documentation and generally communicate with you electronically (unless you expressly request otherwise on specific matters) and receive such communications from you. We may also, with your agreement, use electronic means of communication to send and receive information requests and confirmations to and from designated third parties in connection with services to you.

 

    b) We shall endeavor to communicate to the Client’s E-Mail account of choice, and to ensure that electronic communications that we send are free from viruses and any other material which may cause inconvenience or harm to any other computer system and you undertake to do likewise with any electronic communications you may send to us.  However, because the electronic transmission of information cannot be guaranteed to be secure or error-free and its confidentiality may be vulnerable to access by unauthorized third parties, we shall have no responsibility or liability to you on any basis other than our bad faith or willful default in respect of any error, omission, claim or loss arising from or in connection with the electronic communication of information to you (or your reliance on such information) or electronic communications entered into with your agreement with designated third parties in connection with services to you.

 

    c) For your convenience, documents may be made available to you in electronic as well as hard copy format.  Multiple copies and versions of documents may therefore exist in different media.  In the case of any discrepancy the signed hard copy should be regarded as definitive.

 

21.  Survival and Interpretation. The agreements and undertakings of the Client contained in the Proposal / Engagement Letter to which these terms are attached, together with the provisions of all Paragraphs, shall survive the expiration or termination of this engagement. For purposes of these terms, “AGM Transitions” shall mean AGM Transitions, its associates, and affiliates. The Client acknowledges and agrees that no affiliated or related entity of AGM Transitions, whether or not acting as a subcontractor, shall have any liability hereunder to the Client or any other person and the Client will not bring any action against any such affiliated or related entity in connection with this engagement. Any affiliated or related entity of AGM Transitions may in its own right enforce this provision. Without limiting the foregoing, affiliated and related entities of AGM Transitions are intended third-party beneficiaries of these terms, including, without limitation, the limitation on liability and indemnification provisions of Paragraph 12, and the agreements and undertakings of the Client contained in the Proposal / Engagement Letter. Any affiliated or related entity of AGM Transitions may in its own right enforce such terms, agreements and undertakings. 

 

22.  Assignment. Except as provided below, neither party may assign, transfer or delegate any of its rights or obligations hereunder (including, without limitation, interests or claims relating to this engagement) without the prior written consent of the other party. AGM Transitions may, without the consent of the Client, assign or subcontract its rights and obligations hereunder to any entity that acquires all or a substantial part of the assets or business of AGM Transitions.

 

23.  Dispute Settlement. In the event of a dispute, AGM Transitions and the Client agree to work with the other to resolve the disputed matters in good faith including providing the other with written notification of the disputed matters and affording the other reasonable time not exceeding one month (30 days) or a mutually agreed upon time frame to implement corrective measures to the satisfaction of the disputing party and obtain written acknowledgement of the same. Only after exhausting all possible options of dispute resolution may either party consider legal recourse as the option of last resort.

 

24.  Entire Agreement, Amendment and Notices. These terms, and the Proposal / Engagement Letter to which these terms are attached, including exhibits, constitute the entire agreement between AGM Transitions and the Client with respect to this engagement, supersede all other oral and written representations, understandings or agreements relating to this engagement, and may not be amended except by written agreement signed by the parties. In the event of any conflict, ambiguity, or inconsistency between these terms and the Proposal / Engagement Letter to which these terms are attached, these terms shall govern and control. All notices hereunder shall be (i) in writing, (ii) delivered to the representatives of the parties at the addresses first set forth above, unless changed by either party by notice to the other party, and (iii) effective upon receipt. Variations to the objectives and / or scope of the engagement or to the Terms and Conditions shall only be effective if agreed to by both parties in writing.

 

25.  Governing Law and Severability. These terms, the Proposal / Engagement Letter to which these terms are attached, including exhibits, and all matters relating to this engagement (whether in contract, statute, tort (such as negligence), or otherwise), shall be governed by, and construed in accordance with, the laws of England and Wales (without giving effect to the choice of law principles thereof). If any provision of such terms or Proposal / Engagement Letter is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein.