Middleton Taylor’s Terms of Appointment
1. Invoices for services rendered will either be submitted for payment on the 15th day and last working day of each month, at the completion of such services, as agreed or at such other times as the Company may decide. The due date for payment is the date of the invoice. The final date for payment is 14 days from the date of the invoice unless otherwise stated on the invoice.
2. The Client is responsible for all fees and expenses incurred in preparation for and attendance at trial, hearings or other required testimony, including notices or subpoenas issued by opposing counsel, unless Company has received from opposing counsel, advance payment or written confirmation to pay Company’s fees and expenses. Upon notification, Company will forward to the Client the rates and the anticipated cost of the deposition, if requested.
3. In the event of failure to pay any monies in accordance with these Terms of Appointment, the Company may charge interest on any monies owed to it by the Client, such interest to be at a rate of 5% for each month calculated from the final date for payment to the date of actual payment on a simple interest basis. The parties agree that this interest charge is a reasonable estimate of the damage the Company will incur if amounts are not paid in time. Client agrees to pay attorney’s fees, legal costs, and all other collection costs incurred by Company in pursuit of past due payments.
4. Any monies becoming due to the Company from the Client under this and/or any other agreement may be set-off against any monies received from the Client by way of fee advance or otherwise.
5. The remuneration payable to the Company under this agreement shall continue to be payable by the Client to the Company notwithstanding the termination of this agreement. The Client may not withhold or reduce any sum payable to the Company under the appointment by reason of claims or alleged claims against the Company. If the Client disputes the amount included for payment in an invoice a written notice must be served on the Company by the Client before the final date for payment. If no notice is given the amount payable shall be the amount stated in the invoice. If any item or any part of an item of any invoice is disputed or subject to question by the Client, the payment by the Client of the undisputed remainder shall not be withheld on those grounds.
6. In the event that the Client fails to pay any sum due to the Company, in part or in whole, by the due date, the Company reserves the right to withhold delivery to the Client of any product, document, report and/or information produced by the Company as part of the services provided under this agreement until such payment is made in full. Such lien applies further to any information and/or document provided to the Company by the Client with regards to the performance of such services.
7. The Company also reserves the right to either suspend and/or terminate its services in such circumstances as it considers appropriate. Without prejudice to the generality of the foregoing, such instances will include failure to pay any invoice in full in accordance with this agreement, failure to pay any fee advance notified by the Company and failure, despite requests, to receive adequate instructions from the Client.
8. The Company will give the Client seven (7) days’ written notice prior to the suspension or termination of its services. Such notice shall be served by email followed by the original notice by special delivery post or courier.
9. To the extent that, in connection with this Agreement, the Client or Company (the “Receiving Party”) comes into possession of any confidential information of the other (the “Disclosing Party”), the receiving party shall not disclose such information to any third party without the Disclosing Party’s written consent, using at least the same degree of care as it employs in maintaining in confidence its own confidential information of a similar nature, but in no event less than a reasonable degree of care.
a. Exclusions. Notwithstanding the foregoing, the parties agree that information or documentation shall not be deemed Confidential Information of the Disclosing Party, and the Receiving Party will have no obligation with respect to any such information or documentation, where such information or documentation:
i. is or becomes known to the Receiving Party without restriction prior to the date of disclosure of the information by the Disclosing Party to the Receiving Party;
ii. is or becomes generally available to the public without breach of this Agreement by the Receiving Party;
iii. is disclosed to the Receiving Party from a source other than the Disclosing Party without restriction and without breach of this Agreement;
iv. is approved for release by written authorization of the Disclosing Party;
v. is independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; or
vi. is disclosed pursuant to the lawful requirement or order of a court or governmental agency or other legal or administrative process, provided that, upon the Receiving Party’s receipt of a request for such a disclosure, the Receiving Party gives prompt notice thereof to the Disclosing Party (unless such notice is not possible under the circumstances or is not lawful) so that the Disclosing Party may have the opportunity to intervene and contest such disclosure and/or seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not possible under the circumstances, the Receiving Party shall furnish only that portion of the Confidential Information which is legally required to be disclosed and, unless waived by the Disclosing Party in writing, the Receiving Party shall exercise reasonable efforts at Disclosing Party’s expense to request assurance that confidential treatment will be accorded the Confidential Information.
b. Proprietary Information. Disclosing Party may from time to time furnish to Receiving Party, and/or Receiving Party may have access to information about or relating to the Disclosing Party, such as business, financial, technical, legal, regulatory, marketing, or other proprietary or confidential information, including, without limitation, : (i) information that would constitute a trade secret under the applicable federal or state trade secrets act, (ii) information that is not generally known in the applicable industry and would logically be considered confidential or proprietary to the Owner, (iii) information that would do the Disclosing Party commercial, competitive, or other harm if divulged, (iv) all contracts, documents, strategic, business and financial plans, policies or procedures, financial statements and data, financial forecasts or projections, tax returns and information, equipment lists, open job bids and RFPs, work backlog, product plans, analysis, records, data, forms, computer programs or output, employee information, employee compensation, employee contracts, employee benefit plans, market information, marketing materials, patents, patent applications, technical information, trademarks, trade secrets, processes, plans, specifications, leases and leasing information, market studies and findings, commercial ideas, affiliation contracts, and other material, whether oral, electronic or written, which Disclosing Party deems, and Receiving Party should consider, proprietary and confidential (and of independent economic value), and (v) information concerning ownership of the Disclosing Party and concerning the owners, subsidiaries and affiliates of the Disclosing Party (collectively, “Confidential Information”). For purposes of this Agreement, Confidential Information shall include all information provided Disclosing Party’s employees, officers, directors, managers, agents, vendors, advisors, and financial and legal advisors.
10. During the term of this agreement and for a period of two years after its expiration, cancellation or termination, the Client and its affiliates, subsidiaries and agents shall not without the prior written consent of the Company, directly or indirectly solicit, recruit or employ or otherwise engage as an agent, representative, consultant or independent contractor, any person who was an employee of the Company during the term of this agreement. Further, the Client shall employ all reasonable endeavours to ensure that lawyers appointed by the Client in relation to the services rendered adhere to this same covenant.
11. The Company is and shall be an independent contractor in the performance of services under this Agreement, maintaining complete control of its employees and operations. Neither the Company nor anyone employed by it shall be the agent, representative, employee, or servant of the Client in the performance of services under this agreement.
12. The Client shall promptly provide to the Company all documents and information reasonably requested by the Company and/or which would assist the Company in performing the services required of it under this agreement. The Company shall not disclose to any third party any of the documents or information received from the Client except as may be required by law; provided however that the Company shall be entitled to describe the general nature of its services under this agreement for sales, marketing and public relations purposes. Company shall be entitled to rely upon the reports, data, studies, plans, specifications, documents and other information provided by the Client or others in performing the Services, and Company assumes no responsibility or liability for the accuracy or completeness of such. Client waives any claim against Company and agrees to defend, indemnify, and hold Company harmless from any claim or liability for injury or loss allegedly arising from errors, omissions, inaccuracies or incomplete information in reports, data, studies, plans, specifications, documents or other information provided to Company by Client or others. Company will not be responsible for any interpretations or recommendations generated or made by others, which are based, in whole or in part, on Company’s data, interpretations or recommendations.
13. The Company shall have exclusive ownership of all:
a. documentation, computer programmes, source code, software products, spreadsheets, computer macros, reports or other work product reduced to written, magnetic or other form which are developed, conceived or introduced by the Company in the course of providing services to the Client (“Work Product”); and
b. ideas, techniques, methodologies, procedures, skills, innovations and know-how developed or introduced by the Company in the course of providing services to the Client (“Innovations”).
14. The Company hereby grants the Client a non-exclusive, non-transferable (except in connection with a sale of all or substantially all of the Client’s business), limited and royalty-free licence to use the Work Product and Innovations in relation to the subject matter of the services. The Client shall not sub-license the Work Product or Innovations to any third party.
15. All rights to patents, trademarks, copyrights, and trade secrets owned by Company (hereafter, “intellectual Property”),as well as any modifications, updates or enhancements to said Intellectual Property, during the performance of the Services remains the property of the Company and Company does not grant Client any right to license to such Intellectual Property.
16. Rates for all time charge fees, other than where expressly agreed to the contrary, are subject to revision in December each year to account for inflation and any general fluctuation in costs, such revised rates to apply to work carried out from the beginning of January. In the absence of agreement between the Company and the Client regarding the extent of revision, rates will be increased by 10%.
17. All retainers between the Company and the Client for the supply of any services by the Company shall be in accordance with these conditions. The acceptance by the Company of any instructions from the Client shall be deemed to incorporate all these conditions. This agreement together with any documents referred or attached constitutes the entire agreement between the parties with respect to the subject matter hereof. All previous agreements or understandings with respect to the subject matter hereof, whether written or oral, are superseded and voided hereby. No amendment or modification of this agreement shall be valid unless in writing and signed by both parties.
18. If any provision of this agreement is held to be unenforceable by a court of competent jurisdiction, this agreement shall be construed as if such provision did not exist, and the unenforceability of such provision(s) shall not render any other provision of this agreement unenforceable.
19. The Client shall indemnify, defend and hold harmless the Company and its employees, officers and agents from and against all liability, claims, suits, losses, damages, costs and demands on account of bodily injury (including without limitation death) or property damage sustained by any person or entity not a party to this agreement to the extent that such injury or damage is caused by the failure of the Client to comply with its obligations under this agreement or by its own negligent act or omission.
20. In no circumstances (other than in the case of fraud, illegal or unlawful acts) shall the total liability of the Company arising out of the performance of the services under the Agreement exceed an amount equal to US$10,000 (Ten thousand US dollars) or the total fees charged in respect of the commission whichever is the lower. Save for and subject to the Company’s entitlement to the fullest extent permitted by applicable law, neither party shall be liable to the other party for incidental or consequential losses, nor for loss of profit, loss of revenue, loss of goodwill or loss of opportunity.
21. Where there is no agreement as to the amount of fees to be paid by the Client to the Company, payment to the Company will be based upon its reasonable costs plus profit.
22. Either party shall have the right to terminate this agreement with fifteen (15) days’ written notice. During this notice period the Company shall employ best endeavours to discontinue the performance of services and reallocate its staff in a prompt and competent manner to minimise the cost of termination to the Client. The Company shall be entitled to payment for all services performed to the date of termination and any costs reasonably incurred post termination in the redeployment process.
23. Neither the Company nor the Client shall assign or transfer its interest in this agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided however that nothing contained in this clause shall prevent the Company from employing such consultants, associates or subcontractors as the Company may deem appropriate. The covenants and agreements contained herein shall apply to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
24. If the Client constitutes (under applicable laws) a joint venture, consortium or other unincorporated grouping of two or more persons then: a) these persons shall be deemed to be jointly and severally liable to the Company for the performance of this agreement, b) these persons shall notify the Company of their leader who shall have authority to bind the Client and each of these persons; and c) the Client shall not alter its composition or legal status without the prior consent of the Company.
25. The Agreement shall be governed by, and construed in accordance with, the laws of the United Arab Emirates and the Emirate of Dubai and any disputes or claims arising out of or relating to it shall be subject to the exclusive jurisdiction of the Dubai International Financial Centre Small Claims Tribunal for all claims up to and including the maximum financial value permitted for the Small Claim Tribunal as at the date of filing the claim or application, and to the Dubai International Financial Centre Court of First Instance for any claims over the maximum financial value permitted for the Small Claim Tribunal; to which the Parties irrevocably submit.
26. All notices and other communications between the Parties under the Agreement shall be in writing and delivered by hand, fax or e-mail to the addresses included in the Agreement.
27. The Agreement and the Standard Terms and Conditions constitute the entire Agreement between the Parties relating to the engagement, unless stated otherwise in the Agreement, and supersede any and all oral and written representation between Parties in relation thereto.
Changes or revision to the terms of the Agreement or to a variation in the rates shall be effected only through a written amendment issued by the First Party.