Terms of Engagement
These terms together with the accompanying letter of engagement (the “Agreement”) set out the terms on which Imagine Coaching (“we” or “us”) we will provide our services to (“you”) you. These terms shall be considered to take effect on the last date of signature below and shall continue until terminated in accordance with section 6 of this Agreement. Nothing in this Agreement shall be deemed to obligate us or to order any particular volume of services from Imagine Coaching. This is a non-exclusive Agreement, and you may obtain the same services from any third party.
Quotations for future work
“Quotations” means the process by which Imagine Coaching will quote you for follow on future services agreed between the parties from time to time. Any Quotation issued to you for future services will be governed under the terms and conditions of this Agreement and will be incorporated therein by reference.
The Services and Your Team
We endeavour to ensure that work is allocated amongst staff with appropriate experience with the objective of rendering our services to you in the most efficient manner and on a cost-effective basis. There may be circumstances when it is necessary for the staff handling your matter to be changed or additional persons deployed to assist in its handling. When this occurs, we shall inform you as soon as possible and where necessary, discuss the matter with you.
We represent and warrant that the services shall be performed in a workmanlike manner consistent with the prevailing industry standards. The services shall materially conform to the specifications agreed upon between the parties. We shall comply with all applicable laws in the countries where the services are to be performed.
We shall maintain all necessary licenses, permits, and other legally required authorisations to perform the services hereunder through the term of the Agreement.
Fees and Expenses
The fee structure applicable to your matter will be as set out in the letter of engagement.
Fees: The fees agreed upon by the parties are set forth in the engagement letter. The fees are inclusive of all activities and equipment ancillary to provide the services unless stated otherwise in the engagement letter.
VAT: All fees and outlays are exclusive of all applicable VAT (or other appropriate local taxes).
Billing Procedures and Payment Terms
Imagine Coaching shall invoice you once the services are complete.
You shall pay each invoice submitted to you by Imagine Coaching within 7 days of receipt to a bank account nominated in writing by Imagine Coaching or such other payment method directed by Imagine Coaching from time to time.
Without prejudice to any other right or remedy that it may have, if you fail to pay Imagine Coaching any sum due under this agreement on the due date:
You shall pay 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 Imagine Coaching’s bank’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%;
Imagine Coaching may suspend all or part of the services until payment has been made in full.
It is agreed by you that this does not represent a penalty but is a reasonable estimate of the loss incurred by Imagine Coaching as a result of not having the money.
Acknowledgements and warranty limitations
You acknowledge that the services are never wholly free from defects and errors and Imagine Coaching gives no warranty or representation that the services will be wholly free from defects, errors and bugs. Accordingly, you should carefully review any materials supplied by Imagine Coaching before use and / or publication. Imagine Coaching accepts no liability associated with the publication of the materials.
We only provide consulting services to you in connection with our engagement as set out in more detail in our engagement letter with reasonable skill and care subject to the limitations in these terms.
We do not provide and you acknowledge that you are not relying on us for any legal, business, tax, audit, financial investment, insurance, broking or accounting advice or any investigation of the character or credit of persons you may be dealing with. We expect that you will make all appropriate business, legal, operational or technical enquiries or decisions.
We will be reliant upon you for the timeliness, accuracy and completeness of the instructions, information and/or documentation you provide. We will not routinely seek further verification before acting on the basis of such instructions. We will not be responsible for any losses caused in whole or in part by the provision of inaccurate, misleading or incomplete information or documentation, transactions or information not duly brought to our attention or losses arising from the acts or omissions of any person(s).
Either at the outset or during the course of our engagement we may express our opinions or beliefs concerning the matter or various courses of action and the results that might be anticipated. You will of course appreciate that any such statement is intended to be an expression of opinion only, based on information available to us at the time of such statement and must not be construed, used, promised or guaranteed for a particular result.
We shall indemnify, defend, and hold harmless, you and your affiliates and their respective officers, directors, employees, agents, and assigns from and against any losses, demands, claims, damages, and costs (including reasonable attorneys fees) arising from or related to our 1) negligence or wilful misconduct; 2) breach of any applicable laws; and 3) breach of this Agreement.
To the maximum extent permitted by law each party disclaims responsibility for any indirect, special, incidental or consequential losses or damages of any kind including (without limitation) loss of anticipated profits, anticipated savings, goodwill or reputation.
It is a condition of our acceptance of your instructions that our liability to you arising out of, or in connection with, our engagement will be limited to a sum equal to the fees in relation to the services actually paid by you in the twelve (12) months preceding the incident (or for a claim arising before the first twelve (12) month period has concluded, the amount that is due to be paid for the first twelve (12) month period).
Nothing in this letter shall limit a party’s liability with respect to: (a) for fraud or fraudulent concealment; (b) a party’s breach of law or confidentiality obligations; or (c) to the extent that under any applicable law liability may not be limited.
Ceasing to Act
Either you or we may terminate our engagement at any time upon prior thirty (30) days written notice (“termination for convenience”). Either party may terminate for cause upon ten (10) days written notice in the event of an uncured breach. In the event the Agreement terminated for convenience or reasonable cause, remaining uncured for (10) days, parties shall work together in good faith to assess the hours of work provided by us and we will be bill a pro rated portion of the fee based on the hours of services provided up to the date of termination or a pro rated refund based on the total hours of service up to the date of termination.
Both parties agree to keep confidential all matters, workpapers, communications and personal information we handle on each other’s behalf except (a) where either party authorises the other to disclose information; (b) where either party is required to make such disclosure under regulations or legislation or order/decree of any court or administrative body; (c) where disclosure is necessary to carry out the matter and/or to provide you with services or (d) where the information is already in the public domain. Confidential information includes all confidential and proprietary information which relates to a party and/or its Affiliates and their respective businesses, products and services, including but not limited to: data, trade secrets, discoveries, ideas, concepts, know-how, techniques, technology, customer lists, software, business activities and operations, reports, studies, personal identifiable information, data generated under the software, any information which is either identified as being confidential or would appear to a reasonably prudent person to be non-public, confidential or proprietary in nature and other technical and business information. Each party shall safeguard the other party’s confidential information in the same manner it protects its own confidential information, but in no case less than reasonable care, and in accordance with applicable law.
You consent to us using information we maintain about you in order to send you details of services offered by us or seminars that we consider may be of interest to you.
In these Data Protection Clauses, the following terms have the following meanings:
“Client Data” means all Personal Data which is Processed by Imagine Coaching in connection with the engagement as set out in the engagement letter;
“Data Protection Legislation”: all applicable data protection and privacy legislation in force from time to time in Ireland including the Data Protection Acts 1988 to 2018, the European Communities (Electronic Communications Networks & Services) (Privacy & Electronic Communications) Regulations 2011, the General Data Protection Regulation (Regulation (EU) 2016/679), the EU ePrivacy Directive 2002/58/EC (as amended), any successor or replacement to those laws (including, when it comes into force, the successor to the ePrivacy Directive).
All other capitalised terms have the meaning given to those terms in Data Protection Legislation.
You and Imagine Coaching shall each ensure that they comply at all times with their obligations under applicable Data Protection Legislation. This Clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
Where Imagine Coaching acts as data controller for its own purposes, including in the performance of this engagement, administration and billing purposes, business development purposes, and/or compliance with its legal obligations, Imagine Coaching may share Client Data with its associated entities and third-party service providers, where necessary or incidental to performing this engagement. Imagine Coaching collects and processes this Client Data in accordance with applicable Data Protection Legislation.
Imagine Coaching, in relation to any Client Data processed in connection with the performance of its obligations under the engagement:
shall process that personal data only on the instructions of the Client, unless otherwise required to do so by applicable law;
shall ensure that it has in place appropriate technical and organisational measures, to protect Client Data against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, Client Data, appropriate to the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
shall ensure that all Imagine Coaching personnel who have access to and/or process Client Data are obliged to keep the personal data confidential;
may transfer any personal data outside of the European Economic Area provided the Imagine Coaching complies with its obligations under the relevant Data Protection Legislation by ensuring an adequate level of protection to any personal data that is transferred;
shall assist you, at the your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
shall notify the you without undue delay on becoming aware of a personal data breach;
shall, at your written direction, delete or return Client Data and copies thereof to you on termination of the agreement unless required by applicable Irish or European law (including under our regulatory obligations) to store the Client Data; and
shall maintain complete and accurate records and information to demonstrate its compliance with this Clause 9 and inform you as soon as is reasonably possible if, in the opinion of Imagine Coaching, an instruction infringes the Data Protection Legislation.
We make full use of electronic communications where the clients wish to communicate with us in such manner. If electronic communications are intended to be used or are in fact used in our dealings with you we would ask you to note that such means of communication may not be entirely reliable or secure. If you have a requirement for a higher level of security or confidentiality than is capable of being provided by the aforementioned methods of communication, please raise your requirements with us so that we can put in place alternative and more secure arrangements.
Concerns or Complaints
If you have any concern or complaint with the service we are providing, or have provided, to you please let us know. In the event of a complaint, we will promptly investigate the matter with a view to achieving an appropriate resolution as swiftly as possible.
We retain the copyright in any material which we produce during the course of our work for you.
After completing your work, we are entitled to retain papers and documents while there is money owing to us for our fees and disbursements.
The terms of our engagement and all aspects of our performance of work for you are governed by the laws of the Republic of Ireland and you hereby agree to submit to the exclusive jurisdiction of the Courts of the Republic of Ireland in connection with any disputes which may arise.
These terms of Agreement together with the accompanying letter of engagement supersede all prior agreements, understandings, arrangements, statements or representations whether written or oral.
The failure of any party to require performance by any other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by any party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
In the event that any provision of this Agreement is found by a court or other body of competent jurisdiction to be unenforceable or invalid under any applicable law such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
This Agreement may only be changed by mutual, written agreement of authorised representatives of the parties.