Terms and Conditions
The following are the standard Terms and Conditions upon which I shall carry out all professional work in respect of the mediation.
These provisions are designed to assist me in providing you with an efficient and effective service and will form the basis of our on-going relationship.
- Documents Forming our Agreement
These standard Terms and Conditions will be accompanied by an Engagement Letter, setting out some further details governing our relationship and these two documents, together with any related appendices and schedules, shall together represent a contract between us. Where there is any conflict between the terms of the Engagement Letter, if any, and these standard Terms and Conditions, the terms set out in the Engagement Letter shall prevail.
- Obligations of the Mediator
The Mediator is a director of PBC Business Recovery and Insolvency (hereinafter referred to as “the practice”) which is the trading style of PBC Business Recovery and Insolvency Limited.
It is the practice’s responsibility to:
(a) practice professionally, competently, conscientiously and objectively, putting the interests of its clients foremost;
(b) avoid any conflict of interest;
(c) comply with any relevant legislation and with the rules of the regulatory body responsible for regulating its business activities.
- Exclusion of Liability
The scope of the engagement, as set out in the Engagement Letter, will restrict the practice’s liability to those matters in respect of which it is retained to assist. Within that scope, the practice will not be held responsible or liable for any losses arising from matters on which information material to the engagement is withheld or concealed from the practice, or misrepresented to the practice, by the Parties to mediation, their professional advisers or other third parties who are concerned with the engagement, except and only to the extent that it has resulted from the practice’s knowing disregard of matters of which the practice has actual knowledge, bad faith or wilful default.
The Parties to mediation agree that the liability to them of the practice, its directors, employees and agents (in contract or tort or under statute or otherwise) for any losses suffered by the Parties arising out of, or in connection with my work, will be limited as set out in the following paragraph.
The aggregate liability of the practice, its directors, partners, agents and employee or any of them to pay damages for losses suffered by the Parties to mediation as a direct result of breach of contract, negligence or any other tort by the practice in connection with the services provided in connection with the engagement will be limited to that proportion of actual loss which was directly caused by the practice. The practice’s liability will not, in any circumstances (other than where the practice acts in bad faith or with wilful default) exceed a total aggregate sum of five times the fees paid to the practice under the terms of the Engagement Letter (the aggregate limit). Where the practice’s duty of care is to more than one party, the limit of the practice’s liability will be aggregate limit allocated between the parties in whatever proportions they agree between themselves.
Under no circumstances will the practice be liable to pay for any damages to the Parties of the mediation for losses arising out of, or in any way connected with, action taken, omissions, or acts by the Parties of the mediation or anyone acting on their behalf.
The practice is solely responsible to you for the performance of its obligations and there shall be no liability attaching to any individual director, manager or employee of the practice for the performance of the practice’s obligations whether in contract or in tort.
As further consideration for the practice providing the services to the Parties of the mediation as set out in the Engagement Letter, the Parties agree to indemnify the practice from and against all losses arising out of, or in connection with, the engagement or otherwise, by reason of, or in connection with any other matter or activities referred to an contemplated in the Engagement Letter which the practice may suffer or incur in any jurisdiction. All costs and expenses incurred by the practice will be reimbursed by the Parties in an agreed proportion promptly on demand, including any reasonable costs incurred in connection with the investigation of, preparation for, or defence of any pending or threatened litigation or claim within the terms of the indemnity or any matter incidental thereto. The Parties of the mediation will not be responsible for any losses to the extent that they arise from, or have resulted from, the negligence of the practice or from the knowing disregard of matters of which the practice, or its directors, managers or employees had actual knowledge, or from the practice’s bad faith or wilful default.
This indemnity will be in addition to any rights that the practice may have at common law or otherwise (including but not limited to, any right of contribution).
If the practice becomes aware of any claim relevant for the purposes of the indemnity, we will promptly notify the Parties or their representatives of the claim and will, subject to being indemnified by you to our reasonable satisfaction against all losses, liabilities, claims, costs, charges and expenses suffered or incurred thereby, take, or procure to be taken, such action as the Parties of the mediation may reasonably request to avoid a dispute, resist, appeal, compromise or defend such a claim. The practice will provide the Parties of the mediation and their representatives with such information and documentation relating to such claim as they may reasonably require.
- Staffing of the engagement and working with third parties
The practice reserves the right to choose the personnel within the practice to undertake the engagement in assistance of the Mediator and to change them as we consider necessary during the course of the engagement.
The practice confirms that it will use staff with the appropriate level of expertise and experience for the type of being undertaken in the engagement.
- Confidential Information
Whilst acting for the Parties of the mediation we shall keep any information and documentation we obtain relating to the dispute confidential, except where disclosure is required by law or regulation, or where specifically authorised to share that information or as set out below.
The practice reserves the right to consult third parties in relation to the engagement in accordance with the terms of the Engagement Letter and the Parties of the mediation irrevocably authorise us to discuss matters in relation to this engagement with such third parties and to disclose relevant confidential information to them as we consider appropriate. That disclosure is on the basis that it is reasonable to expect that those third parties will maintain appropriate confidentiality in respect of matters disclosed to them.
- Data Protection Act and Copyright
The practice retains all copyright, database right and other intellectual property rights in original material (including correspondence) provided to you in the course of the mediation.
From time to time we may also provide the Parties of the mediation with copies of other material, the copyright and/or other intellectual property rights in which may belong to third parties. The practice does not authorise you to copy or otherwise use this third party material in any manner which might amount to an infringement of the copyright and/or other intellectual property rights of that third party.
Any personal data that the practice may hold about individuals will be kept safe, secure and confidential. However, the practice may share information with the following:
- Any of the third parties consulted by the practice either specifically in connection with this engagement or generally in support of our office administration, but only on the strict understanding that your information will be kept confidential;
- Upon receipt of specific disclosure authority by either party of the mediation; and
- If we are under a duty to give the information, or if required by law.
- Third Party Rights
It is not intended that any terms of our engagement with the Parties of the mediation shall be enforceable by a third party.
- Electronic Communication
Unless either party of the mediation or their advisors specifically requests us in writing not to do so, you agree that the practice may communicate with you and others in connection with this engagement, and otherwise, by e-mail if considered appropriate.
In doing so, you acknowledge and accept the risks inherent in this form of communication, particularly its unauthorised interception and of it not reaching its intended recipient.
- Regulatory Matters
Nothing in the Engagement Letter or these Terms and Conditions prevents the practice from complying with the law, statute, or regulations of any relevant professional body responsible for regulating the business activities of the practice.
- No set-off
All monies, including but not limited to, any fees or expenses payable by the Parties of the mediation to the practice under this engagement will be paid in full in accordance with the Engagement Letter without any set off, deduction, counter-claim or withholding payment.
- Assignment and variation
The Engagement Letter and these terms and conditions are personal to the parties to them and the rights and obligations of the parties may not be assigned or otherwise transferred.
The engagement may be varied by an agreement in writing between the practice and the Parties, or by the practice issuing Terms and Conditions that replace these Terms and Conditions and to which you do not object within 28 days of their despatch.
Each provision in the Engagement Letter and these Terms and Conditions is severable, and if any provision is, or becomes, invalid or unenforceable or contravenes any applicable regulations or law, the remaining provisions will remain in full force and effect.
- Force Majeure
A force majeure event for the purposes of these Terms and Conditions will mean any material event or circumstance beyond the reasonable control of a party, including Act of God, explosion, revolution, insurrection, riot, civil commotion, national or local emergency, terrorist act, act of government, cyber attack on computer systems, strike, fire or flood.
If any party is affected by a force majeure event which prevents or delays full or prompt performance of the services to be provided in the engagement, it will promptly notify the other party.
Neither party will be liable for any delays or failure to perform the services to be provided in the engagement to the extent that it arises from a force majeure event.
- Governing Law and Jurisdiction
English law shall apply to the construction and interpretation of our contract with you and the English Courts shall have exclusive jurisdiction to resolve any disputes under it.