These terms are for the provision of Investigative, Surveillance activities and Litigation Support services.

THESE TERMS ARE EFFECTIVE FROM 25 MAY 2019
WHEREAS:
(1)In the absence of an overriding document between the contracting members, these terms of business set out the basis on whichmembers shall conduct all matters undertaken between them as (1) instructing member, and (2) sub-contracted member, and shall be read in accordance with any covering communication.
(2)The sub-contracted member undertakes to carry out a Conflict of Interest assessment and to only accept instructions where none exists.
IT IS AGREED as follows:
1.Definitions and Interpretation
1.1 In this agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day”
means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in the UK;
“Commencement Date”
means the date in which the sub-contracted member formally accepts instructions in writing;
“Confidential Information”means, in relation to either party, information which is disclosed to that party by the other party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Services” means the services to be provided by the sub-contracted member:
“Term” means the term of this agreement;
“GDPR” means The General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679);
“Late Payment”means payment in excess of a 30 day period from invoice delivery, unless otherwise agreed;
“ABI Member” means the party affiliated to The Association of British Investigators either as principal or employee of the corporate body.
1.2Unless the context otherwise requires, each reference in these terms to:
1.2.1“writing”, and any similar expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3“this Agreement” is a reference to these terms as amended or supplemented at the relevant time;
1.2.4a clause or paragraph is a reference to a clause of this agreement;
1.2.5a “Party” or the “Parties” refer to the parties to this agreement.
1.3The headings used in this agreement are for convenience only and shall have no effect upon the interpretation of this agreement.
1.4Words imparting the singular number shall include the plural and vice versa.
1.5References to any gender shall include the other gender.
1.6References to persons shall include corporations.
2.Provision of Services
2.1With effect from the commencement date, the sub-contracted member shall, throughout the course of the instructions, provide the services to the instructing member as agreed within the instructing member’s original instruction.
2.2The sub-contracted member shall provide the services with reasonable skill and care, commensurate with prevailing standards in the litigation support, data processing and professional investigation sector in the jurisdiction in which the instructing member’s Head Office is based.
2.3The sub-contracted member shall act in accordance with all reasonable instructions given to him by the instructing member provided that such instructions are lawful
2.4The sub-contracted member shall be responsible for ensuring that the services comply with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to their provision.
2.5The sub-contracted member may, in relation to certain specified matters relating to the services, act on the instructing member’s behalf. Such matters shall not be set out in this agreement but shall be agreed between the parties (any such agreement to be confirmed in writing) as they arise from time to time.
2.6The instructing member reserves the right to amend or supplement any terms herein contained generally or specific to any matter by providing notice in writing.
3.The Instructing Member’s Obligations Pertaining to Services
3.1The instructing member shall use all reasonable endeavours to provide all pertinent information in their lawful instruction to the sub-contracted member that is necessary for the sub-contracted member to provide the services
3.2The instructing member may, from time to time, issue reasonable lawful instructions to the sub-contracted member in relation to the provision of the services, only insofar as they meet the specifications of the service offered by the sub-contracted member.
3.3In the event that the sub-contracted member requires the decision, approval, consent or any other communication from the instructing member in order to continue with the provision of the services or any part thereof at any time, the instructing member shall provide the same in a reasonable and timely manner.
3.4If any consents, licences or other permissions are needed from any third parties such as landlords, planning authorities, local authorities, regulatory bodies or similar, it shall be the instructing member’s responsibility to obtain the same in advance of the provision of the services (or the relevant part thereof) unless otherwise specifically agreed.
3.5If the nature of the services requires that the sub-contracted member has access to the instructing member’s premises or any other location, access to which is lawfully controlled by the instructing member, the instructing member shall ensure the sub-contracted member has access to the same at the times to be agreed between the sub-contracted member and the instructing member as required.
3.6Any delay in the provision of the services resulting from the instructing member’s failure or delay in complying with any of the provisions of this clause shall not be the sub-contracted member’s responsibility or fault.
4.Fees, Payments and Records
4.1The cost of the services shall be indicative of the type of work undertaken and it is normal procedure for the sub-contracted member to provide an estimate or quotation in each instance along with details of his payment terms, headed appropriately as such. If there are any changes in the instructing member’s instructions or in the circumstances of the matter at any time these shall be reflected, as the sub-contracted member deems fit, in an amended estimate or quotation which shall be provided to the instructing member at the earliest opportunity. In the event that the sub-contracted member is unable to provide an estimate, the sub-contracted member shall keep the instructing member informed of the work in progress on a periodic basis or upon the instructing member’s request.
4.2Where it is necessary to instruct a third party on behalf of the instructing member, including but not limited to external investigations, the sub-contracted member will do so as the instructing member’s agent and the instructing member shall be responsible for payment of the third parties’ fees.
4.3The sub-contracted member may ask for funds on account to cover for initial fees and disbursements and settlement of third parties’ fees. Any request for any such monies shall not be an estimate or a cap on any fee and unless payment was made for a specified purpose, may be used by the sub-contracted member to meet fees when invoiced to the instructing member.
4.4An invoice, or receipted invoice, will be rendered at the conclusion of a matter. The sub-contracted member reserves the right to render interim invoices during the course of the services provided. Any particular billing requirements of the instructing member should be given to the sub-contracted member prior to the services commencing.
4.5Bills are payable in accordance with the payment terms of the sub-contracted member, which shall be outlined in accordance with clause 7.1 and the sub-contracted member reserves the right to charge interest at 8% above the underlying base rate and other charges in relation to late payment and/or debt recovery.
5.Confidentiality
5.1
Each party undertakes that, except as provided by sub-clause 6.2 or as authorised in writing by the other party, it shall at all times during the continuance of this agreement and in perpetuity after its termination:
5.1.1keep confidential all confidential information;
5.1.2not disclose any confidential information to any other party unless agreed in advance or as required by law, or in response to an order of a Court of competent jurisdiction;
5.1.3not use any confidential information for any purpose other than as contemplated by and subject to the terms of this agreement;
5.1.4not make any copies of, record in any way or part with possession of any confidential information;
5.1.5ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that party, would be a breach of the provisions of sub-clauses 5.1.1 to 5.1.4 above.
5.2The provisions of this clause shall continue in force in accordance with its terms indefinitely, notwithstanding the termination of this agreement for any reason.
6.Documentation/Personal Data
6.1The sub-contracted member shall, during, and following completion of the services, retain any documentation or information, that may be foreseen to be required in the future, but in any event for no longer than a period defined within any act referring to a limitation period for bringing a legal action in a competent court in the jurisdiction in which the services were provided and shall dispose, destroy or delete any information which is deemed to be extraneous.
6.2During such retention period personal data processed by the sub-contracted member on the instructing member’s behalf will be kept securely and where transferred to the instructing member or a sub-processor or third party instructed by the instructing member, it shall be encrypted with a unique password communicated to the recipient separately and compliant with the requirements under Article 32 of the General Data Protection Regulations (GDPR).
6.3The sub-contracted member will, if so instructed, offer to the instructing member, and/or his client or the data subject, without charge, assistance should a data subject formally serve upon the instructing member or his client a Subject Access Request or other obligation under chapter 111 GDPR. Any Subject Access Request served on the sub-contracted member directly will be referred to the instructing member immediately upon receipt.
6.4In the event of a data breach during the processing of personal data under the terms of this contract the instructing member shall be notified immediately, and the sub-contracted member will provide assistance to the instructing member and/or his client in order to comply with Article 28(f) of GDPR.
6.5The sub-contracted member shall upon request submit audits and undertake to inspect and provide the instructing member and/or his client with requisite information to ensure compliance with its Article 28 obligations. The sub-contracted member will inform the instructing member immediately if there is a danger of something infringing the GDPR or other data protection law of the United Kingdom, EU or a member state.
6.6Where the sub-contracted member has appointed a Data Protection Officer, they shall be named on the sub-contracted member’s website.
6.7
For the avoidance of doubt instructions are accepted on the basis that the sub-contracted member’s services are conducted under the direction of the instructing member and as such the sub-contracted member shall be deemed to be the Data Sub-Processor and the instructing member’s client, and/or the principal shall be deemed the Data Controller, unless the sub-contracted member determines the manner and the purpose of the processing, in which case, the sub-contracted member shall be Data Controller or Joint Data Controller. The handling of personal data will be in accordance with the instructing member’s instructions and direction.
6.8All instructions are carried out with due consideration given to the provisions and requirements of the Bribery Act 2010 and accordingly no part of the instructions will be conducted in breach thereof.
6.9The sub-contracted member shall meet the responsibilities to ensure all staff, internal, external or contracted and its supply chain workers are not victims of modern slavery or human trafficking. The safeguards against modern slavery or human trafficking are carried out with due diligence procedures.
7.Limitation of Liability
7.1This clause 7 sets out the entire financial liability of the parties (including that for the acts or omissions of their employees, agents or sub-contractors) to each other for any breach of this agreement, any use made by the instructing member of services, and any representation, statement or tortious act or omission (including, but not limited to, negligence and breach of statutory duty) arising out of or in connection with this agreement.
7.2Neither party shall be liable to the other, whether in contract, tort (including negligence), restitution, or for breach of statutory duty or misrepresentation for any loss of profit, loss of goodwill, loss of business opportunity, loss of anticipated saving, loss or corruption of any data or information, or any special, indirect or consequential damage or loss that may be suffered by the other party that arises out of or in connection with this agreement.
7.3Without prejudice to clause 7, the sub-contracted member’s total liagbility arising out of or in connection with this agreement (whether in contract, tort (including negligence), restitution, for breach of statutory duty or misrepresentation or otherwise) shall be limited to the value of the services in respect of any and all other acts or omissions.
8.Force Majeure
8.1No party to this agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
8.2In the event that a party to this agreement cannot perform their obligations hereunder as a result of force majeure for a continuous period of 4 weeks, the other party may at its discretion terminate this agreement by written notice at the end of that period. In the event of such termination, the parties shall agree upon a fair and reasonable payment for any and all goods delivered and/or any and all services provided up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of this agreement.
9.Term and Termination
9.1This agreement shall remain in force from the commencement date of this agreement and shall continue to the termination of this agreement.
9.2The sub-contracted member will treat as confidential all information concerning the instructing member’s and his client’s business affairs received as a result of instructions received and not disclose the information to any third party save to those persons whom the sub-contracted member deem necessary and solely for the purpose of the carrying out the instructing member’s instructions unless such information (a) is or becomes generally available to the public or (b) is required to be disclosed in any jurisdiction by a law.
9.3The sub-contracted member, in the provision of the services, may be required to outsource all or part of the services to a sub-contractor/sub-processor. It is unequivocally agreed that this is solely within the subcontracted member’s discretion and it is acknowledged that this is specifically agreed to the sub-contracted member doing so. Wherever possible, any sub-contractor/sub-processor will be a Member of the Association of British Investigators, and details of members can be found on the website directory or Register of Provisional Members at www.theABI.org.uk. In some instances, the sub-contracted member will use sub-contractors/sub-processors who are not members of the Association of British Investigators, but that meet requirements as specialists. In the event that the sub-contracted member does so, the sub-contracted member will advise of their details. If the instructing member does not give permission for the sub-contracted member to instruct sub-contractors/sub-processors at his sole discretion, the instructing member must notify the sub-contracted member in writing in the initial instruction or as soon as reasonably practical thereafter and in any event before the sub-contracted member commences the services, and the sub-contracted member will then seek further permissions if necessary. It is acknowledged that all sub-contractors/sub-processors will be bound by all of the conditions contained within these terms.
9.4For the purpose of law enforcement and/or fraud awareness/prevention or enforcement it is agreed that non-personal data acquired by the sub-contracted member may be shared at his discretion. Personal data however will remain confidential.
9.5The sub-contracted member reserves the right to terminate the provision of his services to the instructing member by providing written notice delivered to the instructing member’s address or by email. The instructing member may also terminate their instructions to the sub-contracted member on any matter at any time by providing the sub-contracted member with written notification. Notwithstanding any termination by either party, the instructing member agrees to pay any outstanding fees and costs incurred up to the date of termination or the fixed fee agreed.
9.6In accordance with clause 9.3 above, in the unlikely event that the sub-contracted member cease trading, or the instructing member or his client are unable to contact the sub-contracted member, any sub-contractor/sub-processor instructed by the sub-contracted member, will, by default, become joint data controller with the instructing member. In this event, and if the instructing member is unaware of whom the sub-contractor/sub-processor is, the instructing member or his client should contact the Secretariat at the Association of British Investigators who will be able to locate the information. Once you are in contact with that member, the member shall cease to be joint data controller, and shall, in accordance with clause 9.3, which binds them to these terms, revert to the position of processor/sub-processor.
10.Effects of Termination
Upon the termination of this agreement for any reason:
10.1any sum owing by either party to the other under any of the provisions of this agreement shall become immediately due and payable;
10.2all clauses which, either expressly or by their nature, relate to the period after the expiry or termination of this agreement shall remain in full force and effect;
10.3termination shall not affect or prejudice any right to damages or other remedy which the terminating party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any party may have in respect of any breach of this agreement which existed at or before the date of termination;
10.4subject as provided in this clause and except in respect of any accrued rights neither party shall be under any further obligation to the other; and
10.5each party shall (except to the extent referred to in clause 5) immediately cease to use, either directly or indirectly, any confidential information, and shall immediately return to the other party any documents in its possession or control which contain or record any confidential information upon request of the other party.
11.No Waiver
No failure or delay by either party in exercising any of its rights under this agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
12.Further Assurance

12.1Each party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of this agreement into full force and effect
12.2The sub-contracted member reserves the right to act on behalf of other individuals/companies who operate in the same locality as the instructing member or any related subject area subject to the obligations of confidentiality and conflict of interest as contained herein.
12.3In the event that the instructing member is not satisfied with the service provided, a written complaint should be made to the sub-contracted member in the first instance. All complaints will be handled in an efficient manner and all attempts will be made to solve them quickly. In the event that the instructing member remains dissatisfied, and where a Member of the Association conducted the services, the instructing member should then refer to the disciplinary procedures available against individual members through the Association of British Investigators, (www.TheABI.org.uk), which in the first instance will advise on whether any of its codes or ethics or byelaws have been breached.
13.Severance
In the event that one or more of the provisions of this agreement is found to be unlawful, invalid or otherwise unenforceable, that/those provision(s) shall be deemed severed from the remainder of this agreement. The remainder of this agreement shall be valid and enforceable.
14.Law and Jurisdiction
These terms of business are governed by and shall be construed in accordance with the laws of the jurisdiction applicable to the head office (principal place of business) of the sub-contracted party and the instructing member agrees to submit to the exclusive jurisdiction of the Courts therein.
15.Agreement to these Terms
The instructing member shall agree to be bound by these terms, by instructing or continuing to instruct the sub-contracted member and upon condition that the sub-contracted member accepts or indicates or implies acceptance by commencing the service.

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