M4siz Training Partnerships Limited [MTPL] Terms of Business

This document sets out our terms and conditions of business. These together with the terms of any engagement letter we may have with you, collectively constitute our overall terms of engagement.

The company

1. MTPL is a company registered in the England and in this document MTPL covers the range of brands or entities including Educational Academy, that constitute the activities of MTPL, from time to time, and these are their terms and conditions of business.

Fees and Expenses

• The fee which we will charge for our services will be that agreed by you in advance or, if not agreed in advance, that which is fair and reasonable, subject to any agreement made during the course of or at the end of the matter. Generally, our fees are calculated based on, but not exclusively the time and effort expended including the hourly billing rates of each consultant and other staff members performing work hereunder, and the ability of the consultant(s) involved. These are reviewed regularly and may be increased from time to time (usually annually on 1st July). Details of our current hourly rates are provided separately.

• The calculation of our fee may also involve consideration of additional factors such as the value of the matter, complexity of the consultancy issues involved, time limitations beyond our control, the nature and length of the relationship with the client and the urgency of the matter.   However, in certain transactions (for example, certain high value or higher risk business sector), the value of the transaction or the risk involved may be the dominant factor in assessing the fee.

• We will charge for all time spent managing and supervising the matter and time spent, by way of illustration, in correspondence and in meetings, telephone and office conferences, consultancy research, drafting and amending documents , the preparation of papers, as well as any necessary travel. We charge by reference to 10-minute units.

• Unless we quote a fixed sum, any indication of a likely fee is an estimate only and may    change as matters progress and the extent of the work becomes apparent or you change the scope of your instructions. We will aim to communicate and keep you up to date with any changes in your fees.

• Any fixed fee quoted or fee estimate given by us covers only the scope of work in respect of which it is given and the assumptions upon which it is based. An additional charge will be made for any other work, at our normal hourly rates.

• We will charge for expenses incurred by us in carrying out the work, for example, the cost of telephone calls, attendance notes, fax transmissions, scanning, online searches, coding or other database-related work on documents, photocopying, storage and delivery of documents, travel and bank charges. If we have to incur additional costs for non-consultancy staff working overtime on evenings or weekends in order to provide      an effective service to you, we will charge you for these costs.

• You will also be responsible for payment (or reimbursement to us) of tax and other liabilities to third parties, including couriers and translators and in respect of any search fees. As we                are directly responsible for third party charges incurred in connection with our advice to     you, we may require payment on account.

• Our fees and expenses are payable even if the matter on which we are working for you is not completed.

• Our hourly rates, any fixed fee and any estimate of our fees and expenses, do not include VAT

• If you are required to make a payment on completion of a transaction on which we are  acting, you must, before completion, arrange for the payment (and all applicable fees, expenses and taxes) to be transferred into our account in fully cleared funds.

Payment terms

• Payment of our invoices is due on delivery. We reserve the right to charge interest at the rate specified in  paragraph  3.2 below  on any  invoice which is  not  paid within one month of its date.

• The amount of interest which will be charged on unpaid amounts will be the amount to which we would be entitled by way of statutory interest under The Late Payment of Commercial Debts (Interest) Act 1998 or any successor legislation.

• If we hold any of your money, we will deduct from it any fees, expenses and other amounts owing from you to us within 14 days of the amount becoming due to us.
  • Unless we have agreed a different billing frequency, we will invoice you monthly or more frequently if we consider that the circumstances or the likely amount due makes it appropriate to do so even though the work is not completed. In some cases we may require you to make a payment on account of anticipated fees and/or expenses before any work is undertaken or continued or expense incurred and/or at stages throughout the matter.

• You remain responsible for paying our invoices in full, even if a third party is liable to reimburse you for any sums included in the invoice or if there is an agreement between you and a third party that our fees and/or expenses will be paid by that third party. If you ask us to do work for any other person, company          or entity and to submit an invoice to that person, company or entity, you will be jointly liable for payment.

Files and documents

4.1      If we or our subcontractor store deeds, other original documents, wills and/or associated papers (“Documents”) without charge, we shall do so at your sole risk. Consequently, we will not be liable for any loss or damage to your Documents whatsoever and however it may arise.

4.2          We will retain on your behalf, in storage, papers, not comprising Documents in various formats relating to matters on which we have acted for you for a reasonable period, which will normally be for 6 months after a matter is completed (the “Retention Period”). After this period, we may destroy them without notice to you unless we have agreed that we will continue to store them.

4.4          We retain copyright in all original documents prepared by us, and in our publications and practice notes.

4.5          If we obtain an opinion or advice from a third party, we may store a copy of it in our knowledge management system.

5.         Responsibility and liability

5.1          We will exercise reasonable skill, care and diligence in carrying out consultancy work identified in your instructions and agreed by us. Our duty to you does not extend beyond the contractual duty arising from those instructions.

5.2          We are not and shall not be liable to you for any loss or cost whatsoever caused by any act,  omission,  default,  delay,  failure  by  or  for  any  insolvency or  threatened insolvency of any bank, financial institution or clearing or payment system including, but not limited to, any bank where we have placed client funds.

5.3          The commercial implications of the matters on which you have asked us to consult are a matter for you to assess at all times, unless the contrary is agreed by us in writing. If we are engaged in transactional work, the decision as to whether to complete a transaction remains a commercial decision solely for you. Neither our work nor our advice constitutes a recommendation as to whether or not you should complete or discontinue the transaction.

5.4          You may only rely on our advice for the purposes for which, and at the time at which, it was given and only if you have clearly and fully made known those purposes to us

5.5          Where we are asked to prepare a report or otherwise give detailed advice on consultancy issues you should not rely on any oral, draft or interim reports or advice unless you have specifically asked us to confirm that oral, draft or interim advice in writing and we have done so.

5.6          We shall not be under any obligation to update any advice, report or product of our services to take account of events occurring after the advice, report or product has been issued in final form. We shall not be under any obligation to remind you of any time critical date or of any other matter or event occurring after we have submitted our final invoice for the matter and/or our retainer has been expressly determined or determined by implication in our sole view.

5.7          If you request us to perform any transaction within a time-scale which involves exceptionally long hours or which is insufficient to enable us to consider or research fully the issues that may arise in connection with the transaction, the standard of care which you are entitled to expect from us shall be no more than that which may reasonably be expected of us in the circumstances.

5.8          If you request us to establish or act on behalf of a new consultancy entity, whether or not in conjunction with a third party, and to treat that consultancy entity as our client for all or part of a particular matter either in place of or in addition to you we will do so on condition that you will promptly indemnify us against any fees and expenses that the new consultancy entity does not pay and we shall owe no greater obligation to them than we owe to you.

5.9          In the event of any third party investigating or intervening in your financial or business affairs or obtaining any rights or control over your assets we will not be liable for any loss howsoever sustained by you as a result of any delay on our part in carrying out  your instructions consequent upon that investigation or intervention.

5.10        Reference in any MTPL document, publicity, stationery or elsewhere (either in writing or verbally) to a consultant in relation to MTPL is a reference to a member of MTPL or a consultant or employee with equivalent status, and those persons are not in partnership with each other and MTPL is not in partnership with any of them.

5.11        No member, consultant or employee of MTPL contracts with you personally or assumes consultancy responsibility to you personally in respect of work performed on behalf of MTPL. All correspondence, e-mails and other communications sent to you in the course of our work, whether signed by or emanating from a member, consultant or employee shall for all purposes be treated as having been sent on behalf of MYPL.

5.12        Any judgement or award may only be enforced against the available assets of MTPL and not against any other assets whatsoever, including the assets of any other part of MTPL or any member, employee, consultant of, in or to any constituent part of the MTPL.

5.13        We maintain global professional indemnity insurance.

6.         Third Parties and Privilege

6.1          Our duty of care is to you as our client, not to any third party, unless we have agreed in writing to accept a duty to the third party.

6.2          If you ask us to take instructions on your behalf from a third party then:

(a)           until you notify us in writing to the contrary, we will be entitled to act on any instructions given by that third party as if they were given by you; and

(b)       you will indemnify us against any claim that the third party was not entitled to act or give instructions on your behalf or that we were not entitled to act on any such instructions.

6.3          You need to be aware that by using a third party to instruct us you may, in certain circumstances, be considered to have waived consultancy professional privilege, the implications of which may damage your interests. The consequence of loss  of privilege is that other third parties might be entitled to see communications between us and the third party instructing us.

6.4          If  you disseminate  any  documents  that are the subject  of consultancy  privilege,  either internally or externally, privilege may be lost. You should discuss this with us first before you do so.

6.5          If you ask us to work on a matter alongside other professionals you have instructed then it is your responsibility to ensure that all information held by those other professionals that could be relevant to our tasks is provided to us promptly. We shall be entitled to rely on such information unless you tell us otherwise in writing.

7.         Confidentiality

7.1          We will keep information and documentation entrusted to us confidential subject to any duties or obligations imposed on us by law. We may share such information and documentation within MTPL on the same terms. We may disclose any relevant aspect of your affairs to your other professional advisors, unless you request us, in writing, not to do so.

7.2          If you have made a public announcement about work we have undertaken for you, or if it otherwise comes into the public domain (other than by our default), we may make public our involvement, unless you expressly prohibit such disclosure. We will seek your permission if we wish to publicise other work we have done for you.

7.3          Sometimes we ask other companies or people to do photocopying, due diligence or other work to ensure this is done cost effectively and/or promptly. We will obtain a confidentiality agreement with these outsourced providers unless they are subject to professional obligations at least as onerous as we are.

8.         Conflicts of Interest

8.1          Our professional relationships may prevent us continuing to act where there is, or there is reasonably likely to be, a conflict of interest between two or more clients or where we hold or come into possession of confidential information that may be material to you but which we are under a duty to keep confidential for another client. In such circumstances we may have to stop acting for you. If this happens we will tell you as soon as reasonably practicable and we will endeavour to minimise any inconvenience to you. We will be under no obligation to disclose any information to you.

8.2          We will not undertake any new representation which gives a rise to a conflict of interest or a significant risk of a conflict of interest adverse to you, without your prior written consent.

8.3          Furthermore we shall not, without your prior written consent or otherwise to act for another client in a matter adverse to your interest if, as a consequence of our prior representation of you, we hold confidential information which is or might reasonably be expected to be material to that matter.

8.4          Should we continue to act for you we will take such steps as are necessary to ensure that the information of each party is kept confidential from any other party. This may include the creation of information barriers between the consultants and staff working on your matters and those of the other clients. We may require you to comply with any additional measures which we consider are necessary to ensure confidentiality is maintained.

8.5          It is our practice to check for conflicts of interest when accepting new instructions from any client. However, we may not identify all situations where there may be a conflict with your interests or where we hold specific confidential information.

8.6          If we undertake joint representation we will, in general, share all information with each joint client to the extent such information relates to the mutual interest and benefit of each joint client. If the extent of that information disclosed by or communicated to one joint client relates to the interest and benefit of that joint client, we will not share such information with the other joint clients. The joint clients understand that communications between us and one joint client during the joint representation would not be privileged from disclosure to the other joint clients in the event of subsequent litigation between or among the joint clients, even if such communications would be privileged from disclosure to third parties.

8.7          If there are any specific circumstances in which you consider we should not act, because you consider that for us to do so would be in conflict with your commercial interests, you must notify us promptly so that we can consider our position.

10.       Data protection

9.1          We (and others processing data on our behalf) hold and use information about you and your employees and representatives in order to comply with our reporting and client verification obligations referred to in paragraph 13 and our other consultancy and regulatory obligations, to carry out work for you, to help us manage our practice and to keep you and your employees and representatives informed of the activities carried out by us and the MTPL.

9.2          You agree that information we may hold may be used in connection with our retainer in other countries outside the European Economic Area, some of which may not have laws to protect such information.

9.3          Where we are processing personal data on your behalf, we will only act on your instructions and we will take reasonable measures to prevent the unauthorised or unlawful processing of it and against accidental loss or destruction of, or damage to, the personal data.

9.4          We may use some of the information you give to us to send information to you about the MTPL and our services. If you do not wish to receive this information you should inform the partner or fee earner with whom you normally deal.

9.5          You agree that we may carry out credit reference checks using online or other databases as we may decide. These agencies may keep a record of that search.

9.6          MTPL uses cookies on its websites which record information about your online preferences to enable us to improve our services. This includes newsletters and e-alerts, which you can sign up to via the MTPL website and some third parties may also have cookies embedded via the MTPL website. By agreeing to these Terms of Business you consent to cookies gathering information as set out in our privacy policy.

9.7          Travelling with a device with encrypted software to certain jurisdictions, without proper authorisation could violate the import regulations of that jurisdiction and could result in the device being confiscated, in fines or in other penalties. The MTPL operate in jurisdictions where this may occur, and will not be held responsible for the loss of any information which is stored on any device which is confiscated under these circumstances but we will endeavour to take all reasonable precautions to prevent this occurring.

10.       Communications policy

10.1        We will accept verbal, written or e-mail instructions from you. We may send you written or e-mail confirmation of your instructions or ask for written or e-mail confirmation of your instructions.

10.2        We cannot guarantee that our communications are secure and free from error, virus or malware,  although  we try to ensure  that they  are.   You should  ensure that all your incoming messages are scanned for viruses and malware.

10.3        Use of e-mail carries certain risks. Confidentiality may be breached and messages may be lost or delayed. We shall not have any liability to you or to any third party as a result of e-mailing you or with any third party in relation to your matters. We accept no liability in respect of any claim or loss arising in connection with such communications.

10.4        We may not allow certain types of e-mails and attachments into our system, for example if they do not meet our security criteria.

10.5        We reserve the right to record and monitor all correspondence, including e-mail correspondence and telephone calls, to the extent permitted by law.

11.       Limitation of liability by others

11.1        If you agree to a limitation on the liability of any professional adviser who acts for you on a matter on which you have also instructed us then our liability to you in respect of any claim, which you may make against us, will be limited to the amount of the limitation agreed by you with such other adviser provided that:

(a)           it is less than the amount of any limitation specified in our engagement letter or elsewhere in these terms of business or otherwise included in the terms of our engagement for that matter; and

(b)           the limit of our liability in respect of that matter to you shall not be less than £2 million.

11.2        If you have appointed other professional advisers to act for you in connection with a matter on which you have also instructed us, our liability to you for any loss arising in relation to that matter from any breach of these Terms of Business or the terms of our Engagement Letter shall be limited to such proportion of the loss as it is fair and reasonable for us to bear, to be determined on the assumption that all such other professional advisers have entered into a binding obligation to you in terms no less onerous than the terms of this clause 11.2 and have paid to you such proportion of the loss as it is fair and reasonable for each of them to bear.

12.       Financial services regulated activity

                Our primary role is as consultancy advisor and it is not part of our role to advise on the merits of entering into investment transactions or exercising investment rights, or to act as a broker or arranger of transactions. Any decision to consider, discuss, negotiate or enter into a proposed investment transaction is a decision solely for you on the basis of your own assessment of the transaction and risks, and any advice which you may receive from a person authorised under the Financial Services and Markets Act 2000 (“FSMA”) to give such advice.

13.       Anti-money laundering and Bribery

13.1        Under the Money Laundering Regulations 2007 and its various obligations, we are obliged to verify the identity of our clients and, if they are not a natural person, their beneficial owners, prior to acting and, in certain circumstances, conducting ongoing client due diligence. You agree that where applicable we may obtain this information through databases and through electronic data provided by third parties. These agencies may keep a record of that search. We will need you, and others associated with you, to provide us with documents to enable us to comply with our obligations under the Regulations. If we are not given satisfactory evidence promptly, or if there is non-compliance with our identification procedures, then we will be delayed in starting work for you or may not be able to work for you. Where we have started work for you we may need to determine our retainer without notice.

13.2        Where we instruct others on your behalf, we may provide copies of this information to them for their anti-money laundering procedures.

13.3        We are obliged to report to the Serious Organised Crime Agency (“SOCA”) any knowledge or suspicion we may have of money laundering or terrorist financing, or if we have reasonable grounds for knowing or suspecting money laundering or terrorist financing. We will not be able to tell you that a report has been made and we may not be able to continue to act unless and until SOCA permits us to do so. We may also need to report such knowledge or suspicion to our regulator.  In such circumstances our retainer shall be suspended or terminated to the extent necessary.

13.4        We have a zero tolerance approach to bribery and corruption. By agreeing to our Terms of Business, you are agreeing to abide by our zero tolerance approach to bribery and corruption and to report any such activity which comes to your attention during the course of our engagement.

35.5        It may be necessary for us to report any knowledge or suspicion of bribery or corruption of which we become aware to relevant authorities, which may include the Serious Fraud Office and SOCA.  We may also need to report such knowledge or suspicion to our regulator. In such circumstances our retainer shall be suspended to the extent necessary.

13.6        We may decline to accept amounts tendered by you in cash of sums exceeding £5,000. If this policy is circumvented by cash being deposited direct with our bank we reserve the right to charge for any additional checks we consider necessary regarding the source of funds.

14.       Termination of retainer

14.1        It is open to you, at any time, to terminate or suspend our services by giving us written notice.

14.2        If we consider that you may have been involved in money laundering (including failing to comply promptly with our money laundering procedures), bribery, corruption , tax evasion, fraud or other criminal activity, we reserve the right to terminate all our retainers with you without notice, without liability and without providing a reason.

14.3        If you do not pay any invoice when due (or do not comply with any request for payment on account of costs incurred or to be incurred), we may suspend work on any matters on which we are acting for you or terminate the retainer(s). Any such action will be effected in accordance with the applicable rules of professional conduct which govern US.

14.4        We may, on reasonable notice, suspend work on any matters on which we are acting for you and without prejudice to our right to be paid for work up to the date of expiry of our notice. We may also suspend any of our retainers with you if we consider that the relationship of trust and confidence inherent in a solicitor client relationship has broken down, notwithstanding that the retainer is an entire retainer and has not been entirely fulfilled. We may also terminate such retainer(s) in those circumstances.

14.5        We will not be liable to you for any resulting financial loss or any other consequences you may incur as a result of our suspending or terminating any of our retainers in accordance with the provisions of this section.

14.6        If you or we decide that we should stop acting for you, you will pay our charges as set out in the Terms of Business and your engagement letter, up until that point.

15.       Right to Complain

                MTPL is committed to providing the highest quality service to its clients. If you are not satisfied with any service, or have a complaint about our fees, then please raise the concern with the person at MTPL responsible for supervising the relevant matter, the person with whom you usually deal. We operate a procedure to help resolve any problem promptly and fairly. We will supply you with a copy of this procedure on request. If the problem cannot be resolved using this procedure.

15.4        MTPL is committed to providing equality and diversity in all of its dealings with clients, third parties and employees.  Please contact us if you would like a copy of our equality and diversity policy.

16.       The Contracts (Rights of Third Parties) Act 1999

Unless expressly stated, nothing in these Terms of Business confers any rights on any person pursuant to the Contracts (Rights of Third Parties) Act 1999.

17.       Governing law and jurisdiction

17.1        The contract for the provision of our services to you is governed by English law.

17.2        No courts other than the courts of England are to have jurisdiction over any claim brought by you against us or by us against you.

17.3        However, we may bring proceedings against you in any jurisdiction, including (without limitation) any jurisdiction in which you are resident, domiciled, incorporated or have assets, for the purpose of enforcing any judgment and you irrevocably and unconditionally submit to such jurisdiction for that purpose.