First Response (Europe) Limited (First Response) is in the business of supplying expert computer forensic services, IT security services, expert analysis of information technology systems, expert reports, expert evidence for use in Courts and related services. The Company (client) has requested First Response to provide services as set out in the Services Order. First Response and the Company agree that the Services shall be supplied subject to the terms and conditions set out below.

1. Services

  1. This Agreement shall commence on the date of First Response’s acceptance of the Services Order (estimate) and shall continue until the completion and/or delivery (as applicable) of the services specified in the statement of work (the Services) or until terminated in accordance with its terms (the Term). The Company shall engage First Response and First Response shall provide the Services as set out in the Services Order on the terms of this Agreement. The methods by which First Response performs the Services shall be and remain within its sole discretion.
  2. First Response shall use reasonable endeavours to meet any performance dates or times specified in any written acknowledgement, the Agreement or otherwise, but any such dates or times shall be estimates only and time of performance shall not be of the essence of the Agreement nor shall First Response be liable for any failure to meet such dates or times provided always that First Response have used reasonable endeavours to do so.
  3. The Services Order (estimate) is based upon the information provided to date. Should the scope and circumstances of the investigation change a further estimate may be required for any additional work. No additional work will be undertaken until any further estimates have been approved in writing.

2. Warranties

The Company warrants, represents and undertakes that it has obtained all permissions, consents and licences required to enter into this Agreement; it has obtained all required permissions and authorities required to lawfully pass possession and/or control of third party property and materials (Company Materials) to First Response and comply with the terms of this Agreement; it shall promptly provide First Response with all assistance, materials and accurate information reasonably requested or required by First Response and notify First Response of its special requirements including those of any customer in advance of this Agreement, in writing; it shall notify First Response of all statutes, laws, regulations, bye-laws and without limitation other relevant considerations as are applicable for the provision of the Services; and it will clearly set out any specific requirements, including the intended audience for the Services, the level of detail or technical explanations required to be provided in written reports it may have in the Statement of Work.

3. Confidential Information

  1. The parties shall keep all information in respect of the Company’s business, the Company’s customer’s business, finances, clients or financial or other affairs (Confidential Information) confidential at all times and shall not at any time during the Term or after its termination (1) disclose or divulge any Confidential Information to any person, nor use the Confidential Information in any way which is not for the purpose of legitimate performance of the Services; or (2) cause or permit any unauthorised disclosure of any Confidential Information through any failure to exercise reasonable care and diligence to keep such Confidential Information confidential.
  2. The parties shall not, without the prior written consent of the other, disclose information relating to the other to any person except for the purpose of fulfilling its obligations under this Agreement. The restrictions in this Clause shall not apply to (1) any disclosure authorised by the board of directors of the Company or required by statute, any order of a court of competent jurisdiction or an appropriate regulatory authority; and (2) information which would otherwise be Confidential Information but has become available to the public generally other than as a result of the Interim Manager’s own act or default.

 4. Intellectual Property Rights

  1. This Agreement does not assign or transfer any intellectual property rights and nothing in this Agreement shall give a party any right, title or interest whatsoever in the other party’s intellectual property rights.
  2. First Response shall own the product of the Services produced or at any time created by First Response, whether or not delivered to the Company as part of the Services.
  3. First Response grants to the Company a perpetual, irrevocable, non-exclusive, non-transferable and personal licence to use deliverables for their intended purpose upon payment in full for the Services.
  4. The Company shall not remove, alter, cover or obfuscate any copyright notices, trademark notices or other proprietary rights notices placed or embedded in First Response deliverables.

5. Liability

  1. This Clause sets out the entire financial liability of First Response to the Company in respect of any breach of the Agreement, any use made by the Company or its customer of the Services and any misrepresentation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
  2. First Response shall perform the Services with reasonable skill and care. Other than the warranties provided herein, all other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
  3. First Response shall not be liable whether in contract, tort (including negligence) or for breach of statutory duty for any loss, damage or third party claims of an indirect, consequential, special or incidental nature, including, without limitation, loss of business or profit, loss of goodwill or reputation incurred by the Company or its customer arising out of or in connection with the use or provision of the Services, or any other matter under the Agreement, regardless of whether such was reasonably foreseeable or that First Response had been made aware of the possibility of the Company or customer incurring such loss.
  4. The aggregate liability of First Response in respect of any loss or damage suffered by the Company and/or its Customer arising out of or in connection with this Agreement, whether in contract, tort (including negligence) or for breach of statutory duty shall be limited to the price paid for the Services.
  5. Where any claim is made against First Response under or in relation to any Agreement, First Response shall be entitled to, at First Response’s sole discretion, refund the price of the Services (or a proportionate part of the price thereof) and First Response shall have no further liability to the Company.
  6. The total cumulative liability of First Response in respect of any and all disputes arising out of or in connection with this Agreement and all other contracts with the Company shall not exceed £500,000.
  7. Nothing in this Clause shall limit either Party’s liability for death or personal injury resulting from negligence or for fraud, fraudulent misstatement or fraudulent misrepresentation by First Response.
  8. The provisions of this Clause shall continue to apply notwithstanding the termination or expiry of this Agreement for any reason.
  9. Each Party shall comply with the Data Protection Act.

6. Payment and Fees

  1. The Company shall pay the fees as set out in the Services Order, invoice or as may otherwise be agreed by the Parties. Any quotation or estimate provided by First Response to the Company is valid for 30 days and shall thereafter lapse. All travel and other expenses incurred during the Term shall be invoiced by First Response at cost.
  2. Payment shall be due immediately when an invoice is issued by First Response, or where an approved credit account is held, within 30 days of the date of the invoice.
  3. All prices quoted or estimated are exclusive of VAT, and any other tax or similar charge applicable anywhere in the world, for which the Company shall be additionally liable at the applicable rate from time to time. The Company shall not withhold payment of any invoice or other amount due to First Response by reason of any right of set-off or counterclaim which the Company may have or allege.
  4. If the Company does not pay sums when they properly due and payable under this Agreement, First Response may from time to time, (1) suspend such part or parts of the Services as it sees fit without notice to the Company, and/or (2) charge interest, accruing daily, at a rate of up to 8% per annum on all sums overdue. First Response shall further be entitled to be paid by the Company (on an indemnity basis) all costs, charges and expenses incurred by First Response in collecting or attempting to collect any indebtedness of the Company to First Response, and an administrative charge at a rate of 5% of the invoiced sums from the date originally invoiced to cover any such costs, charges and expenses.

7. Termination

  1. Either Party may terminate this Agreement if:
    1. the other Party is in material breach of this Agreement and fails to remedy the breach (if capable of remedy) within 14 days of written notice of the breach being given by the Party not in breach or persistently breaches of any of its obligations under this Agreement;
    2. the other Party enters into any composition or arrangement (whether formal or informal) with its creditors; or
    3. sums due and payable under this Agreement are overdue for more than 14 days.
  2. The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

8. General

  1. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
  2. This Agreement constitutes the entire Agreement between the Parties and the Parties agree that they have not relied on any matter not contained herein. Any waiver by First Response of any breach of this Agreement shall not be a waiver of any subsequent breach of the same or any other provision of the Agreement.
  3. The Company agrees that First Response may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent and that First Response shall not be bound to give notice to the Company of any such delegation or subcontracting. No variation of this Agreement shall be effective unless it is in writing and signed by an authorised representative of each Party.
  4. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
  5. The Parties agree that if any provision of this Agreement is to be invalid, illegal or unenforceable, the validity of the remaining provisions of the Agreement shall continue in full force and effect.
  6. Any notice required to be given to a Party under or in connection with this Agreement shall be deemed to have been duly given if in writing and delivered to the other Party personally or by registered post, email to a published email address of the Party, or commercial courier, or by facsimile transmission and sent to the address of the Party shown on the Services Order, to any other address as the Party may have specified by notice in writing, or the Party’s registered address.
  7. No third party shall have any right to enforce the terms of this Agreement.
  8. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably submit to the exclusive jurisdiction of English Courts.