Terms & Conditions of Services
Welcome to The Orchard!
We are so happy to have you here and we look forward to helping you get your legal foundations in place so your purpose-driven business can flourish and you can concentrate on bringing your special talents to the world.
We set out below the legal terms that will govern our relationship with you and apply to the services we provide. The intention is that they will bring clarity to our relationship so please do let us know if there are any clauses that you do not understand or that contradict your understanding of our services.
1. Definitions and interpretation
1.1. In this agreement:
'Charges' means any sums payable to us for performance of this agreement and any Statement of Services.
'Confidential Information' of a party means any information in whatever form relating to that party's business, customers and suppliers which is not publicly available including any information specifically described as confidential and any other information which a reasonable recipient would in the circumstances regard as confidential.
'the Deliverables' means the materials and services to be supplied by us expressly set out in a Statement of Services.
'the DPA' means the Data Protection Act 1998, as amended from time to time or any future legislation enacted in replacement of the DPA.
'Intellectual Property Rights' mean all intellectual property rights, however arising and in whatever form, whether or not registered, including copyright, patents, trademarks, website marks, trade names, registered designs and any applications for the protection or registration of these rights.
'Minimum Term' means, in relation to our membership services, a period of 12 months.
'reasonable endeavours' means all the steps which a prudent and competent organisation would take to achieve an outcome as if the outcome was required for its own business bearing in mind all the circumstances and without exposing the organisation to disproportionate risk or expense.
'Statement of Services' means a document expressly identified as such and which is agreed by both parties (either by signature or email confirmation) and which sets out details of any Deliverables.
2. Our obligations in outline
2.1. We shall provide the Deliverables in accordance with the Statement of Services and the terms of this agreement.
2.2. When any timescales are stipulated for the supply of Deliverables (whether in this agreement, any Statement of Services or elsewhere):
2.2.1. we shall use reasonable endeavours to comply with the timescales;
2.2.2. the timescales will be treated as extended by the period of any delay caused by you or by any third party beyond our reasonable control;
2.2.3. if a breach of clause 2.2.1 causes a timescale to be missed or makes it likely that a timescale could be missed we shall take steps to reduce as far as possible any further delay.
3. Statements of Services
3.1. The parties shall create Statements of Services to record the details of any Deliverables.
3.2. Each Statement of Services is a separate contract incorporating the terms of this agreement.
4.1. The Deliverables will be provided by Natasha Minchella, one of our directors. Natasha qualified as a solicitor in 1998, is on the Roll of Solicitors and currently carries out consultancy work as a solicitor for other law firms. However, we are not registered with the Solicitors Regulatory Authority, with the specific aim of providing services to our clients with less red tape and with more creative pricing options. We shall only provide Deliverables that do not need to be carried out by a company which is registered with the Solicitors Regulatory Authority. These Deliverables will be provided by Natasha as a business adviser rather than a solicitor. The main points for you to understand are that:
4.1.1. you will not be able to complain to the Legal Ombudsman if you have a complaint about the Deliverables, although the usual protection for non-regulated services exists, for example statutory protection under the Unfair Contract Terms Act and Trading Standards;
4.1.2. you will not have the benefit of ‘legal privilege’, although you will have the benefit of the contractual confidentiality obligations in clause 11 of this agreement;
4.1.3. we are not required to have the same level of insurance in place as we would if we were registered with the SRA, but we do have professional indemnity insurance at an appropriate level to cover our potential liability and will provide details on request.
4.2. If at any time we consider it to be in your best interest to use regulated services for a piece of work we shall inform you.
4.3. Deliverables – including contracts and other legal documents - are supplied to you for your own internal use in the ordinary course of business and may not be re-sold or otherwise made available to any third party.
4.4. Unless provided otherwise in a Statement of Services, the Charges quoted for drafting a contract, set of terms and conditions or any other legal document include one set of amendments to the draft following your initial review. Any subsequent amendments will be subject to Charges on a time spent basis on the hourly rate set out in a Statement of Work or in the absence of any specified rate at our standard rate of £160 per hour.
5. Change Control
5.1. If either party wishes to change the Deliverables, it shall submit details of the requested change to the other in writing, following which we shall, within a reasonable time, provide a written estimate to you of:
5.1.1. the likely time required to implement the change;
5.1.2. any variations to the Charges arising from the change; and
5.1.3. any other impact of the change on the terms of the Statement of Services.
5.2. Changes proposed under this clause 5 do not take effect unless and until the parties have agreed in writing on the necessary variations to the Charges and any other relevant terms of the Statement of Services to take account of the change.
6. Charges and Payment
6.1. For non-subscription services, we shall submit invoices to you on a monthly basis or at other appropriate stages during the course of a matter unless otherwise agreed with you. A final invoice will be submitted to you on completion of a matter.
6.2. You will pay all invoices in full, without deduction or set-off other than as required by law, in cleared funds within 5 Business Days of the date of the invoice. Payment will be to the bank account nominated by us for that purpose. Time of payment is of the essence. Where sums due under this agreement are not paid in full by the due date we may, without limiting our other rights, charge interest in accordance with Clause 6.7.
6.3. Where you choose to subscribe to one of our membership packages, such as our ‘VIP Membership’ package, you will pay the monthly subscription fee specified in the Statement of Services for the Minimum Term. This will cover the work included in the membership package as set out in the Statement of Services. Any additional work undertaken by us will be charged on a time spent basis on our rate specified in the Statement of Services or in the absence of any specified rate at our prevailing hourly rate.
6.4. If you fail or are late to make a subscription payment at any time, you will be liable for the total sum of the 12 monthly payments less any sums paid by you at that point. In such circumstances we shall send you an invoice for the total outstanding amount which will be payable by return in accordance with this agreement.
6.5. All sums are described exclusive of VAT. We are not currently registered for VAT.
6.6. Unless they state otherwise, any quotations provided by us are valid for Statements of Services signed within 30 days.
6.7. Where sums due under this agreement are not paid in full by the due date, we may, without limiting our other rights, charge interest on such sums at the statutory interest rate (as defined by the Late Payment of Commercial Debts (Interest) Act 1998).
6.8. Interest will:
6.8.1. accrue on a daily basis; and
6.8.2. apply from the due date for payment until actual payment in full, whether before or after judgment.
7. Performance standards
7.1. We shall perform this agreement:
7.1.1. using the reasonable care and skill to be expected of a professional supplier of the Deliverables;
7.1.2. in accordance with the law; and
7.1.3. using personnel who are appropriately trained and experienced.
8.1. We warrant that:
8.1.1. we are lawfully entitled to supply the Deliverables; and
8.1.2. subject to your compliance with your obligations set out in clause 9 below, use of the Deliverables by you in accordance with the terms of this agreement will not infringe the Intellectual Property Rights of any third party; and
8.1.3. the Deliverables will conform substantially with their description.
8.2. All other representations, conditions, warranties or other terms which might have effect between you and us or be implied or incorporated into this agreement whether by statute, common law or otherwise, are excluded to the extent permitted by law.
9. Your Obligations
9.1. You will:
9.1.1. provide us with reasonable and prompt co-operation to facilitate our performance of any Statement of Services in a timely and efficient manner, including the provision of any information we may request and ensure that such information is accurate in all material respects; and
9.1.2. ensure that you carefully read through and consider any draft documents we send to you to ensure they accurately reflect your business, processes and any commercial terms you may have agreed.
9.2. If you are in material breach of this agreement, we reserve the right to suspend or curtail the services as we see fit.
10. Intellectual Property Rights
10.1. Except where expressly provided otherwise in this agreement or a Statement of Services, we and you shall each retain ownership of our own Intellectual Property Rights.
10.2. We shall retain copyright in all written material prepared for you and we hereby grant to you a royalty free licence to use the written material to obtain the benefit of the Services, revocable only in the event of a material breach by you of the terms of this agreement. On payment in full of the price for the Deliverables and compliance with the Minimum Term this licence will become a perpetual licence.
10.3. In relation to materials supplied by you to us, it is your responsibility to ensure you either own the Intellectual Property Rights in the materials or you have obtained a licence from the third party owner to allow the materials to be used for the purpose of this agreement and any Statement of Services. We are not responsible for making any enquiries to verify your compliance with this clause 10.3.
10.4. You will indemnify us against all liabilities, costs, expenses, damages and losses (including any legal costs) suffered or incurred by us arising out of or in connection with a breach of clause 10.3.
11. Confidential information
11.1. If either party receives the other party's Confidential Information, it shall:
11.1.1. not use it for any purpose other than performance of this agreement;
11.1.2. keep it secret and protect it at least as well as it would protect its own Confidential Information;
11.1.3. disclose it only to those of its employees, subcontractors and advisers who need to know the Confidential Information for the performance of this agreement;
11.1.4. inform anyone to whom it discloses the Confidential Information that the information is confidential and take all reasonable steps to ensure that such recipients will comply with the terms of this agreement; and
11.1.5. after performance of the relevant Statement of Services or upon termination of this agreement, cease to use altogether and return or (at the option of the other party) destroy or permanently erase all copies of the Confidential Information.
11.2. The obligations in clause 11.1 will not apply to Confidential Information which:
11.2.1. has ceased to be confidential through no fault of either party;
11.2.2. was already in the possession of the recipient before being disclosed by the other party as can be verified by the production of written evidence of such possession;
11.2.3. has been lawfully received from a third party who did not acquire it in confidence; or
11.2.4. is required to be disclosed by law, provided that the disclosing party shall take all reasonable steps to notify the other party in good time before such disclosure and gain assurances as to confidentiality from the body to whom the information is to be disclosed and in the case of any disclosure under the Freedom of Information Act 2000, none of the exemptions to that Act apply to the information disclosed.
11.3. Each party's duty of confidence shall continue after termination of this agreement.
12. Data protection
12.1. Each party shall comply with the DPA.
12.2. We shall comply with the 7th principle of the DPA. Consistent with the requirements of the 7th principle we shall:-
12.2.1. act only on instructions from you in respect of any personal data processed;
12.2.2. have technical and organisational measures in place against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data held or processed by us, appropriate to the harm that might result from such unauthorised or unlawful processing or loss, destruction or damage to personal data and the nature of the personal data;
12.2.3. take all reasonable steps to ensure the reliability of any of our staff who have access to personal data processed in connection with this agreement;
12.2.4. not transmit the personal data to a country or territory outside of the European Economic Area without ensuring that such data is afforded adequate protection as required by the DPA; and
12.2.5. allow you to audit as and when necessary, in accordance with the DPA, the technical and organisational measures in place to ensure compliance with the DPA.
13. Limitations and exclusions of liability
13.1. Despite any other provisions of this agreement, neither party excludes or limits its liability for:
13.1.1. death or personal injury caused by its negligence or the negligence of its officers, employees, contractors or agents;
13.1.2. fraud or fraudulent misrepresentation;
13.1.3. breach of the obligations implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982; or
13.1.4. any liability which may not be excluded by law.
13.2. Except as expressly set out in clause 13.1, neither party shall be liable for any loss of profit, loss of business, loss of goodwill, loss of savings, claims by third parties, loss of anticipated savings, whether direct or indirect, or for any indirect loss or consequential loss whatever and however caused (even if caused by that party’s negligence and/or breach of contract and even if that party was advised that such loss would probably result).
13.3. We shall not be liable for any losses suffered by you following a breach of this agreement by us where such breach is caused by the failure of you to fulfil your obligations under clause 9.
13.4. Except as expressly set out in clause 13.1, each party’s total liability for any claims, losses, damages or expenses whatever and however caused (even if caused by its negligence and/or breach of contract) shall be limited for each event or series of linked events to a maximum sum equal to the total Charges (excluding VAT) actually paid by you to us under the relevant Statement of Services giving rise to such liability.
13.5. This agreement is enforceable by us and by you and our successors in title and permitted assignees. Any rights of any person to enforce the terms of this agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 are excluded.
14.1. Either party may terminate any or all Statements of Services by written notice to the other party:
14.1.1. at any time provided that the written notice of termination is not less than one month and expires after the Minimum Term, if any;
14.1.2. immediately if the other party commits any material breach of the terms of the agreement and, in the case of a breach capable of being remedied, such breach is not remedied within 30 days of a written request to do so (such written request must expressly refer to the threat of termination in accordance with this clause); and
14.1.3. immediately if the other party commits or threatens to commit or is threatened with any act of insolvency under the Insolvency Act 1986 or any similar procedure or step is taken in any jurisdiction.
14.2. In addition to the circumstances set out in clause 14.1, Modern Law Limited may terminate this contract and any or all Statements of Services on one month’s written notice in which case you will receive a refund of any Charges paid by you in advance, less a deduction in respect of work already undertaken on your behalf.
14.3. Termination of this agreement or any Statement of Services will not affect any accrued rights or liabilities of either party or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination.
14.4. Upon termination of a Statement of Services for any reason we shall be entitled to invoice you (within a reasonable period of termination) any un-invoiced Charges.
15. Force Majeure
Neither party will be liable for any delay or failure in performing its obligations under this agreement if caused by circumstances beyond its reasonable control (including, in the case of performance by a subcontractor, circumstances beyond the reasonable control of the subcontractor). Provided the party in default notifies the other party promptly in writing of the reasons for and likely duration of the failure or delay, then the performance of the parties’ obligations shall be suspended during the period that the circumstances persist.
Neither party may assign this agreement without the prior written consent of the other (such consent not to be unreasonably withheld or delayed).
17. Variations and waiver
17.1. No variation of this agreement is valid unless it is in writing and signed by or on behalf of each of the parties.
17.2. The failure to exercise, or delay in exercising, a right or remedy under this agreement shall not constitute a waiver of the right or remedy, or a waiver of any other rights or remedies.
18.1. If any provision of this agreement (or part of one) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal the other provisions shall remain in force.
18.2. If any invalid, unenforceable or illegal provisions would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties
19. Entire agreement
This agreement constitutes the entire agreement between the parties and supersedes any arrangements, understanding or previous agreement between the parties relating to the subject matter of this agreement.
20. Dispute Resolution
20.1. If a dispute arises out of or in connection with this agreement the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure.
20.2. Clause 20.1 does restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or to protect any Intellectual Property Rights or trade secrets whether by way of injunctive relief or otherwise.
21. Governing law and jurisdiction
21.1. This agreement and any dispute arising out of or in connection with it is governed by the laws of England and Wales.
21.2. Each of the parties submits to the exclusive jurisdiction of the courts in England and Wales.