Terms & Conditions

1. Interpretation

The definitions in the Engagement Letter and the following definitions and rules of interpretation apply in this Agreement (unless the context requires otherwise):

Agreement: the Engagement Letter, the Annex and these terms of business.

Business Day: a day other than a Saturday, Sunday or public holiday in England or Scotland, when banks in London are open for business.

Client or “you”: the legal person being the addressee of the Engagement Letter and to whom Harriet Clapham is supplying the Services.

Client Materials: all materials, photos, research, literature and data supplied by the Client to Harriet Clapham.

Conditions: these terms and conditions set out in clause 1 (Interpretation) to clause 11 (General) (inclusive).

Confidential Information: information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of either party for the time being confidential to either party and trade secrets including, without limitation, technical data and know-how relating to the business of either party or any of its suppliers, customers, agents, distributors, shareholders, management or business contacts, including (but not limited to) information that either party creates, develops, receives or obtains in connection with this Agreement, whether or not such information (if in anything other than oral form) is marked confidential.

Engagement Letter: the letter from Harriet Clapham Advisory to the Client to which these Conditions are attached and by which these Conditions are incorporated.

Fees: the fees payable by the Client for the supply of the Services by Harriet Clapham as set out in the Annex to the Engagement Letter and clause 5 of this Agreement.

Harriet Clapham, “we” or “our”: Harriet Clapham, trading as Harriet Clapham Advisory.

Project: the Client's project, forming the basis on which Harriet Clapham shall perform the Services, as described in the Annex, if applicable.

Services: the services as described in the Annex.

Services Start Date: the day on which Harriet Clapham is to start provision of the Services, which shall be the date of the Engagement Letter or, if earlier, such other date as detailed in the Annex.

Annex: the Annex annexed to the Engagement Letter (if applicable).

A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.

Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. A reference to writing or written includes email.

2. Commencement and Term

The Agreement shall commence on the Services Start Date and shall continue until the end of the Project or supply of Services, unless terminated earlier in accordance with these terms.

3. Supply of services

3.1 Harriet Clapham shall supply the Services to the Client from the Services Start Date in accordance with this Agreement.

3.2 In supplying the Services, Harriet Clapham shall:

(a) perform the Services with reasonable care and skill;

(b) use reasonable endeavours to perform the Services in accordance with the description set out in the Annex;

(c) comply with all applicable laws, statutes and regulations from time to time in force provided that Harriet Clapham shall not be liable under this Agreement if, as a result of such compliance, it is in breach of any of its obligations under this Agreement;

(d) take reasonable care of all Client Materials in our possession and make them available for collection by the Client on reasonable notice and request, always provided that Harriet Clapham may destroy or otherwise deal with the Client Materials if the Client fails to collect the Client Materials within a reasonable period after termination of this Agreement;

(e) unless specifically authorised to do so by the Client in writing, not:

(i) have any authority to incur any expenditure in the name of or for the account of the Client, other than those expenses set out in clause 6; or

(ii) hold itself out as having authority to bind the Client;

(f) have no responsibility or obligation to pay any third party or other contractor who is assisting with the Project.

4. Client’s obligations

4.1 The Client shall:

(a) co-operate with Harriet Clapham in all matters relating to the Services;

(b) provide, in a timely manner, such information as Harriet Clapham may reasonably require, and ensure that it is accurate and complete in all material respects;

(c) If Harriet Clapham’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, sub-contractors, consultants or employees, Harriet Clapham shall:

(i) not be liable for any costs, fees or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;

(ii) be entitled to payment of the Fees despite any such prevention or delay; and

(iii) be entitled to recover any additional costs, fees or losses Harriet Clapham sustains or incurs that arise directly or indirectly from such prevention or delay.

4.2 The Client shall not, without the prior written consent of Harriet Clapham, at any time from the date of this agreement to its termination appoint any other person to perform the same or similar Services (either in part or in full).

5. Fees and payment

5.1 In consideration for the provision of the Services, the Client shall pay Harriet Clapham the Fees in accordance with this clause 5.

5.2 All amounts payable by the Client exclude amounts in respect of value added tax ("VAT"), which the Client shall additionally be liable to pay to Harriet Clapham at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.

5.3 Harriet Clapham shall submit invoices for the Fees plus VAT (if applicable) to the Client at the intervals set out in the Annex.

5.4 The Client shall pay each invoice due and submitted to it by Harriet Clapham, within 14 days of receipt to the bank account nominated by Harriet Clapham on its invoice.

5.5 If the Client fails to make any payment due to Harriet Clapham under this Agreement by the due date for payment, then, without limiting Harriet Clapham’s remedies under clause 10 (Termination), the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

5.6 Harriet Clapham may suspend all Services, including delivery of any artworks, until payment of any Fees, VAT and interest, if applicable, has been made in full and in cleared funds.

6. Expenses

The Client shall reimburse all reasonable expenses properly and necessarily incurred by Harriet Clapham during the term of this Agreement, including but not limited to travel, sundries and accommodation (if travelling outside London) and any other types of fees, expenses, charges or spending necessary in the opinion of Harriet Clapham to perform the Services. All expenses above a de minimis threshold of £25 should be approved in advance by the Client.

7. Other Activities

Nothing in this agreement shall prevent Harriet Clapham from being engaged, concerned or having any financial interest in any capacity in any other business, trade, profession or occupation during the term of this Agreement, including any such activity that relates to a business which is similar to or in any way competitive with the business of the Client.

8. Status

8.1 The relationship of Harriet Clapham to the Client will be that of independent contractor and nothing in this agreement shall render it (nor its agents or representatives) an employee, worker, agent or partner of the Client and Harriet Clapham shall not hold itself out as such and shall procure that its agents or representatives shall not hold itself out as such.

9. Limitation of liability

9.1 Nothing in this Agreement shall limit or exclude Harriet Clapham's liability for:

(a) fraud or fraudulent misrepresentation; or

(b) any other liability which cannot be limited or excluded by applicable law.

9.2 Subject to clause 9.1 Harriet Clapham shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for

(a) loss of profits;

(b) loss of sales or business;

(d) loss of anticipated savings or earnings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; and

(g) any indirect or consequential loss.

9.3 Subject to clause 9.1, Harriet Clapham's total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement shall be limited to a maximum of the lower of the Fees or Harriet Clapham's insurance cover in place from time to time subject to any policy exclusions and to the extent it is able to recover any sums falling due under its respective insurance policies in place from time to time.

9.4 Harriet Clapham shall not be liable for any delay in performance or breach of any of its obligations under this Agreement resulting from any cause beyond its reasonable control including but not limited to fires; pandemics; earthquakes; floods; storms; drought; Acts of God; network or power failure; strikes (of its own or other employees) insurrection or riots; acts of terrorism; embargoes; shortages or delays in transportation; telecommunications failure and requirements, restrictions or regulations of any civil, governmental or military authority.

9.5 Harriet Clapham shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from the late arrival or non-arrival of information, documents or instructions from the Client.

9.6 The conditions implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.

9.7 Any statements that Harriet Clapham makes about the authenticity, attribution, description, date, age, provenance, title or condition of any work of art constitute a judgment and opinion genuinely held and formed on the basis of our reasonable research and experience but are not contractual representations. Where reasonably required Harriet Clapham will carry out investigations via third parties (such as Art Loss Register searches) and/or rely on investigations (such as scientific analysis) carried out by third parties. Harriet Clapham does not accept liability for loss caused by reliance on investigations carried out by any third parties.

9.8 Harriet Clapham is not a regulated financial services provider or advisor nor are we authorised to provide investment advice. We make no warranties or representations in relation to a work of art’s investment potential or the present or future value of any work of art or collection in connection with our provision of the Services.

10. Termination

10.1 Without affecting any other right or remedy available to it, either party to this Agreement may terminate it with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment;

(b) the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after receipt of written notice giving particulars of the breach requiring to be remedied;

(c) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(d) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(e) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy.

10.2 Without affecting any other right or remedy available to it, Harriet Clapham may terminate this Agreement with immediate effect by giving written notice to the Client if;

(a) the Client fails to pay any amount due under this Agreement on the due date for payment; or

(b) the Client fails to comply with Harriet Clapham’s anti-money laundering and ‘know your client’ requirements and do not provide the relevant documentation to Harriet Clapham’s satisfaction and rectify the non-compliance within 14 days of being notified or requested in writing to do so.

10.3 On termination of this Agreement for whatever reason;

(a) the Client shall immediately pay to Harriet Clapham all of Harriet Clapham's outstanding unpaid invoices and interest and, in respect of any Services supplied but for which no invoice has been submitted, Harriet Clapham may submit an invoice, which shall be payable immediately on receipt;

(b) any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect; and

(c) termination or expiry of this Agreement shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.

11. General

11.1 Authority: Each party warrants that it has all necessary rights, authority and power to enter into this Agreement and that it has obtained all necessary approvals to do so.

11.2 Non-Disclosure: Each of the parties undertakes and agrees that the content of this Agreement (including, without limitation the amount of the consideration payable) will not be disclosed to any third party by it other than to its professional advisers or as may be required by law or as may be agreed between the parties or to enforce the terms of this Agreement.

11.3 Assignment and other dealings:

Neither party shall assign, transfer, charge, sub-contract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the other party's prior written consent, such consent not to be unreasonably withheld or delayed.

11.4 Confidentiality:

(a) Each party undertakes that it shall not at any time disclose to any person any confidential information of the other party or of any member of the group to which the other party belongs, except as permitted by clause 11.4(b). For the purposes of this clause, “group” means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

(b) Each party may disclose the other party's confidential information (i) to its employees, officers, representatives, sub-contractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives, sub-contractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.4(b) or as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under this Agreement.

(d) The obligations set out in this clause 11.4 shall remain in force notwithstanding termination of this Agreement.

11.5 Amendments: No amendment or modification to this Agreement will be effective or binding unless it refers to this Agreement and is in writing signed by both parties. The Annex may be updated from time to time by the parties and initialled by duly authorised representatives of the parties.

11.6 Successors: This Agreement shall be binding upon and ensure for the benefit of the successors in title of the parties hereto.

11.7 Set off: Harriet Clapham shall be entitled to set off any amount of liability against any sum that would otherwise be due to the Client.

11.8 Entire agreement:

(a) This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party acknowledges that in entering into this Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

11.9 Survival of terms: No term shall survive expiry or termination of this Agreement unless expressly provided.

11.10 Joint liability: All representations, indemnities, covenants, agreements and obligations given or entered into by the Client (if comprising more than one person) in this Agreement are given or entered into jointly and severally.

11.11 Variation: No variation of this Agreement shall be effective unless it is agreed by the parties in writing.

11.12 Costs: Each party shall pay his own costs of and incidental to the preparation and execution of this Agreement and any further documents necessary to carry it into effect.

11.13 Waiver:

(a) A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

(b) A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

11.14 Severance: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

11.15 Notices:

(a) Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be: delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to any email address used to communicate between the parties at the date of the Engagement Letter or such other email address that a party notifies to the other (in respect of notices sent to Harriet Clapham please use harriet@hc-advisory.art unless advised to the contrary).

(b) A notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by email, on the next Business Day after transmission.

11.16 Third party rights:

This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

11.17 Governing law: This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.

11.18 Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.