TERMS AND CONDITIONS
Definitions and Interpretations:
The following definitions and interpretations apply to these terms.
Definitions:
Business day: any day other than Saturday, Sunday or public holiday when banks in London are open for business;
Charges: fees payable to Diacle
Commencement date: date these terms come into effect according to the Engagement Letter;
Control: the meaning given in section 1124 of the Corporation Tax Act 2010. The expression ‘change of control’ shall be construed accordingly;
you: the person or company engaging Diacle’s services through the Engagement Letter;
Data Protection Legislation: all regulatory requirements in force during the term of services, including Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy, when applicable to the UK;
Deliverables: all deliverables described in the Engagement Letter;
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information including know-how and trade secrets, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Services: services provided by Diacle to you, including deliverables, as described in the Engagement Letter;
Supplier: as described above.
Interpretation:
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 a statute or statutory provision is a reference to it as amended and includes all relevant regulation.
A reference to writing or written includes fax and email.
Services:
Please note Diacle is NOT a tax advisory service, nor an incorporation agent or a law firm. We will project manage your licensing project and the development of the contractual documents you have listed through third party service providers. Our in-house professionals will help you define the legal relationships however the legal documents will have to be signed off by qualified legal practitioners in the respective jurisdictions. Diacle will assist you with legal sign off in accordance with the Disbursement section of these terms.
Excluded areas of work:
It is important to note that Diacle does not advise on tax. If tax advice is required we recommend you seek specialist advice. We would be happy to assist you in finding tax advisors if you so wish. Diacle does not under any circumstances assist in any contentious/litigious matters. Diacle also does not provide general legal services such as employment law or similar.
Supplier’s obligations:
Diacle expects full collaboration from you in matters relating to the services. When accepting the Proposal you shall make sure all instructions are clear and accurate and that Diacle (including its employees, agents, consultants and subcontractors) has access to all materials and information needed in a timely manner.
When you fail to provide information and/or materials for the provision of the services Diacle shall not be liable for any loss caused by such delay. Additionally, you shall reimburse Diacle for any costs or losses arising from your default.
Conflicts:
You as a Client understand and agree that we operate a business model to service all regulated or soon to be regulated blockchain businesses. Therefore there may be certain businesses Diacle will service that are in a similar industry to you. We will be transparent with you where there is a potential conflict (subject to confidentiality restrictions) and obtain your consent to proceed with a new engagement if necessary, such consent by you to not be unreasonably withheld.
Data Protection:
Both parties agree to comply with all applicable requirements of the Data Protection Legislation. Applicable Laws means (for so long as and to the extent that they apply to Diacle) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means any Data Protection Legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
Information will be stored on cloud based systems. Access to information will be restricted to directors/employees and, where necessary for the provision of the services, contractors or other third parties. Data will be used exclusively for the provision of the services. No data will be released to third parties without your consent unless we are complying with a legal requirement to make a disclosure including a court order; in such cases and where relevant we will inform you in advance of making such a disclosure.
Disbursements:
You are solely responsible for disbursements in the provision of the services. Standard charges described in the Engagement Letter are for consultancy time only. For third party services Diacle will present you with quotes in advance and seek your approval before proceeding with engagement. Diacle shall engage the third party when disbursements have been approved and monies are available on account. The charges/fees may vary from the initial estimate depending on the complexity of the document required and the time it takes to be finalized.
Diacle reserves the right NOT to pursue third party services until the fees are secured by you. You may decide to pay the third party directly in which event, Diacle must be notified in writing.
Good practice:
In providing the services Diacle shall act dutifully, in good faith and in accordance with generally accepted standards of good practice. Diacle shall provide and carry out the services with reasonable skill and care and keep you informed of the progress of the services upon your reasonable request or in accordance with the roadmap that may have been provided to you. You shall cooperate with Diacle in relation to the services and provide all necessary information, data and records as may be required from time to time (or which are otherwise relevant) in order to enable or facilitate the provision of the services in accordance with these terms. For more information please refer to the Privacy Policy available on Diacle’s website.
Due diligence:
In order to comply with applicable laws and regulations Diacle may request information in regards to your source of funds. You warrant that the source of funds used to pay for the services are not derived from any illegal source. You accept to provide identification documentation of beneficial owners and/or management and proof of source of funds where applicable. You will cooperate fully in that respect to provide any such documentation and information required on a prompt basis.
Reliance:
You acknowledge that Diacle will be relying on any and all information, data and record provided by you from time to time in connection with the provision of the services. You hereby warrant and confirm that any and all information, data and records provided in the course of this agreement shall be true, complete and accurate and not misleading.
Termination:
Without prejudice to its other rights and remedies, either party (the non-defaulting party) may terminate the Agreement immediately by serving written notice on the other (the defaulting party) if:
(a) The defaulting party is in material breach of any of these terms and fails to remedy such breach (if the same is capable of remedy) within seven (7) days of being required by written notice from the non-defaulting party to so do; or
(b) The defaulting party enters into a deed of arrangement or shall become insolvent or if a petition for bankruptcy is presented or a bankruptcy order is made or if any arrangement is made with the defaulting party's creditors or if the defaulting party is unable to pay its debts as they fall due or any steps are taken in consequence of the defaulting party being unable to pay its debts or if the defaulting party suffers anything similar or analogous to any of the foregoing in consequence of debt in any jurisdiction; or
(c) The defaulting party makes a resolution for its winding up or makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an administration or winding up order is made or an administrator/ receiver is appointed in relation to the defaulting party.
Consequences of Termination:
Upon termination you shall:
Pay all outstanding invoices and interest, when applicable;
Return all Diacle’s materials and information.
Termination shall not affect any rights, remedies, obligations and liabilities of the parties up to the date of termination, including the right to claim damages in respect of any breach of these terms before termination. Terms that shall remain in full force after termination will be clearly marked.
Cap on liability:
Diacle’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance of the services shall be limited to the sums paid by you by way of charges in accordance with these terms.
Limitation of Liability:
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these terms. Diacle shall not be liable for the rejection by a regulator of a licence, permissions or authorisation application. Nothing in these terms limits or excludes liabilities which cannot be legally limited or excluded, including, but not limited to, liability for a) death or personal injury caused by negligence; b) fraud or fraudulent misrepresentation; c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.
The following losses are wholly excluded:
Loss of profits
Loss of sales or business
Loss of agreements or contracts
Loss of anticipated savings
Loss of use or corruption of software, data or information
Loss of or damage to goodwill
Indirect or consequential loss. The following types of loss and specific loss are not excluded:
Sums paid by you to Diacle, in respect of any Services not provided in accordance with the Engagement Letter
Additional costs of procuring and implementing replacements for, or alternatives to, Goods or Services not provided in accordance with the terms
Losses incurred by you arising out of or in connection with any third party claim against you which has been caused by the act or omission of Diacle
If the performance of our obligations under this Agreement is prevented or delayed by any act or omission by you, your agents, subcontractors or employees, we shall have no liability for any costs, charges, damages or losses whatsoever sustained or incurred by you arising (whether directly or indirectly) from such prevention or delay.
Binding contract:
You warrant that you are authorised to enter into a binding contract. If you incorporate a new entity and wish to transfer or assign the services to the new entity you shall notify Diacle in writing.
Public announcements:
No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority, any court or other authority of competent jurisdiction.
Indemnification:
You agree to indemnify and keep indemnified Diacle on a £1 for £1 basis on demand against all and any liabilities, losses, damages, claims, costs and expenses (including but without limitation, professional and legal costs and expenses and loss of opportunity to deploy resources elsewhere) of whatsoever nature incurred or suffered by us as a result of (i) your acts or omissions or defaults and/or (ii) any claim by any third party howsoever arising in connection with the provision of the services and/or any retainer placed by any third party on the services and/or (iii) any of Supplier acts or omissions liaising with a third parties on your behalf or in the course of providing the services.
Confidential information:
Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted as follows: each party may disclose the other party's confidential information (a) to its employees, officers, representatives advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
Force majeure:
Neither party shall be in breach of this agreement nor liable for delay in performing, failure to perform, any of its obligations under this agreement if such delay or failure results 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. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this agreement by giving 7 days written notice to the affected party.
Variation:
Diacle may vary these terms and conditions at their absolute discretion and will notify you of any changes and variations that affect the provision of the services.
Entire agreement:
This agreement together with the accepted Engagement Letter 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. Each party agrees that it 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.
Severability:
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. If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
Third party rights:
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
No Partnership:
Nothing in these terms is intended to, or shall be deemed to establish any partnership or joint venture between any of the parties. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Notices:
Any notice or other communication given to a party under or in connection with these terms 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 or its principal place of business; or sent by fax to its main fax number or sent by email to the address specified in the relevant section of the Engagement Letter. Any notice [or communication] shall be deemed to have been received:
if delivered by hand, on signature of a delivery receipt; and
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; and
if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
This does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
Disputes:
All disputes will be handled in confidence and neither party shall make a public announcement about any dispute. If a dispute arises out of or in connection with these terms or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause: either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute. If the parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure.
Governing law:
The parties agree that any dispute or claim, including non-contractual, arising out of or in connection with these services shall be governed by, and construed in accordance with the laws of England and Wales.
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.
Contact:
If you have any further questions, please feel free to contact the Diacle team by email at info@diacle.com