Terms & Conditions
1 . LAW
1.1 Hawkins & Associates Limited (‘The Company’) will provide its services to its clients on their appointment in accordance with written and/or verbal instructions given and in accordance with these Terms and Conditions.
1.2 Acceptance of these Terms and Conditions (or performance of the services) shall constitute an Agreement made in England and subject to the laws of England. Disputes arising from the Agreement shall be decided according to English law. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to this subject matter. Each party acknowledges that, in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. No party shall have any claim for innocent or negligent misrepresentation based upon any statement in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
1.3 This Agreement may not be varied unless it is in writing and signed by the parties.
1.4 The rights and remedies of the Company set forth in this Agreement are in addition to all other rights and remedies provided by law.
1.5 Any reference to ‘written’ or ‘in writing’ includes by email.
2 . Fees and PAYMENT
2.1 Fees are calculated based on the nature of the instructions given and a number of factors including, but not exclusively, technical complexity, grade of staff, time spent, risk, complexity, value, and degree of urgency. The Company reserves the right to uplift its hourly rates or apply a fixed charge to reflect these factors. Fees will also include time spent while travelling and whilst carrying out peer review. Charges are also made for expenses incurred by the Company in connection with work carried out on behalf of the client. The Company reserves the right to add a handling charge to the cost of outside services, facilities or equipment purchased directly in connection with the instructions. Alternatively, arrangements can be made for the client to pay directly for such costs.
2.2 The Company reserves the right to add an administrative surcharge where the fees are to be split between two or more parties. Where split between two or more parties a minimum fee applies of £200 regardless of the time spent.
2.3. Where applicable, VAT shall be payable in addition to fees and expenses.
2.4. An invoice will be rendered to the client on submission of a report or other written or verbal technical advice, or where the Company and the client agree one or more interim invoices will be rendered at convenient intervals. The Company may at its discretion require payment on account, or an interim payment, of fees and/or expenses either at the commencement of or during the course of an investigation.
2.5 The Company does not warrant that it will be possible to comply with any estimate given of the likely duration or cost of an investigation, or completion date agreed, but does undertake to keep the client informed before any time or cost estimate is exceeded.
2.6 The Company will make a charge for all disbursements and labour costs arising from the necessary storage of items of evidence relating to an investigation (exhibit). The client will be notified of the charges for storage of exhibits, normally at the time of the first invoice for fees on any case. These costs are charged annually and in advance. At the first and each subsequent invoice for storage charges the client will be given the option to dispose of exhibits. Failure to pay the relevant storage charges will result in disposal of the exhibit. There may be additional charges for the storage and disposal of large, hazardous exhibits or exhibits requiring specialist disposal.
2.7 Unless otherwise agreed all fees, charges, expenses and disbursements (Fees) are payable within 30 days of the invoice date. The Company understands and will execute its statutory right to claim interest and compensation for debt recovery costs under the late payment legislation (Late Payment of Commercial Debt (Interest) Act 1998) if it is not paid according to its credit terms. The Company also reserves the right to suspend the provision of its services for so long as any amount remains outstanding.
2.8 If a deferred fee arrangement has been agreed by the Company with the client, this will be confirmed in writing at the time of instruction by the Company. The deferred fee arrangement is capped at two years (“Initial Cap”) (unless otherwise agreed in writing). If an extension to the Initial Cap is required then this must be requested in writing by the client and agreed by the Company before the end of the Initial Cap. Where an extension to the Initial Cap is agreed, the Client shall pay interest from the end of the two year period at the rate of 2.75% above the Bank of England’s base rate. This will be invoiced annually in advance on the anniversary of the Initial Cap expiring. The client must stay in regular contact (at least every three months) providing the Company with an update on expected timelines for completion of the matter. If these conditions are not met, the deferred fee arrangement will terminate and standard payment terms in Clause 2.7 will apply.
2.9 In the absence of any written agreement to the contrary, the person who instructs the Company (the Appointer) does so as principal and shall be responsible for payment of the Fees and interest (if any), whether or not the Appointer has been placed in funds by their client (or, in legal aid cases, by the Legal Services Commission) and the Appointer shall pay such Fees and interest (if any) in full, notwithstanding any provisions of the Civil Procedure Rules or Criminal Procedure Rules with regard to their amount, recoverability or otherwise, and whether or not the full amount has been allowed in any assessment of the costs of the case.
2.10 Where a client requests the Company to render its invoice to another party, the client or Appointer shall remain liable for all payments so invoiced and interest (if any) until invoice has been settled in full.
2.11 Where joint instructions are received from two or more independent clients or Appointers, then, unless otherwise agreed in writing, all clients or Appointers shall be jointly and severally liable for the Fees and interest (if any) calculated in accordance with clauses 2.1 to 2.10 above
3. Reports
3.1 All reports and information supplied by the Company are intended for the sole use of the client. The client must keep any reports supplied by the Company whole and unaltered and shall not disclose the same to a third party without the Company’s prior written consent. Where a report or information supplied by the Company is disclosed by the client to a third party, the client shall indemnify the Company for all charges arising from all subsequent work carried out by the Company including attendances at Court at the behest of the client or third party.
3.2 For quality control purposes, all reports are subject to a peer review process, to confirm the quality and technical accuracy of our product. For the avoidance of doubt, the author of the report will not be required to alter or include anything in the report which does not accord with their own opinion.
4. ASSIGNMENT
4.1 The benefit of this Agreement may not be assigned by the client without the Company’s previous written consent. When such consent is given, it is conditional upon the client’s assignee accepting the conditions agreed between the client and the Company. The Company reserves the right to amend the terms and conditions as a precondition for providing consent.
5. INTELLECTUAL PROPERTY
5.1 The copyright and all other intellectual property rights of whatever nature in the reports, photographs, videos, computer programs and other material produced or commissioned by the Company is and shall remain the sole and exclusive property of the Company.
6. COMPANY STATUS
6.1 The Company maintains its independent status at all times and an instruction from a client does not prohibit the Company from acting for other parties in subsequent investigations involving that client.
6.2 Where joint instructions are sent to the Company, the instructions must include (as a minimum) the capacity in which the Company is instructed (single joint expert) together with full details of the instructing clients, the services required, time for delivery of the services (including Court deadlines and hearing dates) and whether proceedings have commenced or are contemplated. The Company may decline to accept the joint instructions until the minimum requirements have been met and further clarification has been received. All clients who have instructed the Company as a single joint expert must be copied into all instructions to the Company.
6.3 The client shall promptly inform the Company if any order of the Court is made which affects or may affect the Company and shall provide the Company with a copy of the Court order.
6.4 The client shall promptly inform the Company if the case upon which the Company has been instructed to provide the services has settled or is otherwise discontinued.
7. LIABILITY
7.1 Clause 7 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the client in respect of any breach of the Agreement, any use made by the client of any reports and information supplied by the Company or any part of them, any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
7.2 The Company warrants that it will carry out its duties as instructed by the client with reasonable care and skill but 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.
7.3. Nothing in the Agreement limits or excludes the liability of the Company:-
7.3.1 For death or personal injury resulting from negligence; or
7.3.2 For any damage or liability incurred by the client as a result of fraud or fraudulent misrepresentation by the Company.
7.4 Subject to the provisions of clauses 7. 2 and 7.3:
7.4.1 The Company shall not be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information, any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
7.4.2 The Company shall not be liable for liquidated damages in the event of a breach or delay.
7.4.3 The Company’s total liability in contract, tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance of the Agreement shall be limited to £2,000,000 in respect of any one claim or series of claims.
7.5 The Company shall not be liable to the client or be deemed to be in breach of the Agreement by reason of any delay in performing or failure to perform any of the Company’s obligations under this Agreement if the delay or failure was due to any cause beyond the Company’s reasonable control.
8. TERMINATION
8.1 Either party may (without limiting any other remedy) at any time terminate the Agreement by giving written notice to the other if the other commits any breach of these conditions and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so or if the other goes into liquidation or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed.
8.2 In the event that the Agreement is terminated, the client shall pay for all services carried out up to the date of termination in accordance with Clause 2 above.
9. COMPLAINTS
9.1. In the event of any dissatisfaction with any of the services provided by the Company, the client should first discuss the matter with the case manager responsible for the investigation or, in the event that the matter is not resolved to the satisfaction of the client, any grievance should be addressed to the Marketing Director in writing.
10. DATA PROTECTION
10.1 Both parties will comply with all applicable Data Protection Legislation (the General Data Protection Regulation (EU) 2016/679, as adopted into law of the United Kingdom in the Data Protection Act 2018, and any legislation and/or regulation which amends, replaces, re-enacts, or consolidates them, as may be in force and applicable, from time to time).
10.2 Both parties acknowledge that for the purposes of Data Protection Legislation, the client is the Data Controller and the Company is the Data Processor, both as defined in the Data Protection Legislation.
10.3 The client will ensure it has all the necessary consents and notices in place to lawfully transfer any personal data to the Company.
10.4 The Company will only transfer personal data outside of the United Kingdom or European Economic Area if there are appropriate safeguards in place or an exemption applies.
10.5 Both parties will notify each other as soon as reasonably practicable after becoming aware of any personal data breach.
10.6 In the event that the Company receives a data subject request, it will promptly notify the client and provide the client with reasonable assistance, unless prevented from doing so by law or regulation.
10.7 The Company maintains a database of its clients. In accordance with the Company’s Data Protection Policy, this information is held solely for internal use. A copy of the Company’s Data Protection Policy is available on request.
11. CONFIDENTIALITY
11.1 Both parties agree to keep confidential all information received from the other and not to use it for any purpose outside the scope of this Agreement. This obligation does not apply to information that is publicly known, lawfully obtained from other sources, disclosed with the other party’s prior written approval, or disclosure is required by law, regulation, or legal process, including but not limited to court orders, subpoenas or government investigations.
12. FORCE MAJEURE
12.1 Neither the Company or the client shall be liable for any failure or delay in performing its obligations under this Agreement to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could be foreseen, was unavoidable.
13. GENERAL
13.1 Both parties shall comply with all applicable laws, statutes, regulations and codes of the United Kingdom in the performance of its obligations under this Agreement. This includes, but is not limited to, compliance with the Bribery Act 2010, Proceeds of Crime Act 2002, the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, and the Money Laundering and Terrorist Financing (Amendment) Regulations 2019. Any breach of this clause shall be deemed a material breach of this Agreement, entitling the non-breaching party to terminate this Agreement immediately upon written notice to the breaching party.
13.2 Any notice required or permitted to be given by either party to the other under this Agreement shall be in writing addressed to the Company Secretary at its registered office or such other address as at the relevant time has been notified pursuant to this provision to the party giving the notice.
13.3 No failure or delay by either party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right and no waiver by either party of any breach of the Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.4 If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected.
13.5 This Agreement does not nor is it intended to confer a benefit on a third party within the meaning of the Contracts (Rights of Third Parties) Act 1999.
13.6 The Appointer acknowledges that when acting on behalf of a client it will notify the Company of such arrangement and provide the Company with all claim, policy and reference numbers. The Appointer’s client is also bound by this Agreement. Any actions taken by the Appointer on behalf of their client shall be legally binding on both the Appointer and their client. In the event of any inconsistency or conflict between the terms and conditions of this Agreement and any framework agreement entered into by the Company with the client or the Appointer, the provisions of the framework agreement shall prevail. The framework agreement shall take precedence over any conflicting or inconsistent terms and conditions.
13.7 If any provision of this Agreement, including any clause or sub-clause, is found to be void, invalid, or unenforceable by a Court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect. The parties shall negotiate in good faith to replace the void provision with a valid provision that achieves the same or similar purpose.
