AP Adviser Ltd

1.  Introduction

a.  Terms – These terms apply to the services you have engaged us to provide under our respective engagement letter, including any schedule. If anything in the terms is inconsistent with the engagement letter, these terms take precedence, unless the engagement letterspecifically amends any of them.

b.  Commencement – The agreement will start on the earlier of (i) the date of the engagement letter; and (ii) the commencement of the services.

2.  Services

a.  Services – We will perform the services described in the engagement letter with reasonable skill and care. You confirm that the scope is sufficient for your purpose. The services (including deliverables) are provided solely for you for the purpose set out in the engagementletter or the relevant schedule.

b.  Deliverables – You may not disclose a deliverable or make the benefit of the services available to anyone else or refer to the contents of a deliverable or the findings of our work, except (i) as stated in the engagement letter, (ii) with our prior written consent on terms to be agreed, (iii) where required by law or regulation, or (iv) to your lawyers or group members as long as you tell them, in advance, that we accept no liability to them and that no onward disclosure may be made.

c.  Liability to you alone – We accept no liability to anyone, other than you, in connection with our services, unless otherwise agreed by us in writing. You agree to reimburse us and our contractors for any liability (including legal costs) that we or they incur in connection with any claim by anyone else in relation to the services.

d.  Changes – Either we or you may request a change to the services or the agreement. A change will be effective only when agreed inwriting.

e. Extent of services – In performing the services, we will not attempt to detect or accept responsibility for detecting fraud or otherwrongdoing.

f.  Oral advice and draft deliverables – We may perform research and analysis for you using publicly available information drawn from a wide range of databases and on-line information services which are available to us, in order to provide you with background information which may be relevant to your assessment of the project.  We will not independently verify, or accept any responsibility or liability for independently verifying, any such information nor do we make any representation as to the accuracy or completeness of the information or any analysis resulting from it.  We accept no liability for any loss or damage which may result from your reliance on any research, analyses or information so supplied.

g.  Anti-Money Laundering - Under the Money Laundering Regulations 2017 we are required to obtain adequate identification evidence from you. Where you are a regulated entity, we consider this requirement to be satisfied in full. However, it is an express condition of our engagement that you remain responsible for obtaining adequate identification of your client, if that client is not a member of your group. We are expressly relying on you having fulfilled your regulatory obligations in this regard, and you undertake to indemnify and hold us harmless on a full indemnity basis for any costs, expenses, losses, damage, claim or liabilities incurred by us directly or indirectly as a result of your failure to comply with the Money Laundering Regulations 2017. You should also note that if we have reason to believe that a transaction is suspicious we have an obligation to report the transaction to the National Crime Agency.

h.  Representations and warranties – The representations, warranties, terms and conditions set out in this letter are the parties' only representations, warranties, terms and conditions relating to the project and our provislon of services in connection with the project and are made expressly in place of and to the exclusion (to the fullest extent permitted by law) of all other representations, warranties, terms and conditions, express or implied, by statute or otherwise, including without limitation any implied warranties, terms or conditions as to performance.

i.  Exclusivity – Unless otherwise stated in our engagement letter or the applicable schedule, you agree to appoint us as your exclusive financial adviser in relation to this project for an initial period of six months beginning on the commencement date. Our appointment will renew automatically, for an additional 6 months, unless written notice is received to terminate.

j.  Access - It is your responsibility to afford us with such access and your employees cooperation as we may reasonably require for the proper performance of any services. You will provide reasonable work space when we are working at your premises and we shall procure that the our employees will comply with all relevant workplace policies (such as health and safety and diversity policies) of yours provided those are made known to them when on the premises.

k.  Materials & Equipment – we are responsible for providing our own reference materials, administrative support, and equipment other than where use of your equipment is required for reasons of security, where it is particularly specialised, or where the Client’s equipment is itself the object of the services.

l.  Authority – We and our employees will not hold itself out as having authority to bind you unless specifically authorised to do so by you.

3.  Our respective responsibilities

a.  Information – In order for us to advise you properly   you will make sure that (i) any information we need is given to us by you, or anyone else working with or for you, and that all information given to us is (a) given promptly, (b) accurate and (c) complete; and (ii) anyassumptions are appropriate. We will not verify any information given to us relating to the services.

b.  Your obligations – Our performance depends on you performing your obligations under the agreement.    We are not liable for any loss arising from you not fulfilling your obligations.  Your obligations include (non-exhaustively):

1. You will provide us with all material information in your possession which is relevant to us for the purposes of the project and you will ensure that information so supplied is true and accurate in all material respects and not misleading, whether by omission or otherwise. 
2. You undertake that you will at all times keep us informed of all significant or material actions, strategies, developments and discussions relevant to the project.

c.  Staff obligations and third party rights - Each party solely retains all the responsibilities and rights of an employer towards and in relation to its own employees. Neither party seconds any of its employees to the other, nor is it the intention of either party to have or create a relationship of employee and employer or agency with the other. Our engagement, and any applicable schedule, shall constitute a contract for services and each party will indemnify the other against any claims brought by or in relation to its own employees, whether such claims relate to employment rights, tax, national insurance, or otherwise and you may at your option satisfy such indemnity (in whole or in part) by way of deduction from any payments due to us. In this term, ‘employees’ includes, so far as the context permits (i) in the case of an LLP or partnership, its partners and employees, and (ii) in the case of a company, its officers and employees.

d.  We warrants that we are not nor will we, prior to the cessation of this Agreement, become a Managed Service Company, within the meaning of section 61B, Income Tax (Earnings and Pensions) Act 2003.

e.  Limitations on our Services and Advice - Our advice will be limited to the matters that we have identified that appear to us to be of significance to you.  Our duties and responsibilities shall be limited to those expressly set out in these terms and without limiting the generality of the foregoing, we shall not:

• Provide you with any accounting or other specialist advice or assume responsibility for or liability in respect of any advice given to us or to you by any other professional adviser;
• Provide advice on any aspects relating to legal and regulatory requirements in or outside the United Kingdom;
• Be responsible for any facts, estimates, opinions, projections, forecasts or other information (howsoever presented) included in any financial model/business plan.  Such facts, estimates, opinions, projections, forecasts or other information (howsoever presented) included in any financial model/business plan shall be the responsibility of you or others as appropriate;
• Express any independent opinion on, or take responsibility for, the achievability of any forecasts or the reasonableness of any assumptions or upon the fairness or accuracy of any financial or other information in relation to you or your customer (as applicable);
• Express any independent opinion on the value of you, your customer, or an affiliated entity;
• Perform financial or other due diligence on you, your customer, or an affiliated entity; or 
• Owe any duty of care to any person other than you.

f.  Our work will be solely for your use and solely for the purpose of the project.

g.  Our services do not include the provision of legal advice, tax or due diligence services.  When reviewing documentation, we can only comment in relation to the services we perform.

h.  We will provide advice, where requested, to assist you to form your own view on the final offer received.    It is your decision alone as to whether or not to proceed with the project.

4.  Fees

a.  Payment for services – You agree to pay us for our services. Any estimate we may give you is not binding.

b.  Basis of fees – Our fees may reflect not only time spent, but also such factors as complexity, urgency, inherent risks, use of techniques, know-how and research together with the level of skills and expertise   required of the personnel needed to perform andreview the services. 

c.  Expenses – You will pay any reasonable expenses that we incur in connection with the services.

d.  Taxes – You will also pay any taxes, including VAT, that are due in relation to our goods and services. You will pay us the full amount of any invoice, regardless of          any deduction that you are required by law to make.

e.  Invoices and payment – We may invoice you on a             monthly basis for retainer-based fees. All invoices are payable 14 days after the date on the invoice. If you do not pay an invoice within 30 days of the date of the invoice, we may charge you interest at the rate set bylaw. Any success fees will be due for payment immediately at completion. Completion will be deemed to have occurred on execution of the facility letter relating to the project.

5.  Confidentiality

a.  Confidential information – We and you agree to use the other’s confidential information only in relation to the services, and not to disclose it, except where required by law or regulation or by a professional body of which we are a member. However, we may give confidential information to contractors as long as they are bound by confidentiality obligations, and to any other of your advisers who are involved in this matter. We may also use confidential information for any lawful business purpose as long as you or others cannot be identified.  In performing this engagement, it may be necessary for us to release certain information confidential to you e.g. business plan/financial model. You agree that any information shared with us may be shared with a lender unless you specifically instruct us not to. In the event you require a confidentiality agreement then we would require you to instruct lawyers to assist you in the drafting of a confidentiality agreement which we will then arrange to have completed by any interested lenders.

b.  Referring to you and the services – We may wish to refer to you and the services we have performed for you when marketing our services. You agree that we may do so, as long as we do not disclose your confidential information.

c.  Performing services for others – You agree that we may perform services for your competitors or other parties whose interests may conflict with yours, as long as we do not disclose your confidential information and we comply with our ethical obligations.  You agree that we do not have a duty to disclose to you, or to make use for your benefit of, any information (even if it relates to you or the project) which comes to our notice which belongs to or is confidential to (i) another Client, or (ii) us and relates to some part of our business other than the provision of our service to you pursuant to the terms of this letter.

d.  Our advice – You agree that any advice given by us or any communication from us to you is provided solely for the purposes of the project and for the use and benefit of you and may not be used or relied on or for any other purpose or (except as otherwise required by law or by applicable regulations or by judicial or regulatory process) disclosed to any other person (other than your professional advisers) without our prior written consent. 

e.  Publicity – In the event that any party associated with the project contacts you with a view to arranging publicity for the project, such as a 'tombstone' placed in the public domain or issued to other parties to the project, AP Adviser Ltd has the right to specify where and how its name should be used and described in such publicity. If we consider it appropriate to seek publicity on our involvement with this project, we will ensure you have the opportunity to review and agree any proposed publicity material prior to its release.

6.  Intellectual property rights

a.  We will own the intellectual property rights in the deliverables and any materials created under the agreement, and you will have a non-exclusive, non- transferable license to use the deliverables for your own internal purposes.

7.  Data protection

a.  Compliance – You and we will comply with applicable data protection legislation in relation to any personal data shared with us under the agreement.

b.  Provision of personal data – You will not provide us with personal data unless the agreement requires the use of it or we request it from you. In respect of any personal data shared with us, we assume you have            necessary authority for us to use and transfer it inaccordance with the agreement, and that data subjects have been given necessary information regarding its use.

c.  Data processing – Where we act as a controller, we may process personal data for the purposes of any of:

(i) providing the services; (ii) administering, managing and developing our business and services; (iii) security, quality and risk management activities; (iv) providing you with information about us and our range of services; and (v) complying with any requirement of law, regulation or a professional body of which we are a member. 

d.  Data transfers – We may transfer personal data shared with us to contractors in relation to any of the purposes set out in clause 7.Some of these recipients may be located outside the UK or the European Union. We will carry out such transfers only where we have a lawful basis to do so, including to a recipient who is: (i) in a country which provides an adequate level of protection for personal data; or (ii) under an agreement which covers the UK or EU requirements governing contracts for the transfer of personal data to processorsoutside the UK or EU as appropriate. Where the services involve a transfer of EU citizens’ personal data to us, and no other appropriate safeguard or exemption applies, those transfers will be carried out in accordance with the controller to controller model contractual clauses in Commission Decision 2004/915/EC, or the controller to processor model contractual clauses in Commission Decision 2010/87/EU, or any successor model contractual clauses that the European Commission issues to replace them, as appropriate. Those clauses will be deemed to form part of the agreement.

e.  Data processing service – where we act as processor in relation to your personal data, we will: (i) process it only on your lawful written instructions; (ii) implement appropriate measures designed to ensure its security, including by imposing confidentiality obligations on relevant personnel; (iii) transfer it only  to sub-processors (as set out in our privacy statement) under a written contract which imposes obligations consistent with those in this clause 7e and you authorise us to transfer your personal data to them; (iv) provide you with reasonable assistance in carrying out any legally required data protection impact assessments, complying with the rights of data subjects and complying with your own data security obligations under applicable data protection legislation; (v) notify you without undue delay after becoming aware of a breach in respect of it; (vi) subject to clause 9a, on your request either return or destroy it when the agreement ends; and (vii) on your written request, provide you with reasonable information necessary to demonstrate our compliance with this clause 7.e, which may include any available third party security audit reports.

8.  Liability

a.  The Company agrees to joint and severally indemnify and hold AP Adviser Ltd, its directors, officers, employees and agents (together “AP Adviser”) harmless from and against any losses, claims, damages or liabilities (or actions, including shareholder actions, in respect thereof) related to or arising out of the engagement or its role in connection herewith, and to reimburse AP Adviser for all expenses (including legal fees) as they are incurred by AP Adviser in connection with investigating, preparing for or defending any such action or claim, whether or not in connection with pending or threatened litigation in which AP Adviser is a party.

b.  You will not, however, be responsible for any claims, liabilities, losses, damages or expenses which are finally judicially determined to have resulted from the bad faith, willful misconduct or gross negligence of AP Adviser. You also agree that AP Adviser shall not have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with the engagement, except for any such liability for losses, claims, damages, liabilities or expenses incurred by the Company that result from the bad faith, willful misconduct or gross negligence of AP Adviser. 

c.  The foregoing indemnity shall be in addition to any rights that AP Adviser may have at common law or otherwise (including but not limited to, any right of contribution).

d.  If we become aware of any claim relevant for the purposes of the foregoing indemnity, we shall properly notify you thereof and shall, subject to being indemnified and secured to our reasonable satisfaction by you against all losses, liabilities, claims, costs, charges and expenses suffered or incurred thereby, take or procure to be taken such action as you may reasonably request to avoid, dispute, resist, appeal, compromise or defend such a claim, and we shall provide you and your legal advisers with such information and documentation relating to such claim as you may reasonably require.

e.  You agree that AP Adviser shall have no liability whatsoever (whether in contract or tort or under statute or otherwise), to you for or in connection with our work other than for Losses suffered by you that are finally determined to have resulted from: knowing disregard of matters of which AP Adviser had actual knowledge; the bad faith or willful default or negligence of AP Adviser; or material breach of these terms. Subject to the previous paragraph, in the circumstances of this engagement, you agree that the liability to you of AP Adviser (in contract or tort or under statute or otherwise) for any Losses suffered by you or any third party arising out of or in connection with our work, however caused, and including any consequential or punitive losses, shall be limited as set out in the following paragraph. You agree that AP Adviser shall not be liable for any Losses, except in the proportion that, and only to the extent that, such Losses are finally determined to have resulted from a breach of contract by or the negligence of AP Adviser and, so far as the law permits, in no event (other than the bad faith or willful default of AP Adviser) shall the liability of AP Adviser, to you or any third party, exceed £10,000.

f.  In terms of business "Losses" shall mean all claims, actions, proceedings, demands, losses, damages, costs and expenses whatsoever.

9.  Materials

a.  Policy – We may retain copies of all materials relevant to the services, including any materials given to us by you or on your behalf. You are solely responsible for retaining any records you need.

b.  Release – We do not release materials which belong to us unless otherwise agreed in writing. We may require a release letter from the recipient as a   condition of disclosure.

10.  Termination

a.  Immediate notice – Either we or you may end the agreement immediately by giving written notice to the other if (i) the other materially breaches it and does not remedy the breach within 14 days, (ii) the other is or appears likely to be unable to pay its debts or becomes insolvent or (iii) the performance of it (including the application of any fee arrangements) may breach a legal or regulatory requirement. 

b.  30 days’ notice – Either we or you may end the agreement with 30 days’ written notice.

c.  Fees payable on termination – You agree to pay us for all services we perform up to the date of termination. Where there is a fixed fee for services, you agree to pay us for the services that we have performed      on the basis of the time spent at our then current hourly rates, up to the amount of the fixed fee. Any contingent element of the fees will remain payable in accordance with the engagement letter. If a contingent fee cannot be paid for regulatory reasons, you agree to pay for the work carried out under the contingent fee arrangement on the basis of time spent, unless alternative arrangements have been agreed.

d.  Enduring Obligations - Termination of our engagement will not affect any legal rights or obligations that may already have accrued or been incurred by either of us or any representations, confirmations or indemnities given by you.

11.  Dispute resolution

a.  Mediation – If a dispute arises, the parties will attempt to resolve it by discussion, negotiation and mediation before a claim isbrought.

b.  Law and jurisdiction – The agreement and any dispute arising from it, whether contractual or non- contractual, will be governed by English law and be subject to the exclusive jurisdiction of the English courts.

c.  Limitation period – Any claims must be brought no later than 2 years after the date the claimant should have been aware of the potential claim and, in any event, no later than 4 years after any alleged breach.

12.  Non-Circumvent

1. You undertake you shall not, and as applicable, procure your employees, directors, officers or customers will not, directly or indirectly initiate, solicit, negotiate, contract or enter into any business transactions, agreements or undertakings with any persons, companies, organisations and/or entities introduced to you by us pursuant to the project, without seeking prior consent from us and with such consent being granted including agreement of fees or any other commercial arrangement, for two (2) years from commencement.

13.  General

a.  Matters beyond reasonable control – No party will be liable to another if it fails to meet its obligations due to matters beyond itsreasonable control.

b.  Entire agreement – The agreement forms the entire          agreement between the parties in relation to the services. It replaces any earlier agreements, representations or discussions. Subject to clause 8, no party is liable to any other party (whether for negligence or otherwise) for a representation that is not in the agreement.

c.  Your actions – Where you consist of more than one       party, an act or omission of one party will be regarded as an act or omission of all.

d.  Assignment – No party may transfer or deal with their rights or obligations under the agreement without prior written consent, but wemay novate the agreement to a transferee of all or part of our business. This novation will take effect on written notice from us so that (i) the transferee will be substituted for us with effect from the date specified in the notice and we will no longer have any rights and obligations under the agreement except in respect of work performed prior to that date and (ii) the combined aggregated liability of us and the transferee will not exceed the limit of our liability before the novation took place. We may also transfer or deal with our rights in any unpaid invoice without notice.

e.  Rights of third parties – Except as set out in clause 2c, a person who is not a party to the agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 (as may be amended) to enforce any term of the agreement. The PCB firms and              individuals referred to in that clause may enforce them in their own right. Their consent is not required to vary or rescind the agreement.

f.  Quality of service – If you are not satisfied with the services, or have suggestions for improvement, please contact either your engagement leader or the executive board member responsible for quality, who is located at our registered office. We will look carefully and promptly at any complaint. 

g.  Vulnerability. If you or others have vulnerabilities, please raise then at the earliest opportunity so that we and the proposed lender can accommodate these in our dealings

14.  Interpretation
In the agreement the following words and expressions have the meanings given to them below:

• contractors – any third-party entity or individual engaged by AP Adviser Ltd
• services – the services set out in the engagement letter, including any schedules
• the agreement – these terms and the engagement   letter to which they relate, including any schedules
• we, us or our – refers to AP Adviser Ltd registered at 28 Church Road, Stanmore, Middlesex, HA7 4XR
• you, your – the party or parties to the agreement  (excluding us)