TERMS OF BUSINESS
This document, together with the Nifty Chef Consultancy Agreement form the contract (the “Contract”) between you and Nifty Chef Consultancy Est (referred to as “We”, “Us” and “Our”).
- Services
1.1 We will provide the Scope of Services described in the Nifty Chef Consultancy Agreement.
1.2 Our work will be based solely on the information provided by you or any third party nominated by you, the circumstances made known to us and the assumptions set out in our correspondence. You acknowledge that:
(1) we rely on you bringing to our attention as soon as possible any changes in the information as originally presented as it may impact on our advice.
(2) information made available by you, or by others on your behalf, to, or which is otherwise known by, partners or staff of us who are not engaged in the performance of the services shall not be deemed to have been made available to the individuals within our firm who are engaged in the provision of the services.
(3) you will provide in a timely fashion all information and documents reasonably required to enable us to provide the services. Unless otherwise stated in the Consultancy Agreement, we will not independently verify the accuracy of such information and documents and we will not be liable for any loss or damage arising from any inaccuracy or other defect in any information or documents supplied by you.
1.3 Changes in the law and in interpretations may take place before our advice is acted upon or may be retrospective in effect. Unless specifically stated in the Consultancy Agreement, we accept no responsibility to inform you of changes in the law or interpretations affecting advice previously given by us.
1.4 We reserve the right to subcontract all or part of the services to (1) any entity (whether or not incorporated) which carries on business under a name which includes all or part of our name or is otherwise within (or associated or connected with an entity within) or is a correspondent firm of the worldwide network of Nifty Chef and their partners and employees (the “Affiliate”) or (2) any appropriate third party specialist, as we deem appropriate. Subject to any contrary provision in the Contract, we will remain liable to you for any of the services that are provided by our subcontractors. Where you are using third parties, you will be responsible for the management of those third parties and the quality of their input and work.
1.5 Timetable. We will use our best endeavors to carry out our obligations in accordance with the timetable set out in the Consultancy Agreement, or as otherwise agreed. However, unless both of us specifically agree otherwise in writing, the dates contained in the Consultancy Agreement are indicative dates intended for planning and estimating purposes only and are not contractually binding.
1.6 Changes to services. Either of us may request changes to the services as set out in the Consultancy Agreement or changes to any other aspect of the Terms of Business but no such changes take effect unless agreed in writing. Both of us agree to work together to enable both parties to assess the impact of any requested changes on the cost, timing or any other aspect of the Services.
- Reporting
2.1 We will report to you in accordance with the terms set out in the Consultancy Agreement. We assume no responsibility of any kind in any circumstances to any person other than you in relation to any Deliverables or to the services and we will not be responsible for any claim made against us by any person (other than you) that may suffer loss as a result of having placed reliance on the Deliverable(s) or the services or our provision thereof.
2.2 You must not provide the Deliverables or copies of them to any third party without first obtaining our written consent. Our consent for you to provide copies of any such Deliverables to third parties will only be provided on the terms we deem appropriate which will include that we accept no duty or responsibility to any other party who may seek to rely on our Deliverables. Appropriate releases from third parties will also be required.
- Intellectual Property Rights
3.1 Intellectual property rights in all documentation, menu, recipes, systems, materials, methodologies and processes brought to the assignment or created in the course of the assignment shall remain and be vested in us.
3.2 You must not use our name or logo on any website or in any public statement without first obtaining our written consent.
- Fees and Payment
4.1 How fees will be calculated. Fees for the services will be charged on the basis set out in the Consultancy Agreement. Where the letter does not state the basis on which our fees will be charged, our fees will reflect time spent and such other factors as complexity, monetary values involved, specialist input required and the urgency and inherent risks of the matter.
4.2 Fee estimates. Any fee estimate given by us, whether for planning or other purpose, will be given in good faith but will be subject to the stated caveats and assumptions and to any factors outside our control. We will advise you beforehand if it reasonably becomes apparent that the estimate is likely to be materially exceeded.
4.3 Expenses. Unless otherwise agreed, we will charge you for out of pocket expenses such as reasonable transportation, subsistence, ingredients, and other expenses incurred in connection with the services. Any special expense arrangements will be agreed and set out in the Consultancy Agreement.
4.4 Taxes. You will be responsible for paying any taxes (as applicable) in connection with the provision of the services under this Consultancy Agreement at the rate in force at the date the liability arises.
4.5 Payment of invoices. We will invoice you on a periodic basis unless otherwise set out in the Consultancy Agreement. All invoices will be due for payment upon your receipt thereof, unless otherwise provided in the Consultancy Agreement. We retain the right to suspend the provision of services and to charge 24% per annum late fee on accounts that are overdue by more than one month until such outstanding amounts are fully paid. We shall also be entitled to recover from you our reasonable costs (including, but not limited to, legal costs and disbursements on a full indemnity basis) in collecting any outstanding amounts from you.
4.6 Subscription-Based Payment. Upon your enrolment to our subscription-based payment facility, you will be charged a subscription surcharge of AED 200 per month.
4.7 Refunds. Services already performed are not subject to any refund. We reserve the right to charge an administrative fee for cancellation or postponement of services to cover our costs incurred. Client to put policy on refund
- Term and Termination
5.1 Duration of contract. This Contract will apply from the commencement date stated in the Consultancy Agreement, if any, or where no commencement date is specified, from the date of acceptance of the Contract as specified in the Consultancy Agreement. This Contract will continue until the services have been provided as stated in the Consultancy Agreement, or the Contract is terminated earlier in accordance with the terms set out below.
5.2 Termination. This Contract may be terminated by either party by written notice if either party fails to remedy a material breach of these Terms of Business. Otherwise the contract may be terminated by either party provided 30 days written notice of such termination is given. Where the engagement is terminated, you will pay us for all services provided up to the date of termination.
- Confidentiality and Disclosures
6.1 Client confidentiality. To afford the maximum protection to your confidential interests, all our employees are covered by an employment contract, which contains a clause strictly forbidding the unauthorized disclosure of information.
6.2 Protection of confidential information. All data relating specifically to the Client’s business and any other information which reasonably should be understood to be confidential to the Client are confidential information of the Client (“Confidential Information”). We will use Confidential Information only in relation to the provision of the services provided by us to the Client and will not disclose such Confidential Information to any third party without the Client’s prior written consent. In the event that the purpose of disclosure is not covered by the exceptions, we will undertake to obtain the required consent from the appropriate government office before complying with the same, but assume no responsibility in the event that the authorization is not granted at all or obtained within the required period of time.
6.3 Scope of confidentiality obligations. We will not be obligated to treat as confidential any information disclosed by the Client which: (i) is rightfully known to us prior to its disclosure by the Client; (ii) is released by the Client to any other person or entity without restriction; (iii) is independently developed by us without any use of or reliance on Confidential Information; (iv) is in or enters the public domain without breach of this confidentiality obligation; (v) or may be lawfully obtained by us from any third party.
6.4 Data protection. The Client agrees that we may collect, store, disclose and transfer internationally personal data, including sensitive Client’s personal data or those relating to the Client’s employees, contractors, clients and other individuals, for the same purposes as described in relation to disclosures of Confidential Information above. When the Client provides personal data to us about its employees, contractors, clients and other individuals, the Client confirms that it has authority to act as their agent.
6.5 Monitoring of communications. To the extent permitted by applicable law and rules, the Client agrees that we may monitor electronic communications for the purposes of ensuring compliance with our legal and regulatory obligations and internal policies.
6.6 Other disclosure. Notwithstanding the above, we may disclose information to any other affiliate or use it for internal quality reviews.
6.7 Subject to 6.1 above, we may cite the performance of our services to our clients and prospective clients, or include a reference in other electronic or printed marketing materials or publications as an indication of our experience.
- Liability
7.1 We will use reasonable skill and care in the provision of the services.
7.2 We will accept liability without limit for any other liability which by law we cannot exclude. Provided that nothing in this clause.in any way confers on you or any other person greater rights than you or any other person would otherwise have at law.
7.3 To the extent permitted by law, we exclude all warranties, conditions or terms, other than those expressly set out in these terms and conditions including, but not limited to, all warranties, conditions or terms implied in fact or by law. In no event will we be liable for any loss, damage, cost or expense arising in any way, directly or indirectly, from the provision of our services.
7.4 Where we are not entitled to exclude a warranty, condition or term implied in fact or by law, and to the extent permitted by law, our liability for breach of any such warranty, condition or term is limited to:
(1) in the case of the services, at our option, either the resupply of the services or payment of the cost of having the services resupplied; and
(2) in the case of documentary Deliverables or materials, at our option, either the resupply of the deliverables or materials or payment of the cost of having the Deliverables or materials resupplied.
7.5 In all instances, other than as set out in clauses 7.2 and 7.4, the total of our aggregate liability to you for loss or damage (including indirect and consequential loss or damage) caused by, or resulting from, or in relation to, the services, including whether arising from breach of contract, negligence, or any other tort, in equity or otherwise, and whether we were advised of the possibility of such loss or damage, is limited to the fees payable to us by you for the portion of the services or work products giving rise to the liability.
7.6 The remedies available and the liability we accept under this clause are, to the extent permissible by law, the only remedies and the absolute limit of our liability arising under or in connection with this Contract. To the maximum extent permissible by law, all other liability is expressly excluded in particular, but without limitation, and subject to any valid liability under clauses 7.2, 7.4 and 7.5, liability for failure to realize anticipated savings or benefits.
7.7 You acknowledge and agree that in relation to the services and this Contract our relationship is solely with you. To give effect to the liability cap in clause 7.5 (“the said liability cap”) you will procure that no company or third party in which you have an interest, whether directly or indirectly, and which forms part of any group of companies (“the Group”) to which you belong, brings or enforces any claim against anyone or more of us in respect of any liability subject to the said liability cap to the extent that the relevant claim or enforcement of claim (when taken with other such claims and enforcements and other amounts subject to the said liability cap which are or have been paid or payable) would cause the said liability cap to be exceeded. You will indemnify each of us to the extent that our liability to members of the Group, both while they are members of the Group and thereafter, in total exceeds the said liability cap. This indemnity shall extend to legal and other costs and expenses, internal and external, incurred by any of us in respect of claims or enforcements that would cause the said liability cap to be exceeded.
7.8 You agree that if you make any claim against us for loss as a result of a breach of our contract, and that loss is contributed to by your own actions, then liability for your loss will be apportioned as is appropriate having regard to the respective responsibility for the loss, and the amount you may recover from us will be reduced by the extent of your contribution to that loss.
7.9 You agree that any such liability for any loss, damage, costs and expenses suffered or incurred by you and your employees/associates arising as a result of the provision of the services would be the liability of us only and you undertake that you will, and you will procure that your employees/associates will, in no circumstances bring any action in respect of any such loss, damage, costs or expenses, whether arising in contract, tort or otherwise, against any of our partners, employees, agents or subcontractors (including affiliates) or any of their respective employees, partners, agents or subcontractors.
7.10 You agree to indemnify and hold us harmless, our agents and subcontractors from and against any and all third-party claims, suits and actions and all associated damages, settlements, losses, liabilities, cost and expenses, arising from or relating to services and/or Deliverables under this Contract, except to the extent finally determined to have resulted from our fraud or dishonesty.
7.11 It is understood that you will maintain an all risk insurance relative to the operations of your business.
- Communications
8.1 During our performance of the services we may wish to send messages and/or documents to each other by e-mail. As email carries with it the possibility of inadvertent misdirection, or non-delivery of confidential material, unless you notify us otherwise you consent to the use of email in accordance with clause 8.2.
8.2 Where messages are sent by e-mail, we will adopt the following procedures and require you to do likewise:
(1) If sending a confidential e-mail message, the sender will indicate if a response is not wanted in an electronic form. All risks connected with sending by email commercially sensitive information relating to your business are borne by you and are not our responsibility. If you do not accept this risk, you should notify us in writing that e-mail is not an acceptable means of communication.
(2) Both parties will carry out procedures to protect integrity of data, in particular, it is the recipient’s responsibility to carry out a virus check on any attachments before launching any documents, whether received on disk or otherwise.
- Documents
9.1 Ownership of documents. Files and documents (including our working papers), created during the provision of the services, belong to us and will remain under our power and control. It is not our practice to release or grant access to such papers other than in the context of due diligence investigations where we have received letters, in a form suitable to us, releasing us from liability.
9.2 It is our policy to destroy documents belonging to us after they are more than five years old.
9.3 Your acceptance of these terms includes your consent for us to destroy any documents that strictly belong to you which have been filed among our own papers.
- Exclusivity
We will not be prevented or restricted from anything in this Contract from providing services for other clients.
- General
11.1 Entire agreement. This Contract, comprising the Consultancy Agreement and Terms of Business, forms the entire agreement between us relating to the services. It replaces and supersedes any previous proposals, correspondence, understandings or other communications, whether written or oral.
11.2 Severability. If any clause, or part thereof, of this Contract, is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable, then such part will be severed from the remainder of this Contract, which will continue to be valid and enforceable to the fullest extent permitted by law.
11.3 Representations. You acknowledge that we have made no warranties or representations in relation to this assignment other than those set out in these Terms of Business and the Consultancy Agreement.
11.4 Assignment. Neither party may, nor have the power to, assign or otherwise deal with its rights or obligations under this Contract without the prior written consent of the other party, except that we may, without consent, assign or novate this Contract to a successor of that part of our business to which this Contract relates.
11.5 Consultancy Agreement to take precedence. In the event of any conflict between these Terms of Business and the Consultancy Agreement, the Consultancy Agreement will take precedence.
11.6 Force Majeure. Neither of us will be liable to each other for any delay or failure to fulfil their obligation under the Contract to the extent that such delay or failure arises from causes beyond their reasonable control, including, but not limited to, fire, acts of God, acts or regulations of any governmental or supranational authority, war, terrorist activities, riot, strike, lockouts and industrial disputes.
- Governing law
12.1 The validity, interpretation and implementation of this Contract shall be governed by the laws of Dubai, United Arab Emirates.
12.2 Any dispute arising in connection with this Contract shall be resolved through arbitration pursuant to the Dubai International Arbitration Centre rules. The place of arbitration shall be in Dubai, United Arab Emirates and the language of the proceedings shall be English. We shall not be precluded to seek court relief in your place of business to enforce collection of our fees.