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TERMS OF BUSINESS

Last updated 3 May 2022.

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These terms of business ("Terms of Business") are supplemental to an engagement letter ("Engagement Letter") that may be signed between Actual Assist and a client ("Client"). The Terms of Business and the Engagement Letter shall constitute the entire agreement between Actual Assist and the Client in respect of the services (“Agreement”).

 

Communication
We shall communicate with the Client (and with relevant third parties) and take instructions from the Client primarily by phone, email and any other form of internet communication. Other means of communication may be agreed from time to time.


On-site work may be performed in extraordinary circumstances only where previously agreed.


Materials and Information
The Client will provide all content, outlines, photos, product images, etc., necessary for any specific projects. Source material must be clear and legible. The Client is responsible for furnishing all pertinent information, and for furnishing accurate, truthful and complete information necessary for the Virtual Assistant to perform or complete the services. The Client ensures that the necessary permissions to use provided materials have been obtained.


Confidentiality
We may obtain access to information related to the Client’s business (including trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties provided to the Client in confidence) that the Client considers to be confidential or proprietary or the Client has a duty to treat as confidential (“Confidential Information”). We will, unless having the written consent of the Client, (i) hold all Confidential Information in strict trust and confidence; (ii) not use or permit others to use Confidential Information in any manner or for any purpose not expressly permitted or required by the Agreement; and (iii) not disclose or permit others to disclose any Confidential Information to any third party without obtaining the Client’s express prior written consent on a case-by-case basis.


Exceptions

Our obligations with respect to any portion of the Client Information as set forth above shall not apply when we can document that (i) it was in the public domain at the time it was communicated to us by the Client; (ii) it entered the public domain subsequent to the time it was communicated to us by the Client through no fault of our own; (iii) it was in our possession free of any obligation of confidence at the time it was communicated to us by the Client; or (iv) it was rightfully communicated to us free of any obligation of confidence subsequent to the time it was communicated to us by the Client.


Passwords

Should the Client decide to grant us access to its business and/or personal accounts, the Client does so entirely at their own risk, and the Client is fully responsible for ensuring the security of the Client’s data. The Client will be solely responsible for any loss, liability or violations that might occur as a result of such access as long as any such loss can be directly tied to the work carried out under the Agreement.


Intellectual Property
All deliverables, ideas, inventions, improvements, methods, processes, works of authorship and other forms of intellectual property that we conceive, reduce to practice or develop during the term of the Agreement, alone or in conjunction with others, in connection with performance of the services, including designs, data, software code, ideas, inventions, know-how, materials, marks, methods, procedures, tools, interfaces, and other forms of technology as well as any intellectual property rights of any kind therein (collectively, the “Work Product”), will be the sole and exclusive property of the Client. We hereby irrevocably assign to the Client all right, title and interest worldwide in and to the Work Product and all intellectual property rights therein.


Work Product Conformity
We further warrant that the Work Product will fully conform to the specifications, requirements and other terms set forth in the Agreement (the “Specifications”). If the Client determines in its sole discretion that the Work Product does not conform to the Specifications, the Client shall inform us, within 3 working days of the work product delivery, of such non-conformity and we will repair or replace the Work Product without extra charge. If the Client does not voice any concerns within 3 working days, we are not obligated to do any remedial work free of charge. If the Client’s request goes beyond the Specifications, the request will not be considered a remedial request and we will inform and bill the Client with regards to the requested changes.


Independent Contractor Relationship
Our relationship to the Client shall be that of an independent contractor. Nothing in the Agreement shall be construed to create any partnership, joint venture, employer-employee or agency relationship between the Client and us. We shall not represent to any third party that any such relationship exists. The contractual relationship shall be non-exclusive. We shall be free to work with other companies so long as such work does not present a conflict of interest with regards to the Agreement or results in the disclosure of Confidential Information.


Subcontracting
In the performance of its obligations hereunder, we shall have the right, in our sole discretion, to assign, transfer, charge, delegate or subcontract our rights and responsibilities to any third party, provided that we shall remain responsible for the performance of any such third party. The Client shall not, without our prior written consent, assign or transfer in any other manner with all or any of the Client’s rights or obligations under the Agreement.


GDPR Compliance
Both parties hereby ensure that they are in full compliance with their respective obligations under the General Data Protection Regulation, (GDPR) (EU) 2016/679. Each party will, if applicable, notify the other party in a timely manner in the event of a data breach that involves the other party’s data.


Insurance
We maintain a professional indemnity insurance policy. An insurance certificate is available on request.

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LIMITATION OF LIABILITY

IN NO EVENT WILL WE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THE AGREEMENT. OUR TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES OWED BY THE CLIENT TO US FOR SERVICES PERFORMED UNDER THE AGREEMENT DURING THE 12 MONTHS PRECEDING ANY SETTLEMENT OR ADJUDICATION OF ANY CLAIM.

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WARRANTIES AND REPRESENTATIONS
EACH PARTY HEREBY WARRANTS AND REPRESENTS THAT SUCH PARTY IS FREE TO ENTER INTO THE AGREEMENT, AND THAT THE AGREEMENT DOES NOT VIOLATE THE TERMS OF ANY AGREEMENT BETWEEN SUCH PARTY AND ANY THIRD PARTY.


Force Majeure
We shall not be considered in breach of the Agreement to the extent that performance of the obligations outlined herein is prevented by an event of force majeure, including but not limited to:

  • natural disasters (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods);

  • war, hostilities (whether war be declared or not), invasion, acts of foreign enemies, mobilisation, requisition, or embargo;

  • rebellion, revolution, insurrection, or military or usurped power, or civil war;

  • contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly; and

  • riot, commotion, strikes, go slows, lock outs or disorder.

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Entire Agreement
The Agreement sets out the entire agreement and understanding between the parties and supersedes any prior agreement or discussions. Each party acknowledges that it has not been induced to enter into the Agreement by any representation or warranty other than the warranty contained in the Agreement and that it shall have no remedy in respect of any other such representation or warranty except in the case of fraud.


Severability
If one or more provisions of the Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from the Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.


Counterparts and Execution
The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.


The Agreement may be executed by electronic signature.


Law and Jurisdiction
The terms of the Agreement are governed by and construed in accordance with Scots law. We and the Client agree to submit to the non-exclusive jurisdiction of the Scottish courts.

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