1. Interpretation

1.1 In these Terms:

‘Totem Sustainability’ means Totem Sustainability Ltd (registered in England, No. 09854221), whose registered office is at 3rd Floor, 86-90 Paul Street, London, England, EC2A 4NE.

‘Customer’ means the person, company, firm or other body named on the Title Sheet for whom Totem Sustainability has agreed to provide the Works in accordance with these Terms.

‘Contract’ means the contract for the provision of the Works, consisting of the Title Sheet, these Terms, the Special Conditions and the Programme of Works, as the same may be amended, modified or supplemented from time to time in accordance with these Terms.

‘Document’ includes, in addition to a document in writing, any map, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images, and any disc, tape or other device embodying any other data.

‘Input Material’ means any Documents or other materials, and any data or other information provided by the Customer relating to the Works.

‘Output Material’ means any Documents or other materials, and any data or other information provided or created by Totem Sustainability relating to the Works, excluding Totem Sustainability's pre-existing methodologies, know-how, templates, tools, systems and other intellectual property.

‘Programme of Works’ means the works to be carried out in connection with the Contract as set out in the relevant Contract Documents. This may also be titled a ‘Proposal’.

‘Special Conditions’ means any special conditions which have been agreed between Totem Sustainability and the Customer as applying to the Contract, in addition to these Terms, as set out in the specific Contract Documents.

‘Subcontractor’ means a suitably qualified and skilled individual or company Totem Sustainability may appoint to carry out work.

‘these Terms’ means these terms and conditions.

‘Title Sheet’ means the front title sheet to the Contract which, among other things, names the Customer.

‘Works’ means the services to be carried out by Totem Sustainability for the Customer pursuant to the Contract, consisting of the parts of the Programme of Works for which Totem Sustainability is responsible as set out in the Contract Documents, together with any modified or additional services as Totem Sustainability may agree in writing.

1.2 The headings in these Terms are for convenience only and shall not affect their interpretation.

1.3 Reference to any statute or statutory provision includes a reference to the statute or statutory provisions as from time to time amended, extended or re-enacted.

2. Commencement and Duration

2.1 Totem Sustainability shall commence the Works on the commencement date set out in the Programme of Works or, where none is specified, at such time as Totem Sustainability and the Customer agree.

2.2 Totem Sustainability shall continue to provide the Works until they are completed in accordance with the Programme of Works, subject to earlier termination of the Contract in accordance with these Terms.

2.3 Unless otherwise expressly agreed in the Contract, dates and times stated for the performance of the Works shall be estimates only and time shall not be of the essence.

3. Provision of the Works

3.1 Totem Sustainability shall provide the Works to the Customer subject to these Terms and the Special Conditions. In the event of any conflict or inconsistency between these Terms, the Special Conditions and/or the Programme of Works, the Special Conditions shall prevail, followed by the Programme of Works and then these Terms. Any changes or additions to the Contract must be agreed in writing by Totem Sustainability and the Customer.

3.2 The Customer shall, at its own expense, supply Totem Sustainability with all necessary Documents or other materials, and all necessary data or other information relating to the Programme of Works, within sufficient time to enable Totem Sustainability to provide the Works in accordance with the Contract. The Customer shall ensure that all Input Material supplied by it is accurate, complete and not misleading.

3.3 The Customer shall, at its own expense, retain duplicate copies of all Input Material and insure against its accidental loss or damage. Totem Sustainability shall have no liability for any loss or damage to Input Material while in its possession, except to the extent caused by Totem Sustainability's negligence or wilful misconduct. All Output Material shall be at the sole risk of the Customer from the time of delivery to, or delivery or holding to the order of, the Customer.

3.4 The Works shall be provided in accordance with the Programme of Works and otherwise as agreed in writing between Totem Sustainability and the Customer from time to time, subject to these Terms.

3.5 Totem Sustainability shall be entitled to rely upon the accuracy and completeness of all Input Material supplied by the Customer and shall not be responsible for any consequences arising from errors, omissions, inaccuracies or other deficiencies in such Input Material.

3.6 Totem Sustainability may make changes to the Programme of Works which are necessary to comply with applicable safety or statutory requirements, or which do not materially affect the nature or quality of the Works.

3.7 Totem Sustainability may appoint a Subcontractor to perform services on its behalf, provided that the Subcontractor is subject to obligations regarding confidentiality and data protection no less onerous than those applicable to Totem Sustainability under the Contract. Totem Sustainability shall remain responsible for the performance of the Works and for the remuneration of any Subcontractor appointed by it.

4. Delivery, Handling and Collection of Materials

4.1 Where the Works require Totem Sustainability to receive, inspect, test, audit or otherwise handle any products, materials or samples supplied by or on behalf of the Customer, the Customer shall be responsible at its own expense for delivering such products, materials or samples to the premises or location specified by Totem Sustainability and, where applicable, for collecting them when notified by Totem Sustainability that they are available for collection.

4.2 The Customer shall ensure that all products, materials and samples supplied to Totem Sustainability are accurately described and are accompanied by all information reasonably required for their safe handling, storage, inspection or testing.

4.3 Where the Customer fails to collect any products, materials or samples within 90 days of being notified that they are available for collection, Totem Sustainability may, without prejudice to any other right or remedy available to it:

4.3.1 store the products, materials or samples until actual collection and charge the Customer for the reasonable costs, including insurance, of such storage; or

4.3.2 where reasonably practicable and lawful, dispose of or sell the products, materials or samples at the best price reasonably obtainable and, after deducting all reasonable storage, disposal and selling expenses, account to the Customer for any balance or charge the Customer for any shortfall.

4.4 Unless otherwise agreed in writing, Totem Sustainability shall not be responsible for deterioration, damage or loss of products, materials or samples arising from their inherent characteristics, inadequate packaging, inaccurate descriptions or instructions, or circumstances outside Totem Sustainability's reasonable control.

5. Charges and Payment

5.1 The Customer shall pay Totem Sustainability the charges set out in the Programme of Works or quotation for the Works or, in the absence of such charges, Totem Sustainability's applicable standard charges.

5.2 Any work requested by the Customer which falls outside the agreed scope of the Works shall constitute additional work. Totem Sustainability shall notify the Customer of any additional charges before undertaking such work wherever reasonably practicable. Additional work shall be charged at the applicable rates or at such other amount as Totem Sustainability and the Customer agree in writing.

5.3 Totem Sustainability may also charge reasonable additional costs arising directly from:

5.3.1 changes to the Customer's instructions or requirements;

5.3.2 delays or failures by the Customer to provide required Input Material, access, approvals or instructions;

5.3.3 material inaccuracies or omissions in Input Material; or

5.3.4 other circumstances attributable to the Customer which result in Totem Sustainability incurring additional work or expense.

5.4 All charges quoted to the Customer are exclusive of Value Added Tax, for which the Customer shall additionally be liable at the applicable rate.

5.5 Totem Sustainability shall be entitled to invoice the Customer following the end of each month in which the Works are provided, or at such other times or upon such milestones as are agreed in the Contract.

5.6 All sums payable to Totem Sustainability shall be paid by the Customer, together with any applicable Value Added Tax and without set-off, counterclaim or other deduction, within 30 days of the date of Totem Sustainability's invoice, unless otherwise agreed in the Contract.

5.7 If payment is not made by the due date, Totem Sustainability shall be entitled to exercise its statutory rights to claim interest and compensation for debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 and the Late Payment of Commercial Debts Regulations 2002.

5.8 Where any undisputed invoice remains unpaid after its due date, Totem Sustainability may suspend performance of the Works until payment is received. Totem Sustainability shall not be liable for any resulting delay or consequences arising from such suspension.

5.9 Totem Sustainability may withhold delivery or release of Output Material where any invoice relating to the relevant Works remains unpaid after its due date.

6. Intellectual Property and Confidentiality

6.1 The property and any copyright or other intellectual property rights in:

6.1.1 any Input Material shall belong to the Customer; and

6.1.2 any Output Material shall, unless otherwise agreed in writing between the Customer and Totem Sustainability, belong to Totem Sustainability.

6.2 Nothing in the Contract shall transfer to the Customer any rights in Totem Sustainability's pre-existing or independently developed methodologies, know-how, templates, tools, systems, processes, models or other intellectual property.

6.3 Subject to payment in full of all sums due under the Contract, Totem Sustainability grants the Customer a non-exclusive, non-transferable licence to use the Output Material for the purposes for which it was prepared and for the Customer's normal internal business purposes. Where the Contract expressly provides for the publication, distribution or external use of particular Output Material, the Customer shall be entitled to use that Output Material for those purposes without requiring further consent from Totem Sustainability.

6.4 The Customer shall not, without the prior written consent of Totem Sustainability, commercially exploit, resell, licence, reproduce or materially adapt Totem Sustainability's methodologies, templates, tools, systems or other underlying intellectual property incorporated into the Output Material, except to the extent necessary to use the Output Material for the purposes permitted under clause 6.3.

6.5 Each party shall keep confidential all confidential information received from the other party in connection with the Contract and shall not disclose such information to any third party except:

6.5.1 to its employees, professional advisers, Subcontractors or other representatives who need to know such information for the purposes of performing or receiving the benefit of the Contract and who are subject to appropriate confidentiality obligations;

6.5.2 where disclosure is required by law, regulation, a court or competent authority; or

6.5.3 with the prior written consent of the other party.

6.6 The obligations of confidentiality in clause 6.5 shall not apply to information which:

6.6.1 was already lawfully in the possession of the receiving party before disclosure;

6.6.2 is independently developed by the receiving party without use of the confidential information;

6.6.3 is or becomes public knowledge other than through a breach of the Contract; or

6.6.4 is lawfully received from a third party without an obligation of confidentiality.

6.7 The confidentiality obligations in this clause shall continue after termination or completion of the Contract for a period of five years, except in respect of information which constitutes a trade secret, for which the obligations shall continue for so long as the information remains a trade secret.

6.8 The Customer warrants that its Input Material and its use by Totem Sustainability for the purposes of providing the Works will not infringe the intellectual property or other rights of any third party and shall indemnify Totem Sustainability against losses, damages, costs, expenses or claims arising from any such infringement.

7. Data Protection

7.1 Each party shall comply with all applicable data protection and privacy legislation in connection with the Contract, including the UK General Data Protection Regulation and the Data Protection Act 2018, where applicable.

7.2 Totem Sustainability shall process personal data in accordance with its Data Protection Policy, as amended from time to time, and any applicable data processing agreement or other arrangements required by applicable data protection legislation.

7.3 Where Totem Sustainability processes personal data on behalf of the Customer as a data processor, the parties shall enter into any additional data processing terms required by applicable law.

7.4 The Customer shall ensure that it has all necessary rights, notices, consents and lawful bases required to provide personal data to Totem Sustainability for the purposes of the Contract.

8. Access and Safety

8.1 Where Totem Sustainability is required to access any property or premises of the Customer for the purposes of carrying out the Works, the Customer shall provide reasonable access and all relevant working facilities required by Totem Sustainability.

8.2 The Customer shall provide a safe working environment and shall comply with all applicable health and safety legislation.

8.3 The Customer shall notify Totem Sustainability in advance of any known hazards, risks or site-specific requirements which may affect the performance of the Works.

9. Warranties and Liability

9.1 Totem Sustainability warrants that the Works shall be provided with reasonable care and skill and, so far as reasonably practicable, in accordance with the Programme of Works.

9.2 Where Totem Sustainability supplies goods or materials provided by a third party, Totem Sustainability shall, so far as reasonably practicable, pass to the Customer the benefit of any warranty or guarantee provided by that third party but gives no separate warranty as to their quality, fitness for purpose or otherwise.

9.3 Totem Sustainability shall not be liable for any loss, damage, cost, expense or claim arising directly from Input Material, instructions or other information supplied by the Customer which is incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or from their late arrival or non-arrival.

9.4 Nothing in these Terms shall exclude or limit Totem Sustainability's liability for:

9.4.1 death or personal injury caused by its negligence;

9.4.2 fraud or fraudulent misrepresentation; or

9.4.3 any liability which cannot lawfully be excluded or limited.

9.5 Subject to clause 9.4, Totem Sustainability shall not be liable for any loss of profit, revenue, business, anticipated savings, goodwill or reputation, or any indirect or consequential loss, damage, cost, expense or claim, whether arising in contract, tort, including negligence, breach of statutory duty or otherwise.

9.6 Subject to clause 9.4, Totem Sustainability's total aggregate liability arising out of or in connection with the Contract shall not exceed the total fees payable under the Contract.

9.7 Totem Sustainability shall maintain professional indemnity insurance appropriate to the nature and scale of its business.

9.8 Except in respect of death or personal injury, the Customer shall look only to Totem Sustainability, and not to any individual carrying out the Works, including any director, employee or Subcontractor of Totem Sustainability, for redress in respect of any breach of the Contract. The Customer agrees not to pursue any claim in contract, tort, including negligence, or for breach of statutory duty against any such individual in connection with the Works.

9.9 Totem Sustainability shall not be liable for any delay or failure to perform its obligations where such delay or failure results from circumstances beyond its reasonable control, including fire, flood, natural disaster, epidemic or pandemic, war, terrorism, civil unrest, industrial dispute, governmental action, interruption of utilities or communications, failure of third-party systems or services, or other circumstances beyond its reasonable control.

10. Customer Delay, Suspension and Termination

10.1 Where Totem Sustainability is prevented or materially delayed from performing the Works by any act or omission of the Customer or its personnel, Totem Sustainability may suspend the affected Works for the period of the delay.

10.2 Totem Sustainability shall notify the Customer of any material act or omission giving rise to a suspension under clause 10.1 as soon as reasonably practicable.

10.3 Totem Sustainability shall be entitled to recover from the Customer any reasonable additional costs arising directly from a delay or suspension caused by the Customer.

10.4 If a delay or suspension caused by the Customer continues for a period which, in Totem Sustainability's reasonable opinion, makes continued performance commercially or practically unreasonable, Totem Sustainability may terminate the Contract by written notice.

10.5 Where the Contract is terminated for any reason before the Works have been completed, the Customer shall pay Totem Sustainability for:

10.5.1 all Works properly performed up to the effective date of termination, calculated in accordance with the charges or payment milestones set out in the Contract;

10.5.2 any work in progress which has been reasonably undertaken prior to termination;

10.5.3 any committed or unavoidable costs reasonably incurred by Totem Sustainability in connection with the Contract; and

10.5.4 any other sums which are properly due to Totem Sustainability under the Contract.

Totem Sustainability shall be entitled to invoice such sums immediately upon termination, and payment shall be due in accordance with clause 5.

10.6 The Contract shall terminate automatically on completion of the Works by Totem Sustainability, without prejudice to any provision intended to operate after termination.

10.7 Either party may terminate the Contract immediately by written notice to the other if the other:

10.7.1 commits a material breach of the Contract which, in the case of a breach capable of remedy, is not remedied within 14 days of receiving written notice identifying the breach and requiring its remedy; or

10.7.2 is unable to pay its debts or enters into compulsory or voluntary liquidation, other than for the purpose of a solvent reconstruction or amalgamation, or has a receiver, manager or administrator appointed, or ceases or threatens to cease carrying on business.

10.8 Termination of the Contract for any reason shall not affect accrued rights and obligations of either party. Clauses which by their nature are intended to survive termination, including clauses relating to intellectual property, confidentiality, data protection, liability and governing law, shall continue in force.

11. Subcontracting and Assignment

11.1 Totem Sustainability may appoint Subcontractors in accordance with clause 3.7.

11.2 Except as expressly permitted by these Terms, neither party may assign, novate or transfer the benefit or burden of the Contract without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

11.3 Totem Sustainability may transfer the Contract to a successor to all or substantially all of its business or assets, provided that the successor assumes the relevant obligations under the Contract.

12. Third Parties

12.1 Except as expressly provided in the Contract, no term of the Contract shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person other than the parties and their permitted successors and assignees.

12.2 Information concerning third parties handling Customer data is detailed in Totem Sustainability's Data Protection Policy.

13. Entire Agreement

13.1 The Contract constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior oral or written agreements, understandings or arrangements relating to that subject matter.

13.2 Each party acknowledges that, in entering into the Contract, it does not rely on any statement, representation or understanding not expressly set out in the Contract, except that nothing in this clause shall limit liability for fraud or fraudulent misrepresentation.

14. Waiver

14.1 No failure or delay by either party in exercising any right or remedy under the Contract shall constitute a waiver of that right or remedy. The rights and remedies provided in these Terms are cumulative and do not exclude any rights or remedies provided by law.

15. Notices

15.1 A notice under the Contract shall be in writing and may be delivered personally, sent by pre-paid first-class post or sent by email to the address specified in the Contract or to any other address notified in accordance with this clause.

15.2 A notice delivered personally shall be deemed to have been received upon delivery.

15.3 A notice sent by first-class post shall be deemed to have been received 48 hours after posting where sent to an address within the United Kingdom.

15.4 A notice sent by email shall be deemed to have been received when the email enters the recipient's information system, provided that no automated message indicating failed delivery is received.

16. Governing Law

16.1 The Contract shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.