1 Appointment

TMCM is hereby authorised and given binding authority by the Client to be the non-exclusive provider of the Services on behalf of the Client in accordance with these terms.

2 Provision of the Services

2.1 Where applicable to the type of Services provided, and subject to the prior approval of the client, TMCM shall have the right to:

• (i) properly and necessarily instruct lawyers to act on any matter and throughout shall have due regard to the cost involved in relation to the anticipated value of the matter and will monitor and control those third Party services and fees;
• (ii) have the right to properly and necessarily instruct suitable experts in order to obtain relevant evidence or opinion on any relevant matter(s) and throughout shall have due regard to the cost involved in relation to the anticipated value of the claim and will monitor and control those third party services and fees;
• (iii) have the right to make settlement (whether full and final or interim) or offer compensation in respect of a relevant matter.

2.2 TMCM may make payments on any of the Client's matter including payments of lawyers and experts promptly and when properly due and shall do so with a clear audit trail in each case.
2.3 All payments made by TMCM in accordance with clause 2.2 will be reimbursed by the Client.

3 Client's Obligations

3.1 The Client shall:

• (i) co-operate with TMCM in all matters relating to the Services; and
• (ii) provide TMCM, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, all information, data and other Documents as required by Thomas Miller in the provision of the Services.

3.2 If TMCM's performance of its obligations under these terms is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, TMCM shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
3.3 The Client shall be liable to pay to TMCM, on demand, all reasonable costs, charges or losses sustained or incurred by TMCM (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to TMCM confirming such costs, charges and losses to the Client in writing.
3.4 The Client shall not, without the prior written consent of TMCM, at any time from the date of the appointment of TMCM to 12 months after the date the last Services were performed by TMCM, solicit or entice away from TMCM or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of TMCM in the provision of the Services.

4 Fees

4.1 The fees payable by the Client to TMCM (the "Fees") shall be calculated at such amounts as are agreed and set out in writing between the Client and TMCM from time to time. In the absence of a written agreement the standard TMCM hourly rate of £200 (two hundred pounds) applies to the provision of all Services.
4.2 The hourly fee rates referred to in clause 4.1 above, exclude:

• (i) lawyers and expert fees and disbursements incurred by TMCM in accordance with clause 5.1 above;
• (ii) VAT, which TMCM will add to its invoices at the appropriate rate;
• (iii) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by TMCM in connection with the Services.
  4.3 Such expenses, materials costs and disbursements shall be invoiced by TMCM to the Client at cost.

4.4 TMCM shall, on a monthly basis, raise and submit to the Client a detailed invoice for Fees and third party services properly incurred in carrying out the Services during the preceding month and the Client shall pay, in cleared funds, all such invoices within 30 days of the date of the invoice.

5 Indemnity

The Client shall indemnify and hold harmless TMCM against any loss or damage or expense arising out of any negligence or error or omission or any breach of these terms by the Client or any past or present director, employee, servant or agent or arising out of any incorrect or inaccurate information given by the Client to TMCM in relation to the Services.

6 Liability of TMCM

6.1 This clause 6 sets out the entire financial liability of TMCM (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Client in respect of any breach of these terms and any representation, statement or tortious act or omission (including negligence) arising under or in connection with these terms.
6.2 Nothing in these terms limits or excludes the liability of TMCM:

• (i) for death or personal injury resulting from negligence; or
• (ii) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by TMCM.

6.3 Except as provided in clause 6.2 Thomas Miller will be under no liability to the Client whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any indirect or consequential loss including without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with any breach by TMCM of any of the express or implied terms of these terms of business.
6.4 Except as provided in clause 6.2 TMCM's aggregate liability under these terms whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct loss howsoever caused (other than for death or personal injury caused by TMCM and its employees' or agents' negligence in any period of 12 consecutive calendar months ending on the date on which any such liability arose shall not exceed the total Fees calculated in accordance with clause 4.1 for such relevant 12 month period or if the liability arises before the first anniversary of the Commencement Date, an amount to be calculated pro rata.

7 Termination

7.1 TMCM may, by written notice served on the Client, cease to provide the Services immediately if the Client:

• (i) either is in material breach of any of these terms and such breach is incapable of remedy or, where the breach is capable of remedy, the Client fails to remedy such breach within 30 days after service of a written notice from TMCM specifying the breach and requiring it to be remedied. For the avoidance of doubt, breach by the Client of clause 4.3 that is not remedied within 30 days shall constitute a material breach incapable of remedy for the purposes of this clause; or
• (ii) becomes bankrupt, insolvent, makes any composition with its creditors or has a receiver or administrator appointed; has any distraint, execution or other process levied or enforced on any of its property; ceases to trade; has a change in its management and/ or control; or the equivalent of any of the previous events occur to the Client under the jurisdiction to which the Client is subject.

8 Consequences of Termination

In the event that TMCM ceases to provide the Services to the Client either in accordance with clause 7 above or by agreement with the Client:
8.1 TMCM shall immediately cease to act in respect of the Client's matters and shall notify to the insured in respect of each of the Client's matters that TMCM is no longer providing the Services.
8.2 TMCM shall submit invoices to the Client for the Fees due to be paid by the Client on all of the Client's matters subsisting on the date TMCM ceased to provide the Services. All matters that have not been closed by TMCM shall be held to the order of the Client at a charge of £1.00 per claim per day to cover TMCM's storage costs. TMCM may assert any lien against the Client or the insured in relation to any matter on any of the Client's claims for which Fees have not been paid.
8.3 The Client shall co-operate fully with and assist TMCM in good faith.

9 Dispute Resolution

9.1 If a dispute arises between the Parties either Party may refer the matter for determination in accordance with the procedure set out in this clause 9.
9.2 A dispute referred for determination under this clause shall be resolved by referral in the first instance to a Director of the Client and a Director of TMCM.
9.3 If any dispute is not resolved within 21 days of its referral pursuant to clause 9.2 then either Party may refer it for determination in accordance with clause 9.4.
9.4 If there is any dispute which is not resolved pursuant to the procedure referred to above either Party may refer such dispute for determination by an independent person agreed between the Parties or in the absence of such agreement within 7 days by a person appointed for this purpose by the Chief Executive of the Association of British Insurers on the application of either Party. Such person shall act as an expert and not as an arbitrator and make such determination within 28 days of his appointment and his determination shall be final and binding on the Parties.
9.5 The fees of such expert shall be paid as he may direct or in the absence of any direction such fees shall be paid equally by the Parties.
9.6 Neither Party shall be prevented from, or delayed in, seeking orders for specific performance or interlocutor or final injunctive relief on an ex parte basis or otherwise as a result of the terms of this clause.

10 Force Majeure

10.1 TMCM will not be liable to the Client for any failure or delay or for the consequences of any failure or delay in performance of the Services if it is due to force majeure.
10.2 For the purposes of these terms of business, force majeure shall mean any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including, strikes, lockouts or other industrial disputes (in each case whether involving the workforce of the party so prevented or any other party), protests, act of God, war or national emergency, an act of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, explosion, flood, storm, epidemic or default or delays of sub-contractors.

11 General

11.1 These terms constitute the entire agreement between the parties in relation to its subject matter and no addition to or variation of it shall have any effect unless in writing and signed, by a person duly authorised, on behalf of each of the parties.
11.2 TMCM may assign or delegate all or part of its rights and obligations under these terms without prior notice, action or consent of the Client. These terms shall not, however, be assigned and the obligations hereunder shall not be delegated by the Client without the prior express written consent of TMCM, which consent may be withheld for any reason.
11.3 The failure of a Party to exercise or enforce any right under these terms shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
11.4 These terms shall be governed by and construed in accordance with English law.
11.5 The Parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales for the purposes of hearing and determining any suit, action or proceedings which may arise out of or in connection with these terms.
11.6 A person who is not a Party to this contract has no right under the Contract (Rights of Third Parties) Act 1999 (as may be amended or re-enacted) to enforce any term of this contract but this does not affect any right or remedy of a third Party which exists or is available apart from that Act.

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