1. Definitions
Services The agreed services to be performed by the Consultant as set out in the Schedule to this Agreement, such Services to be provided using reasonable skill and care.
Termination Date The date on which the Consultant’s engagement hereunder is terminated.
Intellectual Property Rights: Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Data Protection Legislation Means the Data Protection Act 2018 which incorporates the UK GDPR.
2. Engagement
Detailed within the Sales Proposal
3. Services
3.1 During his or her engagement, the Consultant shall devote such of his or her time, attention and skill to the business of the Business as shall be necessary for the proper performance of the Services
3.2 The Consultant agrees to undertake the Consultancy Services in an expert and diligent manner and to provide his or her services to the best of his or her financial, commercial, technical and creative skill.
3.3 The Consultant shall keep the Business informed of progress on the project(s) in which the Consultant is engaged and shall produce written reports on the same from time to time when so requested by the Business. While the Consultant’s method of working is entirely his or her own and he or she is not subject to the control of the Business, he or she shall nevertheless promptly comply with this and any other reasonable requests of the Business.
3.4 The Consultant warrants to the Business that by entering into this Agreement he or she will not be in breach of any obligations to or agreements with any third party.
3.5 The Consultant will not during his or her appointment undertake any additional activities or accept other engagements or employments which lead or might lead to any conflict of interest between the Consultant and the best interests of the Business.
3.6 If the Consultant is unable at any time to perform the Services, the Consultant may delegate performance of the Services to such suitably qualified and experienced personnel as he or she may from time to time deem appropriate. The Consultant must notify the Business if this power to delegate is exercised and provide details of the name of the delegate/substitute. The Consultant will be responsible for remunerating the delegate/substitute. If a delegate/substitute is appointed, the provisions relating to sub-processor obligations under Clause 10 will apply.
3.7 If the Consultant is unable at any time to perform the Services due to illness, he or she must notify the Business as soon as reasonably practicable. For the avoidance of doubt, no fee shall be payable in accordance with Clause 4 in respect of any period during which the Services are not provided.
3.8 The Consultant will comply with the Business’ policies and procedures on anti-corruption and bribery, anti-harassment and bullying, GDPR and IT System Usage (where applicable).
3.9 The Consultant may use a third party to perform any administrative, clerical or secretarial functions which are reasonably incidental to the provision of the Services provided that:
- The Business will not be liable to bear the cost of such functions; and
3.9.2 At the Business’ request the third party shall be required to enter into direct undertakings with the Business, including with regard to confidentiality.
3.10 The Consultant shall:
3.10.1 Not engage in any activity, practice or conduct which would constitute either:
i. A UK tax evasion facilitation offence under section 45(1) of the Criminal Finances Act 2017; or
ii. A foreign tax evasion facilitation offence under section 46(1) of the Criminal Finances Act 2017;
- Comply with the Institute of Occupational Safety and Health (IOSH) code of conduct, as the relevant body who may update it from time to time;
- Promptly report to the Business any request or demand from a third party to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017 or any suspected tax evasion offences or facilitation of tax evasion offences, whether under UK law or under the law of any foreign country, in connection with the performance of this agreement;
- Ensure that all persons associated with the Consultant or other persons who are performing services in connection with this agreement comply with this Clause 3.10; and
(e) Within 2 months of the date of this agreement, and annually thereafter, certify to the Business in writing compliance with this Clause 3.10 by the Consultant and all persons associated with the Consultant or other persons who are performing services in connection with this agreement. The Consultant shall provide such supporting evidence of compliance as the Business may reasonably request.
3.11 Failure to comply with Clause 3.10 may result in the immediate termination of this agreement.
4 Invoices and Payment
4.1 A fee as agreed within the sales proposal per working day together with value added tax thereon (if applicable) shall be payable to the Consultant for the provision of the Services and such fee shall be payable weekly in arrears by the 14 day immediately following the issue date of the invoice.
4.2 Unless agreed otherwise, the Consultant shall submit an invoice to the Business on the last day of each week detailing the Services provided and the hours worked within that week and the fees due in respect thereof and where he or she is registered for value added tax shall show any value added tax separately on such invoices.
4.3 In the event that there are periods when there are no Services for the Consultant to perform, the Consultant shall not be paid a retainer for these periods. The fee is only payable in respect of Consultancy Services actually provided.
4.4 Before the Consultant sends their first invoice to the Business, he or she will provide a true copy of their VAT Registration Certificate.
4.5 The Business is entitled to deduct from any fees or expenses payable to the Consultant any sums that the Consultant owes to the Business at any time.
5. Expenses
5.1 The Consultant shall be entitled to be reimbursed by the Business for all out of pocket expenses wholly, exclusively and properly incurred in the performance of the Services.
5.2 Where applicable the Consultant shall provide the Business with copies of vouchers, receipts or other evidence of actual payment of such expenses and subject to the expenses being reasonable and within the expectations of the Services provided.
6. Confidentiality
6.1 The Consultant hereby agrees that during the course of his or her engagement under this Agreement they are likely to obtain knowledge of trade secrets and also other confidential information with regard to the business and financial affairs of the Business and those of the Business’s clients, customers and suppliers details of which are not in the public domain (‘Confidential Information’), including in particular enforcement action and investigations from enforcing authorities and accordingly the Consultant hereby undertakes to and covenants with the Business that:
6.1.1 They shall not at any time during this Agreement or for a period of 5 years after the Termination Date use or procure the use of the name of the Business in connection with their own or any other name in any way calculated to suggest that they continue to be connected with the business of the Business or in any way hold themselves or herself out as having such connection;
6.1.2 They shall not use the Confidential Information other than during the continuance of this Agreement and in connection with the provision of the Services; and
6.1.3 They shall not for a period of 5 years after the date of this Agreement (save as required by law) disclose or divulge to any person other than to officers or employees of the Business whose province it is to know the same any Confidential Information and he or she shall use his or her best endeavours to prevent the publication or disclosure of any Confidential Information by any other person.
6.2 The restrictions set out in Clause 5 shall cease to apply to information or knowledge which comes into the public domain otherwise than by reason of the default of the Consultant.
7. Termination of Agreement
7.1 Either party shall have the right at any time to terminate this Agreement by not less than one month’s notice in writing to the other party following the initial term detailed in the sales proposal.
7.2 In addition, either party shall have the right to terminate this Agreement at any time by summary notice without any payment in lieu in the event of:
7.2.1 The other party being in material or persistent breach of any of the terms of this Agreement; or
7.2.2 The other party persistently and wilfully neglecting or becoming incapable for any reason of efficiently performing the Services or failing to remedy any default in providing the Services; or
7.2.3 The other party dying or becoming by reason of incapacity incapable of managing their affairs; or
7.2.4 The other party having a bankruptcy order made against him or her or making any arrangement with his or her creditors or having an interim order made against him or her; or
7.2.5 The other party taking any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
7.2.6 There being a change of control of the other party; or
7.2.7 A party’s financial position deteriorates to such an extent that in the other party’s reasonable opinion that party’s capability to adequately fulfil its obligations under this Agreement have been placed in jeopardy; or
7.2.8 A party doing any action manifestly prejudicial to the interests of the other party or which in the opinion of the other party may bring them into disrepute; or
7.2.9 The other party being convicted of any criminal offence other than a minor driving offence under the road traffic legislation in the UK or elsewhere for which a fine or non-custodial penalty is imposed; or
and that party shall have no claim against the terminating party in respect of the termination of his or her appointment for any of the reasons specified pursuant to Clauses 7.2.1 to 7.2.9.
8. Consequences of Termination
8.1 Upon the expiration or termination of the engagement under this Agreement for whatsoever cause, the Consultant shall forthwith deliver up to the Business or its authorised representative all its property, including all equipment, materials, tools, keys, swipe cards, computer hardware and/or software, books, documents, account records and any other papers which may be in his or her possession, custody or control and which are the property of the Business or which otherwise relate in any way to the business or affairs of the Business and no copies of the same or any part thereof shall be retained by him or her. He or she shall then (if required by the Business) make a declaration that the whole of the provisions of this clause have been complied with.
8.2 The Business shall immediately pay to the Consultant all of the Consultant’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Consultant may submit an invoice, which shall be payable immediately on receipt;
8.3 The Business shall, within 3 days return all of the Consultant’s equipment. [If the Business fails to do so, then the Consultant may enter the Business’s premises and take possession of the Consultant’s equipment. Until they have been returned or repossessed, the Business shall be solely responsible for their safe keeping;
8.4 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
8.5 The termination of this agreement howsoever occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination.
9. Insurance
The Consultant further warrants to the Business that they will:
9.1 Take out and maintain throughout the term of this Agreement, adequate professional indemnity insurance to protect themselves against any liabilities arising out of this Agreement and shall produce, at the request of the Business, a copy of the insurance policy or policies and relevant renewal receipts for inspection by the Business;
9.2 Take out and maintain throughout the term of this Agreement, adequate public liability insurance coverage minimum £1 million cover to protect themselves against any liabilities arising out of this Agreement in respect of all and any contractors/employees they utilise to carry out the Services and shall produce, at the request of the Business, a copy of the insurance policy or policies and relevant renewal receipts for inspection by the Business.
10. Data Protection and Data Processing
10.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this Clause Applicable Laws means (for so long as and to the extent that they apply to the Consultant) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
10.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Business is the data controller and the Consultant is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
10.3 Without prejudice to the generality of Sub- clause 10.1, the Business will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Consultant for the duration and purposes of the Contract.
10.4 Without prejudice to the generality of Sub-clause 10.1, the Consultant shall, in relation to any Personal Data processed in connection with the performance by the Consultant of its obligations under the Contract:
10.4.1 Process that Personal Data only on the written instructions of the Business unless the Consultant is required by Applicable Laws to otherwise process that Personal Data. Where the Consultant is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Consultant shall promptly notify the Business of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Consultant from so notifying the Business;
10.4.2 Ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Business, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
10.4.3 Ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
10.5 The Business does not consent to the Consultant appointing any third-party processor of Personal Data under the Contract.
10.6 Either party may, at any time on not less than 30 days’ notice, revise this Clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
12. Limitation of Liability
12.1 Nothing in this Agreement shall limit or exclude the Consultant’s liability for:
12.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
12.1.2 fraud or fraudulent misrepresentation;
12.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
12.1.4 defective products under the Consumer Protection Act 1987; or
12.1.5 any matter in respect of which it would be unlawful for the Consultant to exclude or restrict liability.
12.2 Subject to clause 12.1:
12.2.1 The Consultant shall under no circumstances whatsoever be liable to the Business, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
i. Loss of profits;
ii. Loss of sales or business;
iii. Loss of agreements or contracts;
iv. Loss of anticipated savings;
v. Loss of use or corruption of software, data or information;
vi. Loss of damage to goodwill; and
vii. Any indirect or consequential loss, and
12.3 The Consultant’s total liability to the Business, in respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Services.
12.4 This clause 12 shall survive termination of the Agreement.
13. No Employment or Partnership
13.1 The Consultant is an independent contractor and nothing in this Agreement shall render or be deemed to render the Consultant an employee, worker or agent of the Business and the Consultant shall not hold himself or herself out as such. This Agreement does not create any mutuality of obligation between the Consultant and the Business and neither party seeks to create or imply any mutuality of obligation between the parties in the course of the performance of this engagement or during any notice period. The Business is not obliged to offer work to the Consultant, nor is the Consultant obliged to accept work where it is offered.
13.2 The Consultant may choose to delegate performance of the Services to such suitably qualified and experienced personnel as he or she may from time to time deem appropriate. The Business has the right to refuse the replacement if, in the reasonable view of the Business, the replacement is not sufficiently qualified to undertake the work. The Consultant must provide details of the name of the delegate/substitute. The Consultant will be responsible for remunerating the delegate/substitute, such that there will be no further payments outside of the agreed terms to pay for any handover period between the Consultant and the delegate/substitute. When a delegate/substitute is appointed, the provisions relating to sub-processor obligations under Clause 10 will apply.
13.3 This Agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the Consultant shall be fully responsible for and shall indemnify the Business for and in respect of:
13.3.1 Any income tax, National Insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Services, where the recovery is not prohibited by law. The Consultant shall further indemnify the Business against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by the Business in connection with or in consequence of any such liability, deduction, contribution, assessment other than where the latter arise out of the Business’ negligence or wilful default;
13.3.2 Any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Consultant or any substitute against the Business arising out of or in connection with the provision of the Services, except where such claim is as a result of any act or omission of the Business.
13.4 The Business may at its option satisfy such indemnity (in whole or in part) by way of deduction from any payments due to the Consultant.
13.5 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
14. Notices/Communications
14.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.
14.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address stated in this Agreement or to such other address (being in Great Britain) as the addressee may from time to time have notified for the purpose of this Clause; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
14.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
15. Entire Agreement
15.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
16. Force Majeure
16.1 If either party to this Agreement is prevented or delayed in the performance of any of its respective obligations under this Agreement by “force majeure”, then such party shall be excused the performance for so long as such cause of prevention or delay shall continue;
16.2 For the purpose of this Agreement ‘force majeure’ shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of such party and inter alia including, but not limited to the following:
16.2.1 Strikes, lockouts or other industrial action;
16.2.2 Terrorism, civil commotion, riot, invasion, war threat or preparation for war;
16.2.3 Fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, bad weather or other natural physical disaster;
16.2.4 Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and
16.2.5 Political interference with the normal operations.
17. Assignment and Other Dealings
17.1 The Business may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.
17.2 The Consultant shall not, without the prior written consent of the Business, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement.
18. Survival of Causes of Action
18.1 The termination of this Agreement howsoever occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination.
19. Severability
19.1 If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the illegal or unenforceable provision eliminated.
20. Waiver
20.1 A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21. Variation
21.1 No variation of this Agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives).
21.2 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
22. Law and Jurisdiction
22.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
22.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).