1 Terms in the Agreement
1.1 In this Agreement the following terms are used:
“Charges” means the fees for providing the Services
“Parties” means the Consultant and the Client (each a “Party”).
“Personnel” means any person engaged by the Consultant.
“Representative” means the first point of contact for each Party regarding this Agreement;
2 Variations to this Agreement
2.1 Variations must be in writing and signed by each Party:
3 Provision of the Services
3.1 The Services” mean the work you have asked the Consultant to carry out.
3.2 The Services will be provided during office hours which are 9.00am to 5.00pm Monday to Friday (excl Bank Holidays) unless by prior agreement.
3.3 The frequency of meetings to discuss the services will be determined by agreement.
3.4 The Consultant shall provide the names of anyone involved in delivering the Services if requested.
3.5 The Client can ask the Consultant to remove or replace its Representative and/or any member of its Personnel if the Client has reasonable and lawful grounds for asking.
3.6 The Consultant shall:
(a) provide the Services with skill, care and diligence and ensure the Services are performed professionally and by appropriately qualified, experienced and trained Personnel;
(b) ensure compliance with all relevant legislation, regulations, codes of practice, guidance notes and other requirements of any relevant government or governmental body;
(c) comply with any reasonable instructions and guidelines from the Client as well as the safety and security standards and site procedures and codes of the Client;
(d) supply the Client with information and reports (including copies) it reasonably requires about the provision of the Services.
4 Price and Payment
4.1 The Consultant issues invoices for the Services and authorised expenses (including any travel, accommodation and subsistence) every month.
4.2 The Client must pay the Charges within 15 days of the date of each invoice. For late payments, the Consultant is entitled to add the following charges: (i) a one-off late payment charge equivalent to 7% of the value of the unpaid amount; and/or (ii) interest and associated charges under the Late Payment of Commercial Debts (Interest) Act 1998. Any other late payment charges will be payable immediately by the Client when notified by the Consultant. This clause is without prejudice to the Consultant’s other rights and remedies under this Agreement.
4.3 Any fixed charges agreed with the Client are for the work agreed at the time. If additional work is requested or the brief changes or the terms for the piece of work change the Consultant reserves the right to make an additional charge. Advance notice will be given if possible and approval sought for the additional charges.
5 Confidential Information
5.1 Confidential means that the information, either in its entirety or in the precise configuration, is not publicly available. This includes, without limitation, secret or confidential commercial, financial, marketing, technical or other information know-how, trade secrets, price lists, the content of this Agreement and other information in any form or medium including reproductions, whether disclosed orally or in writing before or after the date of this Agreement.
5.2 All confidential Information belonging to one Party that is disclosed or obtained because of this Agreement shall be kept confidential. Each Party shall not use or disclose the Confidential Information except to deliver this Agreement or if the other Party gives prior written consent. Each Party may disclose the other Party’s Confidential Information to its Personnel who need to know such information for the purposes of carrying out the obligations under this Agreement; in these circumstances those people receiving the information must comply with this paragraph 5.
5.3 Confidential Information does not include information in the public domain (except when it entered the public domain through a breach of this Agreement); or in either Party’s written records prior to the date of this Agreement; independently disclosed to either Party by a third party; or required to be disclosed under any applicable law, or by order of a court or governmental body or other competent authority.
6 Insurance
6.1 During this Agreement, the Consultant will maintain all insurance required at law up to the level reasonably required to cover its liabilities under this Agreement. The Client may request a copy of the full policy document.
6.2 The Consultant must not do anything that would entitle the underwriter(s) of the policies to avoid or refute their liability to deal with any claim(s) which would otherwise be covered.
7 Indemnity and Liability
7.1 The Consultant agrees to compensate the Client in full and on demand and continue to compensate it against all claims, demands, actions, proceedings and all direct damages, losses, costs and expenses (including legal fees) made against or incurred or suffered by the Client and whether wholly or partly caused directly by the following:
(a) any claim, action or demand by a third party for infringement of its Intellectual Property by the provision of the Services by the Consultant or the use by Client of any materials generated or created or procured or used by the Consultant in supplying the Services;
(b) any claim, action or demand made by or on behalf of any member or former member of the Personnel, or employee or former employee of any subcontractor of the Consultant in connection with that person’s employment or termination of that person’s employment, however it arises.
7.2 Nothing in this Agreement excludes or limits a Party’s liability for death or personal injury caused by its negligence or for fraudulent misrepresentation.
7.3 Neither Party is liable to the other Party for any economic loss or loss of profit (whether direct or indirect), loss of future revenue, loss of reputation, loss of goodwill, loss of anticipated savings or any indirect, special or consequential loss or damage howsoever caused, or any liability arising to any third party.
7.4 For any loss and damage caused by the Consultant’s breach of contract or negligence (except as stated in paragraphs 7.1 and 7.2 above), the Consultant’s entire aggregate liability to the Client under or in connection with this Agreement is limited to the Charges paid or payable during the initial 12 months of this Agreement, or the sum of £1,000 whichever is the greater.
8 Termination and the Consequences of Termination
8.1 Either Party may immediately suspend this Agreement, cancel any outstanding provisions or terminate this Agreement by notice in writing to the other Party without having any liability to the other Party:
(a) if the other Party commits a material breach of any of its obligations under this Agreement which cannot be resolved; and/or
(b) if the other Party fails to resolve a breach of its obligations under this Agreement which is capable of resolution or persists in any breach of any of its obligations after having been requested in writing by the other Party to remedy or desist from such breach within a period of 15 days; and/or
(c) under the circumstances in paragraph 11.5; and/or
(d) the other Party proposes a voluntary arrangement (defined in Section 1 or Section 253 of the Insolvency Act 1986), or an interim order against the other Party under Section 252 of the Insolvency Act 1986, or any other steps are taken or negotiations begun by the other Party or any of its creditors with the intention of proposing any kind of composition, compromise or arrangement involving the other Party and any of its creditors;
(e) the other Party is unable to pay its debts under Section 123 of the Insolvency Act 1986, and a resolution for a winding up order is passed. Directors of the other Party may seek a winding up order or present a petition for a winding up order, or to appoint an administrator, or have an administrative receiver, or receiver appointed over all or any part of its business, undertaking, property or assets; and/or
(f) the other Party has any distress or execution raised on its assets which are not paid out within seven days.
8.2 The Client may terminate this Agreement immediately by notice if the Consultant is guilty of fraud or dishonesty (whether in the course of the Services or not and whether against the Client or not), or does anything that hurts the reputation of the Client.
8.3 Either Party shall have the right to terminate this Agreement for convenience and for any reason as long as it gives the other Party at least thirty (30) days prior written notice.
8.4 The termination of this Agreement or of any of the Services shall not prejudice the rights and remedies of either Party which may have accrued up to the date of such termination.
8.5 Upon termination of this Agreement for any reason whatsoever:
(a) (subject to paragraph 9.4 above) the relationship of the Parties shall cease and any rights or licences granted shall cease to have effect save as (and to the extent) expressly provided for in this paragraph 9.5;
(b) the provisions of paragraphs 5, 6, 7, 8.4, 8.5, 9, 10, 11, 12, 13, 14 and 15 and any provision which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect;
(c) each Party shall promptly return to the other Party (or if the other Party so requests by notice in writing destroy) all property of the other in its possession including without limitation all of the other’s Confidential Information and shall make no further use of such Confidential Information.
8.6 From the date the notice of termination is issued the Consultant shall co-operate with Client (and/or any substitute supplier of the Services appointed by Client) to ensure the smooth handover and continued running of the Services during that handover. In particular the Consultant will assist the Client and/or the substitute supplier if the Client reasonably requests it, but the Client must pay the Consultant’s reasonable costs incurred when it provides this assistance.
8.7 If this Agreement is terminated early or any one or more of the Services is terminated early by notice, within 7 days the Parties shall hold a review meeting to discuss arrangements for the hand-over of the Services.
8.8 Within 30 days of the expiry or termination of this Agreement the Consultant will send its final invoice to the Client and the Client shall pay the invoice within 15 days of its date.
9 Disputes
9.1 If there is any dispute about this Agreement, the Parties will attempt to settle it by mediation using the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. Unless the Parties agree otherwise, the mediator will be nominated by CEDR. If a Party wants to begin mediation, it must give written notice requesting mediation. A copy of the request should be sent to CEDR.
10 Subcontracting, Assignment and Third Party Rights
10.1 Neither Party may assign, charge, subcontract or transfer this Agreement or any part of it to any person without the prior written consent of the other Party, whose consent must not be unreasonably withheld or delayed.
10.2 Only the Parties have any rights to enforce any term of this Agreement unless they agree otherwise in writing by referring to this paragraph 10.2.
11 Force Majeure
11.1 This means any event outside the reasonable control of either Party affecting its ability to perform any of its obligations (except payment) under this Agreement including without limitation Act of God, fire, flood, lightning, war, revolution, act of terrorism, riot or civil commotion, strikes, lock-outs or other industrial action, whether of the affected Party’s own employees or others, failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services;
11.2 If either Party is affected by Force Majeure it shall immediately give written notice to the other Party describing the Force Majeure and shall keep that Party fully informed of any relevant change of circumstances whilst the Force Majeure continues.
11.3 The Party affected by Force Majeure shall take all reasonable steps available to it to minimise the effects of Force Majeure on the performance of its obligations under this Agreement.
11.4 Except in the circumstances described in paragraph 11.5 below, Force Majeure shall not entitle either Party to terminate this Agreement and neither Party is in breach of this Agreement, or otherwise liable to the other, by reasons of any delay in performance, or non-performance of any of its obligations due to Force Majeure.
11.5 If the Party affected by Force Majeure fails to comply with its obligations under paragraphs 11.1 and 11.2 above then no relief for Force Majeure, including the provisions of paragraph 11.3 above, is available to it and the obligations of each Party shall continue in force.
11.6 If the Force Majeure continues for longer than 2 weeks either Party may at any time give notice in writing to the other terminate this Agreement in compliance with paragraph 8.1(c).
12 Notices
12.1 All notices between the Parties about this Agreement must be in writing and delivered by hand or sent by first class post or special delivery to the Party’s registered office set out on the first page of this Agreement or any other address they specify.
12.2 Notices are deemed to have been received:
(a) 2 days after posting (exclusive of the day of posting) if sent by first class or special delivery post;
(b) on the day of delivery if delivered by hand or if that is not a usual business day, the first usual business day after delivery.
12.3 Notices addressed to the Client should be marked for the attention of Client’s Representative.
13 Intellectual Property (IP)
13.1 IP means all IP rights including (without limitation) any patent, copyright, rights in software, database right, moral right, design right, registered design, trade mark, service mark, domain name, utility model, unregistered design or where relevant any application for the same or any other such right or other industrial or IP right subsisting in any part of the world created by the Consultant in the course of this Agreement or otherwise in the provision of the Services;
13.2 All IP owned by the Client prior to the commencement of this Agreement, or provided to the Consultant by or on behalf of the Client, or any Client data produced by the Consultant in supplying the Services, remains the property of the Client.
13.3 The Client grants the Consultant the non-exclusive right to use the IP and the Client data free of charge if it is reasonably required for the purposes of providing the Services.
13.4 All IP owned or licensed by the Consultant before this Agreement started, whether or not it is used in connection with this Agreement, will remain the property of the Consultant or the relevant licensor (as the case may be).
13.5 Any IP created or developed by the Consultant during the course of the Services will (as far as it is not already owned by the Consultant) vest in the Consultant or its designee on the date when it is created and will be included in the Consultant’s IP. The Consultant hereby grants to the Client a royalty-free licence to use and otherwise exploit this IP for its own internal business purposes. The Consultant further agrees that it will, at the Client’s expense, do or sign anything reasonably necessary to give effect to the licences granted by this paragraph
13.5. To the extent that the IP contains rights owned by a third party, then the Consultant shall only be obliged to use reasonable endeavours to obtain corresponding rights for the Client to use and exploit these third party rights.
13.6 Regardless of any provision of this Agreement to the contrary, the Consultant will own any internal records it produces or generates relating to the Services. Additionally, the Consultant is entitled to retain copies of its work papers and work products required for its internal records and to comply with legal and professional standards.
14 General
14.1 Nothing in this Agreement shall create, or be deemed to create a partnership or joint venture or employer-employee relationship or principal and agent relationship between the Parties.
14.2 If a Party fails to exercise any right or remedy provided under this Agreement or by law they shall not have waived that or any other right or remedy, and they shall not be precluded or restricted to exercise further that or any other right or remedy. A single or partial exercise of that right or remedy shall not preclude or restrict the further exercise of that or any other right or remedy.
14.3 If at any time any one or more of the paragraphs of this Agreement (or any sub-paragraph) becomes void or otherwise unenforceable for any reason under any applicable law, it shall be omitted from this Agreement. The validity and/or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired as a result.
14.4 This Agreement sets out the entire agreement between the Parties about the Services. Each Party irrevocably and unconditionally waives any right it may have to claim damages for, and/or to rescind this Agreement because of breach of any warranty not contained in this Agreement or any misrepresentation whether or not contained in this Agreement unless such misrepresentation was made fraudulently.
15 Law and Jurisdiction
15.1 This Agreement is governed by English law and both Parties agree to submit to the exclusive jurisdiction of the English Courts