The Parties/Signatories to this Agreement are advised that signature of this document will have legal consequences. Where either Party is unsure or does not understand the legal obligations and responsibilities placed upon them under this Agreement, they are advised to seek legal advice before signing.
SERVICES CONTRACT
This Agreement is made on: ________
A. PARTIES
I. Service Provider:
________ whose address for the service of proceedings is at:
________
(hereafter the "Service Provider")
II. Client:
________ whose address for the service of proceedings is at:
________
(hereafter the "Client")
B. BACKGROUND
The Client has requested that the Service Provider provide certain services to the Client.
The Service Provider has the skills, qualifications and expertise required to provide the required Services (as defined below) to the Client.
This Agreement is entered into between the Parties for the supply of Services (as defined below) by the Service Provider to the Client as further detailed and set out in the clause entitled SPECIFICATION OF SERVICES subject to the provisions of this Agreement.
The Service Provider and the Client agree to be bound by this Agreement in respect of the supply of the Services by the Service Provider to the Client.
The Client acknowledges that it has read this Agreement and understands and agrees to be bound by it.
The Parties have agreed and do hereby agree as follows:
1. DEFINITIONS AND INTERPRETATIONS
A. Definitions:
I. 'Commencement Date' means ________;
II. 'Completion Date' means ________;
III. 'Services' means the specific services to be provided by the Service Provider as set out in this Agreement in the clause titled SPECIFICATION OF SERVICES;
IV. 'Fee(s)' means the sum to be calculated as set out in the clause titled FEES AND PAYMENTS;
V. 'Minimum Time Provision' means the period of time to be spent by the Service Provider in providing the Services as set out in the clause entitled SPECIFICATION OF SERVICES;
VI. 'Parties' means the Service Provider and the Client, and 'Party' shall mean either one of them;
VII. 'the Specification' means the terms and specifics set out in the clause entitled SPECIFICATION OF SERVICES;
VIII. 'Facilities' means working space, computer equipment, access to the internet and the Client's computer network, telecommunications system etc, and shall include not only access to such resources but also use of them to the extent required by the Service Provider in order to perform the Services in accordance with this Agreement.
B. Interpretations:
I. Words which import the neuter gender only shall include the masculine and feminine genders; words importing the masculine gender only shall include the feminine gender and vice versa;
II. Words which import the singular only shall also include the plural and vice versa; where two or more persons are included in the expression "the Client" or "the Service Provider", or any variation thereof, obligations contained within this Agreement which are to be made by the Client or the Service Provider shall be binding jointly and severally on them and their respective representatives and executors;
III. Words importing persons include companies and vice versa;
IV. Reference to any Act of Parliament shall include any modification, reenactment, amendment or extension thereof for the time of it being in force and shall also include all orders, plans, regulations, directions, permissions, bye-laws and instruments for the time being made, issued or given thereunder or deriving validity therefrom;
V. Where any obligation placed on the Client or the Service Provider under this Agreement provides for the Client or the Service Provider not to do an act or thing this shall include an obligation not to permit such act or thing to be done and to prevent such act or thing being done by a third party;
VI. Any reference to the necessary consent or approval of the Client or Service Provider or words and phrases with similar effect shall mean the consent or approval of the Client or Service Provider in writing executed by or on behalf of the Client or Service Provider.
2. SPECIFICATION OF SERVICES
A. The Services to be provided are:
________
B. The Minimum Time Provision is:
________
C. The Services are to be provided in accordance with the following schedule:
________
D. The specified persons to work on behalf of the Service Provider are:
________
3. SERVICES
A. The Service Provider shall provide the Services to the Client in consideration for the Client paying the Fee to the Service Provider, subject to the provisions of this Agreement.
B. The Service Provider shall start providing the Services on the Commencement Date.
C. The Service Provider shall complete the Services by the Completion Date, and in accordance with the schedule and timings set out in the Specification.
D. The Services shall only be performed by the persons set out in the Specification otherwise agreed by the Parties.
E. The Service Provider shall work for at least the Minimum Time Provision.
F. The Service Provider will regularly inform the Client as to how much time has been spent by the Service Provider in providing the Services and at any time will provide a breakdown of time spent on request by the Client.
G. If the Service Provider dedicates more than the Minimum Time Provision to the Agreement, the Fee will not be increased unless prior written approval is given by the Client and any such Fee increase has been agreed by both Parties.
H. If the Service Provider does not spend at least the Minimum Time Provision in providing the Services, the Fee will be reduced pro-rata for the percentage of the Minimum Time Provision actually committed, or otherwise in accordance with the Fee structure set out in the Specification, unless otherwise agreed.
4. LOCATION
The Service Provider shall provide the Services in such places and locations as the Service Provider considers appropriate to the type and nature of the requirements of the Client.
5. FEES AND PAYMENTS
A. The Fee for the Services provided under this Agreement is as follows:
£________ (________) fixed fee
B. The Service Provider shall be entitled to invoice the Client on a weekly basis.
C. The payment of the Fees shall be made by the Client to the Service Provider within the following period on receipt of invoice:
________
D. The Service Provider is permitted to charge for all reasonable and necessary costs and expenses incurred in performing the Services, including but not limited to travelling, photocopying, courier services and postage, subject to agreement from the Client.
E. All amounts stated are inclusive of VAT and any other applicable taxes unless expressly stated otherwise.
F. If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the Agreement, the Service Provider shall be entitled to:
I. charge interest on the outstanding amount at the rate of 4% per year above the Bank of England base rate accruing daily;
II. require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed;
III. not perform any further Services (or any part of the Services).
6. CLIENT'S OBLIGATIONS
A. During performance of the Services the Client undertakes to:
I. pay the Fees and any other costs herein stipulated at the times and in the manner aforesaid and without any retention, deduction or set-off save as so permitted under this Agreement;
II. co-operate with the Service Provider as the Service Provider reasonably requires;
III. provide the information and documentation that the Service Provider reasonably requires;
IV. ensure that the Client's staff and agents co-operate with and assist the Service Provider.
7. OWNERSHIP AND INTELLECTUAL PROPERTY
A. In connection with the provision of the Services the Service Provider may generate, create, write or produce reports, advice, analyses, designs, methodologies, code or any other output (hereafter defined as "Output") as required in accordance with this Agreement.
B. Unless otherwise agreed by the Parties, any copyright and database right (and any other intellectual property rights) in the Services and/or any Output (or any other material created or prepared) created and provided to the Client by the Service Provider in accordance with, and specifically for the purposes of, this Agreement shall belong to the Client.
C. Any copyright and database right (and any other intellectual property rights) in any other materials ("Ancillary Materials") provided to the Client, which were not created pursuant to this Agreement, or which are specified to belong to the Service Provider, shall belong to the Service Provider.
8. DATA PROTECTION
Each party must comply with their obligations relating to the lawful processing of personal data which are detailed at Schedule One below.
9. CONFIDENTIALITY
A. Each Party ('Receiving Party') shall keep the confidential information of the other Party ('Supplying Party') confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the purpose of performing the Receiving Party's obligations under the Agreement. The Receiving Party shall inform its officers, employees and agents of the Receiving Party's obligations under the provisions of this clause, and ensure that the Receiving Party's officers, employees and agents meet the obligations.
B. 'Confidential Information' means all information relating to the Supplying Party which might fairly be considered to be of a confidential nature and includes, but is not limited to:
I. information of whatever nature, without limitation, which is obtained in any form by the Receiving Party from the Supplying Party or its advisers, or by observations during visits, or by demonstrations;
II. information of whatever nature relating to the business activities, practices and finances of the Supplying Party;
III. any evaluation material, design work, strategic plans and ideas, innovations, creative plans, concepts and ideas and any other plans or ideas developed by the Supplying Party or on its behalf whether relating specifically to the Services or otherwise;
IV. any information derived from the information falling within (i), (ii) or (iii) above;
V. any copy of any of the foregoing; and
VI. the fact that discussions are taking place between the Parties to this Agreement.
but does not include information which is:
I. publicly available, other than as a result of this Agreement; or
II. lawfully available from a third party free from any confidentiality restriction; or
III. provided by the Supplying Party and marked 'Non Confidential'; or
IV. required by law or regulation to be disclosed, but to the absolute minimum necessary and provided that the Supplying Party is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.
C. If there is any doubt as to whether any particular information constitutes Confidential Information written confirmation is to be obtained from the Supplying Party.
D. The obligations in this clause shall not apply to any information which:
I. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
II. is, or becomes, publicly available through no fault of the Receiving Party;
III. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
IV. was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or
V. is required to be disclosed by order of a court of competent jurisdiction.
E. This clause shall survive termination of this Agreement.
10. COMPETITION
The Parties shall not:
I. use any Confidential Information directly or indirectly to procure a commercial advantage over the other Party or otherwise use any designs, ideas or concepts created by or belonging to the other Party without the express written consent of the other Party;
II. throughout the duration of this Agreement, and for a period of ________ MONTH from the end of this Agreement, solicit the clients or customers of the other Party to provide services or supply goods to them of the same or a similar type to those provided by the other Party;
III. throughout the duration of this Agreement, and for a period of ________ MONTH from the end of this Agreement, endeavour to entice away from the other Party or employ or offer to employ any person who is during that year employed by the other Party, whether or not the person would commit a breach of his or her contract of employment by being enticed or accepting employment with them. This prohibition shall not apply to the recruitment of any such employee who has answered a bona fide advertisement or been recruited by an agency to one Party, if that Party has not given directly or indirectly any form of encouragement to that employee to do so.
11. SUB-CONTRACTORS
A. The Service Provider is permitted to use sub-contractors to provide some or all of the Services, subject to obtaining the approval of the Client to use a particular intended sub-contractor.
B. The Service Provider shall be responsible for the work of a sub-contractor whose work shall be undertaken to the same standard as required by this Agreement. However, the Parties acknowledge and agree that some sub-contractors have their own terms and conditions on which they trade and which are more restrictive than the provisions in this Agreement. For example, without limiting the generality of the foregoing, a sub-contractor may have more restrictive wording as to the standard it will meet in work it performs (as to timing or quality), what is to happen if that standard is not met, and the restriction and exclusion of liability. Where the terms and conditions of a sub-contractor are more restrictive or exclusory than the provisions of this Agreement, the Parties agree that work provided by a sub-contractor will be governed by the terms and conditions of the sub-contractor rather than the provisions of this Agreement.
12. WARRANTIES AND LIABILITY
A. The Service Provider warrants that it will use reasonable care and skill in performing the Services.
B. No Party shall be liable to the other for any loss of profit, market, business, contract, damage to goodwill, loss of projected or anticipated savings, loss of revenue or any other consequential or indirect loss howsoever caused.
C. Nothing in this Agreement shall limit or exclude the liability of either Party:
I. for death or personal injury caused as a result of its negligence;
II. for fraud or fraudulent misrepresentation;
III. for loss or damage to property caused any negligent act;
IV. for any and all other matters where it is illegal to exclude or limit liability.
D. Where this Agreement is breached by the Client or the Client is negligent in any way of the undertakings and obligations placed upon them under this Agreement or commits a breach of any statutory duty which results in a loss incurred by the Service Provider, the Service Provider may claim damages from the Client for the losses incurred.
E. Except in the case of death or personal injury caused by the Service Provider's negligence, the liability of the Service Provider under or in connection with this Agreement shall not exceed the Fee paid by the Client to the Service Provider under this Agreement.
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14. TIME FOR PERFORMANCE
Time shall be of the essence for the performance by the Service Provider of its obligations under the Agreement. Any dates, periods or times for performance specified in the Agreement are to be met, and in default, the Service Provider will be in breach of the Agreement.
15. TERMINATION
A. Without prejudice to the other remedies or rights a Party may have, this Agreement may be terminated:
I. with immediate effect by either Party serving written notice if the other Party commits any material breach of any term of these Conditions and which (in the case of a breach capable of being remedied) shall not have been remedied within twenty one (21) days of a written request to remedy the same;
II. at any time by either Party upon service of ________ DAY notice in writing to the other;
III. with immediate effect by the Service Provider proving written notice if the Client fails to make payment of any sums within 14 days of such sums falling due;
IV. with immediate effect by the Client serving written notice to the Service Provider if:
a. the Client has a reasonably held belief that the Service Provider is unable to pay its debts; or
b. the Service Provider has obtained a moratorium under Part A1 of the Insolvency Act 1986; or
c. the Service Provider becomes the subject of a Company Voluntary Arrangement under the Insolvency Act 1986; or
d. the Service Provider becomes the subject of a scheme of arrangement under Part 26 of the Companies Act 2006; or
e. the Service Provider becomes the subject of a restructuring plan under Part 26A of the Companies Act 2006.
V. by the mutual agreement of both parties where
f. the Client has obtained a moratorium under Part A1 of the Insolvency Act 1986; or
g. the Client becomes the subject of a Company Voluntary Arrangement under the Insolvency Act 1986; or
h. the Client becomes the subject of a restructuring plan under Part 26A of the Companies Act 2006.
VI. where an administrator administrative receiver, liquidator, or provisional liquidator has been appointed on behalf of the Client and such an appointed representative agrees to the termination.
VII. with immediate effect by the Service Provider proving written notice to the Client in the event that the Client or its employees or agents shall engage in any conduct prejudicial to the business of the Service Provider or in the event that the Service Provider considers that a conflict or potential conflict of interest has arisen between the Parties.
B. On termination of this Agreement, the Client shall pay for all Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by the Service Provider for the performance of the Services prior to the date of termination.
C. Any termination of the Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to under the Agreement or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
16. GENERAL
A. Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
B. Amendments
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
C. Assignment
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
D. Entire Agreement
This Agreement contains the whole agreement between the Parties in respect of the provision of the specified Services and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
E. Waiver
No failure or delay by the Service Provider in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
F. Agency, partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
G. Further assurance
Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
H. Announcements
No Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
I. Notices
I. Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or air mail, or e-mail (confirmed by first class mail or air mail), to the address of the relevant Party set out at the head of this Agreement, or to the relevant email address set out below, or such other address or email address as that Party may from time to time notify to the other Party in accordance with this clause. The relevant contact information for the Parties is as follows:
a. Service Provider:
________
b. Client:
________
II. Notices sent as above shall be deemed to have been received three working DAYS after the day of posting (in the case of inland first class mail), or seven working DAYS after the date of posting (in the case of air mail), or the next working day after sending (in the case of e-mail).
III. In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the email was confirmed and/or acknowledged as the case may be.
17. SEVERANCE
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
18. LAW AND JURISDICTION
The validity, construction and performance of this Agreement shall be governed by the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales to which the Parties submit.
19. THIRD PARTIES
For the purposes of the Agreements (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement this Agreement is not intended to, and does not, give any person who is not a Party to it any right to enforce any of its provisions.
SIGNED by the Parties:
_______________________________
Signed by ________ for and on
behalf of ________
_______________________________
Date
_______________________________
Signed by ________ for and on
behalf of ________
_______________________________
Date
SCHEDULE ONE
RULES RELATING TO THE PROCESSING OF PERSONAL DATA
1. DEFINITIONS AND INTERPRETATIONS
A. The Relevant Legal Provisions are:
B. The terms:
Shall be have the same definition under this Agreement as they do in the Relevant Legal Provisions.
2. SCOPE
Subject matter
The processing of Personal Data under this Agreement relates to:
________
Duration
The processing of Personal Data has the following duration:
________
Nature
The processing of Personal Data shall be undertaken by:
________
Purpose
The purpose for which Personal Data is processed is:
________
Type of Personal Data
The types of Personal Data which shall be processed is:
________
Categories of Data Subjects
Personal Data will be processed and collected from:
________
3. DATA PROTECTION REQUIREMENTS RELEVANT TO THE AGREEMENT
A. Under this agreement, the Data Controller is the Client. The Data Processor is the Service Provider.
B. Both parties must comply with the Relevant Legal Provisions when processing Personal Data.
C. The purpose of this Schedule is to confirm the roles and obligations which are relevant to the Agreement. The Schedule does not replace or alter the legal obligations of both parties as set out within the Relevant Legal Provisions.
D. It is the obligation of the Controller to ensure that it holds all required policies and notices relating to the processing of Personal Data.
E. It is the responsibility of the Data Processor to:
I. ensure any personal data is processed in connection with or arising out of this Agreement is processed only upon the documented instruction of the Data Controller; and
II. notify the Data Controller as soon as is reasonably practicable of any Data Breach and assist the Data Controlling in reporting any Data Breaches to data subjects and/or the supervisory body wherever appropriate; and
III. Assist the Data Controller to maintain the rights of Data Subjects; and
IV. assist and enable the Data Controller in complying with lawful requests made by any Data Subjects; and
V. assist the Data Controller in meeting its obligations to carry out data Protection Impact Assessments wherever necessary; and
VI. provide the Data Controller with all information required to demonstrate compliance with the Relevant Legal Provisions; and
VII. assist and contribute towards all audits and inspections undertaken by the Data Controller or any properly authorised auditor; and
VIII. properly dispose of all personal data on the occasion of the lawful termination of this Agreement, at the written instruction of the Data Controller (save in those circumstances where it is required to be retained by the Data Processor by law); and
IX. properly dispose of all personal data on the occasion of the lawful termination of this Agreement, at the written instruction of the Data Controller (save in those circumstances where it is required to be retained by the Data Processor by law); and
X. ensure that no Personal Data is transferred outside of the United Kingdom; and
XI. ensure that Personal Data is not provided to any sub-processor unless specifically instructed to do so by the Data Controller and unless a written agreement is formed between the Data Processor and any approved sub-processor; and
XII. ensure all persons (including, but not limited to, any agents, personnel, staff and employees) involved in the processing of the Personal Data maintain the proper confidentiality of the Personal Data; and
XIII. ensure that appropriate security measures are put in place to protect personal data, specifically to include:
________
The Parties/Signatories to this Agreement are advised that signature of this document will have legal consequences. Where either Party is unsure or does not understand the legal obligations and responsibilities placed upon them under this Agreement, they are advised to seek legal advice before signing.
SERVICES CONTRACT
This Agreement is made on: ________
A. PARTIES
I. Service Provider:
________ whose address for the service of proceedings is at:
________
(hereafter the "Service Provider")
II. Client:
________ whose address for the service of proceedings is at:
________
(hereafter the "Client")
B. BACKGROUND
The Client has requested that the Service Provider provide certain services to the Client.
The Service Provider has the skills, qualifications and expertise required to provide the required Services (as defined below) to the Client.
This Agreement is entered into between the Parties for the supply of Services (as defined below) by the Service Provider to the Client as further detailed and set out in the clause entitled SPECIFICATION OF SERVICES subject to the provisions of this Agreement.
The Service Provider and the Client agree to be bound by this Agreement in respect of the supply of the Services by the Service Provider to the Client.
The Client acknowledges that it has read this Agreement and understands and agrees to be bound by it.
The Parties have agreed and do hereby agree as follows:
1. DEFINITIONS AND INTERPRETATIONS
A. Definitions:
I. 'Commencement Date' means ________;
II. 'Completion Date' means ________;
III. 'Services' means the specific services to be provided by the Service Provider as set out in this Agreement in the clause titled SPECIFICATION OF SERVICES;
IV. 'Fee(s)' means the sum to be calculated as set out in the clause titled FEES AND PAYMENTS;
V. 'Minimum Time Provision' means the period of time to be spent by the Service Provider in providing the Services as set out in the clause entitled SPECIFICATION OF SERVICES;
VI. 'Parties' means the Service Provider and the Client, and 'Party' shall mean either one of them;
VII. 'the Specification' means the terms and specifics set out in the clause entitled SPECIFICATION OF SERVICES;
VIII. 'Facilities' means working space, computer equipment, access to the internet and the Client's computer network, telecommunications system etc, and shall include not only access to such resources but also use of them to the extent required by the Service Provider in order to perform the Services in accordance with this Agreement.
B. Interpretations:
I. Words which import the neuter gender only shall include the masculine and feminine genders; words importing the masculine gender only shall include the feminine gender and vice versa;
II. Words which import the singular only shall also include the plural and vice versa; where two or more persons are included in the expression "the Client" or "the Service Provider", or any variation thereof, obligations contained within this Agreement which are to be made by the Client or the Service Provider shall be binding jointly and severally on them and their respective representatives and executors;
III. Words importing persons include companies and vice versa;
IV. Reference to any Act of Parliament shall include any modification, reenactment, amendment or extension thereof for the time of it being in force and shall also include all orders, plans, regulations, directions, permissions, bye-laws and instruments for the time being made, issued or given thereunder or deriving validity therefrom;
V. Where any obligation placed on the Client or the Service Provider under this Agreement provides for the Client or the Service Provider not to do an act or thing this shall include an obligation not to permit such act or thing to be done and to prevent such act or thing being done by a third party;
VI. Any reference to the necessary consent or approval of the Client or Service Provider or words and phrases with similar effect shall mean the consent or approval of the Client or Service Provider in writing executed by or on behalf of the Client or Service Provider.
2. SPECIFICATION OF SERVICES
A. The Services to be provided are:
________
B. The Minimum Time Provision is:
________
C. The Services are to be provided in accordance with the following schedule:
________
D. The specified persons to work on behalf of the Service Provider are:
________
3. SERVICES
A. The Service Provider shall provide the Services to the Client in consideration for the Client paying the Fee to the Service Provider, subject to the provisions of this Agreement.
B. The Service Provider shall start providing the Services on the Commencement Date.
C. The Service Provider shall complete the Services by the Completion Date, and in accordance with the schedule and timings set out in the Specification.
D. The Services shall only be performed by the persons set out in the Specification otherwise agreed by the Parties.
E. The Service Provider shall work for at least the Minimum Time Provision.
F. The Service Provider will regularly inform the Client as to how much time has been spent by the Service Provider in providing the Services and at any time will provide a breakdown of time spent on request by the Client.
G. If the Service Provider dedicates more than the Minimum Time Provision to the Agreement, the Fee will not be increased unless prior written approval is given by the Client and any such Fee increase has been agreed by both Parties.
H. If the Service Provider does not spend at least the Minimum Time Provision in providing the Services, the Fee will be reduced pro-rata for the percentage of the Minimum Time Provision actually committed, or otherwise in accordance with the Fee structure set out in the Specification, unless otherwise agreed.
4. LOCATION
The Service Provider shall provide the Services in such places and locations as the Service Provider considers appropriate to the type and nature of the requirements of the Client.
5. FEES AND PAYMENTS
A. The Fee for the Services provided under this Agreement is as follows:
£________ (________) fixed fee
B. The Service Provider shall be entitled to invoice the Client on a weekly basis.
C. The payment of the Fees shall be made by the Client to the Service Provider within the following period on receipt of invoice:
________
D. The Service Provider is permitted to charge for all reasonable and necessary costs and expenses incurred in performing the Services, including but not limited to travelling, photocopying, courier services and postage, subject to agreement from the Client.
E. All amounts stated are inclusive of VAT and any other applicable taxes unless expressly stated otherwise.
F. If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the Agreement, the Service Provider shall be entitled to:
I. charge interest on the outstanding amount at the rate of 4% per year above the Bank of England base rate accruing daily;
II. require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed;
III. not perform any further Services (or any part of the Services).
6. CLIENT'S OBLIGATIONS
A. During performance of the Services the Client undertakes to:
I. pay the Fees and any other costs herein stipulated at the times and in the manner aforesaid and without any retention, deduction or set-off save as so permitted under this Agreement;
II. co-operate with the Service Provider as the Service Provider reasonably requires;
III. provide the information and documentation that the Service Provider reasonably requires;
IV. ensure that the Client's staff and agents co-operate with and assist the Service Provider.
7. OWNERSHIP AND INTELLECTUAL PROPERTY
A. In connection with the provision of the Services the Service Provider may generate, create, write or produce reports, advice, analyses, designs, methodologies, code or any other output (hereafter defined as "Output") as required in accordance with this Agreement.
B. Unless otherwise agreed by the Parties, any copyright and database right (and any other intellectual property rights) in the Services and/or any Output (or any other material created or prepared) created and provided to the Client by the Service Provider in accordance with, and specifically for the purposes of, this Agreement shall belong to the Client.
C. Any copyright and database right (and any other intellectual property rights) in any other materials ("Ancillary Materials") provided to the Client, which were not created pursuant to this Agreement, or which are specified to belong to the Service Provider, shall belong to the Service Provider.
8. DATA PROTECTION
Each party must comply with their obligations relating to the lawful processing of personal data which are detailed at Schedule One below.
9. CONFIDENTIALITY
A. Each Party ('Receiving Party') shall keep the confidential information of the other Party ('Supplying Party') confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the purpose of performing the Receiving Party's obligations under the Agreement. The Receiving Party shall inform its officers, employees and agents of the Receiving Party's obligations under the provisions of this clause, and ensure that the Receiving Party's officers, employees and agents meet the obligations.
B. 'Confidential Information' means all information relating to the Supplying Party which might fairly be considered to be of a confidential nature and includes, but is not limited to:
I. information of whatever nature, without limitation, which is obtained in any form by the Receiving Party from the Supplying Party or its advisers, or by observations during visits, or by demonstrations;
II. information of whatever nature relating to the business activities, practices and finances of the Supplying Party;
III. any evaluation material, design work, strategic plans and ideas, innovations, creative plans, concepts and ideas and any other plans or ideas developed by the Supplying Party or on its behalf whether relating specifically to the Services or otherwise;
IV. any information derived from the information falling within (i), (ii) or (iii) above;
V. any copy of any of the foregoing; and
VI. the fact that discussions are taking place between the Parties to this Agreement.
but does not include information which is:
I. publicly available, other than as a result of this Agreement; or
II. lawfully available from a third party free from any confidentiality restriction; or
III. provided by the Supplying Party and marked 'Non Confidential'; or
IV. required by law or regulation to be disclosed, but to the absolute minimum necessary and provided that the Supplying Party is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.
C. If there is any doubt as to whether any particular information constitutes Confidential Information written confirmation is to be obtained from the Supplying Party.
D. The obligations in this clause shall not apply to any information which:
I. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
II. is, or becomes, publicly available through no fault of the Receiving Party;
III. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
IV. was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or
V. is required to be disclosed by order of a court of competent jurisdiction.
E. This clause shall survive termination of this Agreement.
10. COMPETITION
The Parties shall not:
I. use any Confidential Information directly or indirectly to procure a commercial advantage over the other Party or otherwise use any designs, ideas or concepts created by or belonging to the other Party without the express written consent of the other Party;
II. throughout the duration of this Agreement, and for a period of ________ MONTH from the end of this Agreement, solicit the clients or customers of the other Party to provide services or supply goods to them of the same or a similar type to those provided by the other Party;
III. throughout the duration of this Agreement, and for a period of ________ MONTH from the end of this Agreement, endeavour to entice away from the other Party or employ or offer to employ any person who is during that year employed by the other Party, whether or not the person would commit a breach of his or her contract of employment by being enticed or accepting employment with them. This prohibition shall not apply to the recruitment of any such employee who has answered a bona fide advertisement or been recruited by an agency to one Party, if that Party has not given directly or indirectly any form of encouragement to that employee to do so.
11. SUB-CONTRACTORS
A. The Service Provider is permitted to use sub-contractors to provide some or all of the Services, subject to obtaining the approval of the Client to use a particular intended sub-contractor.
B. The Service Provider shall be responsible for the work of a sub-contractor whose work shall be undertaken to the same standard as required by this Agreement. However, the Parties acknowledge and agree that some sub-contractors have their own terms and conditions on which they trade and which are more restrictive than the provisions in this Agreement. For example, without limiting the generality of the foregoing, a sub-contractor may have more restrictive wording as to the standard it will meet in work it performs (as to timing or quality), what is to happen if that standard is not met, and the restriction and exclusion of liability. Where the terms and conditions of a sub-contractor are more restrictive or exclusory than the provisions of this Agreement, the Parties agree that work provided by a sub-contractor will be governed by the terms and conditions of the sub-contractor rather than the provisions of this Agreement.
12. WARRANTIES AND LIABILITY
A. The Service Provider warrants that it will use reasonable care and skill in performing the Services.
B. No Party shall be liable to the other for any loss of profit, market, business, contract, damage to goodwill, loss of projected or anticipated savings, loss of revenue or any other consequential or indirect loss howsoever caused.
C. Nothing in this Agreement shall limit or exclude the liability of either Party:
I. for death or personal injury caused as a result of its negligence;
II. for fraud or fraudulent misrepresentation;
III. for loss or damage to property caused any negligent act;
IV. for any and all other matters where it is illegal to exclude or limit liability.
D. Where this Agreement is breached by the Client or the Client is negligent in any way of the undertakings and obligations placed upon them under this Agreement or commits a breach of any statutory duty which results in a loss incurred by the Service Provider, the Service Provider may claim damages from the Client for the losses incurred.
E. Except in the case of death or personal injury caused by the Service Provider's negligence, the liability of the Service Provider under or in connection with this Agreement shall not exceed the Fee paid by the Client to the Service Provider under this Agreement.
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14. TIME FOR PERFORMANCE
Time shall be of the essence for the performance by the Service Provider of its obligations under the Agreement. Any dates, periods or times for performance specified in the Agreement are to be met, and in default, the Service Provider will be in breach of the Agreement.
15. TERMINATION
A. Without prejudice to the other remedies or rights a Party may have, this Agreement may be terminated:
I. with immediate effect by either Party serving written notice if the other Party commits any material breach of any term of these Conditions and which (in the case of a breach capable of being remedied) shall not have been remedied within twenty one (21) days of a written request to remedy the same;
II. at any time by either Party upon service of ________ DAY notice in writing to the other;
III. with immediate effect by the Service Provider proving written notice if the Client fails to make payment of any sums within 14 days of such sums falling due;
IV. with immediate effect by the Client serving written notice to the Service Provider if:
a. the Client has a reasonably held belief that the Service Provider is unable to pay its debts; or
b. the Service Provider has obtained a moratorium under Part A1 of the Insolvency Act 1986; or
c. the Service Provider becomes the subject of a Company Voluntary Arrangement under the Insolvency Act 1986; or
d. the Service Provider becomes the subject of a scheme of arrangement under Part 26 of the Companies Act 2006; or
e. the Service Provider becomes the subject of a restructuring plan under Part 26A of the Companies Act 2006.
V. by the mutual agreement of both parties where
f. the Client has obtained a moratorium under Part A1 of the Insolvency Act 1986; or
g. the Client becomes the subject of a Company Voluntary Arrangement under the Insolvency Act 1986; or
h. the Client becomes the subject of a restructuring plan under Part 26A of the Companies Act 2006.
VI. where an administrator administrative receiver, liquidator, or provisional liquidator has been appointed on behalf of the Client and such an appointed representative agrees to the termination.
VII. with immediate effect by the Service Provider proving written notice to the Client in the event that the Client or its employees or agents shall engage in any conduct prejudicial to the business of the Service Provider or in the event that the Service Provider considers that a conflict or potential conflict of interest has arisen between the Parties.
B. On termination of this Agreement, the Client shall pay for all Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by the Service Provider for the performance of the Services prior to the date of termination.
C. Any termination of the Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to under the Agreement or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
16. GENERAL
A. Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
B. Amendments
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
C. Assignment
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
D. Entire Agreement
This Agreement contains the whole agreement between the Parties in respect of the provision of the specified Services and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
E. Waiver
No failure or delay by the Service Provider in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
F. Agency, partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
G. Further assurance
Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
H. Announcements
No Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
I. Notices
I. Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or air mail, or e-mail (confirmed by first class mail or air mail), to the address of the relevant Party set out at the head of this Agreement, or to the relevant email address set out below, or such other address or email address as that Party may from time to time notify to the other Party in accordance with this clause. The relevant contact information for the Parties is as follows:
a. Service Provider:
________
b. Client:
________
II. Notices sent as above shall be deemed to have been received three working DAYS after the day of posting (in the case of inland first class mail), or seven working DAYS after the date of posting (in the case of air mail), or the next working day after sending (in the case of e-mail).
III. In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the email was confirmed and/or acknowledged as the case may be.
17. SEVERANCE
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
18. LAW AND JURISDICTION
The validity, construction and performance of this Agreement shall be governed by the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales to which the Parties submit.
19. THIRD PARTIES
For the purposes of the Agreements (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement this Agreement is not intended to, and does not, give any person who is not a Party to it any right to enforce any of its provisions.
SIGNED by the Parties:
_______________________________
Signed by ________ for and on
behalf of ________
_______________________________
Date
_______________________________
Signed by ________ for and on
behalf of ________
_______________________________
Date
SCHEDULE ONE
RULES RELATING TO THE PROCESSING OF PERSONAL DATA
1. DEFINITIONS AND INTERPRETATIONS
A. The Relevant Legal Provisions are:
B. The terms:
Shall be have the same definition under this Agreement as they do in the Relevant Legal Provisions.
2. SCOPE
Subject matter
The processing of Personal Data under this Agreement relates to:
________
Duration
The processing of Personal Data has the following duration:
________
Nature
The processing of Personal Data shall be undertaken by:
________
Purpose
The purpose for which Personal Data is processed is:
________
Type of Personal Data
The types of Personal Data which shall be processed is:
________
Categories of Data Subjects
Personal Data will be processed and collected from:
________
3. DATA PROTECTION REQUIREMENTS RELEVANT TO THE AGREEMENT
A. Under this agreement, the Data Controller is the Client. The Data Processor is the Service Provider.
B. Both parties must comply with the Relevant Legal Provisions when processing Personal Data.
C. The purpose of this Schedule is to confirm the roles and obligations which are relevant to the Agreement. The Schedule does not replace or alter the legal obligations of both parties as set out within the Relevant Legal Provisions.
D. It is the obligation of the Controller to ensure that it holds all required policies and notices relating to the processing of Personal Data.
E. It is the responsibility of the Data Processor to:
I. ensure any personal data is processed in connection with or arising out of this Agreement is processed only upon the documented instruction of the Data Controller; and
II. notify the Data Controller as soon as is reasonably practicable of any Data Breach and assist the Data Controlling in reporting any Data Breaches to data subjects and/or the supervisory body wherever appropriate; and
III. Assist the Data Controller to maintain the rights of Data Subjects; and
IV. assist and enable the Data Controller in complying with lawful requests made by any Data Subjects; and
V. assist the Data Controller in meeting its obligations to carry out data Protection Impact Assessments wherever necessary; and
VI. provide the Data Controller with all information required to demonstrate compliance with the Relevant Legal Provisions; and
VII. assist and contribute towards all audits and inspections undertaken by the Data Controller or any properly authorised auditor; and
VIII. properly dispose of all personal data on the occasion of the lawful termination of this Agreement, at the written instruction of the Data Controller (save in those circumstances where it is required to be retained by the Data Processor by law); and
IX. properly dispose of all personal data on the occasion of the lawful termination of this Agreement, at the written instruction of the Data Controller (save in those circumstances where it is required to be retained by the Data Processor by law); and
X. ensure that no Personal Data is transferred outside of the United Kingdom; and
XI. ensure that Personal Data is not provided to any sub-processor unless specifically instructed to do so by the Data Controller and unless a written agreement is formed between the Data Processor and any approved sub-processor; and
XII. ensure all persons (including, but not limited to, any agents, personnel, staff and employees) involved in the processing of the Personal Data maintain the proper confidentiality of the Personal Data; and
XIII. ensure that appropriate security measures are put in place to protect personal data, specifically to include:
________
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