WHEREAS the Consultant has agreed to provide services set out in clause (2) hereof to Client AND the parties have agreed and do hereby agree that the terms of such agreement be put into writing NOW THEREFORE the parties agree to be bound by the following terms and conditions:-
1. The Term
This agreement will commence and terminate on the dates specified in Appendix 1.
2. The Services
The Consultant will or will ensure that its employees will perform the services as described in Appendix 1 (“the Service”). Nothing contained in this contract will be construed as or have the effect of constituting a relationship of employer and employee between the parties to this agreement.
3. The Fee
The fee payable by Client to the Consultant will be the fee as is specified in Appendix 1. The fee will be payable at the frequency indicated in Appendix 1. All fees quoted are exclusive of [ VAT / GST / SALES TAX ]. Where it is indicated in Appendix 1 that Invoices will be submitted by the Consultant the Consultant will submit to Client invoices for fees payable adding the appropriate rate of [ VAT / GST / SALES TAX ] from time to time to each invoice (if it is appropriate to do so). Client will pay each invoice within [ payment period ] days of the date of the invoice. The Consultant will submit invoices to the address specified in Appendix 1.
4. The Location
Client will intimate to the Consultant the location at which Client requires it or its employee’s or subcontractor’s attendance. The Consultant will or will ensure that its employees or subcontractors provide the Services at the location as stipulated by Client.
The Consultant will or will ensure that its employees or subcontractors complete a timesheet in respect of each day it provides the Service to Client and submit same to Client on a monthly basis. The Consultant will invoice Client upon receipt by Client of signed corresponding timesheets, a copy of which will accompany each invoice.
The Consultant and the Client will attend meetings as required from time to time in order to discuss aspects of this agreement and the Services.
Reasonable expenses when properly and necessarily incurred will be paid by the Client. The Consultant will ensure that expenses forms where appropriate and where provided by Client to the Consultant, are completed and delivered to Client as soon as practicably possible following upon the expense actually incurring.
8. Gifts or Commission
The Consultant will not, without the prior written consent of Client accept any gift, commission or other financial benefit or inducement from any person whatsoever and in whatever way connected directly or indirectly to the provision of the Service and will ensure that its employees, subcontractors and agents will not accept any such gift, commission, benefit or inducement and will provide Client with full details of any such gift, commission, benefit or inducement which may be offered.
No minimum hours are promised and no overtime will be paid by Client to the Consultant.
The Consultant agrees to work within the agreed budget specified for the deliverables as set out in Appendix 1. At the discretion of the Consultant, the Consultant may work additional days as required to ensure the timely and complete delivery of the project, and, at own cost will carry out any steps necessary to make good the quality and suitability of the project deliverables.
By exception, and at the request of Client, the Consultant may be requested to work additional days to meet unforeseen requirements. In this circumstance additional days will be paid at the rate of [ £, $, € ][ Insert rate ] plus [ VAT / GST / SALES TAX ] per day, or part day on a pro rata basis.
In the event that a call-out service is required as indicated in Appendix 1 the Consultant will and will ensure that its employees or subcontractors will provide a call-out service. The call-out service will not be provided without the express written consent of the Client line manager.
In circumstances where Client considers it necessary that the Consultant or its employees or subcontractors attend a training course before the Service commences, Client will notify the Consultant accordingly. The Consultant will and will ensure that its employees or subcontractors will attend the training course. The Client / Consultant will pay the fee for the training course.
The Consultant warrants that it has and that its employees and subcontractors have the necessary expertise, skill and experience to provide the Service and will provide unbiased and independent advice in respect of the Service. The Consultant warrants that it will and its employees and subcontractors will comply with representations and descriptions in respect of the Service including, but not limited to capabilities, performance, completeness, accuracy, characteristics and specification.
The Consultant warrants that the Service and any material or materials supplied or obtained by the Consultant or its employees or subcontractors in connection with this agreement will not in any manner or way infringe or violate any third party proprietary rights including but not limited to any copyright, patent, trademark, trade name, registered design, trade secret, proprietary information, contractual, property, employment or non-disclosure rights.
13. Site Requirements
The Consultant will and will ensure that its employees and subcontractors will at all times comply with security regulations which are in force or which are generally or specifically imposed by Client from time to time and that its employees and subcontractors will comply with all statutory site requirements
14. Indemnity and Insurance
The Consultant will indemnify Client against professional loss, damage, costs and expenses which Client may incur as a consequence of any act, omission, negligence or default of the Consultant, its employees, subcontractors, assignees or agents in connection with or in performance of the Services.
Without having the effect of limiting the Consultant’s responsibilities in terms of this Agreement the Consultant will maintain in force Professional Indemnity Insurance with a reputable insurance company and if requested to do so by Client the Consultant will exhibit evidence of such insurance to Client.
The Consultant nor its employees or subcontractors will not obtain rights in any data, materials, or systems otherwise utilised or provided by Client in connection with this agreement. At the request and expense of Client, the Consultant will do all such things and sign all documents or instruments reasonably necessary in the opinion of Client to enable Client to obtain, defend and enforce its rights in any such data, materials or systems. Upon request by Client and in any event promptly deliver to Client copies of such data, materials or systems that may be in the possession, custody or control of the Consultant.
All Intellectual Property Rights in and to any software, documentation, drawings, data, information, database or product created or produced by the Consultant in performing the Services under this Agreement will be the property of Client. The Consultant hereby assigns to Client absolutely its whole right, title and interest, present and future in and to such Intellectual Property Rights free from all liens, charges and encumbrances. The Consultant will provide Client with all information which Client may reasonably request for the purpose of allowing Client to fully exercise its proprietary rights in any jurisdiction.
The Consultant will at Client’s request and expense undertake and execute all acts, deeds, documents and steps necessary to effectively vest such Intellectual Property Rights in Client and will, at Client’s request and expense provide Client with all reasonable assistance required to vest the same in Client in any part of the world.
The provisions and requirements of this clause will survive the expiration or termination of this Agreement.
The Consultant will maintain as confidential all information obtained under or in connection with this Agreement and will not divulge such information to any person (except to their own employees or subcontractors and then only to those employees or subcontractors who need to know same) without Client prior written consent.
This clause will not extend to information which was rightfully in the possession of the Consultant prior to the commencement of the negotiations that led to this Agreement, which was already in the public domain or becomes so at a future date (otherwise than as a result of a breach of this clause or any other confidentiality agreement signed by the Consultant or which is trivial or obvious).
The Consultant will ensure that its employees, subcontractors, assignees or agents are aware of and comply with the requirements of this clause. If requested, the Consultant or its employees or subcontractors will sign a confidentiality agreement in a form specified and provided by Client. These obligations of confidentiality will survive the expiry or any termination of this agreement.
The Consultant will not and will ensure that none of its employees or subcontractors will directly or indirectly, whether on its or their own account, or on the account of any other person, firm or company, or as director, agent, partner, employee, manager, consultant or shareholder of or in any other person, firm or company, at any time during the period from the date of this Agreement to the expiry of [period] after the date of expiration the or termination of this Agreement, for any reason and in any manner whatsoever work on any assignment or project similar to the Services as specified in Clause (2) , for any person, company or firm which is engaged in or conducts a business the same as or similar to or competitive with the business of Client as carried on at the date of this Agreement.
The Consultant or its employees will be able to perform Programme and Project Management services of a general nature for any person, firm or company, without restriction, at any point from the date of expiration or termination of this Agreement.
18. Offers of Employment
The Consultant will not and will ensure that its employees or subcontractors will not make any approach to any member of staff of Client, nor will the Consultant offer employment to any of Client employees or contractors either during this Agreement or for a period of six months from the termination or expiry of the Agreement.
Client will make no approach or offer relating to employment to any employees or subcontractors of the Consultant during this agreement. Client will not accept the services of any such employee or subcontractor for a period of six months immediately following the termination or expiry of this Agreement except (a) on further assignment from the Consultant or (b) as a permanent recruit in which event a fee of 15% (fifteen percent) of his or her initial base salary will be payable by Client to the Consultant at the discretion of the Consultant.
The Consultant and its employees and subcontractors are independent contractors and nothing in this Agreement will render them an agent or partner of Client and the Consultant will not and will ensure that its employees and subcontractors will not hold themselves out as such. The Consultant and its employees and subcontractors will not have any right or power to bind Client to any obligation.
The Consultant is retained or engaged by Client only for the purposes and to the extent set forth in this Agreement. The Consultant’s relation to Client will, during the period or periods of this Agreement, be that of an independent contractor and as such the Consultant will be free to dispose of such portion of its time, energy and skill when the Consultant is not obligated under this Agreement in such a manner as Consultant sees fit.
This Agreement will not establish a joint venture, agency or partnership between Client and the Consultant.
The Consultant will not be considered under this Agreement or otherwise or in any way as having the status of employee or being entitled to participate in any plans, schemes, arrangements or distributions by Client pertaining to or in connection with any person, stock, bonus, profit sharing or other benefits provided ordinarily by Client to its employees.
The Consultant will not and will ensure that its employees or subcontractors will not publicise or advertise this Agreement or any of the terms of this Agreement without the prior written consent of Client.
(a) This agreement may be terminated by Client by giving 28 days notice in writing of its intention to terminate. Client will have no liability in respect of costs incurred following the expiration of such notice.
(b) This agreement may be terminated immediately by either party on giving notice in writing to the other, if the other party has a receiver or administrative receiver appointed or passes a resolution for winding up (otherwise than for a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if the other party becomes subject to an administration order or enters into a voluntary arrangement with its creditors or ceases or threatens to cease to carry on business.
(c) In the event that either party or any employee or subcontractor of the Consultant is in breach of this Agreement and that such breach is rectifiable, that party will have the opportunity to rectify said breach within 14 days of the occurrence of the breach. If the party in breach fails to rectify the breach within 14 days the other party will be entitled to terminate this agreement immediately.
(d) Should the Consultant or any of its employees or subcontractors or agents commit, in the sole opinion of Client a gross breach of contract or be guilty of gross misconduct Client will be entitled to terminate this agreement immediately.
(e) In the event that the Consultant or its employees or subcontractors are absent during the Service and in the sole opinion of Client, that Consultant, employee or subcontractor has been or will be absent for a period of time unacceptable to Client, Client will be entitled to terminate this agreement immediately.
(f) Any termination of this agreement, however occasioned will not affect any accrued rights or liabilities of the other party, nor will it affect the coming into force, or the continuance in force, of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
(g) Upon termination of this agreement each party will promptly return to the other all materials, data and other property of the other held by it. The Consultant will ensure that all such property held in possession by it or any of its employees or subcontractors are promptly returned to Client provided however that if the contract terminates as a result of a breach or breaches by the Consultant or its employees or subcontractors Client will be entitled to retain any such material, data or other property until Client has located a suitable and comparable replacement to perform the services performed by such material, data or other property.
22. Absence and substitution
Where the Consultant wishes to meet other commitments, which will require absence from the project, the Consultant will ensure that:
(a) The Consultant gives Client reasonable notice (not less than 30 working days);
(b)The Consultant’s absence does not interfere with the performance and schedule of completion of the services as detailed in Appendix 1;
(c) If appropriate, the Consultant offers substitute resources in accordance with the following terms to continue the project.
Where the Consultant is unable to perform the whole or any part of the project for whatever reason the Consultant will offer a substitute of equivalent expertise to work in the Consultant’s place. Client has the right on reasonable grounds to refuse to accept the proposed substitute Consultant and the right to review the Agreement and if appropriate, terminate the Agreement.
23. Force Majeure
Notwithstanding anything else contained in this Agreement neither party will be liable for any delay in performing its obligations herein, if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by an act or omission of the other party).
Subject to the party so delaying promptly notifying the other party in writing of the reason for the delay and the likely duration of the delay, the performance of such party’s obligations will be suspended during the period that the said circumstances persist, and such party will be granted an extension of a time period for performance of duties and obligations under this agreement equal to the period of the delay.
This to be the case except where said delay is caused by the act or omission of the other party, in which event the rights, remedies and liabilities of the parties will be as conferred by the other clauses and terms of this Agreement and by law:
(a)Any costs arising from such delay will be borne by the party incurring the same, and
(b) either party may, if such delay continues for more than [ X ] weeks terminate this Agreement on giving notice in writing to the other in which event neither party will be liable to the other by reason of such termination.
24. Waiver of Remedies
No forbearance, indulgence or delay by either party in enforcing the provisions of this Agreement will prejudice or restrict the rights of that party, nor will any waiver of its rights operate as a waiver of any subsequent breach.
No right, power or remedy in the Agreement conferred upon or reserved for either party is exclusive of all other right, power or remedy available to that party and each such right, power or remedy will be cumulative.
25. Entire Agreement
This Agreement supersedes all prior arrangements, agreements and understandings between the parties. No addition to or modification of any provision of this Agreement will be binding upon the parties unless made by written instrument and signed by an authorised representative of each of the parties.
Neither party will assign or transfer this Agreement or any of its rights or obligations herein, whether in whole or in part without the prior written consent of the other.
All notices that are required to be given under this agreement will be in writing and will be sent to the address of the appropriate party as set out in this Agreement or such alternative address in [ state country ] as the recipient may designate by notice given in accordance with the provisions of this clause. Any such notice may be delivered personally, by first class pre paid letter, telex or facsimile transmission and will be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by telex or facsimile transmission when despatched.
The headings to and numbering of the clauses of this Agreement are for ease of reference only and will not affect the interpretation, application or construction of this Agreement.
29. Compliance by Employees
The Consultant will ensure that its employees, subcontractors or agents if any are aware of and comply with the terms of this Agreement.
This Agreement will be governed by and construed in accordance with the Laws of [ insert country name ]. Any dispute which may arise between the parties concerning this Agreement will be determined by the [ insert ] Courts and the parties hereby submit to the exclusive jurisdiction of the [ insert ] courts for such purpose.
Signed by and on behalf of Client Group
By [ Client Sponsor signature ]
Dated [ INSERT DATE ]
Signed by and on behalf of Consultant
By [ Consultant signature ]
Dated [ INSERT DATE]