The Consultant and the Client referred to in paragraph 1 of the Particulars hereby agree as follows:-
1.1 In this Agreement:
“AGREEMENT” means this Agreement including the Particulars as the same may be amended, modified or supplemented from time to time in accordance with these provisions;
“ANCILLARY SERVICES” means all services which are ancillary to the Services which shall be arranged by the Consultant but contacted directly by the Client.
“CONFIDENTIAL INFORMATION” means all unpatented designs, drawings, data, specifications, manufacturing processes, testing procedures and all other technical business and similar information relating to the Services including all readable or computer or other machine readable data, logic, logic diagrams, flow charts, orthographic representations, coding sheets, coding, source or object codes, listings, test data, test routines, diagnostic programs or other material relating to or comprising software which is part of the Services;
“INTELLECTUAL PROPERTY” means registered trade marks, patents, utility models, registered designs, applications for, and the right to apply for, any such rights, inventions, unregistered trade marks, trade and business names (including rights in any get-up or trade dress), copyrights, unregistered design rights, databases and rights in databases, know-how and all other similar proprietary rights which may subsist in any part of the world together with all renewals, extensions and revivals thereof
1.2 The headings in this Agreement are inserted only for convenience and shall not affect its construction.
1.3 Where appropriate words denoting a singular number only shall include the plural and vice versa.
1.4 Reference to any statute or statutory provision includes a reference to the statute or statutory provisions as from time to time amended, extended or re-enacted.
This Agreement shall commence on the date referred to in paragraph 3 of the Particulars and terminate in accordance with the provisions of clause 9 hereof.
3 Positive obligations of the consultant
3.1 The Consultant shall at all times during the period of this Agreement faithfully and diligently perform those duties and exercise such powers consistent with them which are from time to time necessary in connection with the provision of the Services.
3.2 If any of the Consultant’s personnel shall be prevented by illness or injury from performing the Services the Consultant or the person himself shall report that fact forthwith to the Client and, in the case of an absence of uncertain duration, shall keep the Client informed of the reason for his continued absence and of its expected duration.
For the avoidance of doubt, the appointment of the Consultant under the terms of this Agreement is non-exclusive and accordingly, nothing herein contained shall prevent the Consultant from providing any services (including the Services) to persons other than the Client during the term of this Agreement.
5 Ancillary Services
5.1 The Consultant shall make such arrangements as are appropriate to enable the Client to enter into direct contracts with such contractors as the Consultant shall recommend for the performance of the Ancillary Services.
5.2 The Client shall use its best endeavours to enter into such contracts as are required with such contractors as recommended by the Consultant for the performance of the Ancillary Services and shall give such instructions to such contactors as the Consultant shall recommend for the better performance of the Ancillary Services.
6 Confidential Information and Intellectual Property
6.1 The Consultant agrees to keep and to ensure that its personnel shall keep the Confidential Information and all other matters arising or coming to its or their attention in connection with the provision of the Services secret and confidential and not at any time for any reason whatsoever to disclose them or permit them to be disclosed to any third party except as permitted hereunder to enable the Consultant to carry out its duties and obligations.
6.2 The Consultant agrees to treat as secret and confidential and not at any time for any reason to disclose or permit to be disclosed to any person or persons or otherwise make use of or permit to be made use of any information relating to the Client’s technology, technical processes, business affairs or finances or any such information relating to any suppliers, or customers of the Client where knowledge or details of the information was received during the period of this Agreement.
6.3 The obligations of confidence referred to in this clause shall not apply to any Confidential Information or other information which:
(a) is in the possession of and is at the free disposal of the Consultant or is published or is otherwise in the public domain prior to the receipt of such Confidential Information or other information by the Consultant;
(b) is or becomes publicly available on a non-confidential basis through no fault of the Consultant;
(c) is received in good faith by the Consultant from a third party who, on reasonable enquiry by the Consultant claims to have no obligations of confidence to the Client in respect of it and who imposes no obligations of confidence upon the Consultant.
6.4 Any Intellectual Property which shall arise out of or by reason of or in connection with the performance of the Services shall vest in the Consultant and the parties shall at the request and cost of the Consultant take such steps and perform such acts as are requisite to vest such Intellectual Property in the Consultant.
6.5 The obligations of the parties under this clause 4 shall survive the expiry or the termination of this Agreement for whatever reason.
6.1 This clause sets out the entire financial liability of the Consultant to the Client (including any liability for the acts or omissions of the directors, employees, agents, experts, contributors, consultants, locums and sub-contractors of the Consultant) in respect of:
(a) any breach of this Agreement or any of the obligations of the Consultant to the Client;
(b) any use made by the Client of the Services or the Ancillary Services or any part of them or advice given by the Consultant; and
(c) any representation, statement or tortious act or omission (whether negligent or otherwise) arising under or in connection with this Agreement.
6.2 Except as expressly and specifically provided in this Agreement all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
6.3 Nothing in this Agreement excludes the liability of the Consultant:
(a) for death or personal injury caused by the negligence of the Consultant; or
(b) for fraud or fraudulent misrepresentation.
6.4 Subject to the exemption in the previous sub-clause hereof:
(a) the Consultant shall not be liable for any loss of profits, loss of business, depletion of goodwill or similar losses or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising; and
(b) the total aggregate liability in contract, tort (including negligence or breach of common law, statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the limit of liability set out in the Particulars or if none, the aggregate of the sums paid to the Consultant under the terms hereof. The Clients hereby acknowledges that this limitation is reasonable.
6.5 The Consultant shall have no liability to the Client under this Agreement if the Consultant is prevented from or delayed in performing its obligations or from carrying on business by acts, events, omissions or accidents beyond its reasonable control, including without limitation default of sub-contractors, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or communications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.
6.6 It is hereby agreed that, subject to the provisions of clause 6.3, the Consultant shall have no liability howsoever arising for the performance of any of the Ancillary Services.
6.7 The provisions of this clause shall survive the termination of this Agreement for any reason.
7.1 In consideration of the provision of the Services, the Client shall pay to the Consultant the fees specified in paragraph 4 of the Particulars or calculated on the basis set out therein. These sums are exclusive of VAT.
7.2 In the event that the Client shall request any variation to the Services and if the Consultant shall agree to any such request for variation the amount of the fees chargeable for any extra or altered work shall be either as set out in the Particulars or if not specified therein shall be charged at the Consultant’s standard rate of charge from time to time in force for work of a like nature.
7.3 All payments shall be made by the Client by a cheque or bank transfer to the account of the Consultant at a bank to be nominated in writing by the Consultant.
7.4 The parties are contractors independent of each other and agree that nothing in this Agreement shall be deemed to create or imply the existence of any partnership or joint venture between the parties nor any arrangement which would impose liability on one party for the actions of the other. It is agreed that the Consultant shall be responsible for all tax liabilities in respect of its fees (other than VAT properly charged on such fees) and in respect of any employee of the Consultant engaged in the provision of the Services on the Consultant’s behalf and the Consultant agrees to indemnify the Client against all demands for any tax penalties and interest made against it in respect of the provision of the Consultant’s Services hereunder and against its costs of dealing with such demands
8 Obligations of the Client
8.1 The Client confirms and acknowledges that the details and specification (if any) of the Services contained in the Particulars are true and accurate and correctly describe the requirements of the Client and hereby instructs the Consultant to undertake the Services as therein described.
8.2 Throughout the period of this Agreement the Client shall afford the Consultant such access to the Client’s information records and other relevant material as the Consultant may reasonably require to provide the Services hereof provided always that the Client shall be obliged to afford such access only during its normal business hours. Further the Client shall:
8.1.1 advise the Consultant of the rules and regulations which are then in force for the conduct of personnel at any premises of the Client. The Consultant shall ensure that its personnel comply with any such rules and regulations;
8.1.2 make available such working space and facilities at the premises of the Client as the Consultant may reasonably require. Such working space and facilities shall be comparable to but not better than those given by the Client to its own personnel of similar status;
8.1.3 make available appropriate personnel to liaise with the Consultant;
8.1.4 secure and otherwise keep safe all and any property of the Consultant.
9 Additional Terms
The parties shall observe and perform the additional terms set out in paragraph 6 of the Particulars.
10.1 This Agreement may be terminated (but such termination shall be without prejudice to any provision intended to operate thereafter):-
10.1.1 by the Consultant giving to the Client not less than 7 days notice in writing; or
10.1.2 by the Client giving to the Consultant one month’s notice in writing such notice not to expire before the expiry of the Prime Period; or
10.1.3 in accordance with any provisions set out in the Particulars.
10.2 In addition either party may terminate this Agreement forthwith by notice in writing to the other if the other:
10.2.1 commits a breach of this Agreement which in the case of a breach capable of remedy shall not have been remedied within 30 days of the receipt by the other of a notice from the innocent party identifying the breach and requiring its remedy;
10.2.2 is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of the relevant party under this Agreement) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the party giving notice means that the other may be unable to pay its debts.
10.3 Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of this Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other and all provisions which are expressed to survive this Agreement shall remain in force and effect.
Neither party shall assign, transfer or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other but this clause shall not prevent the Consultant sub-contracting any part of the Services to competent sub-contractors provided that the Consultant shall retain overall control thereof.
12 Governing law and jurisdiction
The validity construction and performance of this Agreement shall be governed by English law.
If any provision or term of this Agreement or any part thereof shall become or be declared illegal invalid or unenforceable for any reason whatsoever including but without limitation by reason of the provisions of any legislation or other provisions having the force of law or by reason of any decision of any Court or other body or authority having jurisdiction over the parties or this Agreement in whatever jurisdiction, such terms or provisions shall be divisible from this Agreement and shall be deemed to be deleted from this Agreement in the jurisdiction in question provided always that, if any such deletion substantially affects or alters the commercial basis of this Agreement, the parties shall negotiate in good faith to amend and modify the provisions and terms of this Agreement as may be necessary or desirable in the circumstances.
14 Entire agreement/no agency/amendment/waiver/press releases
14.1 This Agreement embodies and sets forth the entire agreement and understanding of the parties and supersedes all prior oral or written agreements understandings or arrangements relating to the subject matter of this Agreement. Neither party shall be entitled to rely on any agreement, understanding or arrangement which is not expressly set forth in this Agreement.
14.2 Each party acknowledges that it does not have written authority to and agrees that it will not at any time without the other’s prior written consent act as agent for the other in any way represent the other pledge the credit of or make any representation or give any warranty on behalf of it or contract any rights and liabilities on the other’s behalf
14.3 This Agreement shall not be amended, modified, varied or supplemented except in writing signed by duly authorised representatives of the parties.
14.4 No failure or delay on the part of either party hereto to exercise any right or remedy under this Agreement shall be construed or operate as a waiver thereof nor shall any single or partial exercise of any right or remedy as the case may be. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.
14.5 The text of any press release or other communication to be published by or in the media concerning the subject matter of this Agreement shall require the approval of each party.
15 Third Party Rights
A person who is not party to this agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
16.1 Any notice or other document to be given under this Agreement shall be in writing and shall be deemed to have been duly given if left at or sent by:
16.1.1 first class post or express or air mail or other fast postal service; or
16.1.2 registered post; or
16.1.3 facsimile or other electronic media to a party at the address or relevant telecommunications number for such party or such other address as the party may from time to time designate by written notice to the other.
16.2 All such notices and documents shall be in the English language. Any notice or other document shall be deemed to have been received by the addressee two working days following the date of despatch of the notice or other document by post or, where the notice or other document is sent by hand or is given by telex, facsimile or other electronic media, simultaneously with the delivery or transmission. To prove the giving of a notice or other document it shall be sufficient to show that it was despatched.