Consultancy Agreement

 

DATE

Acceptance date of the proposal.

PARTIES

1.         Viridian HR Ltd, a company incorporated in England and Wales registration number 09772531, having its registered office at Oakridge House, Wellington Road, High Wycombe, Buckinghamshire, HP12 3PR (the “Consultancy“); and

2.         The “Client“.

BACKGROUND

The Consultancy and the Client wish to enter into a contract for the provisions of Human Resources consultancy services.

AGREEMENT

1.         Definitions

1.1       Except to the extent expressly provided otherwise, in this Agreement:

            “Acceptance Criteria” means compliance with the warranties set out in Clause 5.4;

            “Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

            “Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;

            “Assigned Deliverables” means those Deliverables (excluding the Third Party Materials and the Client Materials) the rights in which are to be assigned (rather than licensed) by the Consultancy to the Client under Clause 8, as specified in Part 2 of Schedule 1 (Consultancy Particulars);

            “Business Day” means any weekday other than a bank or public holiday in England;

            “Business Hours” means the hours of 9am to 5pm on a Business Day;

            “Charges” means the following amounts:        

(a)        the amounts specified in Part 5 of Schedule 1 (Consultancy Particulars);

(b)        such amounts as may be agreed in writing by the parties from time to time; and

(c)        amounts calculated by multiplying the Consultancy’s day rate (as notified by the Consultancy to the Client before the date of this Agreement) by the time spent by the Consultancy’s personnel performing the Services.

            “Client Confidential Information” means:

(a)        any information disclosed by or on behalf of the Client to the Consultancy at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(i)         was marked as “confidential”; or

(ii)         should have been reasonably understood by the Consultancy to be confidential;

(b)        the terms of this Agreement

            “Client Indemnity Event” has the meaning given to it in Clause 18.3;

            “Client Materials” means all works and materials supplied by or on behalf of the Client to the Consultancy for incorporation into the Deliverables or for some other use in connection with the Services;

            “Consultancy Confidential Information” means:

(a)        any information disclosed by the Consultancy to the Client at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(i)         was marked as “confidential”; or

(ii)         should have been reasonably understood by the Client to be confidential;

(b)        the terms of this Agreement

            “Consultancy Indemnity Event” has the meaning given to it in Clause 18.1;

            “Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);

            “Data Subject” means an individual who is the subject of Personal Data.

            “Deliverables” means those specified in Schedule 1 (Consultancy particulars);

            “Effective Date” means the date of this Agreement;

            “Expenses” means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by the Consultancy exclusively in connection with, the performance of the Consultancy’s obligations under this Agreement;

            “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including but not limited to failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

            “GDPR” means General Data Protection Regulation ((EU) 2016/679);

            “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights;

            “Licensed Deliverables” means the Deliverables excluding the Assigned Deliverables, the Third-Party Materials and the Client Materials;

            “Permitted Purpose” means the Purpose of carrying out the Deliverables specified in Schedule 1 (Consultancy Particulars);

            “Personal Data”  means any information relating to an identified or identifiable natural person that is processed by the Processor as a result of, or in connection with, the provision of the services under the Services Agreement; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

            “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;

            “Personal Data Legislation” means all applicable data protection laws including GDPR and any applicable national implementing laws, regulations and secondary legislation relating to the processing of Personal Data and the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426);

            “Processing” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

            “Schedule” means any schedule attached to the main body of this Agreement;

            “Services” means the consultancy services specified in Schedule 1 (Consultancy Particulars);

            “Term” means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2; and

            “Third Party Materials” means the works and/or materials comprised in the Deliverables (excluding the Client Materials), the Intellectual Property Rights in which are owned by a third party, and which are specified in Part 2 of Schedule 1 (Consultancy Particulars) or which the parties agree in writing shall be incorporated into the Deliverables.

2.         Term

2.1       This Agreement shall come into force upon the acceptance of the proposal by the Client or the request from the client for the Consultancy to carry out work.

2.2       This Agreement shall thereafter continue in force until notice is served in accordance with Clause 21.

3.         Services

3.1       The Consultancy shall provide the Services to the Client in accordance with this Agreement.

3.2       The Consultancy shall provide the Services with reasonable skill and care and in accordance with the standards of skill and care reasonably expected from HR Professionals.

3.3       The Consultancy shall devote such of its personnel’s time and expertise to the performance of the Services as may be necessary for their satisfactory and timely completion.

3.4       The Consultancy shall keep the Client informed about the progress of the Services and, in particular, shall promptly provide information about such progress following receipt of a written request from the Client to do so.

3.5       The Consultancy shall comply with all reasonable requests and directions of the Client in relation to the Services.

3.6       The Consultancy shall comply with all internal policies and procedures operated by the Client, communicated by the Client to the Consultancy and affecting the provision of the Services.

4.         Client obligations

4.1       Promptly following receipt of a written request from the Consultancy to do so, the Client will provide to the Consultancy such:

(a)        assistance and co-operation;

(b)        information and documentation;

(c)        access to the premises, computers and networks of the Client; and

(d)        legal, accountancy and taxation advice,

            as is reasonably requested by the Consultancy for the purpose of enabling the Consultancy to perform its obligations under this Agreement.

4.2       The Client shall be responsible for procuring any third party co-operation reasonably required by the Consultancy to enable the Consultancy to perform its obligations under this Agreement.

5.         Deliverables

5.1       The Consultancy shall deliver the Deliverables to the Client.

5.2       The Client must promptly, following receipt of a written request from the Consultancy to do so, provide written feedback to the Consultancy concerning the Consultancy’s proposals, plans, designs and/or preparatory materials relating to the Deliverables and made available to the Client with that written request.

5.3       The Consultancy shall use its best endeavours to ensure that the Deliverables are delivered to the Client in accordance with the timetable set out in Schedule 1 (Consultancy Particulars).

5.4       The Consultancy warrants to the Client that:

(a)        the Deliverables will conform with the requirements of Part 2 of Schedule 1 (Consultancy Particulars) as at the date of acceptance of the Deliverables;

(b)        the Deliverables will be free from material defects;

(c)        the use of the Deliverables by the Client in accordance with this Agreement will not:

(i)         breach the provisions of any law, statute or regulation;

(ii)         infringe any third party’s Intellectual Property Rights;

in each case in the jurisdiction of England.

6.         Acceptance

6.1       Within 10 Business Days following the delivery of Deliverables to the Client, the Client shall:

(a)        test or review the Deliverables to determine whether they comply with the Acceptance Criteria; and

(b)        notify the Consultancy in writing of the results of such test or review, providing full details of any non-compliance with the Acceptance Criteria.

6.2       If the Client does not give to the Consultancy a notice under Clause 6.1, within the period referred to in Clause 6.1, then the Deliverables shall be deemed to meet the Acceptance Criteria.

6.3       If the Deliverables do not comply with the Acceptance Criteria and the Client notifies the Consultancy of the non-compliance in accordance with this Clause 6, the Consultancy will have a further reasonable period agreed by the parties of 5 to 20 Business Days to remedy the non-compliance, following which the Client will repeat the tests or review.

6.4       If the Deliverables do not meet the Acceptance Criteria at the time of a second (or subsequent) round of acceptance tests or reviews under this Clause 6, then the Consultancy shall be deemed to be in breach of this Agreement.

6.5       If the Client accepts or is deemed to accept the Deliverables under this Clause 6, then subject to Clause 19.1 the Client will have no right to make any claim under or otherwise rely upon Clause 5.4 unless the Client could not reasonably have been expected to have identified the breach of that provision during the testing or review process.

7.         Client Materials

7.1       The Client must supply to the Consultancy the Client Materials specified in Schedule 1 (Consultancy Particulars).

7.2       The Client hereby grants to the Consultancy a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Materials to the extent reasonably required for the performance of the Consultancy’s obligations and the exercise of the Consultancy’s rights under this Agreement, together with the right to sub-license these rights to the extent reasonably required for the performance of the Consultancy’s obligations and the exercise of the Consultancy’s rights under this Agreement.

7.3       The Client warrants to the Consultancy that the use of the Client Materials by the Consultancy in accordance with this Agreement will not:

(a)        breach the provisions of any law, statute or regulation;

(b)        infringe the Intellectual Property Rights or other legal rights of any person; or

(c)        give rise to any cause of action against the Consultancy,

in each case in any jurisdiction in England.

8.         Intellectual Property Rights

8.1       The Consultancy hereby grants to the Client an exclusive licence to copy, store, adapt, edit and otherwise use the Deliverables for the following purposes: day to day running of the Client’s business.

8.2       The Consultancy shall ensure that the Third-Party Materials are:

(a)        licensed to the Client in accordance with the relevant licensor’s standard licensing terms;

(b)        licensed to the Client on reasonable terms notified by the Consultancy to the Client;

(c)        sub-licensed by the Consultancy to the Client on reasonable terms notified in writing by the Consultancy to the Client;

as reasonably agreed between the parties from time to time.

8.3       To the maximum extent permitted by applicable law:

(a)        the Consultancy irrevocably and unconditionally waives all moral rights (including rights of paternity and rights of integrity) in respect of the Deliverables to which the Consultancy may at any time be entitled; and

(b)        the Consultancy undertakes to ensure that all individuals involved in the preparation of the Deliverables will irrevocably and unconditionally waive all moral rights (including rights of paternity and rights of integrity) in respect of the Deliverables to which they may at any time be entitled.

8.4       The Consultancy must use reasonable endeavours to:

(a)        do or procure the doing of all acts; and

(b)        execute or procure the execution of all documents,

that the Client may reasonably request from time to time in order to perfect or confirm the Client’s ownership of the rights assigned by this Agreement.

9.         Charges

9.1       The Client shall pay the Charges to the Consultancy in accordance with this Agreement.

9.2       If the Charges are based in whole or part upon the time spent by the Consultancy performing the Services, the Consultancy must obtain the Client’s consent before performing Services that result in any estimate of time-based Charges given to the Client being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Client agrees otherwise in writing, the Client shall not be liable to pay to the Consultancy any Charges in respect of Services performed in breach of this Clause 9.2.

9.3       All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Client to the Consultancy.

9.4       The Consultancy may elect to vary any element of the Charges by giving to the Client not less than 30 days’ written notice of the variation.

10.       Expenses

10.1     The Client shall reimburse the Consultancy in respect of any Expenses, providing that the Consultancy must obtain the prior written authorisation of the Client before incurring any Expenses exceeding such limitations as may be agreed in writing by the parties from time to time.

10.2     The Consultancy must collect and collate evidence of all Expenses, and must retain such evidence during the Term and for a period of 90 days following the end of the Term.

10.3     Within 10 Business Days following receipt of a written request from the Client to do so, the Consultancy must supply to the Client such copies of the evidence for the Expenses in the possession or control of the Consultancy as the Client may specify in that written request.

11.       Timesheets

Within 10 Business Days following receipt of a written request, the Consultancy shall supply to the Client copies of timesheets if charges were based on time spent.

12.       Payments

12.1     The Consultancy shall issue invoices for the Charges to the Client at any time after the relevant Services have been delivered to the Client or in advance of the delivery of the relevant Services to the Client in case of a retainer.

12.2     The Client must pay the Charges to the Consultancy within the period of 14 days following the issue of an invoice in accordance with this Clause.

12.3     The Client must pay the Charges by bank transfer as specified on the invoices.

12.4     If the Client does not pay any amount properly due to the Consultancy under this Agreement, the Consultancy may:

(a)        charge the Client interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b)        claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

13.       Mutual confidentiality obligations

13.1     The parties must:

(a)        keep the Confidential Information strictly confidential;

(b)        not disclose Confidential Information to any person without the other partie’s prior written consent;

 (c)       use the same degree of care to protect confidentiality of Information as used to protect their own confidential information of a similar nature, being at least a reasonable degree of care;

(d)        act in good faith at all times in relation to Confidential Information; and

(e)        not use any Confidential Information for any purpose other than the Permitted Purpose.

13.2     Notwithstanding Clause 13.1, the parties may disclose Confidential Information to their professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information.

13.3     This Clause 13 imposes no obligations upon the parties with respect to Confidential Information that:

(a)        is known before disclosure under this Agreement and is not subject to any other obligation of confidentiality;

(b)        is or becomes publicly known through no act or default of the parties; or

(c)        is obtained from a third party in circumstances where the parties have no reason to believe that there has been a breach of an obligation of confidentiality.

13.4     The restrictions in this Clause 13 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request.

13.5     Upon the termination of this Agreement, the parties must immediately cease to use the Confidential Information.

13.6     Following the termination of this Agreement, and within 5 Business Days following the date of receipt of a written request from the Client, the Consultancy must destroy or return to the Client (at the Client’s option) all media containing Client Confidential Information, and must irrevocably delete the Client’s Confidential Information from its computer systems.

13.7     The provisions of this Clause 13 shall continue in force for a period of 5 years following the termination of this Agreement, at the end of which period they will cease to have effect.

14.       Publicity

Neither party may make any public disclosures relating to this Agreement or the subject matter of the Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the other party.

15.       Data protection

15.1     The Client warrants to the Consultancy that it has the legal right to disclose all Personal Data that it does in fact disclose to the Consultancy under or in connection with this Agreement, and that the processing of that Personal Data by the Consultancy for the Permitted Purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws.

15.2     To the extent that the Consultancy processes Personal Data disclosed by the Client, the Consultancy warrants that:

(a)        it will act only on instructions from the Client in relation to the processing of that Personal Data;

(b)        it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data including the encryption of Personal Data;

(c)   It has the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

(d)   In assessing the appropriate level of security, the Consultancy shall take account in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.

(e)   it will not transfer or permit the transfer of that Personal Data outside the EEA without the prior written consent of the Client.

(f)    It will comply with any reasonable data protection methods that the Client may have in place.

15.3.  Personal Data Breach

15.3.1 If any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable (“Personal Data Loss”), the Consultancy will notify the Client without undue delay (and in any event within 24 hours) after learning of such Personal Data Loss and the Processor shall to the extent possible restore any such data at its own expense.

15.3.2 If the Consultancy becomes aware of any unauthorised or unlawful processing of the Personal Data or any Personal Data Breach, it will notify the Client without undue delay (and in any event within 24 hours) including all relevant information such as:

(a)        a description of the nature of the Personal Data Breach, the unauthorised or unlawful processing and/or the Personal Data Loss, including the categories and approximate number of both Data Subjects and Personal Data records concerned;

 (b)       the likely consequences; and

 (c)       description of the measures taken, or proposed to be taken, including measures to mitigate the impact.

15.3.3 The parties will co-ordinate and co-operate with each other to investigate any matters arising as contemplated by this clause.

15.3.4 The Consultancy shall take all reasonable steps to mitigate the effects and reduce the impact of any Personal Data Breach or unlawful Personal Data processing.

15.3.5 The Consultancy agrees that it shall not (and the Client is solely responsible to):

 (a)       provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or any other third party, except when the Consultancy (as opposed to the Client) is required by law or regulation to provide such notice; and

(b)        offer any type of remedy to affected Data Subjects.

15.4 Responses to data subjects  

(a)        The Consultancy will put in place such technical and organisational measures as may be appropriate to enable the Client to comply with the rights of Data Subjects under Data Protection Legislation, including the right of access, the right to rectification, the right to erasure, the right to restriction of processing, the right to data portability, the right to object to processing and the right to object to automated individual decision making.

(b)        If the Consultancy receives any complaint or other communication relating to the processing of the Personal Data or a Subject Access Request from a Data Subject, it must notify the Client as soon as possible after it receives it and in any event within 3 working days and will provide the Client with all reasonable assistance in helping the Client to reply to such communications.

(c)        The Consultancy will provide all appropriate assistance to the Client to enable it to comply with any information or assessment notices served on the Client by any supervisory authority under the Data Protection Legislation.

(d)        The Consultancy shall not disclose Personal Data to any third party other than at the Client’s written request or as set out in this agreement or as required by law.

16.       Warranties

16.1     The Consultancy warrants to the Client that:

(a)        the Consultancy has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

(b)        the Consultancy will comply with all applicable legal and regulatory requirements applying to the exercise of the Consultancy’s rights and the fulfilment of the Consultancy’s obligations under this Agreement; and

(c)        the Consultancy has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

16.2     The Client warrants to the Consultancy that it has the legal right and authority to enter into this Agreement and to perform its obligations under the Agreement.

16.3     All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into the Agreement or any related contract.

17.       Indemnities

17.1     The Consultancy shall indemnify and shall keep indemnified the Client against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Client and arising directly or indirectly as a result of any breach by the Consultancy of Clause 13 or Clause 5.4 (a “Consultancy Indemnity Event“).

17.2     The Client must:

(a)        upon becoming aware of an actual or potential Consultancy Indemnity Event, notify the Consultancy;

(b)        provide to the Consultancy all such assistance as may be reasonably requested by the Consultancy in relation to the Consultancy Indemnity Event;

(c)        allow the Consultancy the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Consultancy Indemnity Event; and

(d)        not admit liability to any third party in connection with the Consultancy Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Consultancy Indemnity Event without the prior written consent of the Consultancy,

without prejudice to the Consultancy’s obligations under Clause 17.1 / and the Consultancy’s obligation to indemnify the Client under Clause 17.1 shall not apply unless the Client complies with the requirements of this Clause 17.2.

17.3     The Client shall indemnify and shall keep indemnified the Consultancy against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Consultancy and arising directly or indirectly as a result of any breach by the Client of Clause 13 or Clause 7.3 (a “Client Indemnity Event“).

17.4     The Consultancy must:

(a)        upon becoming aware of an actual or potential Client Indemnity Event, notify the Client;

(b)        provide to the Client all such assistance as may be reasonably requested by the Client in relation to the Client Indemnity Event;

(c)        allow the Client the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Client Indemnity Event; and

(d)        not admit liability to any third party in connection with the Client Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Client Indemnity Event without the prior written consent of the Client,

17.5       The indemnity protection set out in this Clause 17 shall be subject to the limitations and exclusions of liability set out in this Agreement.

18.       Limitations and exclusions of liability

18.1     Nothing in this Agreement will:

(a)        limit or exclude any liability for death or personal injury resulting from negligence;

(b)        limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)        limit any liabilities in any way that is not permitted under applicable law; or

(d)        exclude any liabilities that may not be excluded under applicable law.

18.2     The limitations and exclusions of liability set out in this Clause 18 and elsewhere in this Agreement:

(a)        are subject to Clause 18.1; and

(b)        govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.

18.3     Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

18.4     Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

18.5     Neither party shall be liable to the other party in respect of any loss of revenue or income.

18.6     Neither party shall be liable to the other party in respect of any loss of use or production.

19.7     Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

19.8     Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.

19.9     Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

19.10   The liability of each party to the other party under this Agreement in respect of any event or series of related events shall not exceed the greater of:

(a)        five hundred thousand pounds (£500,000); and

(b)        the total amount paid and payable by the Client to the Consultancy under the Agreement in the 12-month period preceding the commencement of the event or events.

20.       Force Majeure Event

20.1     If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement, that obligation will be suspended for the duration of the Force Majeure Event.

20.2     A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

(a)        promptly notify the other; and

(b)        inform the other of the period for which it is estimated that such failure or delay will continue.

20.3     A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

21.       Termination

21.1     The Consultancy may terminate this Agreement by giving to the Client no less than 30 days’ written notice of termination, expiring at the end of any contractual period of one month for project work and 12 months for retainers.

21.2     The Client may terminate this Agreement by giving to the Consultancy no less than 30 days’ written notice of termination, expiring at the end of any contractual period of one month for project work and 12 months for retainers.

21.3     The Consultancy may terminate this Agreement immediately by giving written notice of termination to the Client if:

(a)        the Client commits any material breach of the Agreement, and:

(i)         the breach is not remediable; or

(ii)         the breach is remediable, but the Client fails to remedy the breach within the period of 30 days following the giving of a written notice by the Consultancy to the Client requiring the breach to be remedied; or

(b)        the Client persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).

21.4     The Client may terminate this Agreement immediately by giving written notice of termination to the Consultancy if:

(a)        the Consultancy commits any material breach of the Agreement, and:

(i)         the breach is not remediable; or

(ii)         the breach is remediable, but the Consultancy fails to remedy the breach within the period of 30 days following the giving of a written notice by the Client to the Consultancy requiring the breach to be remedied; or

(b)        the Consultancy persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).

21.5     Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a)        the other party:

(i)         is dissolved;

(ii)         ceases to conduct all (or substantially all) of its business;

(iii)        is or becomes unable to pay its debts as they fall due;

(iv)        is or becomes insolvent or is declared insolvent; or

(v)        convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)        an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)        an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement);

22.       Effects of termination

22.1     Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 6.5, 8.1, 8.2, 8.4, 10.2, 10.3, 11, 12.2, 12.4, 13, 14, 15.1, 15.2, 18, 19, 22, 23, 24.2, 27, 28, 29, 30, 32, 33 and 34.

22.2     The termination of this Agreement shall not affect the accrued rights of either party.

23.       Non-solicitation of personnel

23.1     The Client must not, without the prior written consent of the Consultancy, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Consultancy who has been involved in any way in the negotiation or performance of this Agreement.

23.2     The Consultancy must not, without the prior written consent of the Client, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Client who has been involved in any way in the negotiation or performance of this Agreement.

24.       Status of Consultants

24.1     The Consultants are not employees of the Client, but independent contractors.

24.2     The termination of this Agreement will not constitute unfair dismissal; nor will the Consultancy be entitled to any compensation payments, redundancy payments or similar payments upon the termination of this Agreement. 

25.       Notices

25.1     Any notice given under this Agreement must be in writing, whether or not described as “written notice” in this Agreement.

25.2     Any notice given by the Client to the Consultancy under this Agreement must be:

(a)        delivered personally;

(b)        sent by courier;

(c)        sent by recorded signed-for post;

(d)        sent by email;

using the relevant contact details set out in Clause 25.4.

25.3     Any notice given by the Consultancy to the Client under this Agreement must be:

(a)        delivered personally;

(b)        sent by courier;

(c)        sent by recorded signed-for post;

(d)        sent by email.

using the relevant contact details set out in Clause 25.4.

25.4     The parties’ contact details for notices under this Clause 25 are as follows:

(a)        in the case of notices served by the Client to the Consultancy, Viridian HR, Oakridge House, Wellington Road, High Wycombe, Buckinghamshire, HP12 3PR or karine.lipinski@viridianhr.co.uk and

(b)        in the case of notices sent by the Consultancy to the Client, at the Client’s registered address or Client’s email address used for the delivery of the service.

25.5     A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

25.6     A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:

(a)        in the case of notices delivered personally, upon delivery;

(b)        in the case of notices sent by courier, upon delivery;

(c)        in the case of notices sent by post, 48 hours after posting;

(d)        in the case of notices sent by email, at the time of the sending of the email (providing the sending party retains written evidence that the email has been sent).

26.       Subcontracting

26.1        The Consultancy may only authorise a third party (“subcontractor”) to process the Personal Data if the Consultancy has obtained the prior written consent from the Client for each appointment of a subcontractor.

26.2        The Processor shall be fully liable for the actions and inactions of the subcontractor and shall be responsible for the subcontractor’s performance of obligations.

27.       Assignment

27.1     The Client hereby agrees that the Consultancy may assign, transfer or otherwise deal with the Consultancy’s contractual rights and obligations under this Agreement to any Affiliate of the Consultancy or to any successor to all or a substantial part of the business of the Consultancy from time to time.

27.2     The Consultancy hereby agrees that the Client may assign, transfer or otherwise deal with the Client’s contractual rights and obligations under this Agreement to any Affiliate of the Client or to any successor to all or a substantial part of the business of the Client from time to time.

28.       No waivers

28.1     No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

28.2     No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any breach of that provision or any other provision of the Agreement.

29.       Severability

29.1     If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

29.2     If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

30.       Third party rights

30.1     This Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

30.2     The exercise of the parties’ rights under this Agreement is not subject to the consent of any third party.

31.       Variation

31.1     This Agreement may not be varied except by means of a written document signed by or on behalf of each party.

32.       Entire agreement

32.1     The main body of this Agreement and Schedule 1 (Consultancy Particulars) shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

32.2     Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.

32.3     The provisions of this Clause 32 are subject to Clause 19.1.

33.       Law and jurisdiction

33.1     This Agreement shall be governed by and construed in accordance with English law.

33.2     Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of England.

34.       Interpretation

34.1     In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a)        that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)        any subordinate legislation made under that statute or statutory provision.

34.2     The Clause headings do not affect the interpretation of this Agreement.

34.3     In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

EXECUTION

The parties have indicated their acceptance of this Agreement upon either, a written instruction of the work to be carried out, or when the Client accepts the Proposal.

 

SCHEDULE 1 (Consultancy Particulars)

1.         Specification of Services

HR Consultancy Services as agreed with the client in each Proposal made to the Client prior to any specific project whether on a project or on a retainer fee basis.

The service may also be provided ad-hoc as per the Client’s written instructions.

2.         Specification of Deliverables

As agreed with the Client prior to any work being carried out.

3.         Timetable

Dependent upon the work agreed in each Proposal or as agreed between the Parties.

4.         Client Materials

The Client shall make available any documentation necessary for the Consultancy to carry out the agreed work. The Client shall also give access to its employees and representatives and provide suitable facilities to carry out confidential work when presence on site is required. 

5.         Financial provisions

Dependent upon the estimate provided in each Proposal

Menu