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Terms of Consultancy Agreement

Project Name

Consultancy Agreement  

Dated

between  

360 Resilience Ltd 

And 

Client Name 

 

THIS AGREEMENT is made on _________________________________________________

BETWEEN: 

(A)          360 RESILIENCE LTD, registered in Scotland with company number SC580663 whose registered office is at 8a Rosebery Crescent, Edinburgh, EH12 5JP (Consultant Company); and 

(B)          TBA, a company registered in England and Wales with company number TBA whose registered office is at TBA, (Client) 

AGREED TERMS

1.             DEFINITIONS 

1.1           In this agreement, the following terms have the following meanings:

 

Expenses	means any fees, costs, expenses and charges reasonably incurred by the Consultant Company, the Individual or any Substitute in the performance of the Services, including but not limited to: a)     fees for external professional services; b)     the cost of providing facilities; c)     costs related to marketing, communication and publicity services; d)     charges relating to printing, publishing and copying services; and e)     costs of office services.
Group Company	means the Client, or any of its Subsidiaries or Holding Companies from time to time, or any Subsidiary of any such Holding Company from time to time, and Group Companies shall be construed accordingly;
Individual	means a 360 Resilience Ltd employee or associate as set out in Appendix A
Parties	means the Client and the Consultant Company;
Party	means either one of the Client or the Consultant Company;
Services	means Organisational Resilience Services as set out in Appendix A
Subsidiary and Holding Company	in relation to a company, means, respectively, ‘subsidiary’ and ‘holding company’ as defined in section 1159 Companies Act 2006.

 

1.2           Any reference in this agreement to: 

a) one gender includes a reference to all genders;  

b) a clause is, except where expressly stated otherwise, to a clause of this agreement;  

c) any statute is to that statute as from time to time amended, re-enacted or replaced and to all instruments, orders and regulations under it; and 

d) the singular includes the plural and vice versa. 

2.             PROVISION OF SERVICES 

2.1           The Client shall engage the Consultant Company and the Consultant Company shall make the Individual/s (or any Substitute appointed in accordance with Clause 5) available to the Client to provide the Services from the agreed date in in Appendix A and subject to the terms of this agreement, until this agreement is terminated in accordance with Clause 7. 

2.2           The Services shall be performed at the locations as set out in in Appendix A 

2.3           Should the Client require the Consultant Company to provide further services, those services shall be governed by the provisions of this agreement. 

3.             SERVICE STANDARD

3.1           The Consultant Company undertakes that it will (and shall procure that the Individual or any Substitute appointed will) use reasonable care and skill in performing the Services.

3.2           During the term of this agreement, the Consultant Company shall solely determine the necessary time and attention required to the provide the Services, to ensure that they are properly performed to deliver the agreed outputs as set out in Appendix A. 

3.3           If the Consultant Company fails to perform any part of the Services in all material respects in accordance with this agreement in circumstances in which Clause 11.3 does not apply, if so requested by the Client within 1 month of such failure the Consultant Company will re-perform the relevant part of the Services in all material respects as aforesaid within such period as is reasonable in relation to such failure. In the event of such a request and in the event that such failure would otherwise be covered by Clause 7.3a), Clause 7.3a) shall not apply in relation to such failure until after the end of such reasonable period and shall only apply then if such failure has not been remedied in all material respects by the end of such reasonable period. 

3.4           The Consultant Company provides no undertaking that the Services or any objectives thereunder will be obtained or achieved by a date provided in this agreement or elsewhere. The Services shall be performed at such times as the Consultant Company shall in its sole discretion decide, in accordance with the requirements set out in this agreement. Any times, dates or periods provided in this agreement for provision of the Services are estimates only and the Consultant Company will make reasonable efforts to comply with any such time estimates. However, time is not of the essence in respect of the Consultant Company’s performance of the Services. 

3.5           The Consultant Company shall (and shall procure that the Individual shall) provide the Client with such information in relation to the Services as the Client shall reasonably require from time to time. Any such information shall be provided to the Client key contact named in Appendix A.

3.6           The Consultant Company has responsibilities for adequately safeguarding the welfare, health and safety of their individual/s and any subcontractors during the consultancy project. The Consultant Company will make the Client aware of any disabilities, illnesses or special medical requirements that their individual/s may have.

3.7           The Consultant Company shall (and shall procure that the Individual shall) act in a professional manner and be respectful of the culture and working practices of the Client, whilst representing the Consultant Company and will comply with all legal workplace standards as advised by the Client relating to quality assurance, environmental standards, health & safety, etc The Consultant Company shall take reasonable care to avoid injury to themselves and to others; not interfere with or misuse any clothing or equipment provided to protect their Health and Safety; and to report any accident or injury immediately following the Client procedures. 

4.             THE CLIENT’S OBLIGATIONS 

4.1           During the term of this agreement, the Client shall when procuring the Services cooperate fully with the Consultant Company and the Individual or any Substitute. Such cooperation shall include, but is not limited to:

a) complying with such reasonable requirements of the Consultant Company, the Individual or any Substitute for the timely provision of information, documentation, support and assistance as are necessary for performance of the Services;

b) ensuring that the Client’s employees, workers, agents and representatives engage and cooperate with the Consultant Company, the Individual or any Substitute at all times; and

c) paying any and all sums due under this agreement on time.

d) where required, carry out a risk assessment and provide the individual/s with an induction, relevant training and appropriate protective equipment, and ensure that the Consultant Company is made aware of and complies with workplace regulations relating to quality, environmental standards, health & safety, etc. 

4.2           The Client undertakes that any information it provides to the Consultant Company, the Individual or any Substitute in relation to the Services is accurate and complete. 

4.3           The Client will pay within five working days following a demand therefor from the Consultant Company any additional Expenses reasonably incurred by the Consultant Company as a result of the Client’s failure to comply with any or all of the obligations set out in this Clause 4. 

5.             RIGHT OF SUBSTITUTION 

5.1           The Consultant Company may appoint one or more suitably qualified and skilled substitutes to perform all or part of the Services instead of the Individual (each a Substitute).

5.2           In the event that a Substitute provides any part of the Services to the Client in accordance with this Clause 5, the Consultant Company shall continue to invoice the Client in accordance with Clause 6 and the Client shall continue to pay the Consultant Company notwithstanding that all or part of the Services are provided by a Substitute.  

6.             FEES, EXPENSES AND TAXES 

6.1           In consideration of the Consultant and/or Substitute performing the Services, the Client shall pay the Consultant Company a fee as set out in Appendix A (the Fee). 

6.2           The Fee is inclusive/exclusive of VAT at the rate prevailing at the time that payment is due as set out in Appendix A. 

6.3           A deposit of the total fee shall be due on signing of the proposal as set out in Appendix A.

6.4           The Consultant Company shall provide the Client with an invoice for the provision of the Services Monthly setting out the Fee for that period. 

6.5           The Client shall pay the full amount of each such invoice as is referred to in Clause 6.4 in arrears within 14 working days of receipt of such invoice, such payment to be made by BACS. The Fee is not refundable and the Client shall not be entitled to deduct from any fee payable to the Consultant Company any sums that the Consultant Company or the Individual or any Substitute  may owe to the Client or Group Company at any time.

6.6           In the event that any sum payable under this agreement is not paid by the Client by the due date, the Consultant Company shall be entitled to charge interest on such overdue amount on a daily basis until payment is made in full at a rate equal to 2% above the base rate of the Bank of England in force at that time. 

6.7           The Client will not refuse to pay any amount which is owed to the Consultant Company where there is only a minor or inconsequential defect or error in the performance of the Services. Any dispute shall be notified within 7 days and resolved in accordance with Clause 7.2. 

6.8           The fee is inclusive of all expenses of the Consultant Company to deliver the services except;

a) Facilities for workshops and one-to-one meetings which will be held at the client premises or an alternate location agreed between the Client and the Consultant Company.

b) Return visits where workshops or scheduled one-to-one meetings have been rescheduled within 5 working days. 

7.             TERMINATION 

7.1           Subject to Clauses 7.3 and 7.4, this agreement shall remain in force until it is terminated by either Party giving the other Party not less than 30 days’ written notice. 

7.2           In the event of a problem, complaint or grievance by either party, contact shall be made immediately with the Client representative as named in Appendix A and Consultant Company Representative as named in Appendix A. The parties shall attempt to resolve any dispute arising out of or relating to this contract through negotiations between the named representatives of the parties as set out in Appendix A, who have authority to settle the same.

If the matter is not resolved by negotiation within 30 days of receipt of a written ‘invitation to negotiate’, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (ADR) procedure, or in default of agreement, through an ADR procedure as recommended to the parties by the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators. 

If the matter has not been resolved by an ADR procedure within 60 days of the initiation of that procedure, or if any party will not participate in an ADR procedure, the dispute may be referred to arbitration by any party. The seat of the arbitration shall be England and Wales. The arbitration shall be governed by both the Arbitration Act 1996 and Rules as agreed between the parties. Should the parties be unable to agree on an arbitrator or arbitrators, or be unable to agree on the Rules for Arbitration, any party may, upon giving written notice to other parties, apply to the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators for the appointment of an Arbitrator or Arbitrators and for any decision on rules that may be necessary. 

Nothing in this clause shall be construed as prohibiting a party or its affiliate from applying to a court for interim injunctive relief. 

7.3           Notwithstanding Clause 7.1, the Client may terminate this agreement immediately at any time by written notice to the Consultant Company (with no obligation to make any other payment other than any Fees accrued to the date of termination) in the event that:

a) subject to Clause 3 and 7.2b), the Consultant Company or any of its employees, servants or agents commits any serious or persistent default or breach of any obligation under this agreement which is either not capable of remedy or which, if capable of remedy, has not been remedied within 21 days of such default or breach having been notified by the Client to the Consultant Company; or

b) the Individual fails or is unable to provide the Services to the Client for a continuous period of one month due to incapacity and a Substitute has not been appointed in accordance with Clause 5; or

c) the Consultant Company, the Individual or any Substitute is convicted of a criminal offence (other than a motoring offence for which a fine or non-custodial penalty is imposed) which materially and adversely affects the provision of the Services or any Group Company’s business or reputation; or

d) the Consultant Company is the subject of any insolvency proceedings, or passes a resolution with a view to its winding up or administration or liquidation or has a receiver appointed over any of its property or assets, or has entered into any composition, compromise, assignment or arrangement with all or any class of creditors; or

e) the Consultant Company, the Individual or the Substitute has committed any act of fraud or dishonesty or has done anything with the intention of bringing any Group Company into disrepute. 

7.4           Notwithstanding Clause 7.1, the Consultant Company may terminate this agreement immediately at any time by written notice to the Client (with no obligation to undertake any further performance of the Services) in the event that:

a) the Client commits any serious or persistent default or breach of any obligation under this agreement, which is either not capable of remedy or which, if capable of remedy, has not been remedied within 21 days of such default or breach having been notified by the Consultant Company to the Client; or

b) the Client fails to pay the Fee, or any part thereof, within 30 days of payment falling due;

c) any Group Company is convicted of a criminal offence which materially and adversely affects the provision of the Services or the Consultant Company’s or the Individual’s or any Substitute’s business or reputation; or

d) any Group Company is the subject of insolvency proceedings or passes a resolution with a view to its winding up or administration or liquidation or has a receiver appointed over any of its property or assets, or has entered into any composition, compromise, assignment or arrangement with all or any class of creditors; or

e) any Group Company has committed any act of fraud or dishonesty or has done anything with the intention of bringing the Consultant Company or the Individual or any Substitute into disrepute.

7.5           On termination of this agreement for whatever reason, the Client shall pay for all of the Services provided up to and including the date of termination.

7.6           For the avoidance of any doubt, any delay in the exercise of either Party’s rights under this Clause 7 shall not mean that the Party has waived its rights to exercise them. 

8.             RELATIONSHIP OF THE PARTIES 

8.1           The relationship of the Consultant Company and the Individual and any Substitute to the Client shall be that of an independent contractor.

8.2           Nothing in this agreement or by virtue of its performance shall create or be deemed to create between the Client on the one hand and the Consultant Company, the Individual or any Substitute on the other hand:

a) a partnership or joint venture; or

b) a relationship of principal and agent; or

c) a relationship of employer and employee; or

d) a relationship of employer and worker. 

8.3           Neither the Client nor the Consultant Company shall be entitled to enter into agreements or other arrangements on behalf of the other (or otherwise act as agent for the other).

8.4           Neither party shall solicit an employee, associate, or volunteer with offers of employment, paid or otherwise, outside of the terms of this agreement without the written approval of the key contact of the other party as set out in in Appendix A. 

8.5           Neither Party shall refer to or mention the other Party’s name to any third party or in any press announcements, advertisements or news articles without such other Party’s prior consent (such consent not to be unreasonably withheld or delayed). 

8.6           Each Party hereby undertakes that, at the date of the entering into force of the Agreement, itself, its directors, officers or employees have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with the Agreement and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so. The Parties agree that, at all times in connection with and throughout the course of the Agreement and thereafter, they will comply with and that they will take reasonable measures to ensure that their subcontractors, agents or other third parties, subject to their control or determining influence, will comply with Part I of the ICC Rules on Combating Corruption 2011, which is hereby incorporated by reference into the Agreement, as if written out in the Agreement in full. 

9.             PROPERTY AND INTELLECTUAL PROPERTY 

9.1           Any property or intellectual property rights in any material owned by the Consultant Company shall belong to the Consultant Company and the Client shall not cause or permit anything to endanger those rights or title, or permit, assist or encourage others to do so.

9.2           Any property or intellectual property rights in any material owned by the Client shall belong to the Client and the Consultant Company shall not cause or permit anything to endanger those rights or title, or permit, assist or encourage others to do so.

9.3           Clauses 9.1 and 9.2 are subject to the right of the Parties to use any such material so far as is reasonably required to carry out the terms of this agreement. 

9.4           The Client warrants that any material, whether comprising documents, data, records or any other materials, that it provides to the Consultant Company, the Individual or any Substitute under the terms of this agreement does not infringe the intellectual property rights of any third party. The Client agrees to indemnify the Consultant Company against any loss, damage, cost, expense or claim of any kind that may arise as a result of an infringement. 

9.5           Confidential data provided by the Client should be marked as such when provided to the Consultant. 

10.          INSURANCE 

10.1        The Consultant Company shall supply the Client on request with a copy of its professional indemnity insurance policy and evidence that the premiums have been paid. 

11.          LIABILITY 

11.1        Except in the case of death or personal injury caused by the negligence of the Consultant Company, the Individual or any Substitute, the liability of the Consultant Company under or in connection with this agreement however so arising shall not exceed the Fee. 

11.2        Neither Party will be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any form of indirect, consequential or special loss, including without limitation any economic loss or other loss of turnover or profits, loss or corruption of any data, database or software, loss of business, contracts or commercial opportunities or any other form of pure economic loss. This clause shall not apply to Clause 12.1. 

11.3        Neither Party shall be liable to the other or be deemed to be in breach of this agreement for any delays or failures in performance of this agreement due to circumstances beyond the reasonable control of that Party. Such circumstances include – but are not limited to – industrial action, lock out, trade dispute, accident, fire, flood, natural disaster, power failure or internet service provider failure. As soon as reasonably possible after the discovery of such circumstances, the affected Party must notify the other Party in writing of any anticipated or existing delay or failure in performance. 

11.4        It is recognised that there will be instances where the original project plan may change throughout the project life cycle. Such delays and changes need to be discussed with the Client and Consultant Company as soon as possible to avoid further delays, cost issues and possible project failure. Unforeseen and extenuating circumstances do happen, but it is essential that the Client and Consultant Company seeks to avoid these where possible. 

12.          INDEMNITY

12.1        The Client shall indemnify and hold harmless the Consultant Company from and against all claims and losses arising from loss, damage, liability, injury to the Consultant Company, its employees and third parties, infringement of third party intellectual property or third party losses by reason of or arising out of any information supplied to the Consultant Company, the Individual or any Substitute by or on behalf of the Client.

13.          CONFIDENTIALITY

13.1        The Parties will use their reasonable endeavours to keep confidential any confidential information relating to the other Party that is provided or otherwise accessed in the performance of this agreement. Neither Party shall disclose any confidential information of the other Party without the consent of the other Party, and the Client shall not disclose any confidential information of the Individual or any Substitute without the consent of the Consultant Company, except in order to comply with law or regulation or the order of a court of competent jurisdiction or as required in connection with legal proceedings relating to or arising out of this agreement. 

13.2        The Parties’ obligations under Clause 13.1 shall continue after termination or completion of this agreement unless or until the information concerned becomes public knowledge or is otherwise in the public domain through no fault of the Party bound to keep its confidentiality under this clause. 

13.3        For the avoidance of doubt, the restrictions in this agreement shall not apply to any information that was known by or in the possession of either Party, and in the case of the Consultant Company shall not apply to any information of the Client that was known by or in the possession of the Individual or any Substitute, prior to it being provided during the course of the performance of the Services.

13.4        The Client acknowledges that the Consultant Company, the Individual and any Substitute will use and rely on the Client’s information and other information available from public and non-public sources in performing the Services. The Consultant Company does not have any responsibility for the truthfulness or accuracy of any information provided to it or the Individual or any Substitute by the Client. 

14.          CONFLICTS OF INTEREST

14.1        Nothing in this agreement shall prevent the Consultant Company, the Individual or any Substitute from providing services to or undertaking any other business or profession or being or becoming an employee, consultant, or agent of or adviser to any other company, firm or person, or assisting or having any financial interest in any other business or profession. 

15.          DATA PROTECTION 

15.1        The Client consents to the holding and processing both electronically and manually of any data (including sensitive personal data as defined by the Data Protection Act 2018) which relates to the Client or any other Group Company or any of its or their staff or clients that the Consultant Company, the Individual or any Substitute collect in the provision of the Services and for compliance with applicable procedures, laws and regulations. The Client consents to the transfer of such personal information to third parties whether or not outside the European Economic Area for administrative purposes and any other purposes where it is necessary or desirable for the Consultant Company to do so. 

15.2        The Consultant Company shall procure the consent of the Individual and any Substitute to the processing both electronically and manually of any data (including sensitive personal data as defined by the Data Protection Act 2018) which relates to the Individual or any Substitute that the Client or any other Group Company collects for the purposes of the administration and management of its business and for compliance with applicable procedures, laws and regulations. The Consultant Company shall procure the consent of the Individual and any Substitute to the transfer of such personal information to other offices that the Client may have or to any other Group Company or to other third parties whether or not outside the European Economic Area for administrative purposes and any other purposes where it is necessary or desirable for the Client to do so. 

15.3        Both Parties agree, and the Consultant Company shall procure the agreement of the Individual and any Substitute, to: 

a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of any data relating to the other Party or any of its or their staff or clients and against accidental loss or destruction of, or damage to, any such data;

b) process data relating to the other Party or, in relation to the Client, any Group Company or, in relation to the Consultant Company, the Individual or any Substitute, or any of its or their staff or clients, only in accordance with the other Party’s instructions; and

c) provide to the other Party such information regarding compliance with the requirements of this Clause 3 as that Party may from time-to-time reasonably require to enable it comply with its data protection obligations. 

16.          NOTICES 

16.1        Any notice to be given under this agreement shall be given in writing and addressed to the Party concerned at the address shown herein (or such other addresses as notified by the Parties in writing from time to time) and may be sent by registered first class post, or personally by hand delivery or courier service. Any such notice shall be deemed duly given as follows: if given personally it shall take effect immediately when given (irrespective of the time or date of its receipt) or if sent by registered first class post, 48 hours after it is posted.

17.          GENERAL 

17.1        The terms of this agreement represent the entire agreement between the Parties and supersede any previous representations or agreements whether recorded in writing or otherwise. Both Parties agree that the terms of this agreement are fair and reasonable in all circumstances. 

17.2        Clause 13 (Confidentiality) shall survive termination or expiry of this agreement. Termination of this agreement shall not prejudice or affect the rights of either Party against the other regarding any breach of this agreement or in respect of any monies payable by one Party to the other for the period prior to termination or expiry. 

17.3        The provisions of this agreement shall be severable and if any provision of this agreement is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law. 

17.4        This agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same agreement.  Facsimile and scanned copy signatures shall be valid and binding to the same extent as original signatures.

17.5        Other than as provided for in Clause 5, neither Party shall be permitted to assign, novate or otherwise transfer any of its rights or obligations under this agreement without the other Party’s prior written consent.

 

17.6        A person who is not a Party to this agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

 

17.7        This agreement shall be governed by, and construed in accordance with, English and Welsh law and the Parties submit to the exclusive jurisdiction of the English and Welsh courts for all purposes relating to this agreement.

  

Each of the Parties hereto has executed this agreement as of the date when first written above. 

Signed by Mr P A Hancock for and on behalf of 360 Resilience Ltd

………………………………………. Mr P A Hancock Director

Signed by TBA for and on behalf of TBA

………………………………………. TBA Director

  

APPENDIX A

This should be completed by 360 Resilience Ltd, in collaboration with the contact in the Client named below.

Name and position of the key contact in the Client:

Contact email and phone number:

Name and position of the key contact in the Consultant:

Contact email and phone number:

Name and position of the Individual/s in the Consultant delivering the project:

Contact email and phone number:

Project start and finish dates:

Project Fee: £            Inc./exc Vat

Deposit: % £            inc/exc Vat

Payment Details: Monthly invoiced in arrears, first invoice date, and number of payments.

Where will the Consultant be working, approximate time spent with the Client, overall time on the project and normal working hours?

Agreed channel of communication (e.g. weekly/fortnightly email/call/F2F update/report/meeting etc.)

Please describe the project in approx. 100-150 words outlining its context, aims, objectives, and any initial thoughts on methodology or data.   Context:   Objectives:     Methodology:

Any specific outputs required by the Client (e.g. executive summary, presentation of results to particular stakeholders etc.) and deadlines for these (if known)

Do you foresee any Intellectual Property, or confidentiality issues? If so, what form might these take?

 

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