Terms and Conditions

Terms and Conditions Of Services

Interpretation The following definitions apply in these Terms:
Agreement means the Term Sheet and these Terms;
Business Day means a day (other than a Saturday, Sunday or public holiday) when the banks in London are open for full banking business;
Capacity means as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity;
Client Property means all documents, books, manuals, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the business or affairs of the Client (including information relating to its employees) and any equipment, keys, hardware or software provided for the Consultant’s use by the Client for use in the provision of the Services;
Commencement Date is the date set out in the Term Sheet;
Confidential Information means information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers/clients, employees, products, affairs and finances of a Party for the time being confidential to that Party and trade secrets including, without limitation, technical data and know-how, whether or not such information (if in anything other than oral form) is marked confidential. “Confidential Information” shall not include: (i) information which is or becomes generally available to the public, other than as a result of disclosure by the receiving Party in breach of this Agreement or of any other obligation of confidentiality addressed to the Party to whom the information relates; (ii) information which was available to the receiving Party on a non-confidential basis prior to the disclosure by the disclosing Party; (iii) information which was lawfully in the possession of the receiving Party before the information was disclosed to it; and/or (iv) information which the Parties agree in writing is not confidential;

Data Protection Legislation

shall mean the Data Protection Act 1998, or, from the date it comes into force in the UK, the General Data Protection Regulation (EU) 2016/679 (as applicable) and any other laws relating to the protection of personal data and the privacy of individuals (all as amended, updated or re-enacted from time to time);

Duration

means (subject to the rights of earlier termination set out in this Agreement) the time period for which the Consultant is required to perform the Services for the Client as set out in the Term Sheet;

Fees

means the fees payable at the agreed Intervals by the Client to the Consultant in consideration for the performance of the Services, as set out in the Term Sheet;

Intellectual Property Rights

means patents, utility models, rights to Inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Intervals

means the intervals at which the Client is required to pay the Fees, as set out in the Term Sheet;

Invention

means any invention, idea, discovery, development, improvement or innovation made by the Consultant in connection with the provision of the Services, whether or not patentable or capable of registration, and whether or not recorded in any medium;

Premises

means (if relevant to the Services) the Client premises at which the Consultant shall perform all or part of the Services, as detailed in the Term Sheet;

Services

means the services described in the Term Sheet;

Substitute

means any substitute for the Consultant appointed under the terms of Clause 3.4;

Term

means the period from the Commencement Date until the date of termination or expiry of this Agreement;

Term Sheet

means the term sheet to which these Terms are appended and which sets out the specifics of the Services to be provided; and

Works

means all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, inventions, ideas, discoveries, developments, improvements or innovations and all materials embodying them in whatever form, including but not limited to hard copy and electronic form, prepared by the Consultant in connection with the provision of the Services.

Works

The Services

Obligations of the Consultant

The Consultant may use third parties to assist them in the performance of the Services but, in such cases, the Consultant shall remain the main point of contact for the Client in respect of the Services and liable for performance of the Services in accordance with the terms of this Agreement.
If the Consultant (or Substitute Consultant, where appointed under Clause 3.4) is unable to provide the Services due to illness or injury or otherwise as a result of an event outside their reasonable control, the Consultant shall advise the Client of that fact as soon as reasonably practicable. For the avoidance of doubt, no fee shall be payable in accordance with Clause 5 in respect of any period during which the Services are not provided.
The Consultant may, with the prior written approval of the Client (such approval not to be unreasonably withheld, conditioned and/or delayed) and subject to the following requirements, appoint a suitably qualified and skilled Substitute to perform the Services instead of the Consultant during any period in which the Consultant is unable to perform the Services as referred to in Clause 3.3. If the Client approves the use of the Substitute, the Consultant shall nevertheless be responsible for the work carried out by any such Substitute as if the Consultant had carried out the work themselves and the Consultant shall continue to invoice the Client in accordance with Clause 5 for the Fees and shall be responsible for the remuneration of the Substitute. Nothing in this Clause shall, however, affect the rights of the Consultant to appoint a third party to assist in the performance of the Services under Clause 3.2.
The Consultant shall not have any authority to incur any expenditure in the name of or for the account of the Client. The Consultant shall not hold themselves out as having authority to bind the Client.
Whilst onsite at the Premises, the Consultant shall comply with all reasonable standards of safety and comply with the Client’s health and safety policies and procedures and other procedures from time to time in force at the Premises which are relevant to the Services, provided that such standards of safety and policies and procedures are notified to the Consultant.

Obligations of the Client

allow the Consultant access to the Premises as reasonably required by the Consultant to provide the Services; and
provide the Consultant with any and all assistance, co-operation, data, information and documentation and access to its personnel which the Consultant reasonably requires in order to provide the Services (as notified to the Client from time to time by the Consultant).

The Consultant shall have no liability to the Client for any failure to perform their obligations under this Agreement to the extent that they are prevented from doing so by any acts and/or omissions of the Client, including but not limited to any failure to provide information, data and documentation and/or access to personnel as reasonably requested by the Consultant from time to time. In addition, the Consultant shall have no liability for the Services and advice provided and/or the contents of any Works to the extent that such advice and Works is adversely affected by the provision by the Client of inaccurate, incomplete and/or misleading data and information – the Consultant shall be entitled to rely on the data, materials and information provided by the Client and its personnel as being accurate, complete and up to date.

Fees and Expenses

The Client shall pay the Consultant the Fees at the Intervals.
In addition to the payment of the Fees, the Client shall reimburse the Consultant for all out of pocket expenses and disbursements which the Consultant incurs in the performance of the Services, provided that such out of pocket expenses and disbursements are agreed with the Client in advance.
The Consultant shall submit to the Client an invoice for the Fees and any agreed out of pocket expenses and disbursements, with each invoice giving details of the Services provided and sufficient information to enable the Client to verify the information contained in the invoice.
The Client shall pay each invoice submitted by the Consultant within 14 days of the date of the invoice, or as a payment ahead of services being delivered for new clients etc.
All invoices shall be paid in full and without set off, deduction or withholding. If the Client disputes any element of an invoice, it shall promptly inform the Consultant. The Client shall pay any undisputed elements of the invoice and the Parties shall work together in good faith to resolve any dispute as to monies due as promptly as possible. Once the dispute has been resolved, the Client shall pay the agreed sums to the Consultant within 7 days of the date on which the dispute is resolved.
If the Client fails to pay any undisputed sums when due, the Consultant may (without prejudice to any other rights and remedies they may have):

suspend the performance of the Services until such time as the monies have been paid in full in cleared funds; and/or
charge the Client interest on the overdue sum at the rate of 4% per annum above the base rate for the time being of the Consultant’s bank, accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgement.

Other activities

Nothing in this Agreement shall prevent the Consultant from being engaged, concerned or having any financial interest in any Capacity in any other business, trade, profession or occupation during the Term (including but not limited to providing services to entities which may be competitors of the Client) provided that such activity does not cause a breach of any of the Consultant’s obligations under this Agreement.

Confidential information

Each Party acknowledges that in the course of the Services and the performance of this Agreement, they will have access to Confidential Information of the other Party.
Each Party undertakes that it shall not at any time disclose to any person any Confidential Information of the other Party unless permitted by this Clause 7. No Party shall use the Confidential Information of the other Party for any purpose other than the performance of this Agreement.
Each Party may only disclose the Confidential Information of the other Party to a third party to the extent that:

suspend the performance of the Services until such time as the monies have been paid in full in cleared funds; and/or
charge the Client interest on the overdue sum at the rate of 4% per annum above the base rate for the time being of the Consultant’s bank, accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgement.
such disclosure is required by law, court order, governmental or regulatory authority.

Data Protection

the type of Personal Data and categories of Data Subjects are: employment related details of the employees, contractors and representatives of the Client, further details of which are set out in Appendix 2 ("Client Personal Data"); and
the nature/purpose of the Processing is to enable the Consultant to carry out the Services (which form the subject matter of the Processing) and the duration of the Processing shall be the Term, with further details set out in Appendix 2.

the Client has complied with, and on reasonable request of the Consultant will demonstrate compliance with the principles relating to the processing of personal data as set out in the Data Protection Legislation;
at least one lawful basis for the processing of the Client Personal Data applies in respect of the processing of the Client Personal Data by the Consultant in accordance with this Agreement and in respect of the Client’s provision of the Client Personal Data for that purpose; and
to the extent that any of the Client Personal Data is special category/sensitive personal data for the purposes of the Data Protection Legislation, at least one of the grounds for the processing of that data (as set out in the Data Protection Legislation) applies;
the Client has provided all information and communications to the data subjects in respect of the Client Personal Data which is being or may be processed by the Consultant under this Agreement, as required by the Data Protection Legislation;
the Client will notify the Consultant without undue delay if an individual whose personal data is being, or may be, processed by the Consultant withdraws any consent on which the processing is lawfully based; and
all Client Personal Data shall be accurate and complete at the time of it being passed to the Consultant and will thereafter be updated by the Client as necessary from time to time. The Consultant will only amend, update, erase or rectify the Client Personal Data it holds following instructions from the Client and/or following a valid exercise by the data subject of its rights under the Data Protection Legislation which requires the amendment, updating, erasure and/or rectification of the data subject’s personal data as held by the Consultant.

process the Client Personal Data only to the extent necessary for the purpose of providing the Services and in accordance with the Client's written instructions (including with respect to transfers of Client Personal Data outside of the European Economic Area);
implement appropriate technical and organisational measures in accordance with the Data Protection Legislation to ensure a level of security appropriate to the risks that are presented by such Processing;
other than those sub-processors set out in Appendix 2, not engage any third party to carry out its Processing obligations under this Agreement without obtaining the prior written consent of the Client, such consent not to be unreasonably withheld, and, where such consent is given, procuring by way of a written contract that such third party will, at all times, be subject to data processing obligations equivalent to those set out in this Clause 8;
notify the Client, as soon as reasonably practicable, about any request or complaint received from a Data Subject (without responding to that request, unless authorised to do so by the Client) and assist the Client by technical and organisational measures, insofar as possible, for the fulfilment of the Client’s obligations in respect of such requests and complaints;
on request by the Client and taking into account the nature of the Processing and the information available to the Consultant, use all reasonable endeavours to, assist the Client in ensuring compliance with its obligations under Articles 32 to 36 of the General Data Protection Regulation (EU) 2016/679 (where applicable) in respect to the Client Personal Data;
on request by the Client, make available all information necessary to demonstrate the Consultant’s compliance with this Clause 8 and on reasonable advance notice in writing otherwise permit, and contribute to, audits carried out by the Client (or its authorised representative) with respect to the Client Personal Data, save that the Client shall (or shall ensure its authorised representatives shall):

sign a non-disclosure agreement in terms acceptable to the Consultant prior to undertaking such audit;
be accompanied by the Consultant at all times during the audit; and
use its reasonable endeavours to ensure that the conduct of any such audit does not unreasonably disrupt the Consultant’s normal business operations.

On termination or expiry of this Agreement, destroy or return (as the Client directs) all Client Personal Data and delete all existing copies of such data except that the Consultant may keep or store a copy of such Client Personal Data as required by law and/or in order to answer any queries, complaints and/or claims relating to the Services which may arise post Term.
The Consultant will not transfer the Client Personal Data outside of the European Economic Area without the prior written consent of the Client, unless required to do so by law.
The Client acknowledges that Clause 3.1 shall not apply to the extent that the Consultant is required by law to Process the Personal Data other than in accordance with the Client’s instructions and the Consultant acknowledges that, in such a case, it must promptly inform the Client of the relevant legal requirement prior to Processing (unless the law prohibits the provision of such information on important grounds of public interest).
The Consultant shall promptly inform the Client if, in its opinion, an instruction issued by the Client infringes the Data Protection Legislation.
To the extent to which it is practicable in the performance of the Services, the Parties agree to work together to limit the transfer of Client Personal Data to the Consultant, including but not limited to the use of anonymised data. To the extent that the Client does pass (or arranges for a third party to pass) Personal Data to the Consultant, the Client warrants on an ongoing basis that it has the required permissions and consents of the Data Subjects to provide access to their Personal Data to the Consultant for the purposes of the Services and its use in accordance with this Agreement.

Intellectual Property

The Consultant retains ownership of all existing and future Intellectual Property Rights in the Works and the Inventions and all materials embodying these rights to the fullest extent permitted by law and shall be free to use the same in their future business.
If the Consultant needs to use any Intellectual Property Rights belonging to the Client in the performance of the Services, the Client grants to the Consultant a non-exclusive, royalty free licence to use such Intellectual Property Rights solely in order to perform the Services. Any licence granted under this Clause shall automatically terminate at the end of the Term. The Client warrants that it has the right to grant the Consultant a licence to use such Intellectual Property Rights and such use shall not infringe the rights of any third party.
The Consultant grants to the Client a non-exclusive, non-transferable, royalty free and perpetual licence to use, copy and amend any and all Works in the course of the Client’s own business, solely for the purposes for which such Works were originally produced by the Consultant.

Liability

The Client acknowledges that the Consultant is qualified and experienced in the field of human resource consultancy and advice but is not a qualified lawyer registered by the Law Society of England and Wales. As such, the advice and guidance the Consultant provides as part of the Services is provided to the best of their knowledge and expertise as a human resources adviser. The Client should arrange for appropriately qualified solicitors to review and advise on the Consultant’s actions, guidance, documentation and advice, as appropriate. The Consultant shall endeavour to highlight to the Client where they consider such legal advice would be appropriate.
Nothing in this Agreement shall exclude or limit a Party’s liability for:

loss of profits;
loss of business and/or business opportunity;
loss of anticipated savings;
economic loss;
loss of and/or corruption of data;
loss and/or damage to goodwill and/or reputation; and/or
indirect, special and/or consequential losses.

suspends, or threatens to suspend, payment of its debts; is unable to pay its debts as they fall due or admits inability to pay its debts;
is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
commences negotiations with all, or a class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party other than as part of a solvent re-organisation/reconstruction;
an application is made to the court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given or an administrator is appointed over the other Party;
a floating charge holder over the assets of that other Party has become entitled to appoint, or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;
any event occurs in any jurisdiction which has the same or equivalent effect to those listed in Clause 1.3(i) to (vii); and/or
ceases, suspends or threatens to cease or suspend, all or a substantial part of its business.

The Consultant may terminate this Agreement with immediate effect by giving to the Client notice in writing if the Client has failed to pay any undisputed sums due to the Consultant under this Agreement and has failed to pay the same in full and in cleared funds to the Consultant within 14 days of the date of the notice from the Consultant that the sums remain due for payment.
The Consultant may terminate this Agreement for convenience at any time by providing 30 days written notice to the Client.

except that the Consultant may retain a copy of such records for the purposes of evidencing its compliance with this Agreement (subject always to the continuation of the obligations of confidence in respect of the same as set out in Clause 7).

promptly deliver to the Client any and all Confidential Information of the Contractor which is in its possession and/or under its control and irretrievably delete any information relating to the Consultant and their business which is in their possession or under their control (other than the Works which the Client has an ongoing licence to use in accordance with the terms of Clause 3); and
pay all Fees and other sums due to the Consultant up to the date of termination or expiry of this Agreement for Services performed (including but not limited to any and all out of pocket expenses which the Consultant has incurred and/or committed to incur and cannot cancel (having used reasonable endeavours to do the same).

The relationship of the Consultant to the Client will be that of independent contractor and nothing in this Agreement shall render the Consultant an employee, worker, agent or partner of the Client and the Consultant shall not hold themselves out as such.
This Agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the Consultant shall be fully responsible for and shall indemnify the Client in respect of any income tax, National Insurance and social security arising from or made in connection with either the performance of the Services or any payment or benefit received by the Consultant in respect of the Services, where such recovery is not prohibited by law.

Any notice given to a Party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service or to each Party’s nominated email address, as stated in the Term Sheet (for the Client) and as below for the Consultant, or to such other addresses as notified in writing as a replacement address by a Party from time to time.

The Consultant:

Email:

Address:

sarah@sarahtomsonassociates.com

TBC

General

The failure or delay of a party to exercise or enforce any right under this Agreement shall not operate as a waiver of that right or preclude the exercise or enforcement of it at any time or times thereafter.
This Agreement constitutes the entire understanding between the Parties with respect to the subject matter of this Agreement and supersedes and replaces all prior agreements, negotiations and discussions between the Parties relating to it. The Client confirms and acknowledges that it has not been induced to enter into this Agreement by any representation, warranty, or undertaking not expressly incorporated into it. However, nothing in this Agreement purports to exclude liability for any fraudulent statement or act.
No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the Parties.
The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and nothing in this Agreement shall confer or purport to confer on or operate to give any third party any benefit or any right to enforce any term of this Agreement except as expressly provided in this Agreement.
If any provision of this Agreement shall be held to be unlawful, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be severed from this Agreement and rendered ineffective as far as possible without modifying or affecting the legality, validity or enforceability of the remaining provisions of this Agreement which will remain in full force and effect.
Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement as a result of circumstances beyond its reasonable control, provided that it informs the other Party as soon as possible of the event and takes all reasonable steps to resume performance of its obligations as soon as possible.
Neither Party may assign, novate or transfer any of its rights, benefits or obligations under this Agreement without the prior written consent of the other Party.
Failure to exercise, or any delay in exercising, any right or remedy under this Agreement, or at law or equity, shall not be a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
This Agreement (including both contractual and non-contractual obligations, disputes and claims) shall be governed by and c