Example of National Trust Consultancy Terms and Conditions

Transcription

1 Example of National Trust Consultancy Terms and Conditions CONSULTANCY AGREEMENT RELATING TO [title of work] THIS AGREEMENT is made on [date] BETWEEN: (1) The National Trust (the Trust ) of Heelis, Kemble Drive, Swindon, Wiltshire, SN2 2NA (registered charity ) [1]; and (2) [name and address] [and registered office address and registered company number if appropriate] (the Consultant ) [2] BACKGROUND: A B The Consultant is in the business of providing [insert] services [and [insert] related products and / or services]. The Trust intends to procure [insert] services [and [insert] related products and / or services] from the Consultant. [C This Agreement is intended to operate as a framework agreement under which the Trust may procure [products and / or services] from the Consultant from time to time and in the absence of any agreement to the contrary the terms of this Agreement shall apply to the provision of such [products and / or services]. OR C This Agreement is intended to govern the supply by the Consultant of [products and / or services], as described below, to the Trust.] [3] IT IS AGREED: 1 1. Definitions and Interpretation Effective Date [insert date] [4] Generic Materials means any material produced or supplied by or on behalf of the Consultant of a generic nature and which has: (a) not been produced or supplied specifically for the Trust in performance of the Services; and/or (b) does not contain any material specific to the Trust [5] Intellectual Property Rights means patents, trade marks, service marks, trade names, design rights, copyright, database rights, rights in know-how, and other intellectual property rights (of whatever nature and wherever arising) in each case whether registered or unregistered (including applications for such rights) anywhere in the world

2 Insolvency Event each and any of the following in relation to a party:- (a) any action (corporate or otherwise), legal proceedings or other procedure or step is taken by any person in any jurisdiction in relation to or with a view to (i) the winding up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of a party; (ii) the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator, nominee, supervisor or similar officer in respect of a party or any of its assets and that procedure is not terminated or discharged within 30 days; (iii) the enforcement of any security over any assets of a party and that procedure is not terminated or discharged within 30 days; or (iv) the expropriation, attachment, sequestration, distress or execution over or affecting any material asset of a party and that procedure is not terminated or discharged within 30 days; (b) the party is unable to pay its debts as they fall due or is insolvent; (c) the party enters into a composition or arrangement with its creditors or any class of them Materials [ Products Services Specification means, other than the Generic Materials, any documents, reports, notes, drawings slides, files, programmes, devices, models, plans, data, graphics, text, software, sound recordings, video recordings and recordings in any other form and other materials (or any parts thereof) of whatever nature and in whatever medium produced or supplied by or on behalf of the Consultant for or to the Trust or otherwise arising or created in relation to the performance of the Services means the Products identified in the Schedule [6] and / or as otherwise agreed in writing between the parties from time to time] means the services set out in the Schedule and / or as otherwise agreed in writing between the parties from time to time [6] means the specification for the Materials/ Products as set out in the Schedule and / or as otherwise agreed in writing between the parties from time to time [6] 1.2 A reference to a person includes individuals, corporations, partnerships and unincorporated associations. Use of any gender includes the other genders; use of the singular includes the plural and vice versa. 1.3 Where there is a conflict between anything in the body of this Agreement and anything in the Schedule (or other attached documents), the body of the Agreement shall take precedence. 1.4 The phrase in writing includes but is not limited to by and / or fax The Term and Services

3 2.1 This Agreement shall commence on the Effective Date and shall continue (subject to the termination provisions below) until completion of the Services to the reasonable satisfaction of the Trust. OR 2.1 This Agreement shall commence on the Effective Date and shall continue (subject to the termination provisions below) for [one] year (the Initial Term ). Following expiry of the Initial Term this Agreement shall continue until terminated by either party in accordance with Clause 4 or by the Consultant on no less than one month s notice to take effect on a specified date. 2.2 The Consultant shall ensure that it is available to provide the Services on the dates, at the times, and in the places set out in the Schedule or as otherwise agreed in writing between the parties from time to time (time for the performance of the Services being of the essence) and shall use only the individual or individuals named in the Schedule. 2.3 The Consultant shall, as a condition of this Agreement, procure that: it is fully qualified, equipped, organised, authorised and financed to perform its obligations under this Agreement; the Services will be performed by appropriately qualified and trained personnel (and where performed by the Consultant it shall be appropriately qualified and trained), with due care and diligence and at all times to such high standards of quality as it is reasonable for the Trust to expect in all the circumstances; it will comply with all statutory requirements, regulations, and bylaws relating to the performance of the Services; it will obey all reasonable directions of the Trust; and it will use its best endeavours to promote the interests of the Trust; the Services, Materials, Generic Materials [and Products] shall comply in all respects with the relevant Specification and shall be of good quality, durable and fit for purpose. 2.4 [In the event that Trust requests the Consultant to provide Services during the term of this Agreement the Consultant shall provide such Services as requested and in accordance with the terms of this Agreement.] [3] 2.5 For the avoidance of doubt, these terms and conditions shall constitute special conditions for the purposes of any purchase order issued by the Trust from time to time and, to the extent of any conflict, shall take precedence over the general terms and conditions of purchase stated on the reverse of such Purchase Order [6]] 3 3. Fees [7] 3.1. The Trust shall pay the Consultant the fees set out in the Schedule or as otherwise agreed between the parties from time to time [together with

4 reasonable out of pocket expenses agreed in advance and verified by way of receipts up to the maximum rates specified in the Schedule]. 3.2 The Trust shall settle each properly raised invoice within 30 days of the end of the month in which it is received. 3.3 In the event that any interest is charged by the Consultant on any outstanding sums this shall be limited to 1% above Barclays Bank s base rate from time to time in force Termination by the Trust 4.1. The Trust may terminate this Agreement by giving the Consultant no less than [1 month s] notice in writing to take effect on a specified date. [8] 4.2 The Trust may at any time terminate this Agreement in whole or in part (such part to include, for the avoidance of doubt, termination of an order for Services [and / or Products] pursuant to this Agreement) on notice and without further liability: if the Consultant refuses, becomes unable, or persistently, significantly or materially fails to perform any of its obligations under this Agreement; if the Consultant or any of the Consultant s staff or contractors involved in the delivery of the Services or supply of Products or Materials is convicted of a criminal offence; if the Consultant undergoes an Insolvency Event (except that no right to terminate will arise in respect of any procedure commenced for the purpose of a solvent amalgamation or reconstruction). 4.3 In the event that the Agreement or any part of the Agreement (such part to include, for the avoidance of doubt, an order for Services [and / or Products] pursuant to this Agreement) is terminated by the Trust in accordance with this Clause 4, the Trust shall be entitled to a refund of any amounts already paid to the Consultant in respect of the Services [and / or Products] that have not been provided at the date of termination. 4.4 Upon termination of this Agreement or any part of the Agreement, the Consultant shall return to the Trust all documents and materials (and copies) containing the Trust s confidential information and the Materials and certify in writing to the Trust that it has complied with the requirements of this Clause Force Majeure 5.1 Neither party shall be deemed to be in breach of this Agreement or otherwise liable to the other by reason of any delay in performance or non-performance of any of its obligations hereunder to the extent that such delay or non-performance is directly due to any event beyond its reasonable control (a Force Majeure Event ) provided that it has promptly and fully notified the other party as soon as possible following the occurrence of a Force Majeure Event. The illness or unavailability of the Consultant or Consultant s personnel and / or contractors or any dispute between the Consultant and its personnel and / or contractors

5 shall not constitute a Force Majeure Event relieving the Consultant of liability under this Clause If the Consultant or the Trust is prevented from performing its obligations under this Agreement as a result of a Force Majeure Event for a period of more than [seven] days the Trust shall be entitled to terminate the agreement forthwith and without liability arising as a result of such termination upon notice served on the Consultant Confidentiality 6.1. The Consultant shall not, either while providing the Services or afterwards, disclose to any person, other than an employee of or consultant engaged by the Trust, any information which he/she acquires solely as a result of or in connection with work performed under this Agreement, other than as may be necessary for the exercise of its rights or the performance of its obligations under this Agreement Clause 6.1 does not apply to any disclosure where: the material disclosed is already in the public domain other than by breach of this Agreement; or disclosure is legally required by a court or relevant regulatory body Data Protection Act The Consultant shall ensure that it will: 7.1 fully comply in all respects with the Data Protection Act 1998 and associated guidance and publications issued by the Information Commissioner from time to time (together the DPA ); 7.2 not do, or omit to do, anything to cause the Trust be in breach of the DPA; and 7.3 ensure that, in respect of all personal data which it processes on behalf of the Trust, adequate security is established and maintained at all times at least to the standards set out in the Data Protection Principles of the DPA Tax and National Insurance [9] 8.1 The Consultant warrants that it is engaged under this Agreement as an independent party and that all fees shall be paid gross, inclusive of VAT if appropriate, and without deduction of income tax or social security contributions. The Consultant shall be fully responsible for its own tax liabilities The Consultant agrees to indemnify the Trust against any liability which the Trust incurs because of the non-deduction of, or failure to account for, any tax or NI contributions (or the like in any relevant jurisdiction) relating to the Consultant s remuneration under this Agreement Insurance [10]

6 9.1 The Consultant undertakes to procure and maintain: Public Liability Insurance with a reputable insurer with a minimum indemnity level of [ 5,000,000.00] for each and every claim; and Professional Indemnity Insurance with a reputable insurer with a minimum indemnity level of [ 1,000,000.00] for each and every claim. 9.2 The Consultant will from time to time at the request of the Trust promptly produce details of the insurance described in Clause 9.1 and evidence that it is being maintained Intellectual Property Rights [11] 10.1 The Consultant with full title guarantee assigns absolutely to the Trust all vested, contingent and future Intellectual Property Rights in and to the Materials and waives all moral rights in connection with Materials and shall procure that any third party that may be entitled to moral rights in the Materials has waived such rights The Consultant grants to the Trust a perpetual, irrevocable, royalty-free, nonexclusive licence to use, sub-license and reproduce the Intellectual Property Rights in the Generic Materials for whatever purpose the Trust deems appropriate At any time after the date of this Agreement, the Consultant shall at the request and expense of the Trust execute such documents and do such acts and things as the Trust may reasonably require for the purpose of giving to the Trust the full benefit of the rights set out in Clauses 10.1 and The Consultant shall, as a condition of this Agreement, procure that: subject to Clauses 10.1 and 10.2 above, it is the sole legal and beneficial owner of the Intellectual Property Rights in the Generic Materials and Materials and has full power to enter into and perform the terms contained in this Agreement; and the Generic Materials and Materials contain nothing which is obscene, indecent, defamatory, libelous or unlawful Contractor shall keep the Trust fully indemnified against all costs, claims, actions, expenses, losses or liabilities (including without limitation economic loss and loss of profit (direct or indirect), indirect loss or consequential loss) that NT may suffer as a result of the Consultant s breach of this Clause 10 and whether or not foreseeable at the date of this Agreement (including without limitation in relation to any claim by any third party that the Trust s use of the Materials or Generic Materials infringes the Intellectual Property Rights of any third party). 11. Limitation of Liability 11.1 Subject to Clause 11.2 and 11.3 the Trust s total liability to the Consultant in relation to this Agreement for breach of contract or for negligence or any other tort shall be limited to the higher of:

7 ,000.00; or the total amount of the Fees properly due to the Consultant under this Agreement and unpaid at the time of the relevant claim Nothing in this Agreement limits or excludes the Trust s liability for death or personal injury arising from its negligence or its liability for fraud or fraudulent misrepresentation or any other of its liabilities which cannot be legally limited or excluded. [11.3 Subject to Clause 4.2 and 11.2 the Trust may cancel the provision of any or all of the [Products and / or] Services on notice (whether or not in writing) and the Trust s total liability arising from such cancellation shall be: % of the fee(s) attributable to the cancelled [Products and / or] Services in the event that the Trust notifies the Consultant [on or before 4 weeks] before such Services are due to commence; % of the fee(s) attributable to the cancelled [Products and / or] Services in the event that the Trust notifies the Consultant [between 3 and 4] weeks before such Services are due to commence; % of the fee(s) attributable to the cancelled [Products and / or] Services in the event that the Trust notifies the Consultant [between 2 and 3] weeks before such Services are due to commence; % of the fee(s) attributable to the cancelled [Products and / or] Services in the event that the Trust notifies the Consultant [between 1 and 2] weeks before such Services are due to commence; and % of the fee(s) attributable to the cancelled [Products and / or] Services in the event that the Trust notifies the Consultant less than 1 week before such [Products and / or] Services are due to commence. For the avoidance of doubt, in the event that the Trust notifies the Consultant of cancellation by fax, or voic at a fax number, address or telephone number provided by the Consultant such notification shall be deemed to have occurred at the point that the fax or is set or the voic is left.] [12] General 12.1 This Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to its subject matter No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties No failure or delay on the part of the Trust to exercise any right or remedy under this Agreement shall be construed or operate as a waiver nor shall any single or partial exercise of any right or remedy Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise any party to act as agent for the other.

8 Except for any organisation which is wholly or partially owned by the Trust or which wholly or partially owns the Trust, which organisation shall be entitled to enforce this agreement as if it were the Trust, 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 The Consultant agrees to keep confidential the terms of this Agreement and not to use the same or the name of the Trust in any publicity, advertisement or other disclosure with regard to this Agreement without the prior written consent of the Trust Neither the rights nor the obligations of either party under this Agreement may be assigned transferred or otherwise disposed of, in whole or in part without the prior written consent of the other party Except as otherwise described in this Agreement, notice to be given under this Agreement must be delivered by hand or sent by post (prepaid first-class, registered or recorded delivery) to the relevant party at the address shown at the beginning of this Agreement (or such other address as may be notified by the relevant party in writing from time to time) and if sent by post any such notice shall be treated as served 48 hours after being posted unless the notice is returned undelivered by the Royal Mail This Agreement shall be governed by and construed in accordance with the law of England and each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England over any claim or matter arising under or in connection with this Agreement.