Consultancy Terms and Conditions
1. Definitions
“Client” means that company or person who contracts with the Consultant to provide the Services.
“Consultant” means Lyndhurst Consultants (Neil Cooling), a company registered in France, SIRET: 522 068 337 00016, of 1666 Rte de Tourneferie, 24320 Saint Paul Lizonne, France.
“Services” means that work, undertaken at the Consultants address unless otherwise agreed in writing in advance, as detailed on the Client’s order/instruction as accepted by the Consultant in writing.
“Insurance” means the Consultants insurance as set out on the document – Assurance Responsabilité civile Multirisque professionnelle (Consultant en Gestion D’Entreprise) Contrat n° 11069411204
2. The Term
2.1 The Client engages the Consultant to provide the Services in accordance with this Agreement.
2.2 This Agreement will continue for the Term. The Term starts on the Signing Date (at the beginning of this Agreement) and will continue until it ends, unless ended earlier in accordance with clause 10.
3. Consultant’s Responsibilities
3.1 During this Agreement the Consultant will:
3.1.1 provide the Services carefully and skilfully to the standard of an experienced provider of similar services;
3.1.2 meet the Client’s reasonable expectations by providing the Services during the regular business hours of the Client, or Consultant, as agreed, on weekdays (excluding public and bank holidays);
3.1.3 reply as soon as possible to any reasonable request from the Client’s authorised representitives for information and reports in connection with the Services;
3.1.4 tell the Client as soon as he/she reasonably can if the Consultant is unable to provide the Services or any part the Services for any reason;
3.1.5 make reasonable efforts to ensure that he/she is available at all reasonable times (as long as the Consultant is given reasonable advance notice) to provide any assistance or information the Client in relation to the Services;
3.1.6 not incur any expense on the Client’s behalf, unless the Client specifically tells him/her in writing to do so, or give the impression to others that he/she is allowed to do so;
3.1.7 comply with all reasonable standards of safety and with the Client’s written health and safety procedures, at the place where the Services are provided, and report any unsafe working conditions or practices to the Client;
3.1.9 warrant that their work is original and does not infringe anybody else’s intellectual property rights. If this is not correct, the Consultant will pay the Client back for any money lost as a result of any successful claim against the Client;
3.1.10 ensure that nothing the Consultant does will infringe anybody else’s data and/or privacy rights or damage anybody’s reputation in a way that the law judges to be defamatory; and
3.1.11 ensure that nothing the Consultant does is unlawful, obscene, insulting or prejudicial towards any individual or group.
3.2 The Consultant is a professional who will use his/her own initiative as to the way in which the Services are to be delivered or the place of delivery. The Consultant shall co-operate with the Client and comply with all reasonable and lawful requests of the Client.
3.3 The Consultant may provide the Services from such locations as are appropriate and agreed with the Client. The Consultants primary place of work is detailed in the Definitions.
3.4 The Consultant shall not be required to provide any advice and assistance in addition to the Services. Any requests to provide any additional advice and assistance shall be agreed by the Consultant before the advice or assistance is provided, including the fee payable for such additional advice and assistance.
3.5 The details of any new fee arrangements between the Consultant and Client shall be agreed in writing.
3.6 The Consultant shall comply with the Client’s IT policies and shall not knowingly introduce or pass on to the Client any software viruses, Trojan horses, time bombs, logic bombs, trap doors, cancelbots or any other computer code, files or programmes that may cause any harm to or affect the Client’s systems, or any device, software, system or telecommunications equipment used by the Client.
3.7 The Client shall not have to offer the Consultant any further, additional or future work during or after this Agreement and the Consultant shall not have to accept any offer of work made by the Client. The Consultant is not obliged to make its services available except for the performance of its obligations under this Agreement. Neither party wishes to create or imply any mutuality of obligation between themselves. Obligations of the consultant limited to the Services purchased under the terms is agreement. This Agreement shall not extend beyond the current term without a variation being signed pursuant to clause 3.5.
3.8 The Consultant shall, at its own cost, provide all equipment as is necessary for the satisfactory performance of the Services by the Consultant. If the Consultant is provided with equipment by the Client, the Consultant shall be responsible for looking after the equipment. If any equipment is negligently or carelessly lost or damaged while the Consultant is responsible for it, the Consultant shall pay the cost of any necessary repairs or replacement.
3.9 The Client shall not collect and process any data about the Consultant unless agreed in writing with the Consultant.
3.10 The Consultant will comply with the Client’s data protection policy and any other policies that apply to the processing of data.
3.11 In addition to the general obligations of the Consultant under clause 3.9, the Consultant will:
3.11.1 co-operate fully with the Client to allow the Client to comply with all of its obligations under all applicable data protection legislation;
3.11.2 implement and maintain appropriate technical and organisational measures against unauthorised and unlawful processing of personal data (in each case as defined in applicable data protection legislation) and against accidental loss and destruction of or damage to personal data;
3.11.3 process any personal data disclosed to the Consultant by or on behalf of the Client as processor and only:
(a) In accordance with the Client’s written instructions; and
(b) for the purposes for which that personal data was obtained and processed by the Client;
3.11.4 provide such available documentary evidence of the Consultant’s compliance with his/her obligations under clause 3.9 and 3.10 as the Client may from time to time reasonably request;
3.11.5 straight away on receiving notice from the Client, take all appropriate action to enable the Client to comply fully and in a timely manner with any request from a data subject in relation to access to and/or rectification or erasure of personal data; and
3.11.6 immediately notify the Client of any misuse or loss of data of personal data of which the Consultant becomes aware in the course of providing the Services.
4. Client’s Responsibilities
4.1 When necessary to provide the Services, the Client will provide the Consultant with access to the relevant systems, premises and equipment.
4.2 The Client shall notify the Consultant of any statutory rules or regulations that apply to the Consultant and of any policies which apply to the Consultant during the course of providing the Services.
4.3 Where other people or organisations (including employees of the Client but excluding the Consultant) have to do something in order for the Consultant to provide the Services, the Consultant will not be responsible for any delay to the delivery of the Services or if the Services are not completed in full or at all because those other people or organisations do not do what they are supposed to do on time, in part or at all.
5. Fees
5.1 The Client shall:
5.1.1 pay the Consultant unless agreed otherwise with the Client, for the Services on a ‘time and materials’ basis at the rate of £180 per hour (minimum charge increment is 30 mins), together with materials and expenses at cost and any taxes that apply, provided that the Consultant has sent an invoice, together with any details of the hours or days worked on the Services during the period covered by the invoice. All fees shall be invoiced by the Consultant at the end of each month or otherwise as agreed between the parties.
5.1.2 pay each invoice within 7 days, plus taxes as applicable. If any of the Consultancy’s invoices becomes overdue, the Consultancy may suspend provision of Services, and any agreed timescale will be automatically extended.;
5.1.3 be entitled to deduct from these fees any sums that the Consultant may owe to the Client at any time.
5.2 The Consultant is not entitled to any payment or fee for any day when he/she does not provide the Services.
5.3 Payment of fees or any expenses by the Client shall not affect any of the Client’s claims or rights against the Consultant if the Consultant does not provide the Services in accordance with this Agreement.
6. Expenses
6.1 The Consultant shall be responsible for all expenses that it has to pay in order to carry out the Services unless some other agreement is made between the Consultant and the Client.
6.2 If the Client agrees to pay any of the Consultant’s expenses, the Consultant will:
6.2.1 provide receipts or other valid evidence of payment; and
6.2.2 get the Client’s agreement in writing before the Consultant incurs any expenses that are greater than £100.
6.3 The Consultant must invoice the Client for the expenses claimed and, if they are due, the Client must pay them (together with any taxes due) within the period set out in section 5, Fees.
7. Other Activities
7.1 The Consultant can engage in any other business during the Term provided that he/she:
7.1.1 does not breach the terms of this Agreement;
7.1.2 does not cause the Consultant a conflict of interest in relation to their ability to deliver the Services;
7.1.3 does not interfere or try to interfere in any contract, agreement or arrangement between the Client and any third party; and
7.1.4 does not discourage any third party from doing business with the Client, or entice or encourage such third parties to enter into contracts with a competitor of the Client or with the Consultant, once they have indicated their intention to enter into a contractual relationship with the Client.
8. Confidential Information
8.1 Confidential Information shall mean any trade secrets or other information (in whatever form and wherever kept) relating to the business or clients of the Client, which is confidential to the Client (which may be marked as “confidential”, is described as “confidential” or which is obviously confidential), and includes any copies of such information.
8.2 The Consultant may not use or disclose to anyone, any Confidential Information about the Client’s business that he/she may see or find out when providing the Services, including Confidential Information in any form relating to customers, products, technical data and trade secrets, unless:
8.2.1 the Consultant’s work makes it necessary to disclose the information to someone in order that they can help his/her fulfil the Services;
8.2.2 the Client approves its disclosure;
8.2.3 the law, or a body with legal or regulatory authority requires it to be disclosed;
8.2.4 the information is already public and known by others (but not because the Consultant told them).
8.3 The Consultant will protect the Confidential Information against unauthorised disclosure by using the same degree of care as he/she takes to look after and keep safe his/her own confidential information of a similar nature, being at least a reasonable standard in line with industry standards.
8.4 At any time during this Agreement, the Consultant will quickly return to the Client on request, all Confidential Information and anything else the Client owns, such as paperwork and data and documents created by the Consultant on the Client’s computer systems, or any other work created by the Consultant on behalf of the Client during the Term.
9. Intellectual Property
9.1 Any “intellectual property rights” (such as copyright, or rights in designs) owned or licenced by either party prior to the date of this Agreement shall remain the property of that party or the licensor.
9.2 Any work produced by the Consultant in the course of carrying out the Services shall be called “Works”. Where the Consultant uses its own intellectual property rights (or the intellectual property of a third party under the terms of a licence) in the Works, then the Consultant shall grant a licence to the Client to the extent necessary to facilitate the Client’s full enjoyment of the Works and, where necessary and available, rights equivalent to those of the Consultant subject to the Client’s strict adherence to the limitations and availability of such rights.
9.3 The Consultant assigns to the Client, without any further payment, all intellectual property rights which arise in the Works and any ideas or inventions or innovations (called “Inventions”) he/she originates in the course of carrying out the Services (excluding the rights and subject to the limitations set out in clauses 9.1 and 9.2). This applies whatever form those Works or Inventions take. The Consultant agrees that if he/she is prevented by law from transferring these things to the Client, he/she will hold them on the Client’s behalf, on the basis that the law calls “on trust”.
9.4 The Consultant agrees (subject to clauses 9.1 and 9.2 where relevant):
9.4.1 to inform the Client in writing of any Inventions he/she may come up with as soon as he/she has invented them, and to keep all details of such Inventions confidential;
9.4.2 not to try to register legally any intellectual property rights in Inventions or Works made during the course of carrying out the Services, and to do anything else (such as signing document) which the Client needs to confirm the Client’s ownership of the Inventions or such Works, or protect the Client’s rights in them;
9.4.3 that he/she has not allowed and will not allow anyone else to use the Inventions or any of the Works or any of the intellectual property rights in either of them, and that nobody else is using them as far as he/she knows;
9.4.4 that the Client may exploit, alter or change the Inventions or any of the Works without identifying the Consultant as the creator. These rights which the Consultant now waives are called “moral rights” which arise under the Copyright Designs and Patents Act 1988.
10. Ending this Agreement
10.1 The Client may end this Agreement immediately, by sending the Consultant a written notice, without having to pay anything more than amounts earned before the date that this Agreement ends, if at any time:
10.1.1 the Consultant fails to comply with the Client’s reasonable and lawful requests, and does not remedy it within 14 days of receiving a written notice from the Client that requires the Consultant to remedy the breach;
10.1.2 the Consultant is, in the Client’s reasonable opinion, careless or ineffective in the performance of the Services and despite being notied does not remedy this within 14 days of receiving a written notice from the Client that requires the Consultant to remedy the breach;
10.1.3 the Consultant is unable to carry out the Services;
10.1.4 the Consultant is guilty of any fraud or dishonesty, or acts in any way which the Client believes damages its reputation, or which might seriously damage the Client’s business.
10.2 Either the Client or the Consultant can end this Agreement straight away by sending the other a written notice, if the other party:
10.2.1 commits any serious or repeated breach of any of its obligations under this Agreement, and (where that the breach can be remedied) does not remedy it within 14 days of receiving a written notice from the other party that requires them to remedy the breach;
10.2.2 fails to pay any amount due under this Agreement on the due date for payment and does not pay the amount due within 30 days of receiving a notice from the other party requesting payment;
10.2.3 stops, or is unable to pay its debts when they arise, or is deemed to be unable to pay its debts under the legislation known as the Insolvency Act 1986;
10.2.4 negotiates with any creditors who it owes money to reschedule its debts to them, or enters into any arrangement or compromise with its creditors concerning its debts;
10.2.5 files a petition, gives notice, passes a resolution or an order is made for it to be wound up (except if that happens as part of it combining with another company whilst it is still solvent) or a person of significance (including the Consultant) is declared bankrupt;
10.2.6 has creditors, or someone else it owes money to becomes entitled to appoint an administrative receiver or takes possession of any of its assets, or any other legal action is taken against its assets;
10.2.7 a court application or order is made for the appointment of an administrator over them and its affairs; or
10.2.8 stops carrying on business, or threatens to do so.
10.3 The reasons listed in this clause 10 do not limit any of the legal rights of the party which is not at fault or in default and which sends a notice bringing this Agreement to an end to the defaulting party. If that party does not exercise its rights to end this Agreement straight away, this does not mean that it is giving up its right to end this Agreement in future for that reason or for another reason.
11. Responsibilities on Termination
11.1 On termination of this Agreement the Consultant must:
11.1.1 immediately return to the Client all of its property in his/her possession or to which he/she has access, and any materials that he/she has been working on as part of the Services;
11.1.2 delete without undue delay all information about the Client’s business that is stored electronically in the Consultant’s possession or to which he/she has access; and
11.1.3 sign and deliver a statement that he/she has done these things.
12. Status and Substitution
12.1 The relationship between the Client and the Consultant will be that of customer and independent contractor which means that the Consultant is not the Client’s employee, worker, agent or partner, and:
12.1.1 the Consultant will give the impression that they are; and
12.1.2 will do anything the Client reasonably requests when asked to confirm that this is the actual relationship.
12.2 As this is not an employment contract the Consultant will be fully responsible for all his/her own tax including any national insurance contributions arising from carrying out the Services. If the Client has to pay any such tax or national insurance contributions, the Consultant will to the extent that it would be legal, pay back to the Client in full, any money that the Client has to pay, and he/she will also pay back the Client for any fine or other punishment imposed on the Client because the tax or national insurance contributions were not paid by the Consultant.
12.3 The Consultant must ensure that any person that it uses to provide the Services on its behalf is properly qualified and trained, and has the necessary skills and experience to provide the Services to the reasonable satisfaction of the Client.
12.4 The Consultant may appoint a suitably qualified and skilled substitute to perform the Services on his/her behalf. The Client may refuse to accept any substitute only if, once any substitute is in role, it is not reasonably satisfied that the substitute has the necessary skills and qualifications to provide the Services to the Client’s reasonable satisfaction. If a substitute is appointed, where this Agreement uses the word “Consultant”, it shall include the substitute.
12.5 If a substitute is appointed, the Consultant shall:
12.5.1 be responsible for any payment agreed between the substitute and the Consultant, and any additional costs during any handover period;
12.5.3 continue to be subject to all duties and obligations in this Agreement during the appointment of the substitute;
12.5.4 ensure that the substitute signs any documents that the Consultant is required to sign under this Agreement; and
12.5.5 ensure that the substitute receives any training that is necessary (at the Consultant’s expense).
12.6 The Consultant shall be entitled to appoint such administrative assistants and professional advisers as they deem appropriate and shall be responsible for their assistants’ and advisers’ compliance with the terms of this Agreement.
13. Liability
13.1 The Consultant shall be responsible for any loss, damage or injury to any party, which results from anything done by or not done by the Consultant that is in breach of this Agreement. The Consultant shall pay that person or organisation, including the Client, in full, any money that the person, organisation or the Client has to pay, as well as any fine or other payment imposed on the person, organisation or the Client relating to such loss, damage or injury provided that the total amount that the Consultant has to pay does not exceed of the higher of (a) ₤50,000, and (b) 100% of the total sums payable for the Services in the previous 12 calender months, except where it may not lawfully exclude or limit liability.
13.2 Each party expressly excludes liability for consequential loss or damage, loss of profit, business, revenue, goodwill or anticipated savings. Any liability or remedy for innocent or negligent misrepresentation is expressly excluded. Neither party excludes or limits liability for death or personal injury. It is the Consultancy’s responsibility to maintain adequate Insurance.
13.3 The Consultant shall be responsible for any problems arising as a result of the provision of the Services and the Consultant shall put these problems right at its own cost where the Client notifies the Consultant in writing of the problem.
13.4 Neither the Consultant nor the Client will be liable to the other for failure or delay in carrying out this Agreement, which is caused by an event beyond their reasonable control and that they could not have foreseen, or which was unavoidable. This includes industrial disputes, energy or transport failures, acts of God, pandemic, war, terrorism, civil unrest, explosions, mechanical breakdown or natural disasters.
13.5 Should the circumstances described in clause 13.4 endure for 30 days or more, then either party shall be entitled to terminate this Agreement upon service of notice to the other party.
14.1 If either party wants to give a notice to the other, it shall be in writing and signed. It should be delivered personally, or by sending it by pre-paid recorded delivery or registered post to the other party to the address at the beginning of this Agreement, or by email, to an email address nominated by each party or, if no email address has been nominated, the most recently used email address between the parties.
14.2 If the notice is given by post, it will be treated as having been received on the second business day after posting (this excludes weekends and public holidays). If the notice is delivered personally, it will be treated as having been received on the day it is received, unless this is not a business day, in which case it will be treated as having been received on the next business day. If notice is given by email it will be treated as having been received 24 hours after it is sent, as long as it sent to the correct email address and no notice is received to indicate that the email has not been received by the other party.
15. General
15.1 These terms are the whole Agreement between the Client and the Consultant and replace any previous agreements between them in respect of the subject matter.
15.2 If either the Client or the Consultant wants to change this Agreement, the change must be in writing and must be signed by both of them.
15.3 This Agreement may be signed separately by the Client and the Consultant, in which case the separately signed copies will together be taken as the whole Agreement.
15.4 No one other than the Client and the Consultant has any rights under this Agreement.
15.5 The Consultant may not assign this Agreement or any of his/her rights under this Agreement without the Client’s written consent. The Client may assign this Agreement or any of its rights under this Agreement to a third party provided it gives the Consultant written notice of this.
16. Disputes
16.1 This Agreement and any dispute or claim relating to or connected with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
16.2 The Parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to this Agreement or any breach of it.
16.3 If any such dispute cannot be settled amicably through negotiations between the Parties, or either or both is or are unwilling to engage in this process, either Party may propose to the other in writing that structured negotiations be entered into with the assistance of a fully accredited mediator before resorting to litigation.
16.4 Any dispute shall not affect the Parties’ ongoing obligations under this Agreement.
16.5 The Consultant and the Client agree that the courts of England and Wales are the only place where disputes or claims relating to or connected with this Agreement (including non-contractual disputes or claims) may be decided.