Terms of Business
1. Our Agreement
a. These Terms of Business supplement the agreement set out in a Booking. They do not give rise to any right for either of us to require a further Booking.
b. I will start work when you accept my Booking. You can accept by letting me know that you accept, or by asking me to start work. No-one can process Personal Data for you until you have given written data processing instructions. Please complete the Data Processing Form with this Agreement or use your own data processing instructions.
c. The Services to be provided are set out in the Booking. They can be amended by exchange of emails or by issuing a revised Booking.
2. Expectations
a. Quality standards that are unique to the project are set out in the Booking.
b. The work is normally undertaken at my premises. When asked to travel to other premises, travel time and travel expenses will be charged.
c. My objectives, expressed in general terms, will be:
• To support your business;
• To understand your key timings.
d. In order for me to achieve the best results for you, I need your active co-operation. Specifically, you should:
• Promptly provide the resources you are responsible for;
• Provide clear guidelines for the tasks required.
e. I will normally provide all equipment needed to perform the Services. I will set out in the Booking any items that are chargeable to you.
f. Insurance: If I carry professional indemnity or IR35 insurance, I set out the amount we are insured for in the Booking form. If that field is blank that means we are not currently insured. If you wish me to take out insurance or additional insurance, I am happy to do so if you agree to pay the additional cost. Normally this is an annual cost, and it may not be possible to refund the charge if you do not use us for the exact year that our insurance runs. You can ask me for a copy of our current certificates of cover and policy terms.
3. Business Arrangements
a. My Services are provided on a ‘business-to-business’ basis.
• The way I work is part of my trade know-how and shall not be under your direction or control.
• I shall continue to market my services and work for other clients and maintain an independent business of my own.
b. Authority: The person named in the Booking will be my main contact and has the authority to agree payments and to agree changes to a Booking. I will not order any goods or services on your behalf unless it is authorised by that person.
4. Business Continuity and Resilience
a. Holiday, sickness and emergency cover: I may nominate one or more substitutes for holiday and sickness cover. These will be given the necessary access when they are about to be used.
b. Expertise and focus: From time to time I may use experts to supplement my own expertise where such expertise is needed and not provided via a 3rd party contracted directly with you.
c. Availability and deadlines: I may delegate elements of your work, or entire projects to suitably qualified members of my team to provide appropriate depth of resources to meet your business deadlines.
d. All my team are contracted to confidentiality and appropriate GDPR standards where necessary.
5. Timing and Standard of Provision of Services
a. I will use our reasonable endeavours to deliver Services according to the timetable described in the Booking. Where work is undertaken by retainer you must specify your priorities and deadlines in line with the number of hours/posts that you have purchased. I will let you know if I expect that campaign or other deadlines may not be met.
b. If you want more work than the time/posts you have purchased, you need either to scale back your requirements or purchase more hours/posts subject to availability.
c. Timetables: My ability to meet timetables depends on your giving me access in good time to all the information or resources I need from you. If you are late with information or resources, I reserve the right to reschedule Services or you may simply have lost that period of posting. There is no automatic right to roll over posts from an earlier period.
d. Availability: My normal working hours are displayed on my web site, and/or set out in the Booking. Availability outside these hours cannot be guaranteed without agreement in advance, and work outside those availability hours will be subject to additional work surcharges. I am not available over the weekend or on Bank and Public Holidays unless expressly agreed.
e. Proof reading and sign off: While I do everything I can to ensure the accuracy of the work I do for you, the final sign off rests with you and it is your responsibility to check the work before it goes out.
6. Fees, Payments and Expenses
a. Fees and expenses are charged in accordance with the Booking. Out-of-pocket expenses (including travel, stock pictures, videos and music, USBs, DVDs, CDs) will be charged as an additional charge. Where applicable VAT will be charged at the appropriate rate.
b. Normal hours of work and availability are set out in the Booking form. For work outside these hours, an additional rate may be applied as set out in the Booking form or 150% of the hourly rate fee for time-based bookings (or the equivalent).
c. For urgent work given at less than 24 hours’ notice, an urgent work rate may be charged at the rate set out in the Booking, or, if none, at 150% of the hourly rate fee for time-based bookings (or the equivalent).
d. Out of hours and urgent work rates may both be charged for the same work if it is both urgent and out of normal hours. I will apply the out-of-hours work surcharge to the normal hourly rate and then the urgent work surcharge to the resulting out-of-hours rate.
e. Where the Booking is for a fixed fee retainer or project, additional work outside the scope of the original Booking will be charged at my normal hourly rate (subject to Clauses 6.b to 6.d above) unless stated otherwise in the Booking.
f. I may agree to a maximum of 10% of unused hours being carried forward provided my invoices are fully and promptly paid in accordance with my terms. Hours carried forward must be used in the following month or they will be lost. Hours carried forward from one month to the next will be used first before the month’s retainer hours.
g. Payment is due for before work commences. The non-payment of an invoice may delay starting the work even if you have accepted the terms and asked us to start. Payment means when cleared funds appear in my bank account. Invoices are sent on the 1st of each month for payment for work that month.
h. Payment is due as set out on the Booking or if not specified there within seven calendar days from the date on the invoice. If you do not pay by the due date, I may reschedule further work until payment is made. Additional charges may be levied for PayPal, credit card payments, specific payment methods – see Booking.
i. I reserve the right to charge interest on overdue amounts at the rate set out in the Booking, or where the Booking does not specify at the rate of 2.22% per month (equivalent to unauthorised overdraft rate from the bank). Subsequent payments will be applied to interest and finance charges first, and then applied to fees/costs outstanding.
j. Any time and expenses incurred in responding to your requests to audit data for GDPR compliance or complying with an external legal body’s legal requirements to disclose information or submit to audit may result in charges at our normal hourly rate (or the equivalent) for the work incurred.
k. Upon termination of a Booking further time-based charges may be incurred in handing over, returning, data, or responding to enquiries. This would be charged at my normal hourly rate or the equivalent.
l. If you specify that I should securely store data for you in my own software or systems for longer than six weeks after the termination of a Booking, I reserve the right to charge for this storage and securing at the rate of £500 a year or such other amount as specified in the Booking.
m. I have quoted my fees on the basis of a business to business arrangement where I am entitled to be paid my fees without deductions.
• If you make any tax withholding or deduction of PAYE and/or NI from the face value of my invoices; and/or
• If by your action or inaction you bring my Booking within scope of IR35 or any other tax obligation that results in the need for you to make deductions at source; and/or
• If you insist that I work under an umbrella company (so requiring us to bear the burden of charges and fees), then the invoice amount(s) will automatically be adjusted upwards to ensure I receive payment of the face value of the original invoice(s) and/or fees as quoted on the Booking. I may also charge you for umbrella company and other associated costs, including and not restricted to National Insurance. Bookings will be upwardly adjusted from that point onwards so that the nett receipts against the invoice match the value in the original Booking and/or quotation for the work.
n. I shall deduct and pay over to HMRC any tax and national insurance that may be required under any tax obligation imposed on me. If you are involved in a dispute with HMRC over who should be paying such tax, I will produce the relevant receipts and other existing paperwork to help you reduce or resist the demand.
o. Time-based Bookings only: Time-based bookings are charged in 15-minute slots, so a five-minute call may incur a 15-minute charge if this is a unique call during the day. Fees will be subject to a minimum one-hour charge on days when work is required.
p. I have some software and equipment I use at no additional charge to you. But where I need license fees or usage fees to provide support for you, I will charge you the cost of any licenses you have authorised me to purchase. I will normally provide all equipment needed to perform the Services. I will set out in the Booking (or Booking amendments) what they are and whether they are chargeable to you.
7. Rights to use / Copyright
a. The Rights in work done under any Booking shall be mine. Upon payment of my fees and charges I will assign to you the Rights in Materials uniquely created under the Booking. I agree to sign any further documents needed to complete the transfer of those Rights to you. This will not include the Rights to any templates or structures or methodologies that I used to create Materials.
b. Information and documents which I provide to you remain our absolute property unless and until assigned to you.
c. You promise not to breach any third-party copyright, trade/service mark or privacy rights in sending me material to work on. You promise not to use any confidential or restricted information that belongs to someone else in sending me work.
d. I will keep full records of the work that I have done for you and the contacts I have made with people on your behalf.
e. I will not access, use, copy, distribute or publish any part of any information, data or documents created uniquely for you (once paid for), for my own or any other person’s benefit or purposes.
8. Policies and Procedures
a. Resolving problems: If there is anything about your project that is not going as you want, or if you have any query or complaint, speak to me straight away.
b. Health and Safety: When working at my own premises, I am responsible for my own health and safety.
c. Working at your premises: I may from time to time work at your premises and be covered by your health and safety policy.
d. I handle Personal Data in accordance with my data privacy policy.
e. Where a Booking involves the transfer of Personal Data outside the EU/EEA, you and I will enter into and be bound by a Non-EU/EEA Model Clauses agreement.
9. Confidential Information
a. Your information and my confidentiality: You may need to share Confidential Information with me. It may be business information or information about individuals (which is also covered in Clause 10 below). I will only use Confidential Information that you send me to perform the Services set out in the Booking or if I am required to disclose it by law. I may keep some Confidential Information to keep a record of what I did for you. I will keep personal data in line with our data retention policy (a copy of which can be found with my data privacy policy).
b. Documents and information: I will need to agree with you a safe and secure system of you sending me your confidential documents and information (and me returning them to you). I am not liable for data that is not securely transmitted to me.
c. Log-ins: Where you wish me to access systems that contain information that identifies living individuals, you should provide me with a unique log in to your existing software platforms and systems.
d. Where multi-user log ins are not available you will securely share passwords through password lockers and change those passwords at appropriate intervals.
e. I will not set up any social media or email account or fan/group/web/ forum pages using my name or my brand name(s), or for people to respond to unless your Booking specifically says so. The default user will be set up using your information and contact details unless you specify otherwise.
f. Note that I may make and keep temporary backups to ensure continuity of service.
10. Data Privacy
a. I will process your own Personal Data in line with my data privacy policy.
b. When you want me to access or use Personal Data about someone other than you (3rd party data), you must have completed the appropriate Data Processing Form and send a copy by email from your usual business address. While processing personal data in the provision of Services, I will be acting as ‘data processor’ for you, and you are the ‘data controller’.
c. I will process 3rd Party Data on your behalf only in response to your written instructions (which may be in the Booking, Data Processing Form, or in separate email or document) except where I am required by law to do so.
d. I am subject to a duty of confidence (see Clause 9.a and Clause 4.d (in relation to my team)).
e. I will take appropriate measures to ensure the security of my Processing of your 3rd Party Data.
f. I will assist you in allowing 3rd parties to exercise any of their Data Privacy rights (including subject access). This will result in additional time-related charges (see Clause 6 above).
g. I will apply the security measures you set out in the Data Processing Form for protecting and securing your data.
h. I will email you if I become aware of a Personal Data Breach. I will assist you in your investigations in establishing how this occurred. I will assist you, as you may reasonably require, in meeting your Data Privacy obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments. This will result in additional time-related charges (see Clause 6 above).
i. On written request by you, I will delete or return all 3rd Party Data supplied by you or assembled by me in the course of delivering Services to you. This will result in additional time-related charges (see Clause 6 above).
j. Unless the Data Processing Form specifies otherwise, I will delete all 3rd party data supplied by you from systems within my control within six weeks of the end of the Booking without returning copies to you; I will not remove data from systems you have given me access or log-ins to, since those systems will remain under your control and I would expect you to be removing my access to them after the end of a Booking.
k. If you wish me to store 3rd Party Data beyond the termination of the Booking and the six-week run on, you must specify this in the Data Processing Form. This will result in additional time-related charges (see Clause 6 above).
l. You may audit and inspect how I handle your 3rd party data. I will provide you with whatever information you need to ensure that the relevant Data Privacy obligations are being met; this will result in additional time-related charges (see Clause 6 above).
m. I will tell you immediately if I believe I am asked to do something infringing Data Privacy law. I am not a legal expert and it is up to you to take appropriate legal advice on how to comply with Data Privacy rules and regulations.
n. If you have instructed me to do something I believe is not within the law, I reserve the right to take advice from the Information Commissioner’s help line and to act in accordance with their indications or advice.
o. If you direct me to perform work that is counter to ICO indications or advice, I may seek a deposit from you against the likelihood of fines or other action being taken against me. I may specify such sum as I think is appropriate.
p. It is always your responsibility to specify suitably secure platforms and processes and to share data with me in a secure way.
11. Restriction and Limitation
a. Whilst working with me, you may be working with my associates who support me. They are all under contractual terms that prohibit them from working directly for my clients other than through me, and you must not participate in them breaching their obligations to me. If you want one of my team to work directly for you, I would consider releasing them from their contractual obligations for a suitable fee representing the all-in cost of locating, recruiting and training a substitute and our loss of profit during this period.
b. I will not be liable for failure to provide services where it is not reasonably practicable to do so due to circumstances beyond my control.
c. Indemnity: You will indemnify me against any fines, costs, expenses, losses or other harm that comes to me from following any unlawful instruction or instruction to act in an unlawful way that was given by you.
d. Limitation of liability: My fee rates are determined on the basis of the limits of liability set out in the next four paragraphs. You may request that I agree to a higher limit of liability (provided insurance cover can be obtained therefor) in which case my fee rates may be adjusted, or an additional charge may be made.
e. There shall be no personal liability of any of my principals, directors, partners, agents or sub-contractors arising in any way out of the performance or non-performance of services or relating to the supply of products.
f. I shall have no liability for any indirect or consequential losses or expenses suffered by you, however caused, including but not limited to loss of anticipated profits, goodwill, reputation, business receipts or contracts, or losses or expenses resulting from third party claims.
g. My aggregate financial liability to you shall not exceed the pro rata fees paid for the action(s) which gave rise to such liability.
h. Nothing in these Terms shall be interpreted as excluding or restricting any legal liability on me or others where liability cannot legally be excluded or restricted.
12. Termination
a. Bookings end on the completion date specified in the Booking or on completion of the work whichever is earlier.
b. Either party may terminate a Booking summarily at any time by giving notice in writing to the other party if:
• the other party commits a material breach of agreement and such breach is not remediable;
• the other party commits a material breach of agreement which is not remedied within 14 days of receiving written notice of such breach and requiring its remedy from the injured party;
• any consent, licence or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under the Booking or receive any benefit to which it is entitled; or
• the other party is subject to any procedure or takes any action relating to their potential insolvency or winding up or being placed into administration or entering into a creditors’ voluntary arrangement or any other process reasonably indicating to the first party that the other party will not be able to meet its obligations under the Booking as they fall due.
c. Terminating a Booking shall not affect rights and obligations already accrued.
d. Any work done after termination of a Booking or this agreement will be charged at the normal hourly rate or equivalent. This will include responding to emails, returning information, finding information, or any other action taken as a result of an email or telephone call from you or the workgroup normally assigned to give instructions to me. If you wish to avoid this, please remove me from all email groups and email correspondence and make no further requests for action or information. Termination of a Booking will not invalidate such charges and invoices should be paid in accordance with these Terms.
13. Definitions and Law
a. In these Terms, the following words or phrases have the meaning set out in this clause.
“Booking” an agreement that we will supply Services on specified occasions and/or with a specified outcome as set out in a Booking Form or in a formal proposal.
“Clause” a numbered clause of these Terms of Business.
“Confidential Information” all information:
– that I discover because of or through our connection with you; and
– which is about or relating to you or your business (including financial information, products, services, service levels, customer satisfaction, proposed services and products, pricing, and margins) or your people (including your directors or partners, investors, staff, suppliers, customers, clients, prospects and contractors).
However, Confidential Information does not include information that is openly published by you, or information that is publicly available without breach of our confidentiality obligation.
“Data Privacy” refers to applicable provisions governing the processing of personal data, as amended or varied or replaced from time to time, including the Data Protection Act 2018, the EU General Data Protection Regulation 2016/679, the e-Privacy Directive 2002/58/EC, and the Privacy and Electronic Communications (EC Directive) Regulations 2003.
“Data Processing Form” the Form completed by you setting out the framework of the processing of personal and other data required by the Booking.
“ICO” the Information Commissioner’s Office, being the data protection authority in the United Kingdom with respect to Data Privacy.
“including” the word “including” shall not imply any limitation on the generality of the concept or thing of which examples are being given.
“Materials” means written, audio and visual materials used or produced in the course of or to support delivery of Services, including handouts, videos, questionnaires, games, case studies, explanatory material, notes, calculations, specifications, reports, designs, drawings, flow charts, plans, reference material, prototypes.
“Non-EU/EEA Model Clauses agreement” a separate agreement between the parties in a form approved by the European Commission for the cross-border transfer of Personal Data.
“Personal Data” information about identifiable living individuals.
“Personal Data Breach” breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, access to, or other unauthorised Processing of Personal Data.
“Processing” when applied to personal data, the term ‘processing’ means any operation applied to the data, including collecting, organising, storing, altering, retrieving, using, sharing and deleting it or any part of it.
“Rights” includes:
– intellectual property rights including (but not limited to) copyrights, patents, registered designs, design rights, trademarks, service marks, and
– the right to apply for or register any such protection, and
– all rights relating to trade secrets and other unpublished information.
“Services” the work to be supplied or the outcomes to be achieved by us, as set out in a Booking.
“3rd Party Data” personal data about an individual other than you which is supplied by you to me.
“You” refers to the person, firm or organisation for whom Services will be performed by me.
“I” and “me” refers to the person, firm or organisation agreeing to provide Services.
b. No waiver: If I or you delay or fail to enforce any term of a Booking or these Terms on any occasion, that will not affect or limit my or your ability to enforce that term on any other occasion or at any time.
c. Severability: If any provision or part of a provision of a Booking or these Terms is unenforceable, word(s) shall be struck from the agreement to the minimum extent necessary to make the agreement enforceable and this shall not affect the enforceability of the other provisions of the agreement.
d. Law and jurisdiction: All our agreements are governed by English law and subject to the exclusive jurisdiction of the English courts.