This Agreement is made:
Between (1) Hashtag NerdBird, 2 Adler Way, City Quay, Liverpool, L3 4FX, (“the Consultant”);
and (2) You (“the Client”)
- The Client hereby wishes to retain the services of the Consultant as an independent contractor in relation to providing website design, digital marketing, and/or social media services (“the Services”) and the Consultant is willing to make such Services available to the Client.
1. THE CONSULTANT’S DUTIES
- The Client is retaining the Consultant to perform the duties laid out in the Statement of Work which may be amended from time to time by mutual written agreement of the parties. These duties may include, but are not limited to:
- Website design and development;
- Website maintenance;
- Website hosting and security;
- Email accounts;
- Graphic Design;
- Printed collateral
- The Consultant recognises that the timely completion of the tasks is of great importance to the Client and will dedicate such resources and time as is needed to complete the duties in the time-frames specified in the Statement of Work.
- The Consultant’s services are offered on a project, monthly, biannual, or annual basis and are broadly defined as website design services. The scope of this offering is defined in the Statement of Work but the Consultant reserves the right to further define these at any time. Anything outside of the scope will be arranged with the client on a project or ongoing basis by modification of the Statement of Work.
2. CLIENT’S DUTIES
The Client understands and agrees that the timely performance of the Consultant’s duties will at times depend upon the timely input of both resources and information by the Client. The Client hereby confirms that they will provide all resources and information in a timely way as reasonably required by the Consultant and that they will not hold the Consultant in breach of this contract or any other contractual obligations where such breach has been caused by the Client’s failure to provide the required resources and information according to the agreed deadlines. The Client also agrees to compensate the Consultant for any additional expenses incurred through the Client’s failure to meet agreed deadlines.
3. PROGRESS REPORTING
The Consultant will provide the Client with regular (at least weekly) updates which will detail progress made against time targets as detailed in the Statement of Work and Ongoing Work and will highlight significant variations, both positive and negative, and identify the implication of these variations to the delivery of the overall project. Where the implications indicate that the project targets will not be met, the Consultant will identify remedial actions and any cost implications of those actions.
In respect of all services provided by the Consultant under this agreement, the client agrees to pay the various consultancy fees set out in the Statement of Work. Unless agreed differently, standard payment terms will be:
- Graphic design, branding and printing work and all other projects delivered in less than 2 weeks – full payment in advance of starting the work
- Longer term project work delivered in over 2 weeks – 50% deposit in advance of starting the work, with the balance on satisfactory completion of the work
- Retainer services – monthly payment to be received on the 1st calendar day of a month in advance of each calendar month. If payment is not received by the 7th calendar day of the month then all services will be suspended until such time as payment is made in full.
The Client shall reimburse all non-consultancy fee expenses incurred by the Consultant on behalf of the Client. Such expenses shall be estimated in the Statement of Work but will be confirmed in writing to the client and approved in writing by the Client before they are incurred and will be invoiced at the end of each month with payment terms of 30 days.
6. TERM AND TERMINATION
- This agreement is effective from the date of execution for an initial period of 12 months and thereafter shall continue monthly unless terminated by either the Consultant or the Client. Termination may be by either the Consultant or the Client by giving 28 days written notice. Immediately upon termination all payments for work completed and expenses incurred or contractually committed for future payment up to the date of termination become immediately due and payable in 15 days from invoice.
- The Consultant reserves the right to terminate this agreement and to cease any support services in the event of non-payment of the final invoice or failure to pay for ongoing support as provided for in clause 1.3.
- Either party may immediately terminate this agreement for cause as follows:
- Either party being unable to perform their duties under the agreement through illness or insolvency;
- Either party persistently fails to carry out their duties as defined in clauses 1 and 2 in a diligent and timely manner despite a written notice from the other party detailing the failure and requesting an improvement in performance;
- Serious material breaches of any of the clauses such that the party believes that its image and reputation has been seriously damaged and which, if the breach is capable of being remedied, it has not been remedied within 30 days of written notice to do so.
7. INDEPENDENT CONTRACTOR
- Both parties understand and agree that the Contractor is an independent contractor and nothing either in this agreement or in its performance shall be deemed to create any employment, partnership, joint venture or agency relationship between the Client and the Contractor. The Contractor warrants that at no time will they make any representation, either implied or express, that they are anything other than an independent contractor in relation to the Company.
- Specifically, it is a condition of this agreement that the Contractor:
- must operate as a separate legal business entity of their choice;
- must maintain their own books and financial accounts;
- must be responsible for all income tax and national insurance contributions and Value Added
Tax or similar taxes or contributions under applicable law that are payable in respect of the consideration payable under this Agreement;
- must be responsible for all personal expenses that are incurred by them during the provision of the services and agrees that they will not make any claims whatsoever in this respect on the Client at any time.
- has at all times the freedom to purchase, for either use or resale, consumables and products from any source in order to perform the Duties;
- subject to clause 8.1, the Contractor has the freedom to compete openly for customers and can reject customers referred to them by the Client if they wish.
8. INTELLECTUAL PROPERTY
- For the purposes of this clause the following definitions apply: “Intellectual Property” means all rights in any jurisdiction, whether registered, unregistered or under application to be registered or to have registration renewed, relating to patents, copyright, trade-marks and design rights, also including but not limited to rights to inventions, goodwill, database rights, rights to use, confidential information, trade secrets, know-how, domain names, business names and the rights to sue under passing off common law. “Project(s)” means all projects as defined under the Statement of Work. “Foreground IP” means any Intellectual Property (including improvements made on existing developed Foreground IP) arising, obtained, or developed by either party arising during the term of this agreement and in connection with the Project(s). “Background IP” means any Intellectual Property which was already owned by either party on the date of execution of this agreement as detailed in clause 8.1 (b). “Sideground IP” means any Intellectual Property other than Background IP and Foreground IP which is developed by either party during the performance of this agreement, but which is not relevant to the Project(s).
- Unless specified in this agreement nothing in the participation in the Project(s) shall affect any rights, ownership or otherwise, of any party to Foreground IP, Background IP or Sideground IP.
- Ownership of Intellectual Property: (a) Foreground IP shall be owned solely by the party which generated it or owned jointly by the parties where they jointly generated the Intellectual Property. In all cases the exploitation and use of Foreground IP shall be the subject of written agreement between the two parties – see clause 8.4. (b) Background IP shall always remain the property of the party owning it at the time of execution of this agreement. (c) Sideground IP shall always remain the property of the party developing it during the performance of this agreement. 4. Licensing and use/exploitation of Intellectual Property.
- Foreground IP used within the Project(s) – both parties agree to grant each other a worldwide, irrevocable, non-transferable and non-exclusive license in perpetuity for the use of any Foreground IP within the scope of the Project(s) for the sum of £1 for each separate licence.
- Foreground IP used outside the Project(s) – where Foreground IP is desired by one of the parties to be used outside of the scope of the Project(s) then the other party agrees to allow this subject to the terms and conditions within clause 8.1(b).
- Background IP used within the Project(s) – both parties agree to grant each other a license on fair and reasonable terms to use any Background IP that is required for the use and exploitation of Foreground IP within the scope of the Project(s).
- Sideground IP used outside the Project(s) – both parties agree to grant each other a license on fair and reasonable terms to use any Sideground IP on projects outside the scope of the Project(s).
- Neither party can grant sub-licences for any Foreground IP without the written agreement of the other party which may include payment of royalties under fair and reasonable terms.
- In the event that the Foreground IP is not used within the Project(s) then each party will grant the other any licence on fair and reasonable terms such that the other party can exploit the Foreground IP within other projects.
- If either party sub-contracts their performance under this agreement, then that party shall ensure that any Foreground IP arising from the work of the sub-contractor shall be assigned to the party absolutely.
- Both parties undertake to, at their own expense and at any time either during or after the term of the agreement to provide all assistance, execute any required documents, make any applications and do any acts that are necessary to ensure that any Foreground IP is vested in either the Consultant or the Client, where required to register them in the name of either the Consultant or the Client and to defend either the Consultant or the Client against any claims that the rights infringe third party rights.
9. MATERIAL SUPPLIED BY THE CLIENT
- The Consultant reserves the right to refuse to handle any material that is unlawful because of copyright or licensing infringements or any content material that under the laws of England and Wales is deemed to be discriminatory, obscene (including material in breach of the Obscene Publications Act 1959, the Protection of Children Act 1978, the Sexual Offences Act 2003), blasphemous, offensive to religion or defamatory towards any person living or dead and contains material that has been obtained in violation of the Data Protection Act 2018, the Freedom of Information Act 2000, the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communication Regulations 2003, the Official Secrets Act or any analogous domestic or foreign legislation and contains any material that will constitute a contempt of court. If any such material is found on any equipment then the Consultant, at their sole discretion, may report this fact to the relevant authorities. The Client will indemnify and hold harmless the Consultant from and against any claim relating to the above.
- The Client warrants that there has not been any granting of any interest in the Intellectual Property Rights (“IPR”) of any material supplied by them by licence or otherwise to any person or company or legal entity of any other description. The Client further declares that if any of the material is of a publishable nature and has been previously published that it remains the property of the Client who retains full copyright in the material.
The Consultant agrees that they will not disclose the Client’s Confidential Information to anyone other than an employee or consultant with the Client, nor will they use any Confidential Information for any purpose other than for performing their duties under this Agreement. Upon termination of this Agreement the Consultant agrees to return all Confidential Information in their possession to the Client. For the purposes of this clause Confidential Information includes any information that is not already in the public domain that is:
- information specifically designated by the Client as confidential;
- information relating to the components, costs, production processes, profitability, development programmes or any information identified by the Client as “trade secret” of any product produced by the Client;
- information relating to business and marketing plans, customers or clients, associates, agents, partners or affiliates of the Client;
- information relating to business structure, processes, turnover, profitability or forward strategy of the Client.
The obligations of this clause shall survive the termination of the Agreement.
11. CONFLICT OF INTEREST
The Consultant warrants that they do not have, nor will enter into during the term of this Agreement, any other agreement that will bring them into conflict with any provision under this Agreement and prevent them from complying with provisions of the Agreement.
During the term of this agreement and for a period of 1 year afterwards neither party will, without the prior written permission from and authorised signatory of the other party, either directly or indirectly:
- solicit or request any employee to leave the employment of the other party regardless of reason or circumstances including the employee joining any other third party regardless of the business that the third party may be pursuing;
- encourage any individual or entity that competes with the other party to solicit or request any employee of the other party to join them. This includes advising a 3rd party of the names, positions and capabilities of any employee of the other party;
- encourage or attempt to induce any supplier or vendor of the other party to terminate or breach any contract either written or oral existing with the other party.
13. BRIBERY AND ETHICS
- Neither party shall not, at any time, engage in, nor require the other party to engage in, activities which are contrary to The Bribery Act 2010, The Competition Act 1998 or any other analogous local laws including but not limited to: (a) the offering of any inducement or reward whether financial or otherwise to any third party whatsoever in relation to the activities covered by this agreement; (b) any attempt to manipulate markets or engage in any activity that constitutes a restraint of free trade including, but not limited to, market share agreements, pricing fixing, predatory pricing or resale price maintenance.
- Both parties agree to uphold the highest standards of business ethics in their dealings with each other and third parties associated with the activities covered by this agreement.
14. HEALTH AND SAFETY
Both parties shall ensure that any employees, associates, consultants, or anyone else for whom they are vicariously liable shall, at all times comply with any existing health and safety requirements on either party’s premises, and will, at all times conduct themselves in a way that is in accordance with safe working practices whilst performing their duties under this agreement.
15. DATA PROTECTION
The Consultant aims to comply with the General Data Protection Regulation 2016 (GDPR) and the Data Protection Act 2018 in all respects including in the spirit of the need to treat personal data with respect and to keep it safe. As a Data Controller the Consultant will only collect and use personal data in the ways that are described in our Privacy Notice, and in a way that is consistent with our obligations and the Data Subject’s rights under the law.
16. EQUALITY ACT
Both parties undertake and agree that they will comply with all aspects of the Equality Act 2010 and will not directly or indirectly discriminate against any person during the performance of their duties under this agreement
The Consultant will not under any circumstances share or sell any of the Client’s details or information to any third party without the Client’s prior written consent.
Neither the Consultant nor the Client shall assign this Agreement unless consented to in writing and signed by authorised representatives of both the Consultant and the Client.
No waiver, by either the Consultant or the Client, whether implied or express, of any particular provision of this Agreement, or of any breach or default of either party, shall constitute either a continuing waiver of such provisions or a waiver of any other provisions of the agreement.
Any notice or communication served during the performance of this agreement shall be sent by email to the following addresses (or such address as may be notified in writing during the term of the agreement):
email@example.com (“the Consultant”);
and Your email address (“the Client”)
Such documents will be deemed to have been duly served when emailed to the email address provided.
21. FORCE MAJEURE
The Consultant shall not be liable for delay in performing or for failure to perform its obligations if the delay or failure results from any of the following:
- Acts of God;
- Outbreak of hostilities, riot, civil disturbance, acts of terrorism;
- The act of any government or authority (including refusal or revocation of any licence or consent);
- Fire, explosion, flood, fog or bad weather;
- Power failure, failure of telecommunications lines, failure or breakdown of plant, machinery or vehicles;
- Default of suppliers or sub-contractors;
- Theft, malicious damage, strike, lock-out or industrial action of any kind;
- Any cause or circumstance whatsoever beyond the Consultant’s reasonable control
22. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the Consultant and the Client and supersedes any and all prior agreements whether written or oral. No modification to the Agreement or any claimed waiver shall be deemed to be valid unless in writing and signed by authorised representatives of both the Consultant and the Client.
23. LIMITATION OF LIABILITY
Neither the Consultant nor the Client excludes or limits liability to each other for death or personal injury.
The provisions of this Agreement are severable and if any part thereof is held to be invalid or unenforceable by any court then it will not affect the validity or enforceability of any of the remaining provisions. If any unlawful and/or unenforceable clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant clause will be deemed to be deleted).
25. GOVERNING LAW
Any differences arising between the Consultant and the Client concerning this Agreement or the rights and liabilities within it shall be governed by and interpreted, in all respects, in accordance with the Laws of England. The parties hereby submit to the exclusive jurisdiction of the English Courts.
The paragraph headings used in this Agreement are for convenience and reference only – they are not intended to define or limit the scope of any of the provisions of the Agreement.
27. EXECUTION IN COUNTERPART
Both parties agree that this Agreement can be executed in counterpart.