Flourish Freelance Terms of Business
To be read in conjunction with Freelancer Booking Form
THIS CONSULTANCY AGREEMENT is dated as per the Freelancer Booking Form
Parties
- Flourish PR Limited, incorporated and registered in England with company number 08375428 whose registered office is at Clyde House, Reform Road, Maidenhead, Berkshire, SL6 8BY (Company).
- Freelancer listed on Freelance Booking Form (Consultant).
WHEREAS:
The Company appoints the Consultant to provide to the Company those services defined below, and the Consultant agrees to provide those services for the duration of this Agreement on the following terms and conditions.
Agreed terms
- Interpretation
The following definitions and rules of interpretation apply in this Agreement:
1.1 Definitions:
Agreement: the main body of this agreement and its schedules as each may be amended from time to time in accordance with its terms.
Business of the Company: the provision of consultancy, campaigns, events and on demand packages of work related to publica relations and marketing.
Business Opportunities: any opportunities which the Consultant becomes aware of during the Engagement which relate to the Business of the Company or which the Company would reasonably consider might be of benefit to the Company.
Capacity: as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity.
Commencement Date: As per Freelancer Booking Form
Company Property: all documents, books, manuals, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the Company or its or their customers and business contacts, and any equipment, keys, hardware or software provided for the Consultant's use by the Company during the Engagement, and any data or documents (including copies) produced, maintained or stored by the Consultant on the Company’s or the Consultant's computer systems or other electronic equipment during the Engagement.
Confidential Information: 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, products, affairs and finances of the Company for the time being confidential to the Company and trade secrets including, without limitation, technical data and know-how relating to the Company, Business of the Group or any of the Company’s suppliers, customers, agents, distributors, shareholders, management or business contacts and including (but not limited to) information that the Consultant creates, develops, receives or obtains in connection with their Engagement, whether or not such information is marked or identified as confidential.
Engagement: the engagement of the Consultant by the Company on the terms of this Agreement.
Insurance Policies: commercial general liability insurance cover, and public liability insurance cover.
Intellectual Property Rights: patents, utility models, rights to Inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, 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.
Invention: any invention, idea, discovery, development, improvement or innovation made by the Consultant in the provision of the Services, whether or not patentable or capable of registration, and whether or not recorded in any medium.
Previous Inventions: any invention, idea, discovery, development, improvement or innovation (whether or not patentable or capable of registration, and whether or not recorded in any medium) made by the Consultant, prior to the Commencement Date, in the provision of services to the Company pursuant to any agreement or arrangement (whether oral or written) between the Consultant and the Company.
Previous Works: all records, documents, papers, drawings, designs, transparencies, photos, graphics, logos, text, typographical arrangements, data, databases, information, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared by the Consultant, prior to the Commencement Date, in the provision of services to Company pursuant to any agreement or arrangement (whether oral or written) between the Consultant and the Company.
Services: the services provided by the Consultant in a consultancy capacity for the Company as more particularly described in a SoW.
SoW or Statement of Work: the Freelance Booking Form document setting out the description of the services to be provided by the Consultant, the applicable timescales, the Fees in respect of those services and any additional terms applicable to those services.
Termination Date: the date of expiry or termination of this Agreement, howsoever arising.
Third Party Materials: those third-party materials in respect of which the Company gives its prior written consent pursuant to clause 9.4.
Worker: means any person, either self-employed or employed by the Consultant, with suitable skill, knowledge, and experience who is nominated and engaged by the Consultant to carry out the Services on behalf of the Consultant.
Works: all records, documents, papers, drawings, designs, transparencies, photos, graphics, logos, text, typographical arrangements, data, databases, information, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared by the Consultant in the provision of the Services.
1.2 The headings in this Agreement are inserted for convenience only and shall not affect its construction or interpretation.
1.3 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders and words in the singular shall include the plural and, in the plural, shall include the singular.
2. Term of engagement
2.1 The Company shall engage the Consultant and the Consultant shall provide the Services on the terms of this Agreement, including in respect of any additional terms set out in any applicable SoW.
2.2 The Engagement shall commence on the Commencement Date and shall continue unless and until it expires or is terminated as set out in clause 12 or otherwise in this Agreement. During the period of the Engagement the parties may enter into further SoWs from time to time in respect of certain specific Services. Where the Company wishes to engage the Consultant to provide certain Services it shall prepare a draft SoW, which it shall discuss with the Consultant. Once the Company and the Consultant have agreed a final version of that draft SoW, it shall become an “SoW” for the purposes of this Agreement and the Consultant shall provide the Services as described therein.
2.3 The Company shall not be obliged to engage the Consultant to provide any Services or enter into any SoWs at any time.
3. Duties and obligations
3.1 During the Engagement the Consultant shall:
(a) provide the Services with all due care, skill and ability and use his best endeavours to promote the interests of the Company;
(b) keep the Company informed of progress on the Services and in particular to liaise with Harriet Subramanian in respect of the day-to-day performance of the Services;
(c) provide the Services in accordance with the best practice in its industry, profession or trade; and promptly give the Company all such information and reports as it or they may reasonably require in connection with matters relating to the provision of the Services or the Business of the Company.
3.2 If the Consultant is unable to provide the Services due to illness or injury, he shall advise the Company of that fact as soon as reasonably practicable. For the avoidance of doubt, no fee shall be payable in accordance with clause 4 in respect of any period during which the Services are not provided.
3.3 The Consultant may in its discretion at any time (and on one or more occasions) substitute any Worker for itself or for any other Worker provided that any Worker chosen by the Consultant has the requisite skills, knowledge and experience to provide all or any of the Services.
3.4 The Consultant shall use all reasonable endeavours to avoid or minimise such changes or additions and to consult with the Company beforehand about any such proposed change in engagement of persons carrying out the Services. However the Consultant shall in any event provide such a substitute or addition where the provision of the Services is unduly delayed by absence due to incapacity or for any other reason upon notification by the Company (or the Company’s representative) that a delay is unacceptable or where it is otherwise necessary to provide such a substitute or addition.
3.5 The Company shall
(a) only be entitled to refuse to accept any Worker if in its reasonable opinion they are not suitable due to lack of skills, or experience; and
(b) not in any circumstances make any payment to any Worker.
3.6 The Consultant is responsible for the quality of the work undertaken by it and any Worker on the Services and, without limitation, shall perform the Services, and is wholly responsible for ensuring that any Worker performs the Services, competently and with reasonable care and skill.
3.6 The Consultant shall use reasonable endeavours to ensure that he is available at all times on reasonable notice to provide such reasonable assistance or information as the Company or may require.
3.7 Unless they have been specifically authorised to do so by the Company in writing, the Consultant shall not:
(a) have any authority to incur any expenditure in the name of or for the account of the Company; or
(b) hold himself out as having authority to bind the Company.
3.8 The Consultant shall comply with all reasonable standards of safety and comply with the Company's health and safety policies and procedures from time to time in force at the premises where the Services are provided and report to the Company any unsafe working conditions or practices.
3.9 The Consultant shall comply with the Company's policies on social media, confidentiality, use of information and communication systems, travel and such other policies as exist from time to time and as each is updated from time to time, in each case, as notified or made available to the Consultant.
3.10 The Consultant undertakes to the Company that during the Engagement he shall take all reasonable steps to offer (or cause to be offered) to the Company any Business Opportunities as soon as practicable after the same shall have come to his knowledge and in any event before the same shall have been offered by the Consultant (or caused by the Consultant to be offered) to any other party provided that nothing in this clause shall require the Consultant to disclose any Business Opportunities to the Company if to do so would result in a breach by the Consultant of any obligation of confidentiality owed by the Consultant to any third party.
3.11 The Consultant may use a third party to perform any administrative, clerical or secretarial functions which are reasonably incidental to the provision of the Services provided that:
(a) the Company will be liable to bear the cost of such functions; and
(b) at the Company's request the third party shall be required to enter into direct undertakings with the Company, including with regard to confidentiality.
3.12 The Consultant shall:
(a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) comply with the Company's Anti-Bribery and Anti-Corruption Policies as the Company may update them from time to time and shall, on request from the Company certify his agreement to and compliance with the same;
(d) promptly report to the Company any request or demand for any undue financial or other advantage of any kind received by the Consultant in connection with the performance of this Agreement;
(e) ensure that all persons associated with the Consultant or other persons who are performing services in connection with this Agreement comply with this clause 3.9; and
(f) provide to Company supporting evidence of the Consultant’s compliance as the Company may reasonably request from time to time.
4. Fees
4.1 The Company shall pay the Consultant the fees as set out in the applicable SoW (Fees). The Consultant shall submit invoices to the Company in respect of the Fees due in accordance with the applicable SoW.
4.2 In consideration of the provision of the Services during the Engagement, the Company shall pay each invoice submitted by the Consultant in accordance with clause 4.1 within 30 days of receipt.
4.3 Company shall be entitled to deduct from the Fees (and any other sums) due to the Consultant any sums that the Consultant may owe to the Company at any time.
4.4 Payment in full or in part of the fees claimed under clause 4 or any expenses claimed under clause 5 shall be without prejudice to any claims or rights of the Company against the Consultant in respect of the provision of the Services.
5. Expenses
5.1 The Company shall reimburse all reasonable expenses properly and necessarily incurred by the Consultant in the course of the Engagement, subject to the same having been approved in advance by the Company and to the production of receipts or other appropriate evidence of payment.
5.2 If the Consultant is required to travel abroad in the course of the Engagement, he shall be responsible for any necessary insurances, inoculations and immigration requirements.
6. Equipment
6.1 It is understood and agreed that the Consultant shall be responsible for the provision of any equipment required to perform the work including but not limited to laptop, mobile phone, printer, camera, mouse, keyboard, notebooks and general stationery or any other relevant items.
7. Other activities
7.1 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 Engagement provided that:
(a) such activity does not cause a breach of any of the Consultant's obligations under this Agreement;
(b) the Consultant shall not engage in any such activity if it relates to a business which is similar to or in any way competitive with the Business of the Company or any part of it without the prior written consent of the Company; and
(c) the Consultant shall give appropriate priority to the scheduling of activities and the provision of the Services to the Company during the course of the Engagement.
8. Confidential information
8.1 The Consultant acknowledges that in the course of the Engagement he will have access to Confidential Information. The Consultant has therefore agreed to accept the restrictions in this clause 8.
8.2 The Consultant shall not (except in the proper course of his duties), either during the Engagement or at any time after the Termination Date, use or disclose to any third party (and shall use his best endeavours to prevent the publication or disclosure of) any Confidential Information. This restriction does not apply to:
(a) any use or disclosure authorised by the Company or required by law; or
(b) any information which is already in, or comes into, the public domain otherwise than through the Consultant's unauthorised disclosure.
8.3 At any stage during the Engagement on Company’s request, the Consultant will promptly return all and any Company Property in his possession to the Company.
9. Data protection
9.1 You shall at all times during this agreement act in accordance with the EU General Data Protection Regulation ("GDPR") and shall comply with any policy or related procedures introduced by the Company from time to time to comply with GDPR.
9.2 All personal information that the Company may use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and the Sub-Consultant’s rights under the GDPR.
9.3 For complete details of the Company’s collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of the Sub-Consultant’s rights and how to exercise them, and personal data sharing (where applicable), please refer to the Company’s Privacy Notice available on the Company’s shared drive.
10. Intellectual property
10.1 Except in respect of the Third Party Materials, the Consultant hereby assigns to the Company all existing and future Intellectual Property Rights in the Works and the Inventions and (where not previously assigned to the Company) the Previous Works and the Previous Inventions, and in each case all materials embodying these rights to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under this Agreement, the Consultant holds legal title in these rights on trust for the Company.
10.2 The Consultant undertakes:
(a) to notify to the Company in writing full details of any Inventions promptly on their creation;
(b) to keep confidential details of all Inventions and Previous Inventions;
(c) whenever requested to do so by the Company and in any event on the termination of the Engagement, promptly to deliver to the Company all correspondence, documents, papers and records on all media (and all copies or abstracts of them), recording or relating to any part of the Works or the Previous Works and the process of their creation which are in his possession, custody or power;
(d) not to register nor attempt to register any of the Intellectual Property Rights in the Works, Previous Works, Inventions or Previous Inventions, unless requested to do so by the Company; and
(e) to do all acts necessary to confirm that absolute title in all Intellectual Property Rights in the Works and the Inventions and (where not previously assigned to the Company) the Previous Works and the Previous Inventions, has passed, or will pass, to the Company.
10.3 The Consultant warrants to the Company that:
(a) he has not given and will not give permission to any third party to use any of the Works, Previous Works, Inventions or Previous Inventions, nor any of the Intellectual Property Rights in the same;
(b) the Works and Inventions (in each of the foregoing, other than the Third Party Materials) and the Previous Works and Previous Inventions are the Consultant’s own and not in whole or in part those of any third party; and
(c) the use of the Works, Previous Works, Inventions or Previous Inventions or the Intellectual Property Rights in same by the Company will not infringe the rights of any third party.
10.4 The Consultant shall only use or include any third party materials in the Works and Inventions where it has obtained the prior written consent of the Company. The Consultant acknowledges that a condition of such consent may include the requirement that he procures from the relevant third party a direct licence to the Company of the right to use such, amend, modify and distribute to other third parties such materials (and/or such other licence terms as the Company may reasonably require). Where such a condition is specified by the Company then the Consultant shall promptly procure such licence and in any event prior to using or include such third party materials in the Works and/or Inventions. If there is any cost to the Company in connection with any such licence then the Consultant shall also obtain the prior written consent of the Company (as applicable) to such cost.
10.5 The Consultant agrees to indemnify the Company and keep it and them indemnified at all times against all or any costs, claims, damages or expenses incurred by the Company, or for which the Company may become liable, with respect to any intellectual property infringement claim or other claim relating to the Works, Previous Works, Inventions or Previous Inventions (including in connection with any Third Party Materials). The Consultant shall maintain adequate liability insurance coverage and shall supply a copy of the policy to the Company on request. The Company may at its option satisfy this indemnity (in whole or in part) by way of deduction from any payments due to the Consultant.
10.6 The Consultant waives any moral rights in the Works, Previous Works, Inventions and Previous Inventions to which he is now or may at any future time be entitled under Chapter IV of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction, including (but without limitation) the right to be identified, the right of integrity and the right against false attribution, and agrees not to institute, support, maintain or permit any action or claim to the effect that any treatment, exploitation or use of such Works or other materials infringes the Consultant's moral rights.
10.7 The Consultant acknowledges that, except as provided by law, no further fees or compensation other than those provided for in this Agreement are due or may become due to the Consultant in respect of the performance of his obligations under this clause 10.
10.8 The Consultant undertakes, at the expense of the Company, at any time either during or after the Engagement, to execute all documents, make all applications, give all assistance and do all acts and things as may, in the opinion of the Company, be necessary or desirable to vest the Intellectual Property Rights in, and to register them in, the name of the Company and/or as otherwise necessary for the Company to receive the full benefit of the provisions of this Agreement.
11. Insurance and liability
11.1 The Consultant shall have personal liability for and shall indemnify the Company for any loss, liability, costs (including reasonable legal costs), damages or expenses arising from any breach by the Consultant of the terms of this Agreement including any negligent or reckless act, omission or default in the provision of the Services and shall accordingly maintain in force during the Engagement full and comprehensive Insurance Policies.
11.2 The Consultant shall ensure that the Insurance Policies are taken out with reputable insurers acceptable to the Company and that the terms of insurance and level of cover are acceptable to the Company.
11.3 The Consultant shall on request supply to Company copies of such Insurance Policies and evidence that the relevant premiums have been paid. The Company shall be entitled to pay any premiums that the Consultant has failed to pay at any time and shall be entitled to recover the same from the Consultant including by way of deduction from any payments due to the Consultant.
11.4 The Consultant shall comply with all terms and conditions of the Insurance Policies at all times. If cover under the Insurance Policies shall lapse or not be renewed or be changed in any material way or if the Consultant is aware of any reason why the cover under the Insurance Policies may lapse or not be renewed or be changed in any material way, the Consultant shall notify the Company without delay.
12. Termination
12.1 Each SoW shall automatically terminate on the completion of the provision by the Consultant of the Services set out therein to the reasonable satisfaction of the Company, unless otherwise expressly stated in the SoW.
12.2 This Agreement (and the Engagement) and/or any SoW may be terminated at any time by either party giving to the other not less than one month’s prior written notice.
12.3 The Company may terminate this Agreement (and the Engagement) and/or any SoW with immediate effect with no liability to make any further payment to the Consultant (other than in respect of amounts accrued before the end of that SoW or the Termination Date (as applicable)) if at any time the Consultant:
(a) commits any gross misconduct affecting any part of the Business of the Company;
(b) commits any serious or repeated breach of any of the provisions of this Agreement or refuses or neglects to comply with any reasonable and lawful directions of the Company;
(c) is convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed);
(d) is in the reasonable opinion of the Managing Director negligent or incompetent in the performance of the Services;
(e) is declared bankrupt or makes any arrangement with or for the benefit of his creditors or has a county court administration order made against him under the County Court Act 1984;
(f) is incapacitated (including by reason of illness or accident) from providing the Services for an aggregate period of fifteen (15) days in any 52-week consecutive period;
(g) commits any fraud or dishonesty or acts in any manner which in the opinion of Company brings or is likely to bring the Consultant or the Company into disrepute or is materially adverse to the interests of the Company; or
(h) commits any offence under the Bribery Act 2010 or otherwise fails to comply with any of the provisions of clause 3.9.
12.4 The rights of the Company under this clause 12 are without prejudice to any other rights ore remedies that it might have at law. Any delay by the Company in exercising its rights to terminate shall not constitute a waiver of these rights.
12.5 All provisions of this Agreement intended to survive termination shall survive termination of this Agreement (and the Engagement) as the context requires.
13. Obligations on termination
On the Termination Date the Consultant shall:
(a) immediately deliver to the Company all Company Property in his possession or under his control;
(b) irretrievably delete any information relating to the Business of the Company stored on any magnetic or optical disk or memory and all matter derived from such sources which is in his possession or under his control outside the premises of the Client. For the avoidance of doubt, the contact details of business contacts made during the Engagement are regarded as Confidential Information, and as such, must be deleted from personal social or professional networking accounts; and
(c) provide a signed statement that he has complied fully with his obligations under this clause 13.
14. Status
14.1 The relationship of the Consultant to the Company will be that of independent Consultant and nothing in this Agreement shall render him an employee, worker, agent or partner of the Company and the Consultant shall not hold himself out as such.
14.2 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 Company for and in respect of:
(a) any income tax, National Insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Services, where the recovery is not prohibited by law;
(b) any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Consultant against the Company arising out of or in connection with the provision of the Services.
14.3 The Company may at its option satisfy such indemnity (in whole or in part) by way of deduction from any payments due to the Consultant.
14.4 Nothing in this Agreement shall create or be deemed to constitute or give rise to a partnership, joint venture, agency or any employment relationship between the Parties, or any employment relationship between any Worker and the Company, or any other fiduciary relationship other than the contractual relationship expressly provided for in this Agreement.
15. Notices
15.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or its principal place of business (if a company) or (in the case of the Consultant) his last known address; or
(b) sent by fax to its main fax number.
15.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the Business Day after posting or at the time recorded by the delivery service;
(c) if sent by fax, at 9.00 am on the next Business Day after transmission.
15.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.4 A notice given under this Agreement is not valid if sent by e-mail.
16. Entire Agreement
16.1 This Agreement constitutes the entire Agreement between the Consultant and the Company and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the Consultant and the Company and between the Consultant, whether written or oral, relating to its subject matter.
16.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
16.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
16.4 Nothing in this clause shall limit or exclude any liability for fraud.
17. Variation
No variation of this Agreement or of any of the documents referred to in it shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18. Counterparts
This Agreement may be executed in any number of counterparts, each of which, when executed, shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
19. Third party rights
19.1 Except as expressly provided elsewhere in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
19.2 Notwithstanding the provisions of clause 15.2, the rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.
20. Governing law and Jurisdiction
20.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
20.2 Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
