Consultancy Terms and Conditions
1.1 In these Terms and Conditions the following wording shall have the following meanings:
1.1.1 “Confidential Information” means all information relating to or provided by Educand which is designated as confidential including but not limited to Materials, trade secrets, methodologies, suppliers lists, costs and pricing, unpublished financial information, business plans, marketing data, memoranda papers, letters, emails, any patents, trademarks and service marks, rights in designs, trade, business or domain names, database rights, topography rights, copyrights (including rights in computer software) whether or not registered and including applications for (and the right to apply for) registration of any such thing and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world for the full period of them and all extensions or renewals of them;
1.1.2 ”Disclosure and Barring Service (DBS) ” means the services established under the Protection of Freedoms Act 2012;
1.1.3 “Effective Date” means the date as set out in the letter attached hereto;
1.1.4 “Fees” means the Fees as set out in the letter attached hereto;
1.1.5 “Good Industry Practice” means the exercise of that degree of skill, diligence, care, prudence, efficiency and foresight and timelines as would reasonably and ordinarily be expected from a Consultancy within the relevant industry and business sector engaged in the United Kingdom or International, in services equivalent to or comparable with the Services, acting in good faith and with sufficient financial resources to perform the obligations under this Agreement;
1.1.6 Intellectual Property Rights” means all intellectual property rights including but not limited to any and all patents, registered design, Materials, copyright, database rights, design rights, topography rights, trade marks, service marks, trade name, moral rights, domain names, application to register any of the aforementioned rights, trade secrets, inventions, right in unpatented know-how, right of confidence and any other intellectual or industrial property rights of any nature whatsoever whether registered or not registered or capable of registration and all applications for or right to apply for any of these and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating or attached hereto;
1.1.7 Materials” means all documents (including but not limited to lists of clients or customers or establishments, correspondence, plans, drawings, accounts and other documents of whatsoever nature and all copies of them, whether on paper, computer memory disc or otherwise made) made, compiled or acquired by the Consultancy or provided by Educand during the provision of the Services and concerning the business, finances or affairs of Educand, or the client together with any other property of Educand in the Consultancy’s possession;
1.1.8 “Material Breach” means any breach of clauses 7, 8, 9 and 15 shall be regarded as a Material Breach or in relation to any other obligation under these Terms and Conditions a series of Minor Breaches by either party of its obligations hereunder which adversely, materially and substantially affect the performance or delivery of the Services or otherwise compromise the reputation, integrity or confidentiality of Educand or any of its subsidiaries or holding companies; or a Minor Breach of a specific obligation in respect of which either party has served two consecutive notices under the terms of these Terms and Conditions concerning the same or similar circumstances from where the other party has failed to remedy that breach under the terms these Terms and Conditions;
1.1.9 “Minor Breach” means a delay or non performance by either party of its obligations under the terms of this Agreement as a direct result of the other party’s default which does not materially, adversely or substantially affect the performance or delivery of the Service;
1.1.10 “Services” means the delivery of the Services as set out in the letter attached hereto;
1.1.11 “Term” means the term from the Effective Date to the Termination Date;
1.1.12 Termination Date” means the date as set out in the letter attached hereto or such earlier date on which these Terms and Conditions is determined in accordance with clause 9 (Termination) of these Terms and Conditions;
1.1.13 “Working Day” means any day (other than a Saturday or Sunday) on which the banks in London are open for business and “Working Days” shall be construed accordingly;
1.1.14 The interpretation and construction of these Terms and Conditions shall be subject to the following provisions:-
a) words importing the singular meaning include where the context so admits the plural meaning and vice versa;
b) words importing the masculine include the feminine and the neuter;
c) reference to a clause is a reference to the whole of that clause unless stated otherwise;
d) references to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent enactment, modification, order, regulation or instrument as subsequently amended or re-enacted;
e) references to any person shall include natural persons and partnerships, firms and other incorporated bodies and all other legal persons of whatever kind and however constituted and their successors and permitted assigns or transferees;
f) the words “include”, “includes” and “including” are to be construed as if they were immediately followed by the words “without limitation”;
g) headings are included in the Agreement for ease of reference only and shall not affect the interpretation or construction of these Terms and Conditions;
h) in the event and to the extent only of any conflict between the clauses and the remainder of the appendices, the clauses shall prevail over the remainder of the appendices;
i) references to clauses or Schedules are references to clauses or Schedules to these Terms and Conditions, references to paragraphs are to paragraphs of the relevant Schedule.
2. Standard Terms
2.1 The Consultancy shall perform the Services as requested in writing from time to time and agreed by both parties for the duration of the Term.
2.2 If requested and/or required the Consultancy, prior to commencing the Services and at its own expense, has an enhanced disclosure check made through the Disclosure and Barring Service (DBS) for its’ Consultant(s) and the Consultancy holds a satisfactory current disclosure certificates for each.
2.3 The Consultancy must not make, any press announcements, written publication or publicise these Terms and Conditions or any information relevant to the Services or be involved either directly or indirectly in any press announcement, written publication, liaising in any way with the media about Educand or the Services. If approached by the media the Consultancy must immediately contact Educand.
2.4 The Consultancy shall take out and maintain all appropriate insurances including professional indemnity and public liability with a reputable insurance company and will, when requested, supply Educand with copies of current certificates.
2.5 The Consultancy shall comply with all relevant health and safety legislation and shall take all reasonable steps to ensure that the Services are provided in a safe, healthy and supportive environment. Where the services take place on Educand premises, Educand shall provide reasonable working conditions and facilities.
2.6 Educand cannot guarantee any volumes under this Agreement and shall not be obliged to engage the Consultancy for any of the Services and the Consultancy shall not be obliged to accept any engagement offered by Educand.
2.7 The Consultancy shall supply all stocks, materials, consumables and equipment to its Consultant(s) as is necessary for the proper performance of the Services including but not limited to its own computer equipment and mobile phones.
2.8 The Consultancy shall work with Educand on such dates and times to be mutually agreed between the parties.
2.9 The working day shall comprise of a minimum of eight (8) hours unless otherwise defined in these Terms and Conditions. Additional time in a working day may be required to be worked for the proper provision of the Services by the Consultancy but such additional time shall not be chargeable without prior written consent from We Educand.
2.10 The Consultancy shall pay the utmost regard to the standing and reputation of Educand and not do anything (by act or omission) which may:
2.10.1 damage the reputation of Educand
2.10.2 bring Educand into disrepute;
2.10.3 attract adverse publicity to Educand; or
2.10.4 harm the confidence of the public in Educand
2.11 The Consultancy shall not have any rights whatsoever under these Terms and Conditions to sick pay, holiday pay or any other recognizable employee benefits and the Consultancy hereby indemnifies Educand against any such claim.
3. Delivery of Services
3.1 The Consultancy shall:
3.1.1 perform the Services in accordance with Good Industrial Practice and within the terms of these Terms and Conditions;
3.1.2 faithfully and diligently perform the Services and use best endeavours to promote and protect the interests of Educand
3.1.3 have the suitable skills, qualifications and experience and procures that as long as he is present at any premises requested by Educand he complies with all requirements relating to safety, security and personal conduct;
3.1.4 attend any of Educand and/or contract premises within the United Kingdom upon reasonable notice and with prior agreement;
3.1.5 make such reports to Educand (or such other person or persons as it may direct) on any matters concerning the Services as Educand may reasonably require and comply with all requirements applicable to the Services;
3.1.6 follow all reasonable directions given to it by Educand, though it is agreed ultimate control rests with the Consultancy;
3.1.7 work such additional hours during each Working Day as are necessary for the proper performance of the Services.
4. Conflict of Interest and Status of Consultancy
4.1 During the Term, the Consultancy may accept and perform engagements from other companies, firms or persons provided that the Consultancy does not accept contracts to supply services to third parties which would:
4.1.1 compromise or create a conflict of interest with its obligations included but not limited to entering into a direct contractual relationship with any Educand clients without the prior written consent of Educand.
4.1.2 cause a breach of any of the Consultancy’s obligations;
4.1.3 render the Consultancy to have a relationship (direct or indirect) with a competitor of Educand.
4.2 For avoidance of doubt, Educand shall not be obliged to engage the Consultancy for any services and the Consultancy shall not be obliged to accept any engagement offered by Educand.
4.3 The Consultancy shall not without the prior written authorisation of Educand ;
4.3.1 have any authority to incur expenditure in the name of or for the account of Educand;
4.3.2 hold himself out to be the servant, legal partner or agent of Educand; or
4.3.3 do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of Educand.
4.4 The restrictions imposed on the Consultancy by clauses 4.1, 4.2 and 4.3 apply to the Consultancy acting:
4.4.1 directly or indirectly; and
4.4.2 on the Consultancy’s behalf or on the behalf of or in conjunction with, any firm, company or person.
4.5 The Consultancy undertakes to Educand that it will duly pay any taxes and National Insurance Contributions which are due in relation to the payments of the Fees to be made by Educand pursuant to these Terms and Conditions and further agrees to fully indemnify Educand in respect of all and any income tax and National Insurance Contributions which may be found due from Educand on any payments made under these Terms and Conditions together with any interest, penalties or gross-up.
4.6 Nothing in these Terms and Conditions shall render the Consultancy as an agent or partner of Educand and the Consultancy shall not hold itself out as such.
5. Fees and Payments
5.1 In consideration of the Services requested by Educand and delivered by the Consultancy, Educand shall pay the Fees plus Value Added Tax (VAT) if applicable, within 30 days on receipt of a valid invoice delivered to Educand in accordance with these Terms and Conditions or such other timeframe as may be stated within this Agreement, by bank credit transfer (BACS).
5.2 The Fees shall be subject to the satisfactory performance of the Services and completed within agreed timescales. Delays in providing the Services may lead to the Fees being withheld or withdrawn.
5.3 The invoice shall be submitted after completion of the Services and shall have attached any other documents as requested by Educand including all appropriate receipts for reasonable expenses properly incurred in performance of the Services, and which have been agreed in advance.
5.4 No Fees shall be payable to the Consultancy in respect of any period during which the Consultancy does not perform the Services.
5.5 Payment by Educand shall be without prejudice to any claims or rights which Educand may have against the Consultancy and shall not constitute any admission by Educand as to the satisfactory performance by the Consultancy of the Services or as to the Consultancy’s compliance with its obligations under these Terms and Conditions.
5.6 The Consultancy agrees that any unsatisfactory Services shall be corrected or undertaken by the Consultancy at his own time and expense.
5.7 The Consultancy undertakes to maintain good and accurate records of evidence of all expenditure claimed under these Terms and Conditions for inspection by Educand.
5.8 Educand reserves the right to recover from the Consultancy any sum in whole or in part which:
5.8.1 were incorrectly paid to the Consultancy;
5.8.2 the Consultancy incorrectly claimed from Educand under the provisions of these Terms and Conditions;
5.8.3 were paid to the Consultancy while the Consultancy was in breach of these Terms and Conditions;
5.8.4 a third party from whom funding is received by Educand
(i) refuses to pay Educand for any part of the Services performed by the Consultancy or
(ii) claims back from Educand any amount previously paid to Educand for any part of the Services performed by the Consultancy or
(iii) requires that any or all of the Services undertaken by the Consultancy be performed again to such a standard as it may reasonably require.
5.9 Educand reserves the right to deduct, defer, suspend, or recover payment where evidence of satisfactory performance and delivery of the Services in accordance with these Terms and Conditions is lacking.
5.10 Educand shall have the right to suspend payment to the Consultancy in the event that Educand has reasonable cause to suspect fraud or irregularity has occurred in relation to these Terms and Conditions.
5.11 The Consultancy shall be responsible for all Value Added Tax, income tax, national insurance, social security or similar contributions or other taxes arising out of the Fees payable under these Terms and Conditions; and Educand reserves the right to demand proof that the obligations set out in this clause are being met. If such proof is not provided when requested then Educand reserves the right to withhold payment of any Fees.
6. Confidential information
6.1 The Consultancy warrants that it shall treat all Confidential Information belonging to Educand as confidential, safeguard it accordingly and only use such Confidential Information for the purpose of the provision of the Services.
6.2 The Consultancy shall take all necessary precautions to ensure that all Confidential Information obtained from Educand is treated as confidential and not disclosed (without prior written approval) or used other than for the purpose of the Services.
6.3 The provisions of clauses 6.1 and 6.2 shall not apply to any information which:
6.3.1 is or has become part of the public domain other than as a result of a breach of the confidentiality under these Terms and Conditions;
6.3.2 cannot reasonably be considered to be confidential; or
6.3.3 is required to be disclosed by law.
6.4 In order to ensure that no unauthorised person gains access to any Confidential Information or any data obtained in the course of the Services, the Consultancy undertakes to maintain adequate security arrangements that meet the requirements of professional standards and best practice.
6.5 The Consultancy will immediately notify Educand of any breach of security in relation to Confidential Information and all data obtained in the course of the Services and keep a record of such breach. The Consultancy at its own expense shall cooperate with Educand in any investigation that. Educand considers necessary to undertake as a result of a breach.
7. Data Protection legislation
7.1 The Consultancy shall ensure that at all times it complies with the provisions and obligations imposed by the EU General Data Protection Regulations 2018 (“Regulations”) together with any subsequent re-enactment or amendment thereof in storing and processing personal data and all personal data acquired by the Consultancy shall be returned to the disclosing party on request. Both parties hereby acknowledge that performance of a duty imposed by the Regulations shall not constitute a breach of any obligation in respect of confidentiality which may be owed to the other party.
8. Intellectual Property Rights
8.1 The Consultancy acknowledges and agrees that all Intellectual Property Rights or Trade Marks of Prospects existing as at the date hereof are and shall remain the exclusive property of Prospects.
8.2 All intellectual property conceived or made by the Consultancy in the course of providing the Services shall belong to Prospects and the Consultancy hereby assigns and agrees to assign all its interest therein to Prospects or its nominee. The Consultancy shall unconditionally and irrevocably waive any moral rights in any copyright works assigned to Prospects under these Terms and Conditions and all author rights of a similar kind conferred by the law of any jurisdiction.
8.3 The Consultancy shall not use the Educand name or logos in any advertising, marketing, promotional or referral capacity without the prior written consent from Educand
9.1 Without prejudice to any other right or remedy it may have, Educand may terminate these Terms and Conditions at any time by notice in writing to take effect immediately if the Consultancy:
9.1.1 in performing its obligations under these Terms and Conditions amounts to a Material Breach;
9.1.2 becomes bankrupt or insolvent or makes any arrangement or composition with or for the benefit of its creditors;
9.1.3 does anything which brings itself, Educand or Educand clients into serious disrepute;
9.1.4 infringes the Intellectual Property Rights of the other party;
9.1.5 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) which involves dishonesty or which Educand reasonably considers is incompatible with the engagement;
9.1.6 in the reasonable opinion of Educand is negligent or incompetent in the performance of the Services;
9.1.7 acts in a way which is materially adverse to the interests of Educand
9.1.8 is unable to provide the Services for the Term;
9.1.9 is guilty of a serious breach of the rules and regulations as amended from time to time of any regulatory authority relevant to the business of Educand ;
9.2 In addition to the rights of termination under any other clauses of these Terms and Conditions, either Party shall be entitled to terminate these Terms and Conditions in respect of all or part of the Services provided under these Terms and Conditions by giving to the other not less than 30 days written notice to that effect without the need to give a reason for termination.
9.3 Any reasonable delay by Educand in exercising such right to terminate after the matter in question comes to the attention of Educand will not constitute a waiver of it.
9.4 In the event that the financial funding for the Services is revised or revoked by a third party from whom funding is received, Educand shall have the right to either apply such revision to these Terms and conditions or terminate these Terms and Conditions by giving immediate written notice.
9.5 In the event of a termination of these Terms and Conditions in accordance with this clause Educand shall not be liable to make any further payments in respect of the Fees other than for the Services satisfactorily completed prior to the termination of these Terms and Conditions.
9.6 Nothing in this clause shall affect the coming into or continuance in force of any provision of these Terms and Conditions which is expressly or by implication intended to come into force or continue in force upon termination of these Terms and Conditions.
10. Consequences of Termination
10.1 Termination of these Terms and Conditions shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereupon accrue to the parties under this Agreement.
10.2 Upon termination for whatsoever reason, the Consultancy shall:
10.2.1 comply with all reasonable requests by Educand to facilitate the handover of the Services and the Consultancy warrants that any information it shall supply shall be complete and accurate and the Consultancy shall indemnify Educand now and in the future in respect of all or any costs suffered or incurred by Educand by reason of any proceedings, claims or demands arising from or in connection with the provision of information and/or failure to provide complete and accurate information and/or the provision of assistance and/or failure to provide assistance under this clause 10;
10.2.2 promptly return to Educand, Materials and all such tangible items which are in the Consultancy’s possession or control and which either belong to Educand or contain Confidential Information as referred to in these Terms and Conditions;
10.2.3 only with the prior authority from Educand, irretrievably delete any information relating to Educand or its clients stored in any magnetic or optical disk or memory and all matter derived from such sources which is in his possession or under his control; and
10.2.4 provide a signed statement that the Consultancy has complied fully with his obligations under this clause.
10.3 Educand at its discretion reserves the right to withhold payment of any outstanding invoices due to the Consultancy on termination of these Terms and Conditions for any reason until such time as the Consultancy has complied with clause 11.2 and all documentation has been audited (at the discretion of Educand).
11. Consultancy Warranties
11.1 The Consultancy warrants and undertakes on a continuing basis throughout the Term of these Terms and Conditions:
11.1.1 has the necessary skills and knowledge to carry out the Services;
11.1.2 will perform the Services for Educand in the capacity of an independent contractor;
11.1.3 will not, in entering into these Terms and Conditions or carrying out the Services be in breach of any terms whether express or implied or any other obligation binding upon it;
11.1.4 will perform the Services in accordance with the highest industry standards.
11.2 The Consultancy warrants that the provisions of the Services contained herein do not contravene any applicable laws or any third party rights in the United Kingdom or in any other country and the Consultancy shall comply, if executing the Services in a country other than the United Kingdom, with all legal and fiscal obligations of the country in which the Services are performed.
11.3 The Consultancy warrants to Educand that, to the best of its knowledge and belief, all Services carried out under this Agreement will not infringe, in whole or in part, any copyright or any other Intellectual Property Rights of any person and agree to indemnify Educand against any and all claims, demands, proceedings, expenses and losses including any of a consequential nature arising directly or indirectly out of any act of the foregoing in relation to any works where such act is or is alleged to be an infringement of a third party’s copyright or other Intellectual Property Rights. This warranty and indemnity shall survive the termination of these Terms and Conditions and shall exist for the life of the copyright or other Intellectual Property Rights.
12.1 The Consultancy shall indemnify and keep fully indemnified Educand against all direct (excluding indirect and consequential losses, claims or damages) claims, costs, damages, loss or liability arising these Terms and Conditions or its obligations under these Terms and Conditions or the failure by the Consultancy to perform their obligations and duties or their failure to fulfill Educand requirements in respect of the Services or arising from any negligence or unlawful act or omission of the Consultancy.
12.2 Educand shall not be liable to the Consultancy in contract, tort (including negligence or breach of statutory duty) or otherwise for any indirect or consequential losses arising out of or in connection with Educand adherence or non-adherence to the terms of these Terms and Conditions.
12.3 Nothing in these Terms and Conditions shall limit or exclude either party’s liability for death or personal injury caused by its negligence or the negligence of its agents for fraud or fraudulent misrepresentation.
13. Equality and Diversity
13.1 The Consultancy shall comply fully with current equality based law notably the Equality Act 2010 and ensure that the services provided are underpinned by equality and diversity principles and accessible and appropriate to meet the needs of equality based groups such as Black and minority ethnic groups, refugee and migrant groups, LGBT community and rural and faith communities.
13.2 The Consultancy shall ensure that there is no discrimination on the grounds of race, colour, ethnic or national origin, disability, age, gender, sexuality, marital status or any religious affiliations.
14. Bribery and Fraud
14.1 The Consultancy shall not offer or give, or agree to give, to any member, employee or representative of Educand any gift or consideration of any kind as an inducement or reward for doing or refraining from doing, or for having done or refrained from doing, any act in relation to the obtaining or execution of this or any other Terms and Conditions with Educand or for showing or refraining from showing favour or disfavour to any person in relation to this or any such Terms and Conditions. The Consultancy’s attention is drawn to the criminal offences created by the Bribery Act 2010. Any offence by the Consultancy or by anyone acting on its behalf under the Bribery Act 2010 in relation to these Terms and Conditions or any other agreement/s with Educand shall entitle Educand to terminate these Terms and Conditions and recover from the Consultancy the amount of any loss resulting from such termination and/or to recover from the Consultancy the amount of value of any gift, consideration or commission.
14.2 The Consultancy shall notify Educand immediately where it becomes aware of any instance of suspected fraud or financial irregularity in the delivery of these Terms and Conditions.
15. Dispute Resolution
15.1 The parties shall attempt in good faith to resolve any dispute arising out of or relating to these Terms and Conditions by negotiations between executives of the parties (or any such nominated person by either party) who shall have authority to settle the dispute. Any party may give the other party written notice of any dispute not resolved in the normal course of business and within 10 Working Days after delivery of the said notice, executives of both parties (or nominated person) shall meet at a mutually acceptable time to exchange relevant information and attempt to resolve the dispute. If the matter has not been resolved within 20 Working Days after the expiration of the first notice or if the parties fail to meet within or agree a date to meet after the expiration of the disputing party’s notice these Terms and Conditions shall terminate.
16.1 All notices between the parties relating to these Terms and Conditions shall be in writing and shall be delivered personally or sent by first class post, fax or email transmission to the address or fax number or email address set out in these Terms and Conditions. If not set out in these Terms and Conditions, details must be notified in writing by one party to the other prior to the commencement of the Services.
16.2 The notice shall be deemed duly served:
16.2.1 in the case of a notice delivered personally, at the time of delivery;
16.2.2 in the case of a notice sent by first class post, 2 clear Working Days after the date of dispatch;
16.2.3 in the case of a fax or email transmission if sent during normal Working hours, on the next following Working Day.
16.3 Each of the parties shall give notice to the other of the change or acquisition of any address or telephone, fax or email at the earliest possible opportunity but in any event within 48 hours of such change or acquisition.
17.1 No failure or delay on the part of Educand hereto to exercise any right or remedy under these Terms and Conditions shall be construed or operate as a waiver thereof nor shall any single or partial exercise of any right or remedy as the case may be. The rights and remedies provided in these Terms and Conditions are cumulative and are not exclusive of any rights or remedies provided by law.
18.1 No modification, variation or amendment to these Terms and Conditions shall be effective unless such modification, variation or amendment is in writing and has been signed by or on behalf of both parties.
19.1 Except as expressly stated to the contrary, Clauses 7, 8, 9, 11 and 12 shall survive termination of this Agreement for a further period of 2 years.
20.1 Neither party shall assign, transfer, sub-contract or in any other manner make over to any third party the benefit or burden of these Terms and Conditions without the prior written consent of the other party.
21. Third party rights
21.1 A person who is not a Party to these Terms and Conditions shall have no right to enforce any of its provisions which, expressly or by implication, confer a benefit on him, without the prior written agreement of both Parties.
22. Proper Law
22.1 These Terms and Conditions shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the courts of England.