Our Retained Terms - Introduction & Welcome
Our standard agreement covers a full suite of services. We look forward to
working with you in all of these areas, but we fully appreciate that you may only wish
to discuss one part of our work.
In reviewing the following, you may wish to define those areas in Schedule 1
where you would like to work with us and/or exclude any areas where you already
have agreements or resources in place.
Salmon Heaton and Kimmins Ltd provides consultants, interim management,
management due diligence, one-to-one mentoring and project facilitation.
For Organisational Development, we partner with Pyramid Organisational
Development International. They are based in the United States and have
consultants strategically placed across Europe and Asia.
Salmon Heaton and Kimmins Ltd looks forward to working with you
Standard Terms & Conditions
Contract to provide [Interim/Consultancy] Services
1. Appointment and Programme
1.1. This Agreement confirms the appointment of Salmon Heaton & Kimmins Ltd
(hereafter referred to as "the Consultancy") as Consultants to
[ ]
(hereafter referred to as “the Client”) in the United Kingdom to carry out agreed
services, details of which are attached as Schedule 1 to this letter
(hereafter referred to as "the Services") in accordance with the terms of this
Agreement, including the Standard Terms of Business attached.
1.2. Proposals for further projects may be agreed by the Client and the Consultancy
from time to time. When signed by both parties, such proposals setting out
details of the Services to be provided shall be incorporated into and form part
of this Agreement.
1.3. The appointment of the Consultancy is exclusive. The Client shall not engage
any third party to provide services in the [country/region] that compete with or are
similar to the Services.
2. Commencement and Duration of the Agreement
2.1. This Agreement will commence on [ ]thday of [ ] 20[ ] for a period
of [ ] months, unless terminated sooner under the provisions of Clause 9 of
this Agreement. After this period it will continue in effect until terminated under
the provisions of Clause 9.
3. The Consultancy’s Obligations
3.1 The Consultancy agrees with the Client during the term of this Agreement:
a). at all times to work diligently to protect and promote the interests of the Client;
b). in all matters to act loyally and faithfully towards the Client;
c). to advise the Client in writing of all its key meetings, discussions and
correspondence with representatives of any professional organisations concerning
the Client; and
d). to co-operate where appropriate with any other agencies and other advisers
engaged by the Client.
4. The Client’s Obligations
4.1. The Client agrees with the Consultancy during the term of this Agreement:
a). not to discuss the Client's affairs with any representative of another similar
consultancy other than through and/or with the knowledge and assistance of the
Consultancy;
b). to provide the Consultancy with all information, assistance and materials that
the Consultancy requests from time to time to facilitate the proper and timely
performance of the Services. In particular (but without limitation) the Client
agrees where possible:
i. to notify the Consultancy of any inquiries;
ii. to advise the Consultancy not less than 28 days before any major planned
event or change in the Client's business;
iii. to permit the Consultancy (or its representatives) to attend meetings as
appropriate with any agencies and other advisers engaged by the Client; and
iv. to make available a well-briefed personable speaker on reasonable notice to
represent the Client at briefings or meetings arranged by the Consultancy;
c). to notify the Consultancy promptly if the Client considers that any statement
made in any document submitted by the Consultancy to the Client for approval is
incorrect or misleading in any way, or may give rise to any claim or action for
defamation or otherwise against the Consultancy.
5. Approval by the Client
5.1. The expression 'Written Approval' in this Agreement including the Standard Terms
of Business shall mean Written Approval by directors or employees of the Client
authorised to approve the Consultancy's work and/or expenditure and whose names
are set out in Schedule 2. The Client shall notify the Consultancy in writing of
any change to the authorised persons during the term of the Agreement. The
Consultancy shall not be responsible for any delay in the performance of the
Services resulting from the unavailability of an authorised person to provide
Written Approval.
5.2. Written Approval shall mean approval signified by:
a). a letter, fax or purchase order from the Client bearing the signature of an
authorised person or an e-mail emanating from the individual business email
address of an authorised person; or
b). oral approval by an authorised person, provided such oral approval is confirmed
in writing within two working days by way of a written report from the
Consultancy to the Client; or
c). the signature of an authorised person on the Consultancy's documentation.
5.3. After obtaining general approval of project plans, the Consultancy shall submit
to the Client for specific Written Approval as required:
a). draft documents, articles, photographs and captions
b). copy, layouts, artwork and scripts
c). cost estimates of the various items in the project.
5.4. Written Approval of drafts or proofs shall be taken by the Consultancy as
authorisation to proceed to publication, and Written Approval of estimates
submitted shall be taken as authorisation to enter into contracts with suppliers
on the basis of such estimates.
6. Fees
6.1. The Consultancy's service fees, exclusive of VAT, and based on management,
executive travelling and administrative time in the UK, will be charged at the
rate of £[daily rate] per day payable monthly in arrears.
6.2. These fees apply to work carried out in the territory stated in Clause 1.1 only.
They do not apply to supervision of work performed outside that territory, for which
the Consultancy reserves the right to charge a further fee.
6.3. If annual or monthly fees or hourly charge out rates are specified above, these
will increase on 1st January each year by a percentage equal to the annualised
percentage increase in the Retail Price Index published by the Office for National
Statistics over the preceding twelve month period.
6.4. Fees have been calculated on the basis of information supplied by the Client.
If the information supplied is incomplete or misleading or the Client's plans
are subsequently amended, leading to an increase in the work required from the
Consultancy, the Consultancy reserves the right to increase the fees
accordingly, subject to the Client's approval (which is not to be unreasonably
withheld or delayed).
7. Operating Expenses and Disbursements
7.1. In addition to the Consultancy's service fees, the Consultancy will charge the
Client for the items set out in Clause 4 of the Standard Terms of Business and
any other third party costs approved by the Client in advance.
7.2. Items will be subject to a handling charge of 20%.
8. Payment Terms
8.1. The Consultancy's service fees and operating expenses will be invoiced monthly
in arrears.
8.2. Disbursements will be invoiced monthly in arrears.
8.3. All invoices rendered by the Consultancy will be due and payable within 30 days
of the invoice date. However, the Client agrees to pay immediately on presentation
any invoices in respect of advance or instalment payments required to be made to
suppliers.
8.4. Clause 5 of the Standard Terms of Business attached applies.
9. Termination
9.1. This Agreement may be terminated at any time after an initial period of three
months by either party giving not less than three months written notice of
termination to the other.
9.2. If payment is not made by the Client to the Consultancy in accordance with
Clause 8 and the Client does not remedy the breach within 14 days of written
notice to do so, the Consultancy will have the right to terminate the Agreement
immediately by notice in writing to that effect.
9.3. Either party may terminate the Agreement immediately upon written notice to the
other in the event of:
i. any material breach of the Agreement by either party, which breach is not
remedied (if capable of remedy) within 30 days after the service of a written
notice requiring the breach to be remedied;
ii. the other party becoming insolvent, entering into liquidation either voluntary
or compulsory (save for the purpose of reconstruction or amalgamation), passing
a resolution for its winding up, having a receiver or administrator appointed
over the whole or any part of its assets, making any composition or arrangement
with its creditors or taking or suffering any similar action in consequence of
debt, or ceasing or threatening to cease to carry on business.
9.4. In the event of termination of this Agreement, for whatever reason, the Client
will be responsible for all fees due to the Consultancy including costs, expenses
and disbursements incurred by the Consultancy on behalf of the Client up to
the effective date of termination.
9.5. On satisfaction by the Client in full of its payment obligations, the
Consultancy will co-operate so far as practicable in enabling the Client to
take over any contracts and arrangements with third parties, and will transfer
to the Client any unused materials purchased on behalf of the Client.
9.6. The parties will agree to any additional compensation payable to the
Consultancy in the event that detailed creative or other work for a future
programme or project prepared by the Consultancy at the request of the Client
during the period of this Agreement is subsequently implemented in whole
or in part by the Client or its agent.
10. Membership of the Chartered Institute of Personnel & Development and
Institute of Directors
10.1. As a member of The Chartered Institute of Personnel and Development, We
agree to abide by its aims and objectives and Code of Professional Conduct.
10.2. As a member of The Chartered Institute of Directors, I agree to abide by its
aims and objectives and Code of Professional Conduct.
Signed for and on behalf of
_____________________________________________
Signature:
Name:
Organisation:
Date:
Signed for and on behalf of Salmon Heaton & Kimmins Ltd.
Signature:
Name:
Consultancy:
Date:
SCHEDULE 1
Agreed Services to be provided under the Agreement:
[List of Services included in this agreement]
[List to clarify any specific or agreed exclusion of any services already provided
directly to the Client by another company]
SCHEDULE 2
Directors or Employees of the Client authorised to give Written Approval
[ full name & title ]
[ full name & title ]
Directors or Employees of the Consultancy authorised to give Written Approval
Michael Salmon, Managing Director, Salmon Heaton & Kimmins Ltd
Jacinta Heaton, Business Director, Salmon Heaton & Kimmins Ltd
Standard Terms of Business for the provision of [ ] Services
These Standard Terms of Business are deemed to form part of the Agreement to
which they are attached.
1. Co-operation
1.1. The Consultancy will co-operate fully with the Client and take the initiative in
offering advice and services. The Client agrees to assist the Consultancy in the
performance of these duties by making available to the Consultancy all relevant
information and executive time as required.
2. Consultancy Status
2.1. The Consultancy acts in all contracts as a principal at law.
3. Exclusivity
3.1. The Consultancy will not represent conflicting interests, but may represent
competing interests with the express consent of the parties concerned.
4. Disbursements and Expenses
4.1. The Consultancy's service fees shall be exclusive of the following
disbursements and expense items (which may not be an exhaustive list)
relating to the Services:
a. Advertising artwork
b. Legal fees
c. Couriers
d. Design, artwork and print
e. Direct mail
f. Entertainment
g. Evaluation or Assessment tools
h. Exhibition and display materials
i. Advertisement production
j. Market research
k. Media monitoring
l. Subscriptions
m. Photocopying and stationery
n. Photography and prints
o. Postage and packaging, telephone and telecommunications
p. Material production and distribution
q. Special events, meetings, conferences, etc
r. Specialist software and payroll
s. Storage
t. Travel, accommodation and subsistence
u. Venues
It is normal practice for all materials and services purchased from third party
suppliers on behalf of a client to be charged at cost plus a handling charge of 20%.
5. Payment Terms
5.1. All sums payable under the Agreement shall be paid in full without deduction,
withholding or set-off and are exclusive of VAT and any other duty or tax which
shall be payable by the Client. VAT will be added at the current applicable rate.
5.2. Overdue payments shall attract interest at an annual rate of 2% above the
prevailing base rate of the Consultancy's clearing bank. Interest shall accrue
on a daily basis from the date payment becomes due until the Consultancy has
received payment of the overdue amount together with all accrued interest.
5.3. The Consultancy and/or persons or companies acting on its behalf or as its
agents reserve the right to charge and recover all costs incurred in connection
with the pursuance and/or recovery of outstanding sums.
5.4. If exchange rate fluctuations cause the cost to the Consultancy of materials or
services purchased overseas for the Services to differ from the cost
anticipated when the Consultancy ordered the relevant materials or services (or
obtained the Client's approval for such costs), the Consultancy shall charge
the Client at the exchange rate on the date the Consultancy pays for the
relevant materials or services, applying the closing mid-point rate in London
for that day as quoted in the next edition of the Financial Times.
6. Amendment and Cancellation
6.1. Any request by the Client to amend or halt any plans or to cancel work in
progress, shall be implemented by the Consultancy as far as this is possible
within the terms of its contractual obligations to suppliers. The Client shall
be responsible for any costs or expenses incurred or to which the Consultancy is
committed prior to, or as a result of, the cancellation or amendment and which
cannot be recovered by the Consultancy. The Client shall pay the Consultancy's
fees covering the cancelled or amended Services, as well as any charges raised
by third parties arising from the cancellation or amendment.
7. Amendments to Created Work and Alternative Use of Work
7.1. The expression “created work” in this and the following clauses shall mean work
created by the Consultancy for the Client pursuant to the Agreement.
7.2. No amendments to any created work may be made without the Consultancy's prior
written consent. Any agreed amendments shall only be carried out by the
Consultancy or under its supervision and shall be paid for in a manner agreed
between the Client and the Consultancy in writing in advance. Reprints obtained
by the Client shall not differ in any way from the originals supplied without
the Consultancy's written consent.
7.3. Created work shall not be used by the Client for any purpose other than that
for which it was created, and no work in draft or incomplete form shall be used
or published as finished work without the Consultancy's written consent.
8. Copyright and Intellectual Property Rights in Created Work
8.1. In order that the Client may own worldwide copyright and intellectual property
rights in the created work, the Consultancy shall promptly on the Client's
written request sign an unconditional assignment with full title guarantee of
all such rights as are owned by the Consultancy and capable of assignment. This
provision shall not apply to any creative work which is not accepted or
otherwise delivered to the Client (such as proofs and proposal documents) or in
respect of which the Consultancy has not received the fees payable.
8.2. In the event that any created work includes material the rights in which are
owned by a third party, the Consultancy shall grant to the Client (at the
Client's expense) only such rights as the third party permits the Consultancy to
grant to the Client.
8.3. Notwithstanding any assignment of rights, the Consultancy may use any of the
created work for the purposes of internal training or, with the Client's prior
consent (which shall not be unreasonably withheld or delayed), in the promotion
of the Consultancy.
8.4. The provisions of this clause shall survive the expiry or termination of the
Agreement.
9. Confidential Information
9.1. The parties agree to treat as secret and confidential and not at any time for
any reason during or after the termination of the Agreement to disclose or
permit to be disclosed or made use of any confidential information concerning
the other's business customers, suppliers or associated companies which they
may acquire in the course of the Agreement.
9.2. The Consultancy shall, where so requested by the Client, impose equivalent
obligations of confidentiality on its own personnel and obtain written
assurances from any third parties to whom information has to be disclosed in
order to enable the Consultancy to carry out its obligations under the Agreement.
9.3. For the avoidance of doubt, the restrictions in this Clause shall not prevent the:
9.3.1. disclosure or use of information in the proper performance of the
Consultancy's duties;
9.3.2. disclosure of information if required by law; or
9.3.3. disclosure of information which is already in the public domain otherwise
than through unauthorised disclosure by the Consultancy.
9.4. Nothing in the Agreement shall prevent the Consultancy from using the name of
the Client in any list of clients used by the Consultancy for its own promotional purposes
unless the Client has notified the Consultancy in writing that it is unwilling for its name
to be so used.
9.5. The provisions of this clause shall survive the expiry or termination of the
Agreement.
10. The Consultancy's Warranty and Indemnity
10.1. The Consultancy warrants that to the best of its knowledge and belief the
created work shall not infringe any third party rights or be in any way
contrary to English law, subject to any legal or other advice provided to the
Consultancy and communicated to the Client.
10.2. Subject to the provisions of this clause, the Consultancy shall indemnify and
keep indemnified the Client from and against any and all damage, loss, costs,
expenses (including legal costs and expenses) and liability whether civil or
criminal which the Client may incur or suffer resulting from any breach of this
Agreement by the Consultancy, including any act, neglect or default of the
Consultancy's agents, representatives or employees and including breaches
resulting in any successful claim by any third party alleging defamation,
provided that:
10.2.1. any condition or warranty which might otherwise be implied into or
incorporated in the Agreement, whether by statute, common law or otherwise, is
expressly excluded from the Agreement to the maximum extent permitted by law;
10.2.2. the Consultancy's maximum aggregate liability to the Client under the
Agreement shall in no circumstances exceed an amount equal to the
Consultancy's Professional Indemnity cover, which the Consultancy shall
disclose to the Client at any time upon request;
10.2.3. the Consultancy shall not be liable for:
(i) any loss or damage suffered by the Client arising out of any act, omission,
misrepresentation or error made by or on behalf of the Client or arising from
any cause beyond the Consultancy's reasonable control; or
(ii) any delay in or omission of publication or transmission or any error in any
press or other publication unless such delay, omission or error is due to its own
default or neglect; or
(iii) any consequential loss or damage of any kind whether caused by tort (including
negligence), breach of contract or otherwise, and whether or not such loss or
damage was foreseeable.
10.3. The Client shall effect such insurance as is suitable having regard to all the
circumstances and the provisions of this clause.
10.4. The provisions of this clause shall survive the expiry or termination of the
Agreement.
11. The Client's Warranty and Indemnity
11.1. The Client warrants that to the best of its knowledge, information and belief
all information supplied to the Consultancy before, during and after the
Agreement shall be accurate and not in any way contrary to English law and that
it is entitled to provide such information to the Consultancy for its use without
recourse to any third party.
11.2. The Client shall indemnify and keep indemnified the Consultancy from and
against any and all damage, loss, costs, expenses (including legal costs and
expenses) and liability whether civil or criminal which the Consultancy may
incur or suffer resulting from any act, neglect or default of the Client or its
agents, employees or licensees, or the infringement of the intellectual property
rights of any third party or any successful claim for defamation, provided that
such liability was not incurred by the Consultancy through any default in
performing its obligations under the Agreement.
11.3. The provisions of this clause shall survive the expiry or termination of the
Agreement.
12. Client's Property
12.1. The Consultancy shall take reasonable care of any property belonging to the
Client and made available to the Consultancy for the purpose of this Agreement.
Such property shall be at all times at the sole and entire risk of the Client,
and the Consultancy shall not be subject to any other liability for it.
13. Insurance of Created Work
13.1. Created work retained by the Consultancy shall at all times, while in the
Consultancy's possession, be insured by the Consultancy against loss or
damage.
13.2. The Client shall insure created work against loss or damage when in transit
between the Consultancy and the Client or any third parties for the purposes of
production or publication and when in the possession of those third parties.
14. Employee Poaching
14.1. During the Agreement and for six months after its expiry or termination,
neither the Consultancy nor the Client shall, without the written consent of
the other, solicit or entice (either directly or indirectly) or attempt to solicit
or entice (or authorise the taking of such action by any other person) any
person who is employed by the other or has been employed by the other
during the preceding six months, and who has been involved with the Services
provided under this Agreement, to terminate his or her employment with the
other party.
14.2. If the Consultancy consents to an employee joining the Client in the
circumstances of Clause 14.1, the Consultancy may charge a fee in consideration
for such consent equivalent to 30% of the annual salary to be paid by the Client
to that employee. This shall be payable by the Client immediately upon
presentation of an invoice by the Consultancy. If the Consultancy does not
require the employee to complete the notice period contractually required of
him, the Consultancy reserves the right to charge the Client an additional fee
equivalent to the salary payable by the Consultancy for the period of
uncompleted notice.
14.3. The provisions of this clause shall survive the expiry or termination of the
Agreement.
15. Assignment
15.1. The Client may not assign, sub-license or sub-contract the Agreement or any of
its rights or obligations hereunder without the prior written consent of the
Consultancy (not to be unreasonably withheld or delayed). The Consultancy
acknowledges that such assignment shall not affect the liability of the
Consultancy to fulfil its obligations under the Agreement.
16. Force Majeure
16.1. Neither party shall be liable for any delay in performing or failure to perform
its obligations under the Agreement to the extent that and for so long as the
delay or failure results from any cause or circumstance whatsoever beyond its
reasonable control (an "event of force majeure") provided that the event of
force majeure is not due to the fault or negligence of that party. Each party
shall use its reasonable endeavours to minimise the effects of any event of
force majeure.
16.2. Immediately upon becoming aware of any event of force majeure, the affected
party shall notify the other party of the manner and extent to which its
obligations are likely to be prevented or delayed, and the dates of performance
of any obligations affected shall be postponed for so long as is made necessary
by the event of force majeure.
16.3. If any event of force majeure continues for a period longer than two months,
either party may terminate the Agreement with immediate effect on giving written
notice to the other party and neither shall be liable to the other for such
termination. In case of termination, any sums due to either of the parties shall
be paid immediately.
17. Entire Agreement, Amendment, Waiver
17.1. The Agreement, these Standard Terms of Business and the documents referred to
in them contain the whole agreement between the parties and supersede any
previous agreement between them relating to the subject matter of the Agreement,
whether written or oral. The parties acknowledge that neither of them has relied
upon any representation, written or oral, of any person but only as expressly
set out in the Agreement.
17.2. Any valid alteration to or variation of the Agreement must be in writing and
signed on behalf of each of the parties by a duly authorised representative.
17.3. No failure of either party to enforce at any time or for any period any term or
condition of the Agreement shall constitute a waiver of such term or of that
party's right later to enforce all terms and conditions of the Agreement.
18. Severance
18.1. If any provision of the Agreement is declared by any judicial or other
competent authority to be illegal, void, voidable or otherwise unenforceable,
or indication of the same is received by either of the parties from any
relevant competent authority, such provision shall be deemed severed from the
Agreement and the remaining terms of the Agreement shall remain in full force
and effect.
19. Notices
19.1. Any notice to be served on the other party shall by sent by recorded delivery,
registered post, e-mail or fax. Notices sent by registered post or recorded
delivery shall be deemed to be served within 72 hours of posting, and by e-mail
or fax within 24 hours if sent to the correct e-mail or fax address of the addressee.
20. Disputes
20.1. In the event of a dispute or question arising between the parties, they may, if
they agree to do so, refer the matter to the Professional Practices Committee
of the Institute of Personnel and Development for its recommendations for
resolving the dispute or question.
21. Proper Law and Jurisdiction
21.1. The Agreement is governed by and is to be construed in accordance with the
laws of England and Wales and each party hereby irrevocably agrees to submit
to the exclusive jurisdiction of the Courts of England and Wales.
22. [Click here to download a copy of the CIPD Code of Professional Conduct].
1. Appointment and Programme
1.1. This Agreement confirms the appointment of Salmon Heaton & Kimmins Ltd
(hereafter referred to as "the Consultancy") as Consultants to
[ ]
(hereafter referred to as “the Client”) in the United Kingdom to carry out agreed
services, details of which are attached as Schedule 1 to this letter
(hereafter referred to as "the Services") in accordance with the terms of this
Agreement, including the Standard Terms of Business attached.
1.2. Proposals for further projects may be agreed by the Client and the Consultancy
from time to time. When signed by both parties, such proposals setting out
details of the Services to be provided shall be incorporated into and form part
of this Agreement.
1.3. The appointment of the Consultancy is exclusive. The Client shall not engage
any third party to provide services in the [country/region] that compete with or are
similar to the Services.
2. Commencement and Duration of the Agreement
2.1. This Agreement will commence on [ ]thday of [ ] 20[ ] for a period
of [ ] months, unless terminated sooner under the provisions of Clause 9 of
this Agreement. After this period it will continue in effect until terminated under
the provisions of Clause 9.
3. The Consultancy’s Obligations
3.1 The Consultancy agrees with the Client during the term of this Agreement:
a). at all times to work diligently to protect and promote the interests of the Client;
b). in all matters to act loyally and faithfully towards the Client;
c). to advise the Client in writing of all its key meetings, discussions and
correspondence with representatives of any professional organisations concerning
the Client; and
d). to co-operate where appropriate with any other agencies and other advisers
engaged by the Client.
4. The Client’s Obligations
4.1. The Client agrees with the Consultancy during the term of this Agreement:
a). not to discuss the Client's affairs with any representative of another similar
consultancy other than through and/or with the knowledge and assistance of the
Consultancy;
b). to provide the Consultancy with all information, assistance and materials that
the Consultancy requests from time to time to facilitate the proper and timely
performance of the Services. In particular (but without limitation) the Client
agrees where possible:
i. to notify the Consultancy of any inquiries;
ii. to advise the Consultancy not less than 28 days before any major planned
event or change in the Client's business;
iii. to permit the Consultancy (or its representatives) to attend meetings as
appropriate with any agencies and other advisers engaged by the Client; and
iv. to make available a well-briefed personable speaker on reasonable notice to
represent the Client at briefings or meetings arranged by the Consultancy;
c). to notify the Consultancy promptly if the Client considers that any statement
made in any document submitted by the Consultancy to the Client for approval is
incorrect or misleading in any way, or may give rise to any claim or action for
defamation or otherwise against the Consultancy.
5. Approval by the Client
5.1. The expression 'Written Approval' in this Agreement including the Standard Terms
of Business shall mean Written Approval by directors or employees of the Client
authorised to approve the Consultancy's work and/or expenditure and whose names
are set out in Schedule 2. The Client shall notify the Consultancy in writing of
any change to the authorised persons during the term of the Agreement. The
Consultancy shall not be responsible for any delay in the performance of the
Services resulting from the unavailability of an authorised person to provide
Written Approval.
5.2. Written Approval shall mean approval signified by:
a). a letter, fax or purchase order from the Client bearing the signature of an
authorised person or an e-mail emanating from the individual business email
address of an authorised person; or
b). oral approval by an authorised person, provided such oral approval is confirmed
in writing within two working days by way of a written report from the
Consultancy to the Client; or
c). the signature of an authorised person on the Consultancy's documentation.
5.3. After obtaining general approval of project plans, the Consultancy shall submit
to the Client for specific Written Approval as required:
a). draft documents, articles, photographs and captions
b). copy, layouts, artwork and scripts
c). cost estimates of the various items in the project.
5.4. Written Approval of drafts or proofs shall be taken by the Consultancy as
authorisation to proceed to publication, and Written Approval of estimates
submitted shall be taken as authorisation to enter into contracts with suppliers
on the basis of such estimates.
6. Fees
6.1. The Consultancy's service fees, exclusive of VAT, and based on management,
executive travelling and administrative time in the UK, will be charged at the
rate of £[daily rate] per day payable monthly in arrears.
6.2. These fees apply to work carried out in the territory stated in Clause 1.1 only.
They do not apply to supervision of work performed outside that territory, for which
the Consultancy reserves the right to charge a further fee.
6.3. If annual or monthly fees or hourly charge out rates are specified above, these
will increase on 1st January each year by a percentage equal to the annualised
percentage increase in the Retail Price Index published by the Office for National
Statistics over the preceding twelve month period.
6.4. Fees have been calculated on the basis of information supplied by the Client.
If the information supplied is incomplete or misleading or the Client's plans
are subsequently amended, leading to an increase in the work required from the
Consultancy, the Consultancy reserves the right to increase the fees
accordingly, subject to the Client's approval (which is not to be unreasonably
withheld or delayed).
7. Operating Expenses and Disbursements
7.1. In addition to the Consultancy's service fees, the Consultancy will charge the
Client for the items set out in Clause 4 of the Standard Terms of Business and
any other third party costs approved by the Client in advance.
7.2. Items will be subject to a handling charge of 20%.
8. Payment Terms
8.1. The Consultancy's service fees and operating expenses will be invoiced monthly
in arrears.
8.2. Disbursements will be invoiced monthly in arrears.
8.3. All invoices rendered by the Consultancy will be due and payable within 30 days
of the invoice date. However, the Client agrees to pay immediately on presentation
any invoices in respect of advance or instalment payments required to be made to
suppliers.
8.4. Clause 5 of the Standard Terms of Business attached applies.
9. Termination
9.1. This Agreement may be terminated at any time after an initial period of three
months by either party giving not less than three months written notice of
termination to the other.
9.2. If payment is not made by the Client to the Consultancy in accordance with
Clause 8 and the Client does not remedy the breach within 14 days of written
notice to do so, the Consultancy will have the right to terminate the Agreement
immediately by notice in writing to that effect.
9.3. Either party may terminate the Agreement immediately upon written notice to the
other in the event of:
i. any material breach of the Agreement by either party, which breach is not
remedied (if capable of remedy) within 30 days after the service of a written
notice requiring the breach to be remedied;
ii. the other party becoming insolvent, entering into liquidation either voluntary
or compulsory (save for the purpose of reconstruction or amalgamation), passing
a resolution for its winding up, having a receiver or administrator appointed
over the whole or any part of its assets, making any composition or arrangement
with its creditors or taking or suffering any similar action in consequence of
debt, or ceasing or threatening to cease to carry on business.
9.4. In the event of termination of this Agreement, for whatever reason, the Client
will be responsible for all fees due to the Consultancy including costs, expenses
and disbursements incurred by the Consultancy on behalf of the Client up to
the effective date of termination.
9.5. On satisfaction by the Client in full of its payment obligations, the
Consultancy will co-operate so far as practicable in enabling the Client to
take over any contracts and arrangements with third parties, and will transfer
to the Client any unused materials purchased on behalf of the Client.
9.6. The parties will agree to any additional compensation payable to the
Consultancy in the event that detailed creative or other work for a future
programme or project prepared by the Consultancy at the request of the Client
during the period of this Agreement is subsequently implemented in whole
or in part by the Client or its agent.
10. Membership of the Chartered Institute of Personnel & Development and
Institute of Directors
10.1. As a member of The Chartered Institute of Personnel and Development, We
agree to abide by its aims and objectives and Code of Professional Conduct.
10.2. As a member of The Chartered Institute of Directors, I agree to abide by its
aims and objectives and Code of Professional Conduct.
Signed for and on behalf of
_____________________________________________
Signature:
Name:
Organisation:
Date:
Signed for and on behalf of Salmon Heaton & Kimmins Ltd.
Signature:
Name:
Consultancy:
Date:
SCHEDULE 1
Agreed Services to be provided under the Agreement:
[List of Services included in this agreement]
[List to clarify any specific or agreed exclusion of any services already provided
directly to the Client by another company]
SCHEDULE 2
Directors or Employees of the Client authorised to give Written Approval
[ full name & title ]
[ full name & title ]
Directors or Employees of the Consultancy authorised to give Written Approval
Michael Salmon, Managing Director, Salmon Heaton & Kimmins Ltd
Jacinta Heaton, Business Director, Salmon Heaton & Kimmins Ltd
Standard Terms of Business for the provision of [ ] Services
These Standard Terms of Business are deemed to form part of the Agreement to
which they are attached.
1. Co-operation
1.1. The Consultancy will co-operate fully with the Client and take the initiative in
offering advice and services. The Client agrees to assist the Consultancy in the
performance of these duties by making available to the Consultancy all relevant
information and executive time as required.
2. Consultancy Status
2.1. The Consultancy acts in all contracts as a principal at law.
3. Exclusivity
3.1. The Consultancy will not represent conflicting interests, but may represent
competing interests with the express consent of the parties concerned.
4. Disbursements and Expenses
4.1. The Consultancy's service fees shall be exclusive of the following
disbursements and expense items (which may not be an exhaustive list)
relating to the Services:
a. Advertising artwork
b. Legal fees
c. Couriers
d. Design, artwork and print
e. Direct mail
f. Entertainment
g. Evaluation or Assessment tools
h. Exhibition and display materials
i. Advertisement production
j. Market research
k. Media monitoring
l. Subscriptions
m. Photocopying and stationery
n. Photography and prints
o. Postage and packaging, telephone and telecommunications
p. Material production and distribution
q. Special events, meetings, conferences, etc
r. Specialist software and payroll
s. Storage
t. Travel, accommodation and subsistence
u. Venues
It is normal practice for all materials and services purchased from third party
suppliers on behalf of a client to be charged at cost plus a handling charge of 20%.
5. Payment Terms
5.1. All sums payable under the Agreement shall be paid in full without deduction,
withholding or set-off and are exclusive of VAT and any other duty or tax which
shall be payable by the Client. VAT will be added at the current applicable rate.
5.2. Overdue payments shall attract interest at an annual rate of 2% above the
prevailing base rate of the Consultancy's clearing bank. Interest shall accrue
on a daily basis from the date payment becomes due until the Consultancy has
received payment of the overdue amount together with all accrued interest.
5.3. The Consultancy and/or persons or companies acting on its behalf or as its
agents reserve the right to charge and recover all costs incurred in connection
with the pursuance and/or recovery of outstanding sums.
5.4. If exchange rate fluctuations cause the cost to the Consultancy of materials or
services purchased overseas for the Services to differ from the cost
anticipated when the Consultancy ordered the relevant materials or services (or
obtained the Client's approval for such costs), the Consultancy shall charge
the Client at the exchange rate on the date the Consultancy pays for the
relevant materials or services, applying the closing mid-point rate in London
for that day as quoted in the next edition of the Financial Times.
6. Amendment and Cancellation
6.1. Any request by the Client to amend or halt any plans or to cancel work in
progress, shall be implemented by the Consultancy as far as this is possible
within the terms of its contractual obligations to suppliers. The Client shall
be responsible for any costs or expenses incurred or to which the Consultancy is
committed prior to, or as a result of, the cancellation or amendment and which
cannot be recovered by the Consultancy. The Client shall pay the Consultancy's
fees covering the cancelled or amended Services, as well as any charges raised
by third parties arising from the cancellation or amendment.
7. Amendments to Created Work and Alternative Use of Work
7.1. The expression “created work” in this and the following clauses shall mean work
created by the Consultancy for the Client pursuant to the Agreement.
7.2. No amendments to any created work may be made without the Consultancy's prior
written consent. Any agreed amendments shall only be carried out by the
Consultancy or under its supervision and shall be paid for in a manner agreed
between the Client and the Consultancy in writing in advance. Reprints obtained
by the Client shall not differ in any way from the originals supplied without
the Consultancy's written consent.
7.3. Created work shall not be used by the Client for any purpose other than that
for which it was created, and no work in draft or incomplete form shall be used
or published as finished work without the Consultancy's written consent.
8. Copyright and Intellectual Property Rights in Created Work
8.1. In order that the Client may own worldwide copyright and intellectual property
rights in the created work, the Consultancy shall promptly on the Client's
written request sign an unconditional assignment with full title guarantee of
all such rights as are owned by the Consultancy and capable of assignment. This
provision shall not apply to any creative work which is not accepted or
otherwise delivered to the Client (such as proofs and proposal documents) or in
respect of which the Consultancy has not received the fees payable.
8.2. In the event that any created work includes material the rights in which are
owned by a third party, the Consultancy shall grant to the Client (at the
Client's expense) only such rights as the third party permits the Consultancy to
grant to the Client.
8.3. Notwithstanding any assignment of rights, the Consultancy may use any of the
created work for the purposes of internal training or, with the Client's prior
consent (which shall not be unreasonably withheld or delayed), in the promotion
of the Consultancy.
8.4. The provisions of this clause shall survive the expiry or termination of the
Agreement.
9. Confidential Information
9.1. The parties agree to treat as secret and confidential and not at any time for
any reason during or after the termination of the Agreement to disclose or
permit to be disclosed or made use of any confidential information concerning
the other's business customers, suppliers or associated companies which they
may acquire in the course of the Agreement.
9.2. The Consultancy shall, where so requested by the Client, impose equivalent
obligations of confidentiality on its own personnel and obtain written
assurances from any third parties to whom information has to be disclosed in
order to enable the Consultancy to carry out its obligations under the Agreement.
9.3. For the avoidance of doubt, the restrictions in this Clause shall not prevent the:
9.3.1. disclosure or use of information in the proper performance of the
Consultancy's duties;
9.3.2. disclosure of information if required by law; or
9.3.3. disclosure of information which is already in the public domain otherwise
than through unauthorised disclosure by the Consultancy.
9.4. Nothing in the Agreement shall prevent the Consultancy from using the name of
the Client in any list of clients used by the Consultancy for its own promotional purposes
unless the Client has notified the Consultancy in writing that it is unwilling for its name
to be so used.
9.5. The provisions of this clause shall survive the expiry or termination of the
Agreement.
10. The Consultancy's Warranty and Indemnity
10.1. The Consultancy warrants that to the best of its knowledge and belief the
created work shall not infringe any third party rights or be in any way
contrary to English law, subject to any legal or other advice provided to the
Consultancy and communicated to the Client.
10.2. Subject to the provisions of this clause, the Consultancy shall indemnify and
keep indemnified the Client from and against any and all damage, loss, costs,
expenses (including legal costs and expenses) and liability whether civil or
criminal which the Client may incur or suffer resulting from any breach of this
Agreement by the Consultancy, including any act, neglect or default of the
Consultancy's agents, representatives or employees and including breaches
resulting in any successful claim by any third party alleging defamation,
provided that:
10.2.1. any condition or warranty which might otherwise be implied into or
incorporated in the Agreement, whether by statute, common law or otherwise, is
expressly excluded from the Agreement to the maximum extent permitted by law;
10.2.2. the Consultancy's maximum aggregate liability to the Client under the
Agreement shall in no circumstances exceed an amount equal to the
Consultancy's Professional Indemnity cover, which the Consultancy shall
disclose to the Client at any time upon request;
10.2.3. the Consultancy shall not be liable for:
(i) any loss or damage suffered by the Client arising out of any act, omission,
misrepresentation or error made by or on behalf of the Client or arising from
any cause beyond the Consultancy's reasonable control; or
(ii) any delay in or omission of publication or transmission or any error in any
press or other publication unless such delay, omission or error is due to its own
default or neglect; or
(iii) any consequential loss or damage of any kind whether caused by tort (including
negligence), breach of contract or otherwise, and whether or not such loss or
damage was foreseeable.
10.3. The Client shall effect such insurance as is suitable having regard to all the
circumstances and the provisions of this clause.
10.4. The provisions of this clause shall survive the expiry or termination of the
Agreement.
11. The Client's Warranty and Indemnity
11.1. The Client warrants that to the best of its knowledge, information and belief
all information supplied to the Consultancy before, during and after the
Agreement shall be accurate and not in any way contrary to English law and that
it is entitled to provide such information to the Consultancy for its use without
recourse to any third party.
11.2. The Client shall indemnify and keep indemnified the Consultancy from and
against any and all damage, loss, costs, expenses (including legal costs and
expenses) and liability whether civil or criminal which the Consultancy may
incur or suffer resulting from any act, neglect or default of the Client or its
agents, employees or licensees, or the infringement of the intellectual property
rights of any third party or any successful claim for defamation, provided that
such liability was not incurred by the Consultancy through any default in
performing its obligations under the Agreement.
11.3. The provisions of this clause shall survive the expiry or termination of the
Agreement.
12. Client's Property
12.1. The Consultancy shall take reasonable care of any property belonging to the
Client and made available to the Consultancy for the purpose of this Agreement.
Such property shall be at all times at the sole and entire risk of the Client,
and the Consultancy shall not be subject to any other liability for it.
13. Insurance of Created Work
13.1. Created work retained by the Consultancy shall at all times, while in the
Consultancy's possession, be insured by the Consultancy against loss or
damage.
13.2. The Client shall insure created work against loss or damage when in transit
between the Consultancy and the Client or any third parties for the purposes of
production or publication and when in the possession of those third parties.
14. Employee Poaching
14.1. During the Agreement and for six months after its expiry or termination,
neither the Consultancy nor the Client shall, without the written consent of
the other, solicit or entice (either directly or indirectly) or attempt to solicit
or entice (or authorise the taking of such action by any other person) any
person who is employed by the other or has been employed by the other
during the preceding six months, and who has been involved with the Services
provided under this Agreement, to terminate his or her employment with the
other party.
14.2. If the Consultancy consents to an employee joining the Client in the
circumstances of Clause 14.1, the Consultancy may charge a fee in consideration
for such consent equivalent to 30% of the annual salary to be paid by the Client
to that employee. This shall be payable by the Client immediately upon
presentation of an invoice by the Consultancy. If the Consultancy does not
require the employee to complete the notice period contractually required of
him, the Consultancy reserves the right to charge the Client an additional fee
equivalent to the salary payable by the Consultancy for the period of
uncompleted notice.
14.3. The provisions of this clause shall survive the expiry or termination of the
Agreement.
15. Assignment
15.1. The Client may not assign, sub-license or sub-contract the Agreement or any of
its rights or obligations hereunder without the prior written consent of the
Consultancy (not to be unreasonably withheld or delayed). The Consultancy
acknowledges that such assignment shall not affect the liability of the
Consultancy to fulfil its obligations under the Agreement.
16. Force Majeure
16.1. Neither party shall be liable for any delay in performing or failure to perform
its obligations under the Agreement to the extent that and for so long as the
delay or failure results from any cause or circumstance whatsoever beyond its
reasonable control (an "event of force majeure") provided that the event of
force majeure is not due to the fault or negligence of that party. Each party
shall use its reasonable endeavours to minimise the effects of any event of
force majeure.
16.2. Immediately upon becoming aware of any event of force majeure, the affected
party shall notify the other party of the manner and extent to which its
obligations are likely to be prevented or delayed, and the dates of performance
of any obligations affected shall be postponed for so long as is made necessary
by the event of force majeure.
16.3. If any event of force majeure continues for a period longer than two months,
either party may terminate the Agreement with immediate effect on giving written
notice to the other party and neither shall be liable to the other for such
termination. In case of termination, any sums due to either of the parties shall
be paid immediately.
17. Entire Agreement, Amendment, Waiver
17.1. The Agreement, these Standard Terms of Business and the documents referred to
in them contain the whole agreement between the parties and supersede any
previous agreement between them relating to the subject matter of the Agreement,
whether written or oral. The parties acknowledge that neither of them has relied
upon any representation, written or oral, of any person but only as expressly
set out in the Agreement.
17.2. Any valid alteration to or variation of the Agreement must be in writing and
signed on behalf of each of the parties by a duly authorised representative.
17.3. No failure of either party to enforce at any time or for any period any term or
condition of the Agreement shall constitute a waiver of such term or of that
party's right later to enforce all terms and conditions of the Agreement.
18. Severance
18.1. If any provision of the Agreement is declared by any judicial or other
competent authority to be illegal, void, voidable or otherwise unenforceable,
or indication of the same is received by either of the parties from any
relevant competent authority, such provision shall be deemed severed from the
Agreement and the remaining terms of the Agreement shall remain in full force
and effect.
19. Notices
19.1. Any notice to be served on the other party shall by sent by recorded delivery,
registered post, e-mail or fax. Notices sent by registered post or recorded
delivery shall be deemed to be served within 72 hours of posting, and by e-mail
or fax within 24 hours if sent to the correct e-mail or fax address of the addressee.
20. Disputes
20.1. In the event of a dispute or question arising between the parties, they may, if
they agree to do so, refer the matter to the Professional Practices Committee
of the Institute of Personnel and Development for its recommendations for
resolving the dispute or question.
21. Proper Law and Jurisdiction
21.1. The Agreement is governed by and is to be construed in accordance with the
laws of England and Wales and each party hereby irrevocably agrees to submit
to the exclusive jurisdiction of the Courts of England and Wales.
22. [Click here to download a copy of the CIPD Code of Professional Conduct].
