Terms and Conditions Effective November, 2018

Client and Service Supplier 

Terms and Conditions

[Schedule 1 –User Access Website Agreement]

[Schedule 2 – Client Framework Agreement]

[Schedule 3 – Expense Policy Supplier]

[Schedule 4 – Service Supplier Terms of Engagement]

SCHEDULE 1

User Access Website Agreement

Effective October 2019

PLEASE READ THE TERMS OF AGREEMENT CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.

These Website Terms & Conditions (“T&Cs”) apply to your access and use of https://www.AVORD.com (the “Site”), including all software, data, reports, text, images, sounds, video, and content made available through any portion of the Site (collectively, the “Content”). Content includes all such elements as a whole, as well as individual elements and portions thereof.

1. Acceptance of Terms.

AVORD LTD permits you (“User” or “you” or “your”) to access and use the Site and Content, subject to these T&Cs. By accessing or using any portion of the Site, you acknowledge that you have read, understood, and agree to be bound by these T&Cs. If you are entering into these T&Cs on behalf of a company or other legal entity (“User Entity”), you must have the legal authority to contractually bind such User Entity to these T&Cs, in which case the terms “you” or “your” or “User” will refer to such User Entity. If you lack such legal authority to contractually bind or you do not agree with these T&Cs, you must not accept these T&Cs or access or use the site or content.

2. TERMS AND CONDITIONS UPDATES.

AVORD LTD reserves the right, at its sole discretion, to change or modify portions of these T&Cs at any time. AVORD LTD will post the changes to these T&Cs on the Site and will indicate at the top of this page the date these terms were last revised. It is your responsibility to check the T&Cs periodically for changes. Your continued use of the Site and Content after the date any such changes become effective constitutes your acceptance of the new or revised T&Cs.

    3.  General Conditions/Access and Use.

Authorisation to Access and Use Site and Content. Subject to your compliance with these T&Cs and the provisions hereof, you may access or use the Site and Content solely for the purpose of your evaluation of AVORD LTD and AVORD LTD’s products and services. You may only link to the Site or Content, or any portion thereof, as expressly permitted by AVORD LTD.

Ownership and Restrictions. All rights, title and interest in and to the Site and Content will remain with and belong exclusively to AVORD LTD. You will not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Site and any Content available to any third party, (b) use the Site and Content in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Site and Content or their related components, or (c) modify, adapt or hack the Site and Content to, or try to, gain unauthorised access to the restricted portions of the Site and Content or related systems or networks (i.e., circumvent any encryption or other security measures, gain access to any source code or any other underlying form of technology or information, and gain access to any part of the Site and Content, or any other products or services of AVORD LTD that are not readily made available to the general public).

You are not permitted to copy, modify, frame, repost, publicly perform or display, sell, reproduce, distribute, or create derivative works of the Site and Content, except that you may download, display, and print one copy of the publicly available materials (i.e., the Content that does not require an Account name or password to access) on any single computer solely for your personal, non-commercial use, provided that you do not modify the material in any way and you keep intact all copyright, trademark, and other proprietary notices.

You agree not to access the Site or Content by any means other than through the interface that is provided by AVORD LTD to access the same. You may not use any “page-scrape,” “deep-link,” “spider,” or “robot or other automatic program, device, algorithm or methodology, or any similar manual process, to access, copy, acquire, or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the presentation or navigational structure of the Site or any Content, to obtain or attempt to obtain any Content or other information through any means not made generally available through the Site by AVORD LTD.

AVORD LTD reserves the right to take any lawful measures to prevent any such activity. You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to AVORD LTD on or through the Site or any service offered on or through the Site. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.

Relationship with AVORD LTD Once you are registered onto the AVORD LTD platform, the contractual aspects of the relationship will be between you and AVORD LTD to this end AVORD LTD has Professional indemnity and Public liability insurances. Invoices to clients and payment to Security testers will be managed through AVORD LTD.

Where a Security tester or AVORD LTD is in breach of these terms set out in this document, You will deal directly with AVORD LTD for any compensation claims that may arise. AVORD LTD will seek to claim from the testers if the Security testers are at fault.

Relationship with the Security testers AVORD LTD manages all Security testers who register onto the platform. As part of the registration process all Security testers have individual Professional indemnity and Public liability insurances and these insurance policies are kept up to date.

Responsibility for Your Data. You are solely responsible for all data, information and other content, that you upload, post, or otherwise provide or store (hereafter “post(ing)”) in connection with or relating to the Site.

Reservation of Rights. AVORD LTD and its licensors each own and retain their respective rights in and to all logos, company names, marks, trademarks, copyrights, trade secrets, know-how, patents and patent applications that are used or embodied in or otherwise related to the Site and Content. AVORD LTD grants no rights or licenses (implied, by estoppel, or otherwise) whatsoever to you under these T&Cs.

4. Use of Intellectual Property.

Unsecured Transmission of User Content. You understand that the operation of the Site and Platform, including User Content, is fully encrypted from the point of entry in the AVORD LTD Platform to the point that data is at rest. AVORD LTD’s hosting partners to operate and maintain the Site and Content. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of User Content. AVORD LTD will have no liability to you for any unauthorised access or use of any of User Content, or any corruption, deletion, destruction or loss of any of User Content.

Feedback. You may submit ideas, suggestions, or comments (“Feedback”) regarding the Site and Content or AVORD LTD’s business, products or services. By submitting any Feedback, you acknowledge and agree that (a) your Feedback is provided by you voluntarily and AVORD LTD may, without any obligations or limitation, use and exploit such Feedback in any manner and for any purpose, (b) you will not seek and are not entitled to any money or other form of compensation, consideration, or attribution with respect to your Feedback regardless of whether AVORD LTD considered or used your Feedback in any manner, and (c) your Feedback is not the confidential or proprietary information of you or any third party.

Your Representations and Warranties. You represent and warrant to AVORD LTD that your activity on the Site and AVORD LTD’s possession and use of User Content as contemplated in these T&Cs do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does User Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing.

5. RELEASE

Section 5 discusses your agreement not to hold us responsible for any dispute you may have with another User, as detailed below.

In addition to the recognition that AVORD is not a party to any contract between Users, you hereby release AVORD, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Tester Services provided to Client by a Tester and requests for refunds based upon disputes. 

This release will not apply to a claim that AVORD failed to meet our obligations under the Terms of Service.

    6.  MAINTENANCE FEE

User Accounts that have not logged in for six months will incur a maintenance fee of up to £10.00 GBP per month until either the account is terminated or reactivated for storage, bandwidth, support and management costs of providing hosting of the user’s profile, portfolio storage, listing in directories, provision of the platform as a Service, file storage and message storage. 

    7.  MEMBERSHIP

Generally. Clients (You) agree to pay either a monthly or an annual fee recurring for the access to the AVORD Platform as a Service and its benefits associated. 

Member agrees to abide by other terms relating to the payment of fees. Member agrees to abide by and shall have all applicable rights and obligations as set forth in within these terms. 

Late Fees. If a Client’s payment of its monthly or an annual membership dues is not fully paid within sixty (60) days of its invoice due date, a late fee representing one percent (3%) of the delinquent membership dues shall be added to such membership dues, compounding daily, commencing on the last day of each month following invoice date. 

    8.  ENGAGEMENT OF TESTERS DIRECT/INDIRECT

In respect of any third party introduced via the AVORD’s platform, we shall be entitled to charge the Client, and issue an invoice for payment of, a Transfer Fee at any time following occurrence of any of the following events:

(a) where following an Introduction the Client does not engage a third party via the Platform for an Assignment and at any time within a period of 12 months from the date of our Introduction whether directly (or indirectly via another employment business) (i) the Client engages such third party or (ii) the Clients third party engages such third party as a result of the introduction or referral; or 

(b) where following an Introduction the Client take the supply of a third party for an Assignment and subsequently within the later of the relevant period as set out in the Regulations whether directly (or indirectly via another employment business): (i) the Client engages such third party; or (ii) the Client third party engages such third party as a result the introduction or referral.

If the client engages a third party (whether directly or indirectly via a third party) the Client shall pay the Supplier a Transfer Fee in accordance with section 8. or shall notify us of your intention to engage the third party and as an alternative to paying a Transfer Fee you shall continue with the hire of the third party for a further period of 12 months on and subject to the terms of this Agreement and the last Assignment. Upon expiry of the agreement you may engage the third party without obligation to pay a Transfer Fee. In the event that the Supplier is prevented from supplying third parties for the Assignment in circumstances beyond our control, we shall not be at fault and a Transfer Fee shall be payable.

If you utilise the services of Suppliers third parties outside of the agreed terms and conditions as set out within this document and section 8, the Supplier maintains the right to charge a fee of 10%  calculated on an annualised basis of either the Agreed Rate under the last Assignment or the highest rate we indicated to you at the time of Introduction. 

     9.  PROHIBITED SITE USES

Section 9 explains uses of the Site that are not allowed, as detailed below:

You may not use, or encourage, promote, facilitate, instructor induce others to use, the Site or Site Services for any activities that violate any law, statute, ordinance or regulation; for any other illegal or fraudulent purpose or any purpose that is harmful to others; or to transmit, store, display, distribute or otherwise make available content that is illegal, fraudulent or harmful to others.

9.1 EXAMPLES OF PROHIBITED USES OF THE SITE

The following are examples of uses that are prohibited on the Site or when using the Site Services:

• Seeking, offering, promoting, or endorsing and services, content, or activities that:
• are defamatory, illegal, profane, vulgar, threatening, unlawfully discriminatory, illegal, pornographic, obscene, or sexually explicit in nature;
• would violate the intellectual property rights, such as and including copyrights, of another person, entity, service, product, or website;
• would violate (a) AVORD’s Terms of Service, (b) the terms of service of another website or any similar contractual obligations, or (c) the academic policies of any educational institution;
• regard the creation, publication, distribution of “fake news”, “hoax news” or similar false content purposefully intended to mislead readers for financial or other gain;
• regard or promote in any way any escort services, prostitution, or sexual acts; or
• are harassing toward another person based on the person’s inclusion in a protected class as defined by applicable law;
• Fraudulent or misleading uses or content, including:
• Fraudulently billing or attempting to fraudulently bill any Client, including by (i) falsifying or manipulating or attempting to falsify or manipulate the hours, keystrokes, or mouse clicks recorded in the AVORD App, (ii) reporting, recording, or otherwise billing Clients for time that was not actually worked, or (iii) reporting, recording, or otherwise billing hours worked by another person as hours worked by you in a way that is misleading or false;
• Misrepresenting your experience, skills, or information, including by representing another person’s profile, or parts of another person’s profile, as your own;
• Using a profile photo that misrepresents your identity or represents you as someone else;
• Impersonating any person or entity, including, but not limited to, an AVORD representative, forum leader, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
• Falsely stating or implying a relationship with another User, including an Supplier continuing to use a Tester’s profile or information after the Tester no longer works with the Supplier;
• Falsely attributing statements to any AVORD representative, forum leader, guide or host;
• Falsely stating or implying a relationship with AVORD or with another company with whom you do not have a relationship;
• Allowing another person to use your account, which is misleading to other Users; or
• Falsely stating that one Tester will perform the work on a job when another will in fact perform the work, including submitting a proposal on behalf of a Tester that is unable, unwilling, or unavailable to do the work;
• Expressing an unlawful preference in a job post or proposal or otherwise unlawfully discriminating on a protected basis;
• Posting identifying information concerning another person;
• Spamming other Users with proposals or invitations or posting the same job multiple times so that more than one version remains active at a given time;
• Making or demanding bribes or other payments without the intention of providing services in exchange for the payment;
• Requesting or demanding free services, including requesting Testers to submit work as part of the proposal process for very little or no money or posting contests in which Testers submit work with no or very little pay, and only the winning submission is paid the full amount;
• Requesting a fee before allowing a User to submit a proposal;
• Attempting to or actually manipulating or misusing the feedback system, including by:
• withholding payment or Work Product or engaging in any other conduct for the purpose of obtaining positive feedback from another User;
• attempting to coerce another User by threatening to give negative feedback;
• expressing views unrelated to the work, such as political, religious, or social commentary, in the feedback system; or
• offering services for the sole purpose of obtaining positive feedback of any kind;
• Duplicating or sharing accounts;
• Selling, trading, or giving an account to another person without AVORD’s consent;
• Sharing or soliciting contact information, but not limited to such activities as email, telephone number, Skype ID, ICQ, AIM, MSN Messenger, LinkedIn,WeChat, SnapChat, GTalk, GChat or Yahoo, in a profile or job post;
• Directly or indirectly, advertising or promoting another website, product, or service or soliciting other Users for other websites, products, or services, including advertising on AVORD to recruit Testers and/or Clients to join a Supplier or another website or company;
• Conduct or actions that could jeopardize the integrity of or circumvent the Site, Site Services or AVORD’s proprietary information, including
• Interfering or attempting to interfere with the proper operation of the Site or Site Services or any activities conducted on the Site;
• Bypassing any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;
• Attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site;
• Using any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission;
• Attempting to or interfering with or compromising the system integrity or security or deciphering any transmissions to or from the servers running the Site;
• Collecting or harvesting any personally identifiable information, including Account names, from the Site;
• Attempting to or imposing an unreasonable or disproportionately large load (as determined in AVORD’s sole discretion) on the Site’s infrastructure; Introducing any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site that is designed to or known to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any software, firmware, hardware, computer system, or network of AVORD or any third party;
• Accessing or attempting to access the Site or Site Services by any means or technology other than the interface provided; or
• Framing or linking to the Site or Site Services except as permitted in writing by AVORD
• Attempting to or actually reverse engineering, modifying, adapting, translating, preparing derivative works from, decompiling, interfering with the operation of, or otherwise attempting to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law or AVORD; or

Accessing or using the Site or Site Services to build a similar service or application, identify or solicit AVORD Users, or publish any performance or any benchmark test or analysis relating to the Site.

Termination of Access Due to Violations. AVORD LTD may, in its sole discretion and without prior notice, terminate your access to the Site and/or block your future access to the Site if we determine that you have violated these T&Cs or other agreements or guidelines which may be associated with your use of the Site. You also agree that any violation by you of these T&Cs will cause irreparable harm to AVORD LTD, for which monetary damages would be inadequate, and you consent to AVORD LTD obtaining any injunctive or equitable relief that AVORD LTD deems necessary or appropriate in such circumstances, without limiting AVORD LTD’s other available remedies. Further, AVORD LTD may, in its sole discretion and without prior notice, terminate your access to the Site, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) discontinuance or material modification of the Site or any service offered on or through the Site, or (3) unexpected technical issues or problems.

    10.  NO WARRANTIES AND DISCLAIMER BY AVORD LTD.

THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL ERRORS AND DEFECTS AND WITHOUT ANY WARRANTIES OF ANY KIND, AND AVORD LTD EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. YOU ACKNOWLEDGE THAT AVORD LTD DOES NOT WARRANT THAT YOUR ACCESS OR USE OR BOTH OF THE SITE AND CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND AVORD LTD DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE AND CONTENT. NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM AVORD LTD OR THROUGH THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE T&Cs AND YOU SHOULD NOT RELY ON THE SITE AND THE GENERAL CONTENT ALONE AS THE BASIS FOR YOUR BUSINESS DECISIONS.

AVORD LTD reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, for any reason; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

    11.  LIMITED LIABILITY.

Exclusion of Damages and Limitation of Liability. AVORD LTD may charge fees for you to access and use the Site and Content pursuant to these T&Cs. The Site does not conduct commercial transactions; the Content is comprised of general information and describes some of the basic elements of the AVORD LTD service. As consideration for your access and use of the Site and Content pursuant to these T&Cs, you further agree that AVORD LTD WILL NOT BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR THE LIKE) ARISING OUT OF OR RELATING TO THIS T&Cs, INCLUDING WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE THE SITE, PLATFORM, MATCHING SERVICES, CONTENT, PROPRIETARY INFORMATION, OR ANY INTERRUPTION OR DISRUPTION OF SUCH USE, EVEN IF AVORD LTD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE). THE AGGREGATE LIABILITY OF AVORD LTD WITH REGARD TO THIS T&Cs WILL IN NO EVENT EXCEED GBP £1.00.

Jurisdictional Limitations. Some Countries and other jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE JURISDICTIONS, AVORD LTD’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

Dispute Resolution; Jury Waiver. THESE T&Cs ARE MADE UNDER, AND WILL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF UNITED KINGDOM APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. In any action between or among any of the parties, whether arising out of these T&Cs or otherwise, each of the parties irrevocably and unconditionally (a) consents and submits to the exclusive jurisdiction and venue of the courts located in in the United Kingdom; and (b) WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY.

No Reliance; Due Inquiry. You affirm and agree that, given the general and “as-is” nature of the Site and the Content you are not specifically relying on any statements, or materials contained on the Site or in the Content to make any business decisions. Resource allocation and staffing matters are inherent complex and unique. Should you choose to continue your inquiry into whether AVORD LTD’s service is right for you, you will have an opportunity to make additional inquiry of AVORD LTD and you should make an independent investigation of the suitability of using AVORD LTD for your particular business needs. Only after such appropriate due diligence, thorough review of AVORD LTD’s service offering including the terms and conditions of AVORD LTD’s service agreements, and a through screening of any freelancer AVORD LTD proposes to you should you come to any conclusions or make any decisions about whether AVORD LTD, or any Security tester proposed by AVORD LTD is right for you and your specific project needs or requirements.

Miscellaneous. These T&Cs, and any additions, changes, edits and/or modifications made thereto by AVORD LTD, together with AVORD LTD’s Privacy Policy, constitute the entire agreement between the parties with respect to the portions of the Site available without an account ID or password. Access to certain password-restricted portions of the Site, and any subsequent procurement and use of AVORD LTD ‘s services is subject to different, additional agreement(s).

AVORD LTD does not conduct business with or seek any commercial transactions with: (x) any entity, citizen or resident of a geographic area in which access to or use of the AVORD LTD services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (y) an entity, citizen or resident of, or located in, a geographic area that is subject to United Kingdom. or other sovereign country sanctions or embargoes; or (z) an individual. By accessing the Site and the Content you represent and warrant that you are not a Prohibited Counterparty and you will not seek or (attempt to) obtain services from or a commercial relationship with AVORD LTD.

These T&Cs and any additions, changes, edits and/or modifications made thereto by AVORD LTD cannot be amended except by AVORD LTD as set forth above. The failure of AVORD LTD to exercise or enforce any right or provision of these T&Cs will not be a waiver of that right. Any notices to AVORD LTD in connection with this agreement will be made by email transmitted to support@AVORD.com provided that you also send a copy of such notice via nationally recognised carrier to AVORD LTD, Stadbury, Abbey Road, Shepperton, Surrey, TW17 9JA, Attn: Legal Department. In the event that any provision of these T&Cs will be determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted, that specific provision will be eliminated so that these T&Cs will otherwise remain in full force and effect and enforceable

SCHEDULE 2

[CLIENT] FRAMEWORK AGREEMENT FOR SERVICES

Effective October 2019

PLEASE READ THE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.

THIS AGREEMENT is made      

BETWEEN

1. [Client Name] company number [Registered Number], whose registered office is at [Client Name][Address] (client Name[Client Name]); and

1. AVORD LTD company number 10992834, whose registered office is at Stadbury, Abbey Rd, Shepperton, TW17 9JA (Supplier), each a Party and together the Parties.

Background

1. The Supplier provides the Services.

1. [Client Name] wishes to obtain and the Supplier wishes to provide the Services on the terms set out in this Agreement.

The Parties agree as follows: 

1. Interpretation

In this Agreement or any Statement of Work the following definitions apply:

2. Term

2.1 This Agreement shall commence on the date both parties have signed it and shall, unless terminated earlier by either Party pursuant to the terms of this Agreement, continue for one (1) year or until the Services provided under any Statement of Work have been performed in full, whichever is the later, unless terminated by [Client Name] giving the Supplier not less than three (3) months’ written notice (Initial Term). 

2.2 The parties may agree to extend the term of this Agreement for a period of 12 months beyond the Initial Term (a Further Term) by written agreement before the expiry of the Initial Term.

3. Statements of Work

3.1 Each Statement of Work shall be completed by [Client Name] and accepted by the Supplier. The security tester will then provide a proposed schedule of work in days and transmit to [Client Name] to review and accept.

3.2 Once a Statement of Work has been agreed and signed in accordance with Clause 3.1, no amendment shall be made to it except in accordance with Clause 4 (Changes and Variations).

3.3 Each Statement of Work shall be part of this Agreement and shall not form a separate contract to it. 

4. Changes and Variations

4.1 If either Party wishes to make any addition, modification or change to this Agreement (including to the Services (Change), either Party can do so by submitting a written request to the other Party (Change Request).

4.2 A Change Request should outline all the consequential changes which shall be required to:

• Services / Service Levels;
• the costs of the Services;
• the timetable to provide the Services; and
• any other terms and conditions of this Agreement.

4.3 The Parties shall use all reasonable endeavours to mutually agree the Change Request.

4.4 If a Change Request cannot be agreed, the dispute shall be referred to AVORD for arbitration.

4.5Neither Party shall unreasonably withhold its agreement to any Change Request.

4.6 No Change Request shall be binding on the Parties unless:

4.6.1 the requirements of this Clause have been satisfied; and

4.6.2 a Change Request Form is agreed and signed by both Parties.

4.7 The Parties shall, until such time as a Change Request is formally agreed to by both Parties, continue to perform their respective obligations without taking account of the Change Request.

4.8 On signature of a Change Request Form, this Agreement shall be deemed amended in accordance with the provisions of such Change Request Form.

4.9 Any discussions which may take place between the Parties in connection with a Change Request or recommendation before the signature of the Change Request shall be without prejudice to the rights of either Party.

5. Prices and Payments

5.1 The price to be paid by [Client Name] to the Supplier for the Services shall be the Statement of Work Price plus supplier service charges.

5.2 The Statement of Work Price shall be inclusive of all fees, and insurance costs, but exclusive of any applicable VAT which will be paid by [Client Name] at the relevant rate. 

5.3 Unless agreed by the Parties in any Statement of Work, out of pocket expenses shall not be reimbursed to the Supplier. Where it is agreed that the Supplier’s out of pocket expenses shall be reimbursed, such expenses must be properly and reasonably incurred by the Supplier in accordance with the terms of [Client Name]’s Expenses Policy. [Client Name] may agree, on a case by case basis, to pay the reasonable travel costs (in accordance with [Client Name]’s Expenses Policy) of testers/suppliers with a specific skillset that have to travel to the main location where the Services are to be performed in accordance with the Statement of Work.

5.4 The Supplier shall be entitled to invoice [Client Name] monthly in arrears for Services undertaken in the previous month.

5.5 The Supplier’s invoices shall include a description of the Services provided, a valid [Client Name] purchase order number and an itemised statement where required (particularly for any agreed expenses along with supporting receipts) and any other supporting information which is reasonably requested by [Client Name] in order to verify the accuracy of the invoice.

5.6 [Client Name] shall be entitled to withhold payment claimed by the Supplier where invoices are not accompanied by supporting receipts and/or any other supporting information which is reasonably requested by [Client Name] in order to verify the accuracy of the invoice.

5.7 Subject to Clause 5.9, [Client Name] shall pay or procure the payment of all invoices within thirty (30) days of receipt provided that, if in the reasonable opinion of [Client Name] any invoice is incorrect or does not comply with Clause 5.5, [Client Name] shall notify the Supplier and payment shall not be due to the Supplier for the price set out in such invoice unless and until a correct invoice has been submitted to [Client Name] and then payment shall be due within thirty (30) days of receipt of such corrected invoice. 

5.8 If [Client Name] fails to pay any amount properly due and payable by it under a Statement of Work, the Supplier shall have the right to charge interest on the overdue amount at the rate of two per cent (2%) per annum above the base rate of the Bank of England for the time being, accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgment. This Clause shall not apply to payments that [Client Name] disputes in good faith pursuant to Clause 5.9. 

5.9 If any sums are due to [Client Name] from the Supplier (whether under this Agreement, or any other agreement), then [Client Name] shall, without limiting its other rights or remedies, be entitled to exercise the right to set-off such sums against any payments due to the Supplier from [Client Name] under or in relation to this Agreement, or any other agreement. 

5.10 If [Client Name] is required, pursuant to any applicable present or future law, rule or regulation of any competent governmental or other administrative body, to make any withholding in respect of tax or otherwise from any amount or amounts payable to the Supplier pursuant to this Agreement [Client Name] shall pay any amounts net of such withholding.

5.11 Invoices should be emailed to [Clients accounts email address]. 

A copy of the invoice should also be emailed to the [Client Name] Key Personnel.

For information, the postal address is Group Accounts Payable

[Client Name] [Client Address].

5.12 The Supplier must submit invoices to [Client Name] for payment no later than 12 months following completion and/or delivery of the Services.

6. Supplier’s Obligations

6.1 The Supplier warrants, represents and undertakes that:

6.1.1 the Services shall be performed:

in accordance with the provisions of this Agreement and any Service Levels;

• by appropriately trained, experienced and qualified personnel;
• with the highest level of skill and care and diligence and in accordance with best practice in the Supplier’s industry, profession or trade;
• in compliance with any and all laws, statutes, regulations, codes of practice and guidance applicable to the Services; and
• in compliance with the Mandatory Policies as may be amended from time to time, copies of which are available on request,

6.1.2 the Services and the Deliverables will conform in all respects with the Statement of Work and that the Services and the Deliverables shall be fit for any purpose expressly or implicitly made known to the Supplier by [Client Name];

6.1.3 the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of the best quality and are free from defects in workmanship, installation and design;

6.1.4 co-operate with [Client Name] in all matters relating to the Services, and comply with [Client Name]’s instructions; and

6.1.5 comply with any additional obligations imposed on it as set out in a Statement of Work.

6.2 The Supplier will ensure that:

6.2.1 it has in place adequate measures to prevent breaches of any Applicable Law; and

6.2.2 does not engage with parties involved in criminal activity.

6.3 Without prejudice to the generality of Clause 6.2, in performing its obligations under this Agreement, the Supplier shall comply with:

6.3.1 the Mandatory Policies; and

6.3.2 Supplier will inform [Client Name] as soon as it becomes aware of any changes to the Applicable Law relevant to the Supplier and/or the Services.

6.4 The Supplier will perform the Services and provide the Deliverables in accordance with the timescales agreed under any Statement of Work and in particular any milestone dates which have been agreed therein.  If no timescales or milestone dates have been set out then the Supplier shall perform the Services and provide the Deliverables, in a timely manner bearing in mind the nature of the Services and [Client Name]’s requirements. 

6.5 In the event of the Supplier’s breach of its obligations under this Clause 6, [Client Name] shall at its option and, without prejudice to any other right or remedy to which it may be entitled, have one or more of the following rights to:

6.5.1 require the Supplier to remedy such breach by re-performing any non-conforming Services at no additional cost to [Client Name] within seven (7) Business Days;

6.5.2 terminate this Agreement or any part thereof with immediate effect by giving written notice to the Supplier;

6.5.3 refuse to accept any subsequent performance of the Services which the Supplier attempts to make;

6.5.4 recover from the Supplier any costs incurred by [Client Name] in obtaining substitute services from a third party;

6.5.5 where [Client Name] has paid in advance for Services that have not been provided by the Supplier, to have such sums refunded by the Supplier; and/or

6.5.6 claim damages for any additional costs, loss or expenses incurred by [Client Name] which are attributable to the Supplier’s failure to meet such dates.

6.6 The provisions of this Agreement and any applicable Statement of Work will apply to any substituted or remedial services provided by the Supplier.

7. [Client Name]’s Obligations

7.1 Access and Information. [Client Name] shall provide the Supplier and the Key Personnel with access at all reasonable times to the premises and staff of [Client Name] as reasonably required andto the extent such access is necessary in connection with the performance of the Services. The Supplier will also be given access to data and information as it may reasonably require in order to perform the Services.  In addition, [Client Name] agrees to keep the Supplier promptly informed of any material developments or proposals in relation to the business or operations of [Client Name] where these may have an effect upon the Services being provided. 

7.2 [Client Name] agrees that it will perform the tasks, furnish the personnel, provide the information and resources and assume any other responsibilities which have been agreed between the Parties in the Statement of Work.

8. Engagement of Third Party Direct/Indirect

In respect of any third party introduced via the Supplier platform, we shall be entitled to charge the Client, and issue an invoice for payment of, a Transfer Fee at any time following occurrence of any of the following events:

(a) where following an Introduction the Client does not engage a third party via the Platform for an Assignment and at any time within a period of 12 months from the date of our Introduction whether directly (or indirectly via another employment business) (i) the Client engages such third party or (ii) the Clients third party engages such third party as a result of the introduction or referral; or 

(b) where following an Introduction the Client takes the supply of a third party for an Assignment and subsequently within the latter of the relevant period as set out in the Regulations whether directly (or indirectly via another employment business): (i) the Client engages such third party; or (ii) the Client third party engages such third party as a result the introduction or referral.

If the client engages any of the supplier third parties (whether directly or indirectly) the Client shall  pay the Supplier a Transfer Fee in accordance with section 8. The fee will be based on any activity completed by the third party over a 12 month period from initial engagement.

If you utilise the services of the Supplier third parties outside of the agreed terms and conditions as set out within this agreement and section 8, the Supplier maintains the right to charge a fee of 10% calculated on an annualised basis. 

9.Insurance and Limitation of Liability

9.1 During the Term and for a period of twenty four Months thereafter, the Supplier shall maintain the following insurance policies with a reputable insurer and shall provide a confirmation of cover from its broker to [Client Name] on request: 

9.1.1 product liability insurance of not less than £5,000,000 per occurrence and aggregated in the period of insurance;

9.1.2 employer’s liability insurance of not less than £10,000,000 per occurrence; 

9.1.3 public liability insurance of not less than £5,000,000 per occurrence; and

9.1.4 professional indemnity insurance of not less than £5,000,000 per occurrence and aggregated in the period of insurance. 

9.2 The Supplier shall do nothing to invalidate any of the policies maintained in force in accordance with this Clause 8.

9.3 Nothing in this Agreement excludes or limits the liability of the Supplier in respect of:

9.3.1 death or personal injury caused by its negligence (including negligence of its employees, agents or contractors);

9.3.2 any indemnity given in this Agreement;

9.3.3 fraud and/or misrepresentation; or

9.3.4 liability which may not otherwise be limited or excluded under Applicable Law.

9.4 The losses for which the Supplier assumes responsibility and which shall be recoverable by [Client Name] include:

9.4.1 sums paid by [Client Name] to the Supplier pursuant to this Agreement, in respect of any Services not provided in accordance with the terms of this Agreement;

9.4.2 wasted expenditure;

9.4.3 additional costs of procuring and implementing replacements for, or alternatives to, the Services, including consultancy costs, additional costs of management time and other personnel costs and costs of equipment and materials;

9.4.4 losses incurred by [Client Name] arising out of or in connection with any claim, demand, fine, penalty, action, investigation or proceeding by any third party (including any subcontractor, Supplier personnel, regulator or customer of [Client Name]) against [Client Name] caused by the act or omission of the Supplier; and

9.4.5 anticipated savings.

9.5 The rights of [Client Name] under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by the common law.

10. Confidentiality

1. 10.1Each Party acknowledges and agrees that the Confidential Information is confidential information.
2. 10.2 The Party to this Agreement who receives the Confidential Information (Receiving Party) from the other Party (Disclosing Party) undertakes:

10.2.1 that its (and its subcontractors’ and agents’) employees, directors and servants will keep the Confidential Information confidential;

10.2.2 to effect and maintain adequate security measures to safeguard the Confidential Information from unauthorised access, use and misappropriation; and

10.2.3 not to use at any time any Confidential Information or any information concerning business or interests of the Disclosing Party or any of its customers, subsidiaries or associated companies other than for the purposes of providing or receiving the Services and as otherwise permitted in this Clause 10.

10.3 Except to the extent that this Agreement may otherwise provide, all items and information supplied by the Disclosing Party to the Receiving Party shall remain the property of the Disclosing Party.

10.4 Each Party agrees that it shall not permit the duplication, use or disclosure of any Confidential Information to any person unless such duplication, use or disclosure is specifically authorised in writing by the other Party except:

10.4.1 those employees, agents or representatives of the Receiving Party who need to have  such information for the performance of their obligations under this Agreement;

10.4.2 the Receiving Party’s auditors, insurers, legal advisers and any other persons or bodies having a legal right or duty to have access to or knowledge of the Confidential Information in connection with the business of the Receiving Party; and

10.4.3 where the Receiving Party is ordered by a court of competent jurisdiction to do so or there is a statutory obligation to do so, provided that the Receiving Party will promptly notify the Disclosing Party in writing of such disclosure and, where reasonably possible, prior to such disclosure.

10.5 The Receiving Party undertakes to ensure that all persons and bodies mentioned in Clause 10.4 above are made aware, prior to the disclosure of the Confidential Information, of the confidential nature thereof, and that they owe a duty of confidence to the Disclosing Party in accordance with the terms of this Agreement.

10.6 The provisions of Clauses 10.2 and 10.4 will not apply to any portion of the Confidential Information which the Receiving Party can demonstrate is:

10.6.1 at the time of disclosure is generally known by the public through no default of the Receiving Party;

10.6.2 independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information;

10.6.3 previously known to the Receiving Party;

10.6.4 acquired by the Receiving Party from a third party which was not under an obligation to the Disclosing Party not to disclose such information; or

10.6.5 disclosed by the Disclosing Party to a third party without restriction.

10.7 Neither Party shall make any announcement or otherwise publicise the existence of or disclose to any person the terms of this Agreement or Statement of Work without the prior written consent of the other Party.

11. IPR Indemnity

11.1 The Supplier shall keep [Client Name] indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by [Client Name] as a result of or in connection with any claim brought against [Client Name] for actual or alleged infringement of a third party’s IPR arising out of, or in connection with, the receipt, use or supply of the Services and/or the Deliverables (IPR Claim). 

11.2 If the Supplier is required to indemnify [Client Name] under this Clause 11, [Client Name] shall:

11.2.1 notify the Supplier in writing of any IPR Claim;

11.2.2 allow the Supplier, at its own cost, to conduct all negotiations and proceedings and to settle the IPR Claim, always provided that the Supplier shall obtain [Client Name]’s prior approval of any settlement terms, such approval not to be unreasonably withheld;

11.2.3 provide the Supplier with such reasonable assistance regarding the IPR Claim as is required by the Supplier, subject to reimbursement by the Supplier of [Client Name]’s costs so incurred; and

11.2.4 not, without prior consultation with the Supplier, make any admission relating to the IPR Claim or attempt to settle it, provided that the Supplier considers and defends any IPR Claim diligently, using competent counsel and in such a way as not to bring the reputation of [Client Name] into disrepute.

12. IPR

12.1 The Supplier warrants that:

12.1.1 in respect of the Services, as at the date of their delivery, it will have full and unrestricted rights to transfer them to [Client Name]; [and]

12.1.2 in respect of the Deliverables, it has full clear and unencumbered title to them;

12.1.3 the receipt and use of the Services and the Deliverables by [Client Name] shall not infringe the rights, including any IPR, of any third party.

12.2 The Supplier assigns to [Client Name], with full title guarantee and free from all third party rights, all IPR in the Services and all Deliverables.

12.3 The Supplier shall obtain waivers of all moral rights in the Deliverables, to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.

12.4 The Supplier shall, promptly at [Client Name]’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as [Client Name] may from time to time require for the purpose of securing for [Client Name] the full benefit of this Agreement, including all right, title and interest in and to the IPR assigned to [Client Name] in accordance with this Clause 12.

12.5 All [Client Name]’s Materials are the exclusive property of [Client Name] and [Client Name] and its licensors shall retain ownership of all IPR in [Client Name]’s Materials.

13. Personnel 

13.1 If agreed in the Statement of Work, each Party shall appoint Key Personnel who shall be responsible for the matters allocated to such Key Personnel in that Statement of Work. The Key Personnel shall have the authority to act on behalf of their respective Party on the matters for which they are expressed to be responsible.

13.2 The Supplier shall not remove or replace any of its Key Personnel unless:

13.2.1 requested to do so by [Client Name];

13.2.2 the person is on long-term sick leave;

13.2.3 the element of the Services in respect of which the individual was engaged has been completed to [Client Name]’s satisfaction;

13.2.4 the person resigns from their employment with the Supplier; 

13.2.5 [Client Name] has requested the removal or replacement of that person in accordance with Clause 13.5 below; or

13.2.6 the Supplier obtains the prior written consent of [Client Name].

13.3 The Supplier shall consult with [Client Name] before appointing replacements for any of the Key Personnel. Any replacement should have equal or similar skills. [Client Name] shall be entitled to interview any such person and may object to any such proposed appointment, if in its reasonable opinion, it considers the proposed replacement to be unsuitable for any reason.

13.4 In order to ensure that the Services meet the standards set out in this Agreement and in particular Clause 6.2, the Supplier, at its own cost and expense shall ensure that all of its personnel:

13.4.1 are appropriately qualified, briefed, inducted and experienced, to any level reasonably specified by [Client Name], and in any event to a level appropriate to perform the Services and undertake their tasks prior to being involved in the provision of the Services;

13.4.2 use professional skill and care in the provision of the Services, which will be supplied in a professional, timely and competent manner and fully monitored, managed and supervised by the Supplier at all times; 

13.4.3 are employed or engaged in accordance with all material rules, regulations and laws, including in particular the Immigration, Asylum and Nationality Act 2006 and all rules, procedures, requirements, regulations and laws concerning health and safety, as amended, consolidated or re-enacted from time to time and the Supplier undertakes to obtain evidence that all of its personnel have the right to work in the UK;

13.4.4 shall have good command of the English language in order to fulfil their role and provide the Services to [Client Name];

13.4.5 whilst present on any of [Client Name]’s premises, shall carry out their duties and behave in an orderly and appropriate manner, having regard to the nature of their duties and the business of [Client Name]; and

13.4.6 are provided with such training and information as is appropriate and necessary to perform the Services.

13.5 The Supplier shall immediately remove and replace any member of the Key Personnel from the provision of the Services or from any of [Client Name]’s sites at the reasonable request of [Client Name]. Any removal shall be taken at the expense of the Supplier and shall not affect the Supplier’s obligations to provide the Services in compliance with the terms of this Agreement. The Supplier shall promptly replace such Key Personnel with a suitably qualified replacement.

13.6 During the provision of the Services, and for a period of six (6) months following completion or termination of the provision of the Services, neither Party will either directly or indirectly solicit, employ or engage, or attempt to solicit, employ or engage any personnel of the other Party who within six months of such action has been involved directly with the Services without the prior written consent of the other Party. This will not restrict either Party from employing personnel who apply unsolicited in response to a bona fide publication, general advertisement or recruitment campaign.

14. TUPE

14.1 Both Parties agree that none of their personnel is affected by this Agreement and that accordingly TUPE does not apply.

14.2 Notwithstanding the provisions of Clause 13.1 if, upon termination of this Agreement, any of the Supplier’s personnel claims that his contract of employment has been transferred to [Client Name], the Supplier shall be responsible for dealing with the employee including offering the relevant employee alternative employment with the Supplier and shall indemnify [Client Name] for all claims, costs, expenses or liabilities whatsoever and howsoever arising incurred or suffered by [Client Name] in relation to the claims of the Supplier including without limitation all legal expenses and other professional fees (together with any VAT on those fees and expenses) in relation to:

14.2.1 any claim made at any time by any of the Supplier’s personnel who claims to have become an employee of or have rights against [Client Name] by virtue of TUPE;

14.2.2 the termination by the Supplier of the employment of any of the Supplier’s employees; and

14.2.3 anything done or omitted to be done in respect of any relevant employee which is deemed to have been done by [Client Name] by virtue of TUPE provided that such costs, claims, expenses and liabilities are not payable if the employee claim arises out of any act or omission of [Client Name].

15. Modern Slavery Act

15.1. The Supplier undertakes, warrants and represents that it:

15.1.1 has not, nor any of its officers, employees, agents or sub-contractors has committed an offence under the Modern Slavery Act 2015 (MSA Offence);

15.1.2 has not been notified that it is subject to an investigation relating to and alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or

15.1.3 is not aware of any circumstances within its supply chains that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;

15.1.4 shall comply with the Modern Slavery Act 2015; and

15.1.5 shall notify [Client Name]  immediately in writing if it becomes aware or has reason to believe that any breach of this Clause 14 has occurred.

15.2 Any breach of this Clause 14 by the Supplier shall be deemed a material breach of the Agreement.

16. Termination

16.1 Notwithstanding Clause 2, without affecting any other right or remedy available to it, [Client Name] may give written notice to the Supplier to terminate this Agreement or any part of with immediate effect if: 

16.1.1 the Supplier commits a material breach, or a series of persistent minor breaches which taken together amount to a material breach, of this Agreement and, if such breach is capable of remedy, fails to remedy such breach within thirty (30) days of being notified of the breach; 

16.1.2 the Supplier suffers or undergoes an Event of Insolvency; or

16.1.3 the Supplier fails to meet the Service Levels set out in this Agreement for two or more consecutive months.

16.1.4 Where this Agreement is terminated due to the material breach of Avord, or where Avord undergoes an Event of Insolvency or as otherwise provided under this Agreement, the Customer will be entitled to a pro rata refund of any unused fees paid hereunder.

16.2 Without payment of compensation or other damages caused to the other Party solely by such termination, the Supplier may give written notice to [Client Name] to terminate this Agreement or any part of with immediate effect if: 

16.2.1 [Client Name] suffers or undergoes an Event of Insolvency; and/or

16.2.2 any sum owed to the Supplier by [Client Name] remains due and outstanding thirty (30) days after serving [Client Name] thirty (30) days’ written notice of the unpaid sum.

16.3 Notwithstanding anything else to the contrary in this Agreement, [Client Name] shall have the right to terminate this Agreement in whole or in part by giving the other Supplier not less than three (3) months’ written notice whereupon all work shall be discontinued and [Client Name] shall pay to the Supplier for work undertaken up to the point of termination and, where appropriate, any agreed expenses incurred.

17. Consequences of termination

17.1 Subject to the provisions of Clause 16.3, each Party’s further rights and obligations in relation to this Agreement shall cease immediately upon Termination, but such termination does not affect a Party’s accrued rights and obligations as at the date of Termination.

17.2 Notwithstanding the Termination of this Agreement, the provisions of Clauses 9 (Insurance), 10 (Confidentiality), 11 (IPR Indemnity), 12 (IPR), 13 (Personnel) and 16 (Consequences of Termination) and any other provision which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect.

17.3 Following the termination or expiry of this Agreement for whatever reason:

17.3.1 the Supplier shall immediately deliver to [Client Name] all Deliverables whether or not then complete, and return all of [Client Name]’s Materials. If the Supplier fails to do so, then [Client Name] may enter the Supplier’s premises and take possession of them. Until they have been delivered or returned, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement;

17.3.2 the Supplier shall, if so requested by [Client Name], provide all assistance reasonably required by [Client Name] to facilitate the smooth transition of the Services to [Client Name] or any replacement supplier appointed by it.

18. Data Protection

18.1 In providing the Services and its other obligations under this Agreement, the Supplier will, and will procure that any Authorised Sub-Processor will, comply with the Data Protection Legislation and not by its act or omission cause [Client Name] to be in breach of its obligations under the Data Protection Legislation.

18.2 The Supplier shall, and shall procure that any Authorised Sub-Processor shall, keep the Contract Personal Data secret and confidential in accordance with the confidentiality obligations of this Agreement. 

18.3 The parties acknowledge that [Client Name] is the Data Controller of the Contract Personal Data.

18.4 Without prejudice to Clause 18.6, [Client Name] authorises the Supplier to process the Contract Personal Data during the term of this Agreement as a Data Processor and solely for the purpose of providing the Services. Nothing within this Agreement relieves the Supplier of its own direct responsibilities and liabilities under the Data Protection Legislation.

18.5 Without prejudice to the generality of Clause 18.4, the Supplier shall, and shall procure that any Authorised Sub-Processor shall:

18.5.1 process the Contract Personal Data only on the documented instructions from [Client Name], including for the avoidance of doubt the instructions as set out in the Data Processing Details. This Clause shall apply except to the extent that the Supplier is required to process Contract Personal Data otherwise than as instructed by Applicable Law to which the Supplier is subject. In such case, the Supplier shall promptly inform [Client Name] of that legal requirement before processing, unless that Applicable Law also prohibits such information on important grounds of public interest;

18.5.2 (without prejudice to Clause 18.5.1) ensure that Contract Personal Data shall be used solely for the purpose of providing, and to the extent required to provide, the Services;

18.5.3 immediately inform [Client Name] in writing to [Client DPO email address], if, in its opinion, any instruction received in connection with this Agreement infringes any Data Protection Legislation;

18.5.4 ensure that it has in place technical and organisational measures, which [Client Name] reserves the right to review and approve, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing such measures, and in particular from a Data Security Incident including, where appropriate:

• pseudonymising and/or encrypting Personal Data;
• ensuring confidentiality, integrity, availability and resilience of processing systems and services;
• ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident;
• regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it; and
• prior to processing Contract Personal Data that is Special Category Data, agreeing with [Client Name] in writing the minimum standards that shall be adhered to.

18.5.5 ensure that all personnel who are authorised to process Contract Personal Data (including for the avoidance of doubt employees and other staff working for the Supplier or for any Authorised Sub-Processor) have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and ensure that they shall comply with this Clause 18 and, in respect of the processing of Contract Personal Data that is Special Category Data, ensuring that such personnel be appropriately reliable, qualified and trained, and that they shall only be permitted to have access to such data as necessary to perform their roles on a ‘need to know’ basis in relation to the Services;

18.5.6 not cause or permit the processing of any Contract Personal Data outside the UK and/or the European Economic Area (as it is made up from time to time) (EEA), including by way of any transfer, unless the prior written consent of [Client Name] has been obtained;

18.5.7 promptly refer to [Client Name] all requests for exercising Data Subject’s rights under the Data Protection Legislation it receives and provide such information and cooperation and take such action as [Client Name] requests in relation to each request, within the timescales required by [Client Name] and not respond to any requests for exercising Data Subject’s rights under the Data Protection Legislation without [Client Name]’s prior written approval;     

18.5.8 assist [Client Name] in fulfilling its obligations under the Data Protection Legislation, including in relation to:

• responding to requests for exercising Data Subject’s rights under the Data Protection Legislation, including by appropriate technical and organisational measures, insofar as this is possible; and
• providing such information, co-operation and other assistance to [Client Name] as [Client Name] requires (taking into account the nature of processing and the information available to the Supplier) to ensure compliance with [Client Name]’s obligations under Data Protection Legislation, including with respect to: (i) security of processing; (ii) conducting privacy impact assessments (as such term is defined in Data Protection Legislation) of any processing operations and consulting with Supervisory Authorities, Data Subjects and their representatives in respect of the same; (iii) prior consultation with a Supervisory Authority regarding high risk processing; (iv) taking measures to address Data Security Incidents, including, where appropriate, measures to mitigate their possible adverse effects; and (v) documenting any Data Security Incidents (including the facts relating to the Data Security Incidents, their effects and the remedial action and/or notifications to be taken), including (subject in each case to [Client Name]’s prior written authorisation) regarding any notification of any Data Security Incident to the Supervisory Authority and/or communication to any affected Data Subjects;

18.5.9 notify [Client Name] without undue delay to [Client DPO email address], after becoming aware of any Data Security Incident, including:

• the nature of the Data Security Incident;
• the categories and approximate number of Data Subjects and Contract Personal Data records concerned;
• the name and contact details of the data protection officer or other contact point at the Supplier (or the relevant Authorised Sub-Processor) where more information can be obtained;
• any investigations into such Data Security Incident;
• the likely consequences of the Data Security Incident; and
• any measures taken, or proposed to be taken, to address the Data Security Incident and to mitigate its possible adverse effects, in each case taking into account the nature of the processing and the information available to the Supplier, and where and in so far as it is not possible for the Supplier to provide all the relevant information at the sametime, the information shall be provided in phases without undue further delay, but the Supplier (and Authorised Sub-Processors, as applicable) may not delay notification under this Clause 18.5.9 on the basis that an investigation is incomplete or ongoing and it shallprovide [Client Name] with reasons for any such delays, and give [Client Name] regular updates on these matters;

18.5.10 on termination of this Agreement (and sooner at any other time at the written request of [Client Name] provided [Client Name] is acting reasonably and in cases where the same does not frustrate the provision of the Services):

• at the written direction of [Client Name], securely delete all Contract Personal Data or return to [Client Name] all Contract Personal Data;
• (in the event that [Client Name] opts for return under Clause 18.5.10(a) securely delete any existing or remaining copies of the Contract Personal Data; and
• promptly certify (via a director) when the exercise described in Clauses 18.5.10(a) and (b) has been completed.

18.6 The Supplier shall, and will procure that Authorised Sub-Processors shall:

18.6.1 make available to [Client Name] all information necessary and maintain complete and accurate records to demonstrate its compliance with this Agreement, and contribute to and allow for audits, including inspections, conducted by [Client Name] and/or [Client Name]’s designated auditor; and

18.6.2 prepare and maintain an accurate and up to date record of all processing of the Contract Personal Data carried out on behalf of [Client Name], in writing, including in electronic form, including as a minimum: 

• the name and contact details and details of its Data Protection Officer (as relevant);
• the categories of processing carried out on the Contract Personal Data;
• where applicable, details of any transfers of Contract Personal Data outside the UK and/or the EEA, including the identification of the relevantcountry or territory and  the details of the  appropriate safeguards in place in accordance with Data Protection Legislation;
• where possible, a general description of the technical and organisational security measures referred to under Clause 18.5.4; and
• the same information as is described above in Clauses 18.6.2(a) to 18.6.2(d) inclusive in relation to any Authorised Sub-Processor and its processing of the Contract Personal Data, together with the name, contact details and registered office address of the Authorised Sub-Processor (together the Data Record); and

18.6.3 securely upon request provide a copy of the Data Record to [Client Name].

18.7 The Supplier shall not engage or use any third party for the processing of Contract Personal Data or otherwise cause or permit any third party to process Contract Personal Data without the prior written consent of [Client Name].

18.8 If the Supplier appoints an Authorised Sub-Processor pursuant to Clause 18.7, the Supplier will ensure that there is in place a written contract between the Supplier and the Authorised Sub-Processor that specifies the Authorised Sub-Processor’s processing activities and imposes on the Authorised Sub-Processor the same terms as are imposed on the Supplier in this Agreement. 

18.9 The Supplier will remain responsible and fully liable to [Client Name] for all acts and omissions of Authorised Sub-Processors as if they were its own. 

18.10 The Supplier agrees to indemnify and keep indemnified and defend at its own expense [Client Name] against all losses, costs, claims, damages, expenses and other liabilities (including reasonable legal fees) incurred by, awarded against or agreed to be paid by it or them arising from any failure by the Supplier, or its employees or agents, to comply with any of its obligations under this Clause 18. 

19. Dispute Resolution

19.1 If a dispute arises out of or in connection with this Agreement and/or any Statement of Work or the performance, validity or enforceability of this Agreement and/or any Statement of Work (Dispute), then either Party may refer the Dispute to the respective project managers of both Parties for discussion or resolution at the next progress review meeting or at an earlier date if so requested by either Party. 

19.2 If the Dispute is not resolved at the meeting referred to under Clause 19.1, it shall be referred to the Head of Procurement for [Client Name] and the Head of Sales for the Supplier (Senior Management) who shall attempt in good faith to resolve the Dispute.

19.3 If the Senior Management cannot resolve the Dispute within 30 days of it being referred to them, thenthe Parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure referred to at this link: https://www.cedr.com/about_us/modeldocs/?id=21. Unless otherwise agreed between the Parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (Dispute Notice) to the other party to the Dispute, requesting a mediation. A copy of the Dispute Notice should be sent to CEDR. The mediation will start not later than 10 days after the date of the Dispute Notice.

19.4 Recourse to this Dispute Resolution Procedure shall be binding on the Parties as to submission to the mediation but not as to its outcome. Accordingly all negotiations connected with the Dispute shall be conducted in strict confidence and without prejudice to the rights of the Parties in any future legal proceedings.  Except for any Party’s right to seek interlocutory relief in accordance with Clause 19.2, no Party may commence other legal proceedings under the jurisdiction of the courts or any other form of arbitration until fifteen (15) days after the Parties have failed to reach a binding settlement by mediation.

19.5 The Parties shall bear their own legal costs of this Dispute Resolution Procedure.

19.6 Notwithstanding the provisions of this Clause 19, either Party may take proceedings or seek remedies before the courts or any competent authority of any country for interim or interlocutory remedies in relation to any breach of the terms of this Agreement or infringement by the other Party of that Party’s IPR.

20. Force Majeure

20.1 Neither Party shall be liable for any failure to perform or delay in performing, any of its obligations if and to the extent that the failure or delay is caused by a Force Majeure Event, provided that such failure or delay could not have been prevented by reasonable precautions. The time for performance of an obligation which is affected by a Force Majeure Event shall be extended by a period, which reflects the impact of the delay caused by the Force Majeure Event. 

20.2 A Party shall only be entitled to claim relief under Clause 20.1 if it:

20.2.1 promptly gives notice to the other of its wish to claim relief under Clause 20.1 together with full details of the Force Majeure Event and its actual and anticipated impact (and updates such details on a daily basis); 

20.2.2 takes all reasonable steps to minimise the impact of the Force Majeure Event on the performance of its obligations and to resume full performance; and

20.2.3 permits, and uses all reasonable efforts to facilitate, any efforts that the other Party may make to obtain alternative supplies or services.

20.3 If under this Clause 19 the Supplier is relieved from performing any obligation it shall not be entitled to payment for the performance of that obligation for the period during which relief is obtained.

20.4 If the Force Majeure Event prevents, hinders or delays a Party’s performance of its obligations for a continuous period of more than four weeks, the Party not affected by the Force Majeure Event may terminate this Agreement immediately.

21. Audit

21.1 During the term of this Agreement and for a period of six (6) years following completion of the Services, the Supplier shall maintain records relating to the provision of the Services, the performance by the Supplier of its obligations under this Agreement and the calculation of the Service costs and any other charges or expenses levied on [Client Name] in accordance with this Agreement (Records).

21.2 Upon reasonable prior notice, the Supplier shall allow or procure for [Client Name] and/or its authorised representatives, access to any premises where Records are stored for the purpose of auditing and/or taking copies of all Records, provided that [Client Name] shall use reasonable endeavours to minimise disruption to the Supplier’s business in performing such audit. If initial audits of those Records undertaken by [Client Name] indicate a potential problem, [Client Name] reserves the right to undertake such additional audits as are reasonably necessary.

21.3 If, following any audit in accordance with Clause 21.2, [Client Name] can demonstrate that any amounts it has paid to the Supplier exceed the amounts which should have been payable as calculated in accordance with this Agreement, the Supplier shall forthwith pay or allow [Client Name] the amount of such over-payment and in the case of an over-payment exceeding five per cent (5 %) of the amount which should have been payable as determined in the course of any such inspection and audit, the Supplier shall also (without prejudice to any other rights which [Client Name] may have) reimburse [Client Name] for the reasonable costs in conducting such inspection and audit together with interest at the rate of two percent (2%) per annum above the base rate of HSBC bank when prevailing, on such over-payment being charged from the date on which it was paid by [Client Name] until the date on which [Client Name] is reimbursed by the Supplier. 

22. Conflict

If there is a conflict between the terms of this Agreement and any terms of the Supplier, the terms of this Agreement shall prevail.

23. General

23.1 Each right or remedy of either Party under this Agreement is without prejudice to any other right or remedy of that Party whether under this Agreement or not.

23.2 Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name of or otherwise to bind the other in any way.

23. 3 The Supplier shall not assign, transfer, sub-contract, mortgage, charge, declare a trust or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of [Client Name]. [Client Name] may at any time assign, transfer, sub-contract, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.   

23.4 If any provision of this Agreement shall be declared or become unenforceable, invalid or illegal for any reason whatsoever, the other provisions of this Agreement shall remain in full force and effect as if this Agreement had been executed without the inclusion of the unenforceable, invalid or illegal provision. The Parties shall use reasonable endeavours to agree a replacement provision that best meets the commercial and economic results intended under this Agreement. 

23.5 The failure or delay by either Party to exercise any right or remedy that it has or may have under this Agreement or at law shall not operate as a waiver of that right or remedy. The waiver by either Party of a breach or default of any provision of this Agreement by the other Party shall not be construed as a waiver of any subsequent breach of the same or any other provisions.

23.6 This Agreement, its Schedules, any Statements of Work and any Change Requests constitute the entire agreement and understanding of the Parties relating to their subject matter and supersede any previous written or unwritten agreements, undertakings, representations warranties and arrangements of any nature relating to such subject matter. The Supplier irrevocably and unconditionally waives any right it may have to claim damages for, and/or to rescind this Agreement because of breach of any warranty not contained in this Agreement, or any misrepresentation whether or not contained in this Agreement, unless such misrepresentation was made fraudulently.

23.7 The text of any press release or other communication to be published by or in the media concerning the subject matter of this Agreement shall require the prior approval of each Party. 

23.8 Neither Party shall use the name, trademark, logo or branding of the other party in any external publicity material without the other party’s prior written consent. Both Parties may, however, cite the other Party as a Supplier/Client, and the services performed.

23.9 This Agreement may be executed in any number of counterparts each of which, when executed and delivered, shall be an original and all the counterparts together shall constitute one and the same instrument.

23.10 If there is an inconsistency between any of the provisions of this Agreement and the provisions of the Statements of Work, the provisions of this Agreement shall prevail.

23.11 Without prejudice to any other rights or remedies that [Client Name] may have, the Supplier acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement by the Supplier. Accordingly, [Client Name] shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.

24. Notices

24.1 Any notice or other communication required to be given to a Party under or in connection with this Agreement shall be in writing and shall be delivered to the other Party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, or sent by email to the Parties addressed below:

Notices to the Supplier                                               Notices to [Client Name] 

FAO:Brian Harrison                                                    Head of Procurement

Address: AVORD LTD

Stadbury.

Abbey Road, Shepperton

Middlesex TW17 9JA                                                 [Client Name and address]            

Email: Support@avord.com                                       Email: [Client email address]

24.2 To prove service of any notice it shall be sufficient to show that if served personally, it was properly addressed and delivered; if sent by prepaid first-class post, recorded delivery or by commercial courier, it was properly addressed prepaid and posted in the manner set out above; and if sent by e-mail, it was despatched in a legible and complete form to the correct e-mail address without any error message. 

24.3 Any notice or communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by email, on the next Business Day after transmission.

24.4 A person who is not a party to this Agreement (including any employee, officer, agent, representative or subcontractor of either Party) shall not have the right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any provisions of this Agreement.

25. Governing Law and Jurisdiction

25.1 This Agreement and any issues, disputes or claims arising out of or in connection with them (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of England.

26.1 Subject to first complying with Clause 18 all disputes or claims arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the English Courts to which the parties irrevocably submit.

Schedule 3

Expenses Policy – Suppliers

Reimbursement of expenses

Subject to the General Terms, in the event that [Client Name] agrees to pay for expenses separately, [Client Name] will reimburse expenses properly incurred in accordance with this policy. Unless otherwise agreed in writing with [Client Name], any expenses which are not set out in this Policy ([Client Name]’ Expenses Policy- Suppliers) shall not be reimbursed.

Expenses will only be reimbursed if they are:

• submitted within two (2)  months of being incurred;
• supported by relevant documents (for example, VAT receipts, tickets, and credit or debit card slips); and
• where required, authorised in advance of being incurred.

In this Expenses Policy, all references to the Supplier shall be construed as meaning the Supplier and any Key Personnel, employees, agent’s or subcontractors of the Supplier who are engaged in the provision of the Services on the Supplier’s behalf in accordance with the terms of the Agreement.

The Supplier shall be responsible for all expenses, costs or fees associated with the expense of administrating any expenses, fees or costs pursuant to this policy.

Travel expenses

The Supplier should obtain the prior authorisation of the relevant [Client Name] Key Personnel in advance of incurring any travel expenses and the most economic means of travel should be chosen if practicable/possible and existing travel cards or season tickets should be used wherever possible. 

The following travel expenses shall not be reimbursed:

• travel to the main location where the Services are to be performed;
• travel which is mainly for the Supplier’s own purposes; and
• travel which, while undertaken on behalf of [Client Name], is similar or equivalent to travel to the main location where the Services are to be performed.

Trains: The Supplier will only be reimbursed for the cost of standard class travel unless expressly authorised by [Client Name] in advance of any travel.

Taxis: [Client Name] does not expect the Supplier to take a taxi when there is public transport that would not greatly increase the Supplier’s journey time. However, when this is not the case, or the number of staff travelling together make it cost effective to do so, the Supplier may travel by taxi. A receipt should be obtained for submission.

Car:  Where it is cost effective for the Supplier to use its car for business travel, and it has been authorised to do so, the Supplier may claim a mileage allowance on proof of mileage.  Mileage reimbursement shall be as per HMRC approved mileage rates based on engine size and fuel type.

Air or Sea travel:  If the Supplier is required to travel by plane or boat in the course of its duties and it has been authorised to do so, where possible arrangements will be made by [Client Name] on the Supplier’s behalf.Where this is not possible the Supplier will be advised of the documentation that it will need to submit to reclaim expenses.

[Client Name] will not reimburse any penalty fares or parking fines that the Supplier may incur while travelling in connection with the provision of the Services.

Accommodation expenses

If this Supplier is required to stay away overnight in the course of the provision of the Services and it has been authorised to do so, where possible, arrangements will be made by [Client Name] on the Supplier’s behalf.  Where this is not possible the Supplier will be advised of the documentation that it will need to submit to reclaim expenses. 

Lunch

[Client Name] will not reimburse expenses incurred for lunch

Reclaiming Expenses

Where it has been agreed that expenses can be reimbursed then the incurred expenses must be must be invoiced separately as a pass through cost with no additional VAT added. 

For example: if a hotel accommodation claim is for £100 + VAT, then [Client Name] is to be invoiced for £120 (£100 + £20 VAT) and not £120 + VAT

On the submitted expenses invoice the claim should be broken down to show £100 for the hotel room, and £20 for the VAT. 

Reclaimed mileage can be charged in line with the HMRC published rates with no requirement to breakout the VAT element. 

A valid VAT receipt must accompany any expense claim that attracts VAT. If a valid VAT receipt is not submitted the claim will not be reimbursed.

SCHEDULE 4

Terms and Conditions – Consulting Services

THIRD PARTY SUPPLIER’S TERMS OF ENGAGEMENT

Effective October 2019

PLEASE READ THE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.

NOW IT IS HEREBY AGREED as follows:

1.Provision of Services

1.1 AVORD Limited (“The Company”) engages the third party supplier to supply the Services to the Company and its Clients at such times and at such locations as the Company and the third party supplier shall agree from time to time in writing on the terms and conditions set out in this Agreement (“the Services”) and detailed in a scope of work.

1.2 The Company is under no obligation to offer the third party supplier any work and the third party supplier is under no obligation to accept any work that may be offered, save for the work agreed under this contract for services. No party wishes to create or imply any mutuality of obligation between themselves either in the course of or between any performance of the services or during any notice period. The Company is not obliged to pay the third party supplier at any time when no work is available.

1.3 The Company recognise that the third party supplier undertakes the services in the capacity of its professionals who will use their own skills and initiative as to the technical manner in which the services are provided.

1.4 The third party supplier agrees to provide the Services as an independent third party supplier. Nothing in this Agreement is intended to or shall be deemed to create a partnership or a relationship of employer and employee between the Company and the third party supplier or any of its employees, agents or third party suppliers.

2. Termination

2.1 The third party suppliers account or activities may be terminated immediately and without notice by the Company if the third party supplier;

• commits an act of material breach which means but is not limited to acting in such a manner which will damage the business of the Company or its Clients;
• in the opinion of the Company is negligent in the provision of the Services;
• discloses without authorisation the affairs of the company or prospective Clients or Confidential Information to a third party;
• does or fails to do anything which could bring the Company or its Clients into disrepute;
• provides the Company or its Clients with false or misleading information about their ability to perform the Services or their status as a self-employed third party supplier;
• commits an act of fraud or dishonestly;
• interferes with the software or hardware or other computer equipment belonging to the Company or its Clients without prior authorisation; or
• is prevented for any reason from providing the Services;
• in the opinion of the Companies Clients is negligent, unfit or unreliable in the provision of the Services or not provided the Service to a certain standard;
• commits a breach of clause 10.5.

For the avoidance of doubt if terminated under this clause 3.1, the fees referred to in the scope of work will be paid on a pro rata basis up until the Termination Date.

3. Third party supplier’s Obligations

3.1 The third party supplier agrees and undertakes to the Company or its Clients as follows:

• that they will at all times during the period of the Agreement observe and comply with the terms of this Agreement and the scope of work;
• that they shall perform all of its obligations and undertaking pursuant to this Agreement and the scope of work in an efficient and lawful manner;
• that they shall devote such time and attention, skill and ability to the performance of the obligations under this Agreement and the scope of work as is required for the proper performance of such obligations;
• that they will not make any representations or give any warranties on behalf of the Company or its Clients in providing any such of the Services required of the third party supplier under this Agreement and the scope of work;
• that they shall not disclose the terms of existence of this Agreement or any scope of work to any third party outside of this agreement.
• that they shall maintain adequate insurance and professional indemnity cover with an insurer of good repute and shall produce to the Company or its Clients on request evidence of the foregoing including copies of the insurance policy and receipt of premiums in respect of the same; and
• that they will indemnify the Company for any loss or damage arising directly or indirectly to the Company or its Clients out of their failure to comply with the terms of this Agreement or any scope of work including, in particular, but without limitation, those obligations under clause 11 below, and shall satisfy the Company or its Clients when reasonably requested from time to time to do so that it has taken every reasonable precaution to avoid such loss or damage notwithstanding that the Company or its Clients may at any time waive in part or in whole any of its rights under that clause.

3.2 The third party supplier may, with the prior written approval of the Company or its Clients and subject to the following proviso, appoint a suitably qualified and skilled Substitute to perform the services on his behalf, provided that the Substitute shall be required to enter into direct undertakings with the Company or its Clients, including with regard to confidentiality. If the Company or its Clients accept the substitute the third party supplier shall continue to invoice the Company in accordance with clause 5 and shall be responsible for the remuneration of the Substitute.

4. Fee

4.1 The third party supplier shall invoice the Company and payment will be within 30 working days of receipt of a proper VAT (if appropriate) invoice. The third party supplier shall not be entitled to any payment or reimbursement other than as specified herein.

4.2 Where the third party charges a day rate over six hundred and fifty pounds (£650) per day the supplier will be entitled to charge a ten percent (10%) daily service charge.

4.3 The Company shall be entitled to deduct from any and all payments made to the third party supplier under the terms of this Agreement:

• any sums (including any tax payable on sums payable to the third party supplier hereunder for which the Company is held liable) which it is required to deduct from payments to the third party supplier under the legislation in force during the period of this Agreement or at any time after the date of payment;
• the amount of any losses suffered by the Company as a result of the third party suppliers incorrect, defective or incomplete performance of its obligations under this Agreement or any scope of work or the third party supplier’s incorrect, defective or incomplete recording of the extent of the third party supplier’s work for any Client of the Company;
• the amount of or part of any amount due to the Company arising out of loss or damage to the Company in respect of which the Company is entitled to be indemnified in accordance with clause 5.3 of this Agreement; and
• the amount or any part of the amount overpaid to the third party supplier and recoverable from it under clause 5.3 of this Agreement

PROVIDED THAT

• the Company gives to the third party supplier 14 days prior notice in writing of the deductions to be made
• the Company does not make such deduction vexatiously or maliciously; and
• the Company will advise the third party supplier as soon as reasonably practicable in the event that any dispute over payments due to the third party supplier becomes apparent to the Company.
• The third party supplier undertakes to the Company that in the event that it is found that at any time the third party supplier has received an over payment of fees from the Company that the third party supplier will upon demand immediately repay to the Company the amount of such overpayment.
• The Company shall at its sole discretion withhold the payment of all monies due to the third party supplier under this Agreement should the Agreement be terminated at any time for whatsoever reason where the third party supplier has not returned to the Company all records of the third party supplier performance of its obligations hereunder as are required in order to calculate the third party supplier’s fees or not returned any items of the Company’s property held by the third party supplier.

5. Maintenance Fee

Accounts that have not logged in for six months will incur a maintenance fee of up to £10.00 GBP per month until either the account is terminated or reactivated, this isfor storage, bandwidth, support and management costs of providing hosting of the account profile, portfolio storage, listing in directories, provision of the platform as a Service, file storage and message storage. 

6. Limitations of Liability

The Company is not liable, and you (third party) agree not to hold us responsible, for any damages or losses arising out of or in connection with the terms of service, including, but not limited to:

• your use of or your inability to use our Site or Site Services;
• delays or disruptions in our Site or Site Services;
• viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
• glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
• damage to your hardware device from the use of the Site or Site Services;
• the content, actions, or inactions of third parties’ use of the Site or Site Services;
• a suspension or other action taken with respect to your Account;

Your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and your need to modify practices, content, or behaviour or your loss of or inability to do business, as a result of changes to the Terms of Service.

7. Account Data on Closure

Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Site and that that any closure of your Account may involve deletion of any content stored in your Account for which the Company will have no liability whatsoever. The Company, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.

8. Expenses

The Company will not reimburse the third party supplier for expenses incurred in the proper provision of the Services, unless otherwise agreed in writing between the parties prior to the work commencing or the expense occurring and included in the scope of work.

All expenses are agreed on a project by project basis.

9. Tax

The third party supplier hereby covenants with the Company that the third party supplier shall be responsible for all income tax, statutory liabilities, national insurance contributions, VAT or similar liabilities, any similar contributions properly due to be remitted by the third party supplier whether they or their equivalent arise in or outside the United Kingdom in respect of fees payable to the third party supplier under this agreement and that the third party supplier shall be responsible for informing all relevant statutory authorities as may be applicable of their whereabouts when and if it is required to do so and shall wholly indemnify the Company in respect of any claims that may be made against the Company by any such relevant statutory authorities relating to the Services under this Agreement and the third party supplier agrees to apply for and obtain all necessary permissions, consents, waivers or other documents required relating to the services provided under this Agreement whether in the United Kingdom or elsewhere.

10. Indemnity

The Company relies upon the third party supplier’s skill, expertise and experience and also upon the accuracy of all representations or statements made and the advice given by the third party supplier in connection with the provision of the Services. The third party supplier hereby agrees to indemnify the Company against all loss, damage, costs, legal costs and professional and other expenses of any nature whatsoever incurred or suffered by the Company whether direct or consequential as a result of such reliance.

11. Introduction and Obligations to Testers

The Company does not introduce Clients to Testers and does not help Testers secure Projects. The Company merely makes the Site and Site Services available to enable Testers to promote their services to prospective clients.

12. Engagement Direct/Indirect 

In respect of any third party introduced via the Company platform and proceeds to continue a business relationship with the Client outside of the Company platform, we shall be entitled to charge you, and issue an invoice for payment of, a Transfer Fee at any time following occurrence of any of the following events:

(a) where following an Introduction the third party do not engage a Security tester via the Platform for an Assignment and at any time within a period of 12 months from the date of our Introduction whether directly (or indirectly via another employment business) (i) the Client engage such third party or (ii) a third party engages directly with the Client as a result of the introduction or referral; or 

(b) where following an Introduction the Client take the supply of a third party for an Assignment and subsequently within the later of the relevant period as set out in the Regulations whether directly (or indirectly via another employment business): (i) the Client engages such third party; or (ii) a third party engages directly with the Client as a result of the introduction or referral

13. Health and Safety Requirements

• The third party supplier agrees to comply with any health and safety requirements of the Company while providing services on the Company’s premises.
• The third party supplier agrees to comply with any health and safety requirements of the Client while providing services on the Client’s premises.
• The third party supplier agrees to take all reasonable steps to ensure the safety of themselves and any other person on the Company or the Client’s premises. All hazards identified by the third party supplier must be reported to the Company or its Clients so that appropriate action may be taken.
• All accidents and/or injuries which occur arising out of or during the course of the contract (no matter how minor) must be reported to the Company or its Clients in writing as soon as is practicable after the accident occurs.

14. Project Work

14.1 Dress

Where no specific instructions are given as to dress code, the third party supplier is expected to wear business attire. Where specific instructions are issued by the Client these must be followed. The third party supplier may be required to work outdoors and should therefore ensure they have suitable clothing for such work. This includes any Personal Protective Equipment (“PPE”) required under Health and Safety (H&S) Legislation.

14.2 Tools & Equipment

The third party supplier or their assignee is expected to provide all tools and equipment that might reasonably be expected for the performance of the Services. The third party supplier should ensure that all such equipment is thoroughly tested, current patching levels maintained and does NOT contain or harbour potential malware or illegal software prior to engagement with the Client and that these are suitably insured and maintained. The Company does not accept any liability in the event of loss or damage.

Where equipment is supplied by the Client to conduct services, no un-authorised malicious activity or software maybe permitted.

14.3 Behaviour

Whilst contracted to work on a Company or its Clients project, the third party supplier is expected to conduct themselves in a professional manner at all times. The Company or its Clients will not tolerate abusive behaviour towards its employees or the third party supplier’s fellow third party suppliers, Clients, sub-third party suppliers or members of the public.

14.4 Equipment

Whilst contracted to working on a Company or its Clients project, the third party supplier takes on a duty of care for the Company or its Clients assets, the third party supplier must ensure that the equipment is used in a safe and professional manner and that any faults, damage etc. is reported to the Company or its Clients as soon as possible, or in any case within 24 Hours. Equipment must be returned as supplied, i.e. correctly packed with all cables.

14.5 Fitness for work

The third party supplier must not carry out any of the Services on behalf of the Company or its Clients under this Agreement whilst under the influence of drugs (unless prescription drugs under the supervisions of a qualified medical practitioner) or alcohol.

15. Confidentiality

• The third party supplier shall not during this Agreement with the Company or its Clients or after the termination of the agreement without the prior written consent of the Company or its Clients use for their own purposes, or divulge to any third party, or otherwise make use of any Confidential Information of which they shall become possessed, relating in any way to the business of the Company or its Clients or its techniques, systems or know-how.
• The third party supplier shall, during this Agreement, use their best endeavours to prevent the publication or disclosure of any Confidential Information.
• The third party supplier shall refrain from using and shall keep secret during and after the termination of this agreement with the Company or its Clients any secret or Confidential Information relating in any way to any business or individual having dealings with the Company or its Clients.
• If, during the course of this Agreement the third party supplier makes, or becomes possessed of, any invention, discovery or process (or any improvement of any kind) relating to, or which could be applied to, the business of the Company or its Clients, then, where appropriate, at the request and the expense of the Company or its Clients, the third party supplier must ensure that the copyright in the same vests in the Company or its Clients.
• Except to the extent necessary in the proper course of this Agreement or as required by law, the third party supplier shall not at any time during or after the termination of this Agreement howsoever caused reproduce in any form or on any media or device or permit anyone to reproduce any Confidential Information.
• The third party supplier shall not except to the extent necessary in the proper course of this Agreement or as required by law:
• remove any computer disks, tapes, memory sticks or Materials containing any Confidential Information from the Company premises or any Client’s premises; or
• send by electronic means any Confidential Information.
• Confidential Information which is made or received by the third party supplier during this Agreement with the Company or its Clients and all disks, tapes and Materials and any copies containing any Confidential Information shall be the property of the Company or its Clients.
• The third party supplier shall abide by all directions of the Company or its Clients from time to time and the Company or its Clients standard operating practices concerning the use, disclosure and supply of Confidential Information.
• The third party supplier shall not without the prior authority of the Company or its Clients make any announcement, publicity or statement about the Company or its Clients.
• On or before termination of this Agreement (howsoever occasioned), the third party supplier shall deliver up to the Company or its Clients or, at the Company or its Clients option, destroy or delete:
• all disks, tapes, memory sticks, Materials and tangible items and all copies containing any Confidential Information; and
• all other documents and property of the Company or its Clients (including but not limited to access cards, security passes and keys) in their possession or under their control.
• The rights and obligations under this clause shall continue in force after termination of this Agreement and shall be binding upon their representatives, but shall cease to apply to any information ordered to be disclosed by a court of competent jurisdiction or otherwise as required to be disclosed by law.

16. Intellectual Property

• To the extent not otherwise vested in the Company or its Clients, the third party supplier hereby assigns to the Company or its Clients absolutely with full title guarantee all Intellectual Property in the third party supplier Materials for the full term of such rights and all renewals and extensions, together with all accrued causes of action.
• The third party supplier shall:
• keep proper notes and records of all third party supplier Materials;
• fully and promptly disclose and deliver to the Company or its Clients for the exclusive use and benefit of the Company or its Clients and its nominees all third party supplier Materials upon their creation, making, development, writing, preparation, devising or discovery; and
• irrespective of the termination of this Agreement with the Company or its Clients give full information, data and drawings as to the exact mode of working, producing and using the third party supplier Materials and such other explanation, instruction and assistance as the Company or its Clients may request to enable the full and effective working, production and use of the third party supplier Materials.
• The third party supplier hereby irrevocably waives any and all of their moral rights which they may have anywhere in the world in the third party supplier Materials, so that the Company or its Clients and any third party may use and adapt all third party supplier Materials in whatsoever way the Company or its Clients or such third party determines without infringing such moral rights including (without limitation) the right to be identified, the right of integrity and the right against false attribution.
• During the term of this Agreement and at all times thereafter, the third party supplier shall not do or omit to do any act, matter or thing in consequence of which the Intellectual Property protection that might (but for such act or omission) otherwise have been available to the Company or its Clients is or might be lost, forfeited or cease to be available.
• The third party supplier shall mark all Materials with such patent, copyright and trade mark notices as the Company or its Clients may require from time to time.
• The third party supplier shall not during this Agreement or at any time after it has been terminated (howsoever arising) use, register, apply for registration or assist or induce any third party to use, register or apply for registration of any trade mark, service mark or domain name in any jurisdiction which is identical or materially similar to:
• any trade mark or service mark used or registered by the Company or its Clients in any jurisdiction
• any domain name used or registered by the Company or its Clients; or
• any brand, service or product developed, used or provided by the Company or its Clients.
• Upon request, the third party supplier shall, at the Company or its Clients expense but without receiving payment, promptly execute all documents and instruments and do all acts, deeds and things as may from time to time be required by the Company or its Clients:
• to vest absolute legal and beneficial ownership of the Intellectual Property in the third party supplier Materials in the Company or its Clients or its nominee; and
• to protect the Company or its Clients or its nominee’s titles to its Intellectual Property anywhere in the world; and
• to enable the Company or its Clients and its nominee to protect and enforce its Intellectual Property including (if requested) assisting in legal proceedings.
• The third party supplier warrants and undertake that nothing in the third party supplier Materials contains or will contain any viruses, or other computer programming routines that are intended to damage, detrimentally interfere with, any system, data or personal information.
• The rights and obligations under this clause shall continue in force after termination of this Agreement and shall be binding upon their representatives.

17. Return of Company Or Clients Property on Termination

Upon the termination of this Agreement for whatever cause the third party supplier shall deliver up to the Company or its Clients or its authorised representative any property of the Company or its Clients which may be in the possession of the third party supplier including without limitation any computer equipment, computer disks passwords third party supplier Materials and any copies thereof whether or not the property was originally supplied to it by the Company or its Clients together with any property including but not limited to third party supplier Materials stored electronically which shall not be deleted or copied by the third party supplier, and the third party supplier shall inform the Company or its Clients of any computer passwords in its possession relating to the business of the Company or its Clients.

18. Force Majeure

This Agreement or any scope of work may be suspended by the Company or its Clients if the third party supplier is unable to commence continue or completely perform its obligations under this Agreement by reason for force majeure fire, flood, lockouts, riots, civil commotion, state of national emergency, Government action or any cause whatsoever whether or not of a similar nature to the foregoing which is not within the Company or its Clients control providing that notice is immediately given to the third party supplier indicating suspension and stating the event relied upon.

19. Miscellaneous

• This Agreement shall be construed in accordance with the laws of England and, for the benefit of the Company or its Clients, the parties hereby submit to the exclusive jurisdiction of the English Courts.
• This Agreement sets out the entire agreement of the parties and supersedes all prior agreements and understandings relating to this subject matter.
• The third party supplier shall not assign or sub-contract any of its rights or duties under this Agreement without the prior consent in writing of the Company or its Clients (such consent not to be unreasonably withheld).
• Any notice to be served on either of the parties by the other shall be sent by pre-paid recorded delivery or registered post to the address of the relevant party shown at the head of this Agreement or by facsimile transmission or by electronic mail and shall be deemed to have been received by the addressee within 72 hours of posting or 24 hours if sent by facsimile transmission or by electronic mail to the correct facsimile number or electronic mail number of the addressee (with correct answerback).
• This Agreement may only be amended in part or in whole with the written consent of both parties.
• For the purposes of the Data Protection Act 2018 the third party supplier consents to the Company or its Clients procuring and/or processing of personal data including sensitive data of which the third party supplier is the subject.
• This Agreement shall be construed in accordance with the laws of England and, for the benefit of the Company or its Clients, the parties hereby submit to the exclusive jurisdiction of the English Courts.

20. Definitions

20.1 For the purpose of this Agreement the following terms have the following means:

• “Client(s)” means any person, firm, company or other entity who during the period of 12 months prior to or at the Termination Date has had Services provided to it by the Company or the third party supplier;
• “Confidential Information” means any confidential information of the Company or its Clients which may be known to or come to the third party supplier’s knowledge by reason of its engagement under this Agreement (whether before, during or after the signing of this Agreement), including without limitation:
• the business dealings or affairs or prospective business dealings or affairs of the Company or any Client or Prospective Client; customer, prospective customer or person with whom the Company has business dealings;
• the Materials and Intellectual Property in the Materials that are owned, licensed or used by the Company;
• the trade secrets and finances of Clients, Prospective Clients, customers or prospective customers, customer lists, trading details, price lists or identities of customers or prospective customers, customers, suppliers, agents, distributors, third party suppliers, licensors or licensees of the Company;
• any information obtained by the third party supplier in the course of its engagement which is manifestly confidential;
• any information designated by the Company as confidential; or
• information in relation to which the Company owes a duty of confidentiality to any third party;
• “Copyright Works” means any item of Confidential Information in which copyright or design right subsists;
• “third party supplier Materials” means all and any Materials including improvements and modifications:
• which the third party supplier may create, make, develop, write, prepare, devise or discover (alone or with others and whether or not during normal working hours, whether or not at any premises of the Company or any Associated Company and whether or not before or after execution of this Agreement); or
• which are otherwise owned by or vested in the third party supplier,
• at any time whatsoever during the period of this Agreement and which pertains or is useful to the business or prospective business of the Company, any Associated Company or which results from or is suggested by any work which the third party supplier has done or may do for the Company or any Associated Company.
• “Documents” means all records, reports, documents, papers and other materials whatsoever originated by or upon behalf of the third party supplier pursuant to this Agreement;
• “Intellectual Property” means all intellectual and industrial property rights anywhere in the world, including without limitation any patents, topography rights, utility model rights, copyright, database rights, design rights, registered designs, trade mark rights, service mark rights, domain name rights, rights under licences and any other rights of a similar nature whether or not any of the same are capable of protection by registration, and applications for registration of any of the foregoing and the right to apply for any of them;
• “Materials” means any and all works of authorship, products, materials, processes, systems, methodologies, algorithms, ideas, concepts, discoveries, inventions, designs, sketches, drawings, plans, specifications, lists, research, software (source code and object code), manuals, know-how, documents, notes, records, databases, photographs, images, logos, graphics, names, domain names and marks (on whatever media);
• “Prospective Client” means any person, firm, company or other business entity which was at the Termination Date involved in negotiations with the Company with a view to becoming a client;
• “scope of work” means a document issued by the Company or its Clients detailing the Services to be provided by the third party supplier, setting out the agreed fee, a description of duties, any disbursements and expenses, including travel expenses, and the details of the Project Manager.
• “Services” means those listed in the scope of work;
• “Substitute” means a substitute for the third party supplier appointed under the terms of clause 4.2;
• “Termination Date” means the date upon which the Agreement ends.
• “Agreement” means these Terms and Conditions together with a crew schedule detailing the Services, including but not limited to crew details, timetables, and locations.