Terms & Conditions
Provision of Consulting Services
Client hereby appoints Consultant to provide, and Consultant hereby agrees to provide, the Consulting Services and any Deliverables as more particularly set out in the Statement of Work. Consultant agrees to exercise reasonable skill, care and diligence in the performance of the Consulting Services. Client shall provide Consultant with such assistance as shall be reasonably necessary to facilitate the provision of the Consulting Services and the timely delivery of any Deliverables by Consultant.
Project Fees and Expenses
The Project Fees are payable by Client as set out in the Statement of Work without deduction, withholding or set-off and are exclusive of all applicable duties and/or taxes. Client shall bear sole liability for any such duties and/or taxes. Except as expressly provided herein the Project Fees are non-refundable.
Client shall reimburse Consultant for the Expenses as set out in the Statement of Work. At Client’s reasonable request, Consultant shall provide Client with reasonable documentation evidencing the Expenses.
Each party acknowledges that it may come into possession of confidential information of the other party during the course of this Agreement. Each party agrees (i) not to use such confidential information of the other party other than for the performance of this Agreement and (ii) not to disclose any such confidential information to any third party. Confidential information shall not include any information that (a) was, is or becomes public information through no fault of the receiving party, (b) is disclosed to the receiving party by a third party with a right to disclose such information or (c) must be disclosed pursuant to or as required by, law, regulation or court order.
Intellectual Property Rights; Use of Deliverables
Notwithstanding anything to the contrary contained in this Agreement, each party shall retain and own all right, title and interest in and to all intellectual property of any kind possessed, owned, controlled, created, obtained or acquired by such party prior to the execution of this Agreement or during the course of this Agreement.
Client shall be permitted to use any Deliverables furnished hereunder solely as set forth in the Statement of Work.
Except as otherwise provided in the Statement of Work, Consultant shall not be permitted to distribute to any third party any Deliverables without the prior written consent of Client; provided, however that Consultant shall be permitted to use any and all underlying information or data generated or produced by Consultant in connection with its performance of the Consulting Services or the preparation of any Deliverables.
This “Data Protection” section shall not apply or have any force or effect unless Consultant is subject to the provisions of General Data Protection Regulation ((EU) 2016/679) (GDPR) as a result of processing (as defined below) Client Data (as defined below) pursuant hereto.
Unless where otherwise stated, definitions used in this “Data Protection” section have the following meanings:
“Agreed Purpose” means the performance by Consultant of its obligations under this Agreement, including the provision of the Deliverables by the Consultant;
“Client Data” means the personal data in whatever form or medium which is supplied, or in respect of which access is granted, to Consultant under this Agreement which shall be confined to the following categories of personal data: the first and last name, email address, location, phone number, job title and where necessary the bank account details of the Client or where relevant its employees or contractors who wish to access the Deliverables;
“Data Protection Law” means where applicable, the General Data Protection Regulation ((EU) 2016/679) (GDPR), the European Privacy and Electronic Communications Directive (Directive 2002/58/EC), as amended or replaced from time to time and all other national, international, regional, federal or other laws related to data protection and privacy that are applicable to any territory where Consultant processes personal data or is established;
“personal data”, “controller”, “processor”, “processing”, “data subject” and “supervisory authority” shall have the meanings ascribed to them under the GDPR, as applicable;
“Reportable Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Client Data transmitted, stored or otherwise processed; and
“Third Party Recipient” means any contractor, subcontractor or other party engaged by Consultant in relation to its performance of the Agreement who is or will be processing Client Data, whether as a controller or processor and who may be located outside of the European Economic Area.
For the purposes of this Agreement, the Client and Consultant agree that each party:
(a) acts as a controller in respect of the Client Data;
(b) shall only process the Client Data in compliance with Data Protection Law and shall not cause itself or the other party to be in breach of Data Protection Law;
(c) shall provide the other party with reasonable details of any enquiry, complaint, notice or other communication it receives from any supervisory authority relating to its processing of the Client Data, and act reasonably in co-operating with the other party in respect of its response to the same; and
(d) shall act reasonably in providing such information and assistance as the other party may reasonably request to enable it to comply with its own obligations under Data Protection Law, including in the event of a Reportable Breach.
As the recipient of the Client Data, Consultant shall:
(a) use the Client Data for the Agreed Purpose only or as necessary to comply with its requirements under any applicable law;
(b) maintain all appropriate technical and organizational measures to ensure security of the Client Data, including protection against unauthorized or unlawful processing (including, without limitation, unauthorized or unlawful disclosure of, access to and/or alteration of the Client Data);
Subject to the limitation of liability provisions in this Agreement, to the extent that Client has an entitlement under Data Protection Law to claim from Consultant compensation paid by the Client to a data subject as a result of a breach of Data Protection Law to which Consultant contributed, Consultant shall be liable only for such amount as it directly relates to its responsibility for any damage caused to the relevant data subject.
Consultant hereby represents and warrants that the Consulting Services will be provided by qualified personnel in a professional and workmanlike manner, consistent with industry practices. Except for the foregoing, (i) the Consulting Services and any Deliverables are provided “as is” and (ii) Consultant disclaims to the fullest extent permitted by law all representations and warranties, either express or implied, including any warranty of merchantability and/or fitness for a particular purpose. Client agrees that Consultant will not be liable to Client or any third party for any trading, investment or commercial decisions made in reliance on the Consulting Services or any Deliverables.
If any party reasonably believes at any time that the other has materially breached this Agreement, the non-breaching party may deliver written notice to the breaching party specifying such breach in reasonable detail. If within fifteen (15) days after delivery of such notice the breaching party has not cured such breach to the reasonable satisfaction of the non-breaching party, or the parties have not otherwise agreed to amend this Agreement to address such breach, the non-breaching party shall be permitted to terminate this Agreement, in which event, (i) if Client is the breaching party, Consultant shall not be required to refund any portion of the Project Fees to Client or have any other liability to Client and Client shall pay the remainder of Project Fees in their entirety within 30 days’ of Consultant’s termination or (ii) if Consultant is the breaching party, Client shall remain liable to pay for all Deliverables and Consulting Services provided in accordance with this Agreement up to the date of Client’s termination and Consultant shall refund a pro rata portion of any pre-paid Project Fees in respect of the period following the termination date both calculated on the proportion of hours worked on these deliverables compared to the total contract hours (which Client acknowledges shall be the sole liability of Consultant).
Consultant shall indemnify Client and hold it harmless against all claims, causes of action, judgments, damages, fines or expenses (including reasonable attorneys’ fees) arising from a third party claim that Consultant’s provision of the Consulting Services or Client’s use of any Deliverables in accordance with this Agreement infringes upon or otherwise violates such third party’s copyright, trademark, patent or other intellectual property rights.
Client shall indemnify Consultant and hold it harmless against all claims, causes of actions, judgments, damages, fines or expenses (including reasonable attorneys’ fees) arising from a third party claim relating to Client’s use of any Deliverables in violation of the terms of this Agreement, other than any claim for which Consultant expressly has an indemnification obligation hereunder.
The indemnification obligations herein are contingent on a party hereto giving prompt notice of any claim for which it seeks indemnification. An indemnified party shall provide the indemnifying party with reasonable non-monetary assistance in the defence of the claims on which indemnification is sought. The indemnifying party shall have the right to assume the defence of the claim, and the indemnifying party may select counsel of its choice, subject to the approval of the indemnified party, which consent shall not be unreasonably withheld. A party shall not be obligated to indemnify the other in the event the claim for which indemnification is sought arises from the other’s gross negligence, wilful misconduct or breach of this Agreement.
Limitation of Liability
Notwithstanding anything to the contrary contained in this Agreement, in no event shall either party hereto be liable whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of data, loss of profit, loss of goodwill, loss of anticipated savings, loss of revenue or loss of business, or for any special, indirect, incidental, consequential or punitive damages under or in connection with this Agreement.
Each party shall comply with all applicable laws, regulations and sanctions.
Each party will be and act as an independent contractor and not as an agent or partner or joint venturer with the other party and neither party will by virtue of this Agreement have any right, power or authority to act or create any obligation on behalf of the other party.
Any delay in performance of any provision of this Agreement caused by conditions beyond the reasonable control of either party hereto will not constitute a breach of this Agreement, provided that the delaying party has taken reasonable measures to notify the affected party in writing of the delay and uses reasonable endeavours to perform in accordance with this Agreement notwithstanding such conditions.
Any amendments or waivers relating to this Agreement must be in writing signed by both parties hereto.
This Agreement shall not be assigned by either party without the prior written consent of the other party, except that Consultant shall be permitted without Client’s consent to assign this Agreement to any of its affiliates or in connection with a merger or consolidation involving Consultant or a sale of all or substantially all of Consultant’s assets. The Consulting Services may be provided by Consultant or individuals or organisations employed by or under contract with Consultant, at the discretion of Consultant, provided that Consultant shall be responsible for the performance of such individuals or organisations. A person who is not a party to this Agreement shall not have any rights to enforce its terms.
This Agreement is governed by and construed in accordance with the laws of the State of New York, without regard to choice of law provisions. Any disputes arising out of this Agreement that cannot be resolved by the parties will be brought in state or federal court located within New York County in the State of New York.
In the event of any conflict between the terms of the Statement of Work and these Terms and Conditions, the terms of the Statement of Work shall govern.