STANDARD TERMS AND CONDITIONSFOR PROVISION OF CONSULTANCYSERVICES
1 DEFINITIONS & INTERPRETATION
1.1 In these Conditions the following expressions shall have the following meanings unless inconsistent with the context:
Acknowledgement / means the duly signed copy ofORE Catapult’s written acceptance of the Proposal returned to ORE Catapult by the Consultant to acknowledge the Consultant’s agreement to the terms of the Agreement;Agreement / means this agreement between ORE Catapult and the Consultant consistingthe Scope of Works, the Proposal, these Conditions,ORE Catapult’s written acceptance of the Proposal and the Acknowledgement ;
Background IPR / means any Intellectual Property Rights, methodologies, techniques, know how, knowledge recipes, trade secrets, tools, designs or works used or owned by either Partyto this Agreement that were created prior to the Commencement Date and outside of the performance of the Service;
Commencement Date / [DATE OF COMMENCEMENT OF THE ENGAGEMENT];
Conditions / means these standard terms and conditions for the provision ofconsultancy services;
Confidential Information / means any non-public information that relates to the actual or anticipated business and/or products, research or development of either Partyor either Party’s technical data, trade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Party’s products or services and markets, customer lists and customers (including, but not limited to, customers of the Party on whom the other Party called or with whom the other Party became acquainted during the Term), software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business information disclosed by the other Party, either directly or indirectly, in writing, orally or by drawings or inspection of premises, parts, equipment, or other property of the disclosing Party. Confidential Information also includes the existence of any dispute arising under this Agreement and the terms and facts of such dispute, including without limitation any settlement amounts. Notwithstanding the foregoing, Confidential Information shall not include any such information which the other Partycan establish (i) was publicly known or made generally available prior to the time of disclosure to the receiving Party; (ii) becomes publicly known or made generally available after disclosure to the receiving Party through no wrongful action or inaction of the receiving Party; or (iii) is in the rightful possession of the receiving Party, without confidentiality obligations, at the time of disclosure as shown by then-contemporaneous written records;
Consultant / means that Party to this Agreement providing the Serviceto ORE Catapult;
Consultant Representative / means the Consultant’s representative named in the Agreement who will be the first point of contact for ORE Catapult in relation to the Service, or in the absence of any specified person, the Consultant’s internal solicitor and/or contracts manager;
Equipment /
means the Consultant’s equipment, plant, materials, and any such other items supplied and used by the Consultant in the performance of its obligations under the Agreement.
Good Industry Practice /means the exercise of that degree of skill, diligence, prudence and foresight which, as at the relevant time, would reasonably and ordinarily be expected from a skilled and experienced provider of the Service complying with all applicable laws and regulatory codes of practice in the same type of undertaking and under the same or similar circumstances and observations;
Group / in relation to a Party, means any subsidiary and holding company of that Party and any subsidiary of such holding company from time to time;Intellectual Property Rights / means all patents, rights to inventions, utility models, trademarks, service marks, registered designs or any applications for any of the foregoing, copyright (including in any text, computer coding, algorithms, applets, or in any other constituent elements of the Outputs), design rights, database rights, rights in computer software, domain names, trade or business names, goodwill,topographical rights, moral rights, rights in confidential information, look and feel in any graphical user interface in the Outputs, all know-how and any other intellectual or industrial property rights of any nature, whether subsisting in the United Kingdom or anywhere else in the World and whether registered, registerable or otherwise;
Key Person / means any individual Personnel named in the Agreement;
NDA / non-disclosure agreement;
ORE Catapult / “ORE Catapult” means Offshore Renewable Energy Catapult, (Company Number 04659351) whose registered office is Offshore House, Albert Street, Blyth, Northumberland, NE24 1LZ or any of its subsidiaries including ORE Catapult Development Services Limited (Company Number 5636283);
ORE Catapult Representative / means ORE Catapult’s representative named in the Agreement who will be the first point of contact for the Consultant in relation to the Service, or in the absence of any specified person, ORE Catapult’s Procurement & Commercial Manager or Legal Advisor, as appropriate;
Outputs / means all research, designs, records, reports, documents, papers, drawings, diagrams, discs, transparencies, photos, graphics, logos, text, typographical arrangements, coding, software, formulas, samples, prototypes and all other materials or items in whatever form, including but not limited to physical items, hard copies and electronic forms, prepared and/or produced by the Consultant for ORE Catapult in the provision of the Service;
Party / means a Party to the Agreement and “Parties” means both ORE Catapult and the Consultant in the Agreement.
Personnel / means any employee of Consultant who is used to provide the Service, including any Key Person;
Premises / means the location(s) for the provision of the Service as specified in the Agreement;
Price / means the price payable for the Service as specified in the Agreement;
Project / means the project described in the Agreement that relates to the Service;
Proposal / means Consultant’s written offer to provide the Service;
Representative / in relation to any Party, means any professional adviser, director, officer, partner, employee, agent, consultants, subcontractor or sole trader forming part of that Party, and includes any individual seconded to work for it;
Service / means those consultancy services specified to be provided by Consultant in the Agreement;
Term / means the period described in Condition 11.1; and
Termination Date / means the date of termination of the Term, howsoever arising.
1.2 References to any statute or statutory provision shall include any subordinate legislation made under it, and any subsequent legislation that adds to or replaces it.
1.3 The descriptive headings to Conditions, schedules and paragraphs are inserted for convenience only, have no legal effect and shall be ignored in the interpretation of these Conditions.
1.4 Words importing the singular include the plural and vice versa, words importing a gender include every gender and reference to persons include an individual, company, corporation, firm, partnership, unincorporated association or body of persons.
1.5 The words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
1.6 Any reference to a “day” shall mean a period of twenty-four (24) hours running from midnight to midnight, reference to a “working day” shall mean Monday to Friday inclusive but excluding bank holidays and references to times of the day are to London time (UK) on the applicable date.
2. DELIVERY OF SERVICES
2.1 ORE Catapult shall engage the Consultant and the Consultant shall provide the Service to ORE Catapultin accordance with the Conditionsspecified in thisAgreementon a consultancy basis. The Consultant shall not be ORE Catapult’s agentand shall not make any contracts on behalf of or bind ORE Catapult to any obligation or in any way act as an agent of ORE Catapult unless specifically authorised in writing in advance by ORE Catapult to do so. The termination of the Agreement shall not, in any circumstances, constitute or be deemed to constitute a dismissal for any purpose and the Consultant agrees to indemnify ORE Catapult in full in relation to any liability arising from any employment related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Consultant or any Personnel against ORE Catapult out of or in connection with the Service.
2.2 The Consultant shall provide the Service to ORE Catapult from the Commencement Date. The Service shall continue to be supplied until the Service is completed in accordance with the Agreement, unless this Agreement is terminated earlier in accordance with Condition 11.
2.3 The Consultanthereby warrants that it shall use all reasonable endeavours to:
2.3.1 provide the Servicein accordance with the scope of works and/or as designated in the annexed Schedule in all material respects;
2.3.2 dischargehis obligations under these Conditions in accordance with Good Industry Practice;
2.3.3 procurethat both himself and any Personnel will dedicate sufficient time and energy to ensure that the Serviceis provided in a timely and efficient manner and in material compliance with the scope of works.
2.3.4 report to ORE Catapult on the provision and performance of the Service as reasonably required by the ORE Catapult.
2.3.5 offer to ORE Catapult any business opportunities as soon as practicable after the same shall have come to his knowledge and in any event before the same shall have been offered by the Consultant to any other party (provided that nothing in this clause shall require the Consultant to disclose any business opportunities to ORE Catapult if to do so would result in a breach by the Consultant of any obligation of confidentiality owed by the Consultant to a third party)
3. ABSENCE OR INCAPACITY
3.1If the Consultant is unable to provide the Service due to illness or injury, he shall advise ORE Catapult as soon as is reasonably practicable. For the avoidance of doubt, no fee shall be payable in accordance with Condition 7 in respect of any period during which the Service is not providedto ORE Catapult.
3.2The Consultant may, with the prior written approval of ORE Catapult, appoint a suitably qualified substitute. If ORE Catapult accepts the substitute (not to be unreasonably withheld), the Consultant shall continue to invoice ORE Catapult in accordance with Condition7 and shall be responsible for remuneration of the substitute;
4. COMPLIANCE WITH STANDARDS AND POLICIES
4.1The Consultant shall comply:
4.1.1with all relevant statutory requirements and regulations and such relevant codes of conduct (whether voluntary or otherwise) in force at the time of performance of such obligations;
4.1.2with all reasonable standards of safety and ORE Catapult's health and safety procedures, in force at the premises where the Serviceis provided.
4.1.3with ORE Catapult’s Business Expenses Policy & Procedure, IP Policy, State Aid Policy, Hospitality Gifts and Anti-Bribery Policy & Procedure, Bullying and Harassment Policy & Procedure from time to time in force.
4.2The Consultant shall report to ORE Catapult any unsafe working conditions or practices.
5 CONSULTANT’S RESPONSIBILITY
5.1The Consultant shall:
5.1.1provideall Equipmentnecessary for the provision of the Service.
5.1.2ensure that at all times any additionalPersonnel possess all appropriate certifications, qualifications and experience necessary for the performance of the Service;
5.1.3ensure that the Personnel are fully conversant withORE Catapult’s safety, health and environment policies and complete and follow all relevant method statements and risk assessments compliant with such policies., taking all reasonable other precautions as are necessary to protect theirown health and safety, and that of ORE Catapult’s personnel, and of the public.
5.1.4comply with all applicable laws, regulations and sanctions relating to anti–bribery and anti-corruption including but not limited to the Bribery Act 2010 or applicable rules in force at the time;
5.1.5undertake all clerical and secretarial functions, including arrangements for booking their own travel and accommodation.
5.2Unless the Consultant has been specifically authorised to do so by ORE Catapult in writing
5.2.1the Consultant shall not have any authority to incur any expenditure in the name of or for the account of the ORE Catapult; and
5.2.2the Consultant shall not, hold himself out as having authority to bind ORE Catapult.
5.3ORE Catapult reserves the right to let other contracts associated with the Service and the Consultant shall, if so required, perform its duties, or some of them, jointly with one or more other persons, whether employees of ORE Catapult or other third parties, as ORE Catapult from time to time directs.
5.4Failure to comply with this Condition 5 may result in Termination of the Agreement.
6. ORE CATAPULT’S OBLIGATIONS
6.1 During the Term ORE Catapultwill use reasonable efforts to:-
6.1.1 providethe Consultant(and any associated Personnel)in a timely manner with such information in its possession concerning the Service thatthe Consultantreasonably requires to enable himto perform the Service, and ensure that such information is accurate in material respects;
6.1.2 arrange in a timely manner reasonable access to any “pre-requisites” for the delivery of the Serviceby the Consultant specified in the Agreement (if any);
6.1.3subject to Condition 5.1.3arrange reasonable access for the Consultant and any Personnel to the Premises to perform the Service;
6.1.4comply with all other obligations of ORE Catapult set out in these Conditions.
7.PRICE AND PAYMENT
7.1ORE Catapult shallpay the Consultant the Priceprovided that the Consultant undertakes the Service, to the reasonable satisfaction ofORE Catapult, in accordance with the Conditions in the Agreement.
7.2No change to the Price may be made without ORE Catapult’s prior written consent. In the event of a Price change, it shall take effect on the anniversary of the Commencement Date and the Price change shall be calculated in accordance with the percentage increase or decrease against the previous months Consumer Price Index (CPI), published by the Office for National Statistics.
7.3ORE Catapult will reimburse expenses properly and necessarily incurred by the Consultant in the performance of the Servicein accordance with ORE Catapult's Business Expenses Policies and Procedures. Reimbursement of any additional expenses not covered in the Business Expenses Policies and Procedures are subject to the prior written consent of ORE Catapult before the expenses are incurred and the submission of all receipts with any expenses claim.
7.4When the Consultant has supplied the Service to ORE Catapult’s reasonable satisfaction the Consultant may submit invoices to ORE Catapult in accordance with the invoicing terms set out in the Agreement. Where no invoicing terms are set out elsewhere in the Agreement and the Consultant has supplied the Service to ORE Catapult’s reasonable satisfaction, the Consultant may invoice ORE Catapult for the Price. ORE Catapult will pay valid, undisputed invoices within thirty(30) days from receipt.
7.5ORE Catapult will be entitled to deduct from the Price anyORE Catapult amount owing at any time from the Consultant to ORE Catapult.
7.6All invoices shall be sent . Each invoice must clearly identify the purchase order number. If the purchase order number is not clearly identifiable on the invoice the invoice may be returned to the Consultant without payment.
7.7If any Value Added Tax is to be paid, the Consultantshall show this separately on the invoice.
7.8The Consultantshall maintain accurate records of the Service provided by the Consultant to ORE Catapult under the Agreement including, without limitation, all payments made by ORE Catapult to the Consultant and any ancillary Personnel for a minimum period of three (3) years from the date of the last payment made by ORE Catapult to the Consultant. The Consultantshall allow access to ORE Catapultauditors should this be necessary.
8. CONFIDENTIAL INFORMATION
8.1The Consultant acknowledges that in the course of the provision of the Service he will have access to Confidential Information. The Consultant shall therefore agree to the restrictions in this Condition 8.
8.2The Consultant shall not (except in the proper course of his duties) whether during the provision of the Service or at any time after the Termination Date, use or disclose to any third party (and shall use his best endeavours to prevent publication or disclosure of) any Confidential Information. This restriction does not apply to:
8.2.1any use of disclosure authorised by ORE Catapult or required by law; and
8.2.2any information which is already in, or comes into the public domain otherwise than through the Consultant’s unauthorised disclosure.
8.3At any stage during the engagement, the Consultant shall promptly on request return all and any ORE Catapult property in his possession to the ORE Catapult;
8.4In the event that a separate NDA is executed as part of the engagement, the provisions of the NDA shall prevail and the provisions of this Condition 8 shall not apply, supersede or replace the terms of the NDA.
8.5The Consultant acknowledges and agrees that ORE Catapult maybe required to disclose information to their funding body, InnovateUK.
8.6This clause 8 shall survive termination of the Contract.
9. VARIATION OF SERVICES
9.1At any time during the Term, subject always to the following provisions of this Condition 9, ORE Catapultwill be permitted to request to vary any details of the Service required under this Agreement, by giving at least thirty(30) days’ prior written notice to theConsultant.
9.2Following receipt of a Contract Change Note from ORE Catapultunder Condition 9.1,the Consultant shall notify ORE Catapultwhether it is commercially and or technically able to accommodate such a variation and of any reasonable change in thePriceas a result of such proposed variation, and where the Consultant indicates that such a variation would be possible,ORE Catapultwill then notify Consultant that either:
9.2.1ORE Catapultaccepts the Consultant’schange in the Price and wishes to proceed with the proposed variation to the Agreement, with a signed Contract Change Note being signed by both Parties to reflect any agreed changes in the details of the Service, and to the Price; or
9.2.2ORE Catapultdoes not accept the Consultant’schange in the Price and does not wish to proceed with the proposed variation to the Agreement, and that the Agreement shall continue in its current form without variation.