SUBCONTRACT TERMS AND CONDITIONS FOR SERVICES: Lumensol Ltd
The Consultancy carries on the business of the provision of consultancy services relating to the services (“the Consultancy Services”) specified in the Consultancy Services Sub-contract Order (“Order”), the template for which is at Appendix 1.
On execution of the Order the Client has requested the Consultancy and the Consultancy has agreed with the Client, to provide the Consultancy Services subject to the terms and conditions as set out in this document (“Terms and Conditions”).
IT IS AGREED as follows:
Interpretation and Definitions
Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine, and vice versa.
The headings contained in this Terms and Conditions are for convenience only and do not affect their interpretation.
A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
The Order or the Proposal (“Order”) as referenced form part of this Terms and Conditions and shall have effect as if set out in full in the body of this Terms and Conditions. Any reference to this Terms and Conditions includes the Order.
The following definitions apply in this Terms and Conditions:
a) “Client” means Lumensol Ltd registered in England and Wales under Number 11349433 of 108 Priory Street, Newport Pagnell, Buckinghamshire, England MK16 9BL.
b) “the Consultancy” means the party providing the Consultancy Services to the Client, as identified in the Order.
c) “Intellectual Property Rights” patents, utility models, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
d) “Works” all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software programs, ideas, discoveries, developments, improvements or innovations and all materials embodying them in whatever form, including but not limited to hard copy and electronic form, prepared by the Consultancy in connection with the provision of the Consultancy Services.
1.1 The Consultancy Services
1.1.1 The following are as set out in the Order, a template for which is included at Appendix 1:
a) The Consultancy to provide the Consultancy Services to the Client
b) The project scope (describing the Consultancy Services to be provided)
c) The project deliverables (describing the Consultancy Services to be provided)
d) The commencement date for the provision of the Consultancy Services
e) The expected completion date for the provision of services
f) The estimated budget cost, or fixed price for the provision of the Consultancy Services
g) The day rates that apply, where included, for each role to be deployed on the project
h) The basis for the charging of expenses / disbursements
i) The invoicing frequency
j) The location of working
k) The equipment required.
1.1.2 The Consultancy's obligation to provide the Consultancy Services shall be performed by one or more Worker(s) of the Consultancy as the Consultancy may consider appropriate (“the Worker(s)”), subject to the Client being reasonably satisfied that the Worker(s) has the required skills, qualifications and resources to provide the Consultancy Services to the required standard.
1.1.3 The Consultancy has the right, at its own expense, to enlist additional or substitute Worker(s) in the performance of the Consultancy Services, or may sub-contract all or part of the Consultancy Services, provided that the Consultancy provides details, whenever requested to do so, of the substitute or sub-contractor ahead of the planned substitution and subject to the Client being reasonably satisfied that such additional Worker(s) or any such sub-contractor has the required skills, qualifications, resources and personnel to provide the Consultancy Services to the required standard.
1.1.4 Where the Consultancy provides a substitute or sub-contracts all or part of the Consultancy Services pursuant to clause 1.1.3 above, the Consultancy shall be responsible for paying the substitute or sub-contractor and shall ensure that any agreement between the Consultancy and any such substitute or sub-contractor shall contain obligations which correspond to the obligations of the Consultancy under the terms of this Terms and Conditions and the Consultancy shall remain responsible for the acts or omissions of any such substitute or sub-contractor.
1.1.5 The Consultancy shall take all reasonable steps to avoid any unplanned changes of Worker(s) assigned to the performance of the Consultancy Services but if the Consultancy is unable for any reason to perform the Consultancy Services the Consultancy should inform the Client as soon as reasonably practicable on the first day of unavailability and in such case shall provide a substitute subject to the provisions of clause 1.1.3 above.
1.1.6 In the event that the Consultancy is unable to supply either the original personnel or acceptable substitutes or sub-contractors for a period of one week or more then the Client is entitled to terminate the Order upon 30 days written notice.
1.1.7 The Order shall specify the Client, the fees payable by the Client and such disbursements as may be agreed and any other relevant information.
1.1.8 The Client acknowledges and accepts that the Consultancy is in business on its own account and the Consultancy shall be entitled to seek, apply for, accept and perform contracts to supply its services to any third party during the term of the Order.
1.2 The Contract
1.2.1 This Terms and Conditions governs the performance of the Consultancy Services by the Consultancy for the Client.
1.2.2 The Consultancy shall not be required to provide any advice and assistance in addition to the Consultancy Services and any requests to provide such additional advice and assistance shall be subject to the prior written approval of the Consultancy (at its sole discretion) and agreement between the Consultancy and the Client as to the level of fees payable for such additional advice and assistance. In the event that such additional advice and assistance is agreed, the Consultancy must notify the Client of the terms upon which such additional services will be provided including details of any new fee arrangements in order that the fee arrangement between the Consultancy and Client as set out in the Order may be adjusted accordingly and agreed before provision of such additional services begins.
1.2.3 No variation or alteration of these terms shall be valid unless agreed with the Client and the Consultancy in writing except where changes to the Consultancy Services are necessary to comply with applicable safety and other statutory or regulatory requirements, in which case the Consultancy may make such necessary changes without prior notification to the Client.
1.3 Undertaking of the Consultancy
1.3.1 The Consultancy warrants to the Client that by entering into and performing its obligations under this Terms and Conditions it will not thereby be in breach of any obligation which it owes to any third party.
1.3.2 The Consultancy warrants to the Client that its Worker(s) have the necessary skills and qualifications to perform the Consultancy Services. The costs for any training needed in order to gain such qualifications and skills shall be at the Consultancy’s or Worker(s)’ own expense.
1.4 Consultancy’s Obligation
1.4.1 The Consultancy agrees on its own part and on behalf of its Worker(s) as follows:
a) to comply with any statutory rules or regulations including but not limited to those relating to health and safety, together with such policies and procedures of the Client as the Client notifies the Consultancy and/or its Worker(s) that it is essential that the Consultancy and its Worker(s) comply to properly perform the Consultancy Services (including for example where the Consultancy Services are to be performed at the premises of the Client the health and safety policy and security arrangements) during the performance of the Consultancy Services. Subject to the rules and regulations which the Client notifies the Consultancy and/or its Worker(s) that it is essential that the Consultancy and its Worker(s) comply with the Consultancy and its Worker(s) shall not be bound by the policies and procedures which an employee of the Client would be bound by; and
b) to furnish the Client with any progress reports as may be requested from time to time.
1.5.1 The Consultancy shall provide at its own cost, all such necessary equipment as is reasonable for the satisfactory performance by the Worker(s) and any substitutes and sub-contractors of the Consultancy Services.
1.5.2 If, as a matter of convenience, the Consultancy is provided with equipment by the Client for the purposes of carrying out the Consultancy Services, the Consultancy shall be responsible for ensuring that they preserve the security and condition of such equipment. If and to the extent that any equipment is lost while in the Consultancy’s possession, the Consultancy shall be responsible for the cost of any necessary repairs or replacement.
1.6 Method of Performing Services
1.6.1 The Consultancy’s Workers are professionals who will use their own initiative as to the manner in which the Consultancy Services are delivered provided that in doing so the Consultancy shall co-operate with the Client and comply with all reasonable and lawful requests of the Client.
1.6.2 The Consultancy may provide the Consultancy Services at such times and on such days as the Consultancy shall decide but shall ensure that the Consultancy Services are provided at such times as are necessary for the proper performance of the Consultancy Services.
1.6.3 The relationship between the parties is between independent companies acting at arm’s length and nothing contained in this Terms and Conditions shall be construed as constituting or establishing any partnership or joint venture or relationship of employer and employee between the parties or their personnel.
1.6.4 Where the proper performance of the Consultancy Services is dependent on the completion of tasks or services by third parties (including employees of the Client but excluding any substitute or sub-contractor of the Consultancy), the Consultancy shall have no liability to the Client for any delay, non or partial performance of the Consultancy Services arising from the delay or non or partial performance of such tasks by third parties.
1.6.5 The Consultancy may provide the Consultancy Services from such locations as are appropriate in the Consultancy’s judgment. When necessary, the Client will provide the Consultancy with appropriate access to the Client’s facilities as is necessary for the effective conduct of the Consultancy Services.
1.7.1 The Consultancy shall obtain the signature or email confirmation of an authorised representative of the Client as verification of execution of the Consultancy Services (“Completion”).
1.7.2 As specified in the Order, the Consultancy shall deliver to the Client its invoice for the amount due from the Client to the Consultancy giving a detailed breakdown showing the work performed.
1.7.3 The Consultancy’s invoice should bear the Consultancy’s name, company registration number, VAT number and should state any VAT due on the invoice.
1.7.4 The Client shall not be obliged to pay any fees to the Consultancy unless an invoice has been properly submitted by the Consultancy in accordance with this clause 1.7 of this Terms and Conditions.
1.8.1 Subject to the receipt of the Consultancy’s invoice in accordance with clause 1.7 above, the Client will pay the Consultancy within 30 days of receipt of the Consultancy’s invoice.
1.8.2 The Consultancy shall be responsible for any PAYE Income Tax and National Insurance Contributions and any other taxes and deductions payable in respect of its Worker(s) in respect of the Consultancy Services.
1.8.3 All payments will be made to the Consultancy by a method which gives immediately available funds.
1.8.4 If the Consultancy shall be unable for any reason to provide the Consultancy Services to the Client, no fee shall be payable by the Client during any period that the Consultancy Services are not provided.
1.9 Obligations of the Client
1.9.1 Throughout the term of the Order, the Client shall pay the Consultancy in accordance with clause 1.8.1 above.
1.9.2 The Client shall furnish the Consultancy with sufficient information about the Consultancy Services in order for the Consultancy to arrange for the Consultancy Services to be carried out.
1.9.3 The Client will advise the Consultancy of any health and safety information or advice which may affect the worker(s), during the performance of the Consultancy Services.
1.10 Terms of the Order
1.10.1 The Consultancy Services shall commence in accordance with the Order and shall either (as specified in the Order) continue until Completion or the termination date as specified in the Order, at which time the Order shall expire automatically, unless previously terminated for convenience by either party giving 30 days written notice.
1.10.2 Notwithstanding sub-clause 1.10.1 of this Terms and Conditions, the Client may at any time with 7 days written notice instruct the Consultancy to cease work on the Consultancy Services, where:
a) the Consultancy has committed any serious or persistent breach of any of its obligations under this Terms and Conditions;
b) the Consultancy has not observed any condition of confidentiality applicable to the Consultancy under this Terms and Conditions;
c) the Consultancy Services are, in the reasonable opinion of the Client, unsatisfactory;
d) the Consultancy is in breach of any statutory obligations or acting in breach of such procedures of the Client as the Client notifies the Consultancy and/or its Worker(s) that it is essential that the Consultancy and its Worker(s) comply with to properly perform the Consultancy Services;
e) performance of the Consultancy Services is prevented for one week or more by the incapacity of the Worker(s) and the Consultancy is unable to provide a replacement Worker(s), or a suitable substitute(s) or sub-contractor(s) pursuant to the provisions of clause 1.1.3; or
f) the Consultancy becomes insolvent, dissolved or subject to a winding up petition.
1.10.3 The provisions of clause 1.10.2 shall equally apply to any party performing the Consultancy’s obligations as provided for in clause 1.1.
1.10.4 Upon Completion or termination of the Consultancy Services, the Client shall be under no obligation to offer the Consultancy further work, nor shall the Consultancy be under any obligation to accept any offer of work made by the Client.
1.11 Intellectual Property
1.11.1 Should the Client deploy its iLumen8 product in the course of the Works, the Intellectual Property in iLumen8, including any developments or additions to it, vests in the Client.
1.11.2 Any other Intellectual Property developed through the course of the Works vests in the Client.
1.12.1 In order to protect the confidentiality and trade secrets of the Client and without prejudice to every other duty to keep secret all information given to it or gained in confidence the Consultancy agrees on its own part and on behalf of its Worker(s) as follows:
a) not at any time whether during or after the performance of the Consultancy Services (unless as a necessary part of the performance of its duties) to disclose to any person or to make use of any of the trade secrets or confidential information of the Client with the exception of information already in the public domain and any use or disclosure required by law;
b) to deliver up to the Client (as directed) on Completion all documents and other materials belonging to the Client (and all copies) which are in its possession including documents and other materials created by it or the Worker(s) during the course of the Consultancy Services; and
c) to, not at any time, make any copy, abstract, summary or précis of the whole or any part of any document or other material belonging to the Client except when required to do so in the course of its duties under this Terms and Conditions in which event any such item shall belong to the Client.
1.12.2 The Consultancy shall use reasonable endeavours to procure that the provisions of this clause 1.12 shall also apply to any sub-contractor performing the Consultancy’s obligations provided for in clause 1.1.
1.13 Computer Equipment
1.13.1 The Consultancy shall use reasonable endeavours to ensure that any computer equipment and associated software which it provides to its Worker(s) for the purpose of providing the Consultancy Services contains anti-virus protection with the latest released upgrade from time to time.
1.13.2 The Consultancy shall store on the Client’s Microsoft Teams environment, or other environment specified by the Client from time to time, all documents, data and information, held or produced in the carrying out of the Consultancy Services.
1.14 Relationship Between the Client and Consultancy
1.14.1 The Consultancy acknowledges to the Client that there is no intention on the part of the Consultancy, the Worker(s) or the Client to create an employment relationship between any of those parties and that the responsibility of complying with all statutory and legal requirements relating to the Worker(s), (including but not limited to the payment of taxation, maternity payments and statutory sick pay) shall fall upon and be discharged wholly and exclusively by the Consultancy. In the event that any person should seek to establish any liability or obligation upon the Client on the grounds that any of the Consultancy’s Workers are an employee of the Client, the Consultancy shall upon demand indemnify the Client and keep them indemnified in respect of any such liability or obligation and any related proper and reasonable costs, expenses or other losses which the Client shall properly incur as a direct result of such liability.
1.14.2 The Client is under no obligation to offer further contracts or services to the Consultancy nor is the Consultancy under obligation to accept such contracts or services if offered. The Consultancy is not obliged to make its services available except for the performance of its obligations under this Terms and Conditions. Both parties agree and intend that there be no mutuality of obligations either during or following this Terms and Conditions, whatsoever.
1.15.1 All notices which are required to be given hereunder shall be in writing and shall be sent to the registered office from time to time of the party upon whom the notice is to be served. Any such notice may be delivered personally or by first class prepaid post and shall be deemed to have been served if delivered by hand or by first class post.
1.16.1 Where specified within this Terms and Conditions, the Consultancy shall be liable for proper and reasonable loss, damage or injury to the Client arising directly from the deliberate acts or omissions of the Consultancy or its Worker(s) or from the deliberate acts or omission of any sub-contractor to whom the Consultancy sub-contracts the performance of the Consultancy Services during the performance of the Consultancy Services and the Consultancy shall indemnify and keep indemnified the Client against any such proper and reasonable loss, damage or injury.
1.16.2 The Consultancy shall ensure the provision of the following insurances, during the performance of the Consultancy Services:
a) Public Liability Insurance: £1,000,000
b) Employers Liability: Cover level to meet legislative requirements
c) Professional Liability Insurance: £1,000,000
1.16.3 The Consultancy shall be liable for any defects arising as a result of the provision of the Consultancy Services and the Consultancy shall rectify at its own cost such notified defects as may be capable of remedy.
1.16.4 The Consultancy acknowledges that the Worker(s) provided is not an agency worker as defined under the Agency Worker Regulations 2010 and that the Agency Worker Regulations 2010 do not apply in relation to this Terms and Conditions. The Consultancy shall indemnify and keep indemnified the Client against any proper and reasonable losses the Client may properly suffer as a direct result of any claim made by or on behalf of any Worker under the Agency Worker Regulations 2010.
1.17 Data Protection
1.17.1 The Client will collect and process information relating to the Worker(s) in accordance with the privacy notice which is on the website.
1.17.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 1.17 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
1.17.3 In this clause 1.17, Personal Data and Process and Data Subject shall have the meaning given to those terms in the Data Protection Legislation.
1.17.4 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Data Controller and the Consultancy is the Data Processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
1.17.5 Without prejudice to the generality of clause 1.17.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Consultancy for the duration and purposes of the Order.
1.17.6 Without prejudice to the generality of clause 1.17.2, the Consultancy shall, in relation to any Personal Data processed in connection with the performance by the Consultancy of its obligations under this Terms and Conditions:
a) process that Personal Data only on the written instructions of the Client unless the Consultancy is required by laws applicable to the Consultancy to process Personal Data (Applicable Data Processing Laws);
b) maintain for the duration of the Order such appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
c) ensure all Personal Data is kept confidential;
d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
i) the Client or the Consultancy has provided appropriate safeguards in relation to the transfer;
ii) the data subject has enforceable rights and effective legal remedies;
iii) the Consultancy complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
iv) the Consultancy complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data.
e) assist the Client, at the Client's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f) notify the Client on becoming aware of a Personal Data breach;
g) comply with any reasonable request of the Client to amend, transfer, return or destroy the Personal Data or any part thereof unless required by Applicable Data Processing Laws to store the Personal Data; and
h) maintain complete and accurate records and information to demonstrate its compliance with this clause 1.17.
1.17.7 The Client consents to the Consultancy engaging any person as a sub-processor (to include any substitute or sub-contractor appointed under clause 1.1.3) for the Processing of Personal Data. The Consultancy will inform the Client of any intended changes concerning the addition or replacement of sub-processors, thereby giving the Client the opportunity to object to such changes. If the Client objects to such a change and the Consultancy is not reasonably able to make such adjustments to remove the objection, the Client will be entitled to terminate the Order by giving not less than 30 days written notice to that effect to the Consultancy.
1.17.8 If the Consultancy appoints a sub-processor the Consultancy will put a written contract in place between the Consultancy and the sub-processor that specifies the sub-processor’s Processing activities and imposes on the sub-processor substantially similar terms to those imposed on the Consultancy in this clause 1.17. The Consultancy will remain liable to the Client for performance of the sub-processor’s obligations. If the Consultancy makes any transfers of Personal Data outside of the European Economic Area it will comply with the Data Protection Legislation and the Client will execute such documents or take such actions as may be required to assist with such compliance.
1.17.9 It is acknowledged and agreed between the parties that this clause 1.17 may be revised and/or replaced with applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when agreed between the parties, signed by the parties and attached to the Order).
1.18 Anti-Bribery and Anti-Corruption
1.18.1 The Consultancy shall:
a) comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
b) comply with the Client’s Anti-Bribery Policy, as the same may be updated from time to time (“Bribery Policy”);
c) have and maintain in place throughout the term of the Order its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and the Bribery Policy and will enforce them where appropriate;
d) promptly report to the Client any request or demand for any undue financial or other advantage of any kind received by the Consultancy in connection with the performance of the Consultancy Services; and
e) ensure that its Worker(s) comply with this clause 1.18.
1.18.2 For the purpose of this clause 1.18 the meaning of adequate procedures and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act) and section 8 of that Act respectively.
1.19.1 If any provision or term of this Terms and Conditions shall become or be declared illegal, invalid or unenforceable for any reason whatsoever including, but without limitation, by reason of the provisions of any legislation or other provisions having the force of law or by reason of any decision of any Court or other body or authority having jurisdiction over the parties of this Terms and Conditions such terms or provisions shall be divisible from this Terms and Conditions and shall be deemed to be deleted from this Terms and Conditions and the remainder of the provisions shall continue in full force and effect provided always that if any such deletion substantially affects or alters the commercial basis of this Terms and Conditions the parties shall negotiate in good faith to amend and/or modify the provisions and terms of this Terms and Conditions as necessary or desirable in the circumstances.
1.20 Entire Terms and Conditions
1.20.1 This Terms and Conditions and the Order constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
1.20.2 Each party acknowledges that in entering into the Order it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Terms and Conditions.
1.20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Terms and Conditions.
1.20.4 Nothing in this clause shall limit or exclude any liability for fraud.
1.21.1 The Order may be executed in any number of counterparts, each of which, when executed and delivered, shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
1.22 Third Party Rights
1.22.1 Except as expressly provided elsewhere in this Terms and Conditions, a person who is not a party to the Order shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
1.22.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Terms and Conditions are not subject to the consent of any other person.
1.23 Force Majeure
1.23.1 The Consultancy shall not be liable for any breaches of its obligations under this Terms and Conditions resulting from causes beyond its reasonable control including but not limited to Acts of God, enemy, fire, flood, explosion or other catastrophe.
1.24 Governing Law and Jurisdiction
1.24.1 This Terms and Conditions shall be construed in accordance with the laws of England & Wales and all disputes, claims or proceedings between the parties relating to the validity, construction or performance of the agreement shall be subject to the exclusive jurisdiction of the Courts of England & Wales.