1. Supplier Rights and Obligations
1.1. The Supplier shall provide the Services with reasonable skill, care and experience. The Supplier shall decide the appropriate method and manner of performance of the Services but shall have due regard to the reasonable requests of the Client. The Supplier shall be present when and as required by the Client to communicate with and provide the Services at the Contract Site(s) or such other locations as are designated by the Client.
1.2. The Supplier warrants that:
1.2.1. in provision of the Services the Supplier will not infringe upon or violate the intellectual property rights or any other rights of any third party;
1.2.2. any computer code resulting from the provision of the Services will not contain Harmful Code. For the purposes of this Clause, Harmful Code means any computer code, programming instruction or set of instructions that is constructed with the ability to damage, interfere with or otherwise adversely affect computer programs, data files or hardware;
1.2.3. it will not use in provision of the Services any unlicensed or unauthorised software and that it will not load or download software onto or from the Client’s computers without the express permission of the Client.
1.3. The Supplier agrees:
1.3.1. not to engage in any conduct detrimental to the interests of the Client;
1.3.2. to engage in the provision of services for such time as is reasonable for the proper performance of the Services;
1.3.3. to take all reasonable steps to safeguard its own safety and the safety of any other person who may be affected by the provision of the Services;
1.3.4. to comply with any rules or obligations in force at the premises where the Services are performed to the extent that they are reasonably applicable to on-site visitors or independent Suppliers in the provision of the Services; and
1.3.5. to furnish the Client with any documentation or progress reports as may be reasonably requested from time to time.
1.4. The Supplier shall render all in-person services personally and may not utilise an alternative representative for such in-person services unless the Client agrees and in such event the Supplier shall keep the Client fully and effectively indemnified against any reasonable costs, claims or expenses that may be incurred by it or the Client as a result of such submission of staff including the reasonable cost of all instruction (necessitated by the substitution) for the alternative representative.
1.5. The Client agrees that the Supplier may do work for other parties during the Agreement Term.
1.6. The Supplier shall fully indemnify the Client against any loss claim or damages including costs arising from any breach of this Agreement or any negligent or unlawful act or omission by the Supplier. The Supplier expressly excludes liability for loss of profit or business or revenue or goodwill or any consequential loss or damage (other than actual liability to third parties) suffered by the Client or any third party as a result of the negligent action or inaction of the Supplier or any of its employees.
2. Client’s Obligations
2.1. The Client shall fully indemnify the Supplier against any loss claim or damages including costs arising from any breach of this Agreement or any negligent or unlawful act or omission by the Client, unless the same is caused by an action or other circumstance that falls within the scope of the Supplier’s indemnification of the Client pursuant to Clause 1.6. The Client expressly excludes liability for loss of profit or business or revenue or goodwill or any consequential loss or damage (other than actual liability to third parties) suffered by the Supplier or any third party as a result of the negligent action or inaction of the Client or any of its employees.
3. Fees and Tax Liabilities
3.1. In consideration of provision of the Services the Client will pay the Supplier the Fees in accordance with the payment terms specified in the Agreement and the appendix hereto entitled Invoicing and Payment Procedures plus VAT if applicable on receipt of a valid VAT invoice.
3.2. The Supplier will be solely responsible for all tax liabilities, national or state insurance and any other taxes, fees, charges, and deductions payable in respect of the Supplier or and any other of its employees.
4.1. The parties accept that:
4.1.1. any changes or additions to the scope of the Services or the Agreement Term (or any other modifications of the Agreement) will be valid only if agreed in writing between the Client and the Supplier; and
4.1.2. no changes to the Fees will be valid unless agreed in writing by the Client and the Supplier.
5.1. The Supplier agrees on behalf of itself, its officers and employees:
5.1.1. to treat as secret and confidential and not at any time for any reason to disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any unpublished information relating to the Client’s business, technology, software code or other know‑how, business plans or finances or any such information relating to a subsidiary, supplier, customer or client of the Client where the information was received during the currency of the Agreement;
5.1.2. not at any time to make a copy, abstract, summary or précis of the whole or any part of any document, computer program or other material belonging to the Client except when required to do so in the course of its duties in provision of the Services in which event any such item shall belong to the Client.
5.2. The provisions of this Clause shall not apply to:
5.2.1. Any information in the public domain otherwise than by breach of the Agreement; or
5.2.2. Information obtained from a third party who is legally entitled to divulge the same.
5.3. The provisions of the Clause 5 shall survive termination of the Agreement for whatever reason.
6. Work Product, Copyright and other IPR
6.1. The Supplier hereby grants the Client a non-exclusive, perpetual, world-wide license to all of the results and proceeds of the services provided by the Supplier, or any of its employees or subcontractors (if any), hereunder (“Work Product”), and all elements and components thereof, including but not limited to any software code, reports, manuals, plans, drawings, specifications or other documents or material, and all intellectual property rights therein.
6.2. The Supplier shall at the Client’s request provide to the Client the originals of all software code, reports, manuals, plans, drawings, specifications or other documents or material referred to in Clause 6.1.
7. Term and Termination
7.1. Unless terminated earlier in accordance with the provisions of the Clause, the term of the Agreement shall be the Agreement Term specified above.
7.2. Either party shall be entitled to terminate this Agreement immediately upon the giving of written notice to the other if:
7.2.1. the other party shall have committed a material or persistent breach of a term or terms of this Agreement and (if such breach is susceptible of cure) shall have failed to remedy the same within 5 days of receipt by the relevant party of written notice specifying the details of the breach complained of and requesting remedy thereof;
7.2.2. or if the Client shall become or is declared insolvent or bankrupt, or takes formal steps to commence insolvent winding up or is the subject of any proceeding relating to liquidation, insolvency or bankruptcy, or a receiver or similar officer is appointed over or in respect of its assets or compounds or makes an assignment for some or all of its obligations; and
7.2.3. in the case of the Client only, if the Supplier shall become or is declared insolvent or bankrupt, takes formal steps to commence insolvent winding up or is the subject of any proceedings relating to liquidation, insolvency or bankruptcy, or a receiver or similar officer is appointed over or in respect of its assets or compounds or makes an assignment for some or all of its obligations, or if the Supplier dies or becomes materially disabled or otherwise unable or unwilling to carry out the Supplier’s obligations under this Agreement.
7.3. In addition to the termination provisions set forth in Clause 7.2, the Client may terminate the Supplier’s services effective immediately at any time upon written or oral notice to the Supplier, with or without cause, for any reason whatsoever. Provided such termination was not for cause and that the Supplier remains in compliance with all continuing obligations hereunder, the Supplier shall be entitled to receive the balance of any fees for the Agreement Term when and as otherwise payable.
8.1. The Agreement constitutes the entire agreement between the Client and the Supplier with regard to the Services and supersedes all prior oral or written agreements, understandings, communications, or arrangements relating to services to be rendered by the Supplier for the Client or any relationships between them or otherwise relating to the subject matter of the Agreement.
8.2. If any provision of the Agreement shall be declared void or unenforceable by a court or other competent authority, such provision shall to the extent of such invalidity or unenforceability be deemed severable and the other provisions of the Agreement shall continue unaffected.
8.3. No variation or alteration of the Agreement terms shall be valid unless approved in writing by both the Client and the Supplier.
8.4. This Agreement is not intended to create any partnership, franchise, joint venture, agency, master-servant, or employment relationship between the parties, or any relationship other than that of independent contractors. Neither party may act in a manner that expresses or implies a relationship other than that of independent contractor, nor may either party bind the other. All parties agree that this Agreement is an Agreement for consulting services only.
8.5. Nothing in this Agreement shall be construed as implying an obligation by the Client to offer an extension to this Agreement or a further or replacement Agreement or any obligation by the Supplier to accept such if offered.
8.6. The rights and obligations of the Supplier under the Agreement shall not be assigned without the prior written consent of the Client which shall not be obliged to give any reason for withholding such consent. The Client may assign this Agreement in whole or part to any successor, affiliate or related entity.
8.7. Any notice required to be given under the Agreement shall be given by (i) hand delivery, (ii) by DHL, Fed-Ex or other recognized international courier; or (iii) by email or telecopier provided that if confirmation of receipt is not given within seven days, a confirming copy is sent by pre-paid recorded delivery letter sent to the party to whom it is addressed at its last known principal place of business or by one of the methods listed in (i) or (ii) above. Notice shall be deemed to have been served on the date of delivery of such notice.
8.8. Headings are for information only and shall not affect the construction or interpretation of the provisions of this Agreement.
8.9. The Agreement shall be governed by Scottish law. The parties agree that in the event of any dispute the Scottish Courts shall have exclusive jurisdiction.