Consultancy Agreement Terms
These standard Agreement Terms (subject to change from time to time) are in relation to consultancy services as outlined throughout the marchartog.xyz website, and serve Consultancy Proposals agreed with Clients via email or Electronic Forms. Marc Hartog Consultancy is the trading name of consulting work undertaken and invoiced by ART3.io Ltd (company number 13812805).
This Agreement is made between the Client as described in the Electronic Form; and Marc Hartog (the Consultant), on the date of Electronic Form submission.
Meanings
1.In this Agreement, the following words are defined:
Agreement
this consultancy agreement, including information presented alongside the Electronic Form and any changes that the parties agree in writing, and any amendments to these Terms from time to time;
Client Personal Data
any Personal Data that is processed by the Consultant on behalf of the Client in relation to this Agreement, but excluding data with respect to which the Consultant is a Controller;
Commencement Date
date of Electronic Form submission or Agreement via email;
Consultancy Fees
fees in relation to consulting or advisory work, as indicated alongside the Electronic Form or via email, being a fixed rate daily or hourly fee. Unless otherwise agreed, consulting days or hours undertaken over and above the initial Agreement will be invoiced at the published rate card at the time the work is undertaken. Monthly retainers quoted include a 10% time allowance for vacation;
Controller
has the meaning given in applicable Data Protection Laws from time to time;
Consultant Work
any Work developed, created, written, prepared, devised or discovered by the Consultant (or by any substitute permitted under this Agreement) in the course of providing the Services;
Crowdfunding Campaign
a catch all term for any equity fundraising campaign advised upon, managed or otherwise supported by the Consultant (or by any substitute permitted under this Agreement) in the course of providing the Services (including and excluding capital raised via Crowdfunding platforms);
Data Protection Laws
all applicable laws relating to the processing of Personal Data, including, for the period during which it is in force, the UK General Data Protection Regulation;
Data Subjects
has the meaning given in applicable Data Protection Laws from time to time;
Electronic Form
any form completed and submitted via the Consultants website or email, indicating agreement to the Services;
Employee
an individual employed by the Client or Consultant under a contract of employment;
Initial Target
in relation to a Crowdfunding Campaign, Initial Target refers to the fundraising target set by the Client at the start of the campaign, prior to any overfunding of this target;
Initial Term
the Initial Term as defined in the Electronic Form, subject to rollover if notice is not served within 1 month of either side of the end of the Intitial Term;
Intellectual Property
all existing or future intellectual and industrial property rights, anywhere in the world, in the Consultant Work, including any invention, patent, utility model right, copyright and related right, trade mark, trade name, internet domain name, design right, design, service marks, database right, typography right, right in get-up, right in goodwill or to sue for passing off and any other right of a similar nature whether registered (or capable of registration) and the right to apply for any of these;
Minimum Fee
is the floor at which fees are agreed for professional services, as indicated alongside the Electronic Form or via email, subject to a higher percentage of proceeds from a fundraising or sale transaction
Personal Data
has the meaning given in applicable Data Protection Laws from time to time;
Sale Fee
is the highest of the agreed Minimum Fee in relation to the sale of a company or assets of a company, as indicated alongside the Electronic Form or via email, and the agreed percentage of Total Gross Consideration
Services
(a) the services which are set out and described alongside the Electronic Form and (b) any other services agreed between the parties. The Consultant will carry out the Services remotely or at Client's business address, to be agreed as required. The Consultant will report to the Client's CEO unless otherwise directed by the Client;
Success Fee
fees in relation to successful completion of a Crowdfunding or other equity fundraising Campaign, as indicated alongside the Electronic Form or via email, being a percentage of Total Funds Raised and collected by the Client, subject to any Minimum Fee agreed;
Supervisory Authority
has the meaning given in applicable Data Protection Laws from time to time;
Term
the term of this Agreement as defined in the Electronic Form, rolled over from the Initial Term in the absence of notice being given, or otherwise until Termination of the Agreement;
Total Funds Raised
refers to the total capital raised via and alongside a Crowdfunding Campaign(s), being the greater of all investments confirmed by the chosen crowdfunding platform or received by the Client, gross of fees payable to the Consultant or any third parties;
Total Gross Consideration
refers to the total gross enterprise value upon a sale agreement, including additional value attributed via working capital, cash, completion account adjustments and any additional value assigned to future ‘earn out’, related bonus or other sale related consideration, whether in regard to sale of assets or shares;
Work
all forms of work, including works of authorship, products, documents, materials, discoveries, inventions, programs (including software programs and source code), databases, know-how, methodologies, ideas and designs;
2.In this Agreement, unless the context requires a different interpretation:
a. words denoting any gender include all genders;
b. the singular includes the plural and vice versa;
c. references to sub-clauses, clauses, schedules or appendices are to sub-clauses, clauses, schedules or appendices of this Agreement;
d. a reference to a person includes firms, companies, government entities, trusts and partnerships;
e. "including" is understood to mean "including without limitation";
f. reference to any statutory provision includes any modification or amendment of it; and
g. the headings and sub-headings do not form part of this Agreement.
Services
3.From the Commencement Date, the Consultant will perform the Services as requested by the Client.
4.The Consultant must:
a. spend as much time as necessary, within the agreed range of consulting days or hours, to perform the Services properly unless prevented by illness or injury (which they must notify to the Client as soon as reasonably practicable) and no fee shall be payable during any time period when the Services are not being provided to the Client;
b. perform the Services using reasonable care and skill and to the best of their abilities;
c. cooperate with the Client and attend meetings and discussions whenever the Client reasonably requests;
d. keep the Client properly informed of progress on all projects and give them written information when asked to;
e. comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption, including the Bribery Act 2010;
f. comply with the policies, procedures and rules that the Client reasonably requests. This always includes the Client's health and safety policies and procedures and if they become aware of any whilst providing the Services for the Client, the Consultant must always report any unsafe working conditions to the Client immediately.
5. During the Term, the Consultant may work for or be involved in any other business or undertaking, as long as doing this does not create a conflict of interest or interfere with the Services, unless otherwise agreed with the Client. For the avoidance of doubt, a ‘conflict of interest’ is any interest, direct or indirect, that would conflict in any way with the performance of the Services under the Agreement.
Status, equipment and resources
6. The Consultant is an independent contractor, in business on their own account. The parties agree that this Agreement and providing the Services do not make the Consultant an Employee, worker, partner, member or agent of the Client and the Consultant cannot hold themselves out as being any of these. The Consultant does not have (and must not hold themselves out as having) any authority to incur any expense to the Client or to bind the Client in any other way, without permission from the Client to do so.
7. The Client does not directly control the Consultant's actions. The Consultant can provide the Services in the way they choose, except when this Agreement states otherwise. The Consultant is not required to provide detailed timesheets of time spent delivering the Services.
8. The Consultant shall provide at their own cost, all necessary equipment and resources as is reasonable for the performance of the Services. The Consultant is responsible for maintaining and ensuring the safety of such equipment and resources as necessary.
9. If the Consultant's equipment or resources are stored on the Client's property, the Client must not use them without the Consultant's prior written consent and must contact the Consultant before making any changes to where or how they are stored.
10. The Consultant may use third parties to provide administrative functions relating to the Services, but must bear the costs of this in full and any such third party must, if requested by the Client, enter into direct promises with the Client, including relating to confidentiality.
11. The Services shall be provided at such locations and during such hours as the Consultant deems appropriate for the satisfactory performance of the Services.
Fees and Expenses
12. The Client must pay the Consultant the Consultancy Fees agreed for each task forming part of the Services (plus VAT if applicable). Fixed monthly retainers quoted include a 10% allowance for vacation time. With regard to Success Fees relating to Equity Campaign(s), the Consultant will invoice the Client the agreed percentage of Total Funds Raised the earlier of when the Initial Target is met or the Client becomes aware that the Initial Target will be met by commitments from investors. With regard to Sale Fees relating to the sale of a company or business asset, the Consultant will invoice the the Client the higher of any agreed Minimum Fee or the agreed percentage of Total Gross Consideration, at the point of Completion. In the event that the sale process has reached signed heads of terms (or similar) and does not complete, the Consultant will invoice the Client half of the agreed Minimum Fee. Unless otherwise agreed the Consultancy Fees will increase annually from 1st January at the higher of 5% or the prevailing rate of inflation in the previous year, as defined by the RPI.
13. The Client must pay the Consultant within 7 days of receiving an invoice from the Consultant, unless otherwise agreed by the Consultant in advance.
14. The Consultant reserves the right to claim interest, compensation and reasonable costs under the Late Payment of Commercial Debts (Interest) Act 1998 and it is agreed that the term implied by that Act shall apply after any judgment as well as before. Any reference to the Late Payment of Commercial Debts (Interest) Act 1998 is also a reference to any amendment, modification or re-enactment of it. If for any reason the Late Payment of Commercial Debts (Interest) Act 1998 does not apply, interest shall be payable on overdue amounts at 8% over the Bank of England Base Rate from time to time.
15. The Consultant is responsible for all non-travel expenses incurred by them while performing the Services except if the parties agree differently in writing in advance of any specific expenses being incurred. Reasonable travel expenses incurred by the Consultant in order to undertake the Services will be invoiced periodically. Reasonable travel time to meetings or the Client’s offices will not be charged (up to one hour each way). Longer travel times (including delays) will be chargeable at the agreed day rate (pro-rata for travel time).
16. If the Consultant agrees to end this Agreement early, the Consultant will be entitled to payment for Consultancy Fees for Services satisfactorily provided by the last day of the Term. With regard to Success Fees linked to Crowdfunding Campaigns, the Consultant will be entitled to invoice the Client for the agreed percentage of Total Funds Raised as per clause 12, irrespective of whether the Agreement has ended prior to completion of the Crowdfunding Campaign. If the Client does not proceed or terminates the Crowdfunding Campaign early against the advice of the Consultant, or rejects funds raised via the Crowdfunding Campaign, the Consultant will be entitled to invoice the Client for consulting time spent on the Crowdfunding Campaign at the published rate card.
Termination
17. This Agreement begins on the Commencement Date and ends when either party gives at least 3 month's advance written notice that they wish to terminate it; or when one of the grounds for immediate termination set out in this clause applies. Notice cannot be served until within 1 month of the end of the Initial Term, and if notice is not served within 1 month of either side of the end of the Initial Term, the Agreement will rollover to a new Term on the same basis.
18. The Client can terminate the Agreement in writing immediately without notice or payment of any compensation (without prejudice to other rights in law to terminate this agreement) if the Consultant:
a. is guilty of any misconduct;
b. commits any fundamental or repeated breach of this Agreement or the Consultant is negligent or incompetent in performing the Services;
c. commits a criminal offence relating to or acts in any way dishonestly in the course of providing the Services, which damages or is likely to damage their or the Client's reputation;
d. becomes bankrupt or has a county court administration order made against them under the County Court Act 1984.
19. The Consultant can terminate this Agreement immediately without notice or payment of any compensation if the Client:
a. commits any breach of this Agreement;
b. commits a criminal offense or acts in any way dishonestly, whether or not while the Consultant is providing the Services, which damages or is likely to damage the Consultant's or the Client's reputation;
c. is a company and is dissolved or stops conducting substantially all of its business or cannot pay its debts as they fall due or a receiver is appointed over any of its property or assets or it is subject to an administration order (within the meaning of the Insolvency Act 1986) or goes into liquidation; or
d. is a natural person and is bankrupt, applies for or is the subject of a receiving order or makes any composition or enters any deed of arrangement with their creditors or has a county court administration order made against them under the County Court Act 1984.
e. has not settled any outstanding invoices within a 7 day period following the date payment is due.
Confidential information
20. During the Term, the Consultant may have access to confidential information about the Client and its business(es) which includes documents and information whether written, electronic or otherwise, which is any non-public information concerning the Client's:
a. finances, operational model, business plans and sales and marketing information, plans and strategies, business transactions, research activities and dealings and affairs, trade secrets including technical data and know-how;
b. customers, suppliers, licensors, licensees, agents, distributors, shareholders, management, contractors or other business contacts including, without limitation, lists of, identities of, contact details of and requirements of such persons, pricing or price structures, discounts, special prices or special contract terms offered to or by or agreed with such persons;
c. Intellectual Property, existing and planned goods, product lines or services and their components and any underlying technology or proprietary materials;
d. computer and communications systems, source codes and software; in each case whether past, current, future or prospective, whether the Consultant creates, develops, receives or obtains the information, whether it is marked confidential or not. Confidential information does not include any information which is generally available to the public other than through the Consultant's breach of this Agreement.
21. During and after the Term, the Consultant must not use or disclose or allow the use or disclosure of any confidential information, except:
a. as necessary to properly perform the Services; or
b. with the Client's prior written consent or as required by law or ordered by a court of competent jurisdiction.
22. As soon as this Agreement ends, the Consultant must return to the Client all materials, equipment, property and documents that they have or control that either belong to or relate to the Client or its business or clients;
23. The Client may have access to the confidential information of the Consultant included in the first clause in this section on confidential information and the Client agrees not to use or disclose or allow the use or disclosure of any such confidential information without the Consultant's prior written consent apart from if the second clause in this section on confidential information applies.
Insurances
24. The Consultant shall have personal liability covering any loss, liability, costs (including reasonable legal costs), damages or expenses arising from any breach by the Consultant or a substitute engaged by the Consultant of the terms of this agreement including any negligent or reckless act, omission or default in providing the Services.
25. The Client shall have professional liability insurance covering any loss, liability, costs (including reasonable legal costs), damages or expenses arising from the normal course of its business activities.
Data Protection
26. Both parties shall comply with their obligations under the Data Protection Laws, so far as they relate to their obligations under this Agreement.
27. The Consultant shall only process the Client Personal Data during and for the Term of this Agreement.
28. The Consultant shall not transfer any personal data obtained from the Client outside of the UK or the European Economic Area (EEA) unless the prior written consent of the Data Subject has been obtained.
29. The Client will use appropriate technical and organisational measures to keep the Consultant's data secure, and in particular, to protect against unauthorised or unlawful processing and against accidental loss, destruction or damage.
Warranties and indemnities
30. The Consultant represents and warrants that they are not aware of any obligation which would restrict or prohibit them from complying with this Agreement.
31. Neither party will be liable for:
a. any form of indirect, consequential or special loss;
b. any loss or corruption of any data, database or software;
c. any loss of business, contracts or commercial opportunities or any other form of pure economic loss, direct or indirect.
32. Nothing in this Agreement:
a. limits or excludes a party's liability for causing death or personal injury by their negligence;
b. limits or excludes a party's liability for their fraud or fraudulent misrepresentation; or
c. limits or excludes a party's liability in any way not permitted under applicable law.
33. The total liability of both the Client and Consultant (however arising) under the Agreement will not exceed the total amount paid or owed by the Client to the Consultant under this Agreement, for which the Consultant is solely responsible for paying tax and National Insurance Contributions on payments to them in respect of payments to them for the Services.
34. The Client fully indemnifies the Consultant against any and all claims arising against the Client with regard to Crowdfunding or any other services for which the Consultant offers advice. The Client accepts that it retains full and total responsibility for all decision making and as such retains sole liability for any claims arising.
35. All warranties, conditions and other terms implied by law are excluded from this Agreement unless stated in this Agreement, as far as permitted by law.
Intellectual Property
36. The Consultant assigns to the Client absolutely as beneficial owner with full title guarantee the Intellectual Property for the full term of those rights and all renewals and extensions, together with all accrued rights.
37. The Consultant will not register or attempt to register any of the intellectual property rights in any work carried out during this Agreement, unless at the Client's request. The Consultant will do all acts necessary to confirm that absolute title in all intellectual property rights in the work carried out during this Agreement and any inventions has passed, or will pass, to the Client. The Consultant will do everything necessary to give effect to this clause both during and after this Agreement.
38. The Consultant appoints the Client to execute documents on its behalf and do all things necessary or desirable for the Client to obtain the full benefit of this clause.
Circumstances beyond the control of the parties
39. A party to this Agreement is not liable for failure or delay in performing its obligations if that failure or delay is caused by something beyond their reasonable control. In these circumstances, the affected party must notify the other party or parties as soon as reasonably practicable.
Entire Agreement
40. This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes all prior discussions, warranties, representations, assurances, arrangements or agreements that might have taken place orally or in writing in relation to the Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
General
41. No party can assign, transfer or sub-contract their rights and obligations under this Agreement without the prior written consent of the other party, which cannot be unreasonably withheld.
42. Only changes to this Agreement that are in writing and signed by the parties are valid or binding.
43. The Contracts (Rights of Third Parties) Act 1999 does not apply to this Agreement and no third party has the right to enforce or rely on any provision of this Agreement.
44. This agreement may be executed in any number of counterparts, each of which, when executed, is a duplicate original, but all the counterparts together form one agreement.
45. No delay, act or omission by a party in exercising any right or remedy is a waiver of that, or any other, right or remedy unless the parties agree differently.
46. Provisions of this Agreement which are stated or intended to continue in force after this Agreement ends will do so.
47. If any court or competent authority decides that any part of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that part will be deemed deleted so far as necessary without affecting the other parts of this Agreement, which will continue to be valid and enforceable.
48. Any notice to be delivered under this Agreement must be in writing and delivered by pre-paid first class post or left by hand delivery at the registered address or place of business of the notified party, or sent by email to the other party's main business email address as notified to the sending Party.
49. Notices:
a. If any notice is sent by post within the United Kingdom, it is deemed to be received on the second working day after posting. Notices sent by post from or to addresses outside the United Kingdom are deemed to be received on the tenth working day after posting. Notices delivered by hand are deemed to be received at the time the notice is left at the proper address and notices sent by email are deemed to be received on the day of transmission.
b. The above clauses do not apply to the service of any proceedings or other documents in any legal action.
Governing law and jurisdiction
50. This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.