Freeman & Clarke Terms – Terms and Conditions of Business (V2.0)
How we work with you, in plain English:
- We are a close-knit group of highly experienced IT directors. Every one of our IT directors is carefully selected and screened in a series of tests and interviews.
- We are organised in regional teams. Each team is run by a Regional Director who is your point of escalation and account management.
- We will provide one of our IT directors to join your team. Of course you get to approve the individual we select and if you’re not happy at any point we’ll do our best to provide someone else.
- You and the IT director will agree the details of his, or her, work as you go along. He can do all the things you would expect of an IT Director, CTO or CIO. But he can’t be an actual Director or “shadow director” of your company.
- We will agree a monthly retainer (or sometimes a day rate) at the outset. You can vary the workload and the retainer with your IT director as you go along, but frequent changes are inconvenient and impractical for both sides.
- If you’re not happy you can simply tell us, we will stop work immediately, and you will only ever be billed for work done to date. You can exit the contract entirely by just giving us 30 days’ notice. Refunds are not possible.
- Any IT suppliers contract with your company, not with us as we work only for you and we must maintain our independence from suppliers.
- Unless we’ve agreed otherwise, our rates include our normal expenses travelling to/from your office.
- We’ll bill you on the last day of each month and payment is due on the 15th day of the following month.
- We can review the rates annually by giving you 30 days’ notice. Of course you can terminate if you’re not happy with this.
- We are not a recruitment business and you cannot recruit members of our team. This continues to apply for 6 months after we’ve finished working together.
- We will keep each other’s information confidential and comply with relevant data protection regulations.
- Full terms and conditions, which form part of this contract, are below.
1. Freeman and Clarke Limited (‘Freeman Clarke’) will provide the services (‘the Services’) of an experienced IT director (‘the IT Director’) to the firm or company (‘the Client’) identified below.
2. The Services:
2.1. will consist solely of advice provided to the management of the Client on matters that might reasonably be considered to be the responsibility of a full time IT director employed by the Client, including support from our wider team and other resources;
2.2. will not include the signing of a Companies House form AP01 appointing the IT Director as a director of the Client where the Client is a limited company
2.3. will not include any functions or actions that might be interpreted as the IT Director acting as a shadow director of the Client
2.4. will be provided by a suitable person selected by Freeman Clarke, or if at any time that person is unavailable then a suitable substitute selected by Freeman Clarke, subject to the Client’s prior approval;
2.5. will be provided at such times and at such locations as the Client and the IT Director shall agree from time to time.
3. Freeman Clarke will commence to provide the Services on the date of signature and shall continue to provide the Services until termination of the relationship in accordance with condition 5.
4. In the event that you make use of the Services without having signed this Contract, the provisions of this Contract will be deemed to have been accepted by you.
5. Either party may terminate the provision of Services by giving 30 days’ notice in writing to the other party.
6. The Client shall pay to Freeman Clarke a fee equal to the monthly fee or the daily rate for each Man Day as shall reasonably be agreed in writing between the parties (‘Man Day’ shall mean the provision of the Services by any one of Freeman Clarke’s personnel to the Client for a minimum of 7 hours on any weekday). These sums are exclusive of VAT but inclusive of travelling expenses and subsistence at the Client’s premises unless otherwise agreed.
7. The monthly fee or daily rate shall be reviewed on each anniversary of the commencement of the Services and Freeman Clarke shall give the Client 30 days written notice of any increase.
8. All payments to Freeman Clarke shall be made by the 15th day of the month following the invoice date. Freeman Clarke reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 (as amended).
9. Freeman Clarke is not a recruitment business. The Client understands and acknowledges the large investment Freeman Clarke makes in recruiting, building and developing its team of IT directors; that the IT directors are difficult and expensive to replace; that loss of an IT director may have a material impact on Freeman Clarke’s fees, potentially from multiple clients, some of whom might be lost altogether. Accordingly, the Client agrees that it will not, without Freeman Clarke’s prior written consent, at any time from the date the Client first meets an IT director of Freeman Clarke (“Team Member”) or commences this relationship, until 6 months after the last supply of Services, solicit or seek to solicit or entice away from Freeman Clarke or employ or attempt to employ or engage any person, firm or company who is or was a Team Member in the past 18 months. Any consent given by Freeman Clarke is subject to the Client paying Freeman Clarke a one-off fee, by way of liquidated damages, of £50,000 plus VAT. The Client acknowledges and agrees that this sum represents a fair estimation of Freeman Clarke’s losses and is reasonable and proportionate to protect its interests under this contract.
10. Nothing in these conditions excludes or limits Freeman Clarke’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation or for any matter which cannot be excluded or limited by law.
11. Subject to the above condition 10:
11.1 Freeman Clarke’s total liability in contract, tort (including negligence), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Services shall be limited to the total amount paid by the Client to Freeman Clarke for the Services or £100,000 (one hundred thousand pounds), whichever is greater; and
11.2 Freeman Clarke shall not be liable to the Client for any indirect or consequential loss including, but not limited to pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise; or any claims for consequential compensation.
12. A person who is not a party to the Contract shall not have any rights under or in connection with it.
13. Each party agrees to keep confidential all information obtained pursuant to this Contract, which is of a confidential nature or designated as such concerning the other party’s business, affairs, clients, suppliers, consultants or otherwise and only to disclose it (i) on a need to know basis to its employees, consultants, auditors, other professional advisers and insurers or (ii) if required by law or regulations.
14. This is not a Contract of Employment and therefore the Client is not obliged to offer work to Freeman Clarke and Freeman Clarke is not obliged to accept or carry out any work that is offered. The IT Director delivers the Services as an expert, not as an employee.
15. These conditions and the contract between Freeman Clarke and the Client shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
16. Both parties will comply with all applicable requirements of the Data Protection Legislation. This condition 16 is in addition to, and does not relieve, remove or replace, a party’s obligations under the DPL. Data Protection Legislation or DPL means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998. “Sub-Processor” means any agent, subcontractor or other third party (excluding its employees) engaged by Freeman Clarke for carrying out any processing activities on behalf of the Client in respect of the Personal Data (as defined in the DPL), including any IT director or its substitute appointed to deliver the Services.
17. The parties acknowledge that conditions 17 to 19 apply where for the purposes of the DPL, the Client is the data controller and Freeman Clarke is the data processor (where Data Controller and Data Processor have the meanings as defined in the DPL). Schedule 1 sets out the scope, nature and purpose of processing by Freeman Clarke, the duration of the processing, the types of personal data and categories of Data Subjects (as defined in the DPL).
18. Without prejudice to the generality of condition 16,
18.1 the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Freeman Clarke for the duration and purposes of this agreement; and
18.2 Freeman Clarke shall, in relation to any Personal Data processed in connection with the performance by Freeman Clarke of its obligations under this Contract:
(a) process that Personal Data only on the written instructions of the Client unless Freeman Clarke is required by the laws of any member of the European Union or by the laws of the European Union applicable to Freeman Clarke to process Personal Data (“Applicable Laws”). Where Freeman Clarke is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Freeman Clarke shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Freeman Clarke from so notifying the Client;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the following conditions are fulfilled:
(i) the Client or Freeman Clarke has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) Freeman Clarke complies with its obligations under the DPL by providing an adequate level of protection to Personal Data that is transferred; and
(iv) Freeman Clarke 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 DPL with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Client without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this condition 18 and allow for audits by the Client.
19. The Client consents to Freeman Clarke appointing a Sub-Processor as a third-party processor of Personal Data under the Contract. Freeman Clarke confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in condition 18. As between the Client and Freeman Clarke, Freeman Clarke shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this condition 19.
20. The Client shall indemnify and keep indemnified Freeman Clarke against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Client of its obligations under conditions 16 to 20.
21. Either party may, at any time on not less than 30 days’ notice, revise conditions 17 to 19 by replacing them with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Contract).
SCHEDULE 1: PROCESSING, PERSONAL DATA AND DATA SUBJECTS
1.1 SCOPE AND NATURE Any operation such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data (whether or not by automated means)
1.2 PURPOSE OF PROCESSING Freeman Clarke and/or its Sub-Processor will process the Client’s personal data only to the extent necessary for them to supply services to the Client pursuant to the Agreement and Article 6 (b) of GDPR.
1.3 DURATION OF THE PROCESSING The processing shall continue during the period of the Agreement and after such period, in accordance with Freeman Clarke’s retention policy.
2. TYPES OF PERSONAL DATA Contact details, date of birth, bank account numbers, salary, pension, benefits and/or payment information of employees and subcontractors of the Client and any other personal data provided directly or indirectly by the Client.
3. CATEGORIES OF DATA SUBJECT Employees, subcontractors, customers and suppliers of the Client.