1.1 We, Freeman and Clarke Limited, (we) will provide the services of an experienced Board-level IT leader (IT Leader) (Services) to you, the firm or company identified on the first page (you) in accordance with these terms and conditions (this Contract).
1.2 The Services will:
(a) consist solely of advice provided to your management on matters that might reasonably be considered to be the responsibility of a full time IT Director, CIO or CTO employed by you, including support from our wider team and other resources;
(b) not permit the signing of a Companies’ House form AP01 appointing the IT Leader as your director;
(c) not include any functions or actions that might be interpreted as the IT Leader acting as your director, officer or shadow director or requiring the IT Leader to manage your staff;
(d) be provided by the agreed person or a substitute we select with suitable skills, experience and qualifications and in the manner determined by us and the IT Leader with your agreement;
(e) be provided at such times and locations agreed between you and the IT Leader from time to time.
1.3 This is not a contract of employment and therefore you are not obliged to offer us work and we are not obliged to accept or carry out any work offered. The IT Leader delivers the Services as an expert, not as an employee.
2.1 Services start on a mutually agreed date and may terminate on a date agreed by both parties at the outset of the agreement or continue until termination of this Contract by either party giving 30 days’ written notice to the other.
2.2 You must sign this contract before Services commence. If you make use of the Services without having signed this Contract, you are deemed to accept its terms.
3.1 You will pay us a fee equal to the monthly fee or the daily rate for each Man Day as is agreed in writing between us. Man Day means the provision of the Services by one of our IT Leaders to you for a minimum of 7 hours on any weekday (other than a public holiday). The fee is exclusive of VAT. We will bear travelling expenses and subsistence at your premises unless otherwise agreed. You must pay us by the 15th day of the month following the invoice date.
3.2 We will review the fee annually and give you 30 days’ written notice of any increase.
4.1 We are not a recruitment business. You understand and acknowledge the large investment we make in recruiting, building and developing our team of IT Leaders; that the IT Leaders are difficult and expensive to replace; that loss of an IT director may have a material impact on our fees, potentially from multiple clients, some of whom might be lost altogether. Accordingly, you agree that you will not, without our prior written consent, at any time from the date you first meet one of our IT Leaders (Team Member) or commence this relationship, until 9 months after the last supply of Services, solicit or seek to solicit or entice away from us 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 we give is subject to you paying us a one-off fee, by way of liquidated damages, of £135,000 plus VAT. You acknowledge and agree that this sum represents a fair estimation of our losses and is reasonable and proportionate to protect our interests under this Contract.
5.1 Nothing in this Contract excludes or limits our liability for death or personal injury caused by our negligence or for fraud or fraudulent misrepresentation or for any matter which cannot be excluded or limited by law.
5.2 Subject to clause 5.1, our total liability in contract, tort (including negligence), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Services is limited to the total amount paid by you to us for the Services or £100,000 (one hundred thousand pounds), whichever is greater.
5.3 Subject to clause 5.1, we shall not be liable to you for any (a) indirect or consequential loss or (b)(i) loss of reputation, (ii) pure economic loss, (iii)loss of profit, (iv) loss of business or turnover, (v) depletion of goodwill (vi) loss of anticipated savings or (vii) wasted management time (in each case whether direct, indirect or consequential).
5.4 A person who is not a party to this Contract does not have any rights under or in connection with it.
6.1 We will each comply with all applicable requirements of the data protection legislation (DPL). The DPL Conditions dated September 2020 form part of this Contract and apply where you are the data controller and we are the data processor of the personal data (these terms are defined in the Data Protection Act 2018). The scope, nature, purpose and duration of our processing are set out in the DPL Conditions, as are the categories of data subjects and types of personal data to which our processing relates.
6.2 We each agree to keep confidential all information obtained pursuant to this Contract, which is of a confidential nature or designated as such concerning the other’s business, affairs, clients, suppliers, consultants or otherwise and only to use or 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.
1. We will each comply with all applicable requirements of the data protection legislation. This is in addition to, and does not relieve, remove or replace, our or your obligations under the DPL.
Data protection legislation or DPL means (i) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR 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 2018. Sub-Processor means any agent, subcontractor or other third party (excluding its employees) engaged by us to carry out any processing activities on your behalf in respect of the Personal Data (as defined in the DPL), including any IT director or its substitute appointed to deliver the Services.
2. Sections 3 to 5 below apply where you are the data controller and we are the data processor (these terms are defined in the DPL). Schedule 1 sets out the scope, nature and purpose of our processing, its duration, the types of personal data and categories of Data Subjects (as defined in the DPL).
3. In addition to the obligations in Section 1,
3.1 you will ensure that you have all necessary appropriate consents and notices in place to enable the lawful transfer of the Personal Data to us for the duration and purposes of this Contract; and
3.2 we shall, in relation to any Personal Data processed in connection with our performance of our obligations under this Contract:
(a) process that Personal Data only on your written instructions unless we are required by the laws of any member of the European Union or by the laws of the European Union applicable to us to process Personal Data (Applicable Laws); in which case, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless prohibited to do so under those laws;
(b) ensure that we have in place appropriate technical and organisational measures, reviewed and approved by you, 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 we adopt;
(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 United Kingdom or the European Economic Area unless:
(i) you (or we) have provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) we provide an adequate level of protection to Personal Data that is transferred, as per the DPL; and
(iv) we comply with reasonable instructions you notify to us with respect to the processing of the Personal Data;
(e) assist you, at your cost, in responding to any request from a Data Subject and in ensuring compliance with your obligations under the DPL with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify you without undue delay on becoming aware of a Personal Data breach;
(g) at your written direction, delete or return Personal Data and copies thereof to you on termination of this Contract unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate our compliance with this Section 3 and allow you to audit us.
4. You consent to us appointing a Sub-Processor as a third-party processor of Personal Data under this Contract. We confirm we have entered or 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 Section 3. As between you and us, we shall remain fully liable for all acts or omissions of any third-party processor we appoint.
5. Either of us may, at any time on not less than 30 days’ notice, revise the Sections above 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 We and/or our Sub-Processor will process your personal data only to the extent necessary for us to supply services to you pursuant to this Contract and Article 6(1)(f).
1.3 DURATION OF THE PROCESSING The processing shall continue during this Contract and after such period, in accordance with our retention policy.
2. TYPES OF PERSONAL DATAContact details, date of birth, bank account numbers, salary, pension, benefits and/or payment information and any other personal data you provide directly or indirectly.
3. CATEGORIES OF DATA SUBJECTyour employees, subcontractors, customers and suppliers.
Plain English board-level briefings focused on technology strategies to deliver competitive advantage and business success.
You can unsubscribe at any time.
Call us on 0203 020 1864 with any questions.
Co-Founder and Director