At the time that the Business user approves the terms of a new project submitted by the Advisor, the Business shall enter into an Introduction and Expert Services Agreement with Invigorate and the Advisor. This agreement amongst others, includes clauses covering the roles and responsibilities of each party, fees, confidentiality, data protection, liability and termination.
INTRODUCTION AND EXPERT SERVICES AGREEMENT
This “Introduction and Expert Services Agreement” (“Agreement”) is between the Client (“Client”) and the Expert (“Expert”) and Invigorate Platform (“Invigorate”) as described in Section 1 (Parties). This Agreement governs the overall relationship between the parties and the provision of the Services by the Expert to the Client.
Parties will be provided advance notice of any material change to this Agreement and their continued participation on the platform after the last modified date will signify their acceptance of this Agreement (as amended from time to time).
Part A: Commercial Terms:
This Agreement is between the “Client” as confirmed upon sign-up to the platform, the “Expert” as confirmed upon sign-up to the platform and “Invigorate”, a company incorporated and registered in England and Wales with company number 12029947 whose registered office is at 20-22 Wenlock Road, London, N1 7GU.
2. Agreed terms
Commencement Date – The Start Date as detailed in the engagement scope agreed between the Expert and the Client
Term – The time period from the Start Date and the Finish Date as detailed in the engagement scope agreed between the Expert and the Client
Services – The project description/ services detailed in the engagement scope agreed between the Expert and the Client
Fees – The payment/cost field in the engagement scope agreed between the Expert and the Client
Invigorate’s Commission – Commission shall be payable to Invigorate by the Expert and calculated at the rate of 15% of any fees payable or paid by the Client (or any of the Client’s connected persons) to the Expert (or any of the Expert’s connected persons) to whom Invigorate has Introduced the Expert, or at such other rate as may be agreed in any Expert Services Agreement (as defined in clause 1.1 of Part B below), excluding any VAT and out of pocket expenses incurred by the Expert in providing such services.
Invoicing and Payment Arrangement – Upon completion of the Services (or a particular phase) or such other interval agreed between the Expert and the Client in the engagement scope, the Expert raises an invoice and sends to the Client on the Invigorate platform. The client accepts the invoice and makes payment. Invigorate uses the third party payment provider, Stripe Inc. to offer a robust and secure payment service.
3. Basis of Agreement
A. As from the Commencement Date, the Client, the Expert and Invigorate agree to be bound by the terms of this Agreement (as defined below).
B. This agreement comprises of the Commercial Terms in Part A and the General Terms in Part B, together with the Schedules and other documents referred to in it (the Agreement).
C. The terms of this Agreement apply to the exclusion of all other terms, conditions, warranties or representations including any terms or conditions specified or referred to in any quotation or acknowledgement issued by the Expert.
D. If there is any conflict, inconsistency or ambiguity between any provision in these Commercial Terms, the General Terms or any Schedule the following order of precedence shall apply (highest level of precedence first, lowest last): (i) the Commercial Terms; (ii) the General Terms; and (iii) any Schedule.
E. By the provision of details in the engagement scope, the Expert confirms acceptance of the terms of this agreement, and the Client by agreeing to the details in the engagement scope, the Client confirms acceptance of the terms of this agreement.
Part B – General Terms
1.1 In addition to the terms defined in the Commercial Terms, the following terms have the following meanings when used in this Agreement:
Applicable Regulations: any applicable regulations or rules from any governing body or regulator that the Expert is subject to or that apply to the provision of any Services.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commission: commission payable by the Expert to Invigorate pursuant to the Invigorate Platform Expert Agreement at the rate of 15%, of any fees payable by the Client to the Expert pursuant to this Agreement (excluding any VAT and out of pocket expenses incurred by the Expert in providing the Services).
Contract Year: the twelve month period starting on the Commencement Date and each successive 12 month period thereafter.
Engagement scope: The project description and terms of the engagement agreed between the Expert and the Client.
Relevant Contract: a contract (whether or not in writing) for the supply of services entered into by or on behalf of the Expert (or any of the Expert’s connected persons) and by or on behalf of the Client (or any of the Client’s connected persons) during the Relevant Period, which does not fall within the scope of the Services provided by the Expert to the Client pursuant to this Agreement.
Regulations: the Transfer of Undertakings (Protection of Employment) Regulations 2006.
Relevant Period: the duration of the Term and a period of 12 months after the expiration or termination of this Agreement.
Services: The project description/ services detailed in the engagement scope agreed between the Expert and the Client
1.2 References to statutes or statutory provisions shall be construed to include references to:
(a) those statutes or provisions as amended or re-enacted from time to time, or as their application is modified by other provisions (whether before or after the date of this Agreement);
(b) any statute or provision of which they themselves are re-enactments; and
(c) any orders, regulations, instruments or other subordinate legislation under the relevant statute or statutory provision.
1.3 A reference to a party shall include that party’s successors in title and permitted assigns.
1.4 Unless expressly stated to the contrary, in this Agreement:
(a) words denoting the singular include the plural and vice versa, words denoting any one gender include all genders, and references to persons include individuals, partnerships, bodies corporate and unincorporated associations;
(b) a reference to a clause, paragraph or Schedule is a reference to a clause or paragraph of, or a Schedule to, this Agreement;
(c) the Schedules form part of this Agreement and shall be construed and have the same full force and effect as if expressly set out in the main body of this Agreement;
(d) the headings in this Agreement are for ease of reference only and shall not in any way affect its construction or interpretation;
(e) any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms;
(f) where the context permits, “other” and “otherwise” are illustrative and shall not limit the sense of the words preceding them; and
(g) “in writing” or “written” includes email.
1.5 In this Agreement, the question of whether persons are connected persons shall be determined in accordance with section 1122 of the Corporation Tax Act 2010.
2. COMMENCEMENT AND DURATION
This Agreement shall be legally binding on the date that the Client agrees to the scope of engagement. This Agreement shall continue unless and until it is terminated by either party in accordance with clause 13
3. APPOINTMENT OF INVIGORATE AND EXPERT
3.1 The Client appoints Invigorate and the Expert on a non-exclusive basis to provide the Services, subject to and in accordance with the terms of this Agreement, and both Invigorate and the Expert accept such appointment on that basis.
3.2 The parties acknowledge that this is a non-exclusive appointment and both Invigorate and the Expert are entitled to provide to any third parties services that are of the same or a similar nature to those provided pursuant to this Agreement.
3.3 It is agreed and acknowledged by the parties that:
(a) the Expert is providing the Services directly to the Client (and not through Invigorate); and
(b) the Expert is not acting as an employee, agent or sub-contractor of Invigorate.
4. INVIGORATE’S ROLE AND RESPONSIBILITIES
Invigorate merely makes the site and platform available to enable experts and clients to find and transact directly with each other. Users are responsible for evaluating and determining the suitability of any Expert or engagement proposal on their own. Invigorate is not responsible for the Expert’s Services or dealings between the Expert and the Client.
5. THE EXPERT’S ROLE AND RESPONSIBILITY AND SERVICE STANDARDS
5.1 The Expert shall supply the Services to the Client from the Commencement Date in accordance with this Agreement.
5.2 During the Term, the Expert shall:
(a) perform the Services in accordance with the engagement scope agreed between the Expert and the Client;
(b) before the date on which the Services are to start, obtain and at all times maintain during the term of this agreement, all necessary licences and consents and comply with all applicable laws in relation to the Services;
(c) inform Invigorate immediately if the Expert suspends or ceases to perform the Services; and
(d) ensure the Services are provided at all times:
(i) in accordance with any Applicable Regulations and all applicable laws, statutes, regulations and codes from time to time in force and any policies notified by Invigorate or the Expert from time to time;
(ii) with the highest level of care, skill and diligence in accordance with best practice in the Expert’s industry or trade; and
(iii) by personnel who are suitably skilled and experienced to perform the tasks assigned to them, and in sufficient number to ensure that the Expert’s obligations are fulfilled.
6. THE CLIENT’S ROLE AND RESPONSIBILITY
6.1 Within a reasonable period following the completion of the provision of the Services by the Expert, the Client shall submit a written review of the Expert by means of Invigorate’s online platform.
6.2 During the Term, the Client shall:
(a) provide the Expert, in a timely manner, with such co-operation, assistance and information as may be reasonably required by the Expert to enable it to fulfil its obligations under this Agreement;
(b) participate in any review and evaluation process initiated by Invigorate provide a rating and review of the Expert and the Services upon request; and
(c) pay the Fees to the Expert in accordance with the Invoicing and Payment Arrangements set out in the Commercial Terms.
7. PAYMENT OF FEES AND COMMISSION
7.1 The Expert shall be responsible for the payment to Invigorate of the commission and any other sums in respect of the Services in accordance with the commission.
7.2 All sums payable under this Agreement:
(a) shall be made and managed through Stripe Inc, the secure third-party payments processor integrated within the Invigorate Platform
(b) shall be payable in pounds sterling;
(c) are exclusive of value added tax or other applicable sales tax, which shall be added to the sum in question;
(d) shall be paid in full without any deductions (including deductions in respect of items such as income, corporation, or other taxes, charges and/or duties) except where the payer is required by law to deduct withholding tax from sums payable
to the payee. If the payer is required by law to deduct withholding tax, then the payer and the payee shall co-operate in all respects and take all reasonable steps necessary to:
(i) lawfully avoid making any such deductions; or
(ii) enable the payee to obtain a tax credit in respect of the amount withheld.
7.3 If any party fails to pay any undisputed invoice by its due date, the party that has issued the invoice shall be entitled to charge interest on any undisputed amount outstanding at an annual rate equal to three per cent above the official Bank Rate from time to time (as determined by the Bank of England’s Monetary Policy Committee).
7.4 Termination of this Agreement, howsoever arising, shall not affect the continuation in force of this clause 7 and the Client’s obligation to pay the Fees to Invigorate in accordance with it.
8. PAYMENT OF RECRUITMENT FEES
8.1 If during the Relevant Period, the Client employs or appoints the Expert as a director or non-executive director to supply services which are not pursuant to this agreement, the Client shall notify Invigorate within five (5) Business Days of the commencement of such employment and subject to receipt of a valid invoice from Invigorate, the Client shall pay 15% of Expert’s estimated earnings over a twelve month period within thirty (30) days of the invoice date.
8.2 If during the Relevant Period, the Client engages with the Expert as a contractor, consultant or otherwise to supply services which are not pursuant to this agreement, the Client shall notify Invigorate within five (5) Business Days of the commencement of such contract and subject to receipt of a valid invoice from Invigorate, the Client shall pay 15% of Expert’s estimated earnings over a twelve month period within thirty (30) days of the invoice date.
9. WORK UNDERTAKEN OUTSIDE THIS AGREEMENT
9.1 The Client and the Expert shall give to Invigorate written notice of any Relevant Contract within five (5) Business Days of the earlier of:
(a) the date upon which such Relevant Contract is agreed; and
(b) the date upon which the Expert commences work under or pursuant to such Relevant Contract.
9.2 Without prejudice to Invigorate’s rights to Commission in respect of Services provided pursuant to this Agreement, the Expert shall be liable to pay to Invigorate any Commission due to Invigorate in respect of any Relevant Contract within 30 days of the end of each month in which the Expert provided the relevant services under such Relevant Contract.
10.1 Each party undertakes that it shall not at any time during this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2.
10.2 Each party may disclose any other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses any other party’s confidential information comply with this clause 10.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.
11. DATA PROTECTION
11.1 Each party shall comply with the obligations imposed upon them by all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679) (GPDR); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
12. LIMITATION OF LIABILITY
12.1 The Expert shall be solely liable for any claims (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) from the Client in respect of the provision of Services or otherwise in relation to the Expert’s obligations under this Agreement.
12.2 Subject to clause 12.6, Invigorate’s total aggregate liability, however caused, in respect of all claims (and series of related claims) arising in any Contract Year under or in connection with this Agreement shall be limited to a sum equal to 100% of all Commission received from the Expert and retained by Invigorate in such Contract Year (being, in respect of a series of related claims, the Contract Year in which the first of such claims arose).
12.3 Notwithstanding any other provision of this Agreement, but subject to clause 12.6, Invigorate shall have no liability however caused in each case whether suffered by the Client, the Expert or any third party for any:
(a) direct or indirect loss of or damage to:
(vii) anticipated savings;
(xi) use; or
(b) indirect or consequential loss or damage.
12.4 The parties agree that each of the sub-clauses in clause 12.3 and each of the sub-paragraphs in sub-clause 12.3(a) constitute separate terms and the introductory wording of clause 12.3 shall be applied to each of them separately. If there is any claim or finding that any such individual sub-clause or sub-paragraph is unenforceable for any reason, such unenforceability shall not affect any other provision within clause 12.3 or otherwise.
12.5 The term “however caused” when used or referred to in this clause 12 shall cover all causes and actions giving rise to liability of Invigorate arising out of or in connection with this Agreement: (i) whether arising by reason of any misrepresentation (whether made prior to and/or in this Agreement), negligence, other tort, breach of statutory duty, repudiation, renunciation or other breach of contract, restitution or otherwise; (ii) whether arising under any indemnity; (iii) whether caused by any total or partial failure or delay in supply of the Services; and (iv) whether deliberate (but not in bad faith) or otherwise, however fundamental the result.
12.6 Neither Invigorate’s nor the Expert’s liability shall be limited or excluded by any provision of this Agreement to the extent prohibited or limited by law and in particular nothing in this Agreement shall exclude or limit liability:
(a) for death or personal injury caused by negligence to the extent prohibited by law;
(b) for fraudulent misrepresentation or other fraud.
12.7 Except as expressly set out in this Agreement all warranties, conditions, terms and liabilities express or implied, statutory or otherwise, on the part of Invigorate, in respect of compliance with descriptions, quality or fitness for purpose are excluded except to the extent such exclusion is prohibited or limited by law.
12.8 The Expert shall indemnify Invigorate at all times against all claims, demands, costs (whether in contract, tort (including negligence), breach of statutory duty, or otherwise, and including legal costs on a full indemnity basis) expenses, losses and liabilities incurred by Invigorate as a result of any claim from the Client (against Invigorate arising out of this Agreement or the provision of any Services.
13.1 Without affecting any other rights or remedy available to it, any party may terminate this Agreement with immediate effect by giving written notice to the other party, for the reasons listed in (a) – (g). At such time, all parties shall be obliged to pay any amounts accrued but unpaid, in terms of this Agreement, at the date of termination.
(a) the Agreement is no longer practical for one of the parties to continue, or either party no longer requires, or is unable to fulfil, the services specified in the Agreement.
(b) one of the other parties commits a material breach of a term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;
(c) one of the other parties repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) one of the other parties takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up
(whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(e) one of the other parties suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(f) one of the other parties (being an individual) is the subject of a bankruptcy petition or order; or
(g) one of the other parties (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
13.2 In addition to the circumstances listed in clause 13.1, the Client shall have the right to terminate this Agreement on no less than 14 days’ written notice to the Expert in the event that the Client reasonably considers that the Expert has failed to perform the Services to the required standard. In such a case, the Client should pay the Advisor, as of the date of termination, any amounts accrued but unpaid as agreed in the scope of engagement.
14. CONSEQUENCES OF TERMINATION
14.1 On termination of this Agreement, the following clauses shall continue in force: clause 1, clause 7, clause 8, clause 9, clause 12 and clauses 14 to 24 (inclusive). In particular, it is acknowledged that the Expert shall remain liable to pay the Commission to Invigorate both:
(a) pursuant to any Expert Services Agreement; and/or
(b) in respect of any Relevant Contract.
14.2 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
15. NO EMPLOYMENT RELATIONSHIP, SUB-CONTRACTING, PARTNERSHIP OR AGENCY
15.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any employment relationship, sub contracting arrangement, partnership or joint venture between Invigorate and any of the parties, or constitute any party the agent of Invigorate, or authorise any party to make or enter into any commitments for or on behalf of Invigorate. It is further agreed that Invigorate is not an employment intermediary for the purposes of applicable laws and Invigorate only introduces Experts to Clients to be engaged directly to provide Services.
15.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
15.3 Upon any termination or expiry of this Agreement, or the termination of part of the Services or any change or reduction in the Services for whatever reason, the Expert (or its suppliers and other contractors) and the Client shall retain responsibility for all of its own employees and other personnel.
16. ENTIRE AGREEMENT
16.1 This Agreement together with the documents referred to in it 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.
16.2 Each party acknowledges that in entering into this Agreement 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 Agreement.
16.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
16.4 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18. ASSIGNMENT AND OTHER DEALINGS
This Agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
19. NO AUTOMATIC WAIVER
19.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
19.2 No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
20.2 If one party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
21.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, or by commercial courier, or email.
21.2 A notice or other communication shall be deemed to have been received:
(a) if delivered personally, when left at the address referred to in clause 21.1;
(b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
(c) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed;
(d) or, if sent by email, one Business Day after transmission.
21.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
22. THIRD PARTY RIGHTS
No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
23. GOVERNING LAW
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each of the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).