1. These Terms and Conditions
1.1 These terms and conditions will apply to all services (“the Services”) provided by Q5 Partners LLP (“Q5”) to you, the client or customer (“you”) until expressly excluded, amended or varied in writing by an authorised representative of Q5.
1.2 These Terms and Conditions together with our Engagement Letter (“the Engagement Letter”) will form the agreement between you and Q5 in relation to the Project referred to in the Engagement Letter. If Q5 undertake work which is outside of the scope of an Engagement Letter or for which an Engagement Letter has not been issued, these terms will continue to apply subject to our standard charges from time to time.
2.1 Q5 will issue an Engagement Letter to you for each separate Project in which Q5 are engaged (a “Project” or an “Engagement”). Once the Engagement Letter has been signed by you Q5 will commence work on the agreed date. Q5 may require a copy of your internal purchase order before commencing work.
2.2 Each Engagement Letter will set out the following information:
(a) The scope of work for which Q5 are engaged (and for the avoidance of doubt Q5 will be entitled to charge for work which is not reflected in the scope of work);
(b) The approximate timescales for the work (however time shall not be of the essence in relation to such timescales);
(c) Q5’s rates and expenses policy for the Engagement;
(d) The consultants who are expected to carry out the work on your behalf (although Q5 will, in accordance with clause 7.3 be entitled to supply a substitute);
(e) Any specific resources which may be required in order to deliver the Project;
(f) Contact details and any other relevant information.
3. The Services
3.1 Q5 will provide their Services with the reasonable skill and care to be expected of a competent professional and Q5 agree that they have the resources, expertise and skills to carry out the Services as agreed in an Engagement Letter. No further conditions, warranties or representations are given by Q5 in relation to the Services provided other than expressly stated in these Terms.
3.2 If you request any Services which are not expressly set out in an Engagement Letter then such Services will be subject to additional charges at our standard rates from time to time.
3.3 Q5 are providing specific advice only in relation to each Engagement and for no other purpose. Q5 will not be responsible for any use of their advice for a different purpose or in a different context. If you plan to use this advice in relation to any other matter or context please let Q5 know and provide Q5 with all necessary information so that Q5 can provide advice tailored to the appropriate circumstances (an additional charge may be payable in that event).
3.4 Any decisions made by you following Q5’s advice are commercial decisions for you and Q5 will not make any business or commercial decisions on your behalf. When making any business or commercial decisions you must take into account any other factors apart from Q5’s advice and consultation services of which you and your other advisers are or should be aware.
4. Charges and Payments
4.1 You agree to pay Q5’s charges and expenses as set out in each Engagement Letter or in accordance with Q5’s standard rates from time to time. Fees are quoted based on normal working hours excluding public holidays unless agreed otherwise in our Engagement Letter.
4.2 Invoices will be issued to you on a monthly basis. Invoices will be payable 30 days from the invoice date. All sums due from you which are not paid on the due date shall bear interest from day to day at the rate equal to 8% per annum above the Bank of England base rate from time to time. Payment shall be made without any set-off, deduction or counter-claim.
4.3 During any period in which payments from you are overdue Q5 may suspend work.
4.4 Expenses will be charged to you in accordance with the Engagement Letter. If no express policy is set out in the Engagement Letter you agree to pay all reasonable expenses incurred by Q5 or their employees or subcontractors in carrying out the Services on your behalf.
4.5 Expenses will be invoiced at the end of each month and will be payable in accordance with Q5’s invoice terms. For the avoidance of doubt “reasonable expenses” shall include without limit: travel expenses, petrol mileage allowance at standard HMRC rates, sustenance expenses not exceeding £40 per employee or subcontractor per day and copying and printing charges.
4.6 Q5 shall bear exclusive responsibility for the payment of National Insurance contributions, income tax and VAT arising from the work performed by their employees under this agreement, and their subcontractors will be responsible for payment of their own National Insurance contributions, income tax and VAT.
5. Your Obligations
5.1 In order to allow Q5 to provide the Services you agree that you, together with your employees and agents will at all times:
(a) provide Q5 with complete, accurate and timely information, data and documents;
(b) carry out any obligations which are your responsibility as set out in these Terms;
(c) co-operate fully with Q5 in the provision of their Services and to permit them to provide their Services free of obstruction and interference;
(d) pay Q5’s fees and expenses as set out in the Engagement Letter or these Terms and Conditions and;
(e) comply at all times with the terms of this agreement.
5.2 You agree that Q5, its employees and subcontractors will be provided with access to your premises and will be provided with office accommodation and such facilities as may be necessary including computer consumables, storage, data preparation and communication facilities.
6. Termination of an Engagement
6.1 You will be entitled to terminate an Engagement prior to commencement of that Engagement provided that Q5’s termination fees are paid as follows:
6.1.1 If you terminate an Engagement more than two weeks prior to the intended commencement of that Engagement then you will be required to pay an administration charge equal to 10% of the total fees which would be payable for that Engagement;
6.1.2 If you terminate less than two weeks prior to an intended commencement of an Engagement (but before that Engagement has started) you agree to pay an amount equal to 50% of the fees which would be payable for that Engagement.
6.2 You will be entitled to terminate an Engagement once an Engagement has commenced on four weeks’ written notice provided that you also pay a termination fee equal to 50% of the fees which would be payable for that Engagement less the amount already paid by you (if any). If you terminate without giving 4 weeks’ notice you also agree to pay an amount equal to the fees which would be payable for that Engagement during the notice period.
6.3 Q5 will be entitled to terminate this agreement on notice to you in the event that:
(a) you fail to pay any invoice when due (whether such invoice relates to our expenses, charges or both);
(b) you fail to co-operate with Q5 in the performance of their Services;
(c) you are in material breach of any other provision of Q5’s agreement with you.
PROVIDED ALWAYS that in the case of any breach capable of remedy Q5 have provided you with a period of 30 days to remedy the breach. In the event of termination by Q5 under this clause 50% of the remaining fees which would be payable for the Engagement as set out in the Engagement Letter, will be payable by you less a discount equal to 10% of such charges for accelerated payment.
6.4 You agree that the termination payments specified above are a reasonable pre-estimate of the losses which Q5 would suffer in the event of termination having regard to:
(a) The necessity of Q5 planning in advance the time of employees and associates;
(b) The fact that other engagements may have been declined to accept an Engagement; and
(c) The staff and other costs incurred by Q5 in the event of termination.
7. Q5’s Staff and Contractors
7.1 Q5 shall have discretion as to which of their employees or subcontractors are assigned to perform the Services. Q5 will endeavour to provide a specific consultant if requested by you and Q5 will consult with you in relation to any significant changes to the consultants engaged in relation to your Project.
7.2 Q5 may use either their employees or self-employed associates to perform Services on your behalf where specific skills, experience or capabilities are required.
7.3 From time to time a consultant may be unavailable to carry out an Engagement and in those circumstances Q5 will be entitled to provide a substitute consultant subject to your right to remove such replacement consultant from the Engagement on giving Q5 seven days’ notice in writing.
7.4 Q5 is an independent contractor and no employment relationship will be created by any provision of Services by Q5 to you. Q5, its employees and subcontractors will not be subject to directions from you as to the manner in which work is performed and Q5 shall be entitled to subcontract any of their rights or duties under this agreement.
8. Liability and Insurance
8.1 You agree that Q5’s liability in respect of any loss under their agreement with you shall be limited in accordance with these Terms and Conditions.
8.2 Q5 will not be liable to you for any indirect or consequential loss or damage such as lost profit, lost opportunity, lost bargain, lost reputation or otherwise and whether caused by Q5’s negligence, the negligence of their employees or agents or otherwise.
8.3 Q5’s aggregate liability including the liability of their partners, agents, subcontractors and employees under any agreement with you will be limited to the amount of Q5’s professional indemnity insurance cover from time to time. Q5 will not be liable to any party other than the person to whom the Engagement Letter is addressed. If the Engagement Letter is addressed to more than one party then Q5’s limit of liability will be allocated between those parties.
8.4 You accept that the limitations of Q5’s liability set out above are reasonable in all the circumstances given the disparity between the fees charged by Q5 and the value of the Project to which their advice may relate and the numerous variables and uncertainties associated with the Projects on which Q5 are engaged.
8.5 Q5 agree that they will hold with a reputable insurer professional indemnity insurance providing a minimum cover not less than £2,000,000 per claim or series of connected claims.
9. Non-solicitation of Q5 Staff and Contractors
9.1 You undertake that neither you, including for this purpose any subsidiary group or associated company (nor any person connected with you), will directly or indirectly whether on your own account or on behalf of another, recruit as an employee or engage as an independent subcontractor any person, partnership, organisation or company who is or has been employed or engaged by Q5 in connection with the performance of Services for you for a period of twelve months after such person last
provided Services to you without paying Q5’s introduction fees as set out below in clause 9.2.
9.2 In the event that you do engage an employee or subcontractor of Q5 as set out in clause 9.1 you agree to pay an introduction fee equal to:
(a) 50% of the annual remuneration payable by you to the relevant individual in the year following the last day Services were provided to you where the relevant individual has been engaged as an employee (and any remuneration shall include all pay and benefits); or
(b) thirty (30) times the daily rate paid or payable by you to that subcontractor for the Services for which they are engaged or 50% of the total consultancy fees paid to that subcontractor by us in the year prior to the last day Services were provided to you (whichever is the higher) where the relevant individual has been engaged as a subcontractor, agent or associate.
10. Intellectual Property (“IP”) and Confidentiality
10.1 All IP rights including copyright which are capable of existing in any documents, computer software or other materials created or provided by Q5 or its employees or associates shall be and remain the property of Q5.
10.2 You undertake to keep all materials, documents and information provided by Q5 confidential to yourself and your employees and not to distribute any product of the Services provided under this agreement to any third party without Q5’s prior written consent (save where you are required to disclose such information by law).
10.3 Any materials produced or supplied by Q5 in which IP rights are capable of subsisting shall be licensed to you for your internal use only in connection with the purposes of Q5’s engagement. Such licence shall terminate immediately if this contract is terminated in accordance with clause 6.3.
10.4 Each of you and Q5 agree with each other that during the course of this contract they will not infringe the IP rights of any third party.
10.5 Each party agrees with the other not to divulge or allow to be divulged any confidential information relating to the other’s business or affairs other than to its employees or subcontractors who are subject to appropriate non-disclosure undertakings (if required), or where the other party has consented to such disclosure.
10.6 Q5 shall be entitled to refer to the provision of Services to you for any purpose in connection with its business provided that prior to any published reference to you Q5 shall give you an opportunity to object to such reference and in the event of the objection upon reasonable grounds will not refer to you as proposed.
10.7 You may not disclose or discuss with Q5’s subcontractors or with any of our employees any of the terms of this contract or the terms of any other contract or arrangement between you and Q5 including for the avoidance of doubt any contract price payable. Any such discussions or disclosures may only be between you and the authorised contact referred to in our Engagement Letter.
11. Data Protection and Security
11.1 As the employer, you are responsible for ensuring that your employees are aware of their rights with regards to their personal data and for compliance with the Data Protection Legislation (as defined in Schedule 1) in relation to your processing of such personal data.
11.2 In signing these terms and conditions, it is assumed that you have obtained the relevant permissions, as required by the Data Protection Legislation (as defined in Schedule 1), in relation to the processing and transfer of Client Data for processing by a third party.
11.3 Q5 will not accept any liability for your employees who make claims in relation to inappropriate management of their personal data by you or for your failure to comply with clause 11.2.
11.4 In line with data protection principles, we only keep Client Data for as long as we need it for. On completion of the project we delete all emails containing Client Data and retain only final and “as received” versions of files with personal data fields removed.
11.5 The parties agree to comply with the data processing terms as set out in Schedule 1 of this Agreement in relation to the supply and processing of Client Data.
12. Dispute Resolution
12.1 In the event of any dispute arising between the parties in connection with this agreement, the parties will in good faith seek to resolve that dispute through mediation. The mediator shall be agreed upon within seven days of one party requesting mediation, failing which the mediator shall be appointed by the then Professional Standards Manager of the Institute of Management Consultancy. Unless otherwise agreed, the parties shall share equally the costs of the mediation. If the dispute is not resolved within 30 days or one of the parties refuses to participate in mediation, the dispute shall be resolved by way of litigation. Nothing in this clause shall prevent either party seeking a preliminary injunction or other judicial relief at any time if in its judgment such action is necessary nor shall Q5 be precluded from issuing proceedings or taking any other steps in relation to the non-payment of monies due.
13.1 Each of the parties warrants its power to enter into this agreement and has obtained all necessary approvals to do so.
13.2 Both parties shall be released from their respective obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties or either of them renders the performance of this agreement impossible, whereupon all money accrued due under this agreement shall be paid.
13.3 Each party acknowledges that this agreement (as varied) and the conditions contain the whole agreement between the parties and that it has not relied upon any oral or written representations made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
13.4 Any notice to be served on either of the parties by the other shall be sent by pre-paid recorded delivery or registered post to the address of the relevant party shown on an Engagement Letter or such other physical or electronic address as may be notified by one party to the other.
13.5 Headings contained in this agreement are for reference purposes only and should not be incorporated into this agreement and shall not be deemed to be any indication of the meaning of the clauses to which they relate.
13.6 This agreement shall he be governed by English law in every particular including formation and interpretation and shall be deemed to have been made in England.
13.7 Any proceedings arising out of or in connection with this agreement may be brought in any court of competent jurisdiction in England or Wales.
13.8 Failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this agreement shall not be a waiver of them or the right at any time subsequently to enforce all terms and conditions of this agreement.
Data Processing Clauses
Data Protection Legislation: all laws and regulations, including laws and regulations of the European Union, the European Economic Area, their member states and the United Kingdom, applicable to the processing of Personal Data under an Agreement, including (where applicable) the GDPR and any subsidiary legislation made pursuant to the foregoing.
Data Subject: shall have the meaning given to it in the Data Protection Legislation.
GDPR: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
Model Clauses: the contractual clauses stated in the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (or any subsequent or replacement contractual clauses relating to such transfers issued pursuant to the Data Protection Legislation).
Personal Data: shall have the meaning given to it in the Data Protection Legislation.
1. During the term of the Engagement, we will have access to the following Personal Data concerning your employees:
• name and email address
• job information including, tenure, grade, team, job family and manager
• details of working hours and employment status
• information on salary and bonus
• Any other information set out in the Engagement Letter. (“Client Data”).
We will have access to Client Data solely in order to provide the Services to you (the
2. In respect of all Client Data, we will:
(a) implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of accidental, unauthorised or unlawful destruction, loss, alteration, disclosure of, or access to Client Data, including as appropriate: (i) pseudonymisation and encryption of Client Data; (ii) ensuring the ongoing confidentiality, integrity, availability and resilience of the Supplier’s systems; (iii) the ability to restore Client Data in a timely manner in the event of an incident; and (iv) regular testing of all security measures;
(b) comply with the Data Protection Legislation in relation to the processing of Client Data;
(c) process Client Data solely for the Purpose and as otherwise expressly instructed by the Client in writing (unless the Data Protection Legislation requires that we act without such instructions);
(d) not transfer the Client Data outside of the European Economic Area, except on the following conditions:
(i) you shall have authorised such transfer in writing in advance of the transfer and the Model Clauses are entered into between us; or
(ii) if an alternative recognised compliance standard for the lawful transfer of personal data (as defined in the Data Protection Legislation) outside the EEA applies.
(e) transfer all Client Data to you upon request;
(f) upon termination of this Agreement, delete all Client Data from our and any sub-contractors’ systems save where we are required to retain such Client Data by applicable laws;
(f) ensure that all individuals who have access to Client Data are made subject to appropriate conditions of confidentiality and have undertaken appropriate training in the laws and best practice relating to the handling of personal data;
(g) notify you without undue delay if we receive a request in respect of Client Data from: (i) a regulator or law enforcement authority; or (ii) a Data Subject (including a ‘subject access request’);
(h) notify you promptly if we are asked to do something in relation to the Services which infringes the Data Protection Legislation or the data protection laws of the EU or a member state thereof;
(h) assist you in: (i) allowing Data Subjects to exercise their rights under the Data Protection Legislation; and (ii) meeting your obligations under the Data Protection Legislation in relation to the security of processing, the notification of personal data breaches and data protection impact assessments (insofar as these relate to the Engagement);
(h) make available to you upon request all information necessary to demonstrate our compliance with this Schedule 1;
(i) allow you, at your cost (and subject to a pre-agreed audit fee) to inspect and audit any of our facilities where Client Data is processed to ensure compliance with the terms hereof. You will give us reasonable notice of any audit or inspection to be conducted and shall ensure (and shall procure that each of your mandated auditors) minimise the disruption to our business in the course of such an audit or inspection. We need allow for an inspection or audit no more than once in any calendar year, except for any additional audits or inspections which you are required or requested to carry out by Data Protection Legislation or a supervisory authority;
(j) in the event of any unauthorised or unlawful processing of any part of Client Data, notify you without undue delay and fully co-operate with you to remedy the issue as soon as reasonably practicable;
(a) We may sub-contract any part of the Services that involves the processing of Client
Data at our discretion to a third party (“Sub-Processor”), provided that we shall remain fully liable to you for any default of the Sub-Processor and provided that:
(i) we will notify you in advance by email of any changes to the list of SubProcessors in place as at commencement date of the Engagement (except for emergency replacements (as set out below) or deletions of Sub-Processors without replacement).
(ii) If you have a legitimate reason that relates to the Sub-Processors’ processing of Client Data, you may object to our use of a Sub-Processor, by notifying us in writing within thirty days after receipt of our notice. If you object to the use of the Sub-Processor, we will come together in good faith to discuss a resolution. We may choose to: (i) not use the Sub-Processor or (ii) take the corrective steps requested by you in your objection and use the Sub-Processor. If none of these options are reasonably possible and you continue to object for a legitimate reason, either party may terminate the Engagement on thirty days’ written notice. If you do not object within thirty days of receipt of the notice, you are deemed to have accepted the new Sub-Processor. If your objection remains unresolved sixty days after it was raised, and we have not received any notice of termination, you are deemed to accept the Sub-processor.
(b) Emergency Replacement
We may change a Sub-Processor where the reason for the change is outside of our reasonable control. In this case, we will inform you of the replacement Sub-Processor as soon as possible. You retain the right to object to a replacement sub-processor under clause (3) (a) (ii) above.