THIS AGREEMENT BETWEEN:
WELLBEING CONNECTION a company incorporated in England and Wales.
PRACTITIONER’S NAME of PRACTITIONER’S ADDRESS OR COMPANY NAME a company incorporated in England and Wales under company number REGISTRATION NUMBER and whose registered office is at ADDRESS (“the Practitioner”).
The Contractor has entered into a contract dated on or before this Agreement for the performance of works required by the customer of the Practitioner (“the Works”) and the Contractor wishes to sub-contract certain parts of the Works to the Practitioner.
IT IS AGREED AS FOLLOWS:
1. The Practitioner, as an independent contractor for all purposes agrees to furnish all the labour, tools and materials as may reasonably be required to carry out the following work (“the Sub-contract Work”) in accordance with the terms and conditions of this Agreement.
2. The Practitioner agrees to perform the Sub-contract Work in a good and workmanlike manner and to use reasonable care and skill and to comply with any reasonable directions given by the Company regarding the Sub-Contract Work.
3. The Practitioner warrants, represents and undertakes that it will comply with all relevant statutes, laws, regulations and codes of practice from time to time in force.
4. The Practitioner agrees that the Sub-Contract Work will be completed by the date specified by the Employer instructing work, time being of the essence.
5. The Contractor agrees to pay the Practitioner the sum of the package agreed upon by the Client inclusive of all taxes as payment for the Sub-contract Work. This sum will be paid to the Practitioner on completion of the Sub-contract Work.
6. The Contractor agrees to pay the Practitioner a 20% referral fee inclusive of all taxes for all work referred to Wellbeing Connection by the Practitioner. This sum will be paid to the Practitioner upon completion of the work and payment from the client.
7. The Practitioner agrees to pay the Contractor a 30% referral fee inclusive of all taxes for all work referred by Wellbeing Connection to the Practitioner. This sum will be paid to the Contractor upon completion of the work and payment from the client.
8. The payment as set in clauses 5, 6 and 7 shall be payable within 21 days after receipt by the Practitioner or Contractor of an invoice upon completion of work and payment by the Client. The Sub-Contractor and Practitioner undertake to maintain good and accurate records of all expenditure claimed under this Agreement.
9. The Practitioner will not refer jobs to another business which is inside the scope of the Contractor’s work. The Contractor will keep the Practitioner up to date on all the services performed by the Contractor and within the Practitioner referral network.
10. The Practitioner shall be liable for, and shall indemnify the Contractor against any costs, liability, damages claims or proceedings arising from the Sub-contract Work under this Agreement.
11. The Sub-contractor shall obtain, pay for and maintain with a reputable insurance company (reasonably acceptable to the Contractor) during the continuance of this Agreement and for a period of six years after termination of this Agreement, policies of insurance in such amounts and against such risks on a prudent person carrying on the same activities as the Sub-Contractor would carry on.
12. Each party undertakes that it shall not at any time during the Sub-contract Work, and for a period of five years after termination of 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 this Agreement.
13. Each party may disclose the other party’s confidential information to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
15. Data Protection and Data Processing
15.1 In this agreement:
(a) The Contractor is the Controller and the Practitioner is the Processor; and
(b) The types of Personal Data and categories of Data Subject which will be processes, the nature and purpose of that processing and the duration of that processing are as set out in the Schedule (Data processing).
15.2 In relation to the processing of Personal Data, the Practitioner shall:
(a) Only process Personal Data in accordance with the Contractor written instructions from time to time (which may be specific instructions or standing instructions of general application in relation to the Services, whether set out in this agreement or otherwise notified to the Practitioner), unless such processing is required by any law (other than contract law) to which the Practitioner is subject, in which case the Practitioner shall (to the extent permitted by law) inform the Contractor of that legal requirement before carrying out the processing;
(b) Immediately notify the Contractor if it considers that the Contractor’s instructions are in breach of the GDPR or other EU member state laws; and
(c) Keep a written record of all such processing activities which shall include the information required to be kept under Article 30(2) of the GDPR.
15.3 In relation to the security and confidentiality of the Personal Data, the Practitioner shall:
- Ensure that it has in place appropriate technical and organisational measures to ensure a level of security for the Personal Data which is appropriate to the risks to individuals that may result from the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Personal Data;
- In addition to the confidentiality obligations in Clause 10 (Confidentiality):
- Ensure that only those of the Practitioner’s Personnel who need to have access to the Personal Data are granted access to such data and only for the purposes of the performance of this agreement and all of the Practitioner’s Personnel required to access the Personal Data are informed of the confidential nature of the Personal Data, comply with the obligations set out in this clause and are bound by appropriate confidentiality obligations when accessing the Personal Data; and
- Not publish, disclose or divulge any of the Personal Data to any third party (including for the avoidance of doubt the Data Subject itself) unless directed to do so in writing by the Contractor;
(c) Not modify, amend or alter the contents of the Personal Data unless specifically authorised in writing by the Contractor.
15.4 If the Practitioner becomes aware of a Personal Data breach, it shall notify the Contractor without undue delay on becoming aware of such a breach.
15.5 The Practitioner shall notify the Contractor within FIVE Business Days upon receiving the following:
- A request from a Data Subject to have access to that person’s Personal Data; or
- A complaint or request relating to the Contractor obligations under the Data Protection Legislation; or
(c) Any other communication relating directly or indirectly to the processing of any Personal Data in connection with this agreement.
15.6 The Practitioner shall provide the Contractor with full cooperation and assistance in order to enable the Contractor to comply with its obligations under the Data Protection Legislation in relation to:
(a) The Contractor’s obligations in relation to responding to Data Subject requests, including (but not limited to) the following:
- Complying with the relevant timescales as set out in the Data Protection Legislation but strictly in accordance with the Contractor’s instructions;
- Providing the Contractor with any Personal Data that it holds in relation to the Data Subject making the complaint or request within the timescales are required by the Contractor; and
- Providing the Contractor with any other information as requested by the Contractor in this regard,
(b) The security of the Personal Data;
(c) Notifying Personal Data breaches to the relevant supervisory authority;
(d) Communicating personal data breaches to the Data Subject; and
(e) Impact assessments and related consultations with supervisory authorities or regulators.
15.7 The Practitioner shall:
- Make available to the Contractor all information that the Contractor requests from time to time to enable the Contractor to verify that the Practitioner is in compliance with its obligations in this ; and
(b) Permit to Contractor or its external advisers to inspect and audit the Practitioner’s data processing activities to inspect and audit the Practitioner’s data processing activities and those of its agents, subsidiaries and Sub-contractors.
15.8 This Clause 15.8 shall only apply in relation to the sub-contracting of Personal Data processing under this agreement:
- The Practitioner shall not engage or authorise another Sub-Contractor to process the Personal Data unless:
- It has obtained the prior written consent of the Contractor (which may be granted or withheld in the Contractor sole discretion) before transferring the Personal Data to any Sub-Contractors in connection with the provision of the Services; and
- The Sub-Contractor has either entered into a direct contract with the Contractor or a contract with the Sub-contractor which incorporates the provisions equivalent to those in this agreement in relation to confidentiality, data protection and security, and
- Where a Sub-contractor is appointed pursuant to Clause 15.8(a), the Practitioner shall remain liable for the acts and omissions of that Sub-Contractor as if they were the Practitioner’s own.
15.9 In relation to transfers of Personal Data to areas outside the European Economic Area (EEA):
- The Practitioner shall not transfer any Personal Data outside the EEA without the Contractor’s prior written consent; and
- If the Contractor consents to any transfers pursuant to Clause 15.9(a), the Practitioner shall ensure that the following conditions are met in relation to such transfers:
- The Practitioner complies with its obligations under the Data Protection Legislation by ensuring that there is an adequate level of protection to any Personal Data that is transferred;
- That there are appropriate safeguards in place in relation to that transfer;
- That Data Subjects have enforceable rights and effective legal remedies; and
- That the Practitioner shall comply with any other reasonable instructions as notified to it by the Contractor in relation to such transfers.
15.10 The Contractor acknowledges that the Practitioner is reliant on the Contractor alone for direction as to the extent the Practitioner is entitled to use and process the Personal Data. Subject to Clause 15.2(b), the Practitioner shall be entitled to relief from liability in circumstances where a Data Subject makes a claim or complaint with regards to the Practitioner’s actions to the extent that such actions directly result from instructions received from the Contractor.
12.11 On the expiry or termination of this agreement, the Practitioner shall, without prejudice to and in addition to its other obligations under this agreement, notify the Contractor of the Personal Data that it holds. If requested by the Contractor (or any replacement Practitioner as nominated by the Contractor), a copy of all Personal Data in a non-proprietary format. Promptly after the 90 days following such expiry or termination, the Practitioner shall securely and permanently destroy all copies of Personal Data in its possession or control (other than any copy transferred to the Contractor in accordance with this paragraph) unless the Practitioner is required by law to retain any copies of such data. For the purposes of this Clause 15.11, the Practitioner shall be the Controller in relation to any such retained Personal Data, and shall process it solely as necessary to comply with its obligations under the GDPR.
15.12 The Practitioner shall, at all times during and after the Term, indemnify the Contractor and keep the Contractor indemnified against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by the Contractor arising from any breach of the Practitioner’s obligations under this Clause 15 except and to the extent that such liabilities have resulted directly from the Contractor’s instructions.
16. Nothing in this Agreement shall affect the ownership of intellectual property rights existing prior to this Agreement or generated outside the Sub-Contract Work which one Party agrees to make available to the other in the course of the Sub-Contract Work (‘Background’). If one Party makes any of its Background available to the other Party in the course of the Sub-Contract Work, the Party receiving such Background shall treat it as confidential information disclosed under this Agreement, and shall not disclose it to a third party nor use it for any purposes other than that for which it was made available to that Party. Each Party agrees to make any Background which is relevant to the Sub-Contract Work available to the other solely for the purposes of undertaking the Sub-Contract Work.
The results of, and any intellectual property created, generated or developed from, the Sub-Contract Work (‘the Results’) shall be owned by the Contractor. For the avoidance of doubt, the ownership of the Results as described in this Clause 16 shall apply whether the Results have been made by any one of the Contractor and Practioner or by them both.
17. Without prejudice to any rights or remedies which the Contractor may possess, if the Practitioner shall make default in any one or more of the following respects:
- Without reasonable cause, he wholly suspends the Sub-contract Work before completion, or
- Without reasonable cause, he fails to proceed with the Sub-contract Work in the manner provided in clause 2 above, or
- He refuses or neglects after notice in writing from the Contractor to remove or repair any defective work and by such refusal the Works are in the Contractor’s view materially affected,
then in each respect, the Contractor may issue a notice to the Sub-contractor specifying the default. If the Sub-contract shall fail to remedy such defect within seven days after receipt of the notice requiring him to do so, then the Contractor may by written notice immediately end this Agreement.
18. The Practitioner undertakes to the Contractor that it shall not, whether on its own behalf, or on behalf of, or jointly with, any other person at any time during the period of 2 years from Completion, canvass, solicit or otherwise seek or accept the custom of the customer under the terms of this agreement or without the prior written consent of the Contractor, canvass, solicit or otherwise seek or accept the custom of any person who has been a client or customer of the Contractor at any time during the period of 12 months prior to termination or expiry of this agreement.
19. Neither party may transfer their rights and obligations under this Agreement to another organisation.
20. This contract is between the Contractor and the Practitioner. No other person shall have any rights to enforce any of its terms.
21. Each of the paragraphs of this Agreement operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
22. If either party does not insist immediately that the other party do anything they are required to do under this Agreement, or if one party delays in taking steps against the other party in respect of a breach of this Agreement that will not mean that the defaulting party does not have to do those things and it does not prevent the non-defaulting party taking steps against the defaulting party at a later date.
23. The law of England and Wales shall govern this Agreement the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim in relation to it.