Swell UK Master Services Agreement
Updated January 18th 2023
BACKGROUND
a) Swell is a business consultancy that provides innovation funding services.
b) The Company wishes to engage Swell as an independent service provider to perform innovation funding consultancy services (the “Services”).
c) The Parties have agreed that the Services will be performed in accordance with the terms and conditions set out below (the “Agreement”)
IT IS AGREED
1. TERM
This Agreement shall commence on the date written above and shall remain in force for twelve (12) months unless i) earlier terminated in accordance with this Agreement or ii) extended by the Parties by mutual agreement.
2. THE SERVICES
2.1 Swell shall diligently, promptly and in a professional manner carry out and complete the Services, as described in Schedule 1.
2.2 Unless otherwise agreed in writing with the Company, Swell shall provide at Swell’s own cost all necessary materials, staff, facilities and equipment for performing the Services; such materials, facilities and equipment to be of a suitable standard for performing the Services.
2.3 In the event the Company wishes to vary the Services an amendment to Schedule 1 of this Agreement shall mutually be approved by the parties, signed by the parties and annexed to the original of this Agreement.
3. COMPENSATION AND PAYMENT
3.1 In consideration of the provision of the Services, the Company shall pay to Swell a fee(s) in accordance with Schedule 1 of this agreement. Such fee(s) shall be payable within 30 days of receipt by the Company of invoices from Swell.
3.2 Any sums remaining unpaid at the expiry of the period specified on the invoice shall bear interest thereafter, including on the VAT due, calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, being at a rate of 8% above the reference rate given therein.
3.3 The amount set out in clause 3.1 is exclusive of Value Added Tax, which the Company shall pay in addition, if applicable.
3.4 The Company may not withhold any payment after the final date for payment of any sum due under this Agreement unless the Company gives, not later than seven days before such final date, a notice specifying the amount proposed to be withheld and the grounds for withholding payment. The Company may not withhold payment for any disputed amount greater than the value of rectifying the disputed element of the specified consultancy Service.
4. EXPENSES
4.1 General administrative expenses relating to this agreement will covered by Swell.
4.2 Swell will charge the Company travel and other substantial out-of-pocket expenses relating to the provision of the Services described in Schedule 1 separately. Any expenses exceeding £250 will be pre-approved in writing between Swell and the Company.
5. SWELL / COMPANY RELATIONSHIP
5.1 The Parties acknowledge and agree that the Services performed by Swell, its employees, agents or sub-contractors shall be as an independent contractor and that nothing in this agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the Parties
5.2 The Company shall supply in a timely fashion and without charge all necessary and relevant information (“Information”; including any relevant instructions, consents and approvals) in their possession or available to them from their other agents, contractors or consultants. A description of any Information required, and its time sensitivity (if applicable) will be provided to the Company at a reasonable time in advance of the Services described in Schedule 1 being commenced. If Swell is required to carry out any additional, repeat or revisit work as a result of further or delayed information received from the Company, Swell shall appropriately advise the Company who shall be responsible for payment of such Services at Swell’s daily rate in force at the time.
5.3 Neither Party will use the other Party’s name or trademarks, trade names or logos or the names of a Party’s employees in any marketing, advertising or sales promotional material or in any publication without prior written permission.
5.4 It is not intended for there to be any mutuality of obligations between the Company and Swell either during the Assignment or upon termination of the same. The Company is under no obligation to offer work outside the scope of this Agreement or offer future work to Swell and if it does make any such offer, Swell is not obliged to accept it.
5.5 The Company shall supply to Swell any feedback data (insofar as the same is not prohibited by law) which the Company receives from any funding provider to whom an Application is made, irrespective of whether an Application is successful.
6. RIGHTS TO INVENTIONS AND DEVELOPMENTS
6.1 Any invention, discovery, or improvement developed pursuant to this Agreement shall be the property of the Company, irrespective of inventorship.
7. CONFIDENTIALITY
7.1 Throughout, and for five (5) years after the completion of the Services Swell shall (i) keep confidential any Information, which has about it the nature of confidence, supplied for use in the provision of the Services by the Company; and (ii) not communicate such Information to any third party.
7.2 Clause 7.1 shall not apply if such Information (a) is already in the public domain or if it subsequently comes into the public domain other than by breach of the Agreement by the receiving Party; (b) was already known to the receiving Party prior to its disclosure by the other Party; (c) is received from a third party who did not acquire it in confidence from the disclosing Party, or someone owing a duty of confidence to the disclosing Party; (d) is required to be disclosed by law or order of any court or authority of competent jurisdiction.
8. DATA PROTECTION
8.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. In this clause 8, Applicable Laws means (for so long as and to the extent that they apply to Swell) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
8.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Company is the data controller and Swell is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
8.3 Either party may, at any time on not less than 30 days’ notice, revise this clause 8 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
9. WARRANTIES AND LIABILITIES
9.1 Each party (“the Indemnifying Party”) agrees to defend, indemnify and hold the other party harmless from and against any reasonable costs, expenses, demands and legal fees incurred as a result of any claim, demand or legal action brought by any third party against the other party which arises in any way from any negligent act(s) or omission(s) of the Indemnifying Party or the breach of this Agreement by the Indemnifying Party; provided, however, that the foregoing shall not extend to any claim, demand, or legal action which arises in any way from any negligent act(s) or omission(s) of the other party or the breach of this Agreement by the other party.
9.2 For the avoidance of doubt, (i) neither Party shall be liable to the other for any indirect or consequential damages; and (ii) neither Party excludes, restricts or otherwise limits their liability for any death or personal injury arising from that Party’s negligence or for any loss suffered by either Party for the other Party’s fraud.
9.3 Neither Party shall be liable for failure to perform its obligations if the failure results from force majeure, act of God, fire, explosion, industrial dispute, act of government such as a change in legislation, regulation, or order made under legislative authority, or caused by any circumstances outside the reasonable control of either Party.
9.4 State Aid is an integral part of some grant applications and independent legal advice should be sought by the Company where appropriate. Swell seeks to ensure that information that it provides related to State Aid provisions is up to date and accurate. However, the information does not constitute legal advice and Swell cannot accept any liability for actions arising from its use.
9.5 The Company warrants to exclusively engage Swell to resubmit any applications prepared according to the terms of this Agreement, unless otherwise agreed in writing between the Parties. In the event that the Company resubmits such an application without engaging Swell’s services then a commission payment shall become due, as defined in the Schedule.
10. PUBLIC STATEMENTS
Neither Party shall use the other Party’s name in any public or media statements without the prior written consent of the other Party including but not limited to testimonials or reviews of the other Party in printed or spoken media or on social or business media platforms online and in order to protect the legitimate business interests of the other Party neither Party shall at any time after termination of this agreement, say, write or publish anything which may be harmful to the reputation of the other Party, whether defamatory or otherwise.
11. GENERAL CONDITIONS
11.1 Neither Party shall assign its rights under this agreement without the prior written consent of the other Party.
11.2 No waiver of any breach of this agreement shall be deemed to be a waiver of any other or any subsequent breach. The failure of either Party to enforce any provision of the agreement at any time shall not be interpreted as a waiver of the provision.
11.3 This agreement constitutes the entire agreement between the parties and shall supersede all previous negotiations, commitments and/or writings. Any subsequent written variation signed by both parties may be added to and shall then form part of this agreement.
11.4 Both parties shall treat the contents of this agreement and the arrangements contemplated in it as confidential and not disclose them to any person except with the prior written consent of the other Party.
11.5 Nothing in this agreement shall prevent Swell from being engaged, concerned or having any financial interest in any capacity in any other business, trade, profession or occupation during the Term provided that such activity does not cause a breach of any of Swell’s obligations under this agreement.
11.6 Nothing in this Agreement confers or purports to confer on any third party any right to enforce any terms of this Agreement (pursuant to the Contracts (Rights of Third Parties) Act 1999)
12. TERMINATION
12.1 This Agreement may be terminated by either Party after an initial period of 6 months upon giving not less than one (1) month’s written notice to the other Party.
12.2 Termination of this agreement shall be without prejudice to any accrued rights or other rights and remedies of the parties arising out of any default which occurs before the termination and shall be without prejudice to any claim for moneys payable as at the date of termination or in respect of work done or liabilities incurred before the termination.
12.3 For the avoidance of doubt, should the Company terminate the Agreement according to clause 12.1, the costs of all work performed by Swell, including any related expenses and/or disbursements incurred by Swell up to the date of termination, and any costs incurred by Swell as a direct result of a cancellation by the Company will be fully payable by the Company at a rate determined by Swell at the time of termination.
12.4 In the event of failure by the Company to make payments due to Swell in accordance with clause 3, Swell retains the right to terminate this Agreement immediately and without prior notice.
12.5 Without prejudice to the above, this Agreement may be terminated immediately where any of the following circumstances arise:
a) Either party commits a serious breach or persistent breaches of this Agreement including but not limited to the non-performance, neglect or default of any of their duties as outlined herein and after notice of this breach has been given to the defaulting party it remains unremedied and unrectified 30 days after such notice.
b) Either party becomes insolvent or enters into a CVA or IVA.
c) Either party ceases to trade
13. SURVIVAL OF PROVISIONS
The provisions of clauses 6, 7, 8, 9, 11 and 14 shall continue in effect after termination of this agreement.
14. GOVERNING LAW AND JURISDICTION
14.1 This agreement shall be governed by and construed in accordance with the laws of England and Wales.
Subject to adhering to the provisions of clause 14 each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this agreement.
15. DISPUTE RESOLUTION
15.1 If any dispute arises in connection with this agreement, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties within 10 working days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (ADR notice) to the other party to the dispute, referring the dispute to mediation. A copy of the referral should be sent to CEDR.
15.2 If there is any point on the logistical arrangements of the mediation, other than nomination of the mediator, upon which the parties cannot agree within 10 working days from the date of the ADR Notice, where appropriate, in conjunction with the mediator, CEDR will be requested to decide that point for the parties having consulted with them.
15.3 Unless otherwise agreed, the mediation will start not later than 25 working days after the date of the ADR notice. No party may commence any court proceedings in relation to any dispute arising out of this agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated, or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.