This is an Agreement between:
Audio Visual Services Corporation Limited (Company Number 01133706) whose registered
office is at 1 Union Business Park, Florence Way, Uxbridge, United Kingdom, UB8 2LS (“the
Company”); and
OR
AVC Live Limited (Company Number 01921674) whose registered office is at 1 Union Business
Park, Florence Way, Uxbridge, United Kingdom, UB8 2LS (“the Company”); and
OR
Concise Limited (company number 03487386) whose registered office is at 4th Floor 4
Tabernacle Street, London, United Kingdom, EC2A 4LU (“the Company”); and
OR
Hawthorn Theatrical Limited (Company Number 01602315) whose registered office is at 1 Union Business Park, Florence Way, Uxbridge, United Kingdom, UB8 2LS (“the Company”); and
OR
AVSC Europe Limited (“AVSC”) trading as Encore, a company registered in England and Wales (registered number 03450573) whose registered office is at 1 Union Business Park, Florence Way, Uxbridge, United Kingdom, UB8 2LS) or such other Group Company as may be notified
to you in advance of, or during, the provision of the Services (“the Company”); and
Name of Address (“the Freelancer”)
THE PARTIES AGREE AS FOLLOWS:
1. Definitions
In this Agreement the following words and phrases have the meanings set out below:
Assignment: The work the Freelancer has been contracted to perform by the Company, as listed and particularised in a Purchase Order;
Confidential Information: All information of a confidential nature provided to the Freelancer, which is marked as confidential, relating to the products, services, business finances, transactions and affairs of the Company including Intellectual Property Rights;
Event Manager: The person assigned by the Company to liaise with the Freelancer;
Fee: The amount set out in a Purchase Order for the Services performed (plus any applicable VAT if stated);
Group: means any company wherever registered or incorporated which is for the time being a subsidiary or a holding company of the Company or a subsidiary of any such company (as “subsidiary” and “holding company” are defined in section 1159 of the Companies Act 2006 (as amended) or which is an associated company of any such company (as “associated” is defined in section 256 of the Companies Act 2006 (as amended));
Intellectual Property Rights: Any and all copyright, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, rights in getup, database rights and rights in data, utility models, domain names and all similar rights whether
registered or unregistered, including any applications to protect or register such rights, all renewals and extensions of such rights or applications, whether vested, contingent or future, and wherever existing in the world;
Personnel: Any person employed or otherwise engaged by the Freelancer to perform the Services, including any Substitute Freelancer;
Privacy Policy: The Company’s Privacy Policy, a copy of which can be obtained from the following website address: https://encore-emea.com/privacy-policy/
Purchase Order: An order form provided by the Company which sets out the terms for each Assignment between the Freelancer and the Company. An example template is contained in the Schedule;
Purchase Order Number: The unique reference number specific to, and displayed on, a Purchase Order;
Services: The services to be provided by the Freelancer to the Company as set out in the Purchase Order for each Assignment, in accordance with the terms of this Agreement;
Session: A specific event booking within an Assignment for which a Purchase Order has been issued to the Freelancer;
Substitute Freelancer: Any person appointed by the Freelancer to perform the Services on behalf of the Freelancer, subject to the terms of this Agreement;
Taxation: Any income tax, national insurance and social security contributions and any other liability, deduction, contribution, assessment;
VAT: United Kingdom value added tax (together with any replacement or equivalent tax);
Work Product: Any materials created or developed by the Freelancer and/or any Substitute Freelancer when providing the Services.
2. The Services
2.1. During the Agreement the Freelancer will provide the Services to the Company in accordance with the terms of this Agreement. Nothing in this Agreement shall render or be deemed to render the Freelancer an employee or agent of the Company and the Freelancer hereby agrees that they are a self-employed independent contractor and not
an employee or agent of the Company. This agreement does not create any mutuality of obligation between the Freelancer and the Company. The Freelancer does not qualify for any company benefits from the Company.
3. Substitute
3.1. In the event that the Freelancer is unable to provide the Services for whatever reason, the Freelancer will be entitled to appoint a substitute with equivalent skill and expertise to perform the Services on the Freelancer’s behalf (the Substitute Freelancer). The Freelancer will continue to invoice the Company and will be responsible for the payments to the Substitute Freelancer.
4. Remuneration
4.1. The Fee, together with any expenses provided for, will be set out on a Purchase Order for an Assignment as agreed in advance of the job shall be payable to the Freelancer for the provision of the Services.
4.2. The Freelancer shall submit an invoice to the Company on, or as soon as reasonably possible after completion of the Assignment stipulated on the Purchase Order detailing the Services provided for the Assignment and the Fees due in respect thereof and where
they are registered for VAT shall show any VAT separately on such invoice.
4.3. The Company’s payment terms are 30 days from receipt of the Freelancer’s invoice quoting the relevant Purchase Order Number for the Assignment.
4.4. In the event that there are periods when there are no Services for the Freelancer to perform, the Freelancer shall not be paid a retainer for these periods. The Fee is payable only in respect of Services actually provided.
4.5. The Company shall be entitled to deduct from the Fees (and any other sums) due to the Freelancer any sums that the Freelancer may owe to the Company or any Group Company at any time.
4.6. Payment in full or in part of the Fees claimed by the Freelancer shall be without prejudice to any claims or rights of the Company or any Group Company against the Freelancer in respect of the provision of the Services.
4.7. The Freelancer will be responsible for, and will account to the appropriate authorities for, all income tax liabilities and national insurance or similar contributions payable in respect of the payments made to Freelancer under this Agreement on a self-assessment basis.
4.8. The Freelancer hereby agrees to indemnify the Company for:
4.8.1. any Taxation or claim arising from or made in connection with the performance of the Services, where the recovery is not prohibited by law. The Freelancer shall further indemnify the Company against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by the Company in connection with or in consequence of any such liability, deduction, contribution, assessment or claim.
4.8.2. any liability arising from any employment-related claim, or any claim based on worker status (including reasonable costs and expenses) brought by the Freelancer or any person provided as a substitute for the Freelancer against the Company or any Group Company arising out of or in connection with the
provision of the Services.
5. Liability and Insurance
5.1. The Freelancer warrants to the Company that:
5.1.1. by entering into this contract, they will not be in breach of any obligations to or agreements with any third party;
5.1.2. they will take out and maintain throughout the term of this contract adequate insurance in respect of public liability insurance coverage to protect himself against any liabilities arising out of this contract and shall produce, on request, a copy of the insurance policy certificate for inspection by the Company; and
5.1.3. they will take out and maintain throughout the term of this contract adequate employer’s liability insurance coverage (minimum £5 million cover) to protect themselves against any liabilities arising out of this contract in respect of all and any workers they utilise to carry out the Services and shall produce, on request, a copy of the insurance policy certificate for inspection by the Company will maintain appropriate professional indemnity insurance cover in force during the agreement.
6 Confidential information
6.1 The Freelancer will not during the period of this Agreement without the prior written approval of the Company use for the Freelancer’s own benefit or for the benefit of any other person, firm, company or organisation, or directly or indirectly disclose to any person any Confidential Information which has come to the Freelancer’s knowledge during or in connection with any Assignment or the Agreement.
7 Intellectual property
7.1 In consideration of the Company paying the Freelancer the Fees, the Freelancer hereby transfers to the Company by way of present and future assignment all the Intellectual Property Rights in the Work Product. The Freelancer gives no warranties in relation to the Intellectual Property Rights in the Work Product.
8 Company’s Obligations
8.1 During the Agreement, the Company will provide the Freelancer with access to any premises, information, records and other materials as the Freelancer may reasonably require in order to enable the Freelancer to provide the Services. The Company will provide the Freelancer the name of a person who will act as the key contact point and channel of communication in respect of the Services.
9 Freelancer’s Obligations
9.1 The Freelancer warrants to the Company that they and any Personnel have the required level of experience, expertise and qualifications to perform the Services to a standard satisfactory to the Company.
9.2 The Services shall be carried out by the Freelancer in a timely and professional manner and in compliance with the highest standards of relevant established current practice.
9.3 The Freelancer shall keep the Company informed regarding the progress of the Services and in particular liaise with the relevant Event Manager at the Company in respect of the day-to-day performance of the Services. The Freelancer shall furnish written progress
reports on the Services to the Company promptly as and when these may be requested.
9.4 The Freelancer shall procure that they and the Personnel shall perform their obligations
under the Agreement to the best of their commercial, technical and creative skill and ability.
9.5 Unless otherwise agreed in the Purchase Order, the Freelancer is to provide and use their own equipment, tools and any other items necessary for the performance of the Services.
9.6 In the event that the Services are not provided to the reasonable satisfaction of the Company, the Freelancer must rectify this at their own cost.
10 Data Protection
10.1 In order to keep and maintain any records relating to the provision of the Services under this Agreement it will be necessary for the Company to process personal data relating to the Freelancer and/or the Personnel on computer and in hard copy form for legal, personnel, administrative and management purposes. Examples of personal data include the Freelancer’s and/or Personnel’s contact details, disciplinary record, any grievances raised, and any sensitive personal data such as religious beliefs, ethnic or racial origin
and information relating to physical and mental health. Further, in order to pay the Freelancer’s Fees, the Company may also need to obtain details of the Freelancer’s and/or Personnel’s bank account and other financial information.
10.2 The Freelancer acknowledges that the Company may collect, use, hold, access, and otherwise process their personal information. Further information regarding the processing of personal and sensitive personal data is set out in the Company’s Privacy
Policy, linked here https://encore-emea.com/privacy-policy/
10.3 During the provision of the Services under this Agreement, the Freelancer and/or its Personnel may gain access to the personal and sensitive data of others, which they may only access to the extent that this is necessary for the performance of their work duties. The Freelancer shall, and shall procure that the Personnel shall, maintain the confidentiality of such data that it/they have access to and cannot share, disclose or otherwise transfer it to any unauthorised third parties. The Freelancer shall, and shall
procure that the Personnel shall, comply with all relevant Company policies in relation to the processing of such data, including the Privacy Policy.
10.4 The Company may undertake routine monitoring for purposes including the following:
10.4.1 to prevent/detect breaches of the provider’s obligations to the Company its
clients and employees;
10.4.2 to prevent/detect crime or apprehend/prosecute offenders; or
10.4.3 to ensure a safe and secure working environment.
10.5 Monitoring records will only be retained for as long as necessary to fulfil their purpose.
10.6 Exceptionally, the Company reserves the right to undertake covert monitoring at appropriate times. Covert monitoring will only be carried out in accordance with the provisions of the Data Protection Act 2018.
11 Other Activities
11.1 Whilst the Company accepts that the Freelancer may provide services to third parties during the term of this Agreement, the Freelancer agrees that it shall, and shall procure that the Personnel shall, avoid putting themselves in a position where their other assignments conflict with the proper and timely provision of the Services and their
obligations to the Company under this Agreement.
12 Assignment
12.1 The Freelancer may not assign, transfer or sub-contract in whole or in part any of its rights or obligations under this Agreement without the prior written consent of the Company. The Company shall be entitled to assign the benefit of the Services to any Group Company from time to time.
13 Relationship between the Parties
13.1 The relationship of the Freelancer (and the Personnel) to the Company shall be that of independent contractor and nothing in this Agreement shall render it (nor the Personnel) an employee, worker, agent or partner of the Company and the Freelancer shall not hold itself out as such and shall procure that the Personnel shall not hold themselves out as such. The Freelancer shall not, and shall procure that the Personnel shall not, hold
themselves out as having authority to bind the Company.
13.2 In the event that the Company issues a status determination in accordance with the Off Payroll Working Rules and the Freelancer wishes to challenge this determination this should be raised in writing and addressed to the Event Manager. The Freelancer may
only challenge a determination: (i) once in any 12-month period; and (ii) within 4 weeks of a material change to the arrangements which is reasonably likely to result in a change to the determination. In the event that the Freelancer and/or the Personnel challenge a determination with HMRC, it or they must notify the Event Manager of such challenge and the reasons for such challenge at least 2 weeks prior to such challenge, and the outcome within 4 weeks of receiving it.
13.3 It is the express intention of the parties that neither the Freelancer nor the Personnel shall be agents or employees of the Company and neither it nor they shall have the authority or power to bind the Company or to contract in the name of or create liability
against the Company in any way and for any purpose save as expressly authorised in writing by the Company from time to time.
14 Taxes
14.1 This Agreement constitutes a contract for the provision of services and not a contract of employment.
14.2 If the Off-Payroll Working Rules do not apply, or if the Off Payroll Working Rules do apply and the Company issues a SDS which states that any Personnel is outside IR35, the Freelancer shall be fully responsible for and shall indemnify the Company for and in respect of any Taxation and any other liability, deduction, contribution, assessment or
claim arising from or made in connection with either the performance of the Services or any payment or benefit received by the Personnel in respect of the Services, where such recovery is not prohibited by law. The Freelancer shall further indemnify the Company against all reasonable costs, expenses and any penalty, fine or interest incurred or
payable by the Company in connection with or in consequence of any such liability, deduction, contribution, assessment or claim.
14.3 If the Off-Payroll Working Rules do apply, and if the Company issues a SDS which states that any Personnel is inside IR35, the Freelancer shall further indemnify the Company against any and all Taxation (including secondary contributions to the extent permitted
by law), together with any interest, penalties or gross-up thereon, that the Company or any Group Company is required to pay or account for in respect of the performance of the Services or payments made or benefits provided by the Company to the Freelancer
in excess of any amount deducted at source (provided always that the Company shall use its reasonable endeavours to notify the Freelancer if it becomes aware that such a demand is made to the Company by HM Revenue and Customs and shall give the Freelancer reasonable notice to challenge such a demand (at the Freelancer’s cost) and excluding any interest, costs, charges or penalties arising as a result of any action by the Company). In this regard, the Company or any Group Company (as appropriate) shall be deemed to be obliged to pay any such amount if it receives a written demand from HM Revenue and Customs.
14.4 The Company may at its option satisfy such indemnity (in whole or in part) by way of deduction from payments due to the Freelancer.
14.5 The Freelancer warrants that it is not nor will it prior to the cessation of this agreement, become a managed service company, within the meaning of section 61B of the Income Tax (Earnings and Pensions) Act 2003.
15 Health and Safety
15.1 It is the Freelancer’s responsibility to take all such steps as are reasonably practical to protect the health and safety at work, not only of the Freelancer and the Personnel on site, but also of those of other contractors and subcontractors, and of the Company’s employees, in so far as they are affected by the Freelancer’s undertaking. Compliance with all of the Company’s safety rules, as well as with the requirement of compliance of all relevant obligations imposed by statute and/or by regulations forms part of the agreement between the Company and Freelancer.
15.2 In the event of an accident, incident or near miss occurring, this must be reported without delay, to the Company representative and submit such details in writing if requested to do so at the time or within a reasonable amount of time after the incident.
15.3 It is understood that the rates agreed between the Freelancer and the Company include the Company’s contribution to the provision of PPE that must be worn as required whilst undertaking work for the Company. PPE includes but is not limited to Head Protection, Hearing Protection, Protective Footwear, Protective Gloves, Goggles, RPE, Knee Protection, Hi Vis clothing, Harness & Fall Protection.
15.4 The Freelancer warrants that any equipment, tools or items supplied and used are in proper working condition and the Freelancer and any Personnel have received appropriate training in the use of any equipment, tools or items. The Freelancer warrants that all relevant equipment, tools or items have the appropriate and up-to-date certification for use in the performance of the Services.
15.5 The Freelancer warrants that they or any Personnel have the required level of training and any certification required to use any equipment, tools, items or other machinery necessary in the performance of the Services.
15.6 If the Services involve the use of Company vehicles:
15.6.1 the Freelancer shall procure that no Personnel under the age of 25 do so without prior clearance from the Company via the Event Manager; and
15.6.2 the Freelancer shall, and shall procure that the Personnel shall, in the event of an accident, complete a timely Company accident report.
16 Terms and Termination
16.1 The Freelancer’s engagement under this Agreement will be in force during an Assignment as specified on a Purchase Order and will continue unless or until either party gives to the other not less than 72hrs notice in writing to terminate the Assignment.
16.2 The Freelancer’s engagement under this Agreement will continue unless or until either party gives to the other not less than 7 calendar days’ notice in writing to terminate this Agreement.
16.3 Notwithstanding the provisions of clause 16.1, either party may terminate an Assignment with immediate effect and without liability to pay any compensation or damages by written notice to the other party
16.3.1 if at any time the other party commits any serious or repeated breach of this Agreement, and for the avoidance of doubt a failure to pay the Fee on the due date will be a serious breach.
16.3.2 if the Freelancer advises the Company to increase the rate or additions in the purchase order beyond what the Company is willing to pay for the service.
16.4 Where there is a cancellation of a Session within an Assignment and the Company is unable to provide the Freelancer with a suitable alternative Session, the Freelancer is entitled to request compensation from the Company in writing, on a sliding scale, as
described below, in respect of the cancelled Session:
16.4.1 a maximum of 100% of the day rate agreed for the relevant rate for the Session specified in the Purchase Order if cancelled within 72 hours of first call time
16.4.2 a maximum of 50% of the day rate agreed for the relevant rate for the Session specified in the Purchase Order if cancelled within 240 hours of the first call time
16.4.3 0% of the day rate agreed for the relevant rate for the Session specified in the Purchase Order if cancelled with more than 240 hours of the first call time
16.5 Any compensation payable under clause 16.4 is subject to the Freelancer taking all reasonable steps to mitigate any loss caused by a cancellation of a Session.
16.6 For the avoidance of doubt, the terms of financial compensation described in 16.4 do not apply to any bookings without a valid Purchase Order. A booking without a Purchase Order is not deemed to be a Session and may therefore be cancelled at any time without the Freelancer being owed any compensation for the cancellation.
17 General provisions
17.1 Notices under this Agreement shall be in writing and sent to a party’s address as set out on the first page of this Agreement. Notices may be given and shall be deemed received: by email: on the day of sending. This clause 17.1 does not apply to notices given in legal
proceedings or arbitration.
17.2 No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
17.3 Nothing in this Agreement constitutes, or shall be deemed to constitute, a partnership between the parties nor make any party the agent of another party.
17.4 Any remedy or right conferred upon a party for breach of this Agreement will be in addition to and without prejudice to all other rights and remedies available to that party. No failure or delay by the parties in exercising any remedy, right, power or privilege under or in relation to this Agreement will operate as a waiver of that or any other right, power, remedy or privilege of that party.
17.5 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
17.6 The Contracts (Rights of Third Parties) Act 1999 will not apply to this Agreement and no person other than Freelancer and the Company will have any rights under it.
18 Governing law and Jurisdiction
18.1 This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
18.2 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, its subject matter or formation (including non-contractual disputes or claims)
19 Entire Agreement
19.1 This Agreement constitutes the entire and only legally binding agreement between the parties relating to the engagement and supersedes any previous understandings, arrangements, representations, negotiations or agreements between the parties provided that nothing in this clause 17.1 will have effect to exclude the liability of either party for fraud or fraudulent misrepresentation.
20 Applicable Law
20.1 This Agreement shall be governed by, construed and take effect in accordance with English law. The courts of England and Wales shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of or in connection with this Agreement (including without limitation claims for set-off or counterclaim) or the legal relationships established by this Agreement.