Legals and Privacy
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Out Now Terms and Principles Statement
These are the standard terms of business for the provision of
Consultancy Services by Out Now ("ON"), an EI registered business
incorporated in France (registered SIRET number
84276138900019 with head office in Paris).
1. Definitions
1.1 "Business Day" means a day (not being a Saturday or Sunday) on
which banks are open for general banking business in Paris;
"Client" means the organisation contracting with ON for the
provision of consultancy services;
"Contract" means the contract formed by the Agreement of the
Client to work with ON;
"Deliverables" means those items identified as such in the Terms
of Engagement (if any) to be provided by ON to the Client in the
course of delivering the Services;
"ON" means Out Now;
"ON Terms" means these standard terms of business;
"Services" means the work to be undertaken by ON for the Client as
described in any Terms of Engagement and, where reasonably forming
part of the agreement, communications specifically relating to
Services to be provided by ON (such as email, email attachments,
costed proposals);
"Terms of Engagement" means written materials provided to the
Client by ON, incorporating these ON Terms, which outlines the
nature of the Services, the deliverables to be provided, the fees
payable and the timeframe for completion of the Services, where
such communication can include emails clearly specifying Work to be
undertaken and related contents of any referred-to documents
created by ON for the purposes of engaging with Client in the
provision of ON services;
"Work" means any activity performed by ON in relation to the
Services;
"Working Days" means Monday to Friday excluding bank or public
holidays.
2. The Services
2.1 ON will provide the Services to the Client on, and subject to,
the ON Terms and any Terms of Engagement. ON will not start
providing the Services until ON has received written acceptance of
the Terms of Engagement by an authorised representative of the
Client. By accepting the Terms of Engagement, the Client also
agrees to be bound by these ON Terms to the exclusion of all other
terms and conditions (including any terms or conditions which the
Client purports to apply under any purchase order, confirmation of
order, specification or other document). The Terms of Engagement,
once signed and returned by the Client, shall, together with these
ON Terms, form the contract between ON and the Client.
2.2 In accepting the Terms of Engagement, the Client authorises ON
to proceed with all relevant preparations for providing the
Services, including but not limited to purchase of materials and
booking venues (if required).
2.3 ON shall provide the Services using reasonable skill and
care.
2.4 In providing the Services, ON shall use its reasonable
endeavours to give sound advice based on the information available,
but the Client will remain wholly responsible for determining
matters of policy or action related to that advice.
2.5 The Client acknowledges and agrees that, in order for its
personnel to derive benefits from the Services, such personnel will
be required to make such commitment as is appropriate to the
Services being provided.
3.Terms of Engagement and fees
3.1 The Terms of Engagement will, unless otherwise stated, remain
capable of acceptance by the Client for a period of 90 days from
the date thereof. The rates for fees and materials are subject to
review from time to time, but ON will give one month's notice of
its intention to change the charging basis for current and
continuing projects.
3.2 The fees set out in the Terms of Engagement are based on ON's
understanding of the Client's requirements as set out in the Terms
of Engagement. ON reserves the right to make additional charges
for:
3.2.1 staff time spent in excess of those estimated in the Terms
of Engagement as a result of any delays caused in delivery of the
Services due to any act or omission of the Client;
3.2.2 staff time spent travelling to the venue in excess of two
hours in either direction;
3.2.3 staff time for planning or other meetings requested by the
Client in addition to those allowed for in the Terms of
Engagement;
3.2.4 any services or materials requested in writing by the Client
that ON agrees in writing to provide and that are additional to
those allowed for in the Terms of Engagement, which shall then
become part of the Services.
3.3 ON may also charge the Client for reasonable expenses incurred
by ON in the provision of the Services including, where
necessary:
3.3.1 travel, accommodation and subsistence (mileage to be charged
at 50 eurocents per kilometre);
3.3.2 all bought-in goods, services and sub-contracted items
referred to in the Terms of Engagement as being necessary and
charged for separately from the fees quoted in the Terms of
Engagement.
3.4 Value Added Tax ("BTW" in France), where applicable, will be
payable by the Client on all fees and expenses at the rate in force
at the date of invoicing. All prices are quoted exclusive of Value
Added Tax.
3.5 ON will issue invoices in accordance with the terms stated in
the Terms of Engagement. If not otherwise specified, invoices will
be issued for payment within 21 days of date of invoice by which
time cleared funds must be received into the ON bank account in
France. Late payment penalties may apply. Depending on the nature
of the work, ON may issue invoices at the beginning of a piece of
work, on a progress basis, at the end of each discrete piece of
work or at the end of each month. If the Client delays planned
progress on provision of the Services, ON reserves the right to
submit interim invoices. ON will also submit invoices in respect of
any additional work carried out as referred to in Clause 3.2.
3.6 All invoices will be paid by the Client within 21 days of date
of invoice. ON reserves the right to charge the Client interest and
costs of recovery.
3.7 Where a refund is due to a Client and such is caused at the
fault of the Client, ON reserves the right to deduct any
administrative bank/ credit card charges from such refund.
Where the refund is necessitated at the fault of ON, no such
deductions shall be made.
4. Cancellation and postponement
4.1 ON reserves the right to charge project work cancellation fees
it considers reasonable in the circumstances. Unless otherwise
specified in the Terms of Engagement, ON reserves the right to
charge for events (including but not limited to courses, workshops,
presentations or seminars) cancelled or postponed by the Client.
Such charges will be in accordance with the following schedule
(percentages refer to percent of fees relating to the relevant
event) to be paid as a cancellation or postponement charge:
Number of Working Days before the work commences
29 or more 28 or fewer
5 or fewer
One-day event (or shorter) 25%
50% 100%
Two or more days 40%
80% 100%
4.1.1 Regard must also be made to the specific terms of 9.7, 9.8.
9.9 and 9.10 - which cover credit notes for pre-paid consideration
and standard payment terms for project and retainer work.
4.2 In addition, the Client will bear the full cost of any fees or
expenses incurred by ON for cancellation of venues and, except in
cases where the Client has paid a 100% cancellation or postponement
charge, for non-returnable goods and services bought or contracted
for the event or events.
4.3 Where an event is postponed, the Client will be liable for the
full fee for that event quoted in the Terms of Engagement when
eventually held, in addition to the postponement charge set out in
clause 4.1.
4.4 For the avoidance of doubt, the start date of the Work is not
the start of the event but the start of when the Work commences and
will be set out in the Terms of Engagement.
5. Copyright
5.1 Other than in respect of information that the Client has
supplied to ON, ON shall, as between ON and the Client, own all
copyright and any other intellectual property rights throughout the
world subsisting in the contents of the Terms of Engagement and in
all work produced by ON in the course of provision of the Services
in whatever form or media (including, without limitation, the
Deliverables) ("Work") unless otherwise indicated in the Terms of
Engagement as "Client Materials".
5.2 If the Client requires ON to incorporate any material into the
Work and supplies ON with such material, the Client warrants
that:
5.2.1 the proposed use or incorporation of such material will not
infringe any third party's intellectual property rights;
5.2.2 where the Client is not the owner of all copyright or other
intellectual property rights in such material, the Client has
received all necessary consents and licences for the proposed use
by ON of such material; and
the Client will indemnify and keep ON fully and effectively
indemnified against all costs, claims, demands, expenses and
liabilities of any nature arising out of or in connection with any
breach of the warranty in this clause.
5.3 Subject to Clause 5.4, the Client agrees that it shall not
copy or amend the Work or do or authorise any other act that may
infringe or devalue ON's copyright or other intellectual property
rights.
5.4 The Client may, subject to the last sentence of this clause,
make a reasonable amount of copies of the Work (or part of the
Work) for distribution to its own personnel and strictly for
internal business purposes only. The Client shall ensure that each
such copy of the Work (or part thereof) shall bear a statement
acknowledging its source. The Client shall have no right to make
any copies of any Deliverables on which ON does not own the
copyright.
6. Sub-contractors
6.1 ON shall be entitled, in its absolute discretion, to appoint
sub-contractors to provide all or part of the Services.
6.2 If the Client nominates sub-contractors to work with ON in the
provision of the Services, the Client shall be responsible for such
nominated sub-contractors. ON reserves the right to withdraw
co-operation from any nominated sub-contractors if the performance
or actions of such persons or organisations prevents ON fulfilling
its obligations under the Terms of Engagement and these ON
Terms.
7. Client's obligations
7.1 The Client will ensure that its staff, contractors and other
suppliers co-operate fully with ON and cause no delay.
7.2 Whilst ON's employees or sub-contractors are working on the
Client's premises, the Client will ensure the health and safety of
those people. The Client will indemnify ON and keep ON indemnified
against all losses, damages and expenses incurred or suffered by ON
in connection with any and all claims made in respect of any
injury, death or loss suffered by those employees or
sub-contractors as a result of working at the Client's
premises.
7.3 Clients will not, either during the provision of the Services
or thereafter for a period of one year, directly or indirectly,
offer employment or assignments to any of ON's employees or
sub-contractors or solicit or procure their employment by any other
company, organisation or individual with which the Client is
connected.
8. Confidentiality and data protection
8.1 Both during and after the provision of the Services, both
parties shall keep confidential any information of the other party
that is obtained in connection with the provision of the Services
and that is clearly designated as 'confidential' or that is by its
nature clearly confidential. Neither party shall use such
information except in connection with the Services nor divulge it
to any third party without the prior written permission of the
other party.
8.2 The provisions of this clause 8 shall not apply to any
information disclosed by a party ("Disclosing Party") that:
8.2.1 is in, or comes into, the public domain (except as a result
of a breach of these ON Terms);
8.2.2 was already in the possession of the Disclosing Party at the
time of its receipt from the other party;
8.2.3 is received by the Disclosing Party from a third party who
was not under a legal obligation of confidentiality with respect to
it;
8.2.4 is required by law to be disclosed by the Disclosing
Party.
8.3 The Client and ON shall observe the requirements of any
applicable data privacy legislation in relation to information
regarding identifiable living individuals ("Personal Data").
8.4 Where ON discloses to the Client any Personal Data, the Client
acknowledges that, for the purposes of data privacy legislation, it
is the "Data Controller" in relation to those Personal Data and the
Client will:
8.4.1 not keep such Personal Data longer than is necessary to
fulfil the purpose for which it was collected;
8.4.2 take all reasonable steps to safeguard the security of such
Personal Data;
8.4.3 exercise discretion over the access given to such Personal
Data within the Client organisation;
8.4.4 take all reasonable steps to ensure that those given access
to such Personal Data understand and respect the need for
confidentiality regarding the Personal Data;
8.4.5 and the Client shall indemnify and keep ON fully indemnified
against all costs, claims, demands, expenses and liabilities of any
nature arising out of or in connection with any breach of this
clause 8.
8.5 The Terms of Engagement shall be treated as confidential
information for the purposes of this clause 8.
8.6 Data protection and GDPR compliance:
8.6.1 All respondents in Out Now's global LGBT Research Panel are
double opted-in volunteers who indicated at the time of (double)
opting-in that they wished to join the Panel to contribute for
research projects, such as the one being discussed in this
proposal. Since being established in 1992, ON has always placed the
highest priority on protecting the data of our research
participants. This is undertaken in a range of ways, including
never sharing any personally identifying data with outside
organisations. ON makes clear to all opted-in respondents that
their personal details are not shared with any other organisations.
Individual data responses do not leave ON controlled systems and
all findings are reported in the aggregate.
8.6.2 ON protects and retains at all times rights over individual
respondent data, including:
- the right for individual respondents to opt-in / opt-out of the
ON LGBT Research Panel database
- the right for individual respondents to request a complete
record of all data ON holds on any individually identifiable
respondents
- the right for individual respondents to request full deletion of
all their supplied data in all ON systems.
8.6.3 ON always uses encrypted connections when undertaking all
actions online. Since the 2003 introduction of the CAN-SPAM
legislation in the US market, all emails sent by ON as part of our
Panel work have always included easy one-click opt-outs.
8.6.4 In early May 2018, Out Now introduced new GDPR information,
this link for which is shared with all members on our Panel to be
contacted to invite them to
request a full report of any information we hold on them. This link also is to
provide an additional simple opt-out from our database, including
removing all data we hold on them, as part of meeting our
compliance requirements under EU GDPR legislation.
9. Term and termination
9.1 The Contract will commence on the date that ON receives
written notice accepting Terms of Engagement from the Client and
shall continue in full force and effect until the Services have
been completed, subject to earlier termination pursuant to Clauses
9.2 and 9.3.
9.2 Either party may terminate provision of the Services
immediately by notice in writing to the breaching party if the
breaching party:
9.2.1 is in irremediable breach of its obligations or, in the case
of a remediable breach, such breach has not been remedied within 14
days of receipt by the breaching party of a notice from the other
party specifying the breach and requiring its remedy; or
9.2.2 enters into voluntary or compulsory liquidation, or
compounds with or convenes a meeting of its creditors, or has a
receiver or manager or an administrator appointed over any part of
its assets, or ceases for any reason to carry on business, or takes
or suffers any analogous action which in the opinion of ON means
that the Client may not be able to pay its debts.
9.3 ON may terminate provision of the Services at any time
if:
9.3.1 it has given the Client three months' notice in writing;
or
9.3.2 the Client attempts substantially to alter the scope or
definition of the Services without ON's prior written
agreement.
9.4 On termination, ON will be entitled to be paid all fees and
expenses incurred or accrued and payable by the Client as at the
date of termination or cancellation of the Services. In the case of
termination by ON pursuant to Clause 9.2, the Client will be deemed
to have cancelled the Services and will be liable to pay a
cancellation charge as specified in Clause 4.1, if
applicable.
9.5 On termination, each party shall immediately return to the
other party all property of the other party in its custody,
possession or control.
9.6 Clauses 1, 4, 5, 7.3, 8, 9, 10, and 14 shall survive expiry or
termination of this Agreement howsoever caused and shall remain
thereafter in full force and effect after termination.
9.7 Payment terms: Standard terms are 21 days for payment (nett)
of invoice. This period shall be measured from the date of invoice
and payment should be in ON's bank as cleared funds not later than
21 days from this date. These terms can be varied in writing
between ON and the client. Late payments may be subject to a 7%
late payment fee to be levied per month (or part-month) on the
total amount owing for any invoice where payment is not received
within the agreed period.
9.8 Project pre-payments and payments-in-advance are consideration
for entering into a project.
9.9 Material changes and cancellations: Should a client later
cancel a project, or should an agreed project become unable to
proceed for any reason, then any pre-paid amounts for the project,
or relevant part thereof, will be allocated a credit note from ON,
for the client involved, to use as credit on a similar value of ON
services in the future. Third party project pre-payments not yet
expended can be refunded, less any related expenses and also less
an administration fee of 5.5%.
9.10 Where circumstances change or information not previously
known to ON becomes known which in the opinion of ON changes the
basis on which the project was intended to proceed, ON reserves the
right to not proceed further with the agreement or to treat an
agreement as not having existed. Any monies pre-paid will be
credited to client as a credit note on future work.
10. Warranty and liability
10.1 Nothing in these ON Terms shall exclude or limit ON's
liability for any liability that cannot be excluded by law.
10.2 Subject to Clauses 10.1 and 10.3, ON's liability arising
under or as a result of the provision of the Services whether in
contract, tort, breach of statutory duty or otherwise is limited to
the fees actually paid by the Client to ON for such Services.
10.3 ON will not be liable for any indirect or consequential loss,
loss of business, profit, revenue, data or goodwill, nor for lost
or wasted management time or employee time of the Client.
10.4 Any condition, representation or warranty that might
otherwise be implied or incorporated within these Terms by reason
of statute or common law or otherwise is hereby expressly
excluded.
11. Force majeure
ON has no liability to the Client if ON is unable to provide all
or a part of the Services in accordance with the Terms of
Engagement or otherwise as a result of circumstances beyond ON's
reasonable control, including without limitation, war, strike,
lockout, industrial disputes, riot, civil commotion, acts of
Government, fire, blockade, accident, natural catastrophe,
disaster.
12. Waiver
No delay, neglect or forbearance by either party in enforcing any
provision of the Terms of Engagement or these ON Terms shall be
deemed to be a waiver or in any way prejudice any rights of that
party.
13. Rights of third parties
Nothing in these ON Terms or the Terms of Engagement confers or
purports to confer on any third party any right to enforce any of
the Terms of Engagement or these ON Terms.
14. Governing law and jurisdiction
These Terms and the Terms of Engagement are governed by and
construed in accordance with the laws of the UK, and are subject to
the exclusive jurisdiction of the UK courts.
15. Entire agreement
15.1 These ON Terms together with defined Terms of Engagement
materials constitute the entire agreement between ON and the Client
in relation to the Services, and supersede all earlier
communications. Each party acknowledges that it has not relied on
any commitment, representation or warranty in entering into the
Contract, other than those expressly set out in the Contract. No
amendment or other variation to these ON Terms by the Client will
be effective unless it is in writing, is dated and is signed by a
duly authorised representative of ON and the Client.
15.2 If there is any conflict between these ON Terms and the Terms
of Engagement, these ON Terms will prevail.
16. Notices
16.1 Any notice permitted or required under these ON Terms will be
given in writing and shall be effectively served if delivered by
hand or sent by first-class or airmail post to ON at its usual
address and, in the case of the Client, to the last known or usual
address. Any notice personally delivered shall be deemed to have
been received at the time of delivery. Any notice sent by post
shall be deemed to have been delivered five Business Days after
posting.
16.2 In cases where the Terms of Engagement specify nominated
representatives of the parties, all notices shall be addressed to
such representatives.
17. Principles
17.1 Discrimination - As an LGBT-owned business, ON is strongly
committed to non-discrimination and diversity, both in our own
teams as well as in those firms we may engage with. This includes
without limitation the following: skin colour, ethnic
background/race, age, gender identification, sexual orientation,
pregnancy, ethnicity, disability, religion, political affiliation,
trade union membership, nationality, indigenous status, medical
condition, HIV status, social origin, social or marital status and
union membership.
17.2 Health & Safety - We believe that a healthy and safe
working environment for employees, consultants or others who might
be affected by our activities is a vital output of our work and we
pursue and operate in accordance with relevant international
standards and national laws.
17.3 Environment - ON is passionately committed to furthering the
sustainability of a healthy environment. As well as complying with
all relevant legislation and international standards, we seek to
leave the environment in the best conditions possible and we
endeavour consistently to ensure our work does not cause directly
identifiable negative outcomes for the environment to the fullest
extent we are able to. We apply tools where available such as air
and/or water filtration systems to ensure the immediate working
environment experienced by our team members is as healthy as we can
make it.
17.4 Child Labour - ON has a strict policy against the employment
of persons under the age of 18.
17.5 Forced Labour - ON uses only fair labour principles in all
our dealings with employees and contractors. We never use any form
of forced, bonded, compulsory labour, slavery or human trafficking.
Our employees and suppliers are always free to end their
relationship with us with reasonable notice.
17.6 Working Conditions - ON works mainly with consultants who are encouraged to set their own working hours as they work with us to deliver the work we have contracted to deliver for our clients. No consultant working for or with ON is required to work at times they choose not to. Full-time employees are always free to take vacations no less than 3 weeks per year fully paid each year or longer by mutual agreement. Every employee and consultant is encouraged to have at least one day off per week free of working for ON projects/tasks. ON adheres to all local working condition legal requirements in the places we deliver our services and we consistently seek to achieve the highest possible standards of respect for all those who are part of the ON team.
17.7 Anti-bribery, Corruption and Individual Conduct
ON does not tolerate nor ever enter into any bribery discussion,
transaction or offers to or from employees, customers, suppliers,
organisations or individuals. Our anti-bribery policy is
encapsulated in our commitment to the principle of zero tolerance
to any form of bribery or corruption within our organisation,
including facilitation payments. Our employees, consultant and
suppliers are aware of our anti-bribery policy and the need for
them not to breach this policy. Failure to do so would result in
termination of the relationship. We act in compliance with all
applicable international standards and laws on fraud and money
laundering and closely monitor all transactions with which our
business is part of to monitor compliance by all parties
involved.
17.8 Notification of these policies and conditions - ON makes this
document available to all team members, new clients, suppliers or
employees to advise them of the standards we require in the conduct
of ON operations.