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Latest revision: 2nd November 2017
TERMS AND CONDITIONS OF SALE
Virtalent Ltd (t/a www.virtalent.com and Virtalent)
This agreement is made between yourself and Virtalent Ltd, registered at Avebury House, 55 Newhall Street, Birmingham, B3 3RB.
These definitions apply unless the context requires a different interpretation:
1.1 “Task” means the means the Buyer’s work or assignment for which one or more Virtual Assistant(s) are to be supplied as per the terms of this agreement. The relevant detail of the Task is set out in schedule 2 of this agreement.
1.2 “Confidential information” means all information about a party to this agreement. It includes among other things: information about staff, their personal contact information, and businesses, methods of doing business, future plans, policies, suppliers and customers. It also includes any information related to the Buyer’s own customers that relates to the Task.
1.3 “Intellectual property” means intellectual property of every sort, whether or not registered or registerable in any country to the extent relating to the Task. This includes patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. It also includes intellectual property owned by the Buyer’s own customers that relates to the task.
1.4 “Virtual Assistant” means each (one or more) worker or freelancer supplied by the Supplier to the Buyer for the purpose of the Task. Other staff members belonging to the Virtalent Ltd management team may also be supplied in this capacity from time to time. The relevant details of each one or more such persons are set out in schedule 1.
1.5 “Timetable”means the standard timesheet to be completed by the Virtual Assistant. Its standard format is set out in schedule 3.
1.6 “Pricing Plan” means the package of hours agreed to be purchased by the Buyer at the price stipulated on the Sign Up page and in clause 4 of this agreement.
1.7 “Sign up page” means the series of webpages at virtalent.com where the Pricing Plan is chosen, agreement to the Supplier’s terms and conditions is given and the Buyer’s purchase is made.
In this agreement, unless the context clearly indicates another intention:
- reference to one gender includes all other genders and reference to the singular includes the plural and vice versa;
- obligations undertaken by more than a single person are joint and several obligations;
- reference to a statutory provision is a reference to that provision as modified or re-enacted or both from time to time and to any subordinate legislation made under the statutory provision;
- reference to a document is a reference to that document as from time to time supplemented or varied;
- reference to writing includes post or e-mail, but does not include fax;
- any reference to a person includes natural persons and partnerships, firms and other such unincorporated bodies, corporate bodies and all other legal persons of whatever kind and however constituted.
- This agreement is to set out the terms and conditions between the Supplier and Buyer whereby the Buyer may request the Supplier from time to time for supply of one or more persons as Virtual Assistant for the purpose of the Task as per the request of the Buyer.
- This agreement does not create any partnership, joint venture or employment relationship between the parties.
- The Virtual Assistant is an agent of the Supplier for the restrictive purposes of this agreement and he does not enjoy any implied authority to act on behalf of the Supplier otherwise than expressly authorised by the Supplier as per the details of the Task.
- The terms of this agreement constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except agreed in writing between the parties. Each party acknowledges that, in entering into this agreement, it does not rely on any representation, warranty or other term not forming part of this agreement.
- The Buyer shall not be entitled to assign this agreement nor all or any of his rights and obligations hereunder without the prior written consent of the Supplier. The benefit and obligations of this agreement shall be binding on any successor in title.
- No variation to these terms can be made otherwise than in writing signed by a Company Director of the Supplier.
Pricing Plans, fees and payment
- All fees mentioned in this agreement are exclusive of VAT, which is payable by the Buyer.
- Unless otherwise agreed in writing between the parties, the Buyer agrees to pay the hourly rate as defined in his Pricing Plan for the term of working by the Virtual Assistant for the Task.
- The Buyer agrees that the date on which they make their initial purchase of a Pricing Plan from the Supplier via the sign up page constitutes the “billing date” for the Buyer’s service plan.
- For the purpose of billing, the Supplier refers to a “month” as a calendar month which represents a period of time between the same dates in successive calendar months.
For example, if you were to sign up on 6th October 2017, your first month runs from 6th October 2017 until 5th November 2017. On 6th November a new month begins and you will be billed separately for this unless otherwise agreed in advance.
- If your “billing date” usually falls on a date which does not exist in the current month, you will instead be billed on the nearest subsequent day to this and the current month will end on the calendar day before this.
For example, if you were to sign up on 31st October 2017, the date at 31st November 2017 does not exist. As such your first month would begin on 31st October 2017 and end 30th November 2017. The second month will then begin 1st December and end 31st December (the usual end date of monthly Pricing Plan).
- The Buyer agrees to prepay for all hours contained within his service plan (or otherwise if agreed between the Buyer and the Supplier in any written correspondence with him) prior to the commencement of any services provided by the Supplier.
- The Buyer agrees that any unused hours which have been paid for in the current month may be used in the following month only (this may be referred to as the “roll over” by the Seller).
- The Buyer agrees to pay for any additional hours used above those contained in his Pricing Plan at the rate defined in his Pricing Plan, payable net 7 days upon receipt of the invoice.
For example, if your Pricing Plan entitles you to 10 hours but you accrue 13 hours worth of time in the current month, 3 hours will be billed to you at the rate stated in your Pricing Plan.
4.1 Pricing Plans
- “Starter Plan”: The Buyer agrees that the Starter Plan includes 10 hours of time to be used by the Supplier and that additional hours accrued above this will be billed at £25 per hour. The Starter Plan is charged at £250.
- “Professional Plan”: The Buyer agrees that the Professional Plan includes 20 hours of time to be used by the Supplier and that additional hours accrued above this will be billed at £24 per hour. The Professional Plan is charged at £480.
- “Plus Plan”: The Buyer agrees that the Plus Plan includes 40 hours of time to be used by the Supplier and that additional hours accrued above this will be billed at £23 per hour. The Plus Plan is charged at £920.
- “Ultimate Plan”: The Buyer agrees that the Ultimate Plan includes 60 hours of time to be used by the Supplier and that additional hours accrued above this will be billed at £22 per hour. The Ultimate Plan is charged at £1320.
4.2 Cancellation or Amendment to a Pricing Plan
- The Buyer agrees that Pricing Plans are billed on their billing date and due immediately.
- The Buyer agrees that they will be billed once per calendar month until the Pricing Plan is cancelled or otherwise amended.
- The Buyer agrees that they must notify the Supplier of their intention to cancel or amend their Pricing Plan (including changing to a different Pricing Plan) at least 4 working days before the end of the month. This notice must be provided by email to firstname.lastname@example.org unless otherwise specified by the Supplier in correspondence with the Buyer.
- Failure to provide this notice may result in the commencement and charge of a Pricing Plan for the subsequent month for which the Buyer agrees to make payment.
4.3 Other fees and expenses
- Travelling, hotel or other expenses agreed between the Supplier and the Buyer shall be itemised on the Supplier’s invoice and charged to the Buyer in addition to the agreed hourly charge for the relevant period.
- All additional charges are payable net 7 days to the Supplier. Charges will include any itemised expenses and any additional time recorded by the Virtual Assistant(s) in the previous month, regardless of whether the Task is deemed to be complete or is still ongoing at the point the Buyer is charged.
- The full details of charges will be made available by the Supplier on the written application of the Buyer.
- Payments will be made by the Buyer in pounds sterling by direct transfer to the Supplier’s bank account as notified to the Buyer or by direct debit, credit card or debit card as may be required by Supplier. The Supplier reserves the right to require full or partial payment in advance for the agreed work on the Task.
- The Supplier reserves the right to charge the Buyer a 2.9% fee for debit or credit card payments.
- The Suppliers does not accept payment by cheque or cash, unless otherwise agreed with the Buyer. The Supplier reserves the right to charge the Buyer an administrative fee (to be decided between both parties) if payment is made by cheque or cash.
- The Supplier reserves the right to charge the Buyer an interest in respect of the late payment of any money due under this agreement (both before and after judgment) at the rate of 5 per cent above the base rate of the Bank of England from the due date until receipt of payment.
- Receipt of the Buyer’s written communication to indicate his satisfaction with the completion of the Task, or the failure to notify the Supplier of any grievance with the Task or other services supplied by the Supplier, shall be deemed to be conclusive evidence that the Buyer is satisfied and will pay all relevant charges in full without dispute. Notwithstanding this, failure by the Buyer to agree to any charges by his written correspondence or payment of charges shall not preclude the Supplier from charging the Buyer in accordance with this agreement. The Buyer’s written correspondence or active direct debit mandate indicates that the Supplier may debit his bank account, or by full or part payment of the invoice, constitutes acceptance that a Virtual Assistant has worked satisfactorily for the hours stated therein.
- Refunds are made at the sole discretion of Virtalent Ltd only. We are unable to prorate memberships or refund any amounts due to unused time in your current month.
- The Supplier reserves the right to arrange for a replacement of the Virtual Assistant in case of his unsatisfactory performance or unavailability or otherwise. If the Supplier decides, a replacement will be provided to the Buyer within a reasonable time provided that the Buyer notifies the Supplier.
Obligations of the Supplier
- The Supplier shall make all reasonable efforts to ensure that a Virtual Assistant shall:
- have suitable skills and experience for the purpose mentioned by the Buyer in the Task;
- efficiently and diligently perform his duties and such other duties as from time to time be assigned to a Virtual Assistant by the Supplier on the special request of the Buyer;
- comply with the legitimate and reasonable instructions of the Buyer relating to the Task; and
- comply with the reasonable requirements concerning conduct and standards of behaviour of the Buyer.
- The Supplier accepts that a Virtual Assistant shall observe all applicable disciplinary rules whilst engaged by the Buyer. On a serious breach of such rules, the Buyer may request the replacement of that Virtual Assistant with another individual supplied to the Buyer.
- The Supplier is responsible for the payment of a Virtual Assistant’s fees and/or remuneration. Virtalent Ltd does not act as an employment or recruitment agency.
- Notwithstanding anything contained in this agreement, although the Supplier endeavours to ensure the suitability of any Virtual Assistant supplied to the Buyer, the Buyer must satisfy himself as to the suitability of any Virtual Assistant and shall be responsible for taking up any additional checks before engaging him.
Obligations of the Buyer
- A Virtual Assistant as supplied under this agreement will be deemed to be under the supervision, direction and control of the Buyer. The Virtual Assistant is to report to the Buyer to take up duties for the duration of the Task and will be subject to the internal organisational policies relating to the agents of the Supplier.
- The Buyer undertakes that the Virtual Assistant is not or will not be requested to replace an individual taking part in an official strike or any other official industrial dispute or to do the work of someone who has been transferred by the Buyer to perform the duties of the person on strike or taking industrial action.
- The Buyer understands that all information about the Virtual Assistant and about the Supplier, as may be communicated from time to time by the Supplier to the Buyer, is confidential. If without the written approval of the Supplier, any such information is passed to a third party which results in loss of any income or business opportunity to the Supplier, the Buyer will be liable to indemnify the Supplier’s loss of income that it was to receive from the Buyer or any other party.
- If the Virtual Assistant supplied to the Buyer undertakes work at physical premises indicated by the Buyer, the Buyer’s public liability insurance policy covers the consequences arising out of the work performed by the Virtual Assistant for the Task.
- The Buyer will fully co-operate and assist the Supplier in complying with the Supplier’s duties under this agreement and as provided in the applicable law. Where the Buyer requires or may require the services of a Virtual Assistant for more than 48 hours in any week, the Buyer must notify the Supplier of this requirement before commencement of that week. The Buyer shall also advise the Supplier of any special health and safety hazards and matters about which the Supplier is required to inform the Virtual Assistant.
- The Buyer shall not engage the Virtual Assistant in any work other than the Task without the written approval of the Supplier. The Buyer further undertakes to supply the true and correct information that may be requested by the Supplier from time to time for the purpose of this agreement.
- The Buyer undertakes to supervise the Virtual Assistant to ensure compliance with reasonable standards of workmanship. If the services provided through the Virtual Assistant prove to be unsatisfactory, the Supplier shall consider a reduction or cancellation of the hourly charge applicable to the Task and the replacement of the Virtual Assistant, provided notification (confirmed in writing within seven calendar days) is received. The Supplier shall consider the cancellation or reduction of any subsequent charges that arise to ensure the satisfactory and final completion of the Task.
- The Buyer is aware of the applicable law, rules and regulation and shall be responsible for obtaining work permits and other applicable permits, for the arrangements of medical examination and/or investigation into medical history of any Virtual Assistant, and satisfies any medical and other requirements or qualifications required by Law.
- The Buyer shall take all reasonable precautions to ensure the health and safety of a Virtual Assistant while on the Buyer’s or any other premises.
- The Buyer undertakes not to enter into any relationship with the Virtual Assistant that may be detrimental to the interest of Supplier during this agreement and within one year from the date of its termination except as provided in this agreement or agreed in writing with the Supplier.
- The Buyer is not to discuss the terms of this agreement and any information supplied by Supplier with any third party to the prejudice of Supplier’s commercial interest.
- The Buyer shall indemnify and keep indemnified the Supplier for any direct or indirect or consequential loss or damage out of the Task or any loss or damage to profit, revenue, savings, use, contract, goodwill or business or any physical or mental damage to the Virtual Assistant however caused in the course of Task, including without limitations by reason of misrepresentation (whether made prior to or in this agreement), negligence, other tort, breach of contract or breach of any statutory duty.
For the purposes of the Data Protection Act 1998, the Buyer consents to the processing of his all or any personal data (in manual, electronic or any other form) relevant to this agreement, by the Supplier and/or any agent or third party nominated by the Supplier and bound by a duty of confidentiality. Processing includes but is not limited to obtaining, recording, using and holding data and includes the transfer of data to any country either inside or outside the EEA.
Confidentiality and Intellectual Property
- All secrets or confidential information relating to the business of the Buyer, its employees, transactions or finance disclosed to the Supplier shall be regarded as having been disclosed in confidence. And shall not otherwise than in connection with the affairs of the Buyer be passed on to a third party or in any way be made use of by the Supplier at any time either during or after the termination of this agreement.
- Subject to the previous sub-paragraph, the parties hereby undertake for themselves and every employee or sub-contractor whose services they may use:
- that they will not divulge to any person or otherwise make use of (and shall use their best endeavours to prevent the publication or disclosure of confidential information; and in any event;
- that they will explain to all relevant employees, agents and sub-contractors about the provisions of this paragraph and will take appropriate steps to ensure compliance with these provisions by their employees, agents and sub-contractors.
- The Supplier procures that upon termination of, or at any time during a Task, a Virtual Assistant shall deliver to the Buyer all books, documents, papers, materials and other property (including any copies thereof) belonging to or relating to the business of the Buyer which may then be his/her possession or under his/her control.
In consideration of the final settlement of all invoices and monies owed to the Supplier, the Supplier hereby assigns to the Buyer absolutely with full title guarantee all its right, title and interest in and to the Assigned Rights.
By “Assigned Rights”, this relates to any Intellectual Property Rights arising from work done on the Task which are capable of subsisting or being owned by the Supplier.
- The Buyer agrees that it will not during this agreement and within one year of its termination, by any means and neither for itself nor for any other person, directly or indirectly, advise, instruct, do or assist in any activity the effect of which is to promote the competition with the Supplier.
- The restrictions imposed by the previous sub paragraph extend only to the Virtual Assistant or outsourcing industries of the United Kingdom, as contain one or more customers of the Supplier.
- The Buyer further agrees that it will not during the term of this agreement and for a further period of one year after its termination, howsoever caused, will not without the written consent of the Supplier, engage the Virtual Assistant directly or through another Supplier nor employ or otherwise contract with any employee or representative of the Supplier without its written permission.
- If the Buyer, without the written permission of the Supplier:
- independently engages a Virtual Assistant during or within one year of the termination of a Task; or
- introduces the Virtual Assistant to other employers (including, but not limited to any subsidiary or associated company of the Buyer) with a resulting engagement during or within one year of the termination of the Virtual Assistant;
Then the Buyer shall forthwith pay to the Supplier an agency fee equivalent to £3000. Such a fee shall be payable on or before the date of commencement of employment or engagement of the relevant individual by the Buyer.
- For the purpose of paragraph 8.4, independent engagement shall mean any use of a Virtual Assistant’s service without the involvement of the Supplier and Virtual Assistant shall include a person who is supplying his services through a limited company.
Limitation of Liability
- The Supplier undertakes to make all reasonable efforts to ensure reasonable standards of skill, integrity and reliability from the Virtual Assistant. But no liability is accepted for any claim arising from failure to provide a Virtual Assistant for all or part of the Task or from any loss or damage attributable to the lack of skill or reliability of the Virtual Assistant.
- The Supplier may be liable to the Buyer under or in connection with this agreement in respect of any default that may arise from breach of its contractual obligations arising under this agreement; and any work in the Task, representation, statement or tortuous act or omission including negligence arising under or in connection with this agreement. The disclaimer of liability will exclude the loss of profits, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the Buyer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Supplier or the Virtual Assistant had been advised of the possibility of the Buyer incurring the same.
- The liability of the Supplier to the Buyer in the event of any dispute concerning or under these conditions is limited to an aggregate claim not exceeding the sum of £250,000.
- The Buyer acknowledges that the limitations and exclusions of the obligations and liabilities of the company set out herein are reasonable and reflected in the charges payable to the company hereunder. The Buyer shall accept risk and/or insure accordingly.
Duration and termination
This agreement shall continue for a period of one year and will then be renewed on a rolling annual basis unless it is terminated as under:
- By either party on a written notice of 4 working days. This notice requirement of 4 working days may be waived by the written consent of the party receiving such notice;
- By either party immediately upon giving notice in writing in the following circumstances:
- the Buyer is in breach of any of the terms of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it; or
- the Buyer is or becomes incompetent or negligent in respect of any of his obligations under this agreement as per the sole discretion of the Supplier;
- Immediately by the Supplier if the Buyer fails to pay any sum due within 7 days of the due payment date;
- Immediately by either party if a trustee receiver or administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration or bankruptcy order.
Matters after termination
- Notwithstanding termination of this agreement for whatever reason, all the provisions that are intended to operate or have effect after termination or expiration shall continue in full force and effect.
- If the agreement is terminated without the fault of the Supplier, the Buyer will pay the Supplier for all work done up until the time that the notice of termination is received by the Supplier. The Buyer shall be liable to pay the Supplier for the work done irrespective of the fact that the Task is not completed.
Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control, which may include fire, natural disaster, war or military hostilities and/or strike by its own employees and in such a situation:
- The parties hereby agree to give notice immediately to the other upon becoming aware of an event of force majeure and such notice to contain details of the circumstances giving rise to it;
- If a default due to force majeure event shall continue for more than 6 weeks then the party not in default shall be entitled to terminate this agreement; and
- Neither party shall have any liability to the other in respect of the termination of this agreement as a result of force majeure.
Notices and service
- Any notice or other information required or authorised by this agreement to be given by either party to the other may be sent by first class pre-paid post or electronic means to the other party at the address last provided for that type of communication.
- Any notice or other information given by post shall be deemed to have been given on the third day after it was posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, or that it has not been so returned to the sender, shall be sufficient evidence that it has been duly given.
- Any notice or other information sent by electronic means shall be deemed to have duly sent on the date of transmission.
- Service of any legal proceedings concerning or arising out of this agreement shall be affected by causing the same to be delivered to the party to be served at its main place of business or to such other address as may from time to time be notified in writing by the party concerned.
The headings in these terms & conditions are for reference only.
In the event of a dispute arising out of or in connection with this agreement and which has not been resolved following discussions and negotiations between a person or persons appointed or authorised by the Supplier and the Buyer then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
Contracts (Rights of Third Parties)
It is not intended that this agreement shall give any right to any third party under the Contracts (Rights of Third Parties) Act 1999.
The 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 of the right at any time subsequently to enforce all terms and conditions of this agreement.
This agreement shall be interpreted according to the Laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the courts of England and Wales.
Schedule 1: Detail of Virtual Assistant(s)
The details and contact information of the Virtual Assistant offered to the Buyer for the completion of the Task (or Tasks) required of them will be provided in writing prior to the commencement of any work
Schedule 2: The Task
The full details and requirements of any Task asked of the Virtual Assistant will be provided in writing prior to its commencement.
The Buyer must also give an approximate estimation of the timescale expected for the completion for the task and/or any deadline for the completion of the task, before it’s commencement, if the Buyer or Virtual Assistant deems this relevant.
Schedule 3: The Timesheet
The Virtual Assistant will record the time they spend working on each task via a secure online time-tracking application (the exact application used will be decided at the discretion of the Supplier) which will be accessed using their own username and password assigned to them by the Supplier.
This application will accurately record time to assist the calculation of any invoice due to be paid by the Buyer.
The Buyer may request a detailed breakdown of the times logged by the Virtual Assistant for an on-going Task or a Task that has completed within the last month.