These Terms apply to you (“Consultant” or “you”, an individual), and SAS elements.biz (SIRET: 91163268500010, registered at the Greffe du Tribunal de Commerce de Chambery, France), (“Elements”, “elements.biz”, “we” or “us”) and these Terms and are effective as of the date you sign up to elements.biz ticking the check box referencing these terms (the “Effective Date”) or the date that you begin to provide services via the elements.biz platform. These Terms are also defined as the “Agreement”.
1.1 elements.biz is the sole promoter of the elements.biz trademarks, service marks, trade names and logos designated by elements.biz within the Brand Guidelines (the “elements.biz Brand”).
1.2 elements.biz allows consultants to use the elements.biz Brand and provides an infrastructure through which you may offer your professional services to Clients in accordance with the Terms of Business (“Services”). elements.biz is in the continuous process of building a proprietary platform at https://elements.biz/ to which you will be given access, (“elements.biz Platform”).
1.3 Nothing in this Agreement or in elements.biz’ relationship with you is intended to create or may be construed as creating the relationship of employer and employee between us, or a worker relationship. You agree that you are an independent contractor operating in business for your own account, who may utilise the elements.biz Platform and elements.biz Brand on the terms of this Agreement.
1.4 This Agreement sets out the basis upon which you may (i) use the infrastructure provided by elements.biz, (ii) offer your Services to businesses using the elements.biz Brand and (iii) access other services provided by elements.biz via the elements.biz Platform.
1.5 We may vary this Agreement on at least fifteen (15) days’ Written notice to you (except this period may be shorter where such variation is required by law or for an unforeseen and imminent risk to the elements.biz Platform and/or its users). If a proposed change means that you need to make technical or commercial adjustments, we will give you a longer notice period before the change applies. Whenever we notify you of a proposed change to the Agreement, you will have the right to terminate the Agreement before expiry of the applicable notice period. If you keep providing your Services under this Agreement and continue to use the elements.biz Platform then we will take this as your confirmation that you agree to the updated Agreement and do not want to terminate.
1.6 This Agreement applies to our relationship to the exclusion of any other terms (express or implied).
2. Your obligations
2.1. You agree that: (a) where you engage with clients for the provision of Services in association with the elements.biz Brand (“Clients”), you will carry out such Services for clients in a manner consistent with the the elements.biz terms of business (“Terms of Business”), and b) you will add all details of such Client into the elements.biz database or elements.biz Platform (as may be amended by elements.biz from time to time), and c) you will use the elements.biz Platform if you agree a brief with a Client that will form the binding contract between you and Client (the “Contract”), as per the Terms of Business.
2.2. elements.biz facilitates and encourages the provision of Services between you and Clients. You alone decide whether or not to provide Services to a Client (or potential client) and are responsible for engaging directly with such Client and/or potential client under a Contract. elements.biz is not a party to any such Contract for Services between you and Clients and accepts no responsibility for your Services or the actions or non-actions of a Client under a Contract.
2.3. You appoint elements.biz to be an authorised agent to determine the Terms of Business for Services that you are to provide under the Contract, and to receive the Client’s payment for Services.
2.4. You acknowledge and agree that: (a) the Terms of Business shall apply to all Contracts between You and Clients; and (b) payment by the relevant Client to us of the Contract value will discharge such Client’s payment liability to you in respect of the Contract.
2.5. You agree that even where you have found a Client, elements.biz has the right to (i) retain such Client details within its database, (ii) contact such Client and promote complementary services thereto (including those of any other consultant using the elements.biz Brand) and (iii) engage directly with such Client as elements.biz sees fit (save that where you have found such Client, elements.biz shall not introduce consultants to that Client who offering services that are the same as your Services to such Client unless (i) you confirm that you cannot provide the requested Services to such Client or (ii) the Agreement has terminated.
2.6. You agree that to protect the reputation and goodwill of the elements.biz Brand and the consistency of the Client (and potential client) experience, you shall comply with this Agreement, the ‘elements.biz Charter’ that is made available to you online and the Brand Guidelines when providing the Services and prospecting clients.
2.7. You may not use the elements.biz Platform and/or brand in relation to any services provided by you to an entity that has not agreed to the elements.biz Terms of Business. You may not alter, add to, or waive any of the elements.biz Terms of Business.
2.8. Except for services that we have agreed to provide to you through the Platform, you are responsible for all expenses incurred in connection with the provision of your Services, including but not limited to personnel costs, equipment, expenses, taxes and licences. You acknowledge that elements.biz is not responsible for any fees unless expressly set out in this Agreement.
2.9. You are solely responsible for understanding and complying with all laws, rules and regulations that may apply to the provision of your Services, and you warrant that:
(a) you have full capacity and authority and have obtained all necessary consents to enter into this Agreement;
(b) each description of your Services and information supplied to us and clients, is accurate current and complete and is not misleading or otherwise deceptive;
(c) you will not introduce a virus into the elements.biz Platform, and will take all necessary steps to ensure that passwords remain confidential and secure, and will inform us immediately if your account is compromised;
(d) you will provide accurate ID to us where we request, to verify your identity;
(e) no materials or information supplied by you to us or a client shall infringe the intellectual property rights of any third party or data protection, privacy or other rights of any other person, be defamatory or in breach of any contractual duty or any obligation of confidence;
(f) your Services shall comply with all applicable laws and regulations and be carried out with reasonable care and skill and good industry practice;
(g) you shall always comply with any elements.biz policies applicable to you as an independent entity or individual in business on your own account and which may be notified to you from time to time; and
(h) you will fully comply with your obligations under this Agreement (including honouring the rights of Clients and elements.biz under the elements.biz Terms of Business),
and you agree to indemnify us on demand against all losses and liabilities we may suffer (including third party claims against us) in connection with any breach of the above warranties.
2.10. You do not have authority to incur any liability or obligation on behalf of elements.biz (such as signing or accepting a contract on elements.biz’ behalf).
2.11. You will cooperate with all reasonable elements.biz activities to promote, sell or market your Services, whether through the elements.biz Platform or on other channels.
2.12. You will make two half days available for initial training (each party paying its own attendance costs) and will use best endeavours to attend any further training proposed by elements.biz during the Term, provided you are given reasonable notice of such.
2.13. You will store all Client related information and the output of Services for that Client on elements.biz’ internal systems as made available to you and in line with any elements.biz’ policy of which you are notified
3. The elements.biz Platform
3.1. elements.biz grants you a non-exclusive, non-transferable, revocable, limited licence to use the elements.biz Platform.
3.2. We may create a public-facing online Consultant Page for you based on information provided by you through the elements.biz Platform. When added to a Consultant Page, you shall include all information and content that a potential customer requires to make an informed decision as to whether to make a purchase of Services, including any mandatory information required by us or by law.
3.4. From time to time we may, at our discretion, offer to make niche, or specialist services available to you via the elements.biz Platform. Where you opt to use such services, the use of such services may be subject to further terms and conditions (including the payment of additional fees) that you must accept in order to use such services.
3.5. We reserve the right to omit, suspend or exclude a Consultant Page or any information provided by the you from the elements.biz Platform at any time where it does not comply with the terms of this Agreement, and if we do so, we shall not be liable for any losses and liabilities suffered by you as a result.
3.6. elements.biz has absolute discretion as to the look, feel and content of the elements.biz Platform and Consultant Pages as well as full and final say in the inclusion, positioning, location, presentation, language, and services offered to clients.
4. elements.biz Obligations
4.1. elements.biz will maintain, and provide you with non-exclusive access, to the elements.biz Platform and certain infrastructure and services to assist you in the provision of Services and finding clients.
4.2. elements.biz warrants that (i) it has full capacity and authority and has obtained all necessary consents to enter into this Agreement; and (ii) the services it provides under this Agreement will be performed with reasonable care and skill.
4.3. Except as expressly set out in this Agreement, no implied conditions, warranties or other terms, will apply to anything supplied or provided by us under this Agreement. In particular we do not warrant that the elements.biz Platform and/or any infrastructure provided by us shall be continuously available, uninterrupted, virus or error-free, nor do we make any representation or warranty whatsoever in respect of the level of sales of your Services.
5. elements.biz Fees, commissions and billing.
5.1. In consideration for the use of the elements.biz Brand, infrastructure and elements.biz Platform you agree to pay elements.biz the fees as defined when you sign up to the platform.
5.2. You agree to pay recurring subscriptions that are directly due from you to elements.biz by monthly direct debit.
5.3. You agree that commissions that are directly due from you to elements.biz in respect of any Contract, will be deducted from payments due to you from Clients (collected by elements.biz).
5.4. If Client owes you fees for Services agreed under a Contract, then subject to the receipt of such fee as your payment agent by elements.biz in accordance with the Terms of Business and subject to the deduction of any fees owed by you to elements.biz, elements.biz shall pay the balance to you within 15 days of the invoice for such Services, provided that elements.biz has received payment for Services from Client, as your payment agent.
5.5. You shall ensure that the prices you set with Clients for Services under Contracts are no less favourable than those offered by you through your own website(s), and any other channel through which the Services are made available. If you offer Services elsewhere for cheaper, then without prejudice to our rights under this Agreement, terminate this Agreement immediately upon notice (save that Contracts in place shall terminate upon expiry) without prejudice to our accrued rights.
5.6. We reserve the right to introduce new fees for the provision of the services outlined under this Agreement or introduce fees for new services on reasonable notice to you. If you do not wish to accept such fees, you may terminate this Agreement with effect from the date of the notice, such termination to be notified to us not later than thirty (30) days from the date of the notice. If you do not provide such notice within such 30 day window, you shall be deemed to have accepted and be liable for the fees.
5.7. You agree that elements.biz administrative services will manage both your billing to Clients, and the bills sent to you for payment of subscriptions, commissions and any other amounts due.
5.8. You undertake that you shall not do or attempt to do anything that would circumvent the fees due to elements.biz under this Agreement.
5.9. In order to facilitate time/cost/progress tracking for Clients and billing, you agree to use the online tracking solution provided to you by elements.biz.
6. elements.biz Brand
6.1. You acknowledge that all intellectual property rights in the elements.biz Brand and elements.biz Platform, and any documents, know-how or templates supplied by elements.biz to you (“elements.biz Materials”), are owned exclusively by us and you have no right, title, or interest in the elements.biz Brand, elements.biz Materials and elements.biz Platform other than the non-exclusive license granted in this Agreement. All goodwill associated with the elements.biz Brand belongs exclusively to elements.biz.
6.2. You agree to:
(a) use the elements.biz Brand only while the Agreement is in effect in accordance with the Brand Guidelines;
(b) not use any of the elements.biz Brand as part of any corporate or legal name or when creating any social media accounts (unless you have our prior Written consent);
(c) sign any documents elements.biz deems necessary to obtain protection for the elements.biz Brand or to maintain their continued validity and enforceability; and
(d) not use the elements.biz Brand in association with the products, or services of any third party or you in relation to clients who are not Clients (unless they are likely to be a prospective Client).
6.3. elements.biz has the right to change, discontinue, add to, or substitute for any part of the elements.biz Brand in any jurisdiction upon reasonable notice. You agree to implement any change at your own expense.
6.4. You agree not to contest the validity or ownership of the elements.biz Brand or take any action detrimental to elements.biz’ rights in the elements.biz Brand. You may not, whether directly or indirectly acting with someone else, while the Agreement is in effect or at any time thereafter, anywhere in the world, apply to register or obtain or attempt to obtain ownership of any mark or trade name which is identical or similar to, or that is likely to be confused with or dilute, any of the elements.biz Brand.
6.5. You agree to notify elements.biz promptly if you become aware of (i) any unauthorised use of the elements.biz Brand; (ii) any use by others of similar marks; and (iii) any challenge to the validity of the elements.biz Brand or elements.biz’ ownership of them. elements.biz has the exclusive right, but no obligation, to initiate, direct and control any litigation or administrative proceeding relating to the elements.biz Brand.
7.1. We will keep confidential any confidential information which you supply to us in connection with this Agreement and you must do the same in relation to any confidential information which we supply to you (which includes this Agreement). Confidential information will include all information marked as being confidential and any other information which might reasonably be assumed to be confidential including, among other things: (i) Client records and data supplied by a Client; (ii) mailing lists, prospect lists, marketing studies, marketing plans and techniques, and promotion and marketing aids; (iii) elements.biz’ Platform and information contained within it and (iv) the outcome of the provision of Services.
7.2. Each party agrees: (i) to protect the confidential information with at least the same degree of care as for its own confidential information; (ii) not to disclose confidential information without the other party’s prior written consent; (iii) not to copy or reproduce any confidential information without the other party’s prior written consent; and (iv) not to use any confidential information except as permitted by this Agreement.
7.3. This clause will not apply to confidential information that becomes generally available to the public without violating the rights of any party. In view of the difficulties of placing a monetary value on the confidential information, in the event of any unauthorised disclosure or threat of disclosure, a party will be entitled to apply for a preliminary and final injunction to prevent any further breach of this Agreement or further unauthorised disclosure or use of confidential information, in addition to all other remedies it may have.
8. Data Protection
8.1. For the purposes of applicable data protection legislation (including the EU GDPR) “Data Protection Laws”, we are both independent controllers as defined by Data Protection Laws in relation to personal data relating to Client’s representatives. You and we agree to:
(a) only process that personal data in accordance with the Data Protection Laws and in accordance with the elements.biz Guidelines; and
(b) ensure that all personnel who have access to and/or process personal data are obliged to keep it confidential.
8.2. Either of us may use processors of personal data solely to fulfil our obligations under this Agreement as long as such party has an agreement with such processor that includes the terms set out in this clause 8. The party engaging such processor shall remain liable for them and will promptly give the other party a list of all such processors if requested.
8.3. Each party shall assist the other in complying with all applicable requirements of the Data Protection Laws. In particular, each party shall:
(a) consult with the other party about any notices given to data subjects in relation to the shared personal data relating to Clients;
(b) promptly inform the other party about the receipt of any data subject access request;
(c) provide the other party with reasonable assistance in complying with any data subject access request;
(d) not disclose or release any the shared personal data relating to Clients in response to a data subject access request without first consulting the other party wherever possible;
(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators; and
(f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Laws.
8.4. In relation to any Contract, where you act as a processor for Client (and elements.biz acts as your sub-processor), both you and we agree to act in accordance with the data protection obligations that relate to this scenario as set out in the Terms of Business.
8.5. You will indemnify us on demand in full for any and all liabilities, costs, expenses, fines, damages and losses elements.biz incurs in connection with any claim arising out of any breach by you of this Agreement and your data protection obligations including any legal or other expenses incurred by us in or about the defence or settlement of a claim.
8.6. Further you shall ensure the implementation of appropriate technical and organisational measures within your systems and equipment in accordance with Data Protection Laws, and provide details and evidence of such measures to elements.biz upon elements.biz’ Written request. elements.biz may require you to take additional security measures, which you agree to implement upon Written request.
9. Other Activities
9.1. Nothing in this Agreement prevents you from undertaking any other business activities provided that you shall not undertake any other activities that put you in conflict with or breach of your obligations under this Agreement, including conflict with an elements.biz Client for whom you are providing services via the platform. You must notify us in writing if any conflict is likely to arise.
9.2. During the Term and for 24 months after the termination date, you shall not solicit or endeavour to entice away from elements.biz the business or custom of a Client to whom elements.biz introduced you, with a view to providing Services to that Client in competition with elements.biz except;
9.3. if you referred that Client (and are listed as the referrer on elements.biz’ internal systems) to elements.biz. In this case, nothing will prohibit you from working with this Client outside of the elements.biz platform within the limits of the Services that you originally provided to that Client and on the understanding that you will no longer be able to access the tools and services provided by elements.biz with regard to this Client.
10. Term and Termination
10.1. This Agreement will run from the Effective Date and will continue until terminated under the remainder of this clause.
10.2. Either party may terminate this Agreement without cause by giving 30 days’ written notice to the other party.
10.3. elements.biz has the right to restrict or suspend access to the elements.biz Platform and/or elements.biz Brand (or any part of it), and/or to terminate this Agreement immediately by written notice upon the occurrence of any of the following events:
(a) you fail to cure a material curable breach of this Agreement within 10 days after notice of default from elements.biz;
(b) you commit a non-curable breach of this Agreement;
(c) you act or have acted in a way that could negatively affect or damage elements.biz’ reputation or the elements.biz Brand with Clients, potential Clients, and any elements.biz partner or other consultants;
(d) you refuse or block elements.biz’ request to inspect books and records relating to Services or withhold any of the information requested.
10.4. If we restrict or suspend access to the elements.biz Platform and/or elements.biz Brand (or any part of it) and/or to terminate this Agreement, we will provide you with our reasons on or before the date on which the restriction or termination becomes effective, in order to give you the opportunity to clarify the facts and circumstances.
11. Effect of Termination
11.1. Upon termination of this Agreement you must immediately stop all use of the elements.biz Platform, and elements.biz Brand and must promptly return or destroy, at elements.biz’ option, all materials that contain Confidential Information of elements.biz. elements.biz shall also promptly return or destroy all materials that contain your Confidential Information (unless a Client is to continue engaging other consultants via the elements.biz Platform in which case elements.biz shall be entitled to retain such Confidential Information solely to the extent it relates to the services being provided by other consultants, and where required to retain such information by law).
11.2. Clauses that by their nature are intended to survive expiration or termination of this Agreement shall survive termination.
11.3. elements.biz shall, upon request by you within the 30 days following termination, provide to you a list of transaction data relating to Services provided to Clients where this is held on the elements.biz Platform, in elements.biz’ standard format (after which elements.biz may delete such data).
12.1. Except where otherwise agreed in Writing, you shall effect and maintain in force for the duration of this Agreement, with reputable insurers, such policies of insurance as are sufficient for a business of your type and to cover all your potential liability under this Agreement and any contract you enter into with a Client for Services, including (a) professional indemnity insurance with a limit of not less than a value equivalent to €1,000,000 per occurrence or claim; and (b) public liability insurance with a limit of not less than a value equivalent to €1,000,000 per occurrence or claim (the “Insurance Policies”). elements.biz shall also take its own insurance in line with good industry practice.
12.2. The Insurance Policies shall be maintained by you for at least 2 years following the termination of this Agreement.
12.3. You shall provide to elements.biz, upon request, certificates of insurance in respect of the Insurance Policies and evidence of payment of the most recent premium in respect of each of them.
12.4. You shall not do or omit to do anything to invalidate the cover under any of the Insurance Policies.
12.5. You shall provide to elements.biz with not less than 30 days’ written notice of cancellation of, or any material changes to the cover under any of the Insurance Policies.
12.6. The availability of cover under the Insurance Policies shall be without prejudice to your obligations and liabilities under this Agreement.
13. Taxes and Additional Charges
13.1. If elements.biz is required to pay any taxes, duties or levies on your behalf due to any circumstances, including any failure by you to provide complete, clear and correct information and documentation or to hold any permits, registrations or licences required in connection with this Agreement, you shall be liable for and indemnify us for such amounts.
13.2. You are solely responsible for ensuring that you fully comply with your current VAT registrations and accounting for VAT correctly in any country where you are registered and sell Services. Where you are responsible for the VAT due on the sale of Services, these must be correctly paid to the relevant tax authorities.
14.1. No failure or delay by elements.biz to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy. No single or partial exercise of such right or remedy by elements.biz shall prevent or restrict the further exercise by elements.biz of that or any other right or remedy.
14.2. You agree that we may assign the rights and obligations under this Agreement or novate this Agreement to a new entity which controls the elements.biz Brand, at any time upon notice to you, and you agree that you shall sign such documents as are reasonably required to give effect to such novation (failure to do so being a material breach of the agreement).
14.3. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership, joint venture or franchise between us, constitute either Party the agent of the other Party, unless otherwise set out.
14.4. You may not sell, assign, or transfer this Agreement. If you are a company, any change in ownership of the company without elements.biz’ consent will be deemed to be an unauthorized assignment of this Agreement. “Change in ownership” includes, but is not limited to, entry of one or more new owners, exit of one or more existing owners, changes in the ownership distribution among existing owners, merger of the company or business with another company or business, or sale of a major portion of the company’s assets.
14.5. You may subcontract or use staff to carry out all or part of the Services, provided that such staff and subcontractors have the required skills, qualifications and resources to provide the Services to the required standard. You shall be responsible for paying these staff and subcontractors and shall ensure that any agreement between you and any staff or subcontractors shall contain obligations which correspond to your obligations under this Agreement. Any such additional or substitute Staff or subcontractor and you remain responsible for the acts or omissions of any such substitute staff or subcontractor.
14.6. Each party agrees that it shall have no remedies in respect of any representations, understandings, agreements, terms or conditions (whether made innocently or negligently) not contained or referred to in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
14.7. This Agreement and the relationship between us is governed by and will be interpreted in accordance with the laws of France. Each party irrevocably agrees that the courts of France shall have exclusive jurisdiction to settle all actions, claims, disputes and proceedings arising out of or relating directly or indirectly to this Agreement or any ancillary agreement or any other related obligations (save that nothing shall prevent elements.biz from enforcing any intellectual property rights or confidentiality rights in another jurisdiction).
14.8. This Agreement is drafted in the English language. If this Agreement is translated into any other language, such translation is for convenience only and the English language version shall prevail. Any notice given under or in connection with this Agreement shall be in the English language.
14.9. This Agreement does not give rise to any rights of third parties to enforce any term of this Agreement .
14.10. A party shall have no liability to the other party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement due to a Force Majeure Event, provided that such party invoking this clause notifies the other party in Writing within 5 days of such Force Majeure Event with information relating to such Force Majeure Event and its expected duration, and notifies the other party when such Force Majeure Event has ended. A Force Majeure Event means acts, events, omissions or accidents beyond a party’s reasonable control.
14.11. During the Agreement and for one year following the expiration or termination of this Agreement, elements.biz shall have the right to conduct audits and inspections to ensure compliance with the terms of this Agreement, to: (i) examine and verify the integrity of your systems that process, store, support and transmit Confidential Information and personal data; (ii) examine the internal controls and the security, disaster recovery, business continuity and back-up practices and procedures; (iii) examine the financial controls, processes and procedures utilised by you; (iv) examine and verify your performance of the Services; and (v) enable us to meet applicable legal, regulatory and contractual requirements.
15.1. We do not limit or exclude any liability which cannot be legally limited or excluded (including death or personal injury caused by negligence, and fraud).
15.2. Subject to clause 15.1, elements.biz and its directors, officers, members, managers, employees, and agents will not be liable to you for any loss of profits, loss of reputation or loss of savings or indirect, incidental, special, exemplary, punitive, or consequential damages, arising out of this Agreement or the performance thereof, however arising. Furthermore, under no circumstances will elements.biz’ monetary liability for any cause of action exceed an amount equal to all elements.biz’ fees received by elements.biz under this Agreement from you during the six months before the occurrence of the event that gave rise to the cause of action (without prejudice for any payments due by elements.biz to you from a Client in relation to a Contract).
15.3. You agree to reimburse all expenses reasonably incurred by elements.biz (including attorneys’ fees) to enforce the terms of this Agreement and to defend any claim asserted by you on which elements.biz substantially prevails.
15.4. We may from time to time introduce you to third parties with whom special terms have been arranged unique to consultants. Any contract entered into between you and any such third party is concluded directly between you and the third party concerned and, we are not responsible for such contracts. We will let you know if we benefit from any special terms with such third parties.