1. About elements.biz
SAS elements.biz is a marketplace and platform which connects Clients with Consultants (both as defined below) so they may contract directly for the provision of certain professional services. elements.biz helps Consultants and Clients within its network to match skills with skills requirements and provides systems and infrastructure to those Consultants to carry out services for their Clients in a monitorable, efficient manner that provides visibility and assurance for all parties. Consultants within the elements.biz network provide their services to you/Clients directly in accordance with these terms of business (“Terms of Business”) on the commercial terms agreed between Consultants and Clients. SAS elements.biz does not enter into any legal relationship with the Client for the provision of services.
In these Terms of Business:
We/Us/elements.biz/SAS elements.biz means SAS elements.biz (SIRET: 91163268500010, registered at the Greffe du Tribunal de Commerce de Chambery, France), a platform that connects Consultants with Clients under the elements.biz brand, platform, and business structure.
You/Customer/Client means the elements.biz customer to which Consultants provide Services via the elements.biz network and online platform.
Brief means the agreed description and scope of work to be done by a Consultant and the applicable rates if different to the default rate provided by the Consultant.
Consultant means freelance individuals that list their services on the elements.biz platform and are bound by the elements.biz charter, standards and confidentiality policies.
Contract means the contract between the Consultant and the Client for the supply of Services in accordance with the Brief and these Terms of Business and as otherwise agreed from time to time.
Data Protection Legislation means the General Data Protection Regulation (EU) 2016/679 (GDPR) or its successor or equivalent and any other applicable data protection laws.
Services means the services provided by Consultants to Clients in accordance with the Brief or otherwise agreed with you.
3. Basis of the Contract and Services
3.1. Consultants will provide you with a draft Brief setting out the Services to be provided to you, which you may accept or reject. Once you have agreed the Brief, this becomes a binding agreement between the Consultant and Client which incorporates these Terms of Business (the “Contract”). Any changes or additions to the Services or Brief must be agreed by the Consultant and Client in writing. For clarity, and to avoid the potential for disputes, this Brief will be recorded within the elements.biz project management system.
3.2. The Contract is between You and the relevant Consultant, not elements.biz. You are buying the Services from Consultant, not elements.biz. However, We are authorised to act as the payment agent of our Consultants (who act as principal) to conclude to receive payment of fees on their behalf in relation to a Contract.
3.3. Consultants will provide Services on the basis of information given to them by You and/or others authorised by You. You should not assume any knowledge of facts of Your business on their part. Your Consultant reports to any person specified in the Brief or as otherwise agreed with You. If your requirements or relevant circumstances change, you should notify your Consultant as soon as practicable.
3.4. Services are usually provided remotely, at such times as the Consultant considers appropriate for the provision of Services. When they need to be performed at another location You agree to provide Consultants with access to this location and other facilities as may reasonably be required by Consultants. Consultants are professionals who shall determine how best to provide the Services; they are not under Client’s supervision or control, but shall ensure the Services are supplied in accordance with the Contract and any reasonable requests made by Client.
3.5. You should ensure that all relevant information, instructions and documents are provided to Consultants at the commencement of the Services or as soon as they are available. By giving clear instructions (and all relevant documentation) throughout the engagement, with as much detail as is available to You, You will greatly assist Consultants to provide the Services efficiently and within the parameters of the Contract. If you are aware of any time limits that may be applicable, these must be set out in a Brief.
4. Conflict of Interest/Confidentiality
4.1. We will endeavour to establish at the outset that no conflict of interest exists. If You have any reason to think one may exist, please advise Us and your Consultant(s) in writing as soon as is reasonably practicable. If You or We become aware of a possible conflict, the Consultant may be required to cease providing the Services or propose a change of Consultant. You will remain responsible for fees for the period up to the date on which the Consultant ceases to provide the Services.
4.2. It is our policy to treat all Client information and documents as confidential (and require Consultants to do the same) and to protect such documents from disclosure to other customers and third parties.
5.1. You will be billed for the Services in accordance with the fee rates set out in the Brief or otherwise agreed between You and the Consultant(s) in writing. Any changes to fee rates will be agreed in writing and will take effect from the agreed date. Any third-party expenses that You agree to reimburse, including without limitation for couriers, travel expenses, mileage, hotels, subsistence costs and/or any other costs/disbursements, will be additionally charged to You at cost (with VAT where applicable).
5.2. Consultants may, at their discretion, request that some or all of the estimated fees are paid in advance before commencing the Services.
5.3. As set out above, elements.biz is authorised by its Consultants to receive payment on their behalf and acts as the Consultants’ agent for payment services only.
6. Payment Terms
6.1. We will invoice, on behalf of our Consultants, on a monthly basis in arrears for Services provided during the previous month or as otherwise set out in the Brief/Contract. Where applicable, invoices will state value added tax in addition, which shall be payable by Client. Invoices issued by us are due for payment within 15 days of receipt. We reserve the right to charge interest at 4% over the base rate of the European Central Bank, or such higher rate as is allowed by statute, or €15.00, whichever is the higher amount, on all sums outstanding in excess of 15 days from the payment due date
6.2. Any payments or bank transfers that incur bank charges (including the receiving bank’s charges) are Your responsibility. You should check what these charges are and add them to the amount you transfer. If you do not, we reserve the right to include these charges on the invoices to You.
6.3. All queries about fees and expenses must be raised in writing within 15 days of the invoice being issued, otherwise it will be deemed to be accepted as a reasonable charge for the work done.
6.4. Consultants reserve the right to suspend and/or terminate provision of the Services should fees be overdue for payment. We will tell you if a Consultant decides to suspend and/or terminate Services in these circumstances. If a Consultant terminates Services for any reason, the fees and expenses incurred up to that date and remaining unbilled will then be invoiced to You.
For the resolution of disputes, Terms of Business will be given priority, followed by the Brief and any related correspondence, followed by “Guidelines” that are Our recommendations for good working practice on the elements.biz platform and which are made available online.
In the event of a dispute arising from the quality, timeliness or other aspect of the work performed under these Terms, any party may raise a dispute in writing before the payment due date. The following procedure will be observed:
– 0-15 days from notification. All parties will be invited to resolve the dispute between themselves. If a resolution is reached, the dispute will be considered to be closed. If a resolution is not reached;
– 16-30 days from notification. elements.biz will mediate the dispute and attempt to find a resolution. A fee of €100HT + 2% of the disputed amount will be levied for this service, payable out of the disputed funds. If a resolution is reached, the dispute will be considered to be closed. If a resolution is not reached;
– 31-60 days from notification. The parties will have 30 days to engage an external mediator, legal representative or French court and to notify the other and elements.biz that they have done this.
– 61 days from notification. The dispute will be considered to be closed by elements.biz unless it has received notification as above. The Consultant(s) will be paid proportionately, minus elements.biz fees (subject always to the receipt of fees by elements.biz from Client).
Beyond the payment due date, no dispute may be raised.
8. Data Protection
In so far as Information is already publicly available, We may from time to time include Your name and a brief factual description of the Services that Consultants have provided to You publicly on our website, in other marketing material, and in relevant sections of any proposals and tender documentation. Please let Us know in writing if You would prefer that We do not do this.
8.2. Client as controller: Personal data, information and documents (Information) which You provide to Your Consultant(s), which may be sub-processed by the elements.biz platform, may be both confidential and subject to the Data Protection Legislation. In these cases, You are the data controller, the Consultant is the data processor, and elements.biz is the sub-processor. You are responsible for ensuring You have all the required consents in place to give Consultants access to such personal data. You agree that You will not provide any personal data to Consultants that they do not require to perform the Services and shall use best efforts to anonymise such data. If a Consultant is required to process personal data, the Brief must set out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects.
In providing Services to You it may be necessary for Your Consultant to disclose some of this Information to third parties, for example to other elements.biz Consultants, professional advisers, accountants, regulators and insurers, as well as to government agencies. They may also be required to disclose such Information by law or court order. You agree to the disclosure of this Information for such purposes.
8.3. Consultant and elements.biz obligations as processors and sub-processors: Your personal data shall only be processed upon Your documented instructions under a Brief.
If they become aware of any accidental, unauthorised or unlawful destruction, loss, alteration, or disclosure of, or access to Your personal data (Security Incident), You will be notified as soon as is reasonably practicable and provided with details of the Security Incident and the identity of each affected data subject (if possible) together with any other information You may reasonably request in relation to such Security Incident.
Elements.biz personnel and Consultants authorised to process Your personal data will protect it in accordance with these Terms and Data Protection Legislation and assist Clients in complying with its obligations under article 32 of the GDPR.
If You send a written request for a copy of Your personal data, this will be provided to You within 10 business days (unless it has been removed/ deleted).
Your personal data shall not be transferred outside the EEA unless processor/subprocessor obligations under Data Protection Legislation in ensuring adequate safeguards in relation to such transfer, are met.
Records and information to demonstrate compliance with this clause shall be kept and Client may audit Consultants/elements.biz as applicable, solely for the purpose of checking compliance with this clause, provided that Consultants/elements.biz as applicable are given reasonable notice of such audit, such audit is conducted in a manner so as not to interfere with Consultant’s and elements.biz’s day to day business operations, such audit is at the Client’s cost, and the Client is not in breach of Data Protection Legislation.
You understand and agree that Consultants and/or elements.biz may engage third parties (sub-processors) to process your personal data provided that each sub-processor is subject to appropriate data protection terms that require it to protect Your personal data to the standard required by Data Protection Legislation, and the processor remains liable for any breach of these Terms that is caused by an act, error or omission of any of sub-processors.
Further, Consultants and elements.biz confirm they have appropriate technical and organisational measures in place to protect against unauthorised and/or unlawful access to or processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
You further understand and agree that elements.biz and Consultants may keep Your personal data on devices and technology systems after termination of the Contract until You ask in writing for it to be deleted or removed. In which case this will be done to the extent reasonably practicable, or unless it is required to be kept by law or there is a legitimate interest to keep it, for example, for liability and/or insurance purposes.
9. Electronic communications
We and Consultants usually communicate by email, our platform or other electronic means and You consent to Us sending and receiving electronic communications to/ from You and third parties in relation to the Services (unless otherwise communicated to elements.biz in writing). You understand and accept that electronic communication may not be secure or error free. Emails or their equivalents and their attachments may be delayed, corrupted, intercepted, changed or otherwise lost for reasons outside Consultants and Our control. Neither Consultants nor We shall not be responsible for any loss or claim arising out of or in accordance with the sending or receipt of electronic communications and attachments whether by You, Us, Consultants, or any third party in connection with this engagement except to the extent that any losses or claim are caused by Our negligence or wilful default.
For the continued improvement of the platform and Consultants Services, Clients and Consultants will be systematically requested to complete simple reviews before invoices can be paid or payments can be received. You consent to this and to the publication of these reviews on the platform to be viewed by members only. Review data (raw or aggregated) may also be used in public communications in which case it will be anonymised before publication unless otherwise specifically agreed by you.
11. Force Majeure
In these Terms, Force Majeure Event shall mean any cause, event or contingency beyond our reasonable control including acts of God, outbreaks of hostilities, riots, civil disturbances, fire, explosion, flood or severe weather, power failure, failure of telecommunications lines (including IT/data links), theft, and/or malicious damage.
If Consultants (or We) are prevented or delayed in carrying out any of their (or Our, as applicable) obligations under a Contract (or these Terms, in our case) by a Force Majeure Event, the Consultant (or We as applicable) shall use all reasonable endeavours to mitigate the effects of such Force Majeure Event but neither shall be under any liability to You for any losses howsoever caused as a result of such Force Majeure Event.
12. Limitation of Liability
All output of the Services provided by Consultants is for Your sole use and must not be communicated to any third party. Neither Consultants nor We accept any responsibility to any third party for any aspect of the Consultant’s Services.
12.1. Liability of elements.biz: The aggregate liability of elements.biz, its directors, partners, consultants, agents, sub-contractors and employees for all losses, including without limitation for negligence, breach of contract, misrepresentation or otherwise on its or their part in relation to any obligation under these Terms shall not exceed the amount paid by Client to Consultants’ within the 3 months prior to the date on which such claim arose. elements.biz is not liable in any way for the Services performed by Consultants since it is not a party to the Contract.
12.2. Liability of Consultants. The aggregate liability of Consultants for all losses, including without limitation for negligence, breach of contract, misrepresentation or otherwise on its or their part in relation to any obligation under a Contact shall not exceed the amount paid and payable by Client to the Consultant under the applicable Contract.
12.3. The following is hereby excluded by Consultants and elements.biz: a) any loss or damage which does not arise as a direct and natural consequence of the default in question, including indirect, special, exemplary, punitive or consequential loss or damage; b) loss of profits; loss of anticipated savings; loss of revenue or business, in each case whether arising from negligence, breach of contract or otherwise, even if You have been advised of the possibility of such loss or damage arising.
12.4. Neither Consultants nor elements.biz will be responsible for any loss or damage to you resulting from inadequate, incomplete, or erroneous information supplied by You or on Your behalf.
12.5. Except as set out in these Terms of Business or any Contract, all warranties, representations, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Terms of Business and any Contract.
12.6. Nothing in any Contract or these Terms of Business excludes or limits in any way whatsoever the liability of a party for: a) death or personal injury caused by negligence; or b) fraud or fraudulent misrepresentation; or c) any other liability that cannot be excluded or limited by law.
elements.biz Consultants provide Services to You on the understanding that, unless agreed otherwise in writing by You, Us and the Consultant, You will neither employ or work with them independently of elements.biz during the term of the Contract or within the 24 month period following the end of a Contract, except if Your working relationship with a Consultant predates Your introduction via the elements.biz platform and that the Services provided are limited to those that predate Your introduction via the elements.biz platform. You confirm you will supply evidence of such if request by elements.biz. If You do employ or work with a Consultant within such period, we reserve the right to charge you a fee of 20% (typical of recruitment agencies) of such person’s full-time (35 hours per week) annual salary/earnings (plus benefits), plus VAT. This clause survives termination of the Terms of Business.
14. Term and Termination
These Terms of Business apply from the time You sign up to the elements.biz platform or the date on which You and a Consultant enter into a Contract, whichever is the earlier.
14.1. You or We may terminate these Terms of Business with immediate effect in the event that the other party is in material breach, or persistently breaches these Terms of Business. Client or We may terminate our relationship for convenience under these Terms of Business upon 2 months’ written notice. In both cases then current Contracts between Consultants and Clients shall continue to run until the expiry or termination of that Contract, subject to these Terms of Business and without prejudice to the paragraph below.
14.2. You or a Consultant may, by written notice to the other party, terminate a Contract with immediate effect if the other party commits a serious breach of, or persistently breaches, any of its obligations under the Contract.
14.3. Upon termination of these Terms of Business, or a Contract, for any reason, all fees and expenses incurred up to the date of termination and remaining unbilled will be immediately due and payable.
15.1. Any variation to these Terms of Business must be agreed between the parties in writing. Notwithstanding the previous sentence, elements.biz may update these Terms of Business by giving one month’s notice of such in writing.
15.2. An entity who is not a party to these Terms of Business may not enforce any of its terms.
15.3. These Terms of Business and the documents referred to within, set forth the entire agreement between the parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matters hereof. Neither party shall be entitled to rely on any prior agreement, understanding or arrangement that is not expressly set out or incorporated by reference therein.
15.4. The parties to these Terms of Business are independent contractors. Nothing in these Terms of Business or any Contract is intended to, or shall be deemed to, constitute a partnership, joint venture or employment relationship of any kind between the parties, nor constitute any party an employee or the agent of another party for any purpose. No party shall have authority to act as employee or agent for the other party in any way, unless otherwise agreed in writing.
15.5. Neither party may, without the prior written consent of the other party, assign, transfer or sub-contract all or any of its rights or obligations under the Contract, which shall not be unreasonably withheld.
15.6. In the event of any conflict between the Terms of Business and any Contract, these Terms of Business shall prevail.
15.7. Any provisions of the Terms of Business which expressly or by implication are intended to continue in force after termination of the Terms of Business shall remain in full force and effect.
16. Governing law and Jurisdiction
These Terms of Business, and any Contract, shall be governed by French Law and the parties agree to submit to the exclusive jurisdiction of the French Courts.