Consultancy (Company) Editor Agreement
This Consultancy (Company) Editor Agreement has been designed for use by a freelance editor contracting through a personal service company (or other intermediary company) to provide his services to business clients rather than contracting directly as an individual. (The accompanying template, the Freelance Editor Agreement, is to be used instead when the editor is an individual).
This document has been updated with a simplified data protection clause which refers to a separate privacy notice. Full details of personal data use should be provided in that document. You might wish to use the standard Privacy Notice for this purpose: you can find it by clicking here.
This agreement aims to reduce the risk that, under employment law and any other applicable law, despite use of a personal service (or other intermediary) company, the editor is regarded as an employee as opposed to a self-employed contractor.
Nevertheless, he might still be treated as an employee by HMRC, an employment tribunal or any other body, and legislation (such as IR35, agency worker, or other rules) might still apply in a way which adversely impacts the editor’s or his company’s legal, tax or NIC position. Whether that is so will depend not just on what is contained in this contract but also on all other circumstances. Those circumstances may include the way in which the contract is implemented, and all arrangements between the company, the client, and the editor.
HMRC provides some guidance on its website about employment, self-employment, IR35, and agency workers. Its decisions on these points are often based on a “balancing exercise” in which it gives weightings to various factors. However, neither the HMRC guidance nor case law are sufficiently precise to enable anyone to predict how in any particular case the “balancing exercise” would be carried out or what HMRC’s conclusion would be about that particular case. For that reason we recommend that, before you decide to use or adapt this template, you take professional advice in relation to your particular circumstances as to any impact on the company and the editor of employment law, tax, and NIC rules.
A carefully worded contract ensuring the independence of the company is still a key starting point. Unlike an employee, the company is an independent contractor which is free to provide any suitably qualified person rather than only the editor or any other particular individual having to do the work, it is free to determine when, where and how work is completed (subject of course to the client’s requirements), it is free to take on other clients, and, most importantly, it may be subject to penalties if the work is not completed on time.
Payment under this agreement may take the form of a flat fee or royalty payment calculated as a percentage of gross receipts from the edited work. Whilst royalties for editors are not common, certain editors may prefer this method of payment. Moreover, the fee also serves as consideration for the assignment to the client of the copyright (and any other IP rights) in the work produced by the editor. The editor waives any and all moral rights to which he/she may be entitled and is credited in the final work in exchange. Each party provides warranties and indemnities to the other with regard to the non-infringement of third party intellectual property rights.
The assignment of all copyright and other IP rights in the edited work produced for the client by the editor means that the client will own all of those rights exclusively, and so the client will be free to use and exploit the edited work as it wishes. The editor is not granted any right to use or exploit any of the work, and consequently the editor will not have any right to make any use of any of the work for his own (or any third party) purposes.
Optional phrases / clauses are enclosed in square brackets. These should be read carefully and selected so as to be compatible with one another. Unused options should be removed from the document.
This Consultancy (Company) Editor Agreement contains the following sections:
1. Definitions and Interpretation
2. Engagement of the Editor
3. Nature of Engagement
4. Status of the Editor
6. The Work and Intellectual Property
7. Editor’s Warranties and Editor’s and Client’s Indemnities
8. Client’s Warranties
12. Personal Information (Data Protection)
13. Force Majeure
14. Nature of the Agreement
17. Alternative Dispute Resolution
18. Law and Jurisdiction
and the following schedules:
1. The Editing Services
2. Privacy Notice
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