Consultancy (Company) Graphic Designer Agreement (Assignment of Work)

Consultancy (Company) Graphic Designer Agreement (Assignment of Work)

BS.FL.04C

This Consultancy (Company) Graphic Designer Agreement (Assignment of Work) has been designed for use by a freelance graphic designer 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 Graphic Designer Agreement (Assignment of Work) , is to be used instead when the graphic designer is an individual).

The Data Protection clause in the document reflects data protection law requirements. It refers to a Privacy Notice available on request or attached as a Schedule. 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 graphic designer 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 graphic designer’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 graphic designer.

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 to 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 graphic designer 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 graphic designer 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 an hourly rate. 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 company. This means that the client will own exclusively all IP rights in the work produced by the company, and so the client will be free to use and exploit it as it wishes. The company will consequently not have any right to make any use of it at all for his or any third party purposes, and it may wish to take that fact into account when negotiating the amount of fees to be paid to it.

An alternative version of this document provides for all IP rights to be exclusively owned by the company so that it is free to use the work as it wishes, but with the client nevertheless having a licence to use the work for a specific stated purpose (but not any other purpose). That version also allows you to select suitable wording for the client to have those licenced rights either indefinitely or for a fixed period stated in the document.

Each party provides warranties and indemnities to the other with regard to non-infringement of third party intellectual property rights.

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) Graphic Designer Agreement (Assignment of Work) contains the following sections:

1. Definitions and Interpretation

2. Engagement of the Designer

3. Nature of Engagement

4. Status of the Designer

5. Fee

6. The Work and Intellectual Property

7. Warranties and Indemnity

8. Liability

9. Confidentiality

10. Termination

11. Personal Information (Data Protection)

12. Force Majeure

13. Nature of the Agreement

14. Severance

15. Notices

16. Alternative Dispute Resolution

17. Law and Jurisdiction

and the following schedules:

Schedule 1. (a) The Work (b) Name of Consultant engaged by Designer

Schedule 2. Privacy Notice

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