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

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

BS.FL.04D

This Consultancy (Company) Graphic Designer Agreement (Licence 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 (Licence of Work), is to be used instead when the graphic designer is an individual).

This document is compliant with the GDPR (General Data Protection Regulation). The Data Protection clause in the document reflects GDPR requirements. It refers to a Privacy Notice available on request or attached as a Schedule, and you might wish to use our 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 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 personal service 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 personal service 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. The agreement provides for all copyright and other IP rights in the work produced by the company to be owned exclusively by it so that it may use and exploit the work as it wishes. The document also includes, by means of a licence granted by the company under its IP rights, the right for the client to use the work for a specific purpose (as set out in schedule 1) but not any other purpose. There is also wording in this licence allowing you to state how long the client may use the work, either indefinitely or for a fixed period stated in the document. The flat fee or hourly payment payable by the client serves as consideration for the licence granted to it.

An alternative version of this document is also included in this subfolder which conversely provides for all IP rights in the work produced by the company to be assigned to the client. This means that the client exclusively owns all of the copyright and other IP rights in the work, so that it is then free to use and exploit the work as it wishes. It does not give the company any licence or other rights to make any use of it at all, and so the company may wish to take into account the fact that it may not itself use any of the work when it negotiates the amount of its fees for its work.

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 (Licence 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. Nature of the Agreement
13. Severance
14. Notices
15. Alternative Dispute Resolution
16. Law and Jurisdiction

and the following schedule:

Schedule 1. The Work Name of Consultant engaged by Designer
Schedule 2. Privacy Notice

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