Agreement
In consideration of the payment of the fees by the Client to CoComply, CoComply shall provide the Services subject to the terms and conditions of the Agreement.
These Terms constitute a legally binding agreement between CoComply and the Client accessing or using the Platform.
Parties
CoComply: CoComply Limited a company incorporated in England with Company Number: 12141000 at the address of: Glasshouse Alderley Park, Alderley Edge, Macclesfield, England, SK10 4T (“CoComply”)
Client: Client who has agreed to use the Platform in accordance with this Agreement
Recitals
This contract reflects the agreement by the Client to obtain the IR35 Services of CoComply in accordance with the Terms and Conditions and Schedules contained herein.
Notice
You agree that by accessing the Platform and Services, you have read, understood and agreed to be bound by this Agreement.
Definitions and Interpretations
In this Agreement the following words and phrases shall have the following meanings:
“Agreement”
means the following in order of precedence: (1) Schedule 1; (2) Terms and Conditions.
“Business Day”
means any day, other than a Saturday, Sunday, or any public holiday in the United Kingdom.
“Client”
means an individual, company, or entity that registers and uses the Platform to obtain the IR35 Services provided by CoComply.
“Client Data”
means data inputted by the Client and its authorised users, or CoComply specifically on the Clients behalf for the purpose of the Client using the Services or facilitating the Client’s use of the Services.
“Client Key Representative”
means designated person authorised by the Client to access the online platform, manage the Client's account, execute agreements, and handle all associated financial transactions on behalf of the Client under this Agreement.
“Confidential Information”
means any data, information, or materials disclosed or provided by one party to the other in connection with the Services offered under this Agreement, regardless of the form or the manner in which it is communicated.
“Contractor”
means an off-payroll worker operating through its own personal service company (PSC) who the Client has engaged for the provision of its services.
“Data Analytics”
The systematic computational analysis of data or statistics used by CoComply. It involves collecting, reviewing, and analysing Platform User activities to detect patterns, anomalies.
“Employment Status”
means the employment status as determined in accordance with Chapter 8 Part 2 ITEPA 2003 and Chapter 10 Part 2 ITEPA 2003.
“Engagement Manager”
means a representative of the Client who will provide information in relation to the services being provided by the Contractor.
“GDPR”
means General Data Protection Regulations.
“Intellectual Property Rights”
means patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“IR35 Services”
means the IR35 Services provided by CoComply.
"Normal Business Hours"
means 9.00 am to 5.00 pm local UK time, each Business Day.
“Off-Payroll Working Rules”
means Chapter 10 – Part 2 of ITEPA 2003 it may also refer to Chapter 8 – Part 2 of ITEPA 2003 also known as IR35.
“Order Form”
means the document mutually agreed upon by CoComply and the Client, which details specific service elements, insurance requirements, and liability limits.
“Planned Outage”
means specified intervals of time during which access to the Platform and Services may be limited or unavailable in order to conduct maintenance, upgrades, or other necessary development or enhancements.
“Platform”
means the online CoComply Platform which the Client will access and use to obtain the IR35 Services of CoComply.
“Platform User”
means any individual or entity who accesses or uses the Platform, whether registered or not, including Client Key Representatives, Engagement Managers Contractors and agency partners.
“Services”
means the services to be provided by CoComply pursuant to this Agreement, as described in Schedule 1 below.
“Subscription Period”
means the term during which the Client has access to the Platform and Services pursuant to the subscription plan chosen and paid for by the Client.
“Working Practices”
means the day to day working practices of a Contractor including how they operate in practice and are treated by the Client
1.General Provisions
1.1This Agreement constitutes the entire agreement between the parties and supersedes any previous agreement whether verbal, written or by conduct to which this matter refers and, unless otherwise agreed in writing, the terms of this Agreement shall prevail over any previous terms of business, agreement or any purchase conditions put forward by the Client.
1.2 The Agreement may not be assigned in whole or in part by either party without express consent of the other party.
1.3 Any variations or alterations to this Agreement in whole or in part will only be valid if they are expressed in writing and agreed and signed by both parties.
1.4 Any references to statute will include any amendments made to the relevant legislation from time to time.
1.5 The headings are for information only and shall not constitute any part of this Agreement.
1.6 The Definitions shall form part of this Agreement.
2. The Services
2.1 CoComply shall, during the Subscription Period, provide the IR35 Services to the Client via the Platform in accordance with Schedule 1.
2.2 CoComply shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
2.2.1 Planned Outage which includes maintenance carried out on the Platform outside of Normal Business Hours. Where possible, CoComply will undertake planned maintenance between 2300 hours and 0100 hours
2.2.2 unscheduled or scheduled maintenance performed during or outside Normal Business Hours. In such an instance, CoComply will use reasonable endeavours to provide the Client at least 2 hours’ notice in advance; and/or
2.2.3 occasions when access to the Platform is suspended for maintenance, security measures, or other urgent situations, including but not limited to emergencies, denial of service attacks, or changes made by third-party suppliers. In such cases, CoComply will provide the Client with as much advance notice as reasonably practicable.
2.3 In the event of any loss or damage to Client Data, the Client’s exclusive remedy shall be for CoComply to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by CoComply.
2.4 CoComply shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party unless such loss, destruction, alteration or disclosure has come about due to CoComply’s negligence.
2.5 Each party shall take appropriate technical and organisational measures against unauthorised or unlawful access to the Platform and unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
3. Client Rights and Obligations
3.1 The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
3.2 Subject to the Client purchasing and using the Services in accordance with this Agreement, CoComply hereby grants to the Client non-exclusive, non-transferable rights to access the Platform and Services during the Subscription Period.
3.3 The Client Key Representative will have authority to access the Platform, manage the Client's account, execute agreements, and handle all associated financial transactions on behalf of the Client under this Agreement. They will also be permitted to invite additional Platform Users. CoComply will request a contact email address, contact phone number, name and job title in relation to each Platform User. The Client Key Representative will be able to view and access all related Client information whereas other Platform Users will only be able to view and access engagements they are associated with.
3.4 The Client shall not grant access to the Platform to any unauthorised persons, companies, or entities (“Unauthorised User”) outside of its business, except as needed to perform an IR35 assessment and obtain a Status Determination Statement (SDS). The Client must protect all login credentials and user IDs to prevent unauthorised access. Any distribution, sharing, or enabling of access to the Platform to Unauthorised Users, either directly or indirectly, is strictly forbidden without the prior written consent of CoComply. Violation of these terms will be considered a breach of this Agreement and may lead to immediate termination of the Client's account and revocation of Platform access.
3.5 The Client must immediately notify CoComply in writing if any third-party gains unauthorised access to the Platform.
3.6 The Client acknowledges and agrees that it is solely responsible for verifying the accuracy, legality, and usability of all data it provides in the Platform.
3.7 The Client warrants that all Platform Users will follow and comply with all instructions and guidelines in relation to the use of the Platform and Services.
3.8 The Client understands that CoComply’s records behaviors, activity and usage of the Platform and hereby consents to CoComply accessing its account and Client Data to enable CoComply to perform the Services and provide support and assistance.
3.9 The Client is not permitted to use the Platform or Services to provide services to third parties without the prior written consent of CoComply.
3.10 The Services are provided for the Client’s benefit only and any advice or documentation created for the Client cannot be provided to any other person, company or entity or used, or relied upon for any other purpose and by any other person, company or entity, without the prior written consent of CoComply.
4. CoComply Rights and Obligations
4.1 Unless otherwise agreed CoComply will initiate quarterly check-ins with each Contractor and undertake a re-assessment with the line manager and Contractor every 6 months in order to ensure that compliance principles are being maintained and the SDS remains accurate. CoComply will provide a revised SDS in the event material changes have occurred.
4.2 CoComply provides the IR35 Services in relation to Employment Status and the Off-Payroll Working Rules. Any information or guidance provided by CoComply which is not in relation to the Off-Payroll Working Rules does not constitute formal advice and should not be treated as such. In this regard, the Client should request specific advice from a CoComply partner or another external third party before taking any action.
4.3 CoComply may in some circumstances recommend a second opinion be sought in order to determine the IR35 status of an engagement. Prior to seeking a second opinion, CoComply shall provide written notice to the Client, outlining the reasons for requiring an additional review. In the event that a second opinion is sought, an additional fee may be incurred by the Client. This fee covers the costs associated with obtaining the second opinion and is necessary to ensure a thorough and accurate assessment.
4.4 In the event that queries arise in relation to taxation and/or an accountancy matter, this falls outside the scope of the IR35 Services that CoComply provide and independent advice should be obtained.
4.5 In the event that queries arise in relation to employment rights, this falls outside the scope of the IR35 Services. A separate quote can be provided by CoComply for such work.
4.6 The Client acknowledges that by entering into this Agreement it agrees to grant CoComply the right to use the Client's name, logo, and service experience as a case study for promotional and marketing purposes. This includes:
4.6.1 the use of the Client’s name and logo for the purpose of identifying the Client as a customer of CoComply on its website, marketing materials, and promotional activities.
4.6.2 a case study which will be submitted to the Client for approval before being published.
4.7 If the Client wishes to terminate the use of the it’s name, logo, and case study it can do so by providing 60 days written notice to CoComply.
4.8 CoComply shall not be held responsible or liable for any inaccuracies in the data contained within the Platform which has been provided by the Client or any other third party, including but not limited to Companies House.
5. Payment Terms
5.1 The fees for Platform access and individual activity items are contained within the Platform and Service Pricing document, or as otherwise directly agreed with the Client in writing. Any changes to fees or payment terms shall be communicated to the Client and will only take effect with the Client’s consent.
5.2 The fees are payable in advance via the Platform or monthly in accordance with the Client’s subscription package and/or monthly usage. If monthly subscription or usage payments apply, this will incur a charge at the end of the calendar month.
5.3 The fees shall exclude VAT which shall be added separately where applicable. CoComply’s VAT registration number will be referenced on invoices.
5.4 CoComply reserves the right to charge interest and compensation on any overdue invoices. Interest will be charged at 8% above the Bank of England base rate in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
5.5 All invoices will be deemed to be accepted in full by the Client unless the Client notifies CoComply in writing within 5 (five) working days from the date of the invoice, confirming the amount the Client disputes and the reason the Client disputes that amount. In the event the Client notifies CoComply that it disputes part of an invoice, the Client shall pay the undisputed part of the invoice within the agreed payment terms and shall cooperate fully with CoComply in order to resolve the dispute in a timely manner.
5.6 In the event that the Client does not cooperate with CoComply to resolve the dispute in a timely manner or the Client fails to notify CoComply of any discrepancies relating to payments or overpayments, the Client shall lose the right to take action of any kind after 12 (twelve) months of the date of the relevant invoice, payment or overpayment.
5.6 CoComply reserves the right to restrict or terminate Client access to the Platform if fees are not paid by the due date. If payment remains overdue for more than 30 (thirty) days, CoComply may suspend or permanently disable access to the Platform, data and all associated services. Client’s will receive a notification of overdue payment and potential access restriction before any action is taken.
6.Term and Termination
6.1 The Agreement shall commence upon the Client agreeing to this Agreement and continue for the Subscription Period unless terminated by the Client providing 3 (three) months notice in writing to CoComply.
6.2 The Subscription Period is automatically renewable under the same terms unless either party provides the other with written notice of non-renewal at least 30 (thirty) days prior to the expiration of the current Subscription Period.
6.3 Either party may terminate the Agreement with immediate effect upon written notice in the event that:
6.3.1 a fundamental breach of the Agreement is committed by the other party which is incapable of remedy;
6.3.2 a material breach of the Agreement is committed which the party in breach is unable to remedy within 7 (seven) days of having received the notice in writing to do so; or
6.3.3 the other party goes into insolvent liquidation or is declared bankrupt.
6.4 CoComply reserves the right to immediately terminate this Agreement if there are material circumstances that would reasonably be expected to justify such termination in the best interests of CoComply. Examples of such circumstances include, but are not limited to, breaches of the terms of this Agreement by the Client, legal or regulatory reasons, or actions that could potentially harm the reputation or operational capability of CoComply. CoComply will provide written notice to the Client explaining the reasons for termination under this clause.
6.5 Any termination shall be without prejudice to any rights which have accrued up to the date of termination or which shall accrue thereafter.
7. Confidentiality and Non-disclosure
7.1 The Client acknowledges that details of the Services, and the results of any performance tests of the Platform, constitute CoComply’s Confidential Information.
7.2 The parties agree that at any time before, during or after the termination of this Agreement they shall not divulge, disclose, reproduce or distribute to any third party any Confidential Information relating to or belonging to the other Party. This includes but is not limited to proposals, process flows, training documentation, methodology, governance and compliance templates, and is not limited to any information which either party has been told is confidential or which is reasonably expected to be confidential.
7.3 The undertakings shall not apply to confidential information which:
7.3.1 at the time of its disclosure is in the public domain;
7.3.2 after disclosure comes into the public domain for any reason except the failure to comply with the terms of this clause;
7.3.3 was lawfully in possession prior to such disclosure;
7.3.4 The information is required to be disclosed, retained or maintained by law or any regulatory or government authority.
7.4 This clause shall survive the termination of this Agreement and shall remain in perpetuity.
8. Intellectual Property Rights
8.1 Except as expressly stated herein, this Agreement does not grant the Client any rights to, or in, any Intellectual Property Rights and/or or any other rights or licences in respect of the Services or the Platform.
8.2 CoComply shall retain ownership of the Platform and all existing Intellectual Property Rights, including but not limited to patents, trademarks, copyrights, trade secrets, designs, documents, data, material and any other proprietary information developed, created, or conceived, whether individually or collectively.
8.3 Any media, information, documentation or records created by CoComply to enable it to reach a determination on a Contractors IR35 status, including but not limited to video recordings and transcripts, will remain the property of CoComply. CoComply’s use of such will remain subject to GDPR and the duty of confidentiality to the Client.
9.Data Protection Notice
9.1 Both parties will comply with the principles of the Data Protection Act currently in force (“DPA”) and GDPR when storing or processing any ‘personal data’ or ‘special category data’ relating to Client.
9.2 Where CoComply is handling or processing Personal Data on behalf of the Client, CoComply acknowledges that for the purposes of the DPA the Client is the Data Controller and CoComply is the Data Processor.
9.3 Where CoComply is processing Personal Data on behalf of the Client, CoComply shall only process such data as is necessary for the proper performance of the Services and in accordance with the provisions of the DPA and any instructions from the Client from time to time.
9.4 CoComply will take appropriate measures to prevent unlawful disclosure, unauthorised processing of or accidental loss, destruction, damage or alteration to such data and shall ensure a level of security for such data as is appropriate.
9.5 CoComply shall seek to ensure that any third party that they engage during the delivery of the Services, will be subject to obligations no less onerous than those contained in this clause. CoComply shall not be held liable for non-compliance of any third parties in this respect.
10. Indemnity and Insurance
10.1 CoComply shall be liable for, shall indemnify and keep indemnified the Client against any loss, damages, costs and expenses including third-party claims which arise from the negligence of CoComply, its employees, consultants, agents or subcontractors or which arise from any breach of this Agreement by CoComply.
10.2 Neither Party shall be liable to the other whether in contract, tort, negligence, breach of statutory duty or otherwise for any indirect or consequential loss or damage including:
10.2.1 any loss of profit; loss of use; loss of contracts; loss of data; loss of revenue; loss of goodwill; and
10.2.2 whether the damage or loss in clause 10.2 is as a natural consequence of the breach and thereby in the reasonable contemplation of the parties, or indirect and unforeseeable.
10.3 CoComply shall hold Professional Indemnity insurance at a commercially acceptable level, copies of which are available upon request.
10.4 The maximum liability of CoComply or any of its authorised representatives in respect of any acts or omissions arising out of the contract whether negligent or otherwise shall be specified in the Order Form.
10.5 CoComply shall not be liable to the Client in the event that the Client and/or a Contractor has withheld or failed to fully disclose relevant information and/or provided inaccurate or misleading information during the course of the IR35 Services.
10.6 Nothing in this Agreement limits and/or excludes the liability for:
10.6.1 death or personal injury caused by one parties negligence; and/or
10.6.2 for fraud or fraudulent misrepresentation
10.7 The Client agrees that the provisions in this clause 10, limiting or excluding CoComply’s liability are fair and reasonable.
11. Severability
11.1 If any term or condition of this Agreement should be held by a court to be wholly or partially invalid, void or unenforceable for any reason, the remaining parts of this Agreement will remain in force and continue to be valid. Any unenforceable part of the Agreement shall not serve to affect any other provisions in the Agreement and all other provisions shall remain in effect and in force.
11.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
12. Waiver
12.1 The failure to exercise or enforce any right conferred by this Agreement does not constitute a waiver of that right nor does it operate to bar the exercise or enforcement of that right at a future date.
13. Frustration of the Contract
13.1 If either party is prevented or delayed from performing their obligations (excluding the payment terms) by force majeure then such party shall be excused from performing their obligations for so long as such cause or prevention shall continue.
13.2 For the avoidance of doubt force majeure shall be deemed to be any cause affecting performance of this contract arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of either party and inter alia including the following:
13.2.1 Acts of God, war, riot, strike, lock out or other labour disputes, fire, flood, storm (electrical or otherwise), drought, legalisation, the inability to secure labour, (whether of the foregoing class or not).
14. Rights of Third Parties
14.1 Both parties agree that these Terms shall not be enforceable by a third party by virtue of the Contracts (Rights of Third Parties) Act 1999 and this contract can be rescinded or varied by agreement between the parties without the consent of any such third party. For the purposes of this clause a third party means any person, company or entity who is not a party to this contract.
15. Notices
15.1 Any notice which is required to be given under this Agreement shall be given by pre-paid first-class post or email to the contact details specified in this Agreement or as otherwise notified from time to time to the sender by the recipient for the purposes of this Agreement or to an address that is regularly used to communicate with the other party.
16. Law and Jurisdiction
16.1 This Agreement is governed by English Law and the parties hereto submit to the exclusive jurisdiction of the English Courts.
17. Acceptance
17.1 Your continuing instruction will amount to acceptance of this Agreement.
Schedule 1
In respect of IR35 Assessment and Reassessments, CoComply will undertake the following, unless otherwise requested by the Client:
Role-based IR35 assessment and indicative determination are undertaken via online form or virtually with an IR35 expert, including a review of any related statement of work or assignment schedule
Contractor based IR35 assessment undertaken via online form or virtually with an IR35 expert.
CoComply will issue an SDS once the IR35 assessment has been completed with both the Client and Contractor in a timely manner, save for when a second opinion is required.
If instructed by the Client CoComply will only undertake a role based IR35 assessment and once concluded will issue an SDS
CoComply will undertake a Compliance Check-in with Contractor and/or line manager, (undertaken via online form or virtually with an IR35 expert) to gather evidence to support the original determination after 3 months following the initial assessment.
Assessment criteria:
CoComply will advise on whether the Off-Payroll Working Rules are likely to apply to the engagement based on the information obtained during the IR35 assessment.
In the absence of any contractual documentation, CoComply assumes that contracts and related documentation reflect the Working Practices of the engagement.
CoComply can be instructed to provide advice, support, guidance and methodology on contracts and SOW templates, as an additional service. The fees relating to such will be quoted separately.
The Client will endeavour to ensure that all information and answers it provides in relation to the IR35 Services are true, accurate and reflective of the working arrangement between Client and Contractor.
It is expected that the Client Engagement Managers and Contractors will have a reasonable understanding of the principles of the Off-payroll Working Rules in that they can provide full, accurate and relevant information to assist proactively in the IR35 assessment process and that in their reasonable judgment will share information that may influence the IR35 status.
The accuracy of the advice that CoComply provides is dependent upon the Client providing comprehensive and correct information during the IR35 Services.
Whilst every effort is made to ensure that any information sent to CoComply is confirmed as received, it cannot be assumed unless an acknowledgement has been received by the Client.
Where CoComply requires additional information or clarification from the Client, to conclude the IR35 assessment, the Client agrees to cooperate with CoComply and provide all necessary information and documentation to allow CoComply to conclude its IR35 assessment.
Reasonable Care:
The Off-Payroll Working Rules require the Client to take reasonable care in the application of the tax legislation commonly known as IR35 (as contained in Chapter 10 Income Taxes (Earnings and Pensions) Act 2003 (as amended). Where the Client can demonstrate to HMRC that it has taken reasonable care, it should avoid any exposure to Income Tax and National Insurance arising out of its engagements of Contractors. The purpose of CoComply’s IR35 Services is to assist the Client in overcoming the reasonable care requirement. It is possible that whilst you may sufficiently demonstrate that reasonable care has been met, HMRC may still challenge the accuracy of individual Employment Status assessments (it is possible to achieve “reasonable care” but for HMRC to disagree with individual assessments). In accordance with clause 10.5 CoComply accepts no liability where HMRC disagrees with individual assessments and the Client has withheld or not fully disclosed relevant information and/or provided inaccurate or misleading information to CoComply during the IR35 Services. CoComply only accepts liability in the event that CoComply has been negligent in the provision of the IR35 Services. The IR35 Services provided by CoComply reflects the provisions of the Off-Payroll Working Rules as of the time that the advice and service is provided.