On 25 May 2018, a new data protection regulation came into force under the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA 2018), which replaced the Data Protection Act 1998 (DPA 1998). It is crucial that any subcontractor status is defined from the outset, as the GDPR imposes important obligations on subcontractors. In the past, consulting contracts may contain clauses by which the consultant agrees that the client holds and processes his personal data. However, this type of generic consent is no longer as useful under the GDPR, as it can be revoked at any time. Under the GDPR, consultants have rights as data subjects. The Company, as a data controller, shall provide the consultants with a privacy policy defining the personal data that the Company holds about them and how and why such information is processed. It is recommended for the consulting contract to refer to this privacy policy and confirm where this statement can be found. A indemnification provision in the contract could protect the Company against losses caused by: • Requires the Consultant to enter into a written contract with specific conditions with the Client and to process personal data only in accordance with the Client`s instructions. The GDPR introduces extensive rights for data subjects. Among other things, they have the right to be informed about how and why their data is processed, the right to be forgotten in certain circumstances and the right to data portability, which allows a data subject to obtain and reuse his or her personal data for his or her own purposes in different services. Some of these obligations will have a significant financial impact on an individual consultant, such as. B the obligation to take appropriate technical and organisational measures to secure personal data, and the only way to manage this may be to pass on the costs to the customer.
Restrictions on the appointment of sub-processors will also affect the possibility of appointing an alternate. There is little risk that the inclusion of remuneration in the second point above may suggest to HMRC when reviewing the agreement that there are doubts about the adviser`s employment status. However, this risk is outweighed by the commercial benefits of such compensation. Once an organization has come to the conclusion that it wishes to use the services of a consultant, it is advisable to enter into a written consulting contract with that person. Some key terms should be included in the agreement, as described below. Recent developments have highlighted the risk of hiring an external consultant to work on a project without an enforceable confidentiality agreement. Increasingly, consultants are using the experience they have gained working for industrial clients as a springboard to sell this expertise later in lawsuits against these and other clients in the industry. As an entrepreneur, you`ll be well served if you have strong confidentiality agreements in place to prevent a consultant with sensitive information from going back years later and using the same information in a future lawsuit against you. (c) The Consultant may not provide, disclose or report the work results or non-public information received or created under this Agreement to any federal, state or local authority or any other public or private person or entity without (i) the express prior written permission of the Client or (ii) any judicial or governmental order requiring disclosure. In the event that the Consultant believes that it is required under applicable law to disclose a work product or non-public information, or that it is served with a court or regulatory order requiring the disclosure of a work product or non-public information, it will promptly inform the Client in writing and in accordance with the Client`s instructions for such subpoena or court order. Respond, appeal or challenge prior to disclosure, and will fully cooperate with Customer to respond, appeal or challenge any such subpoena or court or government order.
Neither the Consultant nor its affiliates may disclose any Work Product or Non-Public Information to any person or entity, or use or permit any Work Product or Non-Public Information to be used to promote private interests other than those provided for in this Agreement. The Consultant shall take appropriate measures to ensure the confidentiality and protection of all results of the work and all non-public information and to prevent their indicative or unintentional disclosure or inappropriate use by the Consultant or its subcontractors or by its employees or affiliates. .