STANDARD TERMS AND CONDITIONS OF PROVISION OF CONSULTANCY SERVICES (R00)
In these terms and conditions, Alan Ward Consulting Limited (registered no. 08677834) whose registered office is at 6 Donegal Close, Caversham, Reading, Berkshire, RG4 5DT is referred to as “AWC”, and the party to whom the Brief is addressed is referred to as “the Client” (collectively “the Parties” or individually “the Party”); “Brief” means the scope and definition of the Services agreed in writing by the parties.
THE CLIENT’S PARTICULAR ATTENTION IS DRAWN TO THE LIMITATIONS AND EXCLUSIONS SET OUT IN CLAUSES 5 AND 6
1.1 The agreement made by the Parties comprises:
1.1.1 these terms and conditions;
1.1.2 any relevant written quotation issued by AWC to the Client; and
1.1.3 AWC’s written proposal issued to the Client in connection with the Services (the “Brief”);
collectively the “Agreement” and shall be interpreted in the above order of priority in the event of any inconsistency or conflict with documents appearing earlier in the list taking priority over documents appearing later in the list.
1.2 The Agreement shall be deemed accepted by the Client upon the first of (i) the Client’s signature of the Agreement, (ii) the Client’s instruction to commence work, (iii) AWC starting work for the Client or (iv) the Client’s payment of any agreed fee.
1.3 Variations or additions to the Agreement can be made. However, both Parties must agree to the variation or addition in writing.
2.1 AWC undertakes that it will perform the services expressly described in the Brief (“the Services”) with reasonable skill and care.
2.2 AWC will use consultants with appropriate skills and experience for the provision of the Services. AWC may from time to time replace those consultants with consultants of suitable experience and suitability.
3.1 AWC may need access to the Client’s facilities, information, systems, tools and resources for and during the provision of the Services. If so requested by AWC, the Client, without charge to AWC, will provide access to these to the extent reasonably requested by AWC and shall co-operate with AWC to the extent reasonably required to achieve the objectives set out in the Agreement. The Client shall further make decisions and inform AWC of the results of those decisions when AWC reasonably requests it to do so for AWC’s performance of the Services.
3.2 The Client acknowledges that, in giving any opinion or advice in the course of provision of the Services, AWC relies on the information about the Client or any project described in the Brief provided to it by the Client and does not seek to establish the reliability of such information; accordingly, the Client:
3.2.1 undertakes to provide complete and accurate information about itself and about any such project which is or may be relevant to the Services and to provide such other information as AWC may reasonably request; and
3.2.2 warrants that any such information provided is accurate, complete and not misleading.
4.1 The Agreement sets out the proposed fees, costs and expenses for the Services (“the Price”). Fees based on time and materials or on an estimate do not constitute a fixed price. AWC may increase the Price to reflect any variation to the Brief requested by the Client and/or any additional cost incurred by it as a result of any breach of the Agreement by the Client.
4.2 All fees, costs and expenses referred to in the Agreement are exclusive of VAT, sales and similar taxes of any kind.
4.3 Unless otherwise agreed by the Parties in writing, the Price shall be payable as specified in the Brief either (1) monthly in arrears or (2) in two instalments as follows: 50% on acceptance of the Agreement and 50% on completion of the Services. If the Brief does not specify how the Price shall be paid (and the Parties have not agreed on the method in writing) then the default payment method shall be by monthly instalments.
4.5 Unless otherwise agreed in writing, the Client shall pay all fees, costs and expenses related to the Services upon presentation of AWC’s invoice.
4.6 Unless otherwise agreed by the Parties in writing, if any invoice is not paid in full and cleared funds within 14 days from presentation, AWC may suspend performance of the Services and / or charge interest at the rate provided by the Late Payment of Commercial Debts (Interest) Act 1998 on any overdue amount from the due date until the date of actual payment of the overdue amount, whether before or after judgment.
5.1 Nothing in this Agreement shall exclude or limit a Party’s liability for death or personal injury caused by negligence, or for fraud, fraudulent misrepresentation or any other liability which may not lawfully be limited or excluded.
5.2 In respect of any liability other than as described in clause 5.1 above and subject to clause 5.4, each Party’s total liability arising out of or in connection with the Agreement (whether in compensation for any breach, under any indemnity or otherwise and whether in contract, tort, for breach of statutory duty or otherwise) shall not exceed in aggregate 100% of the total fees payable by the Client under this Agreement.
5.3 Without limiting the foregoing but subject to clause 5.1 above, neither Party shall have any liability to the other (whether in compensation for any breach or pursuant to any indemnity and whether in contract, tort, for breach of statutory duty or otherwise) for (i) indirect, special or consequential losses of any kind; or (ii) for any loss which is or represents (a) loss of profit (b) loss of revenue (c) loss of anticipated benefit (d) loss of management time (e) business interruption (f) third party liability (g) loss of data (h) loss of use of any tangible or intangible asset or (i) any loss which procedures and precautions implemented by Client (or which would generally be implemented by a person exercising a degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a reasonably and appropriately skilled and experienced person in the same or similar circumstances) could have prevented or reduced or (j) any other indirect, special or consequential loss.
5.4 Nothing in this clause 5 shall affect or limit the Client’s obligation to pay sums properly due under the Agreement.
5.5 The express terms of this Agreement shall apply in place of all warranties, conditions, terms, representations, statements, undertakings and obligations whether expressed or implied by statute, common law, custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law.
6.1 Statements made by AWC relating to the Services, and all recommendations, opinions, surveys and forecasts (together “Forecasts”) in the Agreement, or any report, presentation or other communication are made in good faith on the basis of information available at the time and such Forecasts are addressed only to the Client. Whilst AWC will use reasonable skill and care in the preparation of such Forecasts, neither AWC nor any consultant employed or engaged by AWC shall have any liability in relation to losses or damage incurred as a result of or in relation to the Client’s reliance on such opinions or recommendations and Client acknowledges that such liability is a business risk of the Client.
6.2 Implementation of the results of the Services and the Client’s completion of any project of which the Services form part may require the involvement or supervision of or giving advice to third parties engaged by the Client. AWC strongly recommends that the Client obtain independent advice before entering into any legally binding commitment with any such third parties.
6.3 AWC may, during its performance of the Services, make statements about or recommendations of third party products, software, equipment or services. AWC gives no warranty in relation to such products, software, equipment or services, and the Client shall rely solely on the warranties and remedies provided by any such third party with whom it may contract.
6.4 Without limiting any other provision of these terms and conditions, AWC will use reasonable endeavours to assist the Client to minimise risk and additional cost or delay relating to the involvement in the Client’s project of any third parties involved in manufacturing or the provision of other services or goods to the Client: in no circumstance shall AWC be liable for any failure by any such third party to supply goods or perform services within particular timescales or to particular specifications.
7.1 Either Party may at any time and without cause terminate the Agreement: (i) on giving 30 days’ written notice of termination to the other Party; or (ii) by notice served within 5 working days of the completion of all work described in the applicable Brief.
7.2 Upon termination pursuant to clause 7.1, the Client shall pay AWC all sums due in respect of the Services provided and expenses incurred prior to termination.
7.3 Either Party may terminate the Agreement immediately by written notice if the other Party:
7.3.1 commits an act of bankruptcy or goes into liquidation or is put into liquidation (other than for a proper commercial purpose and whilst solvent) or a receiver is appointed or an administration order is made in respect of it; and/or
7.3.2 commits a material breach of the Agreement and has failed to remedy the breach within 30 days of receipt of a written notice from the other Party identifying that the breach has occurred.
7.4 Termination shall not affect any accrued rights or liabilities arising out of the Agreement.
Each Party shall, and shall procure that its employees and representatives shall, keep confidential any information identified by the other Party as being confidential, provided that this clause shall not apply to information which (i) is or comes into the public domain through no fault of the recipient, (ii) is or has been lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure, (iii) is independently developed by the recipient, without access to or benefit of such information, or (iv) is required by law, by court or governmental or regulatory order to be disclosed.
The Client shall not, either during the continuation of the Agreement or for a period of six months from its termination, employ or offer employment to any member of AWC’s project team. This shall not prevent the Client from employing or offering employment to a member of AWC’s project team who responds to a bona fide public advertisement.
No person or entity other than the Client shall have any rights to enforce any of the terms of the Agreement against AWC.
Neither Party shall assign the Agreement without the other Party’s prior written consent (not to be unreasonably withheld or delayed).
12.1 The Client agrees that AWC may identify the Client in its promotional materials (including on its website) as a client of AWC.
12.2 Neither Party shall make any statement about the Services to the press or the public without the other Party’s prior written consent.
No failure, delay or indulgence by either Party in exercising any power or right under the Agreement shall operate as a waiver of that power or right.
Where the Client is required to give notice in writing to AWC, the notice shall be in writing in English addressed to the AWC’s address as stated in the quotation (or other address notified to the Client) and shall be sent by hand (and thereby be deemed served when properly left at such address) or by first class pre-paid post (and thereby be deemed served 48 hours after posting) or by e-mail (and thereby be deemed served 12 hours after satisfactory confirmation of the notice being sent is received by the sender).
Neither AWC nor the Client will be liable for any failure to perform their respective obligations, or delay in the performance of their obligations, if the failure or delay is due to causes outside their reasonable control. This clause 15 shall not affect or limit the Client’s obligation to pay sums properly due under the Agreement.
If any provision or part of a provision of the Agreement is held to be invalid, illegal or unenforceable that part shall be severed and the remaining provisions shall continue to be valid and enforceable as if the Agreement had been executed with the invalid provision omitted.
The Agreement sets out the entire agreement and understanding of the parties relating to the subject matter of the Agreement and supersedes all prior agreements, understandings or arrangements.
The Agreement shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with the Agreement will be subject to the exclusive jurisdiction of the English Courts.