FINCH CONSULTING LIMITED (“FINCH”)
GENERAL CONDITIONS OF CONTRACT FOR PROVISION OF CONSULTING SERVICES
1. Definitions and Interpretation
“Client” means the person, firm, company or organisation who purchases Services from FINCH.
“Confidential Information” means all records, reports, data and other information and know-how belonging to either party which are disclosed to the other as a result of the Contract other than that which is already in its possession or the public domain other than a result of a breach of condition 14.
“Contract” comprises these General Conditions and any special conditions agreed between the parties and any specification for the Services as set out in the Proposal.
“Deliverables” all documents and materials delivered by FINCH or its sub-contractors, consultants or employees in relation to the Project and/or the Services.
“FINCH” means Finch Consulting Limited.
“Intellectual Property Rights” means all copyright and related rights, patents, right to inventions, utility models, design rights, registered design, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, or other proprietary rights of a similar or equivalent nature whether registered or unregistered and including all applications for and renewals or extensions of such rights, arising in the United Kingdom or anywhere in the world.
“Project” the project described in the Proposal.
“Proposal” means FINCH’s proposal for services to be delivered to the Client under a Contract.
“Services” the services to be provided by FINCH under the Contract together with any other services which FINCH provides or agrees to provide to the Client.
“Site” means the site set out in the Proposal.
Unless otherwise expressly agreed in writing by FINCH every proposal of work subsequent to the Proposal shall be subject to these conditions.
The headings in these General Conditions are inserted only for convenience and shall not affect their construction.
A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account or any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
2. Acceptance of Orders for Services
2.1 The Client’s acceptance of a Proposal for Services constitutes an offer by the Client to purchase the Services specified in it on these General Conditions and on any special conditions set out in the Proposal. FINCH shall accept such offer by a written acknowledgement or, if earlier, by FINCH starting to provide the Services whereupon a contract for the supply and purchase of those Services on these General Conditions will be established. The Client’s standard terms and conditions (if any) attached to, enclosed with or referred to in any acceptance, purchase order or other document shall not govern this Contract.
2.2 The Proposal is given to the Client by FINCH on the basis that no Contract shall come into existence except in accordance with condition 2.1. The Proposal is valid for the period stated in such Proposal or, if none is stated, for 30 days from the date of the Proposal.
2.3 Any quotation given by FINCH shall not constitute an offer and is only valid for the period stated in such quotation or if none is stated, for 30 days from the date of the quotation.
2.4 The Contract comprises the entire agreement between the parties to the exclusion of all other terms and conditions, prior or collateral agreements, negotiations, notices of intention and representations.
2.5 These General Conditions shall be subject to any special conditions as set out in the Proposal. In the event of any inconsistency, the special conditions shall prevail.
3. Provision of the Services
3.1 FINCH shall perform the Services at the Site or elsewhere as is reasonably necessary for the due performance of them.
3.2 The compliance with any relevant rules and regulations and the obtaining of any necessary licences, permits, consents, approvals or other matters of a like nature necessary to enable FINCH to provide the Services to the Client shall be the responsibility of the Client.
The Client shall provide to FINCH its agents, sub-contractors and employees, in a timely manner, at all reasonable times and at no charge, access to the Site or any site other than the Site where the Services are to be performed, for the purpose of performing the Services.
The Client shall be responsible for and shall pay any extra costs incurred by FINCH as a result of any discrepancies, errors or omissions in drawings, documentation, or other information supplied in writing by the Client, whether they have been approved by FINCH or not, provided that such discrepancies, errors and omissions are not due to inaccurate drawings or information supplied in writing to the Client by FINCH.
6. Fees and Expenses
6.1 Subject to conditions 5, 6.4 and 6.5, the fee for the Services shall be as set out in FINCH’s Proposal or as otherwise varied from time to time by agreement in writing between FINCH and the Client. All charges quoted under the Contract are exclusive of value added tax which where appropriate shall be added to the price at the prevailing rate.
6.2 If the Services are provided on a time and materials basis:
6.2.1 FINCH’s fees shall be calculated in accordance with FINCH’s standard daily fee rates. FINCH’s standard daily fee rates for each individual are calculated on the basis of an eight-hour day from [8:00am to 5:00pm] worked on business days;
6.2.2 FINCH shall ensure that every individual whom it engages on the Services completes time sheets recording time spent on the Project and FINCH shall use such timesheets to calculate the fees;
6.2.3 The parties agree that FINCH may without prejudice to its rights under condition 6.4 review and increase its standard daily fee rates, provided that such fees cannot be increased more than once in any 12 month period. FINCH shall give the Client written notice of any such increase 3 months before the proposed date of that increase.
6.2.4 FINCH shall invoice the Client monthly in arrears for its fees for the month concerned.
6.3 Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Proposal as amended from time to time in accordance with condition 6.4.
6.4 FINCH reserves the right, upon giving the Client written notice, to increase the Fee payable by the Client in circumstances where the Services to be provided extend beyond the initial Proposal.
6.5 Any fixed price and daily rate are based on the Services being performed at the Site and excludes the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom FINCH engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by FINCH for the supply of the Services. Such expenses, materials and third party services shall be invoiced by FINCH.
7.1 On completion of the Services, or as otherwise agreed at stages of the Services, an invoice will be sent to the Client for the fees, costs and expenses referred to in conditions 5 and 6.
7.2 Subject to any terms of payment stated in the Proposal payment of each invoice shall be made in full and in cleared funds, without deduction or set-off, within 30 days of the date of invoice. Time of payment shall be of the essence of this Agreement.
7.3 Payment shall be made in pounds sterling to FINCH’s Bank Account at Barclays Bank Plc, Sort Code: 20-37-63, Account No: 03232417 or as otherwise agreed.
7.4 Without prejudice to any other right or remedy of FINCH, if the Client fails to make any payment due to FINCH by the due date for payment FINCH shall have the right to:
7.4.1 to charge interest on any overdue amount at the rate of 4% above the base rate of Barclays Bank from time to time before and after judgment; and
7.4.2 suspend all Services until payment has been made in full.
7.5 Notwithstanding any other provision of the Contract, all sums payable to FINCH under the Contract shall become due immediately on termination. This condition 7.5 is without prejudice to any right to claim for interest under the law or any such right under the Contract.
7.6 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against FINCH in order to justify withholding payment of any such amount in whole or in part. FINCH may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by FINCH to the Client.
8. Client’s Obligations
8.1 When required to give a decision on any matters properly referred to it by FINCH, the Client shall notify FINCH of its decision in such reasonable time or, if earlier, within such period as agreed between FINCH and the Client, so as not to delay or disrupt the performance of the Services.
8.2 The Client shall: 8.2.1 supply to FINCH, without charge and in a timely manner, all relevant data and information in the possession of the Client as may reasonably be required by FINCH in the performance of the Services and all such assistance as may reasonably be required by FINCH in the performance of the Services.
8.2.2 cooperate with FINCH in all matters relating to the Services and shall appoint a Client manager in relation to the Services who shall have the authority contractually to bind the Client on all matters relating to the Services;
8.2.3 inform FINCH of all health and safety rules and regulations and any other reasonable security requirements that apply at the Site or any other site at which the Services are to be performed;
8.2.4 ensure that all Client equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements.
8.3 The Client shall be liable to pay to FINCH, on demand, all reasonable costs, charges or losses sustained or incurred by FINCH (including any direct, indirect or consequential losses, loss of profit, loss of reputation, loss of or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to FINCH confirming such costs, charges and losses to the Client in writing.
9. Intellectual Property
9.1 Except as expressly agreed between FINCH and the Client in writing, neither party grants to the other any right or licence to copy or use any written or oral information, material or invention protected by any Intellectual Property Rights subsisting prior to the Contract and vested in that party.
9.2 FINCH shall own any Intellectual Property Rights arising in the course of the Services and in any Deliverables and may apply for protection for the same throughout the world in which event the Client shall provide such assistance as is requested for the protection to be obtained. FINCH licenses all such Intellectual Property Rights to the Client free of charge and on a non-exclusive basis to such extent as is reasonably necessary for the Client to make use of the Deliverables or the Services as provided for in the Contract.
10.1 FINCH may with the written consent of the Client (such consent not to be unreasonably withheld or delayed) publish alone or in conjunction with any other person any articles, photographs or other illustrations relating to the Services.
10.2 Any report provided by FINCH is confidential to the Client and is not to be passed on to or relied upon by any third party. A person who is not a party to the Contract shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999 but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
11. Term and Termination
11.1 The Services shall be provided by FINCH to the Client from the date specified in the Proposal or as otherwise varied from time to time by agreement between FINCH and the Client in writing.
11.2 The Services shall continue to be supplied until the Project is completed or the Services provided, or, if earlier, the Contract is otherwise terminated in accordance with this condition 11. Following acceptance by FINCH of the Client’s offer pursuant to condition 2, no cancellation and/or suspension, either in whole or in part, may be made by the Client other than with the prior written consent of FINCH and upon terms that the Client shall indemnify FINCH in full against all loss (including without limitation loss of profit, loss of use, business interference or increased cost of working or any other special or consequential loss) damages, costs, expenses and other liabilities awarded against or incurred by FINCH as a result of or in connection with the cancellation and/or suspension.
11.3 Without limiting its other rights or remedies, FINCH may terminate the Contract with immediate effect by giving written notice to the Client if:
11.3.1 the Client commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of the Client being notified in writing of the breach;
11.3.2 the Client suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
11.3.3 the Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
11.3.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Client (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of the Client;
11.3.5 the Client (being an individual) is the subject of a bankruptcy petition or order;
11.3.6 a creditor or encumbrancer of the Client attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
11.3.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Client (being a company);
11.3.8 a floating charge holder over the assets of the Client (being a company) has become entitled to appoint or has appointed an administrative receiver;
11.3.9 a person becomes entitled to appoint a receiver over the assets of the Client or a receiver is appointed over the assets of the Client;
11.3.10 any event occurs or proceeding is taken with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 11.3.2 to condition 11.3.9 (inclusive);
11.3.11 the Client suspends or ceases or threatens to suspend or cease to carry on all or a substantial part of its business.
11.4 Without limiting its other rights or remedies, FINCH shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and FINCH if the Client becomes subject to any of the events listed in condition 11.3.2 – condition 11.3.9, or FINCH reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
11.5 On termination of the Contract for any reason:
11.5.1 the Client shall immediately pay to FINCH all of FINCH’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, FINCH shall submit an invoice, which shall be payable by the Client immediately on receipt;
11.5.2 the Client shall return all Deliverables which have not been fully paid for. If the Client fails to do so, then FINCH may enter the Customer’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
11.5.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the contract which existed at or before the date of termination or expiry; and
11.5.4 conditions which expressly or by implication have effect after termination shall continue in full force and effect.
No variation to the Contract shall be binding unless agreed in writing by FINCH and the Client.
13. FINCH’s Obligations
13.1 FINCH undertakes to carry out the Services with all reasonable skill, care and diligence.
13.2 FINCH shall use reasonable endeavours to meet any performance dates set out in the Proposal but any such dates shall be estimates only and time shall not be of the essence in respect of such performance dates.
13.3 FINCH shall use all reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Site or at any other site at which the Services are to be performed and that have been communicated to FINCH under condition 8.2.3 provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
Neither party shall use any Confidential Information for any purpose other than in connection with the performance of the Services or disclose any Confidential Information without the prior written consent of the other to any person other than to employees, agents or sub-contractors to whom disclosure is necessary to enable performance of the Services and each party shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the party concerned. This condition 14 shall survive termination or expiry of the Contract.
15. Liability and Indemnity
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
15.1 FINCH shall not be liable for any delay or failure to perform the Services if performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees. FINCH shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
15.2 This condition 15 sets out the entire financial liability of FINCH (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
15.2.1 any breach of the Contract;
15.2.2 any use made by the Client of the Deliverables, the Services or any part of them or any results of the Services;
15.2.3 any representation, statements, tortious act or omission (including negligence) arising under or in connection with this Contract.
15.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
15.4 Nothing in these Conditions limits or excludes the liability of FINCH for death or personal injury caused by negligence or for any damage or liability incurred by FINCH as a result of fraud or fraudulent misrepresentation by FINCH.
15.5 Subject to conditions 15.3 and 15.4: 15.5.1 FINCH shall not be liable for: 126.96.36.199 loss of profit;
188.8.131.52 loss of business;
184.108.40.206 depletion of goodwill and/or similar losses;
220.127.116.11 loss of anticipated savings;
18.104.22.168 loss of contract;
22.214.171.124 loss of use;
126.96.36.199 loss of or corruption to data or information;
188.8.131.52 or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
15.5.2 FINCH’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising in connection with the performance or contemplated performance of the Contract shall be as follows:
184.108.40.206 In respect of direct damage to physical property of the Client resulting from the negligence of FINCH, its employees, agents or sub-contractors, for which FINCH can and does insure £5m in respect of any one event or series of connected events; and
220.127.116.11 In all other cases, FINCH’s liability shall not exceed the fee paid in respect of the Services under the Contract.
16. Force Majeure
If either party is unable wholly or in part to carry out any obligation (except an obligation or pay) under the Contract due to any cause beyond its control (which shall include industrial disputes) such party shall give to the other party prompt notice thereof with full details whereupon such obligation shall be suspended so far as it is affected by such cause during the continuance of such cause provided that the party affected shall take all reasonable steps to eliminate the cause and resume performance as promptly as practicable.
None of the provisions of the Contract shall be regarded as waived or amended by either party unless the same is agreed in writing and executed by both parties.
Any notice served under these General Conditions shall be in writing, addressed to the registered office of the intended recipient (or such other address as the recipient may have notified in writing to the other party) and delivered (and deemed served) as follows: either by hand (first business day after delivery), by first class post (third business day after posting) or by facsimile transmission (first business day after date of transmission): “business day” meaning any other than Saturday, Sunday or a public holiday.
If any provision (or a part of a provision) of the Contract is found by any court or administrative body or competent jurisdiction to be invalid, unenforceable or illegal the other provisions shall remain in force.
20. Providing Services to Others and Non-Solicitation
20.1 Nothing in these General Conditions shall prevent FINCH from providing services of whatsoever kind to any other persons, companies, firms or organisations.
20.2 The Client shall not, without the prior written consent of FINCH, at any time from the date of the Contract until the expiry of six months after the last date of supply of the Services solicit or entice away from FINCH or employ or attempt to employ any person who is, or has within the previous six months been, engaged as an employee or sub-contractor of the Supplier in the provision of the Services.
21.1 FINCH may appoint any sub-contractor it considers suitably qualified to perform any of FINCH’s obligations under the Contract.
21.2 Subject to condition 21.1 neither party shall assign, transfer, charge, sub-contract or in any other manner make over to any third party all or any of its rights or obligations under the Contract without the prior written consent of the other.
22. Applicable Law
22.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with the law of England and Wales.
22.2 The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.
Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other and neither party shall have authority to act in the name of or on behalf of or otherwise bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).