1. Definitions
“Client” – The client who has bought or agreed to engage the Services of the Consultant.
“Consultant” – Yasmin Dar, trading as Positive Echo Yorkshire Ltd, a registered company by guarantee (company registration number: 11920018. Registered Office: Unit A, 6 Clifton Street, Bradford, BD8 7DA.
“Contract” – The terms and conditions of engagement for the purpose of provision of consultancy services as set out in the cover letter and terms and conditions and the Appendices.
“Services” – The scope of work being the consultancy services as set out in Appendix A.
2. General
2.1 Condition headings do not affect the interpretation of these conditions.
2.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
3. Application of Terms
2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Client’s confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Services and any variation to these conditions and any representations about the Services shall have no effect unless expressly agreed in writing and signed by the Consultant. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Consultant which is not set out in the Contract. Nothing in this condition shall exclude or limit the Consultant ‘s liability for fraudulent misrepresentation.
2.4 Any quotation is given on the basis that no Contract shall come into existence until the Client despatches an acknowledgement to the Consultant. Any quotation is valid for a period of 30 days only from its date, provided that the Consultant has not previously withdrawn it.
3. Delivery
3.1 Delivery of the Services shall be made by the Consultant to the Client at its premises specified in Appendix A or any other place as may be agreed in writing in advance.
3.2 Dates quoted for the delivery of the Services are approximate only and the Consultant shall not be liable for any delay in delivery of the Services, howsoever caused.
3.3 Any dates specified by the Consultant for delivery of the Services are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
3.4 The Consultant may deliver the Services in individual phases. Each phase shall be invoiced and paid for in accordance with the provisions of the Contract.
3.5 Each phase shall be a separate Contract and no cancellation or termination of any one Contract relating to a phase shall entitle the Client to repudiate or cancel any other Contract or phase.
4. Non-Delivery
4.1 The attendance sheet signed by an employee of the Client shall be conclusive evidence of the Service having been delivered by the Consultant.
4.2 The Consultant shall not be liable for any non-delivery of Services (even if caused by the Consultant’s negligence) unless the Client gives written notice to the Consultant of the non-delivery within 7 days of the date when the Services would in the ordinary course of events have been received.
4.3 The Consultant shall in no case be liable for any delay or non-delivery caused on account of any delay by the Client in providing to the Consultant, the terms of any order, including relevant details.
4.4 The Consultant shall not be liable or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, in relation to the Services if the delay or failure was due to any reason beyond the Consultant’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Consultant’s reasonable control:
- Act of God, explosion, flood, tempest, fire or accident;
- war or threat of war, sabotage, insurrection, civil disturbance or requisition;
- acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
- strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of the Consultant and/or a third party);
- power failure or breakdown in equipment.
4.5 Any liability of the Consultant for non-delivery of the Services shall be limited to delivering the Services within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Services.
5.1 The Consultant shall charge its fees as set out in Appendix B. Estimates of price are based on the Consultant’s costs of the project at the time of the quote and unless otherwise agreed, are subject to variation at any time to reflect any rise or fall in such costs.
5.2 The Consultant reserves the right to invoice the Client in advance 50% of the cost of time and materials and 100% of major disbursements from third parties for the specific and identifiable parts of the Contract at the time of commencement of the Contract.
5.3 Additional charges at the rates set out in Appendix B may be incurred by the Client in the event of delivery of Services to more than one address, on account of expedited delivery of the Services or on account of any other head of expense set out in Appendix B.
5.4 Additional charges may also be incurred by the Client in the event of any delay in delivery of Services caused by the failure of the Client to give adequate and appropriate instructions or information, which result in a loss to the Consultant.
5.5 In the event that the Consultant and the Client agree that the scope of the Services require to be expanded, a separate fee shall be agreed and confirmed in writing in relation to the same. In the event that no such fee has been agreed, the Consultant shall charge at the hourly rates specified in Appendix B.
5.6 In the event that the Services or any part thereof are aborted on account of any change in the specifications, instructions and/or requirements of the Client, the Consultant shall be entitled to charge 75% of the fee agreed for the same.
5.7 Payment of fees shall be made by the Client in Sterling Pounds on the due date/s stated in Appendix B. Payment shall be deemed to be received when funds remitted have been cleared. In the event of non-payment of fees due after 14 days, the Consultant shall be entitled to charge interest at the annual rate of 1.5% p.a. above the base lending rate from time to time of Santander Bank, accruing on a daily basis until payment is made.
5.8 In the event of non-payment of fees on the due date/s as set out in Appendix B, the Consultant shall be entitled to immediately cease work on the Project or any part thereof.
5.8 Time for payment shall be of the essence.
5.9 The Client shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by the Consultant to the Client.
5.10 If the Client fails to make payment on the due date, then, without prejudice to any other right or remedy available to the Consultant, the Consultant shall be entitled to:
- Terminate the Contract immediately forthwith and also any further delivery of Services to the Client;
- Appropriate any payment made by the Client to such of the Services (or the services supplied under any other contract between the Client and the Consultant) as the Consultant may think fit (notwithstanding any purported appropriation by the Client); and
6. Sub-contracting
6.1 The Consultant reserves the right to subcontract all or part of the Services as it may consider appropriate.
6.2 It is the responsibility of the Consultant to ensure that all sub-contracted services fulfill the requirements, instructions and specifications of the Client subject to a management fee.
6.3 The Consultant shall be entitled to instruct the subcontractor to invoice any goods or services provided directly to the Client.
7. Risk
Client’s property and all property supplied to the Consultant by or on behalf of the Client shall, while it is in the possession of the Consultant or in transit to or from the Client be at Client’s risk and it shall be the obligation of the Client to ensure that all appropriate insurances are in place.
8. Liability
8.1 The Consultant shall deliver the Services with reasonable skill and care and the Services will be reasonably fit for the purposes detailed in the instructions and specifications of the Client. All other conditions and warranties as to fitness for purpose, conformity with instructions and standards of skill and care whether express, supplied by statute or otherwise are hereby excluded.
8.2 The Client acknowledges that the Consultant will render the Services in an advisory capacity only and all line management responsibilities are the accountable to the Client alone.
9.1 Subject to condition 3, condition 4 and condition 8.1, the following provisions set out the entire financial liability of the Consultant (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
(a) any breach of these conditions.
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these conditions excludes or limits the liability of the Consultant:
(a) for death or personal injury caused by the Consultant‘s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Consultant to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
9.4 Subject to condition 9.2 and condition 9.3:
(a) the Consultant‘s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
(b) the Consultant shall not be liable to the Client for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
9.5 No claim for breach of these conditions or the Contract may be brought by the Client unless –
- all sums due and payable under the Contract have been paid; and
- the claim for defective delivery of Services is notified in writing to the Consultant within 14 days of delivery or purported delivery of the Services or where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.
10. Termination
10.1 Either party may terminate the Contract with 15 days prior written notice to the other party.
10.2 All payments payable to the Consultant under the Contract shall become due immediately on its termination notwithstanding any other provision.
10.3 The Consultant shall be entitled to terminate the Contract immediately on the occurrence of the following events –
10.3.1 If the Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.3.2 An encumbrancer takes possession of, or a receiver is appointed over, any of the property or assets of the Client; or
10.3.3 The Client ceases, or threatens to cease to carry on business; or
10.3.4 The Consultant reasonably believes that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly.
11. Confidentiality
11.1 The Consultant shall not at any time disclose any confidential information relating to the Client or its business, including financial or trading information or Client details which comes into its possession during the course of the Project.
11.2 The Consultant shall make reasonable efforts to procure that all sub-contractors appointed in accordance with condition 6, shall be bound by condition 11.1 in the same manner as the Consultant.
12.1 The Consultant may assign the Contract or any part of it to any person, firm or company.
12.2 The Client shall not be entitled to assign the Contract or any part of it without the prior written consent of the Consultant.
13. Force Majeure
The Consultant reserves the right to defer the date of delivery or to cancel the Contract (without liability to the Client) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Consultant including, without limitation, those instances set out in condition 4.4.1 to condition 4.4.7, provided that, if the event in question continues for a continuous period in excess of 120 days, the Client shall be entitled to give notice in writing to the Consultant to terminate the Contract.
14. General
14.1 Each right or remedy of the Consultant under the Contract is without prejudice to any other right or remedy of the Consultant whether under the Contract or not.
14.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.3 Failure or delay by the Consultant in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
14.4 Any waiver by the Consultant of any breach of, or any default under, any provision of the Contract by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
15.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email:
(a) (in case of communications to the Consultant) to its registered office or such changed address as shall be notified to the Client by the Consultant; or
(b) (in the case of the communications to the Client) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Client set out in any document which forms part of the Contract or such other address as shall be notified to the Consultant by the Client.
15.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by email on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
16. Acceptance
Acceptance of these terms is implied on your signing of the cover letter accompanying these terms and conditions.
Appendix A
Scope of Services
- State the exact services that you will be providing to the Client.
- State the address at which the Services are to be delivered.
- State dates of delivery and phases of delivery, if applicable.
Appendix B
Fee Quote
- State the estimates fee quote and the basis of calculation of the same.
- State the additional charges (or rates) for expedited delivery of services or delivery to an additional address.
- State any additional costs that may be incurred by Clients, such as overtime, transport costs, etc.
- State due date/s for payment, including due dates for various phases, if applicable.
- Specify hourly charges.