1.1 In these Terms and Conditions[, except to the extent expressly provided otherwise]:
“Charges” means the following amounts:
(a) [the amounts specified in Section 7 of the Statement of Work];
(b) [such amounts as may be agreed in writing by the parties from time to time]; and
(c) [amounts calculated by multiplying the Consultant’s [standard time-based charging rates (as notified by the Consultant to the Client before the date of the Contract)] by the time spent by the Consultant’s personnel performing [the Services] (rounded [down by the Consultant to the nearest quarter hour])];
[additional list items]
“Client” means the person or entity identified as such in Section 1 of the Statement of Work;
“Client Materials” means [all works and materials supplied by or on behalf of the Client to the Consultant for incorporation into the Deliverables or for some other use in connection with the Services];
“Consultant” means [[individual name] of [address]] OR [[company name], a company incorporated in [England and Wales] (registration number [registration number]) having its registered office at [address]] OR [[partnership name], a partnership established under the laws of [England and Wales] having its principal place of business at [address]];
“Contract” means a particular contract made under these Terms and Conditions between the Consultant and the Client;
“Deliverables” means [those [deliverables] specified in Section 4 of the Statement of Work that the Consultant has agreed to deliver to the Client under these Terms and Conditions] OR [[define deliverables]];
“Effective Date” means [the date of execution of a Statement of Work incorporating these Terms and Conditions];
“Intellectual Property Rights” means [all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs)];
“Minimum Term” means, in respect of the Contract, [the period [of 12 months beginning on the Effective Date]] OR [the period specified in Section 2 of the Statement of Work];
“Services” means the consultancy services specified in Section 3 of the Statement of Work;
“Statement of Work” means a written statement of work agreed by or on behalf of each of the parties;
“Term” means [the term of the Contract, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2];
“Terms and Conditions” means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions and the Statement of Work, including any amendments to that documentation from time to time; and
“Third Party Materials” means the works and/or materials comprised in the Deliverables (excluding the Client Materials), the Intellectual Property Rights in which are owned by a third party[, and which are specified in Section 4 of the Statement of Work or which the parties agree in writing shall be incorporated into the Deliverables].
2.1 This document was created using a template from SEQ Legal (https://seqlegal.com).
You must retain the above credit. Use of this document without the credit is an infringement of copyright. However, you can purchase from us an equivalent document that does not include the credit.
3.1 The Contract shall come into force upon the Effective Date.
3.2 The Contract shall continue in force [indefinitely] OR [until:
(a) all the Services have been completed;
(b) all the Deliverables have been delivered; and
(c) all the Charges have been paid in cleared funds,
upon which it will terminate automatically], subject to termination in accordance with Clause 11.
3.3 Unless the parties expressly agree otherwise in writing, each Statement of Work shall create a distinct contract under these Terms and Conditions.
4.1 The Consultant shall provide the Services to the Client in accordance with these Terms and Conditions.
4.2 The Consultant shall provide the Services [with reasonable skill and care] OR [in accordance with the standards of skill and care reasonably expected from a leading service provider in the Consultant’s industry] OR [[specify standard(s)]].
5.1 The Consultant shall deliver the Deliverables to the Client.
5.2 The Client must promptly, following receipt of a written request from the Consultant to do so, provide written feedback to the Consultant concerning the Consultant’s proposals, plans, designs and/or preparatory materials relating to the Deliverables and made available to the Client with that written request.
5.3 The Consultant shall [ensure] OR [use its best endeavours to ensure] OR [use reasonable endeavours to ensure] that the Deliverables are delivered to the Client in accordance with the timetable set out in Section 5 of the Statement of Work.
5.4 The Consultant warrants to the Client that:
(a) [the Deliverables will conform with the requirements of Section 4 of the Statement of Work[ as at the date of delivery of the Deliverables]];
(b) [the Deliverables will be free from [material defects]]; and
(c) [[the Deliverables] OR [the Deliverables when used by the Client in accordance with these Terms and Conditions] will not infringe the Intellectual Property Rights[ or other legal rights] of any person[, and will not breach [the provisions of any law, statute or regulation],] in [any jurisdiction and under any applicable law]].
[additional list items]
6.1 The Consultant hereby grants to the Client [a non-exclusive, worldwide, perpetual and irrevocable] licence to [copy, store, distribute, publish, adapt, edit and otherwise use] the Deliverables[ (excluding [the Third Party Materials and the Client Materials])][ for the following purposes: [identify purposes]].
7.1 The Client shall pay the Charges to the Consultant in accordance with these Terms and Conditions.
7.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated [inclusive of any applicable value added taxes] OR [exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Client to the Consultant].
8.1 The Consultant shall issue invoices for the Charges to the Client [from time to time during the Term] OR [on or after the invoicing dates set out in Section 7 of the Statement of Work] OR [at any time after the relevant Services have been delivered to the Client] OR [in advance of the delivery of the relevant Services to the Client].
8.2 The Client must pay the Charges to the Consultant within the period of [30 days] following [the issue of an invoice in accordance with this Clause 8] OR [the receipt of an invoice issued in accordance with this Clause 8].
8.3 The Client must pay the Charges by [debit card, credit card, direct debit, bank transfer or cheque] (using such payment details as are notified by the Consultant to the Client from time to time).
8.4 If the Client does not pay any amount properly due to the Consultant under these Terms and Conditions, the Consultant may:
(a) charge the Client interest on the overdue amount at the rate of [8% per annum above the Bank of England base rate from time to time] (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
9.1 The Consultant warrants to the Client that:
(a) [the Consultant has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions];
(b) [the Consultant will comply with all applicable legal and regulatory requirements applying to the exercise of the Consultant’s rights and the fulfilment of the Consultant’s obligations under these Terms and Conditions]; and
(c) [the Consultant has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions].
[additional list items]
9.2 The Client warrants to the Consultant that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.
9.3 All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions and the applicable Statement of Work. Subject to Clause 10.1, no other warranties or representations will be implied into the Contract and no other warranties or representations relating to the subject matter of the Contract will be implied into any other contract.
10.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
10.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 10.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
10.3 [Neither party shall be liable to the other party] OR [The Consultant shall not be liable to the Client] OR [The Client shall not be liable to the Consultant] in respect of any loss of profits or anticipated savings.
10.4 [Neither party shall be liable to the other party] OR [The Consultant shall not be liable to the Client] OR [The Client shall not be liable to the Consultant] in respect of any loss of revenue or income.
10.5 [Neither party shall be liable to the other party] OR [The Consultant shall not be liable to the Client] OR [The Client shall not be liable to the Consultant] in respect of any loss of use or production.
10.6 [Neither party shall be liable to the other party] OR [The Consultant shall not be liable to the Client] OR [The Client shall not be liable to the Consultant] in respect of any loss of business, contracts or opportunities.
10.7 [Neither party shall be liable to the other party] OR [The Consultant shall not be liable to the Client] OR [The Client shall not be liable to the Consultant] in respect of any loss or corruption of any data, database or software.
10.8 [Neither party shall be liable to the other party] OR [The Consultant shall not be liable to the Client] OR [The Client shall not be liable to the Consultant] in respect of any special, indirect or consequential loss or damage.
11.1 The Consultant may terminate the Contract by giving to the Client [not less than 30 days’] written notice of termination[, expiring [at the end of any [calendar month]] OR [after the end of the Minimum Term]]. The Client may terminate the Contract by giving to the Consultant [not less than 30 days’] written notice of termination[, expiring [at the end of any [calendar month]] OR [after the end of the Minimum Term]].
11.1 Either party may terminate the Contract by giving to the other party [not less than 30 days’] written notice of termination[, expiring [at the end of any [calendar month]] OR [after the end of the Minimum Term]].
11.2 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party commits any [breach] OR [material breach] of the Contract[, and the breach is not remediable];
(b) [the other party commits a [breach] OR [material breach] of the Contract, and the breach is remediable but the other party fails to remedy the breach within the period of [30 days] following the giving of a written notice to the other party requiring the breach to be remedied]; or
(c) [the other party persistently breaches the Contract (irrespective of whether such breaches collectively constitute a material breach)].
11.3 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract)]; or
(d) [if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.]
11.4 The Consultant may terminate the Contract immediately by giving written notice to the Client if:
(a) any amount due to be paid by the Client to the Consultant under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Consultant has given to the Client at least [30 days’] written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 11.4.
12.1 Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 6, 8.2, 8.4, 10, 12, 13.2 and 15].
12.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.
13.1 The Consultant is not an employee of the Client, but an independent contractor.
13.2 The termination of the Contract will not constitute unfair dismissal; nor will the Consultant be entitled to any compensation payments, redundancy payments or similar payments upon the termination of the Contract.
14.1 The Consultant must not subcontract any of its obligations under the Contract without the prior written consent of the Client[, providing that the Client must not unreasonably withhold or delay the giving of such consent].
14.1 Subject to any express restrictions elsewhere in these Terms and Conditions, the Consultant may subcontract any of its obligations under the Contract[, providing that the Consultant must give to the Client, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question].
14.2 The Consultant shall remain responsible to the Client for the performance of any subcontracted obligations.
15.1 No breach of any provision of the Contract shall be waived except with the express written consent of the party not in breach.
15.2 If any provision of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
15.3 The Contract may not be varied except by a written document signed by or on behalf of each of the parties.
15.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under these Terms and Conditions.
15.5 The Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Contract are not subject to the consent of any third party.
15.6 Subject to Clause 10.1, these Terms and Conditions shall constitute the entire agreement between the parties in relation to the subject matter of these Terms and Conditions, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
15.7 The Contract shall be governed by and construed in accordance with [English law].
15.8 The courts of [England] shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Contract.
STATEMENT OF WORK
The Client is [[individual name] of [address]] OR [[company name], a company incorporated in [England and Wales] (registration number [registration number]) having its registered office at [address]] OR [[partnership name], a partnership established under the laws of [England and Wales] having its principal place of business at [address]].
[Specify Minimum Term]
[Specify Client Materials]
[Insert financial provisions]
[Consultant contractual notices address details]
[Client contractual notices address details]
By signing below the parties have indicated their acceptance of this Statement of Work together with the terms and conditions attached to this Statement of Work[, providing that if there are no terms and conditions attached to this Statement of Work, the parties agree that this Statement of Work shall be governed by [the terms and conditions most recently agreed by the parties in writing]].
SIGNED BY [[individual name] on [……………], the Consultant] OR [[individual name] on [……………], duly authorised for and on behalf of the Consultant]:
SIGNED BY [[individual name] on [……………], the Client] OR [[individual name] on [……………], duly authorised for and on behalf of the Client]:
Free consultancy terms and conditions: drafting notes
This is a short-form consultancy T&Cs document, which can be used free of charge if you retain the SEQ Legal credit.
The template includes provisions relating to the services to be provided, the supply of deliverables, the licensing of rights in the deliverables to the client, the charges payable by the client, the status of the consultant, subcontracting, and much else besides.
The particulars of each contract should be set out in a distinct statement of work, and a skeleton for this document is provided with the template.
This T&Cs document contains the same substantive provisions as the free consultancy agreement document; only the form is different.
If you wish to use this document without the SEQ Legal credit, you can purchase a licence to do so; credit aside, the document is identical to the consultancy terms and conditions (basic) that we publish.
TERMS AND CONDITIONS
Clause 1: Definitions
Definition of Charges
Definition of Consultant
Definition of Deliverables
Definition of Effective Date
Definition of Minimum Term
Definition of Term
Definition of Third Party Materials
Clause 2: Credit
Clause: Free documents licensing warning
Optional element. Although you need to retain the credit, you should remove the inline copyright warning from this document before use.
Clause 3: Term
Clause 4: Services
Optional element. Must the services meet any specified standard(s)?
Clause 5: Deliverables
Clause 6: Licence
Clause 7: Charges
Clause 8: Payments
Clause 9: Warranties
Clause 10: Limitations and exclusions of liability
Contractual limitations and exclusions of liability are regulated and controlled by law, and the courts may rule that particular limitations and exclusions of liability in contracts are unenforceable.
The courts are particularly likely to intervene where a party is seeking to rely on a limitation or exclusion of liability in its standard terms and conditions, but will also sometimes intervene where a term has been individually negotiated.
The courts may be more likely to rule that provisions excluding liability, as opposed to those merely limiting liability, are unenforceable.
If there is a risk that any particular limitation or exclusion of liability will be found to be unenforceable by the courts, that provision should be drafted as an independent term, and be numbered separately from the other provisions.
It may improve the chances of a limitation or exclusion of liability being found to be enforceable if the party seeking to rely upon it specifically drew it to the attention of the other party before the contract was entered into.
Exclusions and limitations of liability in UK contracts are primarily regulated by the Unfair Contract Terms Act 1977 (“UCTA”).
Contracts regulated by UCTA cannot exclude or restrict a party’s liability for death or personal injury resulting from negligence (Section 2(1), UCTA).
Except insofar as the relevant term satisfies the requirements of reasonableness, such contracts cannot exclude or restrict liability: (i) for negligence (which includes a breach of an express or implied contractual obligation to take reasonable care or exercise reasonable skill) (Section 2(2), UCTA); or (ii) for misrepresentation (Section 3, Misrepresentation Act 1967).
In addition, if a contract is regulated by UCTA, and one of the parties is dealing on the other’s written standard terms of business, then except insofar as the relevant contractual term satisfies the requirements of reasonableness the other party cannot: (i) exclude or restrict his liability in respect of a breach of contract; or (ii) claim to be entitled to render a contractual performance substantially different from that which was reasonably expected of him; or (iii) claim to be entitled, in respect of the whole or any part of his contractual obligation, to render no contractual performance at all (see Section 3, UCTA).
UCTA includes various other restrictions, particularly in the case of contracts for the sale of goods and contracts under which possession or ownership of goods passes.
If you wish to try to limit/exclude for liability in respect of reckless, deliberate, personal and/or repudiatory breaches of contract, you should specify this in relation to the relevant provision (for example, using the following wording: “The limitations and exclusions of liability in this Clause [number] will apply whether or not the liability in question arises out of any reckless, deliberate, personal and/or repudiatory conduct or breach of contract”). In many circumstances, however, the courts will find these types of limitations and exclusions to be unenforceable.
Somewhat different rules apply to limitations of liability in contracts with consumers, and these provisions should not be used in relation to such contracts.
These guidance notes provide a very incomplete and basic overview of a complex subject. Accordingly, you should take legal advice if you may wish to rely upon a limitation or exclusion of liability.
Do not delete this provision (except upon legal advice). Without this provision, the specific limitations and exclusions of liability in the document are more likely to be unenforceable.
“Consequential loss” has a special meaning in English law: it means any loss that, whilst not arising naturally from the breach, was specifically in the contemplation of the parties when the contract was made.
Clause 11: Termination
Clause 13: Status of Consultant
Clause 14: Subcontracting
Clause 15: General
This is intended to prevent, for example, one party wrongfully claiming that a term of the contract was changed in a telephone call.
This provision is designed to exclude any rights a third party may have under the Contracts (Rights of Third Parties) Act 1999.
This template has been drafted to work in the English law context. If you plan to change the governing law, you should have the document reviewed by someone with expertise in the law of the relevant jurisdiction.
As a practical matter, it makes sense for the courts with expertise in the relevant law to have the right to adjudicate disputes. Where one of the parties is outside England (or at least the UK), you may want to grant the courts of their home jurisdiction the right to adjudicate disputes, as this could ease enforcement in some circumstances.
STATEMENT OF WORK
Section 1: Client details
Section 2: Minimum Term
Section 3: Specification of Services
Section 4: Specification of Deliverables
Section 5: Timetable
Section 6: Client Materials
Section 7: Financial provisions
Section 8: Contractual notices
Subsection: Prompt for first party contractual notice address details
Subsection: Prompt for second party contractual notice address details
Section: Execution of statement of work (individuals, companies or partnerships)
Subsection: Execution of contract by first party (individual, company or partnership)
Subsection: Execution of contract by second party (individual, company or partnership)