Winterwell Associates Ltd: Standard Terms and Conditions
Winterwell Associates Ltd
Terms and Conditions of Consultancy
Scope: This document defines the general terms that apply to all consultancy, supply and retainer agreements and contracts involving Winterwell Associates Ltd. It also provides some additional explanation to clarify and amplify those terms. These clauses are incorporated into and form an integral part of the contract.
The contract comes first: where a clause in the contract explicitly conflicts with these general terms, the clause in the contract shall take precedence.
The parties: Winterwell Associates Ltd (hereinafter known as 'Winterwell') and the Client: 'the Client' is the party with whom a contract of supply exists.
2. Statement of Professional Standards
- Winterwell will conduct its business in accordance with the professional standards laid down by the Code of Professional Conduct (2002) of the Institute of Management Consultants (UK). In particular, we will abide by the principles regarding 'high standards of service to the Client' and 'independence, objectivity and integrity.'
All commitments with respect to the timing and scope of a project given to the Client by Winterwell - whether verbal or written - are made in good faith but are made necessarily in advance of knowing the full scope of the difficulty that may pertain to performance on specific points (for example, un-foreseeable difficulty in obtaining certain information requested by the Client). For this reason, whilst Winterwell agrees to use its best endeavours to fulfil such commitments to clients on the timing and the scope of consultancy and other projects we cannot guarantee performance in either respect.
Where the contract specifies that our service will be provided by a named individual, Winterwell agrees to take all reasonable steps to ensure that these persons will remain on these assignments for the full length of the contract.
Winterwell further agrees to obtain the Client's agreement to any significant substitution of personnel that is necessitated by unforeseen circumstances - such as staff sickness.
Where the contract specifies target response times or resolution times, these are non-binding targets.
Winterwell & the Client (the Receiver) agree to hold all information provided by the other party (the Provider) as confidential where the Provider so specifies, save where such information is known to the Receiver already, or exists already in the public domain, until, either the information enters the public domain, or the Receiver is given the same information by a third party, or is released from its confidentiality requirement by the Provider.
The following information is confidential by default: the Client's finances, their customers, business-goals, & operational details; Winterwell's proposal(s), fees, and other projects.
Data supplied by the Client to Winterwell for the purposes of the contract shall remain the property of the Client. The Client may at any point request the deletion of any such data.
5. Materials Supplied
Winterwell agrees to handle any materials, such as equipment or documents, supplied by the Client to Winterwell in a responsible fashion and return them to the Client upon request. However, Winterwell will not be responsible for any wear or tear occasioned nor for any loss or theft that might occur. All such material is supplied at the Client's own risk and no liability for any financial restitution for any direct or indirect value is accepted nor any consequential loss.
Where materials are required from the Client in order to fulfil the contract, Winterwell shall not be liable for any delays or extra expenses resulting from a failure by the Client to provide the required materials in a timely manner. Scheduling issues mean that such delays may be longer than the original delay in supply.
Where meetings with the client or with third parties are needed as part of the project, these shall be considered required materials and governed by these clauses.
In the event that required materials are not supplied by the Client in a timely manner, Winterwell may use substitute materials and adjust the specification as necessary in order to fulfil the contract as far as is reasonably possible, provided Winterwell acts in good faith on the Client's behalf and keeps the Client informed in advance. If such action results in extra expenses (not to exceed half the value of the original contract), the Client shall pay these.
If required materials are not supplied by the Client in a timely manner, Winterwell may choose to terminate the contract. This will only be done after first attempting to resolve the issue with the client. In this case the Client shall be liable for cancellation fees (as set out in clause 12) as if the Client had cancelled.
6. Conflict of Interest
Winterwell will decline any third party contract that would create a conflict of interest with the Client's previously agreed instructions. Where such a conflict only becomes apparent after our agreement to act for the third party we will invoke Clauses 6.2 and 6.3 in respect of their contract.
Winterwell warrants to bring to the attention of the Client any conflict of interest that may arise between the Client's instructions and the terms under which Winterwell is acting, or has acted, for another client at the time that it becomes apparent to Winterwell officers (where such third party instructions were received prior to the Client's instructions). The Client will then be free to vary his contract with Winterwell in the light of this revelation to the extent that it is affected by the potential conflict of interest. Such a declaration by Winterwell will be general in nature, so as not to prejudice the confidentiality with the third party.
Winterwell will have the right to resign its contract in such circumstances if, in its judgement, it is unable to proceed with the contract and maintain its fiduciary duty. Winterwell shall receive payment for all work delivered and expenses incurred upto the date of disclosure, including all due contract stage payments but not including any entitlement to pro-rata payment for any amounts payable on completion such as performance fees or terminal payments.
7. Intellectual Property (IP)
Note: We will normally discuss IP issues with you, and agree an approach which works well for both parties. Below is our default policy for handling IP, where you get a license and we keep some rights for reuse in other projects. By doing this we can often lower the cost you pay. If this policy is not appropriate for your project, let us know. We're experienced at finding mutually compatible IP solutions.
Intellectual Property (IP) includes, but is not limited to, software (both binary and source code), data, databases, analysis, reports, supplier and technology evaluations, drawings, charts, and graphs held both electronically and on paper. It also includes audio or videotaping of any presentations made by Winterwell, and all materials used to support Winterwell activities.
"Third Party IP" refers to IP that is not owned by either Winterwell or the Client.
"Background IP" refers to IP that is created outside of the project although it may be used within the project, or to IP which is not part of any project deliverable. Background IP is defined to also include enhancements and bug-fixes to background IP.
"Foreground IP" refers to IP created as part of a deliverable wholly commissioned by the client, except for Background IP.
"Client IP" refers to IP created by or belonging to the Client.
Client IP shall remain the property of the Client and all rights are reserved by them. Winterwell may utilise Client IP in fulfilling the contract but not outside of it without written permission from the Client.
Winterwell may utilise Background IP and Third Party IP in fulfilling the contract, provided this is used in good faith as the most appropriate way of fulfilling the contract. When a client contracts with Winterwell to provide consultancy services, this does not transfer any Background IP or Third Party IP to the client. Notwithstanding any payments received from the Client, all Background IP shall remain the property of Winterwell and all rights are reserved, except for where Winterwell has explicitly stated otherwise in writing.
Foreground IP shall become the property of the Client once all fees due to Winterwell have been paid in full including any license fees.
The Client grants a permanent royalty free licence to Winterwell to use, modify, copy, sell and distribute Foreground IP provided by Winterwell as a project deliverable.
Where Winterwell's Background IP is a requirement for use of the Foreground IP, Winterwell grants a licence to the Client to use, copy and distribute such Background under the following restrictions:
- All fees due to Winterwell must be paid in full, including any license
fees agreed between Winterwell and the Client.
- This license does not prejudice Winterwell's position under clause 7.2.
- This license does not include any rights to IP that is not essential for the use of the Foreground IP.
- This license does not include any rights to source code if compiled code is available.
- This license does not include any rights to IP created after the project.
In particular (but not exclusively) this license does not grant the Client
any rights to enhancements.
- This license only covers the case where the Foreground IP is used, copied or distributed for the purposes set out in the contract. It does not include any rights to use any IP for any other purposes.
- The Client will cooperate in investigating any suspected breach of this license.
- Should the Client breach this license, it may be revoked at Winterwell's discretion, and the Client accepts liability for the potential damages (including loss of potential earnings) resulting from the breach.
- If the IP is copied or distributed, the Client must pass on these or stronger conditions, including this condition, to any third party.
Where data is collected from the Client's customers by Winterwell acting on the Client's behalf, such data shall belong to the Client. Winterwell may not use this data for any purpose without the Client's consent. The Client may request copies of this customer data, which Winterwell will deliver within a reasonable period not exceeding one month.
Winterwell will act in good faith and using reasonable skill and care to avoid infringing any Third Party IP rights.
Winterwell will act in good faith and using reasonable skill and care to only use Third Party IP with commercially appropriate licenses unless instructed otherwise by the Client.
8. Time Basis for Contracts
A Day is defined to be 8 working hours which includes 1 hour break time. Activity is normally charged by the hour (based pro-rata on the day-rate), rounded up to the nearest quarter-hour.
Winterwell personnel may work on a flexitime basis.
Activity time includes all time spent acting for the Client, including all office, administrative, preparatory, production and telephone time in addition to travel, meetings and external events.
Activity logs will be provided to clients upon reasonable request.
Winterwell contracts with clients stipulate whether they are 'fixed price' (ie all expenses will be included within the pre-negotiated fee and not charged supplementary to the Client) or 'fee plus expenses' - in which case expenses are levied in addition to our agreed fee. If the contract does not specifiy a fixed price, then 'fee plus expenses' is the default. This section provides clarification of our standard policy on what expenses will be claimed and how.
IT expenses, such as the use of third party computers or software, are waived unless otherwise agreed. Where Winterwell quote a price or cost estimate for a task, and the client agrees, this means that such expense is charged to the Client.
In the case of 'fee plus expenses' contracts, Winterwell is hereby authorised to incur, without prior notice to the Client, reasonable travel expenses when appropriate in performing the Client's instructions. The Client agrees to reimburse these in addition to the contract fee. Reasonable travel expenses are those generally applied within international corporations for management-level staff. They vary to reflect the different standards applied to business travel in various parts of the world. For illustrative purposes, they include, economy (or 'coach') class flights, accommodation and incidental costs within a hotel, meals whilst travelling on behalf of the Client, rail travel (economy class in the UK), taxis and car-hire costs as appropriate, entertainment costs for third-party contacts made on behalf of the Client commensurate with obtaining the maximum value-for-money from the contact for the Client. Where appropriate to the circumstances, we reserve the right to vary the class of travel to meet the business need.
Invoices for expenses will normally be presented monthly. Winterwell may, at its discretion, choose to present invoices more or less frequently, to reflect the level of expense incurred.
Expenses incurred in foreign currency will be billed at the actual exchange rate obtained (gross rates, including commission, handling charges etc, will be used). Where this rate is not immediately available, such as for some credit card charges, then either the last rate obtained or an estimated rate will be used at Winterwell's discretion.
Allowable expenses are charged to the Client at the gross invoice value. Expenses will be charged inclusive of any sales taxes (or similar fiscal levies) where these are payable by Winterwell, whether or not we may be able to subsequently reclaim any part of these. If such taxes can be reclaimed, the Client shall be responsible for doing so (Winterwell will provide reasonable assistance, e.g. supplying supporting documents), and shall receive the money reclaimed. VAT (and any other relevant tax) will be added to the invoice amount in line with current government legislation at the rate ruling at the time of invoice.
Any additional charge for incidental expenses such as telephone or presentation materials would normally be waived, unless otherwise agreed or where such costs represent a significant proportion of the project value; such basis to be agreed by the Client in advance.
Winterwell employees are required to obtain receipts for expenses wherever practical. These are retained by Winterwell and are available for inspection by the Client upon his request.
The remuneration structure agreed between the Client and Winterwell may be based on a number of methods. These are a 'retainer', a 'fixed fee', a 'time based rate' (e.g. day rate, also known as a per diem fee), 'a regular fee', and a 'success fee'.
The Client agrees to pay Winterwell according to the fee structure outlined in Winterwell's project proposal, as amended by subsequent written correspondence.
'Retainer fee' is defined as a payment made to secure Winterwell's services for a fixed period of time. The retainer shall be automatically renewed except where either party gives the appropriate notice or is in breach of the contract.
Fixed fee contracts cover the performance of an agreed service as outlined in our Project Proposal for an agreed remuneration. Extra time incurred by Winterwell in the performance of the 'fixed fee' component of a contract shall be borne by Winterwell. The fee shall be fixed in the currency in which the quotation is made, regardless of exchange rate movement.
'Regular fee' covers weekly, monthly, quarterly or annual payments. Where a regular fee is agreed, this fee is set by default for a period of one year. After this period, Winterwell may adjust the regular fee at their disgression by providing one month's notice. The Client will be entitled to cancel their contract in response to a fee rise by providing notice within one month.
Day-rates shall be charged in accordance with the criteria defined in Clause 8.
11. Use of Sub-Contractors
- Winterwell may use sub-contractors to provide services to the Client. If sub-contractors are used, they shall be deemed to be Winterwell personnel for contractual purposes.
12. Cancellation Rights
The contract shall be regarded as a whole unless there are break points within it agreed in advance or it is divided into stages or where it is subject to periodic renewal. Where no such division is agreed in advance and stipulated in the contract, the Client shall be liable for the total value of the contract - including all expenses incurred to the date of cancellation.
If a consultancy contract is expected to be for an extended period or to have phases contingent upon the results of earlier work, it will normally be divided into stages or subject to periodic renewal. Where such divisions apply, either party may choose not to continue the contract into the next phase without penalty (unless otherwise provided in the specific contract). Where such cancellation is by Winterwell, the Client shall be entitled to a refund of that proportion of any advance of fees that relate to the remaining part of the contract.
Annually renewed service contracts, licenses and retainers shall be renewed automatically for a further 12 months unless either party gives the other the minimum notice of termination set out in the individual contract, or 90 days notice in the absence of such a provision.
Where the Client cancels, the Client shall pay for all stages of the contract that have been commenced. Should he choose not to have work completed on the stage underway prior to cancellation he remains liable for payment in full of this stage. The Client also agrees to pay all expenses incurred, whether or not these relate to the stages cancelled or to any prior stages.
Where performance under the contract of Winterwell's service is contingent upon the availability of a specific Winterwell employee or Associate, the Client shall have the right to cancel the contract if the person or persons essential to the timely completion of the project is unable to carry out the agreed function within a period of sixty days of the agreed deadlines due to ill health or other reason. In such circumstances the Client shall not be liable for any further payment of fees but Winterwell shall be entitled to retain payments already made in lieu of work carried out to date and to recover all reasonable expenses incurred up to the date of cancellation.
Where the contract specifies a deliverable, and Winterwell are more than one calendar month late in providing that a deliverable, and this is not due to action or inaction by the Client, or ill health of a key Winterwell employee or Associate, or force majeure, then the Client shall have the right to cancel the contract. In such circumstances the Client shall not be liable for any further payment of fees but Winterwell shall be entitled to retain payments already made in lieu of work carried out to date and to recover all reasonable expenses incurred up to the date of cancellation. The Client is not entitled to compensation for late deliverables.
Specific terms apply to cancellation in the event of a conflict of interest, client insolvency, illegal activities or force majeure.
In the event of cancellation, expenses incurred shall include all monies spent on behalf of the Client plus all spending irrevocably committed to on the Client's behalf by Winterwell up to the date of cancellation plus any cancellation charges that may be levied by third party suppliers as a result of the contract cancellation.
13. Payment Terms
The Client agrees to be bound by the payment terms stipulated in the contract.
If the Client fails to make any payment without giving notification of due cause, then Winterwell may withhold delivery of any deliverables and will not be responsible for any inconvenience, loss or damage so caused.
The currency of payment will be stipulated in the Client contract. Both parties agree to accept this in respect of all invoices and payments.
Unless otherwise explicitly provided by an individual contract, no account will be taken of any exchange rate fluctuations during the life of the contract. Each party accepts as their own responsibility the variation, whether favourable or unfavourable, that they may see in local currency terms in respect of the contract.
The Client's responsibility is for payment to Winterwell of the full amount agreed. The Client agrees to adjust all payments to take into account any charges levied (such as may be made by the transferring bank), such that the full amount is received by Winterwell. The Client accepts that Winterwell shall be entitled to recover all deducted amounts.
The Client agrees to make payment by the method stipulated in the contract to the location stipulated in the contract. Winterwell shall be entitled to recover any costs caused by any variations not agreed in advance.
The Client agrees to pay all government taxes and duties, regardless of origin, that may apply to all payments to Winterwell. The Client further agrees that, should there be a change in type or value during the life of the contract, whether favourable or unfavourable to the Client, he will be responsible for them in totality. Each party will be responsible for recovering his own entitlements in respect of pre-payments (for example in respect of VAT or sales tax).
In the absence of any other agreed payment terms, all invoices shall be payable in full within one calendar month of the date of the invoice.
14. Stage Payments
Most contracts that extend across several months provide for stage payments. These are negotiated in advance as part of the normal discussions prior to agreement of the contract.
Winterwell shall have the right to suspend all work and services on behalf of the Client should these payments not be made on time to the agreed schedule. Any adverse impact that this suspension has upon the completion schedule or the quality of the product for the Client shall be at the Client's sole responsibility. This right applies not just to the contract in arrears but also any other contracts with the Client, whether or not payments against these contracts are in arrears.
In particular, clients should note that where it has been agreed that payment of all or part of a contract is to be made 'in advance' Winterwell has the right not to commence work until payment is received.
15. Acceptance of Deliverables
Where a contract specifies deliverables, the Client shall have two weeks from delivery in which to raise any objections with the deliverable. If no objections have been raised within this period, the deliverable shall be considered to have been accepted. Deliverables may be accepted sooner if the Client states so in writing, or authorises work depending upon the deliverable without first raising an objection.
Where a deliverable involves software, and an objection is raised regarding a software bug (i.e. that the software behaves incorrectly, with reference to the specification), then the client shall provide such information and access to systems as Winterwell may reasonably request to investigate and fix the bug for the objection to be counted as valid.
Where a deliverable involves meeting with the Client or third parties, the Client shall be responsible for arranging this meeting in a timely manner. If the Client is unable to arrange the meeting within a reasonable time-frame, it shall be dropped from the deliverables without otherwise changing the contract.
Where the specification for a deliverable is ambiguous, then Winterwell, acting in good faith will refine the specification and decide what features and performance characteristics are in scope. This is done in accordance with the agile development approach in order to deliver the best product in a timely fashion while avoiding extra upfront costs.
Any unresolved objections with a deliverable shall be resolved through arbitration.
16. Client systems & accounts are the Client's responsibility
Unless explicitly agreed otherwise, Winterwell are not responsible for Setup Work, including:
- (a) Installing or deploying software.
- (b) Resolving any configuration or setup issues relating to using a deliverable.
- (c) Any issues regarding a Client's accounts with 3rd party services.
If Winterwell are asked to perform Setup Work, this will be done as support and charged accordingly.
17. Liability for Work
Winterwell provides information, advice and services in good faith based upon information available at the time. We do not warrant the accuracy of information provided. It is for the Client to decide whether or not to accept our advice in making his own decisions. We advise that any data critical to a decision should be independently verified prior to being acted upon.
It is the nature of our work that performance of products and services may vary, may not be reliable, and software may contain bugs. Except where required by law, Winterwell accepts no liability for the performance of its services or products whether direct or indirect.
- Unless otherwise agreed, Winterwell shall have the right to publicise the fact that the Client is, or was, a client, and to utilise the Client's name in publicity materials in this respect.
19. Recruitment of Personnel
- Each Party undertakes not to attempt to solicit or procure the services of staff employed by the other party who are involved in the performance of this contract during the course of this contract and for a period of twelve months thereafter without the written permission of the other party.
Where Winterwell provide hosting for computer services, this is done under the following basis:
Winterwell are not responsible for any hardware or network infrastructure which is not supplied by Winterwell.
Quality of service may vary, for example depending on traffic.
Hosting costs may be based on expected usage levels. Extra costs may apply if a service is highly used.
Winterwell do not provide guaranteed uptime or other hosting metrics unless explicitly agreed.
Winterwell shall have the right to discontinue immediately all work and services for the Client should he or another person petition for his bankruptcy, or he be declared insolvent, or he be placed into administrative receivership or be generally unable to pay his bills as they become due.
In these circumstances Winterwell will also be entitled to have a general lien on all goods and property of the Client that is within Winterwell's possession and, following 14 days notice to dispose of such goods and property in such manner and at such prices as Winterwell thinks fit and to apply the proceeds towards such debts.
In addition, Winterwell retains all rights to seek redress for unpaid fees.
If Winterwell should enter liquidation or be placed into administrative receivership or be generally unable to fulfil a contract with the Client, the Client shall have the right to use such intellectual property of Winterwell as is necessary to fulfil the contract, provided this does not conflict with other contracts which Winterwell has entered into.
22. Illegal activities
Winterwell will not carry out any illegal activities on behalf of the Client. Any requirement in this respect will nullify this contract in respect of performance and Winterwell will be entitled to recover in full its fee and expenses.
The Client agrees not to make any illegal use of any information provided by Winterwell.
Neither party shall be liable to the other for any indirect, special or consequential damages.
23. Limitation of liability
- Without prejudice to other more restrictive limitations elsewhere in this contract, liability on the part of Winterwell is limited to the value of the contract with the Client or the value of the loss whichever is the smaller.
24. Force Majeure
Whilst Winterwell agrees to use its best endeavours to perform the contract for the Client as specified, Winterwell will not be responsible for any delays or failure to complete the contract which are beyond Winterwell's control and which could not have been reasonably predicted.
Where the delay caused by third party events outside either party's control or influence causes such delay that the purpose of the contract is wholly or significantly destroyed, either party shall be entitled in these circumstances to cancel the remaining portion of the contract. In such circumstances the Client will not make any further payments of fees but there will be no refund of payments already made (including any payments for that part of the contract that remains unfulfilled) and Winterwell will be entitled to recover any costs already incurred.
Either party shall notify the other parties within 30 days, of:
- A change of its name, registered office, contact address or other contact details.
- Any material change in its circumstances that may affect the validity or operation of agreements between the parties.
Notices or other communications may be given:
- Delivered by hand or by courier to a senior office of the named party (or the named party, if they are an individual). Effective at the time of delivery.
- Or despatched by first class recorded delivery (airmail if overseas) to a valid current address for the named party. Effective 2 business days after posting (6 days if sent by airmail).
- Or sent by email to a senior officer of the named party (or the named party, if they are an individual). Effective only upon receipt of a reply indicating successful transmission.
- Any disputes or claims shall be governed by and construed in accordance with Scottish law and the jurisdiction of the Scottish courts.
All unresolved disputes between the Parties shall be referred to arbitration before a single arbitrator to be appointed, in default of agreement otherwise, by the President for the time being of the Institute of Management Consultants.
Both parties also agree that all disputes arising with respect to this contract will be arbitrated upon within the Scottish legal system.
The failure by either party to enforce at any time or for any period any one or more of the terms and conditions of this agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this agreement.
If a provision of this agreement is declared too broad to permit enforcement to its full extent, the parties agree that such provision shall be enforced to the maximum extent permitted by law, and that such provision shall be deemed to be varied accordingly.
29. Integral part of contract
The Client, in agreeing the contract, accepts that all of these terms have been read, understood and agreed.
The Client agrees that all of the above terms form part of the contract between Winterwell and the Client, except where explicitly excluded or modified by the contract.