PCG Master Consultancy Services Agreement

Master Consultancy Services Agreement(May 2007 revision) This Master Consultancy Services Agreement is made between: A [PCG member company/LLP name] a [company][limited liability partnership] incorporated in [England & Wales] (registration number [no]) whose registered office and trading address is at [address] (‘the Consultancy’), and34 [Client company name] a company incorporated in [England & Wales] (registration number [no]) whose registered office and trading address is at [address] (‘the Client’). B The Consultancy agrees to supply and the Client agrees to engage the Consultancy’s Services on the following terms: 1. 1.1 Nature of this Agreement This is a Master Agreement, and defines the terms under which the Consultancy will undertake such Services for the Client as may be agreed between the parties from time to time. Entering this Agreement does not of itself oblige the Client to offer any work to the Consultancy nor for the Consultancy to provide or the Client to accept or pay for any particular consultancy services. Neither party wishes to create or imply any mutuality of obligation between themselves either in the course of or between any performance of the services or during any notice period. Where it is agreed between the parties that any Services are to be provided, a schedule in the form annexed to this Agreement setting out the nature of the Services, the charging basis, and any other material terms (a ‘Schedule’) will be produced by the Consultancy and provided to the Client. On receipt of a Schedule 1.3.1 1.3.2 1.4 if the Client accepts its terms the Client will promptly sign and return one copy to the Consultancy if the Client does not accept its terms the Client will promptly advise the Consultancy. 1.2 1.3 Upon a Schedule being signed by both parties, it will become a contract binding on the parties. 3 In the case of a sole trader, change this to: [PCG individual member name] trading as [trading name], of [trading address] (‘the Consultancy’), and A In the case of a partnership (not an LLP), change this to: A 4 [PCG partnership member firm name] (a firm), of [trading address] (‘the Consultancy’), and ‘the Consultancy’ – can be globally replaced with an abbreviated name for the Consultancy; in the case of a sole trader, it is suggested that the term be globally replaced with ‘the Consultant’, and (if desired) the terms ‘it’ and ‘its’, where they relate to a sole trader may be replaced by (s)he and his/her, as the case may be. Ref A05-10. Copyright © PCG Ltd 2005-07; licensed for use provided source acknowledged, all other rights reserved Produced by Egos Consultancy Ltd www.egos.co.uk for PCG page 1 The Consultancy reserves the right to decline to provide any advice and assistance outside the scope of the Services as specified in Schedules agreed between the parties. Copyright and Intellectual Property Rights ‘Deliverable’ means a work produced by the Consultancy in the course of Services for delivery to the Client. even if the Consultancy may previously have provided such additional advice and assistance. and the Client is and remains at liberty to engage services (including similar services) from third parties.1 3.1 Ref A05-10.7 2. Subject thereto.2 4. Save to the extent expressly provided. Employer's Liability.1 2. all other rights reserved Produced by Egos Consultancy Ltd www. Where the Consultancy’s charges are on a time and materials basis. Charges and Payment Estimates are subject to change if based on incorrect information provided by the Client. all rights in any Deliverable pass to the Client upon payment of all fees due to the Consultancy which relate to that Deliverable.2 2. or where any individual who will provide Services is named in a Schedule. This Agreement is not exclusive. Services The Consultancy will provide Services as agreed from time to time in Schedules. No such change will become effective until agreed in writing between the parties. Where pre-existing works are incorporated in any Deliverable. In particular. and that notwithstanding its wording. and Public Liability insurance. and with all proper skill and care.co.6 1. The Consultancy is responsible for maintaining reasonable continuity in personnel providing Services on its behalf. Copyright © PCG Ltd 2005-07.3 2. no additional charge will be made for any handover period. 2. or if any equipment required to be provided by the Client fails to operate correctly (save where the engagement itself is for the repair thereof).uk for PCG page 2 . 3. the Consultancy will not be subject to direction or control. or if any specified dependencies / facilities are not available on time. Either party may request change to the nature or scope of Services covered by a Schedule. It is the Consultancy’s responsibility to maintain adequate Professional Indemnity. except where both parties expressly agree in writing. Any such request shall be sufficiently detailed to enable the other party to assess the impact of the proposed change. The Consultancy will indemnify the Client against infringement of third party rights by a Deliverable. the Client has non-exclusive irrevocable world-wide royalty free licence to use modify and distribute such pre-existing works.4 3. but reserves the right in its sole discretion to make changes from time to time. It is the Client’s responsibility to afford the Consultancy with such access and staff cooperation as the Consultancy may reasonably require for the proper performance of any Services. but only as part of the Deliverable.egos. it is the Consultancy’s responsibility to ensure that the relevant skills and experience of any replacement personnel remain commensurate with the fee rates charged. and the Consultancy remains responsible for Services performed by any individual on its behalf. 1. 4. so far as is reasonably practicable within any agreed timescale. all conditions. and the Consultancy will execute a formal assignment thereof on request by the Client. it is agreed that any Purchase Order or other such document from the Client is intended for the Client’s own administrative purposes only. and itself accepts the responsibility for the proper provision of Services.5 A contract formed on the basis of a Schedule referencing these terms is governed only by these terms and by no others. warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law. neither a Purchase Order nor its content will have any legal effect.1. provided that the Client notifies the Consultancy of any relevant third party rights promptly on such rights becoming known to or suspected by the Client. the Consultancy is and remains at liberty to also provide services to third parties. As an independent professional. licensed for use provided source acknowledged. all other rights in the pre-existing works are reserved. by immediate written notice.uk for PCG page 3 . Ref A05-10. 8. whether such claims relate to employment. tax. Where applicable. Liability 4. or otherwise. licensed for use provided source acknowledged.egos.co. Unless otherwise specified. Force Majeure If either party is obstructed in performing any of its obligations under a Schedule by an event outside its reasonable control. Neither party excludes or limits liability for death or personal injury.3 7. the Consultancy is solely responsible for complying with the requirements of the Working Time Regulations 1998 (as amended) and any other legislation relating to workers. The Consultancy is responsible for its own tax affairs and national insurance contributions. and any agreed timescale will be automatically extended. national insurance. The Consultancy is not liable for any loss or damage in excess of the higher of (a) ₤100. revenue. Any liability or remedy for innocent or negligent misrepresentation is expressly excluded. whether such claims relate to employment. Each party will indemnify the other against any claims brought by or in relation to its own employees. loss of profit. either party may terminate that Schedule by immediate written notice. by immediate written notice. and will indemnify the Client against any liability in relation thereto. then performance to the extent obstructed is suspended for so long as the obstruction continues. where payment is on a time and materials basis. Copyright © PCG Ltd 2005-07. all other rights reserved Produced by Egos Consultancy Ltd www. If any of the Consultancy’s invoices becomes overdue. Neither party seconds its employees or any of them to the other. national insurance. plus VAT. or otherwise. Whilst performance is suspended and has been so for more than 7 days. the Consultancy may suspend provision of Services. 6.2 All sums due shall be invoiced and paid as specified in the applicable Schedule.2 6. Either party may terminate this Agreement and any current Schedule at any time if the other is in material breach or if the other becomes insolvent.1 6. Any rights or obligations of a continuing nature shall survive termination.4. 8. goodwill or anticipated savings. except where it may not lawfully exclude or limit liability. the Consultancy may also terminate this Agreement and any current Schedule for material breach whilst any payment is more than 7 days overdue. and it is not the intention of either to create or allow to arise any employee/employer relationship between them. Each party solely retains all the responsibilities and rights of an employer towards and in relation to its own employees. the second to any staff the sole trader may have): The Client is a client of a business undertaking carried on by the Consultancy. replace the whole of 8. Each party will indemnify the other against any claims brought by or in relation to its own employees. nor is it the intention of either party to have or create an employee/employer relationship with the other.000. 6. tax. the Consultancy may invoice monthly. Neither party seconds its employees or any of them to the other. Termination Either party may terminate this Agreement at any time when there is no current Schedule.1 Staff obligations and third party rights Each party solely retains all the responsibilities and rights of an employer towards and in relation to its own employees. and (b) 125% of the total sums payable under a Schedule.3 5.1 with the following two paragraphs (the first is intended to relate to the sole trader himself. The Client will pay the Consultancy’s invoices within 30 days. Each party expressly excludes liability for consequential loss or damage. business.5 5 In the case of a sole trader. . or otherwise solicit any person who during the previous 6 months was an employee or sub-contractor of the other and with whom such party had material contact in connection with Services performed under any Schedule.. so far as the context permits: 8.. Notices Any notice to be given by either party to the other shall be in writing and may be sent by recorded delivery to the address of the other and shall be deemed to be served 2 days following the date of posting.. In this term..... 8..8. or (ii) information which becomes public knowledge without fault on the part of the receiver.. engage.3 8. its officers and employees. This obligation does not apply to (i) information known to the receiver before disclosure by the other party.. Signed by the parties’ authorised representatives as follows: On behalf of the Consultancy by [ ] (Authorised Signature) Title: ......4 9.4. No third party rights are intended to be conferred or created by this Agreement or any Schedule... until 6 months after that Schedule has terminated. Neither party may use or take advantage of any such confidential information without the discloser’s consent.. Confidentiality Unless the parties have signed a separate agreement containing more specific provisions in relation to confidentiality (in which case the provisions of such agreement will continue to apply in lieu of this clause). Law These terms are governed by the laws of England & Wales.2 in the case of an LLP or partnership...... or (iii) disclosures made to the extent required by some applicable legal or regulatory requirement...2 Neither party will employ. whose courts shall have sole jurisdiction in relation to all matters arising. each party will keep any confidential information disclosed by the other secret. licensed for use provided source acknowledged....Date: 6 6 In the case of a sole trader. its partners and employees in the case of a company... all other rights reserved Produced by Egos Consultancy Ltd www... even after the end of this Agreement.uk for PCG page 4 ... 10.. ‘employees’ includes.. Copyright © PCG Ltd 2005-07..co..... 11.... change this to: By [PCG individual member name] Date: Ref A05-10.............1 8.....egos..4. .. all other rights reserved Produced by Egos Consultancy Ltd www............uk for PCG page 5 ......... Copyright © PCG Ltd 2005-07..egos.............Date: Ref A05-10................On behalf of the Client by [ ] (Authorised Signature) Title: ...........co.. licensed for use provided source acknowledged... provided that such works are notified to the Consultancy by the Client [one month] after the Services are otherwise complete. and time estimates for each piece of work will be as agreed between the Consultancy and the Client from time to time. 2. licensed for use provided source acknowledged. all other rights reserved Produced by Egos Consultancy Ltd www. is particularly specialised. and the Client requires expert assistance in connection with a project for [general description of overall project of which the Services will form part.3 2. ‘telecommunications’.1 2. Progress reports will be provided as and when reasonably required. The Consultancy shall be responsible for correcting any defective Services at its own cost. Timetable Provision of the Services is expected to commence on [ ] and to be completed by [ ].10 3. and the Consultancy has agreed to provide the following Services to the Client.8 2. Ref A05-10. or where the Client’s equipment is itself the object of the Services]. Services [define] [identify any Deliverables] [specify any acceptance criteria] [specify any dependencies] [specify any facilities to be provided by Client] The Consultancy is responsible for providing its own reference materials.1 BEGIN OPTIONS OPTION A – TIME & MATERIALS 4. Copyright © PCG Ltd 2005-07. Any further specific details. 3. eg ‘banking’. and technical tools and developer libraries as necessary] [other than where use of the Client’s equipment is required for reasons of security.2 Charging basis The Consultancy will invoice monthly for the Services on a ‘time and materials’ basis at the rate of £[ ] per [hour][day][.7 2. and equipment [for use when Services are provided other than at the Client’s own premises] [for analysis and development.1 4. The Consultancy’s field of expertise includes [general statement of relevant core field of expertise].2 2.9 2.2 2.5 2.4 2.co.1 Introductory The general nature of the Client’s business is [general description. Travel [other than between the Consultancy’s offices and the Client’s premises at [location]] takes place during normal service hours.uk for PCG page 1 .Schedule no [] to Master Consultancy Agreement between [PCG member name] (‘the Consultancy’) and [client company name] (‘the Client’) dated [date of master agreement] (the ‘Master Agreement’) 1. 4. under the terms of the Master Agreement.egos.6 2. etc]. together with materials and expenses at cost]. administrative support. 1. [specify any equipment to be provided by Client] The Consultancy will liaise as necessary with [name]. prioritisation. 1. and project name if available]. on the following basis: 6. OPTIONAL ESTIMATE OF MATERIALS AND EXPENSES The Consultancy estimates the total cost of materials and expenses to be incurred in the performance of the Services at £[ ]. 6. or in stages – if in stages then specify when (by date.2 5.4. all other rights reserved Produced by Egos Consultancy Ltd www.2 4. OPTIONAL . 4.6 OPTIONAL CAP FOR FEES The total fees for the Services are capped at and will not exceed ₤[]. 5.2.co. Copyright © PCG Ltd 2005-07.4. or clearly identifiable milestone) and how much for each stage].4.1 6. OPTIONAL .2 Ref A05-10.7 5.egos. Hotels bills. including breakfast and dinner.4 4.3 OPTION B – FIXED PRICE 6. or during which the Services are not in fact provided.5 All air travel shall be Economy Class flights All rail travel shall be Second Class Rail Car journeys shall be charged at the rate of £[ ] per mile plus parking fees. on the following basis: 4. In the event that the Services require the Consultancy to travel to another site. OPTIONAL ESTIMATE OF CHARGEABLE TIME The Consultancy estimates the total chargeable time required to perform the Services at [ ] [hours][days]. other than for cause. licensed for use provided source acknowledged. the Client shall reimburse the Consultancy against invoice for all reasonable expenses of and in connection with such travel.3 For the avoidance of doubt there is no obligation on the Client to require Services on any particular day. and agree that it will promptly seek confirmation from the Client if this estimate is likely to be exceeded by [25]%.4 4.2. In the event that the Services require the Consultancy to travel to another site.uk for PCG page 2 .4. the Client in addition to the Fixed Price shall reimburse the Consultancy against invoice for all reasonable expenses and in connection with such travel.4. The Fixed Price may be invoiced [on completion.1 4. and agrees that it will promptly seek confirmation from the Client if this estimate is likely to be exceeded by [25]%.4. The Client may terminate the Services to be provided under this Schedule immediately by written notice to the Consultancy at any time.3 4.5 4.1 Charging basis The Consultancy will provide the Services for the Fixed Price of £[ ]. and no obligation to make payment in respect of any periods during which the Services are not required. 4.SCOPE OF EXPENSES The Services will normally be provided on the Client’s or the Consultancy’s premises and the Consultancy shall charge no additional amount for travelling to and from these premises. Termination for convenience ALTERNATIVE A1 The Consultancy may give the Client [one month]'s notice in writing to terminate the Services to be provided under this Schedule ALTERNATIVE A2 The Consultancy may not prematurely terminate the Services to be provided under this Schedule. shall be redeemable up to a maximum of £[ ] per night.SCOPE OF EXPENSES The Services will normally be provided on the Client’s or the Consultancy’s premises and the Consultancy shall charge no additional amount for travelling to and from these premises.1 5. A fixed additional charge of £[ ] per night will be made for each night necessarily spent overseas.2 All air travel shall be Economy Class flights All rail travel shall be Second Class Rail 6. shall be redeemable up to a maximum of £[ ] per night.egos.3 Signed by the parties’ authorised representatives as follows: Ref A05-10.2. all other rights reserved Produced by Egos Consultancy Ltd www. If this Schedule is terminated prematurely. ALTERNATIVE C1 The Client may terminate the Services provided under this Schedule immediately by written notice to the Consultancy at any time. other than for cause. licensed for use provided source acknowledged. Copyright © PCG Ltd 2005-07.1 7.2. 7.3 7.co. A fixed additional charge of £[ ] per night will be made for each night necessarily spent overseas. 8. other than for cause.5 6.2 8. warranty or other provision not expressly stated herein. including breakfast and dinner.3 7.uk for PCG page 3 . The Services will be performed under the terms of the Master Agreement. which together with this Schedule and any other documents expressly referred to in the Master Agreement or in this Schedule constitute the entire understanding between the parties relating to the subject matter of this engagement. Neither party enters the agreement constituted by this Schedule and the Master Agreement on the basis of or relying on any representation.4 7.6. Any earlier agreement between the parties relating to the subject matter of this Schedule is hereby superseded and is discharged by mutual consent.2. This Schedule shall prevail if there is any conflict between it and the Master Agreement. the Client will pay the Consultancy for Services provided prior to termination on a quantum meruit basis.2 7. Hotels bills.3 6. Termination for convenience ALTERNATIVE B1 The Consultancy may give the Client [one month]'s notice in writing to terminate the Services provided under this Schedule ALTERNATIVE B2 The Consultancy may not prematurely terminate the Services provided under this Schedule.4 6. 8.5 END OPTIONS 8. ALTERNATIVE C2 The Client may give the Consultancy [one month]'s notice in writing to terminate the Services provided under this Schedule ALTERNATIVE C3 The Client may not prematurely terminate the Services provided under this Schedule. No other terms or changes will apply unless in writing and signed by both parties.1 Generally Car journeys shall be charged at the rate of £[ ] per mile plus parking fees. ... Copyright © PCG Ltd 2005-07................... change this to: By [PCG individual member name] Date: Ref A05-10....... all other rights reserved Produced by Egos Consultancy Ltd www....... 7 In the case of a sole trader................ licensed for use provided source acknowledged..On behalf of the Consultancy by [ ] (Authorised Signature) Title: Date:...................egos.......co..........uk for PCG page 4 ...........7 On behalf of the Client by [ ] (Authorised Signature) Title: Date:.. 2. If when negotiating a contact. the Client is not given any express rights to approve a substitute. procedures for amendment of specification.1 Substitution The areas normally covered by a substitution clause are in clause 2. qualifications or experience. However.1 Law & Jurisdiction Change as appropriate .2 2.2 1. it inevitably has limitations. Neither PCG nor Egos Consultancy Ltd can accept responsibility for the use of this standard agreement in any particular situation.2. As a result.co.Notes (not forming part of the document) 1. and it is therefore the member’s sole responsibility to satisfy him/herself that it (including any amendments) is wholly suitable for the member’s particular proposed use – if in doubt.2. 3.2 2.3 ‘Services will not be provided utilising any individual whom the Client reasonably considers lacks the necessary skills. and other areas) arrangements which include the sale/hire of goods/software provision of a specified individual for unspecified tasks anything else which cannot be clearly / unambiguously defined in words as a statement of specific services 1. since the starting point here is that this agreement does not envisage a commitment to provide the services utilising any particular named individual. warranty. If the commercial position requires you to concede further on this point. it remains the case that compromises have been made to ensure a broad range of usefulness.2 3.3 2. warranty. It is intended to be suitable for use by a range of businesses. 3.4 in respect of each of which other considerations (which are not covered by these terms – and are not intended to be so covered) assume a more dominant level of importance. for the use of PCG members only. and also to keep it relatively short.1 4.2. when accompanied by a suitably worded Schedule. and is intended to provide a suitable legal background / framework for self-contained consultancy and other service-focused tasks. and there are inevitably many situations for which it will not only be unsuitable. This agreement will NOT generally be suitable for 2.2.1 software development to a pre-agreed specification for a fixed price (this would generally require more specialised and focused provisions covering beta. seek advice! Suitability This document comprises a Master Consultancy Services Agreement.2 England & Wales Scotland Ref A05-10.uk for PCG page 1 .’ 4. 1. all other rights reserved Produced by Egos Consultancy Ltd www. Copyright © PCG Ltd 2005-07.1. and in a variety of situations. but in which its use could be positively dangerous.permissible jurisdictions are: 4.3 of the terms.3: 3. support. whether from commercial or IR35 viewpoints. a Client is concerned about not having such rights.egos.testing. 4.3 2.1 General This Master Consultancy Services Agreement has been commissioned by PCG and drafted by Egos Consultancy Ltd. Whilst more substantial than the Terms of Business.and acceptance.1 2. then you may consider adding the following to the end of 2.1. licensed for use provided source acknowledged. the issue can often be resolved by reminding the Client of its rights to terminate without cause and without notice as provided by the Schedule (generally included as part of the IR35 strategy – see below). 1.3 5. Note that no express provision is made for time off for holidays etc.1 Services definition – This section is not cast in stone. and include any constraints and other task-relevant variables.co. Correction of defective services: whether or not this provision is appropriate will depend on the nature for the services.6 5.1. and any constraints on charges. or during which the Services are not in fact provided.1. The end result should suit the intended reality. and that any known dates are expressly excluded from the timetable clause in the Schedule.1. 1. and no obligation to make payment in respect of any periods during which the Services are not required. taking care to express clearly. and such a provision might be considered to undermine the provisions for substitution (clause 2.2.3 4.1.egos. but is simply intended as a prompt list to assist in formulating a clear and adequate description of what is to be done as a statement of specified services.1. unambiguously.2 such a provision will often be inconsistent with an agreement to provide specific services.1. there are primarily two reasons for this: 5.2. Optional sections are included to provide either for ‘time and materials’.2.1. 5. and to make the boundaries clear. for agreement between the parties.3). it will generally be a significant IR35 plus.4.1.5 4. This must primarily be a decision taken on commercial grounds. 5. MOO (Mutuality of Obligation) will generally require (i) that the contract makes clear that there is no obligation on the Client to require Services on any particular day. all other rights reserved Produced by Egos Consultancy Ltd www. licensed for use provided source acknowledged.1 5.uk for PCG page 2 .1 Schedules Northern Ireland the Isle of Man the Island of Jersey the States of Guernsey The areas to be covered by a Schedule will generally include 5.4. then it may be wise to ensure that they keep the Client informed. Charging basis. Members should note in particular the following points: Where payment is on a time and materials basis: 1. Timetable – estimate start and finish. then the point should be covered here.1. or ‘fixed price’.4 4. and (ii) that the Client should have the right to terminate without cause and without notice 1.1.1.4 Members should bear in mind that if they do plan to take time away from a contract and do not intend to exercise rights to substitute. Where it is commercially appropriate and included.1.4.2. eg to make any necessary provision for holidays etc.1.2 5. if there is any particular period when services will not be provided (and particularly where the expectation is for services daily). This may be freely modified as appropriate. Copyright © PCG Ltd 2005-07.1.1. Particular care needs to be taken in defining the scope and its boundaries clearly where the payment basis is to be ‘fixed price’. whether the Consultancy has a right to terminate other than for cause will generally be a purely commercial matter. Ref A05-10. a proper IR35 strategy to minimise any suggestions that there is 1. uk/faq/debt_interest. Sections marked as OPTION A.co. and delete the entire other section.4. 2.1. 1.2. Any other terms specific only to this particular Schedule – insert an additional term for any that cannot be fitted into one of the above 1.1. General 2. 2. 2. ensure that the highlighted words have been removed search for the ‘open square brackets’ symbol ‘[‘ to ensure that all placemarkers have been completed and all appropriate variables selected delete this final ‘notes’ section.htm) apply where a contract makes no reasonable provision for interest.1.3.1.3.2.3.2. Clauses marked as ALTERNATIVE 2.3.egos. other than for cause.4.1. 2. Note that the this last clause includes a provision that the content of this document will override any conflicting provision in the Terms. and are more valuable than contract terms generally acceptable to a Client. and the other(s) from that set deleted.1.4. Then consider any OPTIONAL and ALTERNATIVE clauses in the retained section.egos. x2 etc.4. or deleted. Where payment is on a fixed price basis (ie the Consultancy contracts to provide some form of pre-specified result or deliverable for a predetermined price).1. licensed for use provided source acknowledged. 1. Copyright © PCG Ltd 2005-07. 2. Each such clause is optional and may be retained if applicable.5.1. Only one clause from within each set of Alternatives should be chosen and retained. 1. 2.2. choose whichever section (Option A or Option B) is appropriate.1. No specific provision for interest on late payments is included. First.uk for PCG page 3 .1. 2. It is advised that the last clause remain unchanged. Sets of Alternatives are marked eg x1.1.1.4. Clauses marked as OPTIONAL: 2. the Client is less likely to regard it as commercially acceptable for the Consultancy to have the right to terminate prematurely. MOO will generally be less of a concern 1.2.3. As a final check after completing the draft (and before submitting it to a Client for approval): 2.2.3.3.1. all other rights reserved Produced by Egos Consultancy Ltd www. this is intentional – the general provisions of the Late Payment of Commercial Debts (Interest) Act 1998 (see www. OPTION B (ie all between BEGIN OPTIONS and END OPTIONS) 2.co. Ref A05-10.