Definitions
Scope: This document defines the general terms (and provides additional explanation to clarify and amplify those terms) that shall apply to all consultancy agreements, subscription agreements and retainer contracts involving TOPLINE.
The parties: TOPLINE of England and the Client: ‘the Client’ is the party with whom a contract of supply exists.
Statement of Professional Standards
TOPLINE will conduct its business in accordance with the professional standards laid down by the Code of Professional Conduct of the Institute of Business Consulting (India).
Performance
All commitments with respect to the timing and scope of a project given to the client by TOPLINE – 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 this reason, whilst TOPLINE 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, TOPLINE agrees to take all reasonable steps to ensure that these persons will remain on these assignments for the full length of the contract.
TOPLINE further agrees to obtain the client’s agreement to any significant substitution of personnel that is necessitated by unforeseen circumstances – such as staff sickness.
Confidentiality
TOPLINE agrees to hold all information provided by the Client confidential where the client so specifies, save where such information is known to TOPLINE already, or exists already in the public domain, until, either the information enters the public domain, or TOPLINE is given the same information by a third party, or is released from its confidentiality requirement by the client, or the client is found in breach of contract with TOPLINE by a court of law or three years have elapsed – whichever is the sooner.
The client agrees to hold confidential all information about TOPLINE proposal(s), fee structures, fees and personnel.
Materials Supplied
TOPLINE agrees to handle any materials, such as documents, supplied by the client to TOPLINE in a responsible fashion and return them to the client upon request. However, TOPLINE 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.
Conflict of Interest
TOPLINE 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 respect of their contract.
TOPLINE 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 TOPLINE is acting, or has acted, for another client at the time that it becomes apparent to TOPLINE 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 TOPLINE in the light of this revelation to the extent that it is affected by the potential conflict of interest. Such a declaration by TOPLINE will be general in nature, so as not to prejudice the confidentiality with the third party.
TOPLINE will have the right to resign its contract in such circumstances if, in its judgment, it is unable to proceed with the contract and maintain its fiduciary duty. TOPLINE shall receive payment in full for hours worked and expenses incurred to 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.
Time Basis for Contracts
Where applicable, activity time is calculated inclusive of travel time from the prior non-client activity (such as from the consultant’s home, office, or third-party premises).
The unit of activity is normally the Day, except where otherwise agreed in advance.
Activity time includes all office time spent acting for the client.
Where the unit of activity is by the hour, all travel, office, administrative, preparatory, production and telephone time in addition to actual client meetings and external interviews, are chargeable at the agreed hourly rate for the individual concerned.
Activity logs will be provided to clients upon request.
Fees
The remuneration structure agreed between the client and TOPLINE 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, or an hourly rate), a ‘success fee’, and a ‘brokerage’ or ‘finder’s” fee’.
The client agrees to pay TOPLINE according to the fee structure outlined in TOPLINE project proposal, as amended by subsequent written correspondence.
‘Retainer fee’ shall be defined as a payment made to secure TOPLINE 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 or where otherwise defined in the specific terms 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 TOPLINE in the performance of the ‘fixed fee’ component of a contract shall be borne by TOPLINE. The fee shall be fixed in the currency in which the quotation is made, regardless of exchange rate movement.
The ‘daily rate’ and ‘hourly rate’ shall be charged in accordance with the criteria defined.
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 totality of the value of the contract – including all expenses incurred to the date of cancellation – whether or not the client wishes the work to be completed.
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 TOPLINE 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 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 in the absence of such a provision 90 days’ notice.
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 the Client cancels or terminates a retained Competent Person agreement or agreed services; for example, planned or periodic work such as audits or inspections then there will be no rebate or refund due from the ‘company’ (TopLine). However; if the ‘company’ (TopLine) cancels or terminates an agreement with the Client; for whatever reason, with or without notice, then the ‘company’ (TopLine) shall refund, in full or part, any monies received for work commissioned that has not been carried out and for any planned work that has been paid for in advance. Cancellation or termination of a service by the Client, will be deemed to include the whole service provided, in particular the use of the companies, director’s, officer’s and agent’s credentials, good name and reputation for the furtherance of business, and where there exists a conflict of interest between service providers or where the ‘company’ (TopLine) is subject to potential legal or financial exposure from the Client or others providing a similar service, then cancellation or termination by the Client will be accepted by the ‘company’ (TopLine) as full and final. Competent Person retention cannot be continued in name only as the ‘company’ (TopLine), have an obligation and duty of care to provide assistance in helping the Client comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and to provide preventative and protective measures and offer advice, guidance, information and support which cannot be achieved without interaction, dialogue, communication and an immersive service.
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 referred to in this shall be interpreted as including all monies spent on behalf of the client plus all spending irrevocably committed to on the client’s behalf by TOPLINE 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.
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 TOPLINE will withhold the delivery of any final reports 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 TOPLINE 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 TOPLINE. The client accepts that TOPLINE 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. TOPLINE shall be entitled to recover any costs caused by any client variations in this respect not agreed in advance.
In the absence of any other agreed payment terms, all invoices shall be payable in full within 14 days of the date of the invoice.
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.
TOPLINE shall have the right to suspend all work 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’ work will not commence on the client’s behalf until payment is actually received.
Liability for Advice Given
TOPLINE 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 management decision. We advise that any data critical to a decision should be independently verified prior to being acted upon. Therefore, TOPLINE accepts no liability for the consequences of its information opinions and advice whether direct or indirect.
Publicity
TOPLINE shall have the right, without further reference to the client, to publicize the fact that the client is, or was, a client and to utilize the client’s name in publicity materials in this respect. TOPLINE may also describe in general terms the type of work conducted for the client but shall not be permitted to link the two without the prior permission of the client.
Wherever the results of any commissioned work are cited by the client, the client agrees to make do reference to TOPLINE so as to make it clear who carried out the work, except where TOPLINE explicitly waives this right. This provision is notwithstanding the over-riding position over ownership of said product.
Insolvency
TOPLINE shall have the right to discontinue immediately all work 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 TOPLINE will also be entitled to have a general lien on all goods and property of the client that is within TOPLINE possession and, following 14 days’ notice to dispose of such goods and property in such manner and at such prices as TOPLINE thinks fit and to apply the proceeds towards such debts.
Illegal activities
TOPLINE 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 TOPLINE 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 TOPLINE.
Neither party shall be liable to the other for any indirect, special or consequential damages.
Limitation of liability
Without prejudice to other more restrictive limitations elsewhere in this contract, liability on the part of TOPLINE is limited to the value of the contract with the client or the value of the loss whichever is the smaller. TOPLINE accepts no liability for the consequences of its information, opinions and advice, whether direct or indirect.
Jurisdiction
Any disputes or claims shall be governed by and construed in accordance with Indian law and the jurisdiction of the Indian courts.