TERMS AND CONDITIONS
1.1. 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 DAR CONSULTING. These clauses are incorporated into and form an integral part of our contract.
1.2. The parties: DAR CONSULTING of England and the Client: ‘the Client’ is the party with whom a contract of supply exists.
- Statement of Professional Standards
2.1. DAR CONSULTING will conduct its business in accordance with the professional standards laid down by the Code of Professional Conduct of the Institute of Business Consulting (UK).
2.2. In particular, we will abide by Principles 1 & 2 of the Code regarding ‘high standards of service to the client’ and ‘independence, objectivity and integrity.’
3.1. All commitments with respect to the timing and scope of a project given to the client by DAR CONSULTING – 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 DAR CONSULTING 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.
3.2. Where the contract specifies that our service will be provided by a named individual, DAR CONSULTING agrees to take all reasonable steps to ensure that these persons will remain on these assignments for the full length of the contract.
3.3. DAR CONSULTING further agrees to obtain the client’s agreement to any significant substitution of personnel that is necessitated by unforeseen circumstances – such as staff sickness.
4.1. DAR CONSULTING agrees to hold all information provided by the Client confidential where the client so specifies, save where such information is known to DAR CONSULTING already, or exists already in the public domain, until, either the information enters the public domain, or DAR CONSULTING 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 DAR CONSULTING by a court of law (including non-payment of account) or three years have elapsed – whichever is the sooner.
4.2. The client agrees to hold confidential all information about DAR CONSULTING proposal(s), fee structures, fees and personnel.
- Materials Supplied
5.1. DAR CONSULTING agrees to handle any materials, such as product samples or documents, supplied by the client to DAR CONSULTING in a responsible fashion and return them to the client upon request. However, DAR CONSULTING 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
6.1. DAR CONSULTING 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.
6.2. DAR CONSULTING 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 DAR CONSULTING is acting, or has acted, for another client at the time that it becomes apparent to DAR CONSULTING 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 DAR CONSULTING in the light of this revelation to the extent that it is affected by the potential conflict of interest. Such a declaration by DAR CONSULTING will be general in nature, so as not to prejudice the confidentiality with the third party.
6.3. DAR CONSULTING 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. DAR CONSULTING 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.
- Rights of Ownership
7.1. DAR CONSULTING warrants that all personnel, whether full-time employees or not, will be employed on terms that protect the Clients intellectual property rights.
7.2. DAR CONSULTING has a substantial body of intellectual property built up over a number of years. This ‘underlying IP’ includes, but is not limited to, databases, analysis, reports, supplier and technology evaluations’, drawings, charts, Registered Trademark, written documents, policies, procedures, website information and graphs held both electronically and on paper. When a client contracts with DAR CONSULTING to provide consultancy services, this does not transfer any of DAR CONSULTING underlying IP to any client under any circumstances.
7.3. Notwithstanding any payments received from the client, all rights of ownership to all materials prepared by DAR CONSULTING, whether written or not, shall remain the property of DAR CONSULTING – copyright and distribution rights are reserved by DAR CONSULTING at its sole discretion, except where these rights are explicitly stated in writing to have been waived or where the contract between DAR CONSULTING and the client explicitly so provides or where the material is so endorsed by DAR CONSULTING.
7.4. DAR CONSULTING, however, grants a royalty free license, without prejudice to its position under the previous paragraph, to the client to copy freely any material provided by DAR CONSULTING as part of work wholly commissioned by the client provided that distribution of these copies is exclusively within the client’s particular organization.
7.5. This clause shall apply to all reports, including the final client report, and all presentation materials. It shall also apply to any audio or videotaping of any presentations made by DAR CONSULTING for the client. In addition, it applies to all training materials used to support DAR CONSULTING training sessions.
7.6. The client’s interests in respect of this clause and any materials provided by the client to DAR CONSULTING are protected by DAR CONSULTING blanket confidentiality commitment in respect of the dissemination of any and all materials related specifically to the client’s affairs outlined in Clause 4 above.
- Time Basis for Contracts
8.1. 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).
8.2. The unit of activity is normally the Day, except where otherwise agreed in advance.
8.3. Activity time includes all office time spent acting for the client.
8.4. 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.
8.5. Activity logs will be provided to clients upon request.
9.1. DAR CONSULTING contracts with clients stipulate whether they are ‘fixed price’ (i.e. 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. This section provides clarification of our standard policy on what expenses will be claimed and how.
9.2. We do not levy a fixed daily dislocation charge.
9.3. In the case of ‘net of expenses’ contracts, DAR CONSULTING is hereby authorized to incur, without prior notice to the client, ‘reasonable’ travel expenses (as outlined below in Clause 9.8) in performing the client’s instructions. The client agrees to reimburse these in addition to the contract fee.
9.4. All expenses are payable for the total activity time (as defined in Clause 8 above): i.e. including travel to and from the client or travel to and from third parties on behalf of the client.
9.5. Invoices for expenses will normally be presented monthly. DAR CONSULTING may, at its sole discretion, choose exceptionally to present invoices more or less frequently, to reflect the level of expense incurred.
9.6. Expenses incurred in foreign currency will be billed at the actual exchange rate obtained (gross rates, including commission, handling charges etc, will be used) except where this rate is not immediately available, such as for some credit card charges, when either the last rate obtained or an estimated rate will be used at DAR CONSULTING’s discretion.
9.7. Expenses are reimbursable immediately and the client accepts that they are not subject to any credit terms or delayed payment clauses that may relate to some or our entire professional fee.
9.8. ‘Reasonable’ travel expenses are those generally applied within international corporations for their senior executives. They vary to reflect the different standards applied to business travel in various parts of the world. For illustrative purposes, they include, inter alia, Business Class international air travel and Economy class internal flights, accommodation and incidental costs within an hotel suitable for international business affairs, all meals whilst acting on behalf of the client within an hotel’s restaurant or an equivalent grade of individual premises, 1st class rail travel, taxis and car-hire costs for a mid-size or executive size vehicle 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. The client so authorizes.
9.9. 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 us, whether or not we may be able to subsequently reclaim any part of these. 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.
9.10. Any additional charge for incidental expenses such as telephone, fax, copies of client commissioned reports, and presentation materials would normally be waived, except where such costs represent a significant proportion of the project value; such basis to be agreed by the client in advance.
9.11. The client should note that travel fares are sometimes charged on the basis of travel to and from DAR CONSULTING premises, which may not be the actual journey made, as our consultants may be travelling from a location required for another client’s business.
9.12. DAR CONSULTING employees are required to obtain receipts for expenses wherever practical. These are retained by DAR CONSULTING and are available for inspection by the client upon his request.
10.1. The remuneration structure agreed between the client and DAR CONSULTING 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’.
10.2. The client agrees to pay DAR CONSULTING according to the fee structure outlined in DAR CONSULTING project proposal, as amended by subsequent written correspondence.
10.3. ‘Retainer fee’ shall be defined as a payment made to secure DAR CONSULTING 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.
10.4. Fixed fee contracts cover the performance of an agreed service as outlined in our Project Proposal for an agreed remuneration. Extra time incurred by DAR CONSULTING in the performance of the ‘fixed fee’ component of a contract shall be borne by DAR CONSULTING. The fee shall be fixed in the currency in which the quotation is made, regardless of exchange rate movement.
10.5. The ‘daily rate’ and ‘hourly rate’ shall be charged in accordance with the criteria defined in Clause 8.
- Cancellation Rights
11.1. 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.
11.2. 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 DAR CONSULTING 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.
11.3. 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.
11.4. 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.
11.5 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’ (DAR Consulting). However; if the ‘company’ (DAR Consulting) cancels or terminates an agreement with the Client; for whatever reason, with or without notice, then the ‘company’ (DAR Consulting) 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’ (DAR Consulting) 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’ (DAR Consulting) as full and final. Competent Person retention cannot be continued in name only as the ‘company’ (DAR Consulting), 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.
11.6. Specific terms apply to cancellation in the event of a conflict of interest (see Clause 6), client insolvency (see Clause 17), illegal activities (Clause 18) or force majeure (Clause 20).
11.7. In the event of cancellation, expenses incurred referred to in this Clause 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 DAR CONSULTING 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
12.1. The client agrees to be bound by the payment terms stipulated in the contract.
12.2. If the client fails to make any payment without giving notification of due cause, then DAR CONSULTING will withhold the delivery of any final reports and will not be responsible for any inconvenience, loss or damage so caused.
12.3. In respect of any delays in interim payments attention is drawn to Clause 13.2 below.
12.4. The currency of payment will be stipulated in the client contract. Both parties agree to accept this in respect of all invoices and payments.
12.5. 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.
12.6. The client’s responsibility is for payment to DAR CONSULTING 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 DAR CONSULTING. The client accepts that DAR CONSULTING shall be entitled to recover all deducted amounts.
12.7. The client agrees to make payment by the method stipulated in the contract to the location stipulated in the contract. DAR CONSULTING shall be entitled to recover any costs caused by any client variations in this respect not agreed in advance.
12.8. In the absence of any other agreed payment terms, all invoices shall be payable in full within 14 calendar days of the date of the invoice.
- Stage Payments
13.1. 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.
13.2. DAR CONSULTING 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.
13.3. 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
14.1. DAR CONSULTING 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, DAR CONSULTING accepts no liability for the consequences of its information opinions and advice whether direct or indirect.
15.1. DAR CONSULTING 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. DAR CONSULTING 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.
15.2. Wherever the results of any commissioned work are cited by the client, the client agrees to make do reference to DAR CONSULTING so as to make it clear who carried out the work, except where DAR CONSULTING explicitly waives this right. This provision is notwithstanding the over-riding position over ownership of said product (outlined in Clause 7, Rights of Ownership, above).
- Recruitment of Personnel
16.1. 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 six months thereafter without the written permission of the other party.
16.2. The client agrees to pay DAR CONSULTING a ‘finder’s fee’ should the client recruit a DAR CONSULTING consultant to a paid employment position within two years of the conclusion of any work on behalf of the client by that Consultant or of that Consultant being introduced to the client whichever is the later.
16.3. In respect of this clause, the definition of ‘Consultant’ shall include all DAR CONSULTING employees and Associates that are involved in the provision of services to the Client under this or any other contract.
16.4. The ‘finder’s fee’ shall be 30% of the first year’s gross remuneration payable by the Client or its Associates to the Consultant.
17.1. DAR CONSULTING 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.
17.2. In these circumstances DAR CONSULTING will also be entitled to have a general lien on all goods and property of the client that is within DAR CONSULTING possession and, following 14 days’ notice to dispose of such goods and property in such manner and at such prices as DAR CONSULTING thinks fit and to apply the proceeds towards such debts.
- Illegal activities
18.1. DAR CONSULTING 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 DAR CONSULTING will be entitled to recover in full its fee and expenses.
18.2. The client agrees not to make any illegal use of any information provided by DAR CONSULTING.
18.3. Neither party shall be liable to the other for any indirect, special or consequential damages.
- Limitation of liability
19.1. Without prejudice to other more restrictive limitations elsewhere in this contract, liability on the part of DAR CONSULTING is limited to the value of the contract with the client or the value of the loss whichever is the smaller. DAR CONSULTING accepts no liability for the consequences of its information, opinions and advice, whether direct or indirect.
- Force Majeure
20.1. Whilst DAR CONSULTING agrees to use its best endeavours to perform the contract for the client as specified, DAR CONSULTING will not be responsible for any delays or failure to complete the contracts which are beyond DAR CONSULTING control and which could not have been reasonably predicted.
20.2. 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 DAR CONSULTING will be entitled to recover any costs already incurred.
21.1. Any disputes or claims shall be governed by and construed in accordance with English law and the jurisdiction of the English courts.
22.1. All unresolved disputes between the Parties shall be referred to arbitration.
22.2. Both parties also agree that all disputes arising with respect to this contract will be arbitrated upon within the English legal system.
23.1. 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.
- Integral part of contract
24.1. The client agrees that all of the above terms form part of the contract between DAR CONSULTING and the client, except where explicitly excluded or modified by the contract and shall take precedence over and shall not be varied by any other means including any terms or conditions that the client may from time to time apply to suppliers.
- Misleading information, misrepresentation and use of consultancy name and credentials for gain, hire or reward.
25.1. Companies, businesses, individuals or organisations MUST NOT use the name DAR CONSULTING or its directors or safety consultants provenance to gain unlawful or unauthorized advantage by suggesting, implying, citing, writing, advertising, quoting or otherwise that DAR Consulting or its directors or safety consultants endorse, support, represent or have any contractual obligation with the said companies, businesses, individuals or organisations without prior consent and payment.
- Professional Integrity & Protected Document Status
26.1. All electronic documents written and generated by DAR CONSULTING, or its director(s) or safety consultants for their clients and customers are produced and issued as PDF’s to maintain professional integrity, copyright control and protection from uncontrolled corruption; and also in line with Data Protection Regulations. Clients may request in writing a copy of the PDF in Word, outlining their reason for this, which will then be formally reviewed by the Director(s) to ascertain likelihood of security , data protection and copyright infringement, corruption or inadvertent loss of data.
Any identified illegal activity of such sought will be vigorously and legally pursued with a named and shamed section advertised on our website, social media platforms, newsletters and blogs.
27. Late Appointment of CDM Duty Holder Role, CDM Advisor or Health & Safety Consultancy Services
27.1 Please note that commissions, appointments, instructions and requests for services delivered by DAR CONSULTING, that are not received within a reasonable timeframe to allow for a full and thorough review and scoping of a project or scheme, or review of critical, salient and pertinent health and safety documentation, information and data, shall incur additional costs for the purposes of providing expediency. A reasonable timeframe here is measured at least 5 working days for the overall review, appraisal and analysis of a project or scheme, and return of comments and recommendations to allow for reasonable amendment and revision of site and project documentation BEFORE the work begins.