Terms & Conditions - Consultancy

1. Definitions

1.1. Scope: This document defines the general terms (and provides additional explanation to clarify and amplify those terms) that shall apply to all projects, consultancy agreements and retainer contracts involving Pragati. These clauses are incorporated into and form an integral part of our contract. Pragati reserve the right to update the terms of this agreement without notice.

1.2. The parties: KSLM Limited, Registered in England & Wales No. 5464744. Registered Office: 2^nd Floor, Cardiff House, Tilling Road, London, NW2 1LJ (hereinafter known as 'Pragati') and the Client: 'the Client' is the party and directors of the party with whom a contract of supply exists.

2. Statement of Professional Standards

2.1. Pragati will conduct its business in accordance with the professional standards laid down by the Code of Professional Conduct of the Institute of Management Consultants (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. Performance

3.1. All commitments with respect to the timing and scope of a project given to the client by Pragati - 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 Pragati 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, Pragati 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. Pragati 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. Confidentiality

4.1. Pragati agrees to hold all information provided by the Client confidential where the client so specifies, save where such information is known to Pragati already, or exists already in the public domain, until, either the information enters the public domain, or Pragati 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 Pragati 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 Pragati 's proposal(s), fee structures, fees and personnel.

4.3 Pragati will under no circumstances hold any financial information provided to Pragati or any staff of Pragati.

5. Materials Supplied

5.1. Pragati agrees to handle any materials, such as product samples or documents, supplied by the client to Pragati in a responsible fashion and return them to the client upon request. However, Pragati 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.

6. Conflict of Interest

6.1. Pragati 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. Pragati 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 Pragati is acting, or has acted, for another client at the time that it becomes apparent to Pragati 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 Pragati in the light of this revelation to the extent that it is affected by the potential conflict of interest. Such a declaration by Pragati will be general in nature, so as not to prejudice the confidentiality with the third party.

6.3. Pragati 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. Pragati 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.

7. Rights of Ownership

7.1. Pragati warrants that all personnel, whether full-time employees or not, will be employed on terms that protect the Clients intellectual property rights.

7.2. Pragati has a substantial body of intellectual property built up. This 'underlying IP' includes, but is not limited to, databases, analysis, reports, supplier and technology evaluations, drawings, charts, and graphs held both electronically and on paper. When a client contracts with Pragati to provide consultancy services, this does not transfer any of Pragati’s underlying IP to any client under any circumstances.

7.3. With exception to 7.5 and notwithstanding any payments received from the client, all rights of ownership to all materials owned by Pragati, whether written or not, shall remain the property of Pragati - copyright and distribution rights are reserved by Pragati at its sole discretion, except where these rights are explicitly stated in writing to have been waived or where the contract between Pragati and the client explicitly so provides or where the material is so endorsed by Pragati.

7.4. Pragati, however, grants a royalty free license, without prejudice to its position under the paragraph, to the client to copy freely any material provided by Pragati as part of work wholly commissioned by the client provided that distribution of these copies is exclusively within the client's particular organisation

7.5 Pragati may on occasion supply data to a client as reference, which has been sourced from external material or sources. Unless otherwise explicitly highlighted in written communication from Pragati, the client is responsible for all licensing requirements. Pragati accepts no liability for the consequences of the reference data used and advice given, whether direct or indirect

7.6. 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 Pragati for the client. In addition, it applies to all training materials used to support Pragati training sessions.

7.7. The right to distribute copies of Pragati material internally within the Client's organisation does not extend to multi-client and off-the-shelf market research reports which have been bought from Pragati. Additional copies of such reports for internal distribution are available, at the time of purchase or later, at greatly reduced cost.

7.8. The client's interests in respect of this clause and any materials provided by the client to Pragati are protected by Pragati’s 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.

8. 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. Expenses

9.1. Pragati 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, Pragati is hereby authorised 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. Pragati 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 Pragati '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 all of our 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 (or 'coach') 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 authorises.

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 Pragati 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. Pragati employees are required to obtain receipts for expenses wherever practical. These are retained by Pragati and are available for inspection by the client upon his request.

10. Fees

10.1. The remuneration structure agreed between the client and Pragati 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 Pragati according to the fee structure outlined in Pragati’s project proposal, as amended by subsequent written correspondence.

10.3. 'Retainer fee' shall be defined as a payment made to secure Pragati’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 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 Pragati in the performance of the 'fixed fee' component of a contract shall be borne by Pragati. 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.

10.6. Where Pragati introduces the client to a third party, which Pragati identifies to the client as a potential 'partner' (as defined in 10.8), Pragati shall receive a payment from the client by way of a 'success fee', 'brokerage fee' or 'finder's fee'. The fee shall be triggered under the circumstances defined in the particular contract with the client, or in the absence of such agreement, by the conclusion of a legally binding agreement with a third party where this agreement results in significant part from the actions of Pragati under the consultancy agreement and where the partner was explicitly identified to the client by Pragati. It shall normally be expressed as a percentage of the 'value' associated with the triggering event. 'Value' shall be calculated as defined in Clause 11. The percentage rate will be determined in advance by negotiation to reflect the degree of involvement of Pragati in the identification process.

10.7. Finder's fees, brokerage fees and success fees shall be subject to a 0.5% or £50,000 minimum, whichever is the greater, except where otherwise agreed.

10.8. In the context of this clause, 'partner' shall include, but not be limited to, all of the following: companies and individuals with whom the client concludes a collaboration agreement; businesses acquired, whether for cash or equity; licensees and cross-licensees of intellectual property rights; joint-venture partnerships; distribution agreements with wholesalers, distributors and sales or marketing agents.

10.9. Where Pragati provides an introduction whilst acting on behalf of the client that may lead to a right to a finder's fee subsequent to the completion of the assignment with the client, Pragati shall be entitled to the said finder's fee whenever the agreement between the parties is concluded.

10.10. Pragati reserve the right to re quote orders that exceed the initial completion date.

11. Valuation

11.1. This clause shall only apply to projects where Pragati is to receive a 'success fee' or a 'finders fee'.

11.2. The valuation attributed to an agreement for the purposes of calculating Pragati’s success fee shall depend on the type of partnership that is concluded.

11.3. For acquisitions, the valuation shall be the total amount paid for the partner's share capital or its business plus repayments of intercompany indebtedness, dividends (including tax credits) plus special emoluments or other benefits paid at the time of the transaction plus any deferred consideration or amount paid into escrow plus any other form of debt structuring or financial arrangements used to affect the price, pro-rated where appropriate to 100% of the capital of the target; otherwise known as the 'headline value'.

11.4. For joint-ventures, the value shall be the targeted Year 5 working capital (sum of equity and loans) of the venture as contained in the set-up documentation, or where this is not possible to determine, shall be negotiated between the parties to reflect the agreed value of the introduction.

11.5. For distribution agreements, the value of the finder's fee shall be based on the targeted Year 5 sales of the venture, or where this is not possible to determine, shall be negotiated between the parties to reflect the agreed value of the introduction.

11.6. For licences and cross-licences and all other types of partnership not more explicitly covered elsewhere in this Clause, the value shall be the value agreed between the Client and the Partner for the purposes of their relationship or, where no such value has been established, shall be negotiated between Pragati and the Client so as to accurately reflect the value of Pragati’s introduction to the Client.

11.7. Where it is not possible to agree a value, both parties agree to submit the matter to mutually binding arbitration, as defined in Clause 23.

12. Cancellation Rights

12.1. 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.

12.2. 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 Pragati 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.

12.3. 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.

12.4. 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.

12.5. Where performance under the contract of Pragati’s service is contingent upon the availability of a specific Pragati 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 Pragati 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.

12.6. Specific terms apply to cancellation in the event of a conflict of interest (see Clause 6), client insolvency (see Clause 18), illegal activities (Clause 19) or force majeure (Clause 21).

12.7. 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 Pragati 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

13.1. The client agrees to be bound by the payment terms stipulated in the contract.

13.2. If the client fails to make any final payment without giving notification of due cause, then Pragati will withhold delivery of any final reports and will not be responsible for any inconvenience, loss or damage so caused.

13.3. In respect of any delays in interim payments attention is drawn to Clause 14.3 below.

13.4. The currency of payment will be stipulated in the client contract. Both parties agree to accept this in respect of all invoices and payments.

13.5. 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.

13.6. The client's responsibility is for payment to Pragati 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 Pragati. The client accepts that Pragati shall be entitled to recover all deducted amounts.

13.7. The client agrees to make payment by the method stipulated in the contract to the location stipulated in the contract. Pragati shall be entitled to recover any costs caused by any client variations in this respect not agreed in advance.

13.8. The client agrees to pay all government taxes and duties, regardless of origin, that may apply to all payments to Pragati. 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).

13.9. Pragati shall be entitled to cancel all discounts, goodwill gestures and charge interest to all accounts that remain unpaid for more than 10 days.

13.10. Pragati shall be entitled to charge interest at the rate of 2% per month on all amounts that remain unpaid 10 days after the agreed payment date.

13.11. In the absence of any other agreed payment terms, all invoices shall be payable in full within 10 days of the date of the invoice.

14. Stage Payments

14.1. 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.

14.2. Pragati reserves the right to re-quote projects which extend past the expected timeline for whatever reason.

14.3. Pragati 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.

14.3. 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.

15. Liability for Advice Given

15.1. Pragati 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 Pragati accepts no liability for the consequences of its information opinions and advice whether direct or indirect.

16. Publicity

16.1. Pragati shall have the right, without further reference to the client, 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. Pragati 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.

16.2. Wherever the results of any commissioned work are cited by the client, the client agrees to make due reference to Pragati so as to make it clear who carried out the work, except where Pragati 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).

17. Recruitment of Personnel

17.1. 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.

17.2. The client agrees to pay Pragati a 'finders fee' should the client recruit a Pragati 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.

17.3. In respect of this clause, the definition of 'Consultant' shall include all Pragati employees and Associates that are involved in the provision of services to the Client under this or any other contract.

17.4. The 'finders fee' shall be 30% of the first year's gross remuneration payable by the Client or its Associates to the Consultant.

18. Insolvency

18.1. Pragati 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.

18.2. In these circumstances Pragati will also be entitled to have a general lien on all goods and property of the client that is within Pragati 's possession and, following 14 days notice to dispose of such goods and property in such manner and at such prices as Pragati thinks fit and to apply the proceeds towards such debts.

19. Illegal activities

19.1. Pragati 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 Pragati will be entitled to recover in full its fee and expenses.

19.2. The client agrees not to make any illegal use of any information provided by Pragati.

19.3. Pragati shall be liable for any indirect, special or consequential damages.

20. Limitation of liability

20.1. Without prejudice to other more restrictive limitations elsewhere in this contract, liability on the part of Pragati is limited to the value of the contract with the client or the value of the loss whichever is the smaller. Pragati accepts no liability for the consequences of its information, opinions and advice, whether direct or indirect.

21. Force Majeure

21.1. Whilst Pragati agrees to use its best endeavours to perform the contract for the client as specified, Pragati will not be responsible for any delays or failure to complete the contracts which are beyond Pragati's control and which could not have been reasonably predicted.

21.2. 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 Pragati will be entitled to recover any costs already incurred.

22. Jurisdiction

22.1. Any disputes or claims shall be governed by and construed in accordance with English law and the jurisdiction of the English courts.

23. Arbitration

23.1. All unresolved disputes between the Parties shall be referred to arbitration in London 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.

23.2. Both parties also agree that all disputes arising with respect to this contract will be arbitrated upon within the English legal system.

24. Waiver

24.1. 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.

25. Integral part of contract

25.1. The client, in accepting the order with Pragati, accepts that all of these terms have been read, understood and agreed.

25.2. The client agrees that all of the above terms form part of the contract between Pragati 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.