Terms of Business

These Terms and Conditions will apply to the provision of all Products and Services by us, Kaizen Consultancy , a company registered in England under number 15662689, of 85 Great Portland Street, London, England, W1W 7LT, hereinafter called “the Company” to the Client.

1. Definitions and Interpretations

1.1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Acceptance” means the acceptance of our Proposal (electronically or otherwise), and includes the acceptance of these Terms and Conditions in writing;
“Client” means the individual, firm or corporate body purchasing the Services. Where an individual is entering into this Contract on behalf of a business, the individual confirms they have the authority to enter into this Contract on behalf of that business and the business will be the Client in the context of this Contract;
“Code of Conduct” means our Code of Conduct, which will be sent to the Client upon Acceptance, with our letter of appointment;
“Competent Person” has the same meaning as that stated in The Management of Health and Safety at Work Regulations 1999;
“Contract” means the contract formed upon Acceptance by the Client as above, which will incorporate and be subject to these Terms and Conditions, together with any terms agreed in the letter of appointment which confirms the entire scope of Services to be provided;
“Principal Designer” has the same meaning as specified in the Construction (Design and Management) Regulations 2015;
“Proposal” means our proposal to carry out the Services and/or provide associated products, which unless otherwise stated, remains open for acceptance for a period of 30 days;
“Services” means the services to be carried out by us as detailed in our Proposal and confirmed in our letter of appointment and includes associated products;
“Term” means the term of this Contract as defined in clauses 2 and 13.
1.1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.1.2.a.1 “we”, “us” and “our” is a reference to the Company;
1.1.2.a.2 “writing” and “written” includes emails and similar communications;
1.1.2.a.3 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.1.2.a.4 “these Terms and Conditions” is a reference to these Terms and Conditions as may be amended or supplemented at the relevant time;
1.1.2.a.5 a clause is a reference to a clause of these Terms and Conditions;
1.1.2.a.6 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
1.1.3 The headings used in these Terms and Conditions are for convenience only and will have no effect upon their interpretation.
1.1.4 Words imparting the singular number shall include the plural and vice versa. References to any gender shall include the other gender. References to persons shall include corporations.

2. The Contract

2.1.1 The Contract is formed as soon as we receive Acceptance, and includes the acceptance of these Terms and Conditions, which shall apply between you and us. Upon Acceptance, we will issue our letter of appointment, confirming the Services to be provided. No terms or conditions stipulated or referred to by the Client in any form whatsoever shall in any respect vary or add to these Terms and Conditions unless otherwise agreed by us in writing.
2.1.2 The Contract will be either:
2.1.2.a.1 on a one-off basis for the duration of the project (plus a 10% time allowance either side of the project programme – after which time, we will be entitled to charge for additional costs);
2.1.2.a.2 for a fixed minimum Term of 12 months; or
2.1.2.a.3 on an ongoing rolling annual basis. The Contract duration will be outlined in our Proposal.
2.1.3 If the Services are on an ongoing rolling basis, they will continue for the minimum agreed Term and thereafter the Contract will be automatically renewed, with the exception of the price, on the same Terms and Conditions as set out in this Contract on a rolling 12 month basis unless a written notice to terminate is given by either party in accordance with clause 13 below. We will notify the Client of any such price increase in accordance with these Terms and Conditions.

3. Documentation and Advice

3.1.1 All reports, procedures and documentation we prepare will be based on information provided to us at the time by the Client and will be legally accurate as at the date of their preparation. We cannot be held liable for any delays, errors, discrepancies or any other adverse consequences where the Client has provided incorrect information or has failed to provide information necessary for us to provide our professional advice.
3.1.2 We may provide an action plan for implementing our recommendations and it is the Client’s responsibility to ensure these recommendations are implemented correctly and fully.
3.1.3 We may provide the Client with templates and/or checklists for documentation. These will be based on information provided to us at the time and may contain sections which the Client will need to complete. Our Code of Conduct will outline which documents the Client can or cannot change, and what the Client is entitled to do with such documents. We are not responsible for any sections completed, altered or deleted by the Client. If we have authorised the Client to make any amendments to any documentation provided by us, it is the Client’s responsibility to check the amendments made are appropriate and that the amended documentation still conforms to current UK law.
3.1.4 Any documentation we may provide will be submitted in our normal standard format only. If additional copies or specific requirements are needed, we reserve the right to apply additional charges.

4. Timescales

4.1.1 Both parties agree to use all reasonable endeavours to meet any given response times as set out in our Code of Conduct. However, any such response times we may provide are done so in good faith and are estimates only. Time will not be of the essence in the performance of our Services.
4.1.2 Our normal working hours are Monday – Friday, 8.30am – 5pm excluding public holidays. We are also closed between Christmas and New Year. Services or visits required outside of these times will incur additional costs.

5. Principal Designer

5.1.1 Under the Construction (Design and Management) Regulations 2015, a Principal Designer is required if a construction project involves more than one contractor. We expressly forbid any Client from referring to us as the Client’s appointed Principal Designer unless:
5.1.1.a.1 we have expressly authorised this in writing; and
5.1.1.a.2 payment has been received by us from the Client, or the Client has signed up to our chosen recurring payment system, for the provision of Services that include our role as Principal Designer.

6. Competent Person (for Health and Safety advice and assistance)

6.1.1 We are qualified to supply Competent Persons to assist Clients with health and safety law requirements. We will specify in our Proposal whether this applies to the Contract.
6.1.2 However, we expressly forbid any Client from referring to us or any individual working for us as the Client’s Competent Person unless:
6.1.2.a.1 we have expressly authorised this in writing; and
6.1.2.a.2 payment has been received by us from the Client, or the Client has signed up to our chosen recurring payment system, for the provision of Services that include our role as the nominated Competent Person.
6.1.3 We will confirm in writing if the above provisions of clauses 6.2.1 and 6.2.2 have been met and only then can the Client use our company name or the name of an individual working for us as their designated Competent Person.
6.1.4 We will provide the Client with a lead consultant, however, we cannot guarantee this same consultant will always be available and we will provide a suitable substitute in this event.

7. Training

7.1.1 Where we have agreed to provide training, this must be paid for in full no later than 7 days in advance of the relevant training session. Should payment not be received within this timeframe, we reserve the right to cancel the training session and shall charge for any costs incurred.
7.1.2 The Client shall be entitled to substitute delegates without penalty, provided we are advised of this a minimum of 7 days in advance of the relevant training session. Any increase or decrease in the number of delegates may result in additional costs being levied and/or the cancellation of the training session, which will be subject to the cancellation provisions in clause 7.6 below.
7.1.3 The Client is responsible for the delegates at all times. However, should the behaviour of a delegate prove disruptive at any stage during the provision of the Services, at our sole discretion, we shall be entitled to request the immediate removal of said delegate from this and any future session.
7.1.4 Unless specifically stated to the contrary in our Proposal, the Client is required to provide the facilities required for us to carry out the training services.
7.1.5 Where we are responsible for providing the facilities, these shall be charged for at cost, plus administration fees, and shall become due for payment immediately. In addition, the Client must advise us in advance of any special requests, such as disability access and any dietary requirements.
7.1.6 No refunds will be issued, should the Client cancel or reschedule any training session.

8. Fees and Payment

8.1.1 The Client agrees to pay the fees as detailed in the accepted Proposal in accordance with these terms of payment.
8.1.2 In addition, we will charge to the Client our reasonable travelling time and travel expenses, any incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services.
8.1.3 The Client will pay for any additional services provided by us that are not specified in the Contract. These additional services will be charged in accordance with our current, applicable rate in effect at the time of performance, or such other rate as may be agreed. Any charge for additional services will be supplemental to the amounts that may be due for expenses.
8.1.4 We reserve the right to request a deposit up front before the Services commence. If so, this will be detailed in our Proposal and must be paid before any works will be carried out.
8.1.5 All invoices are payable in pounds sterling by cheque, bank transfer or via our chosen recurring payment system, without set-off, withholding or deduction, strictly within 30 days from the date of invoice, unless otherwise agreed. Training is payable in advance in accordance with clause 7.1 above.
8.1.6 All sums payable under the Contract are exclusive of VAT at the current rate or any other tax (except corporation tax), for which that Party shall be additionally liable. Any amendment to the standard VAT rate will be notified in writing and subsequent payments adjusted accordingly.
8.1.7 The time of payment shall be of the essence. If the Client fails to make any payment on the due date then we shall, without prejudice to any right which we may have pursuant to any statutory provision in force from time to time, have the right to suspend the Services, suspend any permissions granted under clauses 5.1 or 6.2 where applicable, and charge the Client interest at a rate of 8% per annum above the Bank of England base rate from time to time in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgment.

9. Client’s Responsibilities

9.1.1 The Client agrees to:
9.1.1.a.1 make payments to us in accordance with clause 8;
9.1.1.a.2 provide us with any information, and assistance relating to the Services as we may reasonably require within sufficient time to enable us to perform the Services in accordance with the Contract;
9.1.1.a.3 appoint a primary contact to act as the Client’s representative to liaise with us in connection with the Services;
9.1.1.a.4 carry out any preparatory and follow up work as instructed by us; and
9.1.1.a.5 adhere to the provisions of Regulation 7 of The Management of Health and Safety at Work Regulations 1999.
9.1.2 If the Client fails to meet any of the provisions of clause 9.1 above, without limiting our other rights or remedies, we shall:
9.1.2.a.1 have the right to suspend performance of the Services until the Client remedies the default (and/or terminate the Contract in accordance with clause 13.4.3 below);
9.1.2.a.2 not be held liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from our failure or delay in performing any of our obligations as a result; and
9.1.2.a.3 be entitled to claim for any costs or losses incurred by us arising directly or indirectly from the Client’s default.

10. Site Visits and Meetings

10.1.1 Any site visit(s) and meeting(s) included in our Proposal will be carried out at a time agreed between us and the Client in advance. We require a minimum of 48 hours’ notice to cancel or rearrange an agreed site visit or meeting. If we do not receive the required notice, or if we are unable to gain access to a premises at which a site visit or meeting has been agreed, we reserve the right to charge an additional fee for the aborted visit.
10.1.2 Our price is based on being able to complete our Services in the agreed number of hours or consecutive days over the period as detailed in the Proposal. We reserve the right to recover any costs incurred by way of delays or abortive visits, or for any other delays attributable to the Client including, but without limitation, failing to carry out agreed actions or not providing necessary information or services, or failing to give proper notice to terminate or cancel as detailed herein and these will be charged at our standard fee rates applicable at the time.
10.1.3 If we have to reschedule or cancel a scheduled visit, we will contact the Client as soon as reasonably practicable to minimise disruption and will book another visit as soon as reasonably practicable.

11. Errors or Discrepancies

The Client is responsible for the accuracy of any information submitted to us and for ensuring that the Proposal reflects their requirements. Our Proposal is based on the information provided to us at the time of its preparation. Should any errors or discrepancies become evident which affect the order value, we reserve the right to make adjustments to it.

12. Variation and Amendments

12.1.1 If the Client wishes to vary the services to be provided, they must notify us in writing as soon as possible. We will endeavour to make any required changes and any additional costs incurred will be invoiced to the Client.
12.1.2 If, due to circumstances beyond our control, we have to make any change in the arrangements relating to the provision of the Services, we will notify the Client immediately. We will endeavour to keep such changes to a minimum and will seek to offer the Client arrangements as close to the original as reasonably practicable in the circumstances.
12.1.3 Any agreed variation or amendment will be carried out in accordance with these Terms & Conditions and any price increase necessitated as a result will be payable in accordance with clause 8 above.

13. Termination

13.1.1 Contracts on a one-off or fixed Term basis (as outlined in clauses 2.2.1 and 2.2.2 above) will expire at the end of the Term, unless both parties agree to extend the Term in writing.
13.1.2 As detailed in clause 2.3 above, ongoing Contracts will continue for an initial Term as outlined in our Proposal, and thereafter will be automatically renewed, with the exception of the price, on the same Terms and Conditions as set out in this Contract on a rolling 12 month basis unless a written notice to terminate is given by either party in accordance with this clause 13. Such notice is to be given a minimum of 28 days before the end of the then-current Term, and will be effective only at the end of that Term.
13.1.3 We may terminate this Contract for any reason at any time, by giving 28 days’ written notice to the Client.
13.1.4 We may terminate this Contract immediately without liability to the Client by giving written notice:
13.1.4.a.1 in the event that the Client has failed to pay the fees when required to do so and fails or refuses to do so following the expiry of a written notice from us requesting such payment within 7 days;
13.1.4.a.2 in the event of the Client committing a serious criminal offence or giving to us any false or misleading statement or making any negligent or fraudulent misrepresentation in relation to this Contract; or
13.1.4.a.3 in the event that the Client breaches any of the provisions of Regulation 7 of The Management of Health and Safety at Work Regulations 1999.
13.1.5 Either Party has the right to terminate this Contract immediately if the other commits a material breach of this Contract and fails to remedy that breach within 14 days of receiving notice of the breach, or if the other goes into bankruptcy or liquidation either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets.
13.1.6 In the event of termination:
13.1.6.a.1 all payments due under this Contract shall become due and immediately payable. In respect of Services provided but for which no invoice has been submitted, we shall be entitled to submit an invoice, which shall become due and immediately payable;
13.1.6.a.2 the Client shall no longer use our company name in any future health and safety documentation, or in any other manner, and we shall accept no responsibility or liability whatsoever for these services from the date of termination;
13.1.6.a.3 the Client shall immediately return all equipment and materials provided by us. If the Client fails to do so within 28 days from the date of termination, we shall be entitled to enter onto the Client’s premises to take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe-keeping;
13.1.6.a.4 any and all obligations of the Parties which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Contract shall survive termination on a pro-rata basis.
13.1.7 The rights to terminate this Contract given by this clause 13 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.

14. Confidentiality

14.1.1 Both parties recognise that throughout the provision of the Services, certain information will be shared, which may be confidential, commercially valuable, sensitive and/or personal.
14.1.2 It is Client’s responsibility to identify and mark any such information and to notify us of the same.  Such information will only be disseminated within the Company in so far as we deem this to be reasonably necessary in order to fulfil our legal and contractual duties in the provision of our Services.  No such information will be shared outside the organisation, unless required by law, by any court order or unless so authorised by the Client in writing.
14.1.3 Unless we receive notification from the Client under clause 14.2, we are deemed to have permission to make submissions on the Client’s behalf to third party assessors such as for tenders or contractor assessment schemes, where applicable.
14.1.4 The Client warrants that they will not use any confidential information provided by us other than to perform their obligations under the Contract and will not disseminate it to any third party unless required by law, by any court order or unless so authorised by us in writing.
14.1.5 The provisions of this clause 14 shall continue in force, notwithstanding the termination of the Contract for any reason.

15. Literature and Representations

Any marketing literature is presented in good faith as a guide to represent the Services offered and does not form a part of the Contract. None of our employees or agents are authorised to make any representation concerning the Services unless confirmed by us in writing. In entering into the Contract, the Client acknowledges that it does not rely on and waives any claim for breach of any such representations, which are not so confirmed.

16. Intellectual Property

16.1.1 Subject to a written agreement to the contrary, we reserve all intellectual property rights which may subsist in the provision of the Services. Under no circumstances shall material provided by us be lent, hired out, sold or otherwise circulated by either manual or electronic means, nor shall it be photocopied or otherwise reproduced without our express written consent. We reserve the right to take such actions as may be appropriate to restrain or prevent infringement of such intellectual property rights. The Client shall not be entitled to use our company name or logo without our prior written consent.
16.1.2 The Client warrants that any document or instruction furnished or given by them will not cause us to infringe any letter patent, registered design or trade mark in the execution of our Services and will indemnify us against all loss, damages, costs and expenses awarded against or incurred by us in settlement of any claim for infringement of any patent, copyright, design, licence, trademark or any intellectual property rights which results from our use of the Client’s information.

17. No Employment

Nothing in this Contract will render or be deemed to render us an employee or agent of the Client or the Client an employee or agent of ours.

18. Assignment and Sub-Contracting

18.1.1 The Client is not entitled to assign the benefits under the Contract.
18.1.2 We may sub-contract the performance of any of our obligations under the Contract without the prior written consent of the Client. We will be responsible for every act or omission of the sub-contractor as if it were an act or omission of our own.

19. Liability and Indemnity

19.1.1 Nothing in these Terms and Conditions excludes or seeks to exclude our liability for death or personal injury caused by our negligence, or for fraud or fraudulent misrepresentation.
19.1.2 Except as provided in clause 19.1 above, we will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under the express terms contained herein, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by our employees, agents or otherwise) in connection with the performance of our obligations under the Contract. All warranties or conditions whether express or implied by law are hereby expressly excluded to the maximum extent permitted by law.
19.1.3 We hereby exclude all liability in respect of any claims arising out of any lack of information provided by the Client or any alteration to, or modification of, a Client’s procedures, working practices or conditions at the time of our investigation, unless such alteration and/or modification is made on our recommendation or with our express knowledge and consent.
19.1.4 It is both of our obligations to abide by current UK health and safety, employment and environmental legislation. We will provide, to the best of our knowledge, advice, guidance and best practice within the realms of current UK health & safety, employment and environmental legislation based on the information provided by the Client.
19.1.5 Where we have good reason to believe that our professional advice is not being followed, we will take reasonable steps to ensure that any Client overruling or neglecting our advice is formally made aware of the potential adverse consequences which may result.  We cannot be held liable for any consequences should our professional advice not be taken. We cannot be held liable for any adverse consequences where the Client has withheld information necessary for us to provide professional advice.
19.1.6 It is imperative that we are kept informed of any significant changes within the business (whether relating to the Client’s activities, products, services, people, infrastructure or equipment) that may or may not have an effect on the Client’s requirements, legal or otherwise.  Should this information not be forthcoming from the Client, or our requests for information not be responded to by the Client, we will have no liability whatsoever for any effects on the Client’s business’ requirements for which we have not been made aware or had no response to requests and have the right to terminate the contract forthwith without any financial or other liability to us whatsoever.
19.1.7 The Client will indemnify us against all damages, costs, claims and expenses suffered by us arising from loss or damage to any premises, property or equipment (including that of third parties) caused by the Client, or his agents or employees.
19.1.8 In the event of a breach by us of our express obligations under these Terms and Conditions, the remedies of the Client will be limited to damages, which in any event, will not exceed the fees and expenses paid by the Client for the Services in the 12 months immediately preceding the date on which the claim arose.

20. Restrictive Covenants

20.1.1 The Client will not, during the term of the Contract and for a period of 6 months from its expiry or termination, without our prior written consent, solicit, entice away, appoint in any way or cause to be employed, engaged or appointed any person who is or has been an employee, agent, director, consultant or independent contractor of ours in the provision of the Services.
20.1.2 Whilst the above restrictions are considered by the parties to be reasonable in all the circumstances, it is agreed that if taken together they are adjudged to go beyond what is reasonable in all the circumstances for our protection but would be judged reasonable if part or parts of the wording of them were deleted or its period reduced or an area defined, they will apply with such words deleted or with such modifications as may be necessary to make it valid and effective.

21. Force Majeure

Neither Party will be liable for any failure or delay in performing their obligations under the Contract where such failure or delay results from any cause beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism or war, governmental action or any other event beyond the control of the Party in question.

22. Waiver

The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract will constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure will not be deemed to be a waiver of any preceding or subsequent breach and will not constitute a continuing waiver.

23. Severance

The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) will be deemed severed from the remainder of these Terms and Conditions (and the Contract, as appropriate). The remainder of these Terms and Conditions will be valid and enforceable.

24. Data Protection

Both parties agree to comply with all applicable data protection legislation including, but not limited to, the Data Protection Act 1998 and the EU General Data Protection Regulation (2016/679) and any subsequent amendments thereto.

25. Third Party Rights

No part of the Contract is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply.

26. Notices

26.1.1 All notices shall be in writing, addressed to the most recent address or email address notified to the other Party and shall be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
26.1.2 Notices will be deemed to have been duly given: when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; when sent, if transmitted by email and a successful return receipt is generated; or on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid.

27. Law and Jurisdiction

27.1.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) will be governed by, and construed in accordance with, the laws of England and Wales.
27.1.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) will fall within the jurisdiction of the courts of England and Wales.