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 and retainer contracts involving Birley HIA. These clauses are incorporated into and form an integral part of our contract.
1.2. The parties: Birley HIA of England (hereinafter known as ‘Birley HIA’, or ‘we’ or ‘us’) and the Client: ‘the Client’ is the party with whom a contract of supply exists.
2. Statement of Professional Standards
2.1. Birley HIA will conduct its business in accordance with the Code of Ethics of the International Association of Impact Assessment (IAIA) and the international standards for ethical medical research. Likewise, the Client will maintain best international practise with regard to the collection, management and use of information. Birley HIA will have the right to resign its contract in such circumstances if, in its judgement, it is unable to proceed with the contract and maintain its professional standards. Birley HIA 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.
2.2. Birley HIA reserve the right to withdraw from contracts where, in our view, ethical standards are in doubt.
2.3. We expect all impact assessments to be conducted openly and for the benefit of affected communities to the full extent possible without breaching client confidentiality or competitiveness.
2.4. We seek to minimise our ecological and carbon footprint through careful use of resources and modes of transportation. Birley HIA regard climate change and poverty as major determinants of health.
3.1. Except when otherwise agreed in writing, Birley HIA enters into agreements to participate in bids on a non-exclusive basis.
4.1. All commitments with respect to the timing and scope of a project given to the client by Birley HIA – whether verbal or written – are made in good faith but are made necessarily in advance of knowing the full scope of the difficulties that may arise (for example, unforeseeable difficulty in obtaining certain information). For this reason, while Birley HIA 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 always guarantee performance in either respect.
4.2. Where the contract specifies that our service will be provided by a named individual, Birley HIA agrees to take all reasonable steps to ensure that this person will remain on this assignments for the full length of the contract. We further agree to obtain the client’s agreement to any significant substitution of personnel that is necessitated by unforeseen circumstances – such as staff sickness.
5.1. Birley HIA agrees to hold all information provided by the Client confidential where the client so specifies (save where such information is known to Birley HIA already, or exists already in the public domain) until either (a) the information enters the public domain, or (b) we are given the same information by a third party. or (c) we are released from its confidentiality requirement by the client, or (d) the client is found in breach of contract with Birley HIA by a court of law (including non-payment of account).
5.2. The client agrees to hold confidential all information about Birley HIA’s proposal(s), fee structures, fees and personnel.
6. Materials Supplied
6.1. Birley HIA agrees to handle any materials such as documents, supplied by the client to Birley HIA, in a responsible fashion, and return them to the client upon request. However, we 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.
7. Conflict of Interest
7.1. Birley HIA will decline any third party contract that would create a conflict of interest with the client’s previously agreed instructions.
7.2. Birley HIA 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 Birley HIA is acting, or has acted, for another client at the time that it becomes apparent to Birley HIA 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 Birley HIA in the light of this revelation to the extent that it is affected by the potential conflict of interest. Such a declaration by Birley HIA will be general in nature, so as not to prejudice the confidentiality with the third party.
7.3. Birley HIA will have the right to resign its contract in such circumstances if, in its judgement, it is unable to proceed with the contract and maintain its fiduciary duty. Birley HIA 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.
8. Rights of Ownership
8.1. Birley HIA warrants that all personnel will be employed on terms that protect the Clients intellectual property rights.
8.2. Birley HIA has a substantial body of intellectual property built up over a period of more than 25 years. This ‘underlying IP’ includes, but is not limited to, databases, analyses, reports, evaluations, photography, PowerPoint slides, training courses, charts and graphs, held both electronically and on paper. When a client contracts with Birley HIA to provide consultancy services, this does not transfer any of Birley HIA’s underlying IP to any client under any circumstances.
8.3. Notwithstanding any payments received from the client, all rights of ownership to all materials prepared by Birley HIA, whether written or not, shall remain the property of Birley HIA: copyright and distribution rights are reserved by Birley HIA at its sole discretion, except where these rights are explicitly stated in writing to have been waived, or where the contract between Birley HIA and the client explicitly so provides, or where the material is so endorsed by Birley HIA.
8.4. Birley HIA, however, grants a royalty free licence, without prejudice to its position under the previous paragraph, to the client to copy freely any material provided by Birley HIA as part of work wholly commissioned by the client provided that distribution of these copies is exclusively within the client’s particular organisation.
8.5. 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 Birley HIA for the client.
8.6. The right to distribute copies of Birley HIA 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 Birley HIA. Additional copies of such reports for internal distribution are available, at the time of purchase or later, at greatly reduced cost.
8.7. The client’s interests in respect of this clause and any materials provided by the client to Birley HIA are protected by Birley HIA’s blanket confidentiality commitment in respect of the dissemination of any and all materials related specifically to the client’s affairs outlined above.
9. Time Basis for Contracts
9.1. 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).
9.2. The unit of activity is normally the Hour, except where otherwise agreed in advance. Our working Day is eight Hours, inclusive of a break for lunch.
9.3. Activity time includes all office time spent acting for the client.
9.4. 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.
9.5. Activity logs will be provided to clients upon request.
9.6. Travel days are charged at the normal fee rate. Long-haul flights are undertaken in Business Class accommodation or its equivalent. BHIA expect that appropriate HSSE procedures will be adopted to ensure the health and safety of our own personnel in the field.
10.1. Birley HIA 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.
10.2. We do not levy a fixed daily dislocation charge.
10.3. In the case of ‘net of expenses’ contracts, Birley HIA is hereby authorised to incur, without prior notice to the client, ‘reasonable’ travel expenses (as outlined below) in performing the client’s instructions. The client agrees to reimburse these in addition to the contract fee.
10.4. All expenses are payable for the total activity time (as defined above): i.e. including travel to and from the client or travel to and from third parties on behalf of the client.
10.5. Invoices for expenses will normally be presented monthly. Birley HIA may, at its sole discretion, choose exceptionally to present invoices more or less frequently, to reflect the level of expense incurred.
10.6. 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 Birley HIA’s discretion.
10.7. 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.
10.8. ‘Reasonable’ travel expenses are those generally applied within international corporations for their senior executives. For illustrative purposes, they include Business Class international air travel for long-haul flights (more than eight hours), Economy (or ‘coach’) class short-haul and internal flights, accommodation and incidental costs within a hotel suitable for international business affairs, all meals at an equivalent grade of premises, 2nd class rail travel in developed nations, 1st class rail travel in developing nations, and taxis. Where appropriate to the circumstances, we reserve the right to vary the class of travel to meet the business need.
10.9. 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.
10.10. 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.
10.11. The client should note that travel fares are sometimes charged on the basis of travel to and from Birley HIA premises, which may not be the actual journey made, as our consultants may be travelling from a location required for another client’s business.
10.12. Birley HIA employees are required to obtain receipts for expenses wherever practical. These are retained by Birley HIA and are available for inspection by the client upon his request.
11.1. The remuneration structure agreed between the client and Birley HIA may be based on a number of methods. These are a ‘retainer’, a ‘fixed fee’, or a ‘time based rate’ (e.g. day rate, also known as a per diem fee, or an hourly rate), and an ‘introduction fee’.
11.2. The client agrees to pay Birley HIA according to the fee structure outlined in Birley HIA’s project proposal, as amended by subsequent written correspondence.
11.3.’ Retainer fee’ shall be defined as a payment made to secure Birley HIA’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.
11.4. ‘Fixed fee’ contracts cover the performance of an agreed service as outlined in our Project Proposal for an agreed remuneration. Extra time incurred by Birley HIA in the performance of the ‘fixed fee’ component of a contract shall be borne by Birley HIA. The fee shall be fixed in the currency in which the quotation is made, regardless of exchange rate movement.
11.5. The ‘daily rate’ and ‘hourly rate’ shall be charged in accordance with the criteria defined above.
11.6. Where Birley HIA introduces the client to a third party, which Birley HIA identifies to the client as a potential ‘partner’ (as defined in 10.8), Birley HIA shall receive a payment from the client by way of an ‘introduction fee’. The fee shall be triggered under the circumstances defined in the particular contract with the client.
11.7. 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.
11.8. 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.
11.9. Where Birley HIA 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, Birley HIA shall be entitled to the said introduction fee whenever the agreement between the parties is concluded.
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 Birley HIA 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.