Terms of Service
In these Terms & Conditions for Client Services the following expressions shall, unless the context otherwise requires or as otherwise expressly provided in writing, have the following meanings:
1.1. “Consultancy” means New Metrics LLC, with its registered office at Office 24, Floor 2, MIC Building, Al Khuwair, Muscat, Sultanate of Oman, PC 104, PO Box 115 or EO-17, Ground Floor, Building 16, Dubai Internet City, Dubai, United Arab Emirates, as engaged, together with any subsidiary or associated or connected company or person, including any individual working for the Consultancy who shall be deemed to have been authorised by the Consultancy to act on behalf of the Consultancy.
1.2. “Client” the person, firm or company to whom Services are provided, together with any subsidiary, group or associated or connected company or person.
1.3. “Fee” means the total fee payable by the Client to the Consultancy for the Services and any other applicable fees or additional charges as set out in the Schedule.
1.4. “Person” means an individual, body corporate, an association or persons (whether corporate or not), a trust and a state and agency of state (in each case, whether or not having a separate legal personality).
1.5. “Public Course” means the training delivered by the Consultancy to multiple customers at the Consultancy’s premises or an alternative location from that of the Client.
1.6. “Schedule” means the entire schedule named ‘Schedule to Terms & Conditions for Client Services – New Metrics LLC’ that is subject to and in accordance with these Terms and any other schedules that are written subject to these Terms and signed by a director of the Client and the Consultancy.
1.7. Services” means the work to be performed by the Consultancy as described in the Schedule and is subject to these Terms.
1.8. “Terms” means these ‘Terms & Conditions for Client Services”, together with the Schedule(s) and any other terms and conditions and/ or written special conditions and/ or any other agreed documents signed by a director of the Client and the Consultancy.
1.9. “Working Day” means any day from Sunday to Thursday.
2.1. The Client requires training, coaching, consulting, implementation services and/ or any other consultancy, training and development related services for a set period of time, on a project basis or on an ad hoc basis.
2.2. The Consultancy specialises in providing training, coaching, consulting, implementation services and/ or any other training and development related services.
2.3. Both parties agree that the Consultancy will provide services to the Client on the terms and conditions as set out below in these Terms.
3.1. These Terms should be read and accepted by the Client prior to ordering the Consultancy’s Services. The Clients accepts that by engaging the Consultancy’s Services or by signing the Schedule the Client agrees to be bound by these Terms.
3.2. No variation or alteration of these Terms shall be valid unless approved in writing by a Director of the Client and the Consultancy. The variation or alteration needs to be set out in writing and a copy of the varied agreement is given to the Client stating the date on or after which such varied agreement shall apply.
3.3. These Terms constitute the entire and only agreement between parties with regards to the subject matter herein, and supersede all prior and pre-existing representations agreements between the Client and the Consultancy in relation to the subject matter herein.
3.4. These Terms apply only to the relationship between the Client and the Consultancy. Except as expressly provided elsewhere in these Terms, a person who is not a party to these Terms shall not have any rights to enforce any of these Terms.
3.5. By placing an order for Services from the Consultancy the Client warrants that it is legally capable of entering into binding contracts on behalf of the Client.
3.6. The Consultancy may instruct one or more other persons, companies or firms, whether as a sub-contractor or in any other capacity and not being part of the Consultancy, to perform its Services subject to terms and conditions the Consultancy considers appropriate. Unless agreed in writing, no additional fee shall be payable by the Client to the Consultancy in these circumstances. However, the Client is liable to pay the Fee and other sums payable to the Consultancy as if all Services had been performed personally by the Consultancy.
3.7. The illegality, invalidity or unenforceability of a provision of these Terms under any law will not affect the legality, validity or enforceability of that provision under another law or the legality, validity or enforceability of another provision.
3.8. These Terms and any dispute arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of the Sultanate of Oman. The parties to these Terms irrevocably agree, for the sole benefit of the Consultancy that, subject as provided below, the courts of the Sultanate of Oman shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual claims). Nothing in this clause shall limit the right of the Consultancy to take proceedings against the Client in any other court or competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
3.9. Clause headings are for convenience only and are not to be used in its interpretation.
3.10. References to “in writing” or “written” shall include email messages.
4. Services & Performance
4.1. The Services provided by the Consultancy to the Client is training, coaching, consulting, implementation service and/ or any other training and development related services, and need not be related to and are not conditional on the take-up of the Client of other services offered by the Consultancy. The exact description of the Services is outlined in the Schedule.
4.2. Equally, these Terms do not constitute the entirety of the Consultancy’s Services to the Client. The Client may qualify for other services, subject to a separate agreement.
4.3. The Client’s and the Consultancy’s nominated representatives are outlined in the Schedule. The representatives of both parties are responsible for dealing with all administrative and business matters regarding these Terms. If the Client or the Consultancy identifies a particular need to introduce another representative to the relationship, either parties’ prior permission in writing will be sought.
4.4. In case the outcome of the Services of the Consultancy are highly dependent on the general performance, capability and attendance of any individuals, the Consultancy cannot guarantee set deliverables and/ or success rates of the Services, unless otherwise agreed in the Schedule. For the avoidance of doubt, the Consultancy shall not be responsible for attendance of Client’s personnel at any training, coaching, consulting, , implementation service and/ or any other training and development related services delivered by the Consultancy. The Client shall put in reasonable effort to ensure such attendance of their personnel.
4.5. The Client will provide the Consultancy upon request access to all the company information that is reasonably needed for the Consultancy to successfully deliver the Services in a timely manner, including the option to speak to relevant personnel of the Client. Delay in delivery of the Services by the Consultancy resulting out of the Client’s failure to provide such information in a timely manner shall not be classed as non-performance by the Consultancy or will cause the Consultancy to breach these Terms in any way.
4.6. Delay in delivery of the Services by the Consultancy resulting out of delays caused by a certifying body with regards to any certification as part of the Services, shall not be classed as non-performance by the Consultancy or will cause the Consultancy to breach these Terms in any way.
4.7. The Consultancy will, if requested by the Client, provide a written report outlining the Consultancy’s progress on the provision of the Services. Except as otherwise specified in these Terms or agreed from time to time between the Client and the Consultancy, the Consultancy shall not be under the day to day control or supervision of the Client or any of its representatives in respect of the performance of the Consultancy’s obligations under these Terms.
4.8. The Client will not, for the duration of these Terms and for a period of twelve (12) months after the termination of these Terms, either on their own account or through another company or firm or in association with any other person, directly or indirectly solicit or entice away or try to solicit or entice away from the Consultancy any individual who is an Employee of the Consultancy.
4.9. The Client is not authorized to enter into a direct or indirect partnership (including but not limited to a contract, freelance assignment, permanent employment or third party agreement) or hold any further discussions related to agreements, future assignments or any other matters with any person or party (i.e. Trainer, Applicants, Consultants, Employees, third party provider) that was introduced to or engaged with the Client by the Consultancy without prior written approval by a Company Director for three (3) years from last date the concerned person or party was introduced to or engaged with the Client. An introduction can be by way of verbal introduction, submission of profiles or CVs, meetings, phone conferences, or profiles submitted as part of proposals or as part of the assignment delivery outlined in the respective Schedule(s).
In cases where the Client is in breach of this clause, the Consultancy will be authorized to charge the Client following fees:
- In cases where the Client enters directly into a contract, consultancy or so called “freelance” agreement with any person (i.e. Trainers, Consultants, Employees, Applicants, third party providers) introduced to the Client through the Consultancy, whether directly or indirectly through a third party, the Consultancy is entitled to charge a 40% fee based on the overall contract or assignment value to the Client from the date of the Client entering into such agreement(s) with the concerned person or party for the entire duration of the agreement and any subsequent agreements falling into the three (3) year validity period of this clause. In such cases the Client is obligated to share full details of the commercial agreement(s) entered with the concerned person or party (i.e. scope of work, duration, number of days, overall fees) with the Consultancy to determine the fee.
- In cases where the Client enters directly into a permanent employment relationship with any person (i.e. Trainers, Consultants, Employees, Applicants) introduced to the Client through the Consultancy falling into the three (3) year validity period of this clause, the Consultancy is entitled to charge the Client an introduction fee equal to 30% of the annual remuneration, including pay and full benefits, payable by the Client to the relevant individual in the year following the commencement of that individual’s employment.
This clause will remain in effect after expiration of the Terms.
4.10. Neither the Client nor the Consultancy shall be entitled to assign or transfer the benefit of these Terms.
4.11. The Client and the Consultancy agree and declare that the Consultancy is engaged to provide the Services as an independent consultancy. Nothing in these Terms creates an employment, fiduciary, agency or joint venture relationship either between the Client and the Consultancy, or between the Client’s and the Consultancy’s employees.
4.12. Nothing in these Terms shall prevent the Consultancy from being engaged, employed, concerned or having any financial interest in any capacity in any other business, trade, profession or occupation during or after these Terms.
5. Client Obligations
5.1. Where the Consultancy is required to perform Services on the premises of the Client, the Client agrees to provide a full and safe working environment for the Consultancy’s staff and subcontractors, including any safety wear and equipment as may be necessary in performing the required Services.
5.2. The Client agrees to ensure that the Consultancy’s staff and subcontractors are informed of all relevant health and safety requirements of the premises of the Client at the outset of any Services performed.
5.3. The Client agrees to have in place suitable employer’s liability and public liability insurance at all times when Services are performed by the Consultancy on the premises of the Client.
5.4 The full obligation of the Client will be outlined in the Schedule for the specific project.
6. Public Holidays
In case any public holiday will fall within the specific dates or within the duration of a project as specified in the Schedule and this has an effect on the delivery of the Services, both parties will agree in writing an amended arrangement for the Consultancy to be able to deliver their Services to the Client, which may include changing the timings and/ or dates of any training, coaching, consulting, , implementation services and/ or any other training and development related services . The Client will be liable for the cover of any cancellation and/ or booking charges relating to the travel arrangements made for the training, coaching, consulting, , implementation service and/ or any other training and development related services concerned, that will be occurred in full.
7. Cancellation and Postponement
7.1. Unless the Schedule outlines a fixed date or duration for the assignment, cancellation or postponements by the Client of agreed training, coaching, consulting, , implementation services and/ or any other training and development related services days, for any reason, will not incur any charges for the Client if twenty-one (21) days’ notice or more in accordance with Clause 8.4 is given by the Client. If less than twenty-one (21) days’ notice up to eight (8) days before commencement of the Services concerned, in accordance with Clause 8.4 is given, the Client will pay the Consultancy 50% of the agreed total value of the Services concerned, in accordance with Clause 13. If less than eight (8) days’ notice in accordance with Clause 8.4 is given, the Client will pay the Consultancy 100% of the agreed total value of the Services concerned, in accordance with Clause 13. In case the Client has given notice of cancellation or postponement less than twenty-one (21) days before commencement of the Services concerned, the Client will be liable to cover any cancellation and/ or booking charges relating to the travel arrangements made for training, coaching, consulting, , implementation services and/ or any other training and development related services concerned, that will be occurred in full.
7.2. If the Consultancy is unable to provide the Services due to any reason, including illness, an accident or injury, or unforeseen circumstances, he shall advise the Client of that fact as soon as reasonably possible. All reasonable endeavors shall be made by the Consultancy to offer the Client suitable alternative dates to deliver the agreed Services. For any Services that will be provided by an agreed trainer or facilitator, the Consultancy shall endeavor to offer a suitable and skilled replacement to be available at the initial agreed dates or for the duration of a project as specified in the Schedule.
8.1. These Terms will continue to apply to all Services provided by the Consultancy to the Client until such time that these Terms are changed.
8.2. The Consultancy may at its discretion terminate or suspend these Terms upon fourteen (14) days’ notice to the Client if:
8.2.1. the Client ceases to trade or otherwise terminates business operations;
8.2.2. becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or any proceeding is instituted against the Client;
8.2.3. fails to make payment in accordance with these Terms.
8.3. The Consultancy may at its discretion immediately terminate or suspend these Terms if the Client commits a material breach, or a series of breaches, the combination of which constitutes a material breach and the Client fails to remedy such breach(es) within ten (10) days after receipt of notice giving details of the breach(es) and requiring them to be remedied.
8.4. Any notice required to be given under these Terms shall be delivered by hand or sent by email. The addresses of each party are specified in the Schedule. Notices shall be deemed to have been given and served, if delivered by hand, at the time of delivery; if sent by email, at the time of dispatch if dispatched on a Working Day before 5.30 pm or in any case at 10.00 am on the next Working Day after the day of dispatch, unless the transmission report indicates a faulty or incomplete transmission or, within the relevant Working Day, the recipient informs the sender that the email message was received in an incomplete or illegible form.
8.5. Any outstanding Fees will be payable to the Consultancy by the Client in accordance with Clause 13, even after the termination of these Terms.
9. Information, Confidentiality and Publicity
9.1. Both parties shall observe the confidentiality of any information supplied to it by the other party, and not disclose it to any other person without prior written permission from the other party, both during the term of these Terms and after its termination.
This restriction does not apply to:
9.1.1. any use of disclosure authorised in writing by the other party or required by law;
9.1.2. any information which is already in or comes into the public domain otherwise than through the other party’s unauthorised disclosure;
9.1.3. any information where to the knowledge of any of the parties, it occurs through the unauthorised disclosure of any person who owed the other party an obligation of confidentiality in relation to the information disclosed.
9.2. Any information concerning the content and terms of these Terms may not be disclosed without prior permission in writing by the Client.
9.3. The Consultancy acknowledges that due to the nature of the engagement with the Client, he may be required to hold and process personal data and/ or sensitive personal data relating to individuals. The Consultancy hereby agrees that it will comply in all respects with national and international data protection laws and regulations as amended or replaced from time to time.
9.4. The Consultancy will process personal data and/ or sensitive personal data only as is necessary for the carrying out of the Services and always in accordance with Clause 9.3.
10.1. The Client shall indemnify the Consultancy against all liabilities, costs, expenses, damages and losses (including any direct, indirect and consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Consultancy arising out of or in connection with:
10.1.1. any breach or negligent performance or non-performance of these Terms; or
10.1.2. any claim made against the Consultancy by a third party arising out of or in connection with the provision of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of these Terms by the Client, its employees, agents or sub-contractors.
11. Limitation of Liability
11.1. The Client acknowledges that the Consultancy’s Services are by way of training, advice, assistance guidance and support only, whether delivered directly or through any other personnel, agents or third parties. The Consultancy’s Services do not constitute direction nor instruction to act and they are purely for consideration by the Client. Related decisions and their consequences are the responsibility of the Client alone.
11.2. The Consultancy will make every effort to ensure reasonable standards of skills, integrity and reliability for himself and amongst its assigned personnel and representatives.
11.3. Whilst the Consultancy will make every effort to fulfil the Client’s instructions in accordance with these Terms, the Consultancy shall not be liable in any manner whatsoever:
11.3.1. to any third party who, without the prior written consent of the Consultancy, seeks to rely on the Consultancy’s performance of these Terms or any advice or information resulting from the Client’s instructions to the Consultancy;
11.3.2. in respect of any services outside the scope of these Terms unless the Consultancy has agreed to perform the services in writing in advance.
11.4. Nothing in these Terms shall operate to limit or exclude any liability if such a provision is prohibited by law.
12. Copyright and Property Rights
12.1. All intellectual property rights in material or IP addresses supplied by the Consultancy is subject to copyright and owned by the Consultancy and therefore any duplication in whole or in part is strictly prohibited.
12.2. Customised documents specifically developed for the Client through the exercise of these Terms that are charged directly to the Client as part of these Terms, will be kept in ownership of the Client and can be further utilised by the Client outside of these Terms.
12.3. The Consultancy retains all rights to written material and software developed prior to, independently and/ or subsequent to these Terms. For the avoidance of doubt, independently developed materials are any materials developed during time periods that are not charged directly to the Client as part of these Terms.
12.4. The Consultancy shall have the right and license to use the name and logo of the Client in any publication and marketing materials, and their distribution or display, and the Consultancy shall have the right and license to use any testimonials or other written statements of the Client for the same purpose.
13.1. The Client shall pay the Consultancy in consideration of their Services a Fee as specified in the Schedule. The Schedule will outline when the Fee, or which part of the Fee, becomes payable.
13.2. Once the Fee has become payable, the Consultancy agrees to invoice the Client for its Fee, or part of its Fee. The Client agrees to pay this invoice within fourteen (14) days of date of the invoice.
13.3. The Consultancy shall:
13.3.1. show on the invoice any applicable business taxes;
13.3.2. submit all invoices electronically via email to the Client’s nominated representative or any other person stated by the Client;
13.3.3. submit copies of supporting paperwork, such as receipts, for any additional charges as detailed in the Schedule.
13.4. All Fees quoted in the Schedule are inclusive of normal business expenses. If other fees or additional charges will be applicable, they will be specified in the Schedule.
13.5. The Consultancy shall be liable for all income and withholding tax liabilities.
13.6. The Client warrants in all instances that where a valid Client purchase order is required to be quoted on any invoices, the Client will provide such purchase order details as necessary in order to facilitate payment in good time and for the full value of any Service provided.
13.7. The Consultancy is not liable under any circumstances for the failure of the Client to provide any necessary purchase order information as may be required, and the Client accordingly acknowledges that all fees are due and payable according to these Terms in the instances where a valid purchase order has failed to be provided.
13.8. Any Fees outstanding beyond agreed terms are subject to a late payment interest charge of 5% above the Central Bank of Oman’s base rate prevailing at the end of each month that such debt is outstanding.
13.9. The Consultancy reserves the right to refuse delivery of Services which have not been paid in accordance with the payment schedule as described in the Schedule, subject to cancellation terms in Clause 7.
13.10. Any prices quoted to the Client for the provision of Public Courses will be based on prevailing price lists in force at that time. Such price lists are subject to change and amendment at any time.
13.11. All Fees are subject to annual or other such periodic review and amendment in order to take into account the changing nature and variation of wages, materials and other costs in providing the services to the Client.
14. Force Majeure
14.1. If either party is unable to perform its obligations under these Terms as a result of a Force Majeure event, then that party’s obligations shall be suspended for as long as the Force Majeure event continues.
14.2. As soon as reasonably possible upon the occurrence of the Force Majeure event, notification shall be given in writing by the party, whose ability to perform its obligations under these Terms are affected, to the other party specifying the anticipated time for which such event is likely to continue and upon the cessation of such event the obligations of these Terms shall be resumed.