TERMS & CONDITIONS SUPPLY OF SERVICES
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1 INTERPRETATION
1.1 In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 10.6.
Contract: the contract between EB and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from EB.
Deliverables: any materials provided by EB for the provision of training sessions to the Customer.
EB: Elaine Ball Limited a private company limited by shares incorporated and registered in England and Wales with company number 8543123 whose registered office is at 40A Market Place, Ripon, North Yorkshire, United Kingdom, HG4 1BZ.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks], business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer's order for Services as set out in the Customer's purchase order form, or the Customer's written acceptance of a quotation by EB, as the case may be.
Services: the marketing advice services supplied by EB to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in writing by EB to the Customer.
1.2 In these Conditions, the following rules apply:
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(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such
statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) a reference to writing or written includes faxes and e-mails. 2 BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when EB issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of EB which is not set out in the Contract.
2.4 Any samples, descriptive matter or advertising issued by EB, and any descriptions or illustrations contained in EB's catalogues, brochures, social media pages, blogs or website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3 SUPPLY OF SERVICES
3.1 EB shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 EB shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 EB shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services and EB shall notify the Customer in any such event.
3.4 EB undertakes to the Customer that the Services will be provided using reasonable care and skill.
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4 4.1
CUSTOMER'S OBLIGATIONS The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b) co-operate with EB in all matters relating to the Services;
(c) provide EB with access to the Customer's premises, office accommodation and other facilities as reasonably required by EB;
(d) provide EB with such information and materials as EB may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects; and
(e) keep and maintain all materials, equipment, documents and other property of EB (EB Materials) at the Customer's premises in safe custody at its own risk, maintain EB Materials in good condition until returned to EB, and not dispose of or use EB Materials other than in accordance with EB's written instructions or authorisation.
If EB's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) EB shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays EB's performance of any of its obligations;
(b) EB shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from EB's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse EB on written demand for any costs or losses sustained or incurred by EB arising directly or indirectly from the Customer Default.
Charges and payment
The Charges for the Services shall be on a time basis:
(a) the Charges shall be calculated in accordance with EB's standard daily fee rates, as set out in the Order;
(b) EB's standard daily fee rate is calculated on the basis of a seven-hour day from 9.00 am to 5.00 pm worked on Business Days;
4.2
5 5.1
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(c) EB shall be entitled to charge the standard daily fee rate on a pro-rata basis for each part day worked or for any time worked outside the hours referred to in clause 5.1 (b); and
(d) EB shall be entitled to charge the Customer for any expenses reasonably incurred in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by EB for the proper performance of the Services, and for the cost of any materials.
5.2 EB reserves the right to increase its standard daily fee rates, provided that such charges cannot be increased more than once in any 12 month period. EB will give the Customer written notice of any such increase 3 months before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify EB in writing within 10 Business Days of the date of EB's notice and EB shall have the right without limiting its other rights or remedies to terminate the Contract by giving 10 Business Days written notice to the Customer.
5.3 The Customer shall pay each invoice submitted by EB as follows:
(a)
(b)
Monthly retainer fees:- to be paid monthly in advance before the 1st day of the next following month, in full and in cleared funds to a bank account nominated in writing by EB.
Workshops and Training:- to be paid in advance prior to the workshop / training day taking place, in full and in cleared funds to a bank account nominated in writing by EB, unless otherwise agreed in writing by both parties.
5.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by EB to the Customer, the Customer shall, on receipt of a valid VAT invoice from EB, pay to EB such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 Without limiting any other right or remedy of EB, if the Customer fails to make any payment due to EB under the Contract by the due date for payment (Due Date), EB shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current Bank of England's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against EB in order to justify withholding payment of any such amount in whole or in part. EB may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by EB to the Customer.
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6 6.1
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INTELLECTUAL PROPERTY RIGHTS
In relation to the Deliverables EB shall retain ownership of all IPRs in the Deliverables;
The Supplier warrants that it will not use, copy, develop, modify or infringe EB’s Intellectual Property Rights in the Deliverables.
CONFIDENTIALITY
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 6 shall survive termination of the Contract.
TERMINATION
Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debt as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent
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8.2
8.3 8.4
8.5
9 On
amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 10 Business Days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(j) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
Without limiting its other rights or remedies, EB may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party 3 months' written notice.
Without limiting its other rights or remedies, EB shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and EB if the Customer becomes subject to any of the events listed in clause 7.1 (a) to clause 7.1 (j), or EB reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
14 Day Training Refund (online training academy)
If the customer notifies EB in writing within 14 days of entering into an agreement to enrol to the online training provided by EB that it no longer wishes to proceed with the training and that the customer has not logged onto or sought to download or in anyway interact with the online training within the 14 day period then the customer will be entitled to a full refund of any charges it has paid to EB.
CONSEQUENCES OF TERMINATION termination of the Contract for any reason:
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10 10.1
10.2
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12 12.1
(a) the Customer shall immediately pay to EB all of EB's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, EB shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all EB Materials which have not been fully paid for. If the Customer fails to do so, then EB may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safekeeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
NON-SOLICITATION
The Customer shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of 12 months after the termination or expiry of this agreement, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor] of the Supplier in the provision of the Services.
Any consent given by the Supplier in accordance with clause 6.1 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier's employee[, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
LIABILITY/CONSEQUENTIAL LOSS
EB shall not have any liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Contract and whether or not such loss was foreseeable on the Commencement Date.
GENERAL
Assignment and subcontracting:
(a) EB may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract in any manner any or all of its obligations under the Contract to any third party or agent.
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(b) The Customer shall not, without the prior written consent of EB, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
12.2 Notices:
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
(c) This clause 10.2 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
12.3 Waiver:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
12.4 Severance:
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(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.5 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
12.6 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by EB.
12.7 Governing law and jurisdiction: This Contract, and any dispute or claim 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, English law, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of England.
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