Terms and Conditions

AGREED TERMS AND CONDITIONS

1. Interpretation
   • Definitions:

• Interpretation:
  • A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
  • Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  • A reference to writing or written includes email.

2. Commencement and term

The Contract shall commence on the date when it has been signed by both parties and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than three months’ written notice to terminate, expiring on or after the first anniversary of the Services Start Date.

3. Supply of services
   • The Supplier shall supply the Services to the Client from the Services Start Date in accordance with the Contract.
   • In supplying the Services, the Supplier shall:
     • perform the Services with reasonable care and skill;
     • use reasonable endeavours to perform the Services in accordance with the service description set out in Schedule 1;
     • observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Client’s premises and have been communicated to the Supplier, provided that the Supplier shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
     • take reasonable care of all Client Materials in its possession and make them available for collection by the Client on reasonable notice and request, always provided that the Supplier may destroy the Client Materials if the Client fails to collect the Client Materials within a reasonable period after termination of the Contract.
   • The Supplier shall use all reasonable endeavours to meet any performance dates specified in Schedule 1, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
   • The Supplier reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.
4. Client’s obligations
   • The Client shall:
     • co-operate with the Supplier in all matters relating to the Services;
     • provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client’s premises, office accommodation, data and other facilities as reasonably required by the Supplier or any of them;
     • provide, in a timely manner, such information as the Supplier may require, and ensure that it is accurate and complete in all material respects; and
   • If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, the Supplier shall:
     • not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
     • be entitled to payment of the Charges despite any such prevention or delay; and
     • be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.

5. Change Control
   • Either party may submit a written request for Change to the other party in accordance with this clause 5, but no Change will come into effect until a Change Control Note has been signed by the authorised representatives of both parties.
   • If the Client requests a Change:
     • the Client will submit a written request to the Supplier containing as much information as is necessary to enable the Supplier to prepare a Change Control Note; and
     • within twenty Business Days of receipt of a request, the Supplier will, unless otherwise agreed, send to the Client a Change Control Note.
   • If the Supplier requests a Change, it will send to the Client a Change Control Note.
   • A Change Control Note must contain sufficient information to enable the Client to assess the Change, including as a minimum:
     • the originator of the Change and date of request;
     • description of the Change;
     • details of the effect of the proposed Change on:
       • the Services;
       • the Charges; and
       • any other term of this Contract;
     • the date of expiry of validity of the Change Control Note; and
     • provision for signature by the Client and Supplier.
   • If, following the Client’s receipt of a Change Control Note pursuant to clause 5.2 or clause 5.3:
     • the parties agree the terms of the relevant Change Control Note, they will sign it and that Change Control Note will amend this Contract;
     • either party does not agree to any term of the Change Control Note, then the parties shall attempt to negotiate in good faith, but either party may in its absolute discretion decline to agree to the proposed Change.
   • Each party will bear its own costs in relation to compliance with the Change Control Procedure.
6. Data protection

The parties shall comply with their obligations in accordance with the Data Protection Legislation.

7. Intellectual property
   • The Supplier and its licensors shall retain ownership of all Supplier IPRs. The Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials.
   • The Supplier grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to use the Supplier IPRs for the purpose of receiving and using the Services and the Deliverables in the Client’s business during the term of the Contract but not for any other purpose. The Client may not use any Supplier IPRs to provide training or other services to any other person, whether within or outside the Client’s business.
   • The Client grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of the Contract for the purpose of providing the Services to the Client in accordance with the Contract.
8. Charges and payment
   • In consideration for the provision of the Services, the Client shall pay the Supplier the Charges in accordance with this clause 8 and Schedule 2
   • The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Services Start Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Services Start Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
   • All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
   • The Supplier shall submit invoices for the Charges plus VAT if applicable to the Client at the intervals specified in Schedule 2. If no intervals are so specified the Supplier shall invoice the Client at the end of each month for Services performed during that month. Each invoice shall include all reasonable supporting information required by the Client.
   • The Client shall pay each invoice due and submitted to it by the Supplier, within the timescales specified in Schedule 2, to a bank account nominated in writing by the Supplier.
   • If the Client fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 10 (Termination):
     • the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
     • the Supplier may suspend all Services until payment has been made in full.
   • All amounts due under the Contract from the Client to the Supplier shall be paid by the Client in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
   • The Supplier reserves the right to retain all reports, certifications or other Key Deliverables until it has received payment in full from the Client in respect of each payment due from time to time.
9. Limitation of liability
   • References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
   • Nothing in this clause 9 shall limit the Client’s payment obligations under the Contract.
   • Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
     • death or personal injury caused by negligence;
     • fraud or fraudulent misrepresentation; and
     • breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
   • Subject to clause 9.2 (No limitation on Client’s payment obligations), and clause 9.33 (Liabilities which cannot legally be limited):
     • the Supplier’s total liability to the Client shall not exceed the total Charges paid or payable by the Client in respect of Services provided by the Supplier in the contract year in which the breaches occurred. For the purposes of this clause a contract year means a 12-month period commencing with the Services Start Date or any anniversary of it.
   • Subject to clause 9.22 (No limitation on Client’s payment obligations) and clause 9.33 (Liabilities which cannot legally be limited), this clause 9.55 sets out the types of loss that are wholly excluded:
     • loss of profits;
     • loss of sales or business;
     • loss of agreements or contracts;
     • loss of anticipated savings;
     • loss of use or corruption of software, data or information;
     • loss of or damage to goodwill; and
     • indirect or consequential loss.
   • Unless the Client notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10. Termination
    • Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
      • the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
      • the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
      • the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
      • the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
    • Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Client if:
      • the Client fails to pay any amount due under the Contract on the due date for payment; or
      • there is a change of control of the Client.
    • On termination of the Contract for whatever reason:
      • the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
      • any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
      • termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.

11. General
    • Force majeure. Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
      • acts of God, flood, drought, earthquake or other natural disaster;
      • epidemic or pandemic;
      • terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
      • nuclear, chemical or biological contamination or sonic boom;
      • any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
      • collapse of buildings, fire, explosion or accident; and
      • any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
      • non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
      • interruption or failure of utility service.
    • Provided it has complied with clause 11.1.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
    • The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
    • The Affected Party shall:
      • as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and
      • use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
    • If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than six weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving four weeks’ written notice to the Affected Party.

• Assignment and other dealings.
  • The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Supplier’s prior written consent.
  • The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
• • Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, clients or suppliers of the other party except as permitted by clause 11.3.
  • Each party may disclose the other party’s confidential information:
    • to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
    • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  • Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
• Entire agreement.
  • The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  • Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
• No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
• • A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
  • A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
• If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 11.7 shall not affect the validity and enforceability of the rest of the Contract.
• • Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
    • delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
    • sent by email to the address specified in the Contract Details.
  • Any notice or communication shall be deemed to have been received:
    • if delivered by hand, at the time the notice is left at the proper address;
    • if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
    • if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.8.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
  • This clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
• Third party rights.
  • The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
  • The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
• Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
• Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

Charges for annual contract services in respect of Competent Health and Safety Advisor

• The Supplier shall invoice the Client at the end of each month for Services performed during that month and payment shall be due within 30 days of the date of the invoice.

Charges for ad hoc advisory Services

• The Supplier shall invoice the Client at the end of each month for Services performed during that month and payment shall be due within 30 days of the date of the invoice.

Charges for Training Services

• The Supplier shall issue an invoice for the Charges in relation to training, which shall be payable by the Client no less than 14 days before the planned date for delivery of the training. Where training is booked less than 14 days prior to the planned date, the Charges shall be payable in full at the time of booking.
• If the Contract for provision of training is cancelled by the Client, the Supplier reserves the right to charge a cancellation fee. The cancellation fee shall be:
  • In the case of cancellation more than 14 days but less than 28 days prior to the planned date for the training: 50% of the Charges. The Supplier may at its option agree to apply the cancellation fee towards re-booking the training at a later agreed date;
  • In the case of cancellation between 7 days and 14 days prior to the planned date for the training: 50% of the Charges;
  • In the case of cancellation on 7 days’ notice or less: 100% of the Charges.