1. INTERPRETATION The following definitions and rules of interpretation apply in these Conditions. “Business Day” meaning a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. “Charges” the charges payable by the Customer for the supply of the Services and/or the Retainer Services to be paid in accordance with Clause 5 and which are set out in or as part of the Specifications. “Commencement Date” has the meaning given in Clause 2.1 “Conditions” these terms and conditions as amended from time to time in accordance with Clause 2.4. “Contract” the contract between the Supplier and the Customer for the supply of Services and/or Retainer Services in accordance with these Conditions. “Customer” the person or firm who purchases Services and/or Retainer Services from the Supplier. “Customer Default” has the meaning set out in Clause 4.2. “Data Protection Legislation” the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications). “Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks (and service marks), business names and domain names, rights in get-up, goodwill and the right to sue for passing off (or unfair competition), and all other intellectual property rights, in each case whether registered or unregistered. “Order” the Customer’s order for Services and/or Retainer Services as set out by the Customer’s written acceptance of the Specification by the Supplier either by e-mail and/or formal written acceptance via the Supplier’s written contract. “Retainer Services” means ongoing services to be supplied by the Supplier to the Customer more specifically set out in the Specification (but not including anything set out in Services). “Services” the services to include but not limited to the provision of workshops, presentations, development programmes (either for a fixed or variable term), coaching, mentoring, talent attraction and onboarding of new recruits and/or other specifically agreed training supplied either face to face and/or orally agreed on a case by case basis by the Supplier (whether or not to be provided by the Supplier or the Supplier’s sub-contractors, and/or agents and/or consultants) with the Customer at such location or venue (not necessarily being the Customer’s place of business) and more specifically set out in the Specification (but not including anything set out in Retainer Services). “Specification” the description and/or specifications of the Services and/or Retainer Services to be provided by the Supplier to the Customer and which have been agreed in writing between them as being the “Specifications” for the purpose of the Contract. “Supplier” shall mean Petra O'Hara Limited registered in England and Wales with company number 11823141 “Supplier Materials” has the meaning set out in Clause 4.1(f). “UK Data Protection Legislation” all applicable data protection and privacy legislation in force from time to time in the UK. 1.2 Interpretation: (a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision. (b) 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. (c) A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT 2.1 The Order constitutes an offer by the Customer to purchase Services and/or Retainer Services in accordance with these Conditions at which point and on which date the Contract shall come into existence (“Commencement Date”). 2.2 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. 2.3 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 14 Business Days from its date of issue. 2.4Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
3. SUPPLY OF SERVICES 3.1 The Supplier shall supply the Services and/or Retainer Services to the Customer in accordance with the Conditions and/or the Specification in all material respects provided always that it is acknowledged by the Customer that due to the nature of the Services and/or Retainer Services it may be needed to be provided off-site from the Customers place of business (and which costs shall be borne by the Customer) or in such environment as is appropriate to the nature of the Services and/or Retainer Services within the Customer’s premises. 3.2 The Supplier shall use all reasonable endeavours to meet any performance dates and times specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services and/or Retainer Services. 3.3 The Supplier reserves the right to amend the Specification 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/or Retainer Services, and the Supplier shall notify the Customer in any such event.
4. CUSTOMER’S OBLIGATIONS 4.1 The Customer shall: (a) ensure that any information it provides to the Supplier is complete and accurate; (b) co-operate with the Supplier in all matters relating to the Services and/or Retainer Services; (c)confirm to the Supplier prior to the Commencement Date the numbers in attendance for the Services and/or Retainer Services (whether that number be confirmed or speculative); (d) provide the Supplier with such information and materials, (to include but not limited to adequate projector with sound system and/or screen and printing facilities) as the Supplier may reasonably require in order to supply the Services and/or Retainer Services. To the extent that such information and material is unavailable the Customer should confirm to the Supplier what is required prior to the Commencement Date; (e) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier and ensure that such accommodation is appropriate for the delivery of the Services and/or Retainer Services including ensuring any refreshments are available as may be required; (f) keep all materials, equipment, documents and other property of the Supplier (“Supplier Materials”) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions and authorisation. (g)to ensure that the Supplier and or persons authorised by the Supplier in the performance of the Services and/or Retainer Services is covered by the Customers Public Liability Insurance whilst at the Customer’s premises and where the Customer’s employees and or representatives and/or potentially representatives are meeting offsite for the provision of Services and/or Retainer Services to ensure that the liability in respect of any matters regarding death or personal injury is covered by the Customer’s liability insurance. 4.2 If the Supplier’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) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services and/or Retainer 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 in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations; (b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Clause 4.2; and (c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT 5.1 The Charges for the Services and/or Retainer Services shall be agreed at or around the same time as the Specifications by the Customer and the Supplier in advance of the Commencement Date and without prejudice to the generality of the following out of pocket costs which shall be charged for separately at the Supplier’s prevailing rate and/or such rate as the Supplier gets charges in the case of venues at which the Services and/or Retainer Services is provided. 5.2 The Supplier shall invoice the Customer prior to the Commencement Date save that where the Supplier has agreed it can invoice at its discretion for half of the Charges in advance of the Commencement Date and the other half of the Charges when the Supplier deems the Services and/or Retainer Services have been completed or substantially completed. 5.3 The Customer shall pay each invoice submitted by the Supplier: (a) within 7 days of the date of the invoice and without prejudice to the generality of the foregoing, where the invoice has been submitted before the Commencement date such invoice needs to be paid notwithstanding 7 days may not elapsed; and (b) payment shall be in full unless specifically agreed in writing with the Supplier and in cleared funds to a bank account nominated in writing by the Supplier, and (c)time for payment shall be of the essence of the Contract. 5.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services and/or Retainer Services at the same time as payment is due for the supply of the Services and/or Retainer Services. 5.5 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. INTELLECTUAL PROPERTY RIGHTS 6.1 All Intellectual Property Rights in or arising out of or in connection with the Services and/or Retainer Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned wholly and exclusively by the Supplier (to the exclusion of the Customer) notwithstanding that materials may have been produced for the Customer by the Supplier. Where the Customer is provided with materials by the Supplier as part of the Services and/or Retainer Services the Customer can only use such materials as part of or ancillary to the Service and in any event only within its business for any similar purpose but not in any time to allow any third party to utilise the same. 6.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a non-exclusive licence during the term of the Contract to copy and make written notes of the Services and/or Retainer Services provided (excluding materials provided by the Customer) solely and exclusively for the purpose of receiving and using the Services and/or Retainer Services in its business and not to allow any third party to utilise the same at any time. 6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 6.2. 7. DATA PROTECTION 7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this Clause 7, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK. 7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor. 7.3 Without prejudice to the generality of Clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
8. LIMITATION OF LIABILITY 8.1 The Supplier will be liable for professional liability to the extent that it is covered and paid out in accordance with its insurance cover in respect of its own legal liability for individual claims not exceeding £5,000,000 and to the extent it is not covered and not paid out by its professional indemnity insurance the Supplier will not be liable. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss. 8.2 Nothing in the Contract limits any liability which cannot legally be limited, including (but not limited to) liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; and (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession). 8.3 Subject to Clause 8.2, the Supplier’s total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the cap. 8.4The Supplier will not be liable to the Customer where a third-party supplier in respect of any venue fails to provide such facility and/or accommodate the provision of the Service by the Supplier on any given date.
9. TERMINATION 9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 14 days written notice (to include email) prior to the Commencement Date. 9.2 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 Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and/or there is sufficient evidence to suggest that the Customer will be unable to pay any invoice.
10. CONSEQUENCES OF TERMINATION 10.1 On termination of the Contract: (a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and/or Retainer Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; and (b) the Customer shall return all of the Supplier Materials which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract. 10.2 Termination (or expiration) of the Contract shall not affect any 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). 10.3 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. 10.4 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11. CONFIDENTIALITY 11.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 11.2. Each party may disclose the other party’s confidential information: (a) to its employees, officers, representatives, 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, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 11.2; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. (c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12. NOTICE 12.1 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 recipients email address. 12.2 Any notice or communication shall be deemed to have been received: (a) if delivered by hand, on signature of a delivery receipt (or at the time the notice is left at the proper address); and (b)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 at the time recorded by the delivery service; and (c) 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 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 12.1 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
13. THIRD PARTY RIGHTS 13.1 Unless it expressly states otherwise, 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.
14.1 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.
14.2 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.