Terms and Conditions
Background
We shall provide to You help and support to attempt to find solutions to any of Your business challenges.
Your attention is particularly drawn to the provisions of clause 8.
1. Interpretation
1.1 Definitions. 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 You for the supply of the Services in accordance with Clause 5 and Schedule 1
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.7.
Contract: the contract between Us and You for the supply of Services in accordance with these Conditions.
You: the person or firm who purchases Services from Us.
Deliverables: the deliverables set out in the Order produced by Us for You.
Intellectual Property Rights: all intellectual property rights, in each case whether registered or unregistered.
Order: Your order for Services as set out in Schedule 1
Services: the services, including the Deliverables, supplied by Us to You as set out in Schedule 1
Us: The Business Clinic Organisation CIC registered in England and Wales with company number 08569447
Our Materials: has the meaning set out in clause 4.1(g).
1.2 Construction
In these Conditions, the following rules apply:
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 [personal representatives,] 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. any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
e. a reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 The order You have made is an offer by You to purchase Our Services in accordance with these Conditions.
2.2 The Contract constitutes the entire agreement between the parties. You acknowledge that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Us which is not set out in this Agreement.
2.3 Any, descriptive matter or advertising issued by Us, and any descriptions or illustrations contained in our brochures, marketing materials, website, are issued or published for the sole purpose of giving an approximate idea of the Services we provide. They shall not form part of the Contract or have any contractual force.
3. Supply of Services
3.1 We shall supply the Services to You in accordance with this Agreement.
3.2 We 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 we shall notify You in any such event.
3.3 We warrant to You that the Services will be provided using reasonable care and skill.
4. Your Obligations
4.1 You shall:
a. ensure that the terms of this Agreement are complete and accurate;
b. co-operate with us in all matters relating to the Services;
c. provide Us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
5. Charges and payment
5.1 The Charges for the Services shall be on a time and support and guidance basis:
a. the Charges shall be calculated in accordance with our fees , as set out in the schedule of services;
5.2 We reserve the right to increase our Charges. We will give You written notice of any such increase [3] months before the proposed date of the increase. If such increase is not acceptable to You, You are required to notify Us in writing within [4 ] weeks of the date of our notice. Upon receipt of your notice stating that the price increase is not acceptable to You then this Agreement shall come to an end.
5.3 We shall invoice You monthly in advance as set out in the schedule of services.
Except for where charges relate to ‘Peerworking’ they are a set price and payable through our website in advance either monthly or annually for a minimum term of 12 months.
5.4 You shall pay each invoice submitted by Us:
a. within 7 days of the date of the invoice; and
b. in full and in cleared funds to a bank account nominated in writing by Us, and time for payment shall be of the essence of the Contract.
5.5 All amounts payable by You 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 Us to You, You shall, on receipt of a valid VAT invoice from Us, pay to Us 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.
5.6 If You fail to make any payment due to Us under the Contract by the due date for payment , then You shall pay interest on the overdue amount at the rate of 4% per cent per annum above [ Santander]'s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
5.7 You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting its other rights or remedies, set off any amount owing to it by You against any amount payable by Us to You.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Us.
6.2 You acknowledge that, in respect of any third party Intellectual Property Rights, Your use of any such Intellectual Property Rights is conditional on Us obtaining a written licence from the relevant licensor on such terms as will entitle Us to license such rights to You.
6.3 All our brochures are the exclusive property of Us.
6.4 You hereby authorise Us exclusive permission to store and use any photographs. We may take of You in our publications, presentations, promotional materials or advertising of Our Services.
7. Confidentiality
7.1 As part of the Services we offer, You may attend events or seminars where other members may wish to discuss matters relating to their business.
7.2 You shall keep in strict confidence (save where required by law) all discussions or information which is of a confidential nature that may be disclosed to You by any other party.
8. Limitation of liability
8.1 Nothing in these Conditions shall limit or exclude our liability for:
a. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
b. fraud or fraudulent misrepresentation; or
c. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
We shall under no circumstances whatever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
9. Termination
9.1 Without limiting its other rights or remedies, either 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 any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 28 days of that party being notified in writing to do so;
b. the other party (being an individual) is the subject of a bankruptcy petition or order;
c. an order is made for the appointment of an administrator
d. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
e. the other party's financial position deteriorates to such an extent that in our opinion Your capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
f. the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.2 Without limiting its other rights or remedies, we may terminate the Contract with immediate effect by giving written notice to You if You fail to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 7 days after being notified in writing to do so.
9.3 Without limiting its other rights or remedies, we may suspend provision of the Services under the Contract or any other contract between You and Us if You become subject to any of the events listed in clause 9.1(a) to clause 9.1(f), or we reasonably believe that You are about to become subject to any of them, or if You fail to pay any amount due under this Contract on the due date for payment.
10. Consequences of termination
On termination of the Contract for any reason:
a. You shall immediately pay to Us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by You immediately on receipt;
b. Where the payment of an annual fee is granted on a monthly payment basis, Services will be deemed to have been supplied on the transaction date (‘time of supply’). You shall therefore be responsible for the payment of any unpaid monthly fees in the event of a termination as set out in clauses 9.1 – 9.3 and the balance between any payments already made and the annual fee will become due and payable;
c. Where the payment of an annual fee is made in advance, Services will be deemed to have been supplied on the transaction date (‘time of supply’). You shall therefore not be eligible to reclaim full or part payment following a termination as set out in clauses 9.1 – 9.3 or where You decide to cease engagement.
d. You shall return all of the Materials and any Deliverables to US which have not been fully paid for. If You fails to do so, then we may enter Your premises and take possession of them. Until they have been returned You shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
e. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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
f. clauses which expressly or by implication survive termination shall continue in full force and effect.
11. Force majeure
11.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Us including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Us or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Us or subcontractors.
11.2 We shall not be liable to You as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.3 If the Force Majeure Event prevents Us from providing any of the Services for more than 4 weeks, we shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to You.
12. General
12.1 Assignment and other dealings
a. We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
b. You shall not, without the prior written consent of Us, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
12.2 Notices
a. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
b. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
c. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.3 Severance
a. 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 shall not affect the validity and enforceability of the rest of the Contract.
b. If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.4 Waiver
A waiver of any right under the Contract or law 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 provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 No partnership or agency
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
12.6 Third parties
A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.7 Variation
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Us.
12.8 Governing law
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 the law of England and Wales.
12.9 Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
