1.1 The following expressions shall have the following meanings :-
1.1.1 “The Company” means Astutis Ltd whose registered office is
6 Charnwood Court, Heol Billingsley, Parc Nantgarw, Cardiff, CF15 7QZ.
1.1.2 “The Client” means the client specified in the Quotation or the booking form.
1.1.3 “The Open Course Brochure” means the latest edition of the brochure, published by the Company, detailing the open courses offered by the Company.
1.1.4 “The Quotation” means the written quotation for the performance of the closed course services or any consultancy services as may from time to time be amended by the written agreement of the parties.
1.1.5 “The Services” means the open courses as detailed in the Open Course Brochure or the closed courses or any other consultancy services as detailed in the Quotation.
1.1.6 “The Working Day” means a day (other than Saturday or Sunday) on which banks open for a full range of banking transactions.
1.1.7 The headings to these Conditions are for guidance only and shall not affect the construction of the Contract. The singular shall include the plural and vice versa.
1.2 Where there is any conflict or inconsistency between the provisions of the Contract, such conflict or inconsistency shall be resolved according to the following order of priority:
1.2.1 the Quotation;
1.2.2 these terms;
1.2.3 the Open course Brochure.
Each acceptance of a Quotation or booking form for Services will be deemed to be an offer by the Client to purchase Services in accordance with the Quotation or Open Course Brochure and upon these Terms and Conditions. The Contract is formed when the order is accepted by the Company by way of a written acknowledgment of order. No contract will come into existence until a written acknowledgement of order is issued by the Company. All orders or booking forms must be on the Company’s standard order form.
The quantity and description of the Services will be as set out in the Quotation or Open Course Brochure. All samples, drawings, descriptive matter specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures including the Open Course Brochure are issued or published for the sole purpose of giving an approximate idea of the Services represented by or described by them and the Company reserves the right to alter the content, timing, venue and format of the Services.
4.1 The Client agrees to pay the fees and expenses at the rates
and in the manner set out in the Quotation or Open Course Brochure. VAT is not included and will be charged at the standard rate and shall be payable by the Client
4.2 Invoices will be submitted by the Company as provided in the Quotation or on receipt of a booking form and shall be paid by the Client within 28 days of the date of the invoice.
4.3 In the event of late payment for whatever reason and without
prejudice to its other rights and remedies, the Company shall have
4.3.1 to suspend any further performance of the Services for
such period as the Company feels fit including where appropriate the issuing of any exam results;
4.3.2 to charge interest on all outstanding monies due from the client to the Company at the rate of 4% above the base rate of National Westminster Bank PLC from the date of the invoice to the date of payment.
4.4 Travel and subsistence costs incurred by the Company or its representatives during the performance of the Services shall be for the account of the Client and shall be paid as soon as reasonably practicable following request.
4.5 If the performance of the Services is suspended or cancelled at the request of the Client or delayed through any failure or delay by the Client in providing information under clause 7.1 below then the Company shall be immediately entitled to payment for:-
4.5.1 Services already performed or provided by the Company; and
4.5.2 The cost of the closed course Services or consultancy
Services based on the following sliding scale of fees set out in the
• Cancellation within three Working Days - 100% of fees.
• Cancellation within five Working Days - 90% of fees.
• Cancellation within ten Working Days - 75% of fees,
• Cancellation within fifteen Working Days - 50% of fees; or
4.5.3 The amount payable for cancellation of open course Services as indicated in the terms on the Company’s standard booking forms for those services.
4.6 All payments to be made by the Client under the Contract will be made in full without any set-off, restriction or condition and without any deduction for or on account of any counterclaim.
5.1 The Company shall use its reasonable endeavours to comply with any date(s) for completion of the Services PROVIDED THAT such date(s) shall not be binding. Failure to comply with such
date(s) shall not constitute a breach of contract nor (for the avoidance of doubt) will the Company have any liability to the Client for direct, indirect or consequential loss (all three of which terms includes, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) by any delay or failure in performance except as set out in this condition and in no case shall delay be a ground for rejecting the Services or otherwise rescinding the contract.
5.2 Subject to clause 5.1. if expedited performance of the
Services is required by the Client, the additional costs incurred by the Company may be charged to the Client in addition.
6.1 In the event of any breach of the Company’s express obligations under these Terms and Conditions the remedies of the Client will be limited to damages, which in any event shall not exceed the fees and expenses paid by the Client for the Services.
6.2 The Company shall be under no liability to the Client for any infringement or alleged infringement of any patents, registered designs, copyright and any other intellectual property rights owned or controlled by a third party arising out of or in connection with the Services or the manufacture, sale and use of any prototype or any Goods supplied pursuant to performance of the Services.
6.3 The Company does not exclude its liability (if any) to the Client :
6.3.1 for breach of the Company’s obligations arising under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982;
6.3.2 for personal injury or death resulting from the Company’s negligence;
6.3.3 under section 2(3) Consumer Protection Act 1987;
6.3.4 for any matter which it would be illegal for the Company to exclude (or to attempt to exclude) its liability; or
6.3.5 for fraud.
6.4 The Company shall be liable to the Client for damage to property if such damage is caused directly by the Company’s negligence or of any person for whose acts it is responsible save that its liability under this clause shall be limited to the lesser of the direct costs of replacement or repair of the damaged property of the sum of £500,000 per incident or series of incidents arising out of the one event.
6.5 It is hereby agreed by the Client that the Company shall in no circumstances be liable to the Client for direct, indirect or consequential loss (all three of which terms includes, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) by any delay or failure in performance except as set out in this clause 6 and in clause 5.1.
6.6 Except as set out in clauses 5.1 and 6.1 - 6.5, the Company hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Client.
7.1 The Client agrees to give the Company such information advice and assistance relating to the Services as the Company may reasonably require within sufficient time to enable the Company to perform the Services in accordance with the Quotation or the Open Course Brochure.
7.2 The Client shall be responsible to the Company for ensuring the accuracy of any information submitted by the Client.
7.3 The Client shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Client’s information.
7.4 The Client shall indemnify the Company against all claims, actions, losses, damages, costs and expenses incurred by the Company arising from or due to the negligence of the Client its servants or agents.
7.5 Any property supplied to the Company by or on behalf of the Client shall be held and worked upon by the Company at the Client’s risk. The Company shall not be liable for any loss or damage to any such property.
7.6 The Client shall comply with all applicable Health and Safety legislation and regulations in respect of any employee of the Company or self-employed person engaged by the Company to provide the Services whilst such person is working on the Client’s premises and the Client shall provide the Company with such information as is necessary to enable the Company to comply with all applicable Health and Safety legislation and regulations in respect of that person.
If as part of the Services the Company is required to develop for the client a computer software program and any manuals and other computer documentation the Company shall enter into a licence agreement with the Client for the use of such computer program and computer documentation and in the event that the terms and conditions of such licence shall conflict with these conditions, the terms of such licence, to the extent of the conflict, shall prevail.
9.1 Copyright in all original drawings, designs, course materials, Quotations, reports and other recorded matter whether made in connection with the Quotation, the Open Course Brochure and/or the Services or otherwise shall remain vested in the Company at all times.
9.2 No part of any course materials, consultancy reports, management systems or any other materials provided by the Company may be reproduced or transmitted in any form or by any means or stored in any retrieval system of any nature without prior permission, except as it may be permitted to do so by law.
9.3 Unless otherwise agreed in writing ownership of all inventions discoveries and improvements thereto which arise in connection with the Quotation and/or the Services shall vest in the Company provided that the Company shall grant to the Client a non-exclusive royalty free licence to use such inventions discoveries and improvements.
10.1 All drawings and technical information supplied by the Client to the Company and all information supplied by the Company to the Client shall be deemed to have been furnished in confidence for the purpose authorised by the Quotation or acknowledgement of order and no other. The recipient party shall take all reasonable precautions to prevent communication of any such information to any of its employees or to any third party except as may be necessary in order to carry out the purpose of the quotation. If disclosure to an employee or a third party is necessary for such purposes then such employee or third party shall be required to observe the same confidentiality obligation as the recipient party.
10.2 Neither the Company nor the Client shall use the name of the other in any publicity material nor publish anything relating to work being undertaken pursuant to the performance of the Services without the prior written permission of the other (such permission not to be unreasonably withheld).
10.3 The obligations of confidentiality and non-publication contained in Clauses 11.1 and 11.2 shall not apply to any information which:-
10.3.1 is in or entered the public domain other than by virtue of the recipient’s act or omission;
10.3.2 is known to the recipient at the time of the disclosure to the recipient provided that the recipient produces to the other satisfactory evidence of the same within 14 days of such disclosure;
10.3.3 is required to be disclosed by the recipient by a court of competent jurisdiction.
11.1 The Company may by written notice terminate the Contract immediately if the Client is in material breach of the Contract or enters into insolvency, bankruptcy, any arrangement with its creditors or any other arrangement or situation which has a like effect. Failure to pay any sums due in accordance with clause 4.2 is a material breach of the terms of the Contract which is not capable of remedy.
11.2 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liability of either the Client or the Company accrued prior to termination. The conditions which expressly or impliedly have effect after termination will continue to be in force notwithstanding termination.
12.1 The Client agrees that it will not during the Relevant Period, without the prior written consent of the Company whether directly or indirectly, and whether alone or in conjunction with, or on behalf of any other person and whether as a principal, shareholder, director, employee, agent, consultant, partner or otherwise solicit, induce or entice away from the Company or employ, engage or appoint in any way cause to be employed, engaged or appointed a Critical Person whether or not such a person would commit any breach of his or her contract of employment or engagement by leaving the service of the Company.
12.2 For the purposes of Clause 12.1 above:
“Critical Person” means any person who is an employee, agent, director, consultant or independent contractor employed, appointed or engaged by the Company at any time within the Relevant Period who delivers to the Client any health, safety and environmental training or provides consultancy/advisory services or such other person, who is an employee, agent, director, consultant or independent contractor, who by virtue of their knowledge, seniority and/or expertise is likely to be able to assist or benefit the business of the Client to the detriment of the Company. “Relevant Period” means a period during this Agreement and for the period of 6 months immediately after the termination of this Agreement for whatever reason.
12.3 In the event that the Client employs, engages, appoints or in any way causes to be employed, engaged or appointed a Critical Person during the Relevant Period, the Client shall pay to the Company a fee of £35,000 by way of liquidated damages to compensate the Company’s losses it suffers as a result within 30 days of such employment, engagement or appointment.
The Company shall not be liable to the Client for any loss or damage suffered by the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Services to be performed or the goods to be supplied, if failure was due to any cause beyond the Company’s reasonable control including without prejudice to the foregoing Act of God, explosion, flood, tempest, fire or accident, wars or threat of war, sabotage, insurrection, an act of terrorism, civil disturbance or requisitions, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any government, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery, and power failure or breakdown in machinery.
14.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
14.2 If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective, without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.
14.3 No failure or delay by the Company to exercise any right, power or remedy will operate as a waiver of it, nor will any partial exercise preclude any further exercise of the same, or of any other right, power or remedy.
14.4 The Company may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under the Contract.
14.5 The Contract is personal to the Client who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without the Company’s prior written consent.
14.6 The parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
These conditions together with the Quotation and the Company’s standard forms shall be governed and construed in accordance with the Laws of England and Wales.
16.1 All communications to the Company shall be addressed to Astutis Ltd at the address of the Company set out in the Quotation.
16.2 All communications to the Client shall be sent to the address appearing in the Quotation or on the booking form unless some other address has been notified in writing to the Company.
Any variation to the Quotation or the Terms and Conditions of the Contract and any representations about the Services shall have no effect unless expressly agreed in writing (on the Company’s headed paper) and signed by a director of the Company.
These conditions together with the Quotation or the Company’s standard booking form shall form the entire agreement between the Company and the Client. These conditions shall supersede and prevail over terms and conditions sought to be imposed by the Client provided that this shall not exclude any liability which the Company would otherwise have to the Client in respect of any statements made fraudulently by the Company prior to the date of the Quotation.