1.1 The following expressions shall have the following meanings :-
1.1.1 " Client" means the client specified in the booking form.
1.1.2 " Company" means Astutis Ltd whose registered office is 6 Charnwood Court, Heol Billingsley, Parc Nantgarw, Cardiff, CF15 7QZ.
1.1.3 "Conditions" means these terms and conditions as amended from time to time in accordance with clause 16.
1.1.4 "Contract" means the contract between the Company and the Client for the supply of Services in accordance with these Conditions.
1.1.5 "Marketing Content" means the latest edition of the brochure, company website and course flyers published by the Company, detailing the open courses offered by the Company.
1.1.6 "Order" means the Client's order for Services as set out in the Company's standard open course booking form.
1.1.7 " Services" means the open courses as detailed in the Marketing Content.
1.2 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.
1.3 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 (and for the avoidance of doubt the document in 1.3.1 takes priority over the document in 1.3.2):
1.3.1 the open course booking form;
1.3.2 these Conditions.
1.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.5 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 any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
All Orders must be on the Company’s standard open course booking form. Each receipt of an open course booking form will be deemed to be an offer by the Client to purchase Services in accordance with the Marketing Content and upon these 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.
The quantity and description of the Services will be as set out in the Marketing Content. 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 excluding the Marketing Content are issued or published for the sole purpose of giving an approximate idea of the Services represented by or described by them. They shall not form part of the Contract or have any contractual force. 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 at the rates and in the manner set out in the Marketing Content. Value Added Tax (VAT) is not included and will be charged at the standard rate and shall be payable by the Client in addition to the fees on receipt by the Client of a valid VAT invoice from the Company.
4.2 Invoices will be submitted by the Company as provided in the open course booking form on receipt of an open course 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 the right:-
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. The Client shall pay the interest together with the overdue amount.
4.4 If the performance of the Services is suspended or cancelled at the request of the Client or is prevented or delayed by any act or omission by the Client or through any failure or delay by the Client, including but not limited to the performance of its obligations under clauses 7.1 below then the Company shall be immediately entitled to:
4.4.1 full payment for Services commenced prior to suspension, cancellation or delay by the Client; and
4.4. 2 cancellations by the Client must be provided to the Company in writing and are subject to the following charges:
• Cancellation over 28 days before the Services start date – 10% of fees;
• Cancellation between 15 and 28 days before the Services start date – 50% of fees;
• Cancellation up to 14 days before the Services start date – 100% of fees.
4.5 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. Time for payment shall be of the essence of the Contract.
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 and time shall not be of the essence for performance of the Services. All open courses are run, subject to demand, therefore if a course is cancelled by the Company, transfer to an alternative date will be offered to the Client.
5.2 The Company reserves to right to alter the content, lecturers, timing and venue of the open courses for reasons beyond their control.
5.3 The Company warrants to the Client that the Services will be provided using reasonable skill and care.
6.1 In the event of any breach of the Company’s express obligations under these Conditions the remedies of the Client will be limited to damages, which in any event shall not exceed the fees paid by the Client for the Services.
6.2 The Company does not exclude its liability (if any) to the Client:
6.2.1 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;
6.2.2 for personal injury or death resulting from the Company’s negligence;
6.2.3 under section 2(3) Consumer Protection Act 1987;
6.2.4 for any matter which it would be illegal for the Company to exclude (or to attempt to exclude) its liability; or
6.2.5 for fraud.
6.3 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.
6.4 Except as set out in clauses 6.1 to 6.3, 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 Marketing Content.
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.
8.1 Copyright in all course materials and other recorded matter whether made in connection with the Marketing Content and/or the Services or otherwise shall remain vested in the Company at all times.
8.2 No part of any course materials, 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.
9.1 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 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 Order or the Services. 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.
9.2 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).
9.3 The obligations of confidentiality and non-publication contained in Clauses 9.1 and 9.2 shall not apply to any information which:-
9.3.1 is in or entered the public domain other than by virtue of the recipient’s act or omission;
9.3.2 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;
9.3.3 is required to be disclosed by the recipient by a court of competent jurisdiction or any UK government or regulatory authority.
10.1 The Company may by written notice terminate the Contract with immediate effect 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. Notwithstanding any other provision in these Conditions, failure to pay any sums due in accordance with clause 4.2 is a material breach of the terms of the Contract.
10.2 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.
11.1 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.
11.2 For the purposes of Clause 11.1 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 the period during the Contract and for the period of 6 months immediately after the termination of the Contract for whatever reason.
11.3 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 without the prior written consent of the Company, the Client shall pay to the Company an amount of £35,000 by way of liquidated damages within 30 days of such employment, engagement or appointment.
Neither party shall be liable to the other for any loss or damage or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of either party's obligations in relation to the Services , if failure was due to any cause beyond the reasonable control of either party 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 either party or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery, and power failure or breakdown in machinery.
13.1 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.
13.2 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.
13.3 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.
13.4 The Company may assign, delegate, license, hold on trust or subcontract all or any part of its rights or obligations under the Contract.
13.5 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.
13.6 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 Company’s standard open course booking forms and the Contract shall be governed and construed in accordance with the laws of England and Wales and the Company and the Client submit to the exclusive jurisdiction of the courts of England and Wales.
15.1 All communications to the Company shall be addressed to Astutis Ltd at the address of the Company set out in the standard booking form.
15.2 All communications to the Client shall be sent to the address appearing on the booking form unless some other address has been notified in writing to the Company.
Any variation to the 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 Company’s standard open course booking form and the Company's acknowledgement of Order 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 Order.