Rock Pool Life C.I.C Terms and Conditions for the supply of Training

1. Interpretation

1.1 The following definitions and rules of interpretation apply in these terms:

Business Day: 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 Training Course in accordance with clause 6.

Commencement Date: has the meaning given in clause 3.2.

Contract: these terms and the relevant Order Form.

Customer: the person or firm who purchases Training Course from the Supplier.

Customer Default: has the meaning set out in clause 5.2.

Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.

Evaluation Form: the Supplier’s standard evaluation form, which will be provided to the Customer by the Supplier.

GDPR: General Data Protection Regulation ((EU) 2016/679).

Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Maximum Number of Participants: the maximum number of Participants set out on the order Form.

Order Form: the order form setting out the details of the Contract.

Participants: the Customer’s employees who attend the Training Course and are identified on the Order Form.

Supplier: Rock Pool Life C.I.C registered in England and Wales with company number 11149414 whose registered office is at PO BOX 104, Freshwater Quarry, Brixham, Devon, TQ5 8BA.

Term: the initial term of the agreement as set out in clause 2.

Training Course: the Training Course supplied by the Supplier to the Customer as set out in the Order Form.

Training Date(s): the date or dates on which the Training Course is to be delivered as set out on the Order Form.

Training Location: the location at which the Training Course will be delivered as set out on the Order Form.

1.2 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.

1.3 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.

1.4 A reference to writing or written includes fax and email.

2. Application of Terms

2.1 These terms shall:

(a) apply to and be incorporated in the Contract; and

(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s order, purchase order, confirmation of order, specification, or implied by law, trade custom, practice or course of dealing.

2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.

3. How the Contract is Formed

3.1 The Order Form constitutes an offer by the Customer to purchase the Training Course in accordance with these Terms.

3.2 The execution and return of the Order Form (or return of an order confirmation if the order is submitted online), by the Supplier, or the Supplier’s delivery of the Training Course pursuant to the Order Form, shall establish a binding contract between the parties at which point and on which date the Contract shall come into existence (Commencement Date).

3.3 Any descriptive matter or advertising issued by the Supplier are issued or published for the sole purpose of giving an approximate idea of the Training Course described in it. They shall not form part of the Contract or have any contractual force.

4. Delivery of the Training Course

4.1 The Supplier shall:

(a) deliver the Training Course to the Participants at the Training Location; and

(b) provide the Training Course to the Participants with reasonable care and skill.

4.2 The Supplier shall use all reasonable endeavours to deliver the Training Course on the Training Date(s), but any such dates shall be estimates only and time shall not be of the essence for performance of the Training Course. In the event that the Training Course cannot be delivered on the Training Date(s), the Supplier shall endeavour to agree new Training Date(s) with the Customer.

5. Customer’s obligations

5.1 The Customer shall:

(a) ensure that the terms of the Order Form are complete and accurate;

(b) co-operate with the Supplier in all matters relating to the Training Course;

(c) if the Training Location is at the Customer’s premises:

(i) provide the Supplier and its employees with access to the Customer’s premises and other facilities as reasonably required by the Supplier to deliver the Training Course;

(ii) prepare the Customer’s premises for the supply of the Training Course;

(iii) provide the Supplier with such information and materials as the Supplier may reasonably require to deliver the Training Course, and ensure that such information is complete and accurate in all material respects; and

(iv) confirm the names of all Participants before the first Training Date and ensure that the number of Participants do not exceed the Maximum Number of Participants.

(d) ensure that the Participants obtain from its own participants, the first time they run the training, a completed anonymised Evaluation Form and return the same to the Supplier at the training event;

(e) not train any other businesses or individuals to deliver the Training Course;

(f) at all times during the Term comply with the obligations set out in this clause 5;

(g) only make use of the Intellectual Property Rights for the purposes authorised in the Contract; and

(h) comply with all regulations and practices in force to safeguard the Supplier’s rights in the Intellectual Property Rights.

5.2 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 Training Course 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 5.2; 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.

6. Charges and Payment

6.1 The Charges for the Training Course shall be the amount set out on the Order Form. On the Payment Date, the Supplier shall invoice the Customer for the Charges and VAT (where appropriate).

6.2 The Customer shall pay each invoice submitted to it by the Supplier in full, and in cleared funds, within 28 days of the date of the invoice. Time for payment shall be of the essence of the Contract.

6.3 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 Training Course at the same time as payment is due for the supply of the Training Course.

6.4 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date, the Supplier may charge interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.4 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%.

6.5 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).

7. Intellectual Property Rights

7.1 The Customer acknowledges and agrees that the Supplier is the owner of all the Intellectual Property Rights in materials provided by the Supplier to the Customer when delivering the Training Course.

7.2 The Customer shall, upon the Supplier’s request, provide the Supplier with details of any complaints it has received relating to the training together with reports on the manner in which such complaints are being, or have been, dealt with and shall comply with any reasonable directions given by the Supplier in respect thereof.

7.3 The Customer shall procure that all material produced relating to the training be marked with a notice in the following terms:

“© Copyright Rock Pool C.I.C.  [YEAR] produced by [CUSTOMER]”

7.4 The Customer shall ensure that all material it produces in relation to the training shall bear the notice referred to in clause 7.3.

8. Data Protection

8.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

8.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

8.3 Without prejudice to the generality of clause 8.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract.

8.4 Without prejudice to the generality of clause 8.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:

(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Data Processing Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Supplier from so notifying the Customer;

(b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;

(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and appropriate safeguards have been put in place;

(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f) notify the Customer without undue delay on becoming aware of a Personal Data breach;

(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Applicable Data Processing Law to store the Personal Data; and

(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 8.

8.5 The Customer does not consent to the Supplier appointing any third party processor of Personal Data under the Contract.

9. Limitation of Liability

9.1 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

9.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence; and

(b) fraud or fraudulent misrepresentation.

9.3 Subject to clause 9.1 and clause 9.2;

(a) the Supplier shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

(b) the Supplier’s total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Charges.

9.4 This clause 9 shall survive termination of the Contract.

10. Indemnity

10.1 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with:

(a) the Customer’s exercise of its rights granted under the Contract;

(b) the Customer’s breach or negligent performance or non-performance of the Contract;

(c) the enforcement of the Contract;

(d) any claim made against the Supplier by a third party for death, personal injury or damage to property arising out of or in connection with and defects in the training, to the extent that the defect in the training is attributable to the acts or omissions of the Customer, its employees, agents, sub-licensees or subcontractors.

10.2 This indemnity shall apply whether or not the Supplier has been negligent or at fault.

10.3 If a payment due from the Customer under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Supplier shall be entitled to receive from the Customer such amounts as shall ensure that the net receipt, after tax, to the Supplier in respect of the payment is the same as it would have been were the payment not subject to tax.

10.4 The Customer shall, at its expense, carry product liability and comprehensive general liability insurance coverage of an amount adequate to support its liabilities under the Contract. The Customer shall ensure that such insurance policy names the Supplier as co-insured with the Customer and remains in effect throughout the duration of this agreement and for a period of 5 years after termination or expiry of the agreement, and shall supply the Supplier with a copy of such policy on request.

11. Cancellation

11.1 The Customer may cancel a Training Course provided that prior written notice is given to the Supplier at least 28 days before the first Training Date.

11.2 If the Customer cancels the Training Course in accordance with clause 11.1, the following provisions will apply:

(a) if the notice to cancel is provided less than 28 days before the first Training Date, no refund will be made to the Customer; or

(b) if the notice to cancel is provided more than 28 days before the first Training Date, 100% of the Charges will be refunded to the Customer.

11.3 If the Customer has not paid the Charges in accordance with clause 6, the Customer will be deemed to have cancelled the Training Course.

12. Term and Termination

12.1 This agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 12.2, until the last Training Date.

12.2 Without affecting any other right or remedy available to it, 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 14 days of that party being notified in writing to do so;

(b) 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;

(c) 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

(d) 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.

12.3 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.

12.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Training Course under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.2(b) to clause 12.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

12.5 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 Training Course 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;

(b) all outstanding sums payable by the Customer to the Supplier shall immediately become due and payable;

(c) all rights and licences granted pursuant to this agreement shall cease;

(d) if requested in writing by the Supplier, the Customer shall return promptly to the Supplier at the Customer’s expense all records and copies of any information of a confidential nature communicated to it by the Supplier, either preparatory to, or as a result of, this agreement, to the extent such material remains confidential.

12.6 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

12.7 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

13. Force Majeure

The Supplier shall not in any circumstances have any liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier 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 suppliers or sub-contractors.

14. Assignment

14.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

14.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

15. Confidentiality

15.1 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 15.2.

15.2 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 15; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

16. Entire Agreement

16.1 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.

16.2 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.

17. Variation

Except as set out in these Terms, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

18. Waiver

No failure or delay by a party to exercise 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 the 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.

19. Severance

19.1 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.

19.2 If any provision or part-provision of the 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.

20. Notices

20.1 Any notice 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 fax to its main fax number set out on the Order Form; or sent by email to the address specified on the Order Form.

20.2 Any notice 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;

(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;

(c) if sent by fax or 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 20.2, 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.

20.3 This clause 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.

21. Third Party Rights

No one other than a party to the Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.

22. Governing Law and Jurisdiction

22.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.

22.2 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 agreement or its subject matter or formation (including non-contractual disputes or claims).

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