Terms of Business
Terms of Business
1. Definitions and Interpretation: A number of defined terms are used in these terms and conditions:
Background Information means all materials, reports, technical know-how and information known to a party at the start date together with all Intellectual property rights either owned by or licensed to a party at the start date and all materials, reports and all technical and other information and Intellectual property rights owned by or licensed to a party which is not foreground information;
Contract means the combination of the work proposal and these Terms of Business which the Client accept;
Charges refers to the amounts the Client are to pay for the Services as identified in the Work Proposal
Consultant/coach means the individual(s) identified in the Work Proposal;
Earliest Termination Date means the earliest date on which the provision of the Services may be terminated by the Client, as set out in the Work Proposal;
End Date means the end date of the Services as set out in the Work Proposal;
Foreground Information means all information, know-how, results, designs, inventions and other matter capable of being the subject of Intellectual Property Rights specifically developed or produced for the Client during the course of the Services. For the avoidance of doubt 'in the course of the Services' shall encompass work done by the Provider or anyone else engaged in the provision of the Services;
Intellectual Property Rights means patents, copyrights and related rights, rights in the nature of copyright, design rights, rights in designs, and all other intellectual property rights and analogous rights as may exist now or at any time in the future (vested or contingent) anywhere in the world for the full term of the rights concerned together with all reversions, revivals, extensions and renewals of such rights (whether registered or not); all registrations and pending registrations relating to any such rights; and all rights of action, powers and benefits belonging or accrued in relation to such rights (including the right to sue for and recover damages);
Services refers to the services which the Provider are to provide to or procure for the Client as referred to in the Work Proposal
Start Date means the date of the commencement of the Services set out in the Work Proposal;
Work Proposal refers to the written Work Proposal from the Provider to the Client offering to supply the Services and including the material terms.
Reference to the Client is to the person named as the Company in the Work Proposal or covering letter;
Reference to the Provider and/or Consultant is to affinity consultants;
Reference to a party or parties shall mean a party or parties to this Contract;
"include" or "including" shall mean including without limitation; and
In the event of a conflict between these Terms of Business and the provisions of the Work Proposal, the provisions of the Work Proposal shall prevail.
2. Provision of Services
2.1 these Terms of Business apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or cause of dealing.
2.2 the Provider will provide or procure the provision of the Services for the Client, subject to the Company paying the Charges as and when due, and to the Client complying in full with the Contract.
2.3 changes requested by the Client to the scope of the Services require the Provider’s express written approval, and the Provider reserve the right to charge additional fees caused by any proposed changes at the Provider’s entire discretion. The Provider’s agreement to the Client’s requested changes to the scope of the Services will be subject to the Client agreeing to pay such additional fees.
2.4 where the description of the Services indicates the involvement or use of specific personnel or facilities which the Provider are to provide, the Provider will use all reasonable endeavours to provide or procure the same but reserve the right to substitute reasonably comparable alternative personnel or facilities if they become unavailable to the Provider for any reason. The Provider will normally use reasonable endeavours to notify the Client in advance where practicable of any material change of personnel or facilities.
2.5 the Provider will use all reasonable endeavours to meet any timetable agreed in writing by the parties for the provision of the Services. However, time for the Provider’s delivery of the Services in accordance with such a timetable is not a fundamental condition of the Contract unless and to the extent the Provider agrees otherwise in the Work Proposal. The Provider will accept no liability for circumstances which do not form a fundamental condition of the Provider’s contract.
2.6 the Provider will use reasonable care and skill in the delivery of the Services using suitably experienced personnel.
2.7 on receiving any advice from the Provider, the Client will review the advice and any use that the Client make of such advice will be carried out at the Client’s own risk. The Provider provides no warranty as to the results to be achieved by the Services nor that the results or any advice provided is suitable for any particular use or purpose.
2.8 the Provider will not be responsible for any non-performance of the Services to the extent that they are dependent upon the provision of facilities personnel or information which the Client or a third party are to provide.
2.9 other than the warranties expressly set out in these Terms of Business, all warranties, conditions or other terms, whether express or implied by statute, common law, trade usage or otherwise are excluded to the fullest extent permitted by law.
3. Terms of the provision of Consultant
3.1 the Provider shall provide the Consultant to the Client on a non-exclusive and part or full time basis to provide the Services as specified in the Work Proposal.
3.2 the Consultant shall continue to be employed by the Provider at all times during the supply of the Services. The Client will not require the Consultant to do anything that shall breach his employment contract and shall have no authority to vary the terms of the same or make any representations to the Consultant in relation to the terms of his or her employment contract.
3.3 the Provider will continue to pay the Consultant's salary and any allowances during the supply of the Services.
3.4 the Provider shall use reasonable endeavours to ensure that the Consultant notifies the Provider in the event that the Consultant identifies any actual or potential conflict of interest between the Client and the Provider during the supply of the Service
4. Charges and Payment
4.1 the Client will pay the Charges in full without deduction or set off within 30 days from the date of the Provider’s invoice, unless and to the extent we have expressly agreed otherwise in the Work Proposal. Any changes must be agreed in writing.
4.2 payment on time by the Client is a fundamental condition of the Provider agreeing to supply the Services, and without limiting any other right or remedy available to the Provider, the Provider reserve the right not to supply the Services if payment is not made on time.
4.3 if and to the extent the Provider have identified on the Work Proposal payments which need to be made to third parties the Provider can require payment of those sums in advance from the Client.
4.4 all amounts quoted are exclusive of VAT and any other applicable sales taxes or other duties, which the Client must pay in addition to the Charges at the applicable rate in force from time to time.
4.5 without prejudice to any other right or remedy available to the Provider, the Provider have the right to charge interest on any unpaid sums in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
4.6 all incidental or out of pocket expenses will either be set out in the Work Proposal or will be agreed between the Parties in writing. The Client will pay these costs directly to the Provider within 30 days of demand, and the Provider will reimburse the Consultant in accordance with the Provider’s internal processes.
5.1 The Contract will commence on the Start Date and shall continue in force until:
5.1.1 close of business on the last day of the Minimum Contracted Day(s) (if applicable and the Contract is for a fixed number of Minimum Contracted Days); or
5.1.2 the End Date referred to in the Work Proposal (if applicable and the Contract is for a fixed term); or
5.1.3 (if the Contract is not for a fixed term) either party terminates this Contract by giving 28 days written notice to the other to expire on or after the Earliest Termination Date (as set out in the Work Proposal); or
5.1.4 the Contract is terminated in accordance with clause 5.
5.2 Either party may end the Contract by written notice to the other party if
5.2.1 the other party shall default with respect to any of its material obligations under the Contract and shall fail to rectify (if capable of rectification) the same within 30 days following receipt of written notification specifying such default; or
5.2.2 the other party shall be declared bankrupt or go into liquidation or administration either compulsory or voluntary (other than for the purposes of reconstruction or amalgamation) or if any administrative receiver or similar officer is appointed in respect of the whole or any part of its or his assets or if either party shall make any voluntary arrangement or composition with its or his creditors generally or any similar action shall be taken or enforced against either party.
5.3 Without limitation to any other rights or remedies, the Provider may terminate the Contract with immediate effect by giving written notice to the Client, if the Client fails to pay any amount due under the Contract within 7 days of the due date for payment.
5.4 in the event of termination, the Client shall pay to the Provider all Charges and expenses due to the Provider as at the date of termination. Termination of this Contract shall be without prejudice to any rights or remedies a party might be entitled to under this Contract or at law and shall not affect any accrued right or liabilities of either party nor the coming into or continuance in force of any provision of this Contract which is expressly or by implication intended to come into or continue in force on or after termination. If any deposit has been paid to the Provider this will be forfeited and will not be returned.
6. The Client’s obligations and liability
6.1 the Client shall:
6.1.1 co-operate with the Provider and the Consultant in all matters relating to the Services;
6.1.2 provide the Provider or the Consultant (as appropriate) with access to the Client’s premises, office accommodation and other facilities as reasonably required by Provider or the Consultant in order to provide the Services;
6.1.3 provide the Provider or the Consultant (as appropriate) in a timely manner and at no charge, with such information, materials and personnel as may be reasonably required by the Provider or the Consultant (as appropriate) in order to supply the Services, and ensure that such information is accurate and such personnel are suitably qualified;
6.1.4 implement agreed improvements in the agreed timescale and obtain and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the Services.
6.2 the Client agrees to ensure that the Provider’s personnel or other persons authorised by the Provider, who visit the Client’s premises in relation to this Contract will at all times be safe whilst on the Client’s premises. It is the Client’s responsibility to ensure that any such visitors are made aware of any applicable site and or health and safety rules in advance.
6.3 to the extent that the Provider’s personnel visit the Client’s premises in connection with the Contract, the Client will maintain relevant liability insurance cover with a reputable insurer of an amount of not less than £5 million for each and every claim for personal injury and/or loss or damage to goods. The Client will provide the Provider when reasonably requested satisfactory evidence that the Client are so insured that the premiums are paid up to date, and that the Client have done nothing to vitiate the policy.
6.4 if the Provider suffer claims, losses, costs or damage as a result of the Provider’s personnel visiting the Client’s premises, or by the possession or use of information or materials provided by the Client, in connection with the Contract, the Client agree to reimburse the Provider on a pound for pound basis, on demand for all such losses, costs or damage that the Provider suffer.
6.5 clause 6 does not apply to loss cost or damage caused by the Provider’s negligence or the negligence of staff authorised by the Provider to visit the Client’s premises.
7.1 the Client undertake that it shall not (except with the Provider’s prior written consent) directly or indirectly try to solicit or entice away from the Provider, any person who is, or has been, employed or engaged by the Provider in the provision of the Services at any time, including in particular the Consultant, during the period from when the parties enter into this Contract until 6 months after the Services have been delivered.
7.2 in the event of breach of clause 7.1 above, the Client shall pay to the Provider a sum equivalent to 30% (thirty percent) of the then current annual remuneration of the relevant employee, consultant or subcontractor or, if higher, 30% (thirty percent) of the annual remuneration to be paid by the Client to the relevant employee, consultant or subcontractor.
8.1 it is agreed that both parties shall each keep confidential the other party’s information of a confidential nature which may become known to that party from the other party (“Confidential Information”), unless the relevant information is public knowledge or already known to that party at the time of disclosure or subsequently becomes public knowledge other than by breach of agreement or subsequently comes lawfully into the possession of that party from a third party, or is required to be disclosed by law, regulation or an order of a court of competent jurisdiction.
8.2 to the extent necessary but only to perform the Contract each party may disclose Confidential Information of the other to those of its employees as may be reasonably necessary, provided that before any such disclosure takes place each party shall notify the recipients that are under obligations to keep the same secret and only to use it to perform the Contract and shall at all times procure compliance by those persons with those obligations.
9. Intellectual Property
9.1 all Background Information and know-how used in connection with the Services shall remain the property of the party introducing the same.
9.2 if any Foreground Information is created or developed by the Provider in the course of it providing the Services then save as may be provided in the Work Proposal or as may be otherwise agreed in writing the Provider hereby grant the Company a non-exclusive, license to use such Background Information owned by or licensed to the Provider, so far as is needed to develop and exploit the Foreground Information.
9.3 the Client agree to indemnify and hold the Provider harmless from all claims and all direct, indirect or consequential liabilities and/or losses (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by the Provider, as a result of or in connection with any alleged or actual infringement, whether or not under English law, of any third party's Intellectual Property Rights or other rights relating to materials, equipment, tools, drawings, specifications, reports and/or data supplied by the Client to the Provider during the course of carrying out its performance of the Services.
10. Limits on Liability
10.1 neither party can exclude or restrict each parties respective liability for claims for death or personal injury caused by negligence in connection with the Contract.
10.2 the Client shall indemnify the Provider and keep it fully indemnified against all actions, claims, proceedings, costs and damages (including any damages or compensation paid by the Provider on the advice of its legal advisers to compromise or settle any claim) and all legal costs or other expenses arising out of any breach of this Contract by the Client.
10.3 the Client shall indemnify and hold the Provider harmless from all claims and all direct, indirect or consequential liabilities, costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by the Provider, as a result or in connection with any alleged or actual infringement, whether or not under English law, of any third party's Intellectual Property Rights or other rights arising out of the materials provided by the Client to the Provider.
10.4 Subject to clause 10:
10.4.1 the Provider’s entire liability to the Client arising in connection with the Contract shall not exceed the Charges paid by the Company to the Provider in accordance with the Contract; and
10.4.2 the Client is not entitled in connection with the Contract to:
10.4.2.1 claim from the Provider anything other than the Client’s direct loss, thus the right to claim for indirect and consequential loss of any kind is hereby excluded;
10.4.2.2 claim from the Provider loss of profits, loss of opportunity, anticipated savings or anticipated business improvements all of which are hereby excluded;
10.4.2.3 claim against any (a) party that the Provider are acting on behalf of or sub-contract for or represent or (b) government body providing funding, and hereby waive any and all claims and/or potential claims which the Client might have against any such party;
10.4.2.4 withhold payment of any sum due under the Contract, thus the Client cannot for example set off an amount that it states that the Provider owe the Client from sums the Client owe to the Provider.
11. Force Majeure
11.1 neither party will be liable for non performance of each other’s respective obligations under the Contract to the extent that such non-performance is due to any cause outside of each other’s respective reasonable control (as the context requires), for example but without limitation strike action, civil disturbance, fire or flood (“an Event of Force Majeure”).
11.2 if an Event of Force Majeure arises:
11.2.1 the obligations of the party affected shall be suspended during the period but only to the extent that that party is prevented or hindered from complying with them; and
11.2.2 the party affected shall give notice in writing to the other party as soon as reasonably possible stating the nature of the Event of Force Majeure and how it effects it;
11.2.3 failure to give such notice under clause 11.2.2 shall forfeit the rights of that party to claim suspension of its obligations;
11.3 in the event that the Event of Force Majeure continues for more than 3 months either party may terminate this Contract on 30 days notice.
12. Dispute Resolution and Applicable Law
12.1 if any dispute or disagreement arises out of this Contract, the parties shall attempt in good faith to settle the matter in dispute or disagreement (“Matter in Dispute”) by negotiation. Any settlement or agreement reached by the parties regarding a Matter in Dispute shall not be binding on either party unless it is in writing and signed by a person duly authorised on behalf of that party.
12.2 nothing in this clause 12 shall prevent either party from commencing court proceedings.
12.3 the Contract shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the English Courts.
Any notice to be served on either of the parties by the other shall be sent by prepaid recorded delivery or registered post or delivered by hand to the address set out for the recipient in the Work Proposal or such other addresses as may be notified in writing by either party to them for the purpose of this clause after Contract has been formed and the same shall be deemed to be received by the addressee (if sent by post) within 48 hours of posting or (if delivered by hand) at the time the same was left at the address for the addressee.
14. Entire Agreement
14.1 each Contract formed constitutes the entire agreement between both parties, relating to the Services set out in the Work Proposal and sets out the terms expressly agreed between both parties in relation to such Services. Accordingly any other terms undertakings promises understandings or arrangements of whatsoever kind reached or given between the parties or by other persons in but not set down in the applicable Contract are excluded.
14.2 each party warrants that they have not entered into this Contract in reliance upon any representation, warranty, promise, term, condition, obligation or statement which is not expressly set out in this Contract and no such representation, warranty, promise, obligation, statement or any other term or condition is to be implied in it whether by virtue of any usage or course of dealing or otherwise, (including, subject to clause 12 by statute or common law) except as expressly set out in this Contract.
14.3 If a party has given any representation, warranty, promise, or statement then (except to the extent that it has been set out in this Contract), the party to whom it is given hereby waives any rights or remedies which it may have in respect of it.
14.4 this clause shall not exclude the liability of a party for fraud or fraudulent misrepresentation or concealment or any resulting right to rescind this Contract.
15.1 the failure by either party to enforce at any time or for any period any one or more of the terms of the Contract shall not be a waiver of such terms nor of the right at any time subsequently to enforce any of the terms of the Contract.
15.2 all rights under the Contract are accumulative and no exercise by either party of any such right shall restrict or prejudice the exercise of any other right available to either party.
15.3 the Client does not have the power to act on the Provider’s behalf or otherwise bind it in any way whatsoever.
15.4 the Contract is with the Client and not with anyone else, therefore the Client cannot transfer it to anyone else without the Provider’s permission (which the Provider will not unreasonably withhold). The Provider may, at any time, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract.
15.5 except as set out in these Terms and Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by each party.
15.6 by entering into the Contract, the Client are not entering in a partnership or joint venture with the Provider, or with anyone else, neither does it create a relationship of employer and employee, or that of principal and agent.
15.7 if a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.15.8 under the Contracts (Rights of Third Parties) Act 1999 in certain circumstances, persons who are not parties to a Contract can benefit from and or enforce its terms. For the purposes of the Contract, the Client agrees with the Provider that no other person can enforce or benefit from any term of the Contract (unless and to the extent that the Provider have stated otherwise in the Work Proposal). refers to any person or organisation that attends orders or uses any of the coaching services, workshops, training courses or products of Affinity.