TERMS AND CONDITIONS FOR THE SUPPLY OF MINDFULNESS TRAINING AND COACHING SERVICES BY MINDFULNESS AT WORK LTD
The Customer’s attention is particularly drawn to the provisions of clause 9.
1.1 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.
Contract: the contract between the Company and the Customer for the supply of Services in accordance with these Conditions.
Deliverables: the deliverables produced by the Company for the Customer in accordance with the Proposal, including but not limited to email prompts and MP3 downloads, where applicable.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Online Training: the delivery of online mindfulness training as described in the Confirmation Form.
Proposal: the description of the Services provided in writing by the Company to the Customer including the Confirmation Form.
Services: the mindfulness training and coaching services, including Online Training, where applicable, and, if applicable, any Deliverables supplied by the Company to the Customer as set out in the Proposal.
1.2 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) a reference to writing or written includes e-mails provided they are backed up by post.
2. BASIS OF CONTRACT
2.1 This Contract is made up of the following:
(a) The Proposal
(b) The Confirmation Form.
(c) These Terms & Conditions
2.2 If there is any conflict or ambiguity between the terms of the documents listed above, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.
2.3 This Contract shall commence on the date that the dates of training have been agreed in writing by both parties (either by email or via the Confirmation Form) and shall continue until terminated in accordance with its terms.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 The Company shall supply the Services to the Customer in accordance with the Proposal in all material respects and shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.2 The Company 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 the Company shall notify the Customer in any such event.
3.3 The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
4. ONLINE TRAINING
4.1 Where applicable, the Company will supply the Online Training to the Customer.
4.3 The Customer shall procure that its officers and employees comply with the terms of the documents set out in Clause 4.2.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
(a) ensure that the terms of the Proposal are complete and accurate; and
(b) comply with the obligations as set out in the Proposal.
5.2 If the Company’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) the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
6. CHARGES AND PAYMENT
6.1 The charges for the Services shall be the charges, materials and travel expenses as set out in the Proposal.
6.2 The Company shall invoice the Customer as set out in the Proposal.
6.3 The Customer shall pay each invoice submitted by the Company:
(a) in accordance with the terms and to the bank account set out on the invoice; and
(b) time for payment shall be of the essence of the Contract.
6.4 All amounts payable by the Customer 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 the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company 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.
6.5 Without limiting any other right or remedy of the Company, if the Customer fails to make any payment due to the Company under the Contract by the due date for payment (Due Date), the Company shall have the right to charge interest on the overdue amount at the rate of three per cent per annum above the then current Bank of England’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
6.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part.
The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Unless stated otherwise in the Proposal, all Intellectual Property Rights in or arising out of or in connection with the Deliverables and the Services shall be owned by the Company.
7.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Customer.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, Proposals, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors, as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract and as may be required by law, court order or any governmental or regulatory authority. The Receiving Party shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. The Receiving Party shall not use any such information for any purpose other than to perform its obligations under this Contract. This clause 8 shall survive termination of the Contract.
Subject to the above, the Customer grants the Company the right to use the Customer’s name only for promotional purposes.
9. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
9.1 Nothing in these Conditions shall limit or exclude the Company’s 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).
9.2 Subject to clause 9.1:
(a) the Company shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract, for;
(i) any loss of profits, sales, business, or revenue;
(ii) loss or corruption of data, information or software;
(iii) loss of business opportunity;
(iv) loss of anticipated savings;
(v) loss of goodwill; or
(vi) any indirect or consequential loss; and
(b) the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount payable for the Services.
9.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.4 This clause 9 shall survive termination of the Contract.
10.1 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
11. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return any Company materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, 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
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company 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 subcontractors.
(b) the Company shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Company from providing any of the Services for more than six weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
12.2 Assignment and subcontracting:
(a) the Company may at any time assign, transfer, 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) The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
(c) This clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action.
(a) A waiver of any right under the Contract 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 under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(a) 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.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
12.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.8 Variation: Except as set out in these 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 the Company.
12.9 Governing law and jurisdiction: 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
Your details: Users of the Online Training platform (“you”) must ensure that the details provided by you on registration or at any time are correct and complete. You must inform the Company immediately of any changes to the information that you provided when registering by updating your personal details in order that we can communicate with you effectively. You are responsible for ensuring that all employees registering for online courses or workshops are appraised of the following conditions which apply to them personally.
Password and security: When you register to use the platform you will be asked to create a password. In order to prevent fraud, you must keep this password confidential and must not disclose it or share it with anyone. If you know or suspect that someone else knows your password you should notify the Company by contacting firstname.lastname@example.org immediately.
If the Company has reason to believe that there is likely to be a breach of security or misuse of the platform, we may require you to change your password or we may suspend your account.
Prohibited Uses: You may not use the platform for any of the following purposes:
• disseminating any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material or otherwise breaching any laws;
• transmitting material that encourages conduct that constitutes a criminal offence, results in civil liability or otherwise breaches any applicable laws, regulations or code of practice;
• interfering with any other person’s use or enjoyment of the platform; or
• making, transmitting or storing electronic copies of materials protected by copyright without the permission of the owner.
Your responsibility: You will be responsible for the Company’s losses and costs resulting from your breach of this Annex A.