TALKING LIFE LIMITED
STANDARD TERMS AND CONDITIONS FOR SUPPLY OF TRAINING SERVICES
By confirming a booking with Talking Life Limited (Registered Company no. 02472954) whose registered office is at 33 Thingwall Road, Birkenhead, Wirral, CH61 3UE and whose trading address is at 36 Birkenhead Road, Hoylake, Wirral CH47 3BW (‘Talking Life’) you (‘the Client’) accept and agree to these terms and conditions of service (‘the Agreement’) which will, except where specifically varied, apply to all services supplied to you by Talking Life until this agreement is varied or terminated.
In this Agreement, the following words shall have the following meanings:
1.1 ‘Commissioning Letter’ means a letter supplied by Talking Life confirming the details of a booking for the provision of Training Services and any additional terms on which a booking is made.
1.2 ‘Fee(s)’ means the amount(s) as agreed by the Client and Talking Life for the Training Services as set out in the Commissioning Letter;
1.3 ‘Parties’ means Talking Life and the Client, and ‘Party’ shall mean either one of them;
1.4 ‘Receiving Party’ has the meaning given in clause 8;
1.5 ‘Specification’ means the specific Training Services to be provided by Talking Life under this Agreement and set out in the Commissioning Letter; and
1.6 ‘Supplying Party’ has the meaning given in clause 8.
1.7 ‘’Training Course’ means a course or workshop provided in performance of the Training Services.
1.8 ‘Training Services’ means on-site workshops and training courses provided by Talking Life;
2 Training Services
2.1 Talking Life shall provide the Training Services as the Parties may agree from time to time to the Client in consideration for the Client paying the Fee to Talking Life, subject to the provisions of this Agreement.
2.2 Talking Life and the Client shall agree the time and place for the performance of the Training Services subject to the availability of Talking Life’s staff and agents.
2.3 Talking Life shall use reasonable endeavours to complete the Training Services on the dates agreed by the Parties.
2.4 The Training Services shall be performed by such employees or agents that Talking Life may choose as most appropriate to carry out the Training Services as agreed from time to time by the Parties.
2.5 From the date of this Agreement the Parties shall discuss and agree the particular Training Services to be carried out by Talking Life. The Training Services to be performed as agreed by the Parties, the time estimates for the provision of the particular Training Services, and the Fee(s) to be paid shall be set out in the Specification.
2.6 Talking Life may where it thinks it necessary in the interests of safety and/or quality of provision impose a limit on the number of delegates permitted to attend a seminar.
Talking Life shall provide the Training Services in such places and locations as agreed by the Parties from time to time.
4 Fees and payment of Fees
4.1 Unless otherwise agreed Talking Life shall be entitled to send an invoice in respect of the Training Services to the Client prior to completion of the Training Services.
4.2 Except where otherwise agreed the payment of the Fees shall be made by the Client to Talking Life as follows:
4.2.1 Where the date on which a Training Course is to commence is more than three months from the date on which the invoice is sent, one-third of the Fees shall be payable within 30 days of receipt of the invoice and the remaining balance shall be payable no later than 30 days after the commencement of the Training Course.
4.2.2 Where the date on which a Training Course is to commence is less than three months from the date on which the invoice is sent, one-half of the Fees shall be payable within 30 days of receipt of the invoice and the remaining balance shall be payable no later than 30 days after the commencement of the Training Course.
4.2.3 Except where specifically agreed with Talking Life, all payments made in respect of the Fees will be payable by BACS to Hitachi Capital Finance using the payment details printed on the invoice. Where required, Talking Life will provide a signed letter of authority on request.
4.3 Where the Training Services or any part of them are rescheduled at the Client’s request the Fees shall remain payable within the originally agreed timescale unless the date of the rescheduled course is earlier than that originally agreed in which case the timescales set out in clause 4.2 shall be amended accordingly.
4.4 Talking Life may at its absolute discretion charge to the Client an additional fee in respect of the preparation of any alterations to Talking Life’s standard training programmes and/or materials specifically requested by the Client and such charges shall be calculated in accordance with clause 4.7 below.
4.5 All amounts stated are exclusive of VAT, which will be charged in addition at the rate in force at the time the Client is required to make payment.
4.6 If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the Agreement, Talking Life shall be entitled to:
4.6.1 charge interest on the outstanding amount at the rate of 8% per year above the Bank of England base rate, accruing daily;
4.6.2 require the Client to pay, in advance, for any Training Services (or any part of the Training Services) which have not yet been performed;
4.6.3 not perform any further Training Services (or any part of the Training Services).
4.6.4 charge a fee for any recovery action pursuant to the Late Payment of Commercial Debts Regulations in force at the relevant time.
4.6.5 For Training Services with a value of over £1,000 plus VAT Talking Life offers a discount of 5% of the Fee for prepayment of the Training Services. In this case, settlement will be due within 30 days of the invoice date.
5 Cancellation and postponement of Training Services
5.1 A Client wishing to cancel or postpone a Training Course must do so in writing or else by telephone and confirmed in writing as soon as possible and certainly no later than the end of the next working day.
5.2 Except where expressly agreed in writing where a Training Course is cancelled or postponed at the Client’s request a fee will apply. Except where otherwise agreed this fee will be calculated as follows: –
Cancellation 2-4 weeks prior to the Training Course; no replacement date proposed by the Client or Talking Life cannot reschedule within any timescale proposed by the Client
50% of the Fees
Cancellation less than 2 weeks prior to the Training Course; no replacement date proposed by the Client or Talking Life cannot reschedule within any timescale proposed by the Client 100% of the Fees
Re-scheduling of Training Course – more than 4 weeks’ notice before date of course provided No fee
Re-scheduling of Training Course – 2 – 4 weeks’ notice before date of course provided 50% of fee due immediately plus up to £150 (plus VAT) rearrangement fee
Re-scheduling of Training Course – less than 2 weeks’ notice before date of course provided 100% of fee due immediately plus up to £150 (plus VAT) rearrangement fee
Re-scheduling or cancellation of any training courses of longer than 2 days more (including consecutive 1 day courses) than 4 weeks prior to the Training course 25% of the Fees
5.2.1 Talking Life may, as required from time to time, cancel or reschedule all or any part of the Training Services without notice to the Client.
5.2.2 Talking Life will not be responsible for charges or other costs for which the Client is liable in respect of cancellation of a Training Course at a hired third-party venue whether or not such cancellation is at the request of the Client.
6 Client’s obligations
6.1 During the preparation of the Specification and performance of the Training Services the Client will:
6.1.1 co-operate with Talking Life as Talking Life reasonably requires;
6.1.2 provide the information and documentation that Talking Life reasonably requires;
6.1.3 make available to Talking Life such facilities as Talking Life reasonably requires including a suitable venue at which the Training Services can be provided and refreshments; and
6.1.4 ensure that the Client’s staff and agents co-operate with and assist Talking Life.
6.2 ‘Facilities’ means a space suitable for the purpose of providing the Training Services to the agreed number of delegates, computer and projection equipment, access to the internet and the Client’s computer network, telecommunications system etc, and shall include not only access to such resources but also use of them to the extent required by Talking Life in order to perform the Training Services.
6.3 The Client will not charge for Talking Life’s use of the Facilities made available by the Client.
6.4 Where necessary, the Client will ensure the relevant permissions are obtained to allow the Training Services to be provided at the nominated venue.
6.5 If the Client does not provide the Facilities that Talking Life reasonably requires to perform the Training Services, then any additional costs and expenses which are reasonably incurred by Talking Life will be paid by the Client.
6.6 During the term of this Agreement the Client will not (and procures that its agents and employees will not) seek to engage for the purposes of providing training services any person or persons employed or introduced by Talking Life in the provision of any or all of the Training Services by means other than by contacting Talking Life’s office.
7 Reports and ownership of intellectual property
7.1 Talking Life will distribute evaluation questionnaires to delegates at each training course provided in the course of providing the Training Services and will provide copies and/or a brief report to the Client on completion of the Training Services.
7.2 Unless otherwise agreed by the Parties:
7.2.1 the Client will be entitled to one copy of such questionnaires and/or report provided by Talking Life;
7.2.2 the Client will be entitled to use any reports for their own internal purposes;
7.2.3 the Client will not be entitled to publish any such questionnaires and/or reports (or sell or make the reports available to third parties), or allow any other person to do so;
7.2.4 the copyright and database right (and all other intellectual property rights) in the questionnaires and/or reports training and promotional materials course content programmes and any other material created or prepared, whether or not provided to the Client, by Talking Life in performing the Training Services shall belong to Talking Life and shall not be reproduced copied or distributed without the express written permission of Talking Life.
8.1 Each Party (‘Receiving Party’) shall keep the confidential information of the other Party (‘Supplying Party’) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for performing the Receiving Party’s obligations under the Agreement. The Receiving Party shall inform its officers, employees and agents of the Receiving Party’s obligations under the provisions of this clause, and ensure that the Receiving Party’s officers, employees and agents meet the obligations.
8.2 The obligations of clause 8.1 shall not apply to any information which:
8.2.1 was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
8.2.2 is, or becomes, publicly available through no fault of the Receiving Party;
8.2.3 is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
8.2.4 was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or
8.2.5 is required to be disclosed by order of a court of competent jurisdiction.
8.3 This clause 8 shall survive termination of this Agreement for a period of 6 years.
9 Provision of trainers and use of sub-contractors
9.1 Unless specifically agreed between the parties this Agreement does not provide that Talking Life will arrange for a specific named individual or individuals to perform all or any of the Training Services.
9.2 Talking Life is permitted to use sub-contractors to provide some or all of the Training Services.
9.3 Talking Life shall be responsible for the work of a sub-contractor whose work shall be undertaken to the same standard as agreed by the Parties. However, the Parties acknowledge and agree that some sub-contractors have their own terms and conditions on which they trade and which are more restrictive than the provisions in this Agreement. For example, without limiting the generality of the foregoing, a sub-contractor may have more restrictive wording as to the standard it will meet in work it performs (as to timing or quality), what is to happen if that standard is not met, and the restriction and exclusion of liability. Where the terms and conditions of a sub-contractor are more restrictive or exclusory than the provisions of this Agreement, the Parties agree that work provided by a sub-contractor will be governed by the terms and conditions of the sub-contractor rather than the provisions of this Agreement.
10 Warranties, liability and indemnities
10.1 Talking Life warrants that it will use reasonable care and skill in performing the Training Services to the standard generally accepted within the industry, sector or profession in which Talking Life operates for the type of Training Services provided by Talking Life.
10.2 If Talking Life performs the Training Services (or any part of the Training Services) negligently or materially in breach of this Agreement, then, if requested by the Client, Talking Life will re-perform the relevant part of the Training Services, subject to clauses 10.4 and 10.5 below. The Client’s request must be made within 3 months of the date Talking Life completed performing the Training Services.
10.3 Other than the provision of Training Services, Talking Life provides no warranty that any result or objective can or will be achieved or attained at all or by any given date.
10.4 Except in the case of death or personal injury caused by Talking Life’s negligence, the liability of Talking Life under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever shall not exceed the Fee(s) paid by the Client to Talking Life under this Agreement. The provision of this clause 10.4 shall not apply to clause 10.6.
10.5 Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. The provision of this clause 10.5 shall not apply to clause 10.6.
10.6 The Client shall indemnify and hold harmless Talking Life from and against all Claims and Losses arising from loss, damage, liability, injury to Talking Life, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Client by Talking Life, its employees or consultants, or supplied to Talking Life by the Client within or without the scope of this Agreement. ‘Claims’ shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and ‘Losses’ shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
11.1 Without prejudice to the other remedies or rights a Party may have, either Party may terminate this Agreement, at any time, on written notice to the other Party (‘Other Party’). The notice will take effect as specified in the notice:
11.1.1 if the Other Party is in material breach of its obligations under this Agreement and where the breach is capable of remedy within 14 days, the Other Party has not remedied the breach within 14 days of receiving written notice which specifies the breach and requires the breach to be remedied; or
11.1.2 if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
11.2 On termination of this Agreement, the Client shall pay for all Training Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by Talking Life for the performance of the Training Services prior to the date of termination.
12.1 Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
12.4 Entire agreement
This Agreement contains the whole agreement between the Parties in respect of training services and supersedes and replaces any prior written or oral agreements, representations or understandings between them. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
No failure or delay by Talking Life in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
12.6 Agency, partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
12.7 Further assurance
Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
No Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
In this Agreement unless the context otherwise requires:
12.10.1 words importing any gender include every gender;
12.10.2 words importing the singular number include the plural number and vice versa;
12.10.3 words importing persons include firms, companies and corporations and vice versa;
12.10.4 references to numbered clauses are references to the relevant clause in this Agreement;
12.10.5 any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
12.10.6 the headings to the clauses and paragraphs of this Agreement are not to affect the interpretation;
12.10.7 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
12.10.8 where the word ‘including’ is used in this Agreement, it shall be understood as meaning ‘including without limitation’.
12.11.1 Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or air mail, or by e-mail, to such address as that Party may from time to time notify to the other Party in accordance with this clause.
12.11.2 Notices sent as above shall be deemed to have been received 3 working days after the day of posting (in the case of inland first class mail), or 7 working days after the date of posting (in the case of air mail), or on the next working day after sending (in the case of e-mail).
12.11.3 In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.
12.12 Law and jurisdiction
The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
12.13 Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.