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1.0 ) The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
Contract: the Customer's purchase order and Engineering Trust Training Limited (ETT) acceptance of it, or the Customer's acceptance of a quotation by ETT starting to deliver services under condition 2.2.
Customer: the person, firm or company who purchases Services from ETT.
Deliverables: all documents, products and materials developed by ETT or its agents, subcontractors, consultants and employees in relation to the Services in any form.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, 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.
Engineering Trust Training Limited, registered number 02423523, registered address 2, The Courtyard, Home Farm, Caversfield, Bicester, OX27 8TG.
Services: the services to be provided by ETT under the Contract as set out in ETT’s quotation, together with any other services which ETT provides, or agrees to provide, to the Customer.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
Application of conditions
2.1) These Conditions shall:
apply to and be incorporated into the Contract; and
prevail over any inconsistent terms or conditions contained, or referred to, in the Customer's purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2) The Customer's purchase order, or the Customer's acceptance of a quotation for Services by ETT, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by ETT other than:
by a written acknowledgement issued and executed by ETT; or
(if earlier) by ETT starting to provide the Services,
when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3) Quotations are given by ETT on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that ETT has not previously withdrawn it.
3.1) ETT shall use reasonable endeavours to provide the Services in accordance in all material respects with ETT’s quotation.
3.2) ETT shall use reasonable endeavours to meet any performance dates specified in ETT’s quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.1) The Customer shall:
co-operate with ETT in all matters relating to the Services;
provide ETT, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer's premises, office accommodation, data and other facilities as reasonably required by ETT;
provide to ETT, in a timely manner, such information as ETT may reasonably require and ensure that it is accurate in all material respects;
be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services, including identifying, monitoring, removing and disposing of any hazardous materials from any of its premises in accordance with all applicable laws, before and during the supply of the Services at those premises;
inform ETT of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer's premises.
4.2) If ETT's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, ETT shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
4.3) The Customer shall be liable to pay to ETT, on demand, all reasonable costs, charges or losses sustained or incurred by ETT (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to ETT confirming such costs, charges and losses to the Customer in writing.
4.4) The Customer shall not, without the prior written consent of ETT, at any time from the date of the Contract to the expiry of 12 months after the last date of supply of the Services, solicit or entice away from ETT or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of ETT in the provision of the Services.
4.5) If, following an apprentice candidate’s unsuccessful application to the Customer via ETT, the Customer without obtaining ETT’s consent, employs that candidate in any capacity within 9 months of ETT having introduced the candidate to the Customer then the Customer shall be liable to pay ETT a fee of £750.00. This fee will not apply if the Customer instructs ETT to provide the training services described in ETT’s original quotation to the Customer.
Charges and payment
5.1) In consideration of the provision of the Services by ETT, the Customer shall pay the charges as set out in ETT’s quotation.
5.2) Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the quotation. The total price shall be paid to ETT (without deduction or set-off) in instalments, as set out in the quotation.
5.3) Unless otherwise stated in ETT’s quotation, any fixed price and daily rate excludes:
the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom ETT engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by ETT for the supply of the Services. Such expenses, materials and third party services shall be invoiced by ETT at cost; and
VAT, which ETT shall add to its invoices at the appropriate rate.
5.4) Unless otherwise stated in the quotation or acknowledgement of order, the Customer shall pay each invoice submitted to it by ETT, in full and in cleared funds, within 30 days of receipt.
5.5) Without prejudice to any other right or remedy that it may have, if the Customer fails to pay ETT on the due date, ETT may:
charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the HSBC Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. ETT may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
suspend all Services until payment has been made in full.
5.6) Time for payment shall be of the essence of the Contract.
5.7) All sums payable to ETT under the Contract shall become due immediately on its termination, despite any other provision. This condition 5.7 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
5.8) ETT may, without prejudice to any other rights it may have, set off any liability of the Customer to ETT against any liability of ETT to the Customer.
6.1) Unless otherwise agreed, fees for courses will be invoiced in full during October, 6 – 8 weeks following the start of term. Once an apprentice has been accepted by a college and enrolled on a course, the booking cannot be cancelled and the Customer shall be liable to pay the full course fees even if the delegate fails to attend a course or ceases to be employed by the Customer.
6.2) There may be occasions, for reasons beyond ETT’s control, when ETT may need to cancel or re-schedule a course. In such circumstances, ETT reserves the right to cancel or re-schedule without liability to the Customer. ETT shall promptly notify the Customer of any need to cancel or re-schedule a course. In such event, the Customer’s delegate(s) will be offered an alternative course date, a credit note or a full refund.
Intellectual property rights
7.1) As between the Customer and ETT, all Intellectual Property Rights and all other rights in the Deliverables shall be owned by ETT. ETT licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services. If the Contract terminates, this licence shall automatically terminate.
Confidentiality and ETT's property
8.1) The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by ETT, its employees, agents, consultants or subcontractors and any other confidential information concerning ETT's business or its products which the Customer may obtain.
8.2) The Customer may disclose such information:
to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer's obligations under the Contract; and
as may be required by law, court order or any governmental or regulatory authority.
8.3) The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 8.
8.4) The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
8.5) All materials, equipment and tools, drawings, specifications and data supplied by ETT to the Customer shall, at all times, be and remain as between ETT and the Customer the exclusive property of ETT, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to ETT, and shall not be disposed of or used other than in accordance with ETT's written instructions or authorisation.
Limitation of liability -
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
9.1) This condition 9 sets out the entire financial liability of ETT (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
any breach of the Contract;
any use made by the Customer of the Services, the Deliverables or any part of them; and
any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract.
9.2) All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3) Nothing in these Conditions limits or excludes the liability of ETT:
for death or personal injury resulting from negligence; or
for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by ETT.
9.4) Subject to condition 9.2 and condition 9.3
ETT shall not be liable for:
loss of profits; or
loss of business; or
depletion of goodwill and/or similar losses; or
loss of anticipated savings; or
loss of goods; or
loss of contract; or
loss of use; or
loss of corruption of data or information; or
any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
ETT's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid for the Services.
10.1) The Customer acknowledges and agrees that details of the Customer's name, address and payment record may be submitted to a credit reference agency, and personal data may be processed by and on behalf of ETT in connection with the Services.
11.1) Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 11.1(d) to condition 11.1(h) (inclusive); or
the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
11.2) On termination of the Contract for any reason:
the Customer shall immediately pay to ETT all of ETT's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, ETT may submit an invoice, which shall be payable immediately on receipt;
the Customer shall , within a reasonable time, return all of ETT's equipment, and Deliverables. If the Customer fails to do so, then ETT may enter the Customer's premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11.3) On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
condition 9; and
12.1) ETT shall have no 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 ETT 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 subcontractors.
13.1) ETT may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If ETT requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
13.2) Subject to condition 13.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
14.1) A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. 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.
14.2) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
15.1) If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
15.2) If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16.2) The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
16.2) Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
16.3) Nothing in this condition shall limit or exclude any liability for fraud.
17.1) The Customer shall not, without the prior written consent of ETT, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
17.2) ETT may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of 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.
17.3) Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
No partnership or agency
18.1) 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.
Rights of third parties
19.1) A person who is not a party to the Contract shall not have any rights under or in connection with it.
Governing law and jurisdiction
20.1) The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
20.2) The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter.