Terms and Conditions for the Supply of Services

 

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8.

1.              Interpretation

1.1            Definitions. 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.

Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.

Conditions: these terms and conditions as amended from time to time in accordance with clause 15.8.

Contract: the contract formed between the Supplier and the Customer for the supply of Services in accordance with these Conditions and the Engagement Form.

Customer: the person or firm who purchases Services from the Supplier.

Deliverables: any training materials produced by the Supplier for the Customer.

Engagement Form: the engagement form provided to the Customer by the Supplier of the Services in accordance with these Conditions.

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.

Order: the Customer's order for Services as confirmed in the Engagement Form or the Customer's written acceptance of a quotation by the Supplier, as the case may be.

Services: the high performance coaching, training and business strategy consultancy services, including the Deliverables, provided by the Supplier to the Customer including the programmes and sessions set out in the Engagement Form and any additional services agreed to be provided by the Supplier including, without limitation, interpretation of psychometric reports and any additional consultancy, preparation and research required.

Supplier: Michelle Sciama Associates Limited registered in England and Wales with company number 09629055. Michelle Sciama Associates is a trading name of Michelle Sciama Associates Limited.

Supplier Materials: has the meaning set out in clause 4.1(f).

1.2            Construction. 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 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)        any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(e)         a reference to writing or written includes faxes and e-mails.

2.              Basis of contract

2.1            The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2            The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order and/or submits an Engagement Form to the Customer. Each Engagement Form issued by the Supplier shall constitute a new Contract and shall be subject to the Conditions in each instance.

2.3            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 Supplier which is not set out in the Contract.

2.4            Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

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 Supplier 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 Supplier shall supply the Services to the Customer in accordance with the Engagement Form in all material respects.

3.2            The Supplier shall use reasonable endeavours to meet any performance dates specified in the Engagement Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3            The Supplier 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 Supplier shall notify the Customer in any such event.

3.4            The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

4.              Customer's obligations

4.1            The Customer shall:

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

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

(c)         provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier;

(d)        provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

(e)         obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and

(f)         keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation.

4.2            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)         the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services 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 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 4.2; 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.

5.              Charges and payment

5.1            The Charges for the Services shall be as specified in the quotation or Engagement Form and the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials including, without limitation, the cost of ordering or generating psychometric reports.

5.2            The Supplier shall invoice the Customer upon acceptance of the Order. Charges for additional Services and expenses shall be invoiced by the Supplier prior to performance of such Services or incurring such expenses (as the case may be).

5.3            The Customer shall pay each invoice submitted by the Supplier:

(a)         at least 7 days prior to the provision of the Services or if, shorter, immediately upon receipt of the invoice, unless otherwise agreed in writing between the parties; and

(b)        in full and in cleared funds to a bank account nominated in writing by the Supplier, and

time for payment shall be of the essence of the Contract.

5.4            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 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 Services at the same time as payment is due for the supply of the Services.

5.5            Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of four per cent per annum above the then current Barclays Bank Plc 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.

5.6            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 Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

6.              Intellectual property rights

6.1            All Intellectual Property Rights in or arising out of or in connection with the Services, including, without limitation, the Intellectual Property Rights in the Deliverables, shall be owned by the Supplier.

6.2            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 Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

6.3            All Supplier Materials are the exclusive property of the Supplier.

7.              Confidentiality

A party (Receiving Party) 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 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 shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.

8.              Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

8.1            Nothing in these Conditions shall limit or exclude the Supplier'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).

8.2            Subject to clause 8.1:

(a)         the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

(b)        the Supplier'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 of the Supplier’s Charges for the provision of the Services in respect of that Engagement Form.

8.3            Except as set out in these Conditions, the Supplier makes no warranty or representation that the Services will meet the Customer’s requirements, will be of satisfactory quality, will be fit for a particular purpose or not infringe the rights of third parties, and the Supplier hereby expressly excludes all warranties, conditions and other terms implied by statute, common law or the law of equity are, to the fullest extent permitted by law, excluded from the Contract.

8.4            This clause 8 shall survive termination of the Contract.

9.              Disclaimer

9.1            The Supplier makes no guarantee that the Services will improve the business or performance or the Customer.

9.2            No part of the Services are intended to constitute advice and should not be relied upon when making any decisions or taking any action of any kind.

9.3            Whilst every reasonable endeavour has been made to ensure that all information provided in the provision of the Services will be accurate and up to date, the Supplier makes no warranty or representation that this is the case.

9.4            Whilst every effort has been made to ensure that all descriptions of the Services to be provided by the Supplier correspond to the actual services available, the Supplier is not responsible for any variations from these descriptions.

10.            Indemnity

10.1         The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interests, 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 and in connection with the Services.

10.2         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 and 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.

11.            Cancellation

11.1         The Customer may cancel any Order for Services at any time before the start date for the Services by confirming to the Supplier in writing.

11.2         If the Customer cancels an Order for one to one coaching services under clause 11.1 and notice of cancellation of the Services is received by the Supplier, in respect of the relevant Engagement Form:

(a)         at least 24 hours prior to the commencement of delivery of the Services, the Supplier will refund any amounts received from the Customer in respect of such Services to the Customer; or

(b)        less than 24 hours prior to the commencement of delivery of the Services, all amounts due in respect of such Services shall be immediately due and payable by the Customer to the Supplier.

11.3         If the Customer cancels an Order for training course services under clause 11.1 and notice of cancellation of the Services is received by the Supplier, in respect of the relevant Engagement Form:

(a)         at least 14 days prior to the commencement of delivery of the Services, the Supplier will refund any amounts received from the Customer in respect of such Services to the Customer; or

(b)        less than 14 days prior to the commencement of delivery of the Services, all amounts due in respect of such Services shall be immediately due and payable by the Customer to the Supplier.

12.            Termination

12.1         Without limiting its other rights or remedies, each 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 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;

(b)        the other party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administra­tive or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction; or

(c)         the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

12.2         Without limiting its other rights or remedies, the Supplier may terminate the Contract in relation to the relevant Engagement Form 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 or if the Customer cancels an Order in accordance with clause 11.1.

12.3         Without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 12.1(b) or clause 12.1(c), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

13.            Consequences of termination

13.1         On termination of the Contract for any reason:

(a)         the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services 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)        the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier 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.

13.2         On termination of the Contract due to cancellation of an Order in accordance with clause 11.1, the provisions of clauses 11.2 and 11.3 shall apply in addition to this clause 13.

14.            Data Protection

14.1         In this clause 14, the following definitions apply:

‘client personal data’ means any personal data provided to the Supplier by the Customer, or on the Customer’s behalf, for the purpose of the Supplier providing the Services to the Customer;

‘data protection legislation’ means all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426);

‘controller’, ‘data subject’, ‘personal data’ and ‘process’ shall have the meanings given to them in the data protection legislation.

14.2         Where the Customer provides to the Supplier client personal data other than its own personal data, both the Supplier and the Customer shall each be considered an independent data controller in relation to the client personal data. Each of the Customer and the Supplier shall comply with all requirements and obligations applicable to it under the data protection legislation in respect of the client personal data.

14.3         The Customer shall only disclose client personal data to the Supplier where the Customer has:

(a)         provided the necessary information to the relevant data subjects regarding its use (and the Customer may use or refer to the privacy notice available on the Supplier’s website at [www.michellesciama.com/privacy-policy] for this purpose);

(b)        a lawful basis upon which to do so, which, in the absence of any other lawful basis, shall be with the relevant data subject’s consent; and

(c)         complied with the necessary requirements under the data protection legislation to enable the Customer to do so.

14.4         The Supplier shall only process client personal data:

(a)         in order to provide the Services to the Customer and perform any other obligations in accordance with the Contract;

(b)        in order to comply with its legal or regulatory obligations;

(c)         where it is necessary for the purposes of its legitimate interests and those interests are not overridden by the data subjects’ own privacy rights;

(d)        for the purposes of establishing, exercising, resolving and/or defending legal claims; and/or

(e)         where it has obtained the data subject’s consent.

14.5         For the purpose of providing the Services, the Supplier may disclose the client personal data to certain third parties (for example, its or the Customer’s professional advisors and services providers such as the business psychology and personality assessment providers we use). The third parties to whom the Supplier discloses such client personal data may be located outside of the European Economic Area (EEA). The Supplier will only disclose client personal data to a third party (including a third party outside of the EEA) provided that the transfer is undertaken in compliance with the data protection legislation.

14.6         The Supplier shall maintain commercially reasonable and appropriate security measures, including administrative, physical and technical safeguards, to protect against unauthorised or unlawful processing of the client personal data and against accidental loss or destruction of, or damage to, the client personal data.

14.7         Upon the reasonable request of the other, the parties shall each co-operate with the other and take such reasonable commercial steps or provide such information as is necessary to enable each party to comply with the data protection legislation in respect of the Services provided to the Customer by the Supplier.

14.8         The Supplier’s privacy notice (available on its website at [www.michellesciama.com/privacy-policy]) contains further details as to how it may process client personal data.

15.            General

15.1         Force majeure:

(a)         For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to 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 subcontractors.

(b)        The Supplier 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 Supplier from providing any of the Services for more than four weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

15.2         Assignment and subcontracting:

(a)         The Supplier 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 Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

15.3         Notices:

(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 or email to the email address provided by each party.

(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 or email, on the next Business Day after transmission or sending.

(c)         This clause 15.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall include e-mails.

15.4         Waiver:

(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.

15.5         Severance:

(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.

15.6         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.

15.7         Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

15.8         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 Supplier.

15.9         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.