TERMS AND CONDITIONS

1 – Interpretation

1.1 In the event of a conflict between the terms of the Scope of Works and the provisions of these Terms and Conditions the provisions of these Terms and Conditions shall prevail.

1.2 In these Terms and Conditions, words and expressions shall have their ordinary meaning unless otherwise defined in the Scope of Works or in these Terms and Conditions (including but not limited to the Appendix) and unless the context otherwise requires:

a)  any reference to a “party” or “parties” shall unless otherwise stated mean a party or the parties to this Agreement; and

b)  references to clauses and sub-divisions of them are references to the clauses of these Terms and Conditions; and

c)  references to any enactment shall be deemed to include references to such enactment as re-enacted, amended or extended and any subordinate legislation made from time to time under it; and

d)  headings are inserted for convenience only and shall be ignored in construing these Terms and Conditions; and

e)  the words “include”, “including” and “in particular” shall not be interpreted as limiting the generality of any foregoing words; and

f)  references to a “person” includes any individual, company, corporation, firm, partnership, joint venture, association, organisation, institution, trust or agency, whether or not having a separate legal personality; and

g)  references importing the singular include the plural and vice versa.

 

2 – Payment

2.1 If the Customer fails to make any payment of Charges and expenses (set out in the Scope of Works) when due then without affecting any other rights which it may have, Cleartrack may (at its sole discretion):

2.1.1 suspend the provision of the Cleartrack Deliverables until the relevant amount is paid;

2.1.2 charge interest on any unpaid amount (inclusive of VAT) at a rate of 2% (two percent) above the base rate from time to time of Barclays Bank plc to run from day to day (both before and after any judgment) from the due date until payment in full is received;

2.1.3 require full payment immediately on demand of all outstanding monies including any future instalments of the Charges and any expenses incurred; and/or

2.1.4 treat this Agreement as repudiated and terminate it forthwith.

2.2 The Customer may not withhold, make deduction from or set off against payments for any reason.

 

3 – Customer Postponement of Delivery Days

3.1 The Customer may postpone delivery of one or more delivery days which form part of the Cleartrack Deliverables, (“Delivery Day(s)”) subject to:

3.1.1 submitting a written request to Cleartrack no less than 6 weeks prior to the date of the relevant Delivery Day;

3.1.2 payment of an admin fee equal to 20% of the total Charges;

3.1.3 pre-payment of 100% of the total Charges;

3.1.4 payment of any cancellation and/or postponement charges payable by Cleartrack to third   parties; and

3.1.5 rebooking the affected Delivery Days to a date within 6 months of the original date of delivery of each Delivery Day.

If the Customer fails to comply with clause 3.1.5 the postponement will be deemed a cancellation and a cancellation fee equal to 100% of the total Charges will be applied.

3.2 The Customer will pay any amounts owing pursuant to clause 3.1 above within 30 days of the provision of written request pursuant to clause 3.1.1 above and Cleartrack may charge interest on any unpaid amount (inclusive of VAT) at a rate of 2% (two percent) above the base rate from time to time of Barclays Bank plc to run from day to day (both before and after any judgment) from the due date until payment in full is received

 

4 – Intellectual Property

4.1 The Customer agrees that all rights (including Intellectual Property Rights) in the materials produced as part of the Cleartrack Deliverables (“Cleartrack Materials”) shall at all times be vested in and belong to or be under the control of Cleartrack (or its licensors as the case may be) and the Customer shall not acquire any rights (including intellectual property rights) in or associated with the Cleartrack Materials as a result of this Agreement unless otherwise agreed in writing.

4.2 Subject to clause 4.3 below any Intellectual Property Rights in any materials supplied by the Customer (which do not become inextricably connected with any Intellectual Property Rights of Cleartrack or its licensors) (“Customer Materials”) shall, as between the parties, be the property of the Customer.

4.3 The Customer hereby grants Cleartrack a royalty-free, fully paid licence to use any Customer Materials set out in the Scope of Works for the purpose of providing the Cleartrack Deliverables.

 

5 – Compliance Warranties

5. 1 Each party warrants, represents and undertakes:

5.1.1 it has and will retain good title and authority to enter into and perform its obligations under this Agreement and is not bound by any previous agreement which adversely affects this Agreement;

5.1.2 It has and will not engage in any activity, practice or conduct that would constitute Bribery, Modern Slavery and/or Tax Evasion; and

5.1.3 it will immediately notify the other in writing if it or its employees, agents or other persons who perform or have performed services for or on behalf of the Sponsor is investigated by any law enforcement agency or customer in relation to Bribery, Modern Slavery and/or Tax Evasion.

 

6 – Personnel

6.1 All personnel used by Cleartrack in providing the Cleartrack Deliverables shall be suitably skilled, qualified and experienced, and shall not have any criminal or civil convictions (other than driving offences that did not lead to a disqualification or a prison sentence) nor shall any of them be an undischarged bankrupt.

6.2 Cleartrack will remove and/or replace any of its personnel performing the Cleartrack Deliverables at the Customer’s request if the Customer reasonably believes that individual has behaved in an inappropriate fashion.

6.3 Without prejudice to clause 7.4 below the Customer and Cleartrack may identify key personnel in the Scope of Works (“Key Personnel”) who will perform part or all of the Cleartrack Deliverables.  Any change of Key Personnel is subject to the Customer’s prior written approval acting reasonably without unreasonable delay.

6.4 Where a specific consultant (including but not limited to Key Personnel) is scheduled to run a course, and is unable to fulfil this commitment, Cleartrack will make every effort to replace him/her with another Cleartrack consultant with similar experience. Where consultants cannot be replaced Cleartrack will provide the affected Delivery Day on a date agreed by the parties.

 

7 – Liability

7.1 Subject to clause 8.3 neither party shall be liable to the other, whether in tort, contract or otherwise, for any anticipated loss of profit, loss of profit (whether direct or indirect), loss of opportunity, loss of goodwill and/or any loss which is indirect, consequential or economic or which was not, at the time this Agreement was made, a reasonably foreseeable result of such a breach (whether or not in practice it arises as a direct and natural result of a breach of this Agreement).

7.2 Subject to clause 8.3 Cleartrack’s maximum aggregate liability for any loss or damage in respect of any claims arising out of or in connection with this Agreement whether in contract, tort or otherwise shall not exceed the total amount of Charges paid by or on behalf of the Sponsor and received by Cleartrack in cleared funds.

7.3 Nothing in this Agreement shall exclude or restrict either party’s liability for death or personal injury resulting from the negligence of that party or of its employees while acting in the course of their employment or shall exclude or restrict a party’s rights, remedies or liability under the law governing this Agreement in respect of any fraud including fraudulent misrepresentation. Cleartrack reserves the right to request the customer and all its delegates to sign a disclaimer form, provided by Cleartrack, on any course during which Alcohol is made available for consumption. Cleartrack will not be held responsible for any delegates displaying irresponsible behaviour either as a result of alcohol consumption or not.

7.4 The use of illegal substances is strictly prohibited.

7.5 Except as expressly set out in this Agreement, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise in respect of the obligations of the parties under this Agreement are excluded insofar as it is possible to do in law.

7.6 The parties agree that the limitations of liability contained in this clause 8 have been subject to commercial negotiation and are, given the availability of insurance and the bargaining position of both parties, fair and reasonable in all the circumstances.

 

8 – Data Protection

8.1 To the extent Cleartrack processes any personal data as data processor in connection with the provision of the Cleartrack Deliverables, Cleartrack undertakes that:

8.1.1 it shall process the personal data only on documented instructions from Customer, including with regards to transfers of personal data to a third country or international organisation, unless required to do so by Union or Member State law to which Cleartrack is subject, in which case Cleartrack shall inform Customer in writing of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

8.1.2 it shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

8.1.3 it shall take all measures required pursuant to Article 32 (Security of Processing) of the GDPR;

8.1.4 it shall inform the Customer of any intended changes concerning the addition or replacement of other processors, thereby giving Producer the opportunity to object to such changes.

8.1.5 if Cleartrack engages another processor, Cleartrack shall ensure that the same data protection obligations as set out in the Agreement shall be imposed on that other processor by way of a written contract, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Data Protection Laws. Cleartrack shall remain fully liable to Customer for the performance by such other processor of such obligations;

8.1.6 it shall, taking into account the nature of the processing, assist Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Producer’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III (Rights of the data subject) of the GDPR;

8.1.7 it shall assist Customer in ensuring compliance with the obligations in Section 2 (Security of personal data) and Section 3 (Data protection impact assessment and prior consultation) of the GDPR, taking into account the nature of Cleartrack’s processing of the personal data and the information available to Cleartrack;

8.1.8 at the choice of Customer, it shall delete or return all the personal data to Customer after the end of the provision of the Cleartrack Deliverables relating to processing, and delete existing copies unless Union or Member State law requires storage of the personal data;

8.1.9 it shall make available to Customer all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections on reasonable notice, conducted by Customer or any auditor mandated by Customer, in each case at Customer’s cost;

8.2 The Customer warrants, undertakes and represents on an ongoing basis that:

8.2.1 it shall comply with the Data Protection Laws;

8.2.2 if necessary for the provision of the Cleartrack Deliverables it will procure the express consent of individuals attending Delivery Days to Cleartrack processing their personal data; and

8.2.3 it shall not by any act or omission cause Cleartrack to be in breach of any Data Protection Laws.

 

9 – Confidentiality

Neither party shall either during or after the expiry of this Agreement, duplicate or disclose, or permit the duplication or disclosure of, any Confidential Information, nor use the same in any way other than to perform its obligations under this Agreement unless such duplication, use or disclosure is specifically authorised by the other party in writing, or it is required to disclose such information by law.

 

10 – Term and Termination

10.1 This Agreement shall remain in force for the period of the Term unless terminated earlier in accordance with clause 2.1.4 above or clause 11.2 or clause 13 below.

10.2 Without prejudice to its other rights and remedies (whether provided by law, equity or this Agreement), either party may terminate this Agreement forthwith at any time by giving notice in writing to the other party if:

10.2.1 the other party commits a material breach of this Agreement and provided that such breach is capable of remedy, fails to remedy the same within 10 Business Days after receipt of a written notice from the other party giving full particulars of the breach and requiring it to be remedied; or

10.2.2 a petition is presented or a meeting convened for the purpose of considering a resolution for the making of an administration order, the winding up, striking off, bankruptcy or dissolution of the other party or if the other party stops payment or ceases or threatens to cease to carry on its business or is or shall become unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or

10.2.3 the other party compounds with or enters into a scheme of arrangement for the benefit of its creditors (including any voluntary arrangement as defined in the Insolvency Act 1986) or if a person becomes entitled to appoint a receiver over the assets of the other party or if a receiver is appointed over the other party or its assets or any part thereof or a resolution is passed for such appointment or if an administrator is appointed over the other party or if an administration order is made in relation to the other party or if an application is made to court for the appointment of an administrator over the other party or if a notice of intention to appoint an administrator is given over the other party; or

10.2.4 the other party enters into, or any step is taken, towards any procedure analogous to the procedures set out in 10.2.2 or 10.2.3 above under the laws of any jurisdiction; or

10.2.5 the other party breaches clause 5.1.2 or clause 5.1.3.

10.3 Termination or expiry of this Agreement shall not affect any rights of either party in respect of any antecedent breach of this Agreement by the other party nor shall it affect any accrued rights or liabilities (or the coming into force of any accrued rights or liabilities) of either party.

10.4 On termination or expiry of this Agreement, (i) each party shall promptly return to the other or permit the other to collect all items in the possession of the other which are the other party’s property and each party shall immediately cease to use the Intellectual Property Rights of the other; (ii) in the event that such termination or expiry of the Agreement has been caused by the Customer’s breach, any portion of the Charges or expenses not yet paid shall become due and payable; and/or (iii) in the event that the termination is for reasons other than a breach by the Customer, return all pre-paid Charges pro-rated accordingly.

 

11 – Entire Agreement

11. 1 This Agreement (together with any documents referred to herein) contains the entire agreement and understanding of the parties and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of this Agreement.

11.2 Each of the parties acknowledges and agrees that:

11.2.1 it does not enter into this Agreement on the basis of and does not rely, and has not relied, upon any statement, representation, warranty, forecast or other information (in any case whether oral, written, express or implied) made, given or agreed to by any person (whether negligently or innocently and whether or not made by a party to this Agreement) which is not expressly contained or referred to in this Agreement (a “Representation“);

11.2.2 it shall have no remedy (including any rights to damages or rescission in an action for misrepresentation) for any Representation which was, is, or becomes false or misleading; and

11.2.3 without prejudice to clause 8.3 above, the only rights or remedies available in respect of any statement, representation, warranty, forecast or other information (in any case whether oral, written, express or implied) made, given or agreed to by any person (whether negligently or innocently and whether or not made by a party to this Agreement) which is expressly contained or referred to in this Agreement shall be the rights and remedies for breach of contract under this Agreement.

11.3 No variation, supplement, deletion or replacement of or from this Agreement or any of its terms shall be effective unless made in writing and signed by or on behalf of each party with the intention to vary, supplement, delete or replace being clearly expressed.

 

12 – Force Majeure

12.1 Neither party shall be liable in any way for any losses arising directly or indirectly from any failure or delay in performing any of its obligations (other than payment of Charges and expenses) under this Agreement caused by any Force Majeure Event provided that such Force Majeure Event is notified promptly to the other party.

12.2 If a party (the “Affected Party”) is unable to perform any of its obligations under this Agreement as a result of the Force Majeure Event for more than 20 Business Days then the other party may terminate this Agreement at any time and without further liability, upon giving written notice to the Affected Party.

 

13 – Notices

13.1 The authorised address of each party shall be the address set out in the Scope of Works or such other address (and details) as either party may notify to the other in writing from time to time in accordance with the requirements of this clause.

13.2 Except as otherwise expressly provided in this Agreement, any notice or other communication to be given under this Agreement shall be in writing, shall be deemed to have been duly served on, given to or made in relation to a party if it is left at the authorised address of that party, posted by pre-paid first class post addressed to that party at such address and shall if:

13.2.1 personally delivered, be deemed to have been received at the time of delivery; or

13.2.2 posted to an inland address in the United Kingdom, be deemed to have been received on the second Business Day after the date of posting,

provided that where, in the case of delivery by hand, delivery occurs after 5.00pm on a Business Day or on a day which is not a Business Day, receipt shall be deemed to occur at 9.30am on the next following Business Day.

 

14 – General

14.1 The relationship between the parties is that of independent contractors. Nothing in this Agreement shall constitute a partnership or joint venture between the parties or constitute either Cleartrack or Customer as agent of the other for any purpose whatsoever and neither shall have the authority or power to bind the other or to contract in the name of the other or create liability against the other in any way or for any purpose save as expressly authorised in writing by the other from time to time.

14.2 Neither party may assign or sub-contract any of its rights or obligations under this Agreement without the prior written consent of the other.

14.3 The provisions of those clauses intended to have continuing effect (including but not limited to clauses 1,2,3.2,4,8,9,10 and 15.3) shall continue in full force and effect following the termination or expiry of this Agreement.

14.4 If the whole or any part of any provision of this Agreement is or becomes invalid, void or unenforceable for any reason the same shall to the extent required be severed from this Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement and shall in no way affect the validity or enforceability of any other provisions.

14.5 No waiver by either party of any breach of the other party’s obligations shall constitute a waiver of any other prior or subsequent breach and neither party shall be affected by any delay, failure or omission to enforce or express forbearance granted in respect of any obligation of the other party.

14.6 No person other than a party to this Agreement may enforce this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999.

14.7 This Agreement may be executed in any number of counterparts and the counterparts taken together will be deemed to constitute one and the same instrument.

14.8 The parties acknowledge and agree that the execution of this Agreement by either party by way of an electronic representation of an authorised signatory’s signature shall be a valid execution of this Agreement.

14.9 Each party shall be responsible for paying its own costs and expenses incurred in the negotiation, preparation and execution of this Agreement.

14.10 Rights and remedies of each party under this Agreement are independent, cumulative and without prejudice to its rights under the law.

14.11 This Agreement and disputes or claims 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 hereby irrevocably submit to the exclusive jurisdiction of the English Courts.

 

Appendix

 

“Business Day”

means a day (other than a Saturday or Sunday) on which banks in the City of London are open for ordinary business; “Confidential Information” means any information in any form emanating from either

“Bribery”

means conduct which constitutes an offence under the Bribery Act 2010 or which would constitute an offence under the Bribery Act 2010 if that Act were in force in the jurisdiction where the conduct took place;

“Confidential Information” 

means any information in any form emanating from either party and shall include any compilation of otherwise public information in a form not publicly known. It is further agreed, without limitation, that the following shall be regarded as Confidential Information:

(a) the existence and contents of this Agreement; and

(b) any information, materials or data in any form produced by, for or on behalf of either party during the Term of and pursuant to this Agreement;

Confidential Information shall not include:

(a) information which at the time of disclosure is publicly known, information which after disclosure becomes publicly known other than as a result of any breach of this Agreement;

(b) information which can be shown to be known to the other party, other than under a subsisting obligation of confidentiality, or restricted use, prior to the disclosure; and

(c) information made available to the other party by a third party having a right to do so and who has not imposed on that party any subsisting obligation of confidentiality or restricted use in respect thereof.

Data Protection Laws

means all laws relating to data protection, data privacy and/or information security which are applicable to the Services and/or the performance by each party of its obligations under the Agreement, including the Data Protection Act 2018 GDPR and the Privacy and Electronic Communications (EC Directive) Regulations 2003, in each case as amended, repealed, replaced or supplemented from time to time;

GDPR

means the General Data Protection Regulation (Regulation (EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended, repealed, replaced or supplemented from time to time, in the UK; the following terms (and their derivatives) shall, where applicable, have the meanings given to each of them in the GDPR, in each case as amended, replaced or supplemented from time to time.

“Force Majeure Event”

means an event, inability or delay which is caused by circumstances beyond the relevant party’s control, including, without limitation, war or other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, accident, breakdown or damage to machinery or equipment or technology, fire, flood, acts of God or legislative interference or failure of a third party to carry out express instructions of a party to this Agreement;

“Intellectual Property Rights”

means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database 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 (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;

“Modern Slavery”

means conduct which constitutes an offence under the UK’s Modern Slavery Act 2015, or which would constitute an offence under the Modern Slavery Act 2015 if that Act were in force in the jurisdiction where the conduct took place;

Tax Evasion

means conduct that constitutes any criminal offence of tax evasion or facilitation of tax evasion in any jurisdiction, including the tax evasion facilitation offences under section 45(1) and 46(1) of the Criminal Finances Act 2017;