Terms and Conditions of Business
1 GENERAL TERMS & CONDITIONS
The following terms and conditions (the “Terms and Conditions”) will form the basis of the Agreement between RightTrack Learning Ltd and You for the receipt of the Services.
2.1 In this Agreement the following words and expressions shall have the following meanings:
“Agreement” means the contract for the provision of the Services to You, comprising of the Quotation, an accompanying proposal (if applicable), the Terms and Conditions, together with any other documents that are expressly incorporated by reference in the foregoing documents.
“Business Day” means any day from Monday to Friday excluding Saturday and Sunday and any bank or public holidays in the United Kingdom;
“Contract Price” means the price payable by You to RightTrack Learning for the Services (excluding Expenses);
“Confidential Information” means any and all information, data and material of a technical or business nature or relating in any way to the business, products, services, customers and/or personnel of either party which the other party may receive or obtain in connection with the operation of this Agreement or otherwise and which is expressly identified as confidential or which ought reasonably to be regarded as confidential; for the avoidance of doubt Training Materials, to the extent they are not disclosed by RightTrack Learning to Delegates as part of the provision of the Services, shall be considered Confidential Information of RightTrack Learning;
“Data Protection Regulation” means all legislation in force in the United Kingdom from time to time relating to data protection and privacy including, but not limited to, the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendment Etc.) (EU Exit) Regulations 2019, and any successor legislation relating to data protection and privacy;
“Delegates” means participants including but not limited to Employees who are signed up by You to participate in training sessions and/or courses forming part of the Services;
“Employee” means an employee of You; or non-employed member of Your staff, or other individual that has received or is otherwise entitled to receive the Services;
“Expenses” means costs directly related to the design and/or provision of the Services payable by RightTrack Learning to third-parties;
“Force Majeure” means any event or circumstance beyond the reasonable control of the relevant party (including war, invasion, act of foreign enemy, hostilities whether war be declared or not, civil war or strife, rebellion, strikes, lockout or industrial disputes or actions, pandemics or epidemics, acts of God or acts of Government or prevailing authority);
“Intellectual Property Rights” means copyright and related rights, patents, know-how, trade secrets, trade marks, trade names, service marks, design rights, rights in inventions, rights in get-up, database rights, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; and (e) wherever existing;
“Personal Data” means data which relates to a living individual who can be identified from such data and/or from such data and other information which is in the possession of, or is likely to come into the possession of, either party and includes any
expression of opinion about the individual and any indication of the intentions of either party or any other person in respect of that individual;
“RightTrack Learning” means RightTrack Learning Ltd, company number 02625253, with registered office at St James House, 65 Mere Green Rd, Sutton Coldfield B75 5BY Email: firstname.lastname@example.org; VAT No. 687 732 190;
“Services” means the Services to be performed by RightTrack Learning under this Agreement and as more particularly described in the Quotation;
“Service Commencement Date” means the date that RightTrack Learning commences the performance of the Services;
“Quotation” means the document signed by the parties and identifying You as the client and setting out (without limitation): the Services; Term; delivery date of the Services; location for delivery (if face-to-face delivery); and the Contract Price;
“Term” means the duration of this Agreement as defined in accordance with clause 4;
“Training Course” means the programme delivered by RightTrack Learning in the provision of the Services. For the avoidance of doubt, the terminology ‘training’ in this Agreement shall also include, without limitation, coaching, writing, filming, consultancy and/or other services, as more particularly described in the Quotation;
“Training Materials” means the printed materials, online documentation and all other related documentation used by RightTrack Learning in the provision of the Services including but not limited to the Training Course and in any marketing or presentation of the Services; and
“VAT” means value added tax and any tax or duty of a similar nature which may from time to time be levied in addition to or in substitution for it.
“You/Your” means the client specified in the Quotation.
2.2 In this Agreement, unless the context requires otherwise:
(a) words importing the masculine gender shall include the feminine gender and neuter and vice versa and words importing the singular number shall include the plural number and vice versa;
(b) the words “including” and “includes” and other similar expressions shall be deemed to be followed by the words “without limitation”.
2.3 Any reference to a statute shall include any amendment or re-enactment of it for the time being in force, and all instructions, orders, notices, regulations, directions, byelaws, permissions and plans for the time being made, issued or given under it, or deriving validity from it.
2.4 Any agreement, approval, consent, detail, notice, request, requirement, stipulation or other matter to be given, issued or made under this Agreement shall be in writing and signed by the person giving, issuing or making it or that person’s authorised officer or representative.
2.5 No approval or consent required to be obtained from or given by a party hereunder shall be unreasonably withheld or delayed.
3 APPOINTMENT AND ACCEPTANCE
3.1 You hereby appoint RightTrack Learning to carry out the Services for the duration of the Term and RightTrack Learning agrees to carry out the Services, subject to and in accordance with the Terms and Conditions.
3.2 This Agreement shall be signed by You and returned to RightTrack Learning. For the avoidance of doubt, the Quotation is incorporated in to and forms part of this Agreement. The Terms and Conditions shall become fully effective and binding on You and RightTrack Learning, upon both parties signing this Agreement.
This Agreement shall commence on date the Agreement has been signed by both parties and shall continue in full force and effect until the Services have been performed by RightTrack Learning, unless this Agreement is terminated earlier in accordance with clause 7 below.
5 PERFORMANCE OF SERVICES
5.1 In performing the Services, RightTrack Learning shall use reasonable care and skill.
5.2 Where the Services are delivered face-to-face, You are solely responsible for organising a suitable and appropriately equipped venue for the delivery of the Services. RightTrack Learning shall not be responsible, whatsoever, for the foregoing matters including (without limitation) the suitability of the venue for delivery of the Services, catering, equipment and other matters at or concerning the venue. Further, the aforesaid matters are not included in the Contract Price unless expressly stated to be so in the Quotation. You shall be solely responsible, at Your own cost, for ensuring that the venue is equipped with the relevant items, as specified by RightTrack Learning.
5.3 Training dates will be confirmed and secured only upon completion and return of the signed Quotation.
5.4 The Services as specified in the Quotation may be varied (including but not limited to the addition of training dates and Training Courses provided to You by RightTrack Learning) subject to such variation being agreed in advance between You and RightTrack Learning. Upon agreement of any variation, the details of the additional training dates and/or Training Courses shall be updated in the Quotation or in an addendum to the Quotation. The Contract Price shall be agreed and amended to reflect any and all variations, the details of which shall also be included in the Quotation or in an addendum to the Quotation.
6 NON-CANCELLATION AND SUSPENSION
6.1 Once You have signed the Quotation and this Agreement, You shall not be entitled to cancel the provision of the Services and You shall remain liable to pay the Contract Price and any Expenses in full and without any deduction, discount, refund or otherwise. RightTrack Learning may, in its sole discretion and as it sees fit, decide to provide replacement Services, in the event that You decide that You no longer require the original Services as set out in the Quotation.
6.2 Notwithstanding anything to the contrary in these Terms and Conditions, all Expenses related to the preparation and delivery of the Services incurred by RightTrack Learning, shall at all times remain payable in full by You.
6.3 RightTrack Learning may without notice suspend the provision of the Services if You fail to pay any amount due, until all and any outstanding and due invoices are paid in full.
6.4 RightTrack Learning shall charge the full fee as part of the Contract Price for Delegates who start the training, regardless of whether the Delegates complete all of the training modules. RightTrack Learning is not obliged to offer alternative dates for modules missed by Delegates unless the parties have agreed to run multiple Training Courses and Delegates are able to attend training modules on alternative dates and provided there is available space for such Delegates.
6.5 If RightTrack Learning is unable to deliver the Services on a specific day due to illness of the originally designated trainer delivering the Services, RightTrack Learning will make reasonable efforts to arrange for a suitable replacement to deliver the Services as planned. If this is not possible or if, for continuity, You prefer to wait for the originally designated trainer to return to work from illness, RightTrack Learning will liaise with You to re-arrange dates for delivery of the Services as soon as is reasonably practicable. If at any time, a more robust contingency is required, RightTrack Learning may (but shall not be obliged to) offer You the option to reserve an ‘understudy’ trainer for an additional fee to be agreed by the parties.
6.6 If agreed Services are cancelled due to changes in Government guidelines or because of an outbreak of illness that results in Your staff having to mandatorily isolate, then if the agreed Services are re-arranged (at RightTrack Learning’s sole discretion and as it sees fit) to be delivered face-to-face or remotely within 6 (six) months of the confirmed Service Commencement Date, then any cancellation fee will be waived, and You will only be invoiced for any unrecoverable Expenses. For the avoidance of doubt, nothing in this clause 6.6 shall prejudice or effect RightTrack Learning’s right to claim payment of all and any other amounts that it is due under this Agreement.
6.7 Without prejudice to clause 6.1, in the event that You request a reasonable postponement to the delivery date of the Services, RightTrack Learning may, in its sole discretion and as it sees fit, decide to: (a) agree to Your requested postponement; and (b) amend the Contract Price to reflect the agreed postponement. Notwithstanding the foregoing, RightTrack Learning shall not be obliged to agree to any requested postponement and/or amend the Contract Price to reflect any agreed postponement.
6.8 All of: (a) RightTrack Learning’s rights; and (b) the obligations on You, under this clause 6, shall survive any termination of this Agreement.
7.1 Strictly subject to clause 6.1 above and clause 8 below, either party has the right to terminate the Agreement at any time by giving ninety (90) days’ notice of termination to the other party in writing. For the avoidance of doubt, nothing in this clause 7.1 shall in any way affect or prejudice RightTrack Learning’s rights under clause 6.1 and/or clause 8 below.
7.2 Either party (the “Non-Defaulting party”) may by written notice to the other party (the “Defaulting party”) terminate this Agreement with immediate effect if:
7.2.1 an administration order with respect to the Defaulting party or any composition in satisfaction of the debts of, or a scheme or arrangement of the affairs of, the Defaulting party or the Defaulting party undergoes any comparable procedure under the laws of any competent jurisdiction; or
7.2.2 the Defaulting party enters into liquidation while solvent or is declared insolvent or bankrupt or makes an assignment or other arrangement for the benefit of its creditors or has an administration receiver appointed to it or has a receiver or manager of its assets or a material part thereof appointed, or undergoes any comparable procedure under the laws of any competent jurisdiction; or
7.2.3 the Defaulting party commits a material breach of any of the provisions of this Agreement and, if the breach is capable of remedy, such breach has not been remedied within fourteen (14) days after receipt by the Defaulting party of notice from the Non-Defaulting party requiring such remedy.
8 CONSEQUENCES OF TERMINATION
8.1 RightTrack Learning shall cease to perform the Services under this Agreement either (i) on the date specified in the notice of termination pursuant to clause 7.1 and until such date shall do such work as may be necessary pursuant to this Agreement, or (ii) on the date specified in the notice of termination pursuant to clause 7.2.
8.2 In the event that either: You serve a notice of termination pursuant to clause 7.1; or RightTrack Learning terminates this Agreement pursuant to clause 7.2 above, You shall immediately pay RightTrack Learning the Contract Price and any Expenses in full and without any deduction, discount, refund or otherwise.
8.3 In the event that: RightTrack Learning serves a notice of termination pursuant to clause 7.1; or You terminate this Agreement in accordance with clause 7.2 above, then You shall immediately pay RightTrack Learning: (a) the full Contract Price and Expenses, for all and any bespoke projects and Training Courses that are commenced before the effective date of termination of this Agreement (including without limitation, RightTrack Learning’s design of the courses under those bespoke projects and Training Courses); or (b) for all Services and Expenses, for all and any non-bespoke projects and Training Courses, which are performed by RightTrack Learning prior to the effective date of termination.
8.3 Any termination of this Agreement shall be without prejudice to any rights accrued in favour of either party in respect of any breach committed prior to the effective date of such termination by the other party including the breach, if any, giving rise to the termination.
8.4 All of: (a) RightTrack Learning’s rights; and (b) the obligations on You, under this clause 8, shall survive any termination of this Agreement.
9.1 In consideration of the provision of the Services, You shall pay to RightTrack Learning the Contract Price and the Expenses in accordance with the Quotation.
9.2 Expenses shall include but not be limited to costs of postage, packing and carriage of Training Materials, equipment, props and materials, accommodation, meals, subsistence and travel. All such expenses are recharged as incurred based on standard public and economy transport costs or mileage at 49 pence per mile.
9.3 All prices quoted by RightTrack Learning are exclusive of VAT and the Contract Price shall be such price plus VAT (where applicable).
9.4 You shall make full payment, in cleared funds, of all invoices rendered by RightTrack Learning, by no later than the end of the calendar month following the month in which the invoice is dated.
9.5 100% (one hundred per cent) of the Contract Price shall be invoiced when this Agreement has been signed by the parties, if the Contract Price under the Agreement is less than £5,000 (not including VAT). Expenses shall be invoiced after the Services have been delivered.
9.6 If the Contract Price under the Agreement is £5,000 or more, 50% (fifty per cent) of the Contract Price shall be invoiced to You when the Agreement has been signed by the parties; the remainder of the Contract Price and Expenses shall be invoiced at the end of each calendar month over the course of the delivery of the Services, in proportion to the amount of Services delivered in that calendar month.
9.7 If You have a query upon receipt of any RightTrack Learning invoice, You must raise that query in writing to RightTrack Learning, within five (5) Business Days of the date of the invoice concerned.
9.8 Without prejudice to any and all other rights accrued in favour of RightTrack Learning, any sums that remain unpaid following the period set out in Clause 9.4 shall incur daily interest under the Late Payment of Commercial Debts (Interest) Act 1998, until full and cleared payment is received by RightTrack Learning.
9.9 All of: (a) RightTrack Learning’s rights; and (b) the obligations on You, under this clause 9, shall survive any termination of this Agreement.
10 CONFIDENTIALITY AND DATA PROTECTION
10.1 Except as provided for herein, neither party shall during the term of this Agreement or thereafter disclose to any third-party Confidential Information of the other party which has been disclosed between the parties under or in connection with this Agreement without the prior written consent of the other party.
10.2 Each party shall be entitled, but only to the extent necessary, to disclose the whole or part of any Confidential Information:
10.2.1 to its officers, employees, servants, agents, professional advisers only to the extent necessary to perform or enforce any of its rights or obligations under this Agreement subject in each case to the party making the disclosure ensuring that the persons in question keep the same confidential and do not use the same except for the purposes for which the disclosure is made;
10.2.2 to such persons as the other party consents to, in writing, subject to the party making the disclosure ensuring that the person in question keeps the confidentiality and does not use the same except for the purposes for which the disclosure is made;
10.2.3 to the extent that it is required to do so by law or by any public, quasi-governmental, supervisory or regulatory authority or any court or tribunal;
10.2.4 to the extent that the Confidential Information or part thereof was already lawfully in its possession at the time of the disclosure; and/or
10.2.5 to the extent that the Confidential Information has, except as a result of a breach of confidentiality, entered into the public domain at the time of such disclosure.
10.3 Each party shall comply with the provisions of the Data Protection Regulation. In particular each party agrees to comply with the obligations placed on the other party by the Data Protection Regulation, specifically:
10.3.1 to maintain technical and organisation security measures sufficient to comply with at least
the obligations imposed on RightTrack Learning by the Data Protection Regulation;
10.3.2 only to process Personal Data for and on behalf of the other party for the purpose of performing and in accordance with this Agreement, to ensure compliance with the Data Protection Regulation;
10.3.3 to allow RightTrack Learning to audit Your compliance with the requirements of this clause 10, on reasonable notice and to provide RightTrack Learning with evidence of Your compliance with the obligations set out in this sub-clause.
10.4 Each party agrees to use all reasonable efforts to assist each other to comply with such obligations as are imposed on them by the Data Protection Regulation. For the avoidance of doubt, this includes the obligation to provide each other with reasonable assistance in complying with any subject access requests served on either of them under the Data Protection Regulation.
10.5 You shall indemnify RightTrack Learning against all and any claims and proceedings and all liability, loss, costs and expenses incurred in connection therewith, made or brought by any person in respect of any loss, damage or distress caused to that person as a result of Your unauthorised and/or unlawful processing or destruction and/or damage to any personal data processed by RightTrack Learning, its employees or agents in their performance of this Agreement.
10.6 You shall, as a data controller (if applicable) and on the request of RightTrack Learning, accept to enter into a data processor agreement with RightTrack Learning, if RightTrack Learning is required to process personal data on Your behalf.
10.8 All of: (a) RightTrack Learning’s rights; and (b) the obligations on You, under this clause 10, shall survive any termination of this Agreement.
11 INTELLECTUAL PROPERTY RIGHTS
11.1 RightTrack Learning shall at all times retain all and any of the Intellectual Property Rights in all Training Materials whether or not originated or customised for the purpose of a specific project ordered by You.
11.2 You undertake (and You undertake to procure that Your employees and Delegates so undertake) that without prior written permission from RightTrack Learning, You shall not, whether directly or indirectly:
- copy the Training Materials;
- sub-licence, loan, translate, merge, adapt, vary or modify the Training Materials;
- alter or modify, the whole or any part of the Training Materials, nor permit the Training Materials or any part of them to be combined with or become incorporated into, any other materials; and/or
- provide or otherwise make available the Training Materials in whole or in part, in any form to any person without prior written consent from RightTrack Learning.
- Training Courses cannot be recorded under any circumstances.
- You grant to RightTrack Learning a non-exclusive, worldwide, perpetual, irrevocable licence upon completion of provision of the Services to: (i) use, depict and describe the Services and the deliverables from the Services anticipated by the Agreement; (ii) describe RightTrack Learning’s involvement in providing the Services to You; and (iii) use and depict Your name, logo and/or trade mark, solely for the purposes of RightTrack Learning’s marketing and case study activities.
- All of: (a) RightTrack Learning’s rights; and (b) the obligations on You, under this clause 11, shall survive any termination of this Agreement.
12 INSURANCE AND LIABILITY
12.1 RightTrack Learning shall effect and keep in force a policy or policies of insurance for the Term of this Agreement, in respect of the Services it has agreed to provide.
12.2 You shall be responsible for maintaining adequate insurance to fully and adequately cover Your own legal liability and the liability of the Delegates, in relation to their participation in Training Courses.
12.3 If RightTrack Learning fails to perform the Services with reasonable care and skill, it shall be entitled to perform (as it sees fit and in its sole discretion) any relevant remedial action, at no additional cost to You.
12.4 Subject to clause 12.6, RightTrack Learning’s total liability for any loss or damage caused because of its negligence, omission, breach of this Agreement or in relation to any other matter concerning this Agreement, shall in all circumstances be limited to the total Contract Price. Under no circumstances shall RightTrack Learning be liable to You for any indirect or consequential loss or damage (whether for loss of profit, loss of business, loss of savings, loss of reputation, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation, whatsoever and whensoever arising from or in connection with this Agreement.
12.5 RightTrack Learning shall not be liable for any loss or damage suffered by You that results from Your failure to follow any instructions given by RightTrack Learning.
12.6 Nothing in these Terms and Conditions nor in the Agreement shall limit or exclude RightTrack Learning’s liability for death or personal injury, fraudulent misrepresentation or any other liability that cannot lawfully be excluded or limited.
12.7 Strictly subject to clause 12.4 above, RightTrack Learning shall compensate You against any costs, liability, damages, loss, claims or proceedings arising out of RightTrack Learning’s breach of the Agreement.
12.8 You shall fully indemnify RightTrack Learning against any costs, expenses (including without limitation legal fees), liability, damages, loss, claims or proceedings arising from:
12.8.1 loss or damage to any equipment (including that belonging to any third parties appointed by RightTrack Learning) caused by You, Your agents or Your employees;
12.8.2 any other breach of the Agreement by You.
12.9 All of: (a) RightTrack Learning’s rights; and (b) the obligations on You, under this clause 12, shall survive any termination of this Agreement.
13 EMPLOYMENT ISSUES
During the course of this Agreement and for a period of twelve (12) months after its termination for any reason, You shall not directly or indirectly either for Your own account or on behalf of any person or other legal entity, solicit or entice away, or attempt to solicit or entice away, from RightTrack Learning, any member of the staff of RightTrack Learning, who at any time prior to such solicitation or enticement, or attempted solicitation or enticement, was engaged, involved or concerned with the management or handling of any matter concerning this Agreement for or on behalf of RightTrack Learning.
You shall not assign any of Your rights and/or obligations under this Agreement, without the prior written consent of RightTrack Learning. You undertake that RightTrack Learning shall be at full liberty to assign and transfer all and any of its rights and/or obligations under this Agreement, without Your consent.
15 FORCE MAJEURE
15.1 Neither party shall be liable for any delay in performing or failure to perform its obligations to the extent that and for so long as the delay or failure results from an event of Force Majeure.
15.2 Either party shall inform the other party immediately if any event of Force Majeure is likely to arise or has already arisen. The informing party shall take reasonable steps to mitigate the effect of the event of Force Majeure.
16 THIRD PARTY RIGHTS
Any person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from this Act.
17.1 In the event of any dispute or difference arising between the parties in connection with this Agreement, senior representatives of the parties shall meet in good faith effort to resolve the dispute without recourse to legal proceedings within thirty (30) days of a written request from either party to the other party. If the dispute or difference is not resolved as a result of such a meeting either party may commence court proceedings.
17.2 Notwithstanding the provisions set out in clause 17.1, nothing shall prevent either party commencing or continuing court proceedings at any time.
17.3 This clause 17, shall survive any termination of this Agreement.
18 ENGLISH JURISDICTION AND LAW
18.1 This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).
18.2 This clause 18, shall survive any termination of this Agreement.
The failure by either party to enforce any provision of this Agreement shall not be construed as a waiver of any such provision nor shall it affect the validity of this Agreement or any part thereof.
Any notice that either party serves on the other party, shall be sufficiently served if it is sent to the other party at its address as set out in the Quotation, and if delivered:
(i) by hand, it shall be deemed to have been delivered when received at the address set out below;
(ii) by registered or first class post or recorded delivery, it shall be deemed to have been delivered two Business Days after sending;
(iii) by email, it shall be deemed to have been delivered when sent unless the email was sent after 4.30p.m, in which case it shall be deemed to have been delivered at 9.00a.m on the next Business Day (provided that confirmation of successful delivery is obtained).
21 ENTIRE AGREEMENT
This Agreement constitutes the whole agreement between the parties and no reliance will be placed on any oral or written representation made by either party or its employees or agents and any previous agreements or understandings between the parties shall be deemed to have been terminated.
No addition or modification of any of the provisions of this Agreement shall be binding upon the parties unless made by a written instrument and signed by a duly authorised representative of each of the parties