The Delegate wishes to attend a pre-determined Training Event, for Training Services to be provided by the Consultant (TUV SUD Limited, trading as TÜV SÜD PMSS) and agrees to be bound by the terms herein.
In the Agreement (as hereinafter defined) the following words and expressions shall have the meanings hereby assigned to them.
2.1. “Agreement” means this agreement between the Delegate and Consultant;
2.2. “Confidential Information” means all information in respect of the business of either party including, without prejudice to the generality of the foregoing, any ideas; business methods; finance; prices, business, financial, marketing, development or manpower plans; customer lists or details; computer systems and software; products or services, including but not limited to know-how or other matters connected with the products or services manufactured, marketed, provided or obtained by either party;
2.3. "Consultant" shall mean TUV SUD Limited, trading as TÜV SÜD PMSS, whose Training Event and Services have been accepted by the Delegate and shall include the Consultant's successors and assigns;
2.4. “Delegate” means the person or persons who are attending the Training Event under this Agreement;
2.5. “Fee” means the amount payable in accordance with this Agreement by the Delegate to the Consultant for the Training Services and includes any adjustment of the Fee under this Agreement;
2.6. “Force Majeure Event” means an event beyond the control of a party (or any person acting on its behalf), which by its nature could not have been foreseen by such party (or such person), or, if it could have been foreseen, was unavoidable, and includes, without limitation, acts of God; war, insurrection, riot, civil commotion, act or threat of terrorism; lightning, earthquake, fire, flood, storm, or extreme weather condition; theft, malicious damage; strike, lockout, industrial dispute (whether affecting the workforce of a party and/or any other person); breakdown or failure of plant or machinery; and an inability to obtain essential supplies or materials; and where the staff of the Consultant who are to perform the Services cease being employees of the Consultant or are unable to provide the Services due to illness or incapacity.
2.7. “Intellectual Property Rights” means all intellectual and industrial property rights including patents, know-how, registered trademarks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trademarks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights, domain names and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions;
2.8. “Trainer” means the person or persons performing the Training Services at the Training Event on behalf of the Consultant;
2.9. “Training Event” means the event or events where the Training Services will be provided by the Consultant;
2.10. "Training Services" shall mean the services offered in the Training Event Letter and on the Consultant’s website;
3. Delegate and Consultant Obligations
3.1. The Consultant warrants to provide the Training Services with all the reasonable skill and care to be expected of a qualified and competent person experienced in undertaking the services of the same kind as the Training Services under this Agreement. The Consultant hereby excludes from this Agreement all other warranties, conditions and other terms implied by statute or common law to the fullest extent permitted by law.
3.2. The Consultant shall perform the Training Services and shall provide the documents, materials and information, unless the Consultant is prevented from doing so by a Force Majeure Event.
3.3. The Consultant shall not be responsible for discrepancies, errors or omissions in the Training Services where such discrepancies, errors or omissions are due to defective information supplied by the Delegate or third party to the Consultant.
3.4. The Consultant does not accept any responsibility for anyone acting as a result of information or views expressed during the Training Event(s), including, but not limited to, the Training documents, materials and other information. Opinions expressed are those of individual Trainers and not necessarily those of the Consultant.
3.5. The Delegate shall provide (upon request) the Consultant all necessary documents, materials and information relating to the Training Services within sufficient time to enable the Consultant to undertake the work as specified in the Training Event Letter. The Delegate shall ensure that all documents, materials and information supplied are accurate and do not infringe any copyright or other rights of any third party. The Delegate shall indemnify the Consultant against any loss, damages, costs, expenses or other claim arising from such as breach or infringement.
3.6. Where the Delegate has provided documents, materials or other necessary information, the Consultant shall have no liability for any loss, damage, expenses or other claims for compensation arising from any documents, materials, information or instructions supplied by the Delegate which are incomplete, incorrect or do not arrive in sufficient time prior to a Training Event as agreed.
3.7. If the Consultant's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Delegate, its agents, subcontractors, consultants or employees, the Consultant shall not be liable for any costs, charges or losses sustained or incurred by the Delegate that arise directly or indirectly from such prevention or delay and the Delegate will pay to the Consultant all reasonable costs that the Consultant may incur as a result of such a delay.
3.8. The Consultant shall provide details of the Training Services to the Delegate prior to the Training Event. The Consultant reserves the right to change the location as and when it is necessary. The Consultant will provide the Delegate with up to date information concerning fire evacuation procedures, safety regulations and any other policies, regulations or procedures with which they need to be familiar and observe during the Training Event.
4.1. Nothing in this Agreement excludes or limits or attempts to exclude or limit the liability of either party for death or personal injury caused as a result of negligence, or for fraudulent misrepresentation; or in respect of the implied warranties contained in the Supply of Goods and Services Act 1982.
4.2. Subject to clause 4.1, the Consultant will be under no liability to the Delegate whatsoever (whether in Contract, Tort (including negligence), breach of statutory duty, restitution or otherwise) for any damage or direct, indirect or consequential loss (all three of which include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with this Agreement.
4.3. Subject to clause 4.1 and 4.2, the Consultant’s aggregate liability under this Agreement (whether in Contract, Tort (including negligence), breach of statutory duty, restitution or otherwise) for any damage or direct, indirect or consequential loss (all three of which include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused will be limited to the amount paid by the delegate for the Training Services concerned.
5. Intellectual Property Rights
5.1. All Intellectual Property Rights contained in the Training documents, materials and other information in whatever form provided by the Consultant in connection with the Training Services shall remain vested in the Consultant.
5.2. The Consultant grants to the Delegate a royalty-free, irrevocable (but subject to suspend as set out in this clause), non-exclusive licence to use the documents and materials for any purpose relating to the Training Services.
5.3. The Consultant is not liable for any use of the documents and materials for any purpose other than they were originally intended.
5.4. The Consultant warrants to the Delegate that, to the best of its knowledge, the documents, materials and other information provided does not infringe the Intellectual Property Rights of any third party.
5.5. Nothing contained within this Agreement whether written or inferred shall confer any Intellectual Property Rights to the Delegate for works undertaken, documents produced or any other information written or in any other way provided by the Consultant, unless the Consultant has confirmed in writing that these Intellectual Property Rights may be given.
6.1. Each party shall treat this Agreement as private and confidential and shall not publish alone or in conjunction with any other person any information concerning this Agreement without the prior written consent of the other party. This shall include, but is not limited to, the Training Materials and any other documents or materials produced by the Consultant for the purpose of the Training Services.
6.2. Each party agrees to keep confidential all Confidential Information communicated to them by the other party or acquired by them as a result of visits by them or their employees or agents to the other party's premises and shall not use such Confidential Information for purposes not related to this Agreement nor disclose such information to any other party without the consent in writing of the other party.
6.3. The obligations on the parties set out in clauses 6.1 and 6.2 shall not apply to any Confidential Information which:
(a) is already in the possession of the other party and is not acquired directly or indirectly from the other party;
(b) is received from a third party lawfully entitled to disclose the same;
(c) is or becomes public knowledge other than by breach of this clause 6; or
(d) is ordered to be revealed by any legal process or regulatory requirement.
7.1. Unless otherwise agreed by the Parties, Payment is required to be paid in advance of the Training Event. The Training Event Fee shall be paid via the Consultants Online Booking System.
7.2. The Consultant reserves the right to cancel the booking, at the Delegate’s cost, should payment not be received.
7.3. Once payment is received, further information shall be sent to the Delegate in the form of a Training Event Letter in confirmation of the full payment received for the Training Services.
7.4. If the Delegate selects to be invoiced via the Online Booking System, the Delegate must pay the Consultant all sums properly due under this Agreement before the Training Event date, or if otherwise agreed in writing between the parties, 28 days after receipt of the invoice.
7.5. The Consultant’s payment for the provision of the Training Services is a fixed lump sum. This sum is exclusive of VAT, and inclusive of the Consultants disbursements and expenses.
7.6. If the Delegate fails to pay any sum due and payable to the Consultant under this Agreement in full by the final date for payment and no effective notice of intention to withhold is given, the Delegate pays simple interest on the unpaid amount for the period from the final date for payment until the date of actual payment, calculated on a daily basis at a rate of 4% per annum above the base lending rate set by the National Westminster Bank.
8. Rescheduling and Cancellation of Training Event(s)
If the Delegate cancels the Training Event(s)
8.1. All cancellations must be made no later than 25 (Twenty-Five) working days before the start of the relevant Training Event. Cancellations will only be accepted in writing. If a delegate fails to attend a Training Event, or a cancellation is sought within the 25 (Twenty-Five) working days prior to the start of such course, full payment will be required.
For the avoidance of doubt, a working day excludes Saturday, Sunday and Public Holidays.
Please note that all refunds are subject to an administration fee for processing the cancellation.
8.2. In the case of cancellation:
a) Training Event date has not yet been selected / booked 100% Refunded
b) Up to 8 weeks before the Training Event date 100% Refunded
c) Between 4-8 weeks before the Training Event date 75% Refunded
d) Between 2-4 weeks before the Training Event date 50% Refunded
e) Less than two weeks before the Training Event date 25% Refunded
f) Less than one week before the Training Event date 0% Refunded
8.3. In all cases, notice of cancellation must be confirmed in writing addressed to the contact details on the Training Event Letter.
8.4. If a Delegate fails to attend the Training Event (without giving notice) the Delegate shall not be entitled to a refund.
If the Consultant cancels a Training Event(s)
8.5. The Consultant reserves the right to cancel a Training Event at any time, without incurring any additional liability to the Delegate or any delegate. In such circumstances, the Consultant shall offer alternative dates, a full refund or a credit note.
Re-scheduling a Training Event(s) or Transfer to a different Training Event
8.6. If the Delegate requests to re-schedule attendance or to transfer to a different Training Event, additional charges may apply:
(a) More than four weeks before the Training Event date – first re-schedule/transfer at no charge (except where the fee for a different Training Event is more or less, whereby the difference shall be credited or invoiced to the Delegate); subsequent re-schedule/transfer, 25% of amount charged
(b) Between 2-4 weeks before the Training Event date – 25% of amount charged
(c) Less than two weeks before the Training Event date – 50% of amount charged
9.1. Without prejudice to its obligations, the Consultant effects and maintains professional indemnity insurance subject to such insurance being available in the insurance market at commercially viable rates and terms.
10. Force Majeure
10.1. Neither party (or any person acting on its behalf) shall have any liability or responsibility for failure to fulfil any obligation under this Agreement so long as and to the extent to which the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of any event that is beyond the reasonable control and contemplation of either party to this agreement (“Force Majeure Event”).
10.2. A party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of a Force Majeure Event:
(a) notify the other party of the nature and extent of such Force Majeure Event;
(b) use all reasonable endeavours to remove any such causes and resume performance under this Agreement as soon as feasible; and
(c) continue to perform all its obligations under this Agreement the performance of which is not affected by the Force Majeure Event.
10.3. If the Force Majeure Event in question continues for more than three months either party may give notice in writing to the other to terminate this Agreement. This notice to terminate must specify the termination date, which must not be less than 30 days after the date on which the notice is given, and once such notice has been validly given, this Agreement will terminate on that termination date.
11. Dispute Resolution
Negotiation and mediation
11.1. If a dispute arises out of or in connection with this Agreement (a “Dispute”) either party may inform the other party by written notice of such a dispute and refer the matter for resolution.
11.2. Once the written notice has been served in relation to a Dispute, the parties shall meet at the earliest convenient time and in any event within 7 days of the date of service of the written notice and shall attempt to resolve the Dispute.
11.3. If a Dispute is not resolved within 14 days of the date of service of the relevant written notice the parties shall, if they both agree in writing to do so, attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Either party may withdraw from mediation at any time.
11.4. If mediation is chosen, the parties endeavour to agree the identity of the mediator and either party may propose a list of up to 3 mediators to the other party. In default of agreement within 14 days of submission of such proposals, a mediator may be nominated at the written request of either party by CEDR.
11.5. Subject to the provisions of clauses 11.1 to 11.4 and the parties’ right to refer any dispute to adjudication at any time, any dispute between the parties under or in connection with this Agreement including without limitation any question regarding the validity, existence or termination of this Agreement and/or this arbitration clause is referred to arbitration in accordance with the provisions of the Arbitration Act 1996.
11.6. The Dispute shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.
11.7. If litigation is the method of dispute resolution, the parties submit to the exclusive jurisdiction of the courts of England and Wales.
12. Governing Law
12.1. This Agreement will be governed by the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English Courts for the determination of any dispute arising out of or in connection with it.
13.1. Any demand, notice or communication shall be deemed to have been duly served if delivered by hand, or if sent by properly addressed prepaid first class post, 48 hours after being posted (excluding Saturdays, Sundays and public holidays).
13.2. Any demand, notice or communication pursuant to this Agreement must be made in writing addressed to the recipient at the recipient’s address stated at the beginning of this Agreement or at such other address as may from time to time be notified in writing by the recipient to the sender as the recipient’s address for service.
14. Variation and Waiver
14.1. Save as otherwise expressly provided in this Agreement, no variation to this Agreement shall be effective unless it is in writing and signed by a duly authorised representative on behalf of each of the parties.
15. Entire Agreement
15.1. This Agreement constitutes the whole agreement and understanding of the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Agreement.
15.2. The parties acknowledge that, in entering into this Agreement, it has not relied on any statement, representation, assurance or warranty (whether made negligently or innocently) other than those expressly set out in this Agreement.
15.3. The parties agree that all liability for and remedies in respect of any representations are excluded except as expressly provided in this Agreement.
15.4. Nothing in this clause shall limit or exclude any liability for fraud.