Terms & Conditions.
Terms and Conditions
"THE PURCHASER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8
1.1 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 Purchaser for the supply of Services in accordance with clause 5
Conditions – these terms and conditions as amended from time to time in accordance with clause 15.2
Contract – the contract between OHS and the Purchaser for the supply of the Services in accordance with these Conditions, the Quotation and any Special Conditions
Documents – any and all drawings, specifications, technical know-how, plans, reports, models, presentation materials, brochures, guides, course notes, training materials, promotional materials etc. prepared by or on behalf of OHS Ltd
OHS – a company registered in England and Wales with company number 05158022 having its registered office at 1st Floor City Approach, Albert Street Premises – the Purchaser’s premises at which the Services may be provided
Purchase Order – the order placed by the Purchaser setting out its requests for Services
Purchaser – the person, school, organisation or firm who purchases Services from OHS
Quotation – the quotation, tender submission or any other like document (in whichever form) produced by OHS and issued to the Purchaser. The quotation shall remain open for the period expressly stated within it. As a default, the quotation shall remain open for the period of 30 days unless otherwise stated. OHS reserves the right to amend or withdraw the offer.
Services – the services to be supplied by OHS to the Purchaser, as set out in the Quotation document defining the scope of services to be provided.
1.2 The masculine includes the feminine and the neuter and vice versa.
1.3 The singular includes the plural and vice versa.
1.4 In these conditions, a reference to writing or written includes faxes and emails.
1.5 Clause headings shall not affect the interpretation of these Conditions
1.6 A reference to any statute, enactment, order, regulation or other similar instruments shall be constructed as reference to the statute, enactment, order, regulation or instrument as amended from time to time.
2. Basis of contract
2.1 A legally binding contract shall only come into existence when the Purchaser issues to OHS a Purchase Order confirming details of the Services. In the event that the Purchaser shall not have issued the Purchase Order but has acquiesced in OHS starting work in relation to the provision of the Services, a legally binding contract shall be deemed to have come into effect.
2.2 The Contract constitutes the entire agreement between the parties. The Purchaser acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of OHS which is not set out in the Contract.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Purchaser seeks to impose or incorporate, or which are implied by custom, practice or course of dealing.
2.4 Each provision of this contract is severable and distinct from the others and if any provision is or at any time becomes to any extent or in any circumstances invalid, illegal or unenforceable for any reason, it shall to that extent or in these circumstances be deemed not to form part of this Contract, but the validity, legality and enforceability of all other provisions of this Contract shall not otherwise be affected or impaired, it being the parties intention that every provision of this Contract shall remain valid and enforceable to the fullest extent permitted by law.
2.5 This contract shall be governed and constructed in accordance with English law and the parties herby submit to the exclusive jurisdiction of the English and Welsh courts.
3. Supply of Services
3.1 OHS shall supply the Services to the Purchaser in accordance with these terms and conditions of the business, the Scope of Service and the Service Agreement.
3.2 OHS shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirements, on the basis that the Purchaser agrees to bear the costs of any additional works reasonably required to be
undertaken in order to comply with this clause at OHS’ standard rates or such rates as
otherwise agreed in writing and in all such instances such additional costs to be agreed prior to the work commencing.
4. OHS obligations
4.1 OHS warrants to the Purchaser that the Services will be provided using reasonable care, skills and diligence to the standards of a reasonably qualified and competent provider of the Service. OHS shall not, however, be liable for any damage to service media and structures that are not disclosed to OHS prior to the work commencing or are not located as shown on any plans which are provided to OHS .
4.2 co-operate with the Purchaser in all matters (acting reasonably) relating to the Services;
4.3 provide the Purchaser with such information and materials as the Purchaser may reasonably require in order to properly place a Purchase Order and keep full records of the Services required, and ensure that such information is accurate in all material respect
4.4 keep and maintain the Purchaser’s premises, and all equipment, documents and other property of the Purchaser which is at any time on the Purchaser’s premises in safe custody at its own risk and in good condition until returned to the Purchaser, and not dispose of or use the Purchaser’s property other than in accordance with the Purchaser’s written instructions or authorisation, In the event that any damage is caused to the Purchaser’s property as described in this clause 4.4 to notify the Purchaser immediately of the same.
4.5 provide the Services in accordance with all applicable statutory requirements rules laws and regulations and will ensure it has obtained any relevant consents or permissions prior to any works commencing
5. Purchaser’s obligations
5.1 The Purchaser shall:
5.1.1 ensure prompt provision of resources, including decisions, information, documentation and access to personnel, records and premises as required in order to enable OHS and its agents and employees to provide the Service in accordance with the Contract
5.1.2 co-operate with OHS in all matters (acting reasonably) relating to the Services; ensure a safe working environment at the Premises for OHS, its agents and employees; and ensure in the interest of health and safety that OHS personnel, while on the Premises for the purpose of carrying out the Services have access at all times to a member of the Purchaser’s staff familiar with the Premises and the safety procedures. OHS at all times shall provide the Purchaser with reasonable prior notice of its intention to attend the Purchaser’s premises.
5.1.3 provide OHS with such information and materials as OHS may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respect
5.1.4 keep and maintain all equipment, documents and other property of OHS which is at any time on the Purchaser’s premises in safe custody at its own risk and in good condition until returned to OHS, and not dispose of or use OHS property other than in accordance with OHS written instructions or authorisation
5.1.5 wherever possible, provide a suitable vehicle parking facility for use by OHS personnel which is free from any legal restrictions and immediately close to the location at which the Equipment is installed and/or Services provided
5.1.6 hereby acknowledges that the Services provided by OHS in accordance with this contract will not absolve the Purchaser from any obligations, including statutory obligations
5.2 If OHS performance of any of its obligations under the Contract is materially prevented or delayed by any significant act or omission by the Purchaser or failure by the Purchaser to perform any relevant and material obligation (Purchaser Default):
5.2.1 OHS shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Purchaser remedies the Purchaser Default, and to rely on the Purchaser Default to relieve it from the performance of any obligations to the extent the Purchaser Default
materially prevents or delays OHS’s performance of its obligations;
5.2.2 OHS shall not be liable for any costs or losses sustained or incurred by the Purchaser arising directly or
indirectly from OHS’s failure or delay to perform any of its obligations solely by reason of a Purchaser Default; and
5.2.3 The Purchaser shall reimburse OHS on written demand for any costs or losses sustained or incurred by OHS arising directly from the Purchaser Default.
6. Charges and payment
6.1 The Charges for the Services shall be as set out in the Quotation Document.
6.2 OHS shall be entitled to charge the Purchaser for any expenses reasonably incurred by the individuals whom OHS engages in connection with the Services including, but not limited to, travelling expenses, accommodation costs, subsistence and any associated expenses subject to prior agreement with the Purchaser regarding such expenses.
6.3 OHS shall invoice the Purchaser on completion of the Services as documented by the Purchase Order.
6.4 The Purchaser shall pay each invoice submitted by OHS:
6.4.1 within 30 days of the date of the invoice unless otherwise agreed by the Commercial Manager
6.4.2 in full and in cleared funds to OHS bank account, details of which will be set out on the invoice
6.5 Emergency attendance on site (with less than 2 days’ notice) will incur an additional charge of 25% in addition to the total value of works.
6.6 All amounts payable by the Purchaser under the Contract are exclusive of value added tax chargeable for the time being (VAT) which shall be payable in addition, if applicable.
6.7 If the Purchaser fails to make any undisputed payment due to OHS under the Contract by the date falling 14 days after the due date for payment, then the Purchaser shall pay interest on the overdue amount at the rate of 3% APR above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Purchaser shall pay the interest together with the overdue amount.
6.8 Both parties shall pay all amounts due under the Contract in full without any set-off, counter-claim, deduction or withholding (except for any deduction or withholding required by law).
6.9 We may deliver goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable contract. Each instalment delivery will be a separate contract and no cancellation or termination by either party of any one contract relating to an instalment will entitle you to repudiate or cancel any other contract or instalment.
6.10 Each invoice raised by us to you will be payable in full without deduction or set off, in accordance with our standard payment terms. You agree you will not be entitled to set off any claim against an invoice:-
6.11 Unless you have notified us in writing within 14 days of delivery of any defect or shortage in the goods delivered.
6.12 Any claim arising out of the supply of goods under a contract other than that which gave rise to the debt forming the subject matter of the invoice.
7. Intellectual Property Rights
7.1 All Intellectual Property Rights in or arising out of or in connection with the Services are and shall be owned by OHS.
7.2 All Intellectual Property Rights in or arising out of or in connection with the Training Materials are and shall be owned by OHS. The Purchaser and Delegates at any Courses are licensed to use them when attending any Course, as well as to use them as a record of information, provided that only the Delegates or other staff of the Purchaser may make use of them. All rights under this Contract to the Training Materials are licensed, not sold, to the Purchaser. The Purchaser may not alter the Training Materials and has no rights in them other than as provided in this Contract.
7.3 The Purchaser acknowledges that, in respect of any third party Intellectual Property Rights, the Purchaser’s use of any such Intellectual Property Rights is conditional on OHS obtaining a written licence from the relevant licensor on such terms as will entitle OHS to license such rights to the Purchaser. All Training Materials are the exclusive property of OHS. Except as expressly set out in these terms, the Purchaser undertakes (and undertakes to procure that its employees or any other delegate attending a Training Course on its behalf or on its account so undertakes):not to copy any of the Training Materials except where such copying is incidental or necessary for the purposes of completing the relevant Course;
7.3.1 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Training Materials
7.3.2 not to 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;
7.3.3 to supervise and control use of the Training materials and ensure that they are used by its employees and representatives only in accordance with the terms of this Contract;
7.3.4 to include the copyright notice of OHS on all permitted entire and partial copies it may make of the Training Materials on any medium;
7.3.5 not to provide or otherwise make available the training Materials in whole or in part, in any form to any person without prior written consent from OHS.
7.4 The Purchaser hereby grants OHS Ltd a royalty-free, non- exclusive and irrevocable licence to copy and use any material provided by the Purchaser for all reasonable purposes related to the Services. The Purchaser shall not use the System, Documents, Equipment or any deliverables resulting from the Services for any purpose whatsoever other than as necessary to receive the Service.
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 sub-contractors, and any other
confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and sub-contractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and sub-contractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any government or regulatory authority or by a court of competent jurisdiction. This clause 7 shall survive termination of the Contract.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude
OHS’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or sub- contractors;
9.1.2 fraud or fraudulent misrepresentation; or
9.1.3 any third party claim arising from OHS’ obligations under clauses 6 and 7 of this Contract
9.1.4 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2 OHS shall not be liable under, or in connection with, this Contract or any collateral contract for indirect costs comprising:
9.2.1 loss of income;
9.2.2 loss of profits or contracts;
9.2.3 business interruption;
9.2.4 loss of the use of money or anticipated savings;
9.2.5 loss of information;
9.2.6 loss of opportunity or damage to goodwill or reputation;
9.2.7 loss of, damage to or corruption of data; or
9.2.8 any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.
9.3 Subject to Clause 8.2 above, without prejudice to the reminder of this clause, OHS shall be liable to the Purchaser for such direct losses as are attributed directly to
OHS’s negligent or defective work, acts or omissions limited to an aggregate amount equivalent to the higher of £3,000,000. Or 200% of the Fee received in cleared funds by OHS under the Contract. To the extent that any liability of OHS to the Purchaser would be met by any insurance of OHS then the liability of OHS shall be extended to the extent that such liability is met by such insurance.
OHS shall have no further liability to the Purchaser, its servants or agents in connection with the Work.
9.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.5 This clause 8 shall survive termination of the Contract.
10. Notice by Purchaser to cancel Services
10.1 The Purchaser may give notice in writing at any time that it does not wish to proceed with the Services.
10.2 The following refunds will be made in the event of notice being given under Clause 9.1:
Calendar days’ notice Refund applicable
Over 7 days’ notice Full refund of charges less any irrecoverable disbursements
7 to 5 days’ notice 50% refund of charges less any irrecoverable disbursements
4 to 2 days’ notice 25% refund of charges less any
Less than 48 hours No refund available
11.1 Either party may terminate this Contract immediately by written notice to the other :
11.1.1 At any time during the term for any reason
11.1.2 If One party commits a material or persistent breach of this agreement which it fails to remedy (if remediable) within 30 days after the service of written notice requiring it to do so; or
11.1.3 If One party becomes insolvent or unable to pay its debts (within the meaning of applicable provisions of the Insolvency Act 1986), makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its inability to pay its debts, enters into administration or liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution
for its winding-up, has an administrative receiver appointed or a receiver, manager, trustee or similar person is appointed over the whole or any part of its assets or if
there are proposals for it to close or cease to operate.
12. Consequences of termination
12.1 On termination of this agreement by OHS for any reason:
12.1.1 The Purchaser shall immediately pay to OHs all of OHS’s undisputed unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, OHs shall submit an invoice, which shall be payable by the Purchaser immediately on receipt;
12.1.2 The Purchaser shall return all OHS Property. Until it has been returned, the Purchaser shall be solely responsible for its safe keeping and will not use it for any purpose unconnected with the Contract;
12.1.3 The accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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
12.1.4 clauses which expressly or by implication survive termination shall continue in full force and effect.
13. Force majeure
13.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of OHS including but not limited to failure of a utility service or transport network, act of God, pandemic, epidemic, war, riot, civil commotion, malicious damage, compliance with any law or government order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers of sub-contractors.
13.2 Neither party shall not be liable to the other as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
14. Assignment and other dealings
14.1 Neither party may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this Contract to any third party or agent without the prior written consent of the other.
15.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party might have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre- paid first class post or other next working day delivery service, commercial courier, fax or email.
15.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.1; if sent by pre-paid first class post or other next working day delivery service, at 9am on the second business Day after posting; 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, one Business Day after transmission.
15.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16. Waiver and Variation
16.1 A waiver of any right under the Contract or law 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 provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy.
16.2 Except as set out in these conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by both parties ."