OUTDOOR-AMBITION LTD - TERMS & CONDITIONS 2011/12

 

These Conditions shall apply to the contract for the provision of the Services by OAL to the Client (“the Agreement”) to the exclusion of all other terms and conditions including any terms and conditions which the Client may purport to apply under any confirmation of order or other document. Any variation to these Conditions (including any special terms and conditions being agreed between the parties) shall be inapplicable unless agreed in writing by OAL.

1. DEFINITIONS

In these terms and conditions of trading:

“Client” means the person(s), Company or Organisation to whom the Services of OAL are provided.

“Conditions” means the terms and conditions of the Agreement set out in these Conditions and any special terms and conditions as agreed in writing by OAL.

“Fees” means the price payable for the Services as set out in the Proposal.

“Materials” means any or all materials (including but not limited to reports, documents, specifications, presentations, software and related documentation (whether in electronic or hard copy form) prepared, provided made or written by OAL in relation to the Services whether they existed prior to the date of the Proposal or not.

“OAL” means Outdoor-Ambition Ltd.

“Proposal” means the bespoke scheme of the work/activities/courses or similar document prepared by OAL setting out the services which OAL is to provide to the Client (a copy of which is attached to the Conditions).

“Services” means the services to be performed by OAL for the Client as detailed in the Proposal

2. SERVICES

2.1 Subject to the Client complying with its obligations under this Agreement, OAL will use its reasonable endeavours to provide the Services to the Client set out in the Proposal.

2.2 OAL shall use its reasonable endeavours to meet any performance dates in the Proposal or such performance dates as are advised to OAL by the Client prior to the date of this Agreement in writing but any such dates shall be estimates only and time shall not be of the essence in relation to such dates save where expressly stated otherwise.  

2.3 Except as expressly specified in the Proposal, the Services do not include:

2.3.1 any services required as a result of the Client’s failure to comply with its obligations in these Conditions;

2.3.2 the procurement of any goods or services or facilities that may be required by the Client;

2.3.3 the entering into of any contract or similar arrangement on behalf of the Client in relation to the procurement of goods or services that may be required by the Client;

2.3.4 any confirmation assurance warranty or undertaking that any information contained in Materials or any carrying out of the Services that relate in any way to health or safety issues complies with any applicable laws, legislation, codes of conduct or regulations subject always to clause 9.3.1. Whilst OAL will work with the Client and/or its Health and Safety advisors to ensure the Client’s health and safety needs are as far as possible met, OAL has no responsibility for ensuring that the health and safety or insurance aspects or requirements of the Client are met and/or that they comply with legal requirements and such responsibility instead lies with the Client. OAL is not a health and safety expert and does not hold itself out as such. See also clause 4.5;

2.3.5 any confirmation assurance warranty or undertaking that any information contained in Materials is suitable for the Client’s requirements. See also clause 4.5. 

2.4 If the Client requests a change to the scope or execution of the Services, OAL shall, within a reasonable time, provide a written estimate to the Client of the likely time required to implement the change; any variations to OAL’s charges arising from the change and any other impact of the change on the terms of these Conditions. OAL may charge for its time spent in assessing a request for change from the Client. If the Client wishes OAL to proceed with the change, OAL has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Services and any other relevant terms of these Conditions or the Proposal to take account of the change.

2.5 OAL may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory or regulatory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. OAL may also, from time to time change the Services, provided that such changes do not materially affect the nature or quality of the Services and where practicable, it will give the Client at least 1 month’s notice of any change.

3. FEES.

3.1 Fees quoted on the Proposal are valid for 30 days from the date of quotation.

3.2 All fees and charges payable to OAL are inclusive of Value Added Tax (VAT) (or any similar tax) which will be paid by the Client at the rate and manner from time to time as prescribed by law.

3.3 An invoice will be raised when the Clients’ order is confirmed.

3.4 If any sum payable to OAL by the Client is not paid by the due date then (without prejudice to OAL’s other rights and remedies), OAL may do either or both of the following:

3.4.1 Suspend the performance of its obligations; and/or

3.4.2 charge interest on any overdue amount on a monthly basis (before or as well as after judgment) from the due date to the date of actual payment (both dates inclusive),  at the rate of 3% over the base lending rate of Lloyds TSB Bank plc. That interest shall be paid by the Client to OAL on demand.

3.5 All fees are quoted ‘per student’ and all courses have a maximum number of students as detailed on the OAL promotional literature. In certain circumstances, further students may be allowed to attend the course but OAL reserves the right to charge the ‘per student’ fee for additional students who attend. 

3.6 All course fees include the cost of administration, documentation, use of equipment, aide memoirs, all course notes, use of training materials and certification, course fees at an OAL training venue, all insurance and instruction fees. 

3.6 Any parking or food is the responsibility of the Client, unless arranged with OAL prior to event.  Where OAL provide transportation to a venue by minibus, the Client will not be charged in respect of this service.

3.7 Where transportation is other than by OAL minibus, the Client shall be entirely responsible for:

3.7.1 Cost of transporting students to and from an OAL training venue (unless otherwise stated); or

3.7.2 Cost of transporting students to and from arranged accommodation and the training venue (unless otherwise stated).

3.8 The Client shall be entirely responsible for the cost of providing In-house facilities.

4. CLIENT’S OBLIGATIONS

The Client will, at its own expense, perform the following obligations:

4.1 provide the course venue where specified in the Proposal and ensure compliance with any Legislation, Regulation, Code of Practice or Guidance laid down by the Health and Safety Executive with regard to the suitability of premises provided for courses at a Client provided venue. OAL will request details of the course venue (e.g. 1.34m2 per person regarding training room size) before course confirmation;

4.2 appoint a dedicated point of contact with sufficient authority to instruct OAL on behalf of the Client and to contractually bind the Client to liase with OAL at all times from the date of the Proposal to Completion of the Services;

4.3 fully co-operate with OAL in all matters relating to the Services;

4.4 give OAL prompt and clear briefings to ensure that all the facts given about the Services and the Client’s requirements are accurate and promptly provide OAL with any information that OAL reasonably requests;

4.5 notify OAL, as soon as possible, of any changes that need to be made to the Materials, proposed venue or the Services where there is any doubt as to non-compliance  with any Health and Safety laws, legislation, codes of conduct or regulations;

4.6 promptly check and verify that any Materials meet the Client’s requirements and notify OAL as soon as possible of any changes that need to be made to the Materials for them to meet those requirements;

5. INTELECTUAL PROPERTY AND CONFIDENTIALITY

5.1 As between the Client and OAL, all intellectual property rights and all rights in the materials (including but not limited to reports, documents, specifications, presentations, documentation and software (whether in electronic or hard copy form) prepared, provided, made or written by OAL in relation to the Services including any materials which existed prior to the date of the Proposal (‘Pre-existing Materials’) shall be owned by OAL.

5.2 The Client acknowledges that, where OAL does not own any Pre-existing Materials, the Client's use of rights in Pre-existing Materials is conditional on OAL obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle OAL to license such rights to the Client.

5.3 The Client 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 Client by OAL, its employees, agents or  sub-contractors  and any other  confidential information  concerning OAL’s business or its products which the Client may obtain. The Client shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need  to  know  the  same for  the  purpose of discharging the Client’s obligations to OAL, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Client.

6. CANCELLATION

6.1 OAL reserves the right to cancel or postpone any course, except where such cancellation is due to the Client’s breach of it’s obligations in which case the provisions of clause 8 shall apply. If this becomes necessary, as much notice as possible will be given and the client will be offered a choice of:

6.1.1 A full refund, if the course has not yet commenced; or

6.1.2 A proportionate refund, if the course has commenced and is not yet completed; or

6.1.3 An alternative date to commence or complete the course as appropriate to the circumstances.

6.2 If the Client requests cancellation or postponement of any course, no fees will be payable PROVIDED that not less than 21 days written notice prior to the commencement of the course is given to OAL. If less than 21 days written notice is given, OAL reserve the right to make an appropriate charge for administrative and other expenses as follows:

14 – 20      days written notice = 25% of the course fee

7 - 13         days written notice = 50% of the course fee.

2 - 6           days written notice = 75% of the course fee.

Less than 2 days written notice = 100% of the course fee.

6.4 In exceptional circumstances and at the discretion of OAL, a course or places on a course may be postponed rather than cancelled. In cases where a course or a place on a course is immediately rearranged to an alternative date and therefore only postponed, cancellation fees will not be payable. Subsequent cancellation or further postponement of an already rearranged course or place on a course would be subject to a mandatory 100% cancellation fee irrespective of the amount of prior written notice which is given.

7. FAILURE TO ATTEND

7.1 Notwithstanding clause 6 above, if any student fails to attend any course or any part of any course on which a place has been reserved, fees in respect of that student will be payable in full. However, if the course has not yet commenced, a substitute student may be nominated.

7.2 If the course has commenced but for exceptional reasons the student has not been able to complete the course, an alternative date will be offered to enable the student to complete the remaining part of the course. Exceptional reasons include illness, supported by a doctor’s report or self-certification, or compassionate grounds.

7.3 At the discretion of OAL’s Managing Director, if an insufficient number of students attend any one-day, the course or part thereof may be postponed or cancelled in accordance with clause 6 above.

7.4 In all cases, students must comply with the course pre-entry qualification requirements as detailed in the Proposal, as exceptions will not be made. If a student is considered unsuitable in the opinion of OAL’s Managing Director, with due consultation, the student may be asked to leave the course. In this event, OAL reserves the right to retain the fee or a proportion of the fee for that student.

8. TERMINATION

The following obligations are conditions of these Conditions and any breach of them shall be deemed a fundamental breach which shall determine the Agreement on service of written notice to that effect on the Client by OAL, and the rights and liabilities of the parties shall thereafter be determined:

8.1 Failure on the part of the Client to make punctual payment of all sums due to OAL in accordance with this Agreement;

8.2 The levying of any distress or execution against the Client or the making by it of any composition or arrangement with creditors or being a company the its liquidation (other than a members’ voluntary liquidation);

8.3  Being in material or persistent breach of its obligations under clause 4. On such occurrence 100% of the course fee shall remain payable to OAL.

9. Limitation of Liability – The Client’s Attention is particularly drawn to this clause

9.1This clause 9 sets out the entire financial liability of OAL (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:

9.1.1 any breach of these Conditions;

9.1.2 any use made by the Client of the Services, the materials prepared provided or delivered for or to the Client or any part of them; and 

9.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Conditions

9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Conditions

9.3 Nothing in these Conditions limits or excludes the liability of OAL:

9.3.1 for death or personal injury resulting from negligence; or

9.3.2 for any damage or liability incurred by Client as a result of fraud or fraudulent misrepresentation by OAL;

9.4 Subject to clause 9.2 and clause 9.3 OAL shall not be liable for:

9.4.1 loss of profits or loss of goods; or

9.4.2 loss of business; or

9.4.3 depletion of goodwill and/or similar losses; or

9.4.4 loss of anticipated savings; or

9.4.5 loss of goods; or

9.4.6 loss of contract; or

9.4.7 loss of use; or

9.4.8 loss of corruption of data or information; or

10.4.9 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

9.5 OAL’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Services and the performance of these Conditions shall be limited to 200% of the price paid for the Services.

9.6 If OAL’s performance of its obligations under is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees (including but not limited to any breach by the Client of the provisions of clause 4), OAL shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.

9.7 OAL will not be liable for losses or penalties incurred if the Client does not act on OAL’s recommendations.

10. ALTERATION. OAL reserves the right to amend these terms and conditions without prior notification. This Agreement shall be governed by English law and any proceedings arising out of or in connection with this Agreement may be brought in any court of competent jurisdiction inEngland andWales.

11. Supercedes prior agreements

This Agreement supercedes any prior agreement between the parties whether written or oral and any such prior agreements are cancelled as at the Commencement Date but without prejudice to any rights which have already accrued to either of the parties.

12. Miscellaneous

12.1 All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of any other right granted by this Agreement or otherwise available to it.

12.2 The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.

12.3 A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement.

12.4 The Client warrants to OAL that the Client has not been induced to enter into this Agreement by any representation or warranty, whether oral or in writing, except those specifically contained in this Agreement as warranties.  The Client waives any claim for breach of any representations and for any misrepresentation (save for those expressly made in this Agreement), whether negligent or otherwise, except in respect of any fraudulent misrepresentation.  Nothing in this Agreement limits or excludes liability for fraudulent misrepresentation.

 

OUTDOOR-AMBITION LIMITED Oct 2011

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