In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
Applicable Laws means all applicable laws, regulations, regulatory requirements, directives, orders and codes of practice in any relevant jurisdiction, as amended and in force from time to time (including the ETI base code);
Attendance an attendance will be deemed to have taken place where a Learner has enrolled on to a Course;
Attendance Fee means the fee payable by the Training Provider to JobSkilla in accordance with these Terms and Conditions, on the enrolment of a Learner to a Course;
Costs means the costs payable by the Training Provider to JobSkilla for the supply of services as set out in Schedule 1;
Commissioned Course means any vocational or non-vocational course provided or requested by the Training Provider;
Confidential Information means any information concerning either party and relating to its business methods, plans, systems, finances or projects; its trade secrets; its products or services; or any other information which is expressly described as confidential, including but not limited to details of any Learner;
Control shall have the meaning set out in section 1124 of the Corporation Taxes Act 2010;
Costs means the charges by JobSkilla for providing the Services as detailed in Schedule 2;
Enrol means a Learner attending and registering onto a Commissioned Course ran by the Training Provider;
Intellectual Property Rights means all copyright, rights in the nature of copyright, design rights, patents, trademarks, database rights, applications for any of the above, moral rights, rights in confidential information, know-how, domain names and any other intellectual or industrial property rights (and any licences in connection with any of the same) whether or not registered or capable of registration subsisting in the UK or another part of the world;
JobSkilla means JobSkilla Ltd a company registered in England and Wales under number 09958526 whose registered office is at 47 Market Street ;
Learner means an individual person introduced by JobSkilla to the Training Provider for Training;
Services means the services provided by JobSkilla to the Training Provider as set out in Schedule 1;
T&Cs means these Standard Terms and Conditions;
Training means any Commissioned Course which the Learner may be enrolled on to;
Training Provider means any person, company including any associates or subsidiaries to whom a Learner is introduced;
VAT means value added tax and any similar replacement or additional tax.
Unless the context otherwise requires, each reference in these T&Cs to:
clause headings shall not affect the interpretation of the T&Cs;
“writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
“these T&Cs” is a reference to these Standard Terms and Conditions and each of the Schedules as amended from time to time;
a Schedule is a schedule to these T&Cs;
words imparting the singular number shall include the plural and vice versa; and
references to any gender shall include the other gender.
JobSkilla shall not be liable or responsible for any loss or damages of any nature whether direct or indirect including any loss of profits or any consequential damages suffered or incurred by the Training Provider as a result of the Attendance of a Learner to the Training Provider by JobSkilla or the failure of JobSkilla to introduce any Learners to the Training Provider.
Nothing in the Contract and/or the T&Cs shall limit or exclude either party’s liability for:
death or personal injury;
fraud or fraudulent misrepresentation; or
any other liability the exclusion or limitation of which is not permitted by English law.
JobSkilla will own the Intellectual Property Rights in any materials or products which the Training Provider create for us (“New Materials”) and do assign to JobSkilla by present and future assignment, with full title guarantee, all legal and beneficial rights, title and interest in the New Materials.
The Training Provider will continue to own the Intellectual Property Rights in any materials, products, know-how and techniques that are not created for JobSkilla under the Contract (“your Materials”). Where your Materials are included in any Services then the Training Provider grants JobSkilla a perpetual, irrevocable, worldwide, sub-licensable, assignable, royalty- free, non-exclusive licence to use your Materials to the extent necessary to take the full benefit of the Contract.
JobSkilla will continue to own the Intellectual Property Rights in any materials, products, know-how and techniques which are made available to the Training Provider (“our Materials”).
Where JobSkilla provide the Training Provider with our Materials then JobSkilla grant the Training Provider a revocable, non-assignable, worldwide, royalty-free, non-exclusive licence to use them in accordance with any associated guidelines send from time to time, solely to the extent needed to fulfil the Training Providers obligations under the Contract.
In consideration for the provision of the Services, the Training Provider shall pay JobSkilla, on receipt of a valid invoice, Costs in accordance with this clause 4.
All amounts payable by the Training Provider exclude VAT which the Training Provider shall additionally be liable to pay to the JobSkilla at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
JobSkilla shall submit invoices for the Costs plus VAT if applicable to the Training Provider within 5 days of the final day of the course. Each invoice shall include all supporting information reasonably required by the Training Provider.
The Training Provider shall pay each invoice, which is properly due and submitted to it by JobSkilla, within 28 days of receipt of the invoice, in cleared funds to a bank account nominated in writing by JobSkilla.
If the Training Provider fails to make any payment due to JobSkilla under the Contract by the due date for payment, interest will be payable in line with clause 7.
If either party supplies personal data (as defined by Applicable Laws) to the other party:
the party supplying the data warrants and represents that the data has been fairly and lawfully obtained and it has the right to lawfully supply it; and
the party receiving the data warrants and represents that it will
comply fully with all Applicable Laws relating to the use, disclosure or other processing of that data;
put in place and maintain appropriate technical and organisational measures against the accidental, unlawful or unauthorised processing, destruction, loss, damage or disclosure of that data;
only use that data for the performance of its obligations under a Contract;
not retain that data for longer than is necessary (in accordance with Applicable Laws);
immediately on request, destroy that data or return it to the other party;
not transfer that data outside the European Economic Area (“EEA”) or to any third party without the other party’s prior written consent (in the form of a signed agreement including the standard contractual clauses issued by the European Commission from time to time for transferring personal data outside the EEA); and
notify the other party as soon as reasonably practicable if it believes it may have breached this clause and will cooperate fully in dealing with the consequences of such breach.
The Training Provider shall indemnify JobSkilla against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other [reasonable] professional costs and expenses) suffered or incurred by JobSkilla arising out of or in connection with:
any claim brought against JobSkilla for actual or alleged infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the Training Provider Obligations; or
any claim made against JobSkilla by a third party arising out of, or in connection with, the Training Providers Obligations.
This clause 5 shall survive termination of the Contract.
If the Training Provider fails to make a payment due to JobSkilla, in line with clause 4, by the invoice due date, then, without limiting JobSkilla’s remedies under clause 10, the Training Provider shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
Assignment and Subcontracting
Save as provided below neither JobSkilla nor the Training Provider shall assign or transfer the Contract or the benefits or obligations under it without written consent of the other party. Such consent shall not be unreasonably withheld or delayed.
The Training Provider shall not enter into any sub-contract with any person for the performance of any part of the Contract without the prior written consent of JobSkilla. Any consent given by JobSkilla under this provision of this clause shall not relieve the Training Provider of its obligations for the performance of the Contract.
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party [or of any member of the group of companies to which the other party belongs], except as permitted by clause 8.2.
Each party may disclose the other party’s confidential information:
to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 8; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving [written] notice to the other party if:
the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 20 days after being notified [in writing] to make such payment;
the other party commits a material breach of any other term of the Contract and/or the T&Cs which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 days after being notified in writing to do so;>>>>>>> partnerPortal
the other party repeatedly breaches any of the terms of the Contract and/or the T&Cs in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract and/or the T&Cs;
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986;
the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership);
an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company);
the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
the other party (being an individual) is the subject of a bankruptcy petition, application or order;
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1.1 to clause 9.1.11 (inclusive);
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation;
is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010); or
causes by its actions or omission or, in JobSkilla’s reasonable opinion, is likely to cause material disruption to JobSkilla’s business operations and/or damage to JobSkilla’s brand or reputation
For the purposes of clause 9.1.2, material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of this agreement over the term of this agreement OR any 6 month period during the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances [the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed OR the affected party shall be entitled to a reasonable extension of the time for performing such obligations].
The Training Provider will maintain in force for at least the term of the Contract, with a reputable insurer, at your own expense, all necessary insurances including the following (each for a minimum amount of £1 Million per occurrence or such other amount or currency agreed between you and us in writing):
employer’s liability insurance;
public liability insurance;
together the “Insurance Policies”.
You will within 14 days of a request by us, provide such evidence of the Insurance Policies as we reasonably require.
If there is an inconsistency between any of the provisions of these T&Cs and the provisions of the Contract, the provisions of the Contract shall prevail.
No purported variation of the Contract and/or the T&Cs shall take effect unless made in writing, referring to either the Contract and/or the T&Cs and signed by an authorised representative of each party.
Nothing in the Contract and/or these T&Cs is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party
All third party rights are excluded, and no third party shall have the right to enforce the terms of any Contract. The rights of any third party to enforce the Contract may be varied and/or extinguished by written agreement between the parties without the consent of any such third party.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or the T&CS or its subject matter or formation.
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
If any provision or part-provision of this agreement is deemed deleted under clause 10.5 (above) the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.