Last Updated: 27 September 2021
TERMS AND CONDITIONS OF BUSINESS
1 DEFINITIONS
(1) “Additional Services” means Services which do not form part of a Proposal and which could include provision outside of the Working Day, in order to meet your requirements.
(2) “Agreement” means the agreement between you and us for the provision of Services and/or Products incorporating these Terms and Conditions of business, any individual Proposal and any special terms and conditions which we agree in writing and, where you purchased directly from our website, our Purchase of Online Courses – Terms & Conditions of Business which are available on the Website.
(3) “Client” means you, the individual or business organisation that purchases Services from us.
(4) “Consumer” means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession as in section 2(3) of the Consumer Rights Act 2015.
(5) “Data Protection Legislation” means unless and until it is no longer applicable to our agreement, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then any successor legislation to the GDPR.
(6) “Digital Content”, in accordance with the Consumer Rights Act 2015, means “data which are produced and supplied in digital form” and includes our books, guides, videos, podcasts and online materials.
(7) “Email” means submission of an email following a valid successful delivery receipt being retained by the sender either to the email address contained in the latest relevant Proposal or such other addresses as may be notified in writing by one party to the other.
(8) “Expenses” means the amounts incurred by us (which may be paid to third parties) which are not included within the applicable Proposal and which wholly relate to that Proposal. For example, for travelling.
(9) “GDPR” means EU 2016/679, the General Data Protection Regulation (GDPR).
(10) “Intellectual Property Rights” means any patent, trademark, service mark, registered design, copyright, design right, invention, know-how, technique, images, plans, confidential information or process including, but not limited to, management process, technical, creative or artistic concept and/or design, right to extract or exploit information from a list of contact details or a database, any contact or database rights and any application for any of the above, and any other intellectual property right recognised in any part of the world, whether or not presently existing or applied for, which is held by the owning party
(11) “Key Contact” means the individual(s) assigned by us who will be providing our Services to you.
(12) “Order Confirmation” relates to orders which you place online using the Website and means the email confirming your order and describing your purchases.
(13) “Products” means the items/products, such as books, guides, courses and plans, including any Digital Content, which are detailed in the Proposal.
(14) “Nominated Persons” means any individuals(s) within our respective organisations that the other party is required to contact or communicate with to submit information and documents or receive instructions and decisions in order to generally provide and receive the Services.
(15) “Programme” means a number of sessions which are sequential to each other.
(16) “Proposal” means the document you have accepted describing the Services to be provided by us and includes any Order Confirmation in relation to any “off the shelf” service package or Products that you purchase, including from our website. This may be in the form of an email to you.
(17) “Session” means any workshop or any meeting with you to provide our Services. This may be conducted face-to-face, by telephone, video or web conferencing or using any other similar technology methods which we deem to be appropriate.
(18) “Scheduled start date” means the date that we agree to start or resume supplying our Services to you.
(19) “Services” means the Services we agree to supply you, as outlined in each Proposal, together with any associated Products.
(20) “Supplier”, “we” or “us” means Janine Coombes Marketing whose trading address is at 1 Chestnut End, Headley, Bordon, Hampshire, GU35 8NA. Main E-mail address is [email protected]. We are not currently registered for VAT.
(21) “Third party providers” means those individuals or organisations who provide products and services to you including, but not limited those who provide you with software which we use to provide the Services to you.
(22) “Timeline” means the time that we both would like Services to be completed by, as specified within an individual Proposal. Timelines are estimates only.
(23) “Website” means the website and all content at https://janinecoombes.co.uk
(24) “Website Sales” means Products and or Services which are purchased from the Website.
(25) “Working day” means any Monday to Friday inclusive, from 9 am to 3 pm, but excluding all public holidays in England and/or Wales, unless we agree in writing otherwise.
(26) Unless the context requires otherwise, reference to the singular includes the plural and reference to the masculine includes the feminine and vice versa.
(27) The headings contained in this Agreement are for convenience only and do not affect their interpretation.
2 ABOUT THIS AGREEMENT AND OUR SERVICES
(1) (a) Our agreement supersedes all prior agreements, representations, warranties and understandings between us and can only be varied in writing. It will continue until terminated in accordance with Clause 10 of these terms and conditions. However, the Proposal may contain a minimum or fixed term for which we will provide you with the services.
(b) We reserve the right to vary our Terms and Conditions without notice. However, the current Terms and Conditions subsisting at the time you place your order applying to the provision of all Services by us, will prevail over any other communication between us and can only be varied if we agree in writing, including in any Proposal.
(c) Where an individual is entering into an agreement on behalf of a business organisation, the business organisation confirms that they have the legal right to do so and will be bound by such agreement. You will also be responsible if you ask anyone to liaise, communicate or work with us (for example to supply us with information) for you or on your behalf.
(d) When you accept our Proposal, you will be issued with an invoice or you must submit a Purchase Order, as detailed in the Proposal.
(2) We offer services based upon the information, data, materials, and anything which you and your personnel provide to us. You therefore agree and understand
(a) Where you enable or provide us with access to your third party providers you agree that, in order to provide the Services, we are entitled to take their advice and follow such advice and instructions, placing reliance on it without any recourse to us.
(b) We are pleased to offer advice and support but, due to the nature of our Services which rely on your involvement and commitment, and that of your personnel (for whom you are responsible) any results are not guaranteed.
(c) Although we always use our best endeavours to achieve your objectives and meet any targets you may set (as detailed in the Proposal), the supply of the Services does not guarantee specific results, or that your objectives or targets will always be reached, and it is your responsibility to ensure that the Services meet your specific needs.
(d) No recommendation, opinion, statement or anything whatsoever that we provide shall form any endorsement or guarantee.
(e) Accordingly, you agree and understand that we are not responsible for any action you take or fail to take as a result of our Services, nor for any reliance you may place upon our Services, nor any consequences whatsoever during or as a result of our Services or failure to supply.
(3) (a) Details of the Services which we will supply are contained within the relevant Proposal. This will include any start date and any timeline.
(b) Proposals are valid for a period of 14 days before acceptance
(c) Any additional Services and/or Products can be supplied at extra cost as agreed between us. Where we have not reached agreement as to the extra costs then any Additional Services will be charged or at our usual rates for the Services provided and are payable in accordance with clause 4.
(d) Products and Services for sale on the Website are delivered as digital content via the Website. Otherwise, Services will be provided at any venue or venues specified within the Proposal. If you wish to cancel or wish to make any changes to any venue or for us to provide Services at a different venue, then you will be responsible for all of the costs associated with such cancellation and/or change.
(e) Services are provided during our working day unless we agree otherwise in writing.
(4) Individual Sessions – attendance, scheduling and cancelling
(a) Either on the proposal or during the supply of our Services we will agree on specific scheduled sessions which are suitable for us both.
(b) Whilst we will always work with you to rearrange any such dates, if you rearrange or cancel a session
(i) at least 4 weeks before the scheduled date then you must pay 40 % of the amount due for the session
(ii) at least 3 weeks before the scheduled date then you must pay 50 % of the amount due for the session
(iii) at least 2 weeks before the scheduled date then you must pay 100 % of the amount due for the session
(c) You will always be responsible for payment of any non-refundable expenses
Unless we have agreed otherwise in writing all sessions must be scheduled and completed within 12 months of the date of the relevant proposal.
(5) Attendance – You are expected to attend a session (whether it is an individual session or as part of a programme) no later than 10 minutes after the agreed start time. So, for example, if your session is scheduled for 3 pm you are expected to attend by no later than 3.10 pm. If you do not attend within 10 minutes of the agreed start time, we reserve the right to terminate the session and regard it as a completed session (also, it cannot be rescheduled).
(6) Facebook Groups
(a) some programmes may include access to secret or closed Facebook groups (i.e. you need to be a member of the group to read posts and contribute). You should familiarise yourself with the different types of Facebook groups at www.facebook.com (see https://bit.ly/2edP6VD).
(b) We want to remind you that by becoming a member of and participating in a private or closed Facebook group you agree and understand that
(i) you are also agreeing to Facebook’s (www.facebook.com) terms and conditions of use and acceptance of their various policies, including the privacy policy.
(ii) you should review your profile and your security settings
(iii) dependant on the groups you join, your profile is likely to be on our member’s list which is publicly available by and via Facebook
(c) Although we use our best endeavours to enable access to Facebook groups this is reliant on Facebook availability.
(7) Use of our Website is subject to our Website User Terms & Conditions.
3 WEBSITE SALES
This clause applies if you purchase any Services and/or Products directly from our website. Please also see our Website User Terms & Conditions.
SALES
(1) The price shown on the Website is exclusive of VAT since we are not registered for VAT and you must pay in full when you place the order. Payment must be made in GBP and our accepted payment methods are shown on the Website. Please check the terms and conditions of your payment provider.
(2) When you buy Digital Content from our Website (or we give you a free trial), you are buying/ receiving a licence to use it subject to the terms of our Licence at clause 7.
(3) Products, including Digital Content, which we supply on the Website are intended for your guidance only and should always be used for the intended purposes and in accordance with any applicable instructions, advice, guidance, licence and information and you should take all care and precautions to sure that they are adapted to reflect your needs. Where appropriate or where you feel necessary, please take relevant independent professional advice before using any Product.
ORDERING
(4) (a) When you place an order with us you will be deemed to have accepted all of the terms and conditions and policies as displayed on the Website at the time of order.
(b) Once we accept your order, we will provide you with an Order Confirmation. We reserve the right to refuse any order. Until you receive our Order Confirmation, if you are a Consumer, the law means you will be able to withdraw from your contract with us.
SUPPLY/DOWNLOAD AND CANCELLATION
(5) (a) Once you have purchased Products you will complete a registration process and receive an account with log-in details (Username and Password).
(b) It is your responsibility to download any Digital Content by following instructions which will be made available to you
(c) Consumers have cancellation rights – see clause 10(4). Therefore, Digital downloads will only be supplied during the 14 day cancellation period, unless you have given your express consent for this to happen.
(d) Where you have purchased Services from the Website please refer to the description of the Services and your Order Confirmation.
ACCOUNT, PASSWORD AND SECURITY
(6) (a) If you access any part of the Website after completing a registration process, then you are responsible for keeping your account details, the username and password, confidential.
(b) If you think there is a problem with the confidentiality of your account and/or details you must email us immediately by email at [email protected]
DISCOUNTS AND OFFERS
(7) (a) From time to time we may offer discount vouchers, codes, special offers, promotions or other types of offer (“Offers”) which may be made available to you when you place an order to buy from our Website.
(b) Offers are always subject to availability and under the terms and conditions of compliance of each offer are only available at our sole discretion. When you use any offer, you agree to be bound by its terms and conditions.
(c) Offers are not retrospective, not transferable and cannot be exchanged for cash.
(d) You can only use one offer for each order – offers available on the Website cannot be used in conjunction with any other offer you may find.
(e) We reserve the right to change the terms and conditions of any offer and can cancel or withdraw offers at any time, without notice.
4 FEES AND PAYMENT
Unless we agree otherwise in writing
(1) (a) Our fees for the relevant Services and Products are subject to VAT, where applicable, and are as shown on the relevant Proposal
(b) Where payment terms have not been specified on the Proposal or otherwise in writing, then all invoices are due for payment within 14 days of the date of the invoice and must be paid before Services will be delivered
(c) Any deposits paid are non-refundable.
(2)(a) Where any Proposal or invoice includes any expenses which we have agreed to incur on your behalf they will usually be charged at the rate which they were incurred by us, but on the basis shown at Appendix 2.
(b) Unless otherwise agreed, expenses are payable by Bank Transfer within 14 days of the date of invoice. Where payment is unpaid, we will not incur any further expenses on your behalf, and this will delay the supply of our Services.
(c) Where you cancel or reschedule our Services you are responsible for all associated expenses incurred. Please also see clause 2(4) and clause 10.
(3) any Additional Services to be supplied will be agreed in writing between us and will be subject to additional cost, either as detailed in the relevant Proposal or as otherwise agreed between us. Where we have not reached agreement as to the extra costs, then any Additional Services will be charged or at our usual rates for those Services provided.
(4) Unless specified otherwise, including, but not limited to, in this clause or in the relevant Proposal, payment should be made in GBP by Bank Transfer using the details provided on the relevant invoice.
(5) Where payment or any part-payment due to us is overdue (such as if there are problems with the payment method or the payment does not clear on time), then we reserve the right to
(a) immediately, and without liability, either cease the Services or suspend the provision of any Services and/or Products until we receive full cleared payment. No rights will pass to you until such time as we have received full cleared payment for all sums outstanding to us.
(b) charge interest at the rate of 15% per annum from the date of invoice to the actual date of cleared payment of the outstanding amount, together with any statutory late payment penalty available. We may also recover reasonable costs including, but not limited to, legal costs and expenses incurred in obtaining payment.
5 CLIENT’S OBLIGATIONS
(1) To enable us to provide services to you, you will comply with the relevant Proposal and all and any special terms contained within it and:
(a) will co-operate with us, including co-operation from your personnel, within 4 working days from our request or such longer period that we deem to be reasonable by
(i) responding to emails and/or other communications and
(ii) where applicable deal with our Nominated Persons.
(iii) providing any complete data, documents, information and/or materials, support, access to hardware and software (complete with passwords and any other relevant security information) and other facilities we determine to be necessary. Services will be provided appropriate only to data, information, documentation, access to hardware and software and anything which you provide to us.
(iv) where you have not responded to any emails and/or other communications or provided what we require in order to provide Services to you within 14 working days of our communication or request, we reserve the right to terminate our agreement and prepare a final invoice for all Services and Products agreed in the relevant Proposal.
(b) (i) will ensure that any data, documentation, information, access to hardware and software and anything which you supply to us, in whatever format, will be complete, true, accurate and valid, will not breach any rights of any of your personnel nor any third party, whatsoever in nature (including but not limited to copyright or other intellectual property rights) and is not contrary to any law and you will neither omit nor withhold any data, information or documentation required nor change any data, information or documentation that would cause it to be, or appear to be, false or inaccurate and you will ensure it is virus-free. For the avoidance of any doubt you agree that you will, where applicable, obtain the consent of all personnel and comply with the Data Protection legislation subsisting in England and Wales at the time that we provide the Services to you. Furthermore, you specifically agree to notify us immediately if you become aware of any error or change in respect of anything whatsoever which you have supplied to us.
(ii) agree that if your personnel provide their own information (such as opinions) to us during the provisions of Services then that will be provided to you only as part of our aggregate feedback (i.e., not identifying any particular individual). If you require individual information that your personnel have provided it is your responsibility to obtain the individual’s permission before requesting this from us.
(c) understand that it will always remain your responsibility to retain, as applicable, up to date copies and/or back-ups of anything which you supply to us or allow us access to and, unless it specifically forms part of the relevant Proposal, it is not our responsibility to retain any copies or back-ups for you.
(d) (i) expressly give us permission to use any software and hardware applicable to the provision of the Services and to deal with the relevant third-party providers and place reliance on the input from third party providers. For the avoidance of any doubt this may include us liaising with your third-party providers to obtain advice and follow instructions in order to provide you with our Services.
(ii) comply with all and any agreement with any relevant third-party providers which relates to the Services.
(iii) have obtained all and any permission, consents and anything similar required prior to the supply of the Services (for example consent to access software or from joint owners). Unless specified in the relevant Proposal, you are responsible for any associated costs.
(e) grant us a non-exclusive, worldwide and royalty-free sub-licensable licence for the whole of any agreement between us, if applicable, to access, edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, copy, create derivative works from, distribute, perform, display and otherwise use anything which you provide to us as necessary solely for the purposes of operating and providing our Services to you.
(f) will be solely responsible for
(i) any participation of and instructions, actions and/or omissions by your personnel, including, but not limited to, your Nominated Persons and all personnel.
(ii) the use of any Services and/or Products supplied, including, but not limited to use by your employees or those working with you, and confirm that you will comply with all relevant applicable statutes and statutory regulations that relate to the Services.
(2) You understand that it is always your responsibility to check anything we provide to you (such as reports) within 3 working days of receipt. If you believe there to be any errors or have any queries, you must email us at [email protected]. immediately and no later than 2 working days after you received it from us.
(3) You agree that you will not approach any individual providing Services to you on our behalf to attempt to employ them and/or provide Services directly to you (i.e. where the invoice and payment are not made to us) if those services are of a similar type to the Services our Organisation supplies.
(4) You undertake to indemnify and keep us fully indemnified at all times from and against any actions, proceedings, claims, demands, costs (to include, without prejudicing the generality of this clause, legal costs), awards or damages howsoever arising directly or indirectly as a result of any breach or non-performance by you of any of your obligations, undertakings or warranties as set out within this Agreement, Proposals or as otherwise agreed with you. For the avoidance of any doubt this includes, but not limited to, actions taken by anyone who is or has been employed by you.
6 SUPPLIER’S OBLIGATIONS FOR PERFORMANCE OF SERVICES
(1)(a)(i) We will perform the Services to the best of our ability, with reasonable skill and care and to a reasonable standard in accordance with relevant recognised standards and codes of practice. Services are provided on the basis of information supplied by you and on your behalf.
(ii) Our Services do not constitute any legal, financial or medical advice and it is imperative that you take your own independent advice before making any decisions.
(b) Timelines and limits provided are estimates only. We are committed to ethical business and will use our reasonable endeavours to supply the Services within any estimates provided but we will not be liable for any consequences, expenses, damage or any loss whatsoever suffered because of any unavoidable or reasonable delay, including third party involvement and any failure on your part or where we, at our sole discretion, determine that the Services cannot proceed because it would be unethical or inappropriate to do so.
(2) In order to effectively supply the Services, we
(a) will check that we have received data, documents, information that we require from you and will contact you (usually by telephone or email) where we have not received anything that we require. However, this is merely a prompt and you should not rely on this. It remains your sole responsibility to provide us with the required data, documents, information when needed.
(b) (i) will provide you with as much notice as is possible if we need to reschedule any sessions and
(ii) reserve the right to suspend Services and to procure the services of any other persons and/or organisations with suitable skills and experience and use alternative venues as may be necessary from time to time. This includes any Key Contact and/or Nominated Person.
(c) respond to any queries you raise in a timely manner and usually within 4 working days.
(d) may refuse to handle any data, information or documentation which we, in our absolute discretion, deem to be illegal or controversial, and we reserve the right to terminate this agreement without notice
(3) Where specified on any Proposal we deal with your Nominated Persons as we provide the services to you and we reserve the right to refuse participation or not to work with any specific individual.
(4) Unless we agree otherwise, we will be responsible for
(a) the reservation, advance payment and all associated costs of travel on the basis outlined in clause 4(2) and Appendix 2.
(b) valid and comprehensive insurance for all personal travel needs and equipment which is provided by us as part of the Services
(5) (a) Where we have agreed that the Services will take place from your premises or premises you have agreed to arrange, you are responsible for ensuring that the premises are available and are safe and suitable for use and that any equipment agreed is available for us to provide the Services.
(b) Unless we have agreed otherwise, where we have agreed that the Services will take place from a venue we arrange, then you will be solely responsible for any charges due if you decide to cancel, rearrange or change that venue.
(6) We make no warranty against electronic virus, worms or any other fault or defect or problems which may occur or as a result thereof, of anything we send to you or which you download from or via the Website or as part of any Digital Content.
(7) If we have specifically agreed to supply any data, information, report or documentation, they will be in whatever format and contain the information that we, in our sole and absolute discretion, deem appropriate. This is usually sent electronically but we reserve the right to use any other method.
(8) We maintain the following insurances
(a) Professional indemnity insurance to the risk value of £1,000,000 GBP.
(b) Cyber and Data insurance to the risk value of £250,000 GBP.
7 INTELLECTUAL PROPERTY RIGHTS AND LICENCE
Unless we agree otherwise in writing
(1) (a) We retain all the Intellectual Property Rights in anything we supply to you. This includes any Intellectual Property Rights in any documents, know-how, methodologies and management tools and any development or modification made and results produced during the Services.
(b) Upon cleared full payment we grant you a world-wide, royalty-free, non-exclusive licence to use anything we supply to you for the purposes we supplied them and for the duration of our agreement and will automatically terminate when that agreement ends.
(c) Where we have specifically created and/or developed work for you and have agreed on this in writing, we will assign any Intellectual Property Rights to you upon cleared payment of all monies due to us and will, at your expense, assist you in any administration required to assign those rights.
(2) You will at all times be responsible for all use of the intellectual property licenced to you (and, if you are buying on behalf of an organisation you are responsible for each of the individual users) and must keep it under your effective control, maintaining adequate security measures to protect it from access or use by any unauthorised use and/or user.
(3) You cannot take any audio or visual recording of any part of our Services (including any part of any programme) unless you have our prior written consent. Any recording can then only be used in accordance with the terms of that consent.
8 CONFIDENTIALITY
(1) We both agree to keep any confidential information obtained from each other or about each other during the provision of the Services and, other than to provide the Services and subject to the terms of our agreement, including, but not limited to clause 9, will not disclose it to any third party, unless we both agree or as required by law or Court Order.
(2) (a) As relevant we both agree that all data with be handled and used in accordance with the current Data Protection legislation in England and Wales.
(b) We will process your data in accordance with our Privacy Policy.
9 MARKETING COMMUNICATIONS
(1) You consent to us including a reference to having provided Services to you (your name and the fact that we have provided Services to you and the impact of those services, but not the exact nature of those Services) as part of any promotion and marketing of our business. This will include, but is not limited to, featuring it on our Website.
10 ENDING (TERMINATING) OUR SERVICES – INCLUDING CONSUMER RIGHTS
This clause refers to ending the supply of our services to you. For cancellation and scheduling of individual sessions, please see clause 2(4).
(1) Our agreement will continue until terminated by either of us in accordance with our agreement.
(2) Complaints (a) Where you have an issue regarding our Services which does or may amount to a complaint, you should formally advise us on written Notice, in accordance with clause 13(4), using our main email or postal address at Clause 1(20) above within 2 working days of any such issue arising and allow us 30 days to deal with that issue.
(b) You are not entitled to withhold any payment, or part of it, from us.
(c) We both agree to attempt to settle any dispute in good faith.
(3) If one of us commits a material breach of this Agreement and either:
(a) The breach is not capable of being rectified (remedied); or,
(b) Where it is capable of being remedied, the breach has not been remedied within 30 days of written notice of the breach by the party who has not committed the breach,
then the party who has not committed the breach may immediately terminate the Agreement forthwith by written notice to the other party.
(4) Consumer Cancellations of agreement
(a) Consumer rights legislation means that consumers who buy at a distance (such as by email or phone or from a website) have the right to cancel some orders. If this applies, then, you usually have 14 days from the date after you place your order to change your mind and cancel the order.
(b) If we have already started to supply Services then you will have to pay for the value of the services provided up to the point you cancel. If you are unsure as to whether you are a consumer please check this before placing your order. You can contact us by email or post – see clause 1(20)
(c) Digital downloads will not be supplied during the 14-day cancellation period, unless you have given your express consent for this to happen.
(5) Other termination – Other than as provided for elsewhere within this clause 10, either party may end (terminate) this Agreement (as regards to some or all of the Services) at any time, for any reason, by giving to the other 30 days’ written notice. However, unless we’ve agreed otherwise in writing, where you end (terminate) the agreement:
(a) Any payment already made for deposit, and set-up fees, pre-paid fees or Services supplied up to the date of termination is non-refundable.
(b) You remain responsible for the payment of any fees and non-refundable expenses agreed in respect of each and every Proposal which has not been fully paid for.
(c) Where we have agreed a minimum duration for the supply of Services you cannot terminate our agreement until that minimum duration has expired. This means, for example, that an agreement which has a minimum duration of 6 months cannot be cancelled until after the end of the 6 months. You can terminate a minimum duration agreement by giving us 30 days written notice, but you will still be liable to make payment until the minimum duration has expired.
(6) Subject to clause 10(4), when your agreement with us terminates you are also responsible for payments due for any third-party costs to which you have previously agreed unless we can obtain a full refund from the relevant third party.
(7) Any agreement will automatically terminate if either of us, as applicable, passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect, or ceases to carry on its business or substantially the whole of its business, or is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors, or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
(8) On any termination, we both agree to work together to ensure a smooth transition to finalise our agreement and, unless we agree otherwise in writing, we reserve the right to charge you fees or at our usual rates for any Additional Services provided.
11 LIMITATION OF LIABILITY
In so far as the law allows:
(1) Nothing in our Agreement shall exclude or limit our liability for death or personal injury resulting from our negligence or that of our employees or agents.
(2) We will never be liable for any indirect, incidental or consequential loss or damage, including any economic loss or loss of profit or business whatsoever suffered by you or any third party howsoever caused, including as a result of any negligence, breach of contract, misrepresentation or otherwise.
(3) Unless specifically provided for on any relevant Proposal, time is not of the essence and time limits provided are estimates only. Please see clause 6(1)(b). For the avoidance of any doubt, we will not be liable to you in respect of any failure to complete any Services by any agreed date.
(4) Your remedies are limited to damages which in no circumstance whatsoever will exceed the amount paid and received by us for those Services and/or Products.
12 DATA PROTECTION
Subject to the other terms of our agreement and in so far as Data Protection applies to our agreement and to each of us as a result of our agreement:
(1) In this clause “controller”, “processor”, “data subject”, “personal data”, “sub-processor” and “processing” shall have the same meanings as set out in Article 4 of the GDPR.
(2) We both undertake that we will at all times comply with the applicable provisions of the GDPR, together with any other applicable data protection legislation in relation to personal data and as applicable to our respective businesses.
(3) We both agree that, for the purposes of our Agreement, you remain the controller in respect of any personal data that you provide to us in order to provide the Services and we are the processor.
(4) Without prejudice to the generality of sub-clause 12(2) above, in relation to personal data processed in connection with this Agreement and in so far as it is applicable:
- We will both:
(i) ensure that we have in place all appropriate technical and organisational measures, reviewed and approved by the other party if required, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measure adopted by it);
(ii) assist the other party, at the other party’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
(iii) notify the other party without undue delay, and in any event within 24 hours from the time the notifying party becomes aware of that personal data breach.
(iv) maintain complete and accurate records and information to demonstrate its compliance with this clause 12 and allow for audits by the other party and/or their designated auditor.
(v) agree that the Nominated Person for each of us will be the point of contact for all issues arising out of the Data Protection Legislation.
(vi) Each of us will indemnify the other against all claims and proceedings and all liability, loss, costs and expenses incurred by the other as a result of any claim made or brought by a data subject or other legal person in respect of any loss, damage or distress caused to them as a result of that party’s unauthorised processing, unlawful processing, destruction of and/or damage to any personal data processed by that party, its employees or agents.
(b) We, the supplier, will:
(i) process personal data to provide the agreed Services to you and on your additional written instructions (as contained within our agreement or otherwise) unless we are required by the laws of any member of the European Union or by the laws of the European Union applicable to us to process personal data (“Applicable Laws”). Where we are relying on laws of a member of the European Union or European Union law as the basis for processing personal data, we will promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from notifying you.
(ii) comply with the requirements for sub-processing as required by GDPR, including, but not limited to, Article 28(4) and will carry out adequate due diligence to ensure that any Subprocessor is capable of providing the level of protection to meet the requirements of GDPR. We will not engage any sub-processor other than one who has already been agreed by you at the date of this agreement, as shown in Appendix 2 without giving at least 14 days specific written Notice of any intended changes.
(iii) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential.
(iv) at your written direction, delete or return personal data and copies thereof to you on termination of the Agreement unless required by Applicable Law to store the Personal Data.
(c) You, the Client:
(i) will ensure that you have all necessary lawful basis and applicable consents and notices in place to enable lawful transfer of any personal data to us for the duration and purposes of our agreement.
(ii) hereby provide your written consent to transfer any personal data outside the European Economic Area on the basis that the following conditions are fulfilled by us:
- we have provided appropriate safeguards in relation to the transfer
- the data subject has enforceable rights and effective legal remedies
- we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred, and
- we will comply with reasonable instructions that you notify us in advance with respect to the processing of personal data
(5) The provisions of this Clause 12 will survive indefinitely, including, without limitation, in the event of termination of our agreement.
13 GENERALLY
(1) Assignment – You specifically agree that you cannot transfer, sell or share any rights provided by our Agreement in any way and nobody else can benefit but you without our express written consent.
(2) Third-party rights – Nothing in our Agreement is intended to give any benefit to any third party (whether referred to herein by name, class, description or otherwise) or any right to enforce any Agreement with us.
(3) You agree that nothing in our Agreement will be deemed to create any partnership, joint venture or agency relationship between us.
(4) Notices should be sent to the email and/or postal addresses provided in the Proposal and will be deemed to be received when
- Sent by email – on the working day on which they were sent provided the sender has a valid successful delivery receipt.
- Sent by post by any tracked service, on the date that the relevant postal service obtains a record of receipt from or on behalf of the addressee.
(5) Signing – (a) Any agreement between the parties can be executed in any number of counterparts, and on separate counterparts, each of which shall be deemed an original, but the agreement shall not be effective until each party has executed at least one counterpart.
(b) The counterparts of our agreement, any Proposal and all and any accompanying or ancillary documents may be executed by electronic signature and delivery by electronic means by one party to the other and the receiving party may rely on the receipt of such document so executed and delivered as if the original had been received.
(6) Force Majeure – We will not be liable for any delay or failure to perform any of our obligations if the delay or failure results from events or circumstances outside our reasonable control including, but not limited to, acts of God, accidents, war, fire, strikes, lock outs, failure of any communications including telecommunications or computer system, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and we are entitled to a reasonable extension of our obligations.
(7) Waiver –Nothing in our Agreement and no express or implied waiver by us in enforcing any of our rights shall prejudice our rights to do so in the future.
(8) Invalidity – Each clause or any part at all of our Agreement is to be regarded as independent of the others. This means that should any clause or any part at all of our Agreement be found to be unenforceable or invalid, it will be severed and will not affect the enforceability or validity of the rest of our Agreement.
(7) Governing Law and Jurisdiction – Our Agreement shall be interpreted, construed and enforced in accordance with English law and shall be subject to the exclusive jurisdiction of the English Courts.
APPENDIX 1 – SUBPROCESSORS
Subprocessors are Suppliers who are data processors who provide services to us and with whom we have agreements in place so that they cannot process your data unless we have instructed them to. This includes professionals such as accountants, banks, software providers for accounts and general administration of our business and individuals and businesses who help us to deliver our services.
The following is a list of our Subprocessors – please refer to clause 12(4)(b)(ii) of our terms and conditions.
Caroline Brown Online – Online Business Manager
Lisa Gardner VA – Virtual Assistant
Loud and Clear Accounting – Accountant
Meir Digital – Website maintenance
Kelly Kemp Creative – Web developer
Indie Essentials – Copywriter
Software Providers:
| Microsoft | Voxer |
| Zoom | DocSketch |
| LearnDash | |
| LastPass | Stipe |
| Book Like a Boss | Zapier |
| QuickBooks | Canva |
| Barclays | Vimeo |
| Go Cardless | Active Campaign |
| Trello | Apple |
| Siteground | Thrivecart |
| PayPal | 1Password |
APPENDIX 2 – EXPENSES
Unless we have agreed otherwise in writing, where any proposal or invoice includes any expenses which we have agreed to incur on your behalf they will usually be charged at the rate which they were incurred by us, but on the basis shown below:
(1) Airline Travel – Flights which are scheduled to be up to 5 hours 59 minutes duration are charged at economy class. Flights over 6 hours will be at least in business class or the airline providers equivalent class.
(2) Train Travel – 1st class or equivalent
(3) Travel by car – Mileage is charged from our main trading address at 1 Chestnut End, Headley, Bordon, Hampshire, GU35 8NA at the rate of 45p for each mile that has been travelled as calculated on the shortest viable route shown on Google Maps.
(4) Hotel accommodation will hold at least 3-star rating will be charged when we are required to attend face to face meetings or sessions which are located over 50 miles of the travelling distance from our main trading address at 1 Chestnut End, Headley, Bordon, Hampshire, GU35 8NA, as calculated on the shortest viable route shown on Google Maps. Where friends and family accommodate us, then you will be charged a flat rate of £30 per night
(5) Subsistence is charged at the rate of £50 for one full day or £50 for less than one full day. Where applicable, VAT will also be charged.
(6) Where relevant and possible, we will provide you with receipts – for example, an invoice from a hotel or a train ticket.
Last updated: 27 September 2021