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
Client – means the party who purchases or agrees to purchase the Services identified in the Quotation documents supplied by OHS
Company – shall mean OHS Ltd
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 3rd Floor, 21 York Place, Leeds, LS1 2EX
Premises – the Client’s premises at which the Services may be provided
Purchase Order – the order placed by the Client 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 the Company and issued to the Client. 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. The company reserves the right to amend or withdraw the offer.
Services – the services to be supplied by OHS to the Purchaser/Client, 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.
- Basis of contract
2.1 A legally binding contract shall only come into existence when the Client 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.
- 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, or which do not materially affect the nature or quality of the Services, on the basis that the Purchaser agrees to bear the costs of any additional works reasonably required to be undertaken at Company’s standard rates or such rates as otherwise agreed in writing.
3.3 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. The company shall not, however, be liable for any damage to services and structures that are not disclosed to the Company’s attention or are not located as shown on any plans which are provided to the company.
- Purchaser’s obligations
4.1 The Purchaser shall:
4.1.1 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;
4.1.2 co-operate with OHS in all matters relating to the Services;
4.1.3 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 Client’s staff familiar with the Premises and the safety procedures.
4.1.4 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
4.1.5 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
4.1.6 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
4.1.7 hereby acknowledges that the Services provided by OHS in accordance with this contract will not absolve the Client from any obligations, including statutory obligations
4.2 If OHS performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Purchaser or failure by the Purchaser to perform any relevant obligation (Purchaser Default):
4.2.1 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 prevents or delays OHS’s performance of its obligations;
4.2.2 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 by reason of a Purchaser Default; and
4.2.3 The Purchaser shall reimburse OHS on written demand for any costs or losses sustained or incurred by OHS arising directly or indirectly from the Purchaser Default.
- Charges and payment
5.1 The Charges for the Services shall be as set out in the Quotation Document.
5.2 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.
5.3 OHS shall invoice the Purchaser at any time after the Contract has come into force.
5.4 The Purchaser shall pay each invoice submitted by OHS:
5.4.1 within 30 days of the date of the invoice unless otherwise agreed by the Commercial Manager
5.4.2 in full and in cleared funds to OHS bank account, details of which will be set out on the invoice
5.5 Time for payment shall be of the essence of the Contract.
5.6 Emergency attendance on site (with less than 7 days’ notice) will incur an additional charge of 25% in addition to the total value of works.
5.7 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.
5.8 If the Purchaser fails to make any payment due to OHS under the Contract by the due date for payment, then the Purchaser shall pay interest on the overdue amount at the rate of 8% 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.
5.9 The Purchaser 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). OHS may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Purchaser against any amount payable by OHS to the Purchaser.
- Intellectual Property Rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services are and shall be owned by OHS.
6.2 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.
6.3 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.
6.4 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):
6.4.1 not to copy any of the Training Materials except where such copying is incidental or necessary for the purposes of completing the relevant Course;
6.4.2 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Training Materials
6.4.3 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;
6.4.4 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;
6.4.5 to include the copyright notice of OHS on all permitted entire and partial copies it may make of the Training Materials on any medium;
6.4.6 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.
6.5 The Client hereby grants OHS Ltd a royalty-free, non-exclusive and irrevocable licence to copy and use any material provided by the Client for all reasonable purposes related to the Services. The Client 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.
- Limitation of liability
8.1 Nothing in these Conditions shall limit or exclude OHS’s liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;
8.1.2 fraud or fraudulent misrepresentation; or
8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 OHS shall not be liable under, or in connection with, this Contract or any collateral contract for:
8.2.1 loss of income;
8.2.2 loss of profits or contracts;
8.2.3 business interruption;
8.2.4 loss of the use of money or anticipated savings;
8.2.5 loss of information;
8.2.6 loss of opportunity or damage to goodwill or reputation;
8.2.7 loss of, damage to or corruption of data; or
8.2.8 any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.
8.3 Subject to Clause 8.2 above, without prejudice to the reminder of this clause, the Company shall be liable to the Client for such direct losses as are attributed directly to the Company’s defective work, limited to an aggregate amount equivalent to ten times the value of the Services provided. OHS’s maximum aggregate liability under or in connection with this agreement or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to £1,000,000. Or the client in relation to the Contract shall not exceed 200% of the Fee received in cleared funds by the Company under the Contract. To the extent that any liability of the Company to the Client would be met by any insurance of the Company then the liability of the Company shall be extended to the extent that such liability is met by such insurance.
The Company shall have no further liability to the Client, its servants or agents in connection with the Work.
8.4 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.
8.5 This clause 8 shall survive termination of the Contract.
- Notice by Purchaser to cancel Services
9.1 The Purchaser may give notice in writing at any time that it does not wish to proceed with the Services.
9.2 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|
10.1 OHS may terminate this Contract immediately by written notice to the Purchaser if:
10.1.1 the Purchaser commits a material or persistent breach of this agreement which it fails to remedy (if remediable) within 14 days after the service of written notice requiring it to do so; or
10.1.2 the Purchaser 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.
- Consequences of termination
11.1 On termination of this agreement by OHS for any reason:
11.1.1 The Purchaser shall immediately pay to OHS all of OHS’s outstanding 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;
11.1.2 The Purchaser shall return all OHS Property, If the Purchaser fails to do so, then OHS may enter the Purchaser’s premises and take possession of it. 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;
11.1.3 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
11.1.4 clauses which expressly or by implication survive termination shall continue in full force and effect.
- Force majeure
12.1 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, 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.
12.2 OHS shall not be liable to the Purchaser as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
- Assignment and other dealings
13.1 OHS 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 and may sub-contract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
13.2 The Purchaser shall not assign, transfer, mortgage, charge, subcontract, deal in any other manner with any or all of its rights or obligations under the Contract.
14.1 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.
14.2 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.
14.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
- Waiver and Variation
15.1 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.
15.2 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 OHS.