STANDARD TERMS AND CONDITIONS
1 DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following definitions apply:
“We”, “Us”, “Our” and similar expressions: means NK Performance a company incorporated in England and Wales under UTR number 9782939222 whose principal place of business is at 38 Station View, Nantwich, , United Kingdom CW5 7BL;
“You” “Your” and similar expressions means the business or individual who purchases the Services from Us and whose details are set out in the Order Form;
“Business Day”: means a day other than a Saturday, Sunday or bank or public holiday;
“Business Customer”: a customer that is not a Consumer;
“Candidate”: means an employee, officer, or associated person of a Corporate Customer;
“Conditions”: means Our terms and conditions of supply set out in this document;
“Confidential Information”: means any commercial, financial or technical information, information relating to the Course(s), plans, know-how or trade secrets which is obviously confidential or has been identified as such;
“Consumer“: means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession;
“Contract”: means the agreement between Us and You for the delivery of the Course, incorporating these Conditions and the Order Form (if any);
“Corporate Customer”: means a customer that is a business and is engaging us to provide the Course(s) to or for the benefit of its Candidates;
“Course”: means the specific training course set out in the Order and to be delivered by Us for Your benefit or, where applicable, any Online Courses;
“Data Protection Laws”: means, as binding on either party, the GDPR and the Data Protection Act 2018;
“Fee(s)”: has the meaning set out in clause 1;
“Force Majeure”: means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving Our or its suppliers’ workforce, but excluding Your inability to pay or circumstances resulting in Your inability to pay;
“GDPR”: means the General Data Protection Regulation, Regulation (EU) 2016/679;
“Intellectual Property Rights “: means copyright, rights related to copyright such as moral rights and performance rights, patents, rights and inventions, rights and confidential information, know-how, trade secrets, trade marks, geographical indications, service marks, trade names, design rights, rights in get up, database rights, databases, domain names, business names, rights in computer software, the right to sue for infringement, unfair competition and passing off, and all similar rights of whatever nature wherever in the world arising and, in each case whether registered or not, including any applications to protect or register such rights, including all renewals, extensions of such rights or applications whether vested, contingent or future and wherever existing;
“Location”: means the address(es) for delivery of the Course(s) as set out in the Order Form;
“Online Courses”: has the meaning set out in clause 1;
“Order Form”: means the order form setting out Your details and details of the Course together with any other relevant information which is issued by Us following a discussion pursuant to clause 3.2;
“Our Personnel”: means all employees, officers, staff, other workers, agents and consultants of Us and any of our sub-contractors who are engaged in the performance of the Services from time to time; and
“Personal Data”: shall have the meaning given to it in applicable Data Protection Laws from time to time;
“processing”: has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including “process”, “processing”, “processed”, and “processes” shall be construed accordingly);
“Protected Data”: means Personal Data received from You or on Your behalf in connection with the performance of Our obligations under the Contract;
“Specification”: means the description or specification of the Course(s) set out or referred to in the Order Form;
“VAT”: means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.
1.2 In these Conditions, unless the context requires otherwise:
1.2.1 any clause or other headings are included for convenience only and shall have no effect on interpretation;
1.2.2 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.3 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.4 words in the singular include the plural and vice versa;
1.2.5 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.6 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
2.1 These Conditions apply to and form part of the Contract between You and Us. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions delivered with, or contained in the signed Order Form, or any other document shall form part of the Contract except to the extent that We expressly otherwise agree in writing.
2.3 No variation of these Conditions or to an Order Form or to the Contract shall be binding unless expressly agreed in writing and executed by Us.
2.4 As the law relating to consumers and business customers is different, only certain clauses of these Conditions will apply to You. Their applicability is as follows:
2.4.1 the following clauses shall apply to all Customers: 1 to 5, 7, 8.1, 9 10.4, 10.5, 10.8 -10.10, 1], 12 to 17;
2.4.2 the following clauses shall apply only to Consumers: 10.3, 10.7;
2.4.3 the following clauses shall apply only to Business Customers: 8.2, 10.1, 10.2.
3.1 This clause 3 sets out how a legally binding Contract between You and Us is made.
3.2 We will discuss with you what your goals and expectations are in respect of our Courses and agree whether or not we can help you achieve these and what Course might be best for this.
3.3 Following our discussion as referred to in clause 3.1, we shall provide You with a contract pack containing an Order Form, a copy of these Conditions, and any other documentation or information that might be relevant.
3.4 If you are happy with the details set out in the contract pack you should sign and return the Order Form to Us and once You have signed the Order Form and we have received a signed copy a legally binding Contract will be in place between You and Us.
3.5 Notwithstanding the above, this clause 3 shall not apply to Contracts in respect of Online Courses and clause 9 shall apply instead.
4.1 The price for the Course(s) shall be as set out in the Order Form (the “Fees”).
4.2 The Fee(s) are exclusive of any applicable VAT which You shall pay.
5.1 You shall pay the Fee(s) on the date or dates set out in the Order Form. Unless otherwise agreed in writing, the Fee(s) shall be paid in full no later than 7 days prior to the start of the Course(s). Failure to pay by such may result in you being prevented from taking part in the Course(s).
5.2 In the case of online Courses or digital content, the Fee(s) shall be paid before you access the Course(s) and you will not be able to access the Course(s) until the Fee(s) are paid in full.
5.3 At any time prior to delivery of the Course, We shall have the right to cancel the Contract by giving You as much notice as possible. In the event of a cancellation, We will refund the Fee(s) in full and have no further liability to You.
6.1 A Consumer has the right to cancel a Contract within 14 days of it coming into effect without giving any reason.
6.2 The cancellation period will expire after 14 days from the day the Contract is made.
6.3 To exercise the right to cancel the Contract, You must inform Us of your decision to do so by a clear statement (e.g. a letter sent by post, fax or email). You can use the model cancellation form set out in the box below, but it is not obligatory.
To: NK Performance, 38 Station View, Nantwich CW5 7BL or email@example.com
I hereby give notice that I cancel my contract of sale of the following course
Ordered on [*]
Signature (only if this form is notified on paper)
[*] Delete as appropriate
6.4 To meet the cancellation deadline, it is sufficient for You to send Your communication concerning Your exercise of the right to cancel the Contract before the cancellation period has expired.
6.5 We will wait until the 14 day cancellation period referred to above is over before we provide the Course to you, unless:
6.5.1 you want us to provide the Course during the 14 day cancellation period;
6.5.2 we have agreed to do so; and
6.5.3 you have signed a written confirmation (a copy of which is set out in the box below) and given it to our representative (if you do this, the written confirmation which you signed will form part of this contract as though set out in full here)
Confirmation to start Course early:
The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 say that in most, cases you can cancel the Contract within 14 days. This may happen because you change your mind.
By signing this written confirmation and giving it to us, you agree that on your request we can start to provide the Course during the 14 day cancellation period.
You still have a right to change your mind and cancel the Contract during the 14 day cancellation period, however we will charge you for the cost of the Course carried out by us until the time when you tell us that you want to cancel the Contract. The amount we charge you will be in proportion to what we have carried out and expenses incurred in comparison with the full coverage of the Course.
You acknowledge however that you will lose the right to change your mind and cancel the Contract during the 14 day cancellation period once the Course has been fully carried out by us. If this happens we will charge you for the full cost of the Course carried out by us.
To: NK Performance, 38 Station View, CW5 7BL or firstname.lastname@example.org
I hereby give notice that I request you to supply of the following Course on the following date [*]
[*] delete/insert details as appropriate
6.6 If You cancel the Contract, We will reimburse the Fee(s) except where We are allowed to keep them such as where we have started carrying out the Course within the 14 day cancellation period and you have signed our written confirmation to do so (see clause 6.5 for more details).
6.7 We will make the reimbursement without undue delay, and not later than 14 days after the day on which We were informed about Your decision to cancel the Contract.
7.1 In relation to the Course(s), we shall:
7.1.1 provide such trainers to present the Course(s) as We, in our discretion, consider appropriate (and We shall be entitled to substitute any trainer with another trainer who We consider suitably qualified to present the relevant Course);
7.1.2 Ensure that the Course(s) achieve the goals notified to Us under clause 3.2; and
7.1.3 in the case of the Mastermind and Practical Training courses only, provide all Course materials;]
8 YOUR AND YOUR CANDIDATE’S OBLIGATIONS AND RESPONSIBILITES
8.1 In relation to the Course(s), You and/or Your Candidates (as the case may be) shall:
8.1.1 attend and participate in all activities required to participate in each Course(s);
8.1.2 respect other attendees on the Course(s) and demonstrate appropriate behaviour at all times, failing which We shall be entitled to remove You/Your Candidate(s) and following which no refunds will be due to You;
8.1.3 not participate in the Course(s) if You or they are not physically and mentally capable to do so.
8.2 Ahead of each Course where the Location is a Corporate Customer’s premises, the Corporate Customer will:
8.2.1 make the Location available for the delivery of the Course(s);
8.2.2 prepare the Location in accordance with Our instructions;
8.2.3 ensure that the Location is safe and suitable for delivery of the Course(s); and
8.2.4 provide Us with adequate instructions for performance,
9 ONLINE ONLY COURSE(S)
9.1 When you buy any of our online only course(s) (an “Online Course”) it will download automatically onto your computer or device. Please check the file size of your Online Course carefully as using too much data might mean that you exceed your data limit on your mobile phone and you could face paying more than you were expecting, particularly if you are using your mobile phone abroad.
9.2 You place an order for Online Courses by clicking on the link provided by Us in respect of your order. Please read and check your order carefully before submitting it. However, if you need to correct any errors you can do so before submitting it to us. In any event, before you place your order you must check that the hardware and software requirements of your computer or device mean that you can download the Online Course. Please click on the ‘key technical information’ button if you want to see the requirements.
9.3 When you place your order at the end of the online purchase process (e.g. when you click on the ‘pay now’ button), we will acknowledge it by email. This acknowledgement does not, however, mean that your order has been accepted.
9.4 We may contact you to say that we do not accept your order. This is typically for the following reasons:
9.4.1 the Online Course is unavailable;
9.4.2 we cannot authorise your payment; or
9.4.3 there has been a mistake on the pricing or description of the Online Course.
9.5 We will only accept your order when we email you to confirm this (a “Confirmation Email”). At this point a legally binding Contract will be in place between you and us.
9.6 Once you have clicked on the ‘Pay Now’ button and received the confirmation email you will be given the option to download the digital content by clicking on the link in the Confirmation Email.
9.7 If something happens which:
9.7.1 is outside of our control; and
9.7.2 affects you being able to download the Online Course,
we will let you have a revised time for when you can expect to be able to download the Online Course. If your computer or device blocks the automatic download of the Online Course or the automatic download does not start, you may still have the right to cancel the Contract.
9.8 Your credit card or debit card will only be charged when you start to download the digital content.
9.9 All payments by credit card or debit card need to be authorised by the relevant card issuer.
9.10 Notwithstanding clause 6, when you buy the Online Course you have no right to cancel this contract once the automatic downloading of the Online Course starts.
9.11 When you buy the Online Course and download it, you will not own it. Instead we give you permission to use it (also known as a ‘licence’) for the purpose of you using and enjoying it according to this Contract.
9.12 The Online Course:
9.12.1 is personal to you. You can use it wherever you want in the world but only if you comply with local laws;
9.12.2 is non-exclusive to you. We may supply the same or similar Online Course to others;
9.12.3 may not be:
184.108.40.206 copied by you except for a reasonable number of necessary back-ups;
220.127.116.11 changed by you (which means, in particular, that you are not allowed to adapt, reverse-engineer or decompile it);
9.12.4 contains information which is owned by us or third parties or both. You must not conceal, change or remove any markings which show who owns this information.
9.13 Except where you have permission to use the Online Content under this clause 9, you will not obtain any rights of ownership or other rights (of whatever nature) in the digital content or any copies of it.
10.1 If you are a Business Customer we warrant that the Course(s) shall:
10.1.1 in all material respects match the Specification;
10.1.2 be delivered with reasonable care and skill.
10.2 We shall, at our option, remedy, re-perform the Course(s) or refund the Fee(s) in the event that a Course does not comply with clause 10.1, provided that:
10.2.1 You serve a written notice on Us not later than five Business Days from delivery of the Course; and
10.2.2 such notice specifies that the Course did not comply clause 10.1 and identifies in sufficient detail the reasons for such non-compliance.
10.3 If you are a Consumer then the Consumer Rights Act 2015 gives you certain legal rights (also known as ‘statutory rights’), for example, that the Course(s):
10.3.1 are of satisfactory quality;
10.3.2 are delivered with reasonable care and skill;
10.3.3 are fit for purpose; and
10.3.4 match their Specification.
and we will provide you with Course(s) that comply with your legal rights. If you consider that a Course does not comply with this clause 10.3 then contact us using the contact details on our website, if you want:
10.3.5 us to repeat the Course;
10.3.6 us to correct or remedy any errors or mistakes within the Course;
10.3.7 a price reduction; or
10.3.8 a refund.
10.4 Whether you are a Business Customer or Consumer, when we supply any Online Course(s):
10.4.1 we will use all reasonable efforts to ensure that they are free from defects, viruses and other malicious content;
10.4.2 we do not promise that they are compatible with any third party software or equipment except where we have said so; and
10.4.3 you acknowledge that there may be minor errors or bugs in them.
10.5 Please contact us using the contact details above, if you want:
10.5.1 us to correct any errors with the Online Course;
10.5.2 us to replace the Online Course;
10.5.3 a price reduction; or
10.5.4 to reject the Online Course and get a refund.
10.6 To avoid faults in the Online Course happening, you must use it only on the recommended third party software and equipment set out on our website.
10.7 Nothing in this contract affects your legal rights under the Consumer Rights Act 2015 (also known as ‘statutory rights’) if you are a Consumer. You may also have other rights in law.
10.8 You warrant that You have provided Us with all relevant, full and accurate information as to Your objectives to assist Us in the delivery of the Course.
10.9 Except as set out in this clause 10, We:
10.9.1 give no warranties and make no representations in relation to the content and effectiveness of the Course; and
10.9.2 shall have no liability for Our failure to comply with the warranty in clause 10.1,
and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
10.10 You acknowledge and understand that we do not guarantee any particular outcome(s) following the provision of the Course, including any particular level of business or financial success. The outcomes that are achievable and/or actually achieved are dependent on a number of external factors of which we have no control (including the amount of effort made by You/Your Candidate and implementation of the skills learnt on the Course following its conclusion) and therefore any and all guarantees of any outcomes (implied or express) are expressly excluded.
11.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.
11.2 Subject to clause 11.4, Our total liability shall not exceed the amount of the Fee(s) actually paid.
11.3 Subject to clause 11.4, We shall not be liable for losses that were not foreseeable to You and Us when the Contract was formed, consequential, indirect or special losses, loss of profit, loss or corruption of data, loss of use, loss of production, loss of contract, loss of opportunity, loss of savings, discount or rebate (whether actual or anticipated), harm to reputation or loss of goodwill or losses that were not caused by any breach on our part.
11.4 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
11.4.1 death or personal injury caused by a party’s negligence;
11.4.2 fraud or fraudulent misrepresentation;
11.4.3 any other losses which cannot be excluded or limited by applicable law; and
11.4.4 any losses caused by wilful misconduct.
12.1 All materials supplied in connection with the Course(s) (“the Materials“), whether provided online or in person are owned by Us. All Intellectual Property Rights in the Materials including the design, graphics and text of all printed Materials and the audio of any webinars and podcasts, are owned by Us. When You and/or Your Candidate(s) (as appropriate) are given access to the Materials, You/they are granted a non-exclusive, non-transferable, revocable licence to use the Materials [for the duration of the Course only?]. No Materials may be copied, reproduced, uploaded, posted, displayed or linked to in any way, in whole or in part, without Our prior written permission. Any such use of the Materials in this way is strictly prohibited and will constitute an infringement of Our Intellectual Property Rights.
13.1 You shall keep confidential all of Our Confidential Information and the Confidential Information of other attendees on the Course(s) and shall only use the same as required to perform the Contract and/or participate in the Course.
13.2 This clause shall remain in force for a period of five years from the date of the Contract.
13.3 To the extent any Confidential Information is Protected Data (as defined in clause 14) such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any of the provisions of clause 13.1.
14.1.1 that alternative processing instructions are agreed between Us in writing; or
14.1.2 otherwise required by applicable law (and shall inform You of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest).
15.1 Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from a Force Majeure event. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so.
15.2 We shall be entitled to defer the date of delivery of the Course if We are prevented from delivery as a result of a Force Majeure event.
16.1 We may terminate the Contract at any time by giving notice in writing to You if:
16.1.1 You or Your Candidate commit a material breach of Contract and such breach is not remediable;
16.1.2 You or your Candidate commit a material breach of the Contract which is capable of being remedied and such breach is not remedied within 14 days of receiving written notice of such breach; or
16.1.3 You have failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 7 days before the start of the Course(s).
16.2 In the case of a Corporate Customer, You:
16.2.1 stop carrying on all or a significant part of Your business, or indicate in any way that You intend to do so;
16.2.2 are unable to pay Your debts either within the meaning of section 123 of the Insolvency Act 1986 or if We reasonably believe that to be the case;
16.2.3 become the subject of a company voluntary arrangement under the Insolvency Act 1986;
16.2.4 have a receiver, manager, administrator or administrative receiver appointed over all or any part of Your undertaking, assets or income;
16.2.5 have a resolution passed for Your winding up;
16.2.6 have a petition presented to any court for Your winding up or an application is made for an administration order, or any winding-up or administration order is made against You;
16.2.7 are subject to any procedure for the taking control of Your goods that is not withdrawn or discharged within seven days of that procedure being commenced;
16.2.8 have a freezing order made against You;
16.2.9 are subject to any recovery or attempted recovery of items supplied to You by a supplier retaining title to those items; or
16.2.10 are subject to any events or circumstances analogous to those in clauses 16.2.1 to 16.2.9 in any jurisdiction.
16.3 Termination or expiry of the Contract shall not affect any of Our accrued rights and liabilities at any time up to the date of termination.
17.1 Any notice given under these Conditions shall:
17.1.1 be in writing and in English;
17.1.2 be signed by, or on behalf of, the party giving it (except for notices sent by email); and
17.1.3 be sent to Your address set out in the Order Form or Our address set out at the beginning of these conditions.
17.2 Notices may be given, and are deemed received:
17.2.1 by hand: on receipt of a signature at the time of delivery;
17.2.2 by ROYAL MAIL RECORDED SIGNED FOR post: at 9.00 am on the SECOND Business Day after posting;
17.2.3 by email on receipt of a delivery receipt email from the correct address.
17.3 This clause does not apply to notices given in legal proceedings or arbitration.
17.4 We and You agree that the Contract constitutes the entire agreement between Us and supersedes all previous agreements, understandings and arrangements between Us, whether in writing or oral in respect of its subject matter.
17.5 We and You acknowledge that we have not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. Neither of us shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
17.6 Nothing in these Conditions purports to limit or exclude any liability for fraud.
17.7 No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by us, or on Our behalf.
17.8 You may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without Our prior written consent, which We may withhold or delay at Our absolute discretion.
17.9 No failure, delay or omission by either of us in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
17.10 No single or partial exercise of any right, power or remedy provided by law or under the Contract by either of us shall prevent any future exercise of it or the exercise of any other right, power or remedy by either of us.
17.11 A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
17.12 The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
17.13 We and You irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).