"Business Day" means Monday to Friday (inclusive) excluding bank and public holidays in England;
"Charges" means the charges payable by the Client for the supply of the Services in accordance with clause 5;
"Conditions" means these terms and conditions as amended from time to time in accordance with clause 12.4;
"Contract" means the contract between Talent Check and the Client for the supply of the Services in accordance with these Conditions;
"Client" means the person or firm who purchases the Services from Talent Check;
"Intellectual Property Rights" means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
"Order" means the Client's order for the Services submitted through the Client's written or verbal acceptance of the Proposal;
"Services" means talent management training, support workshops, consultancy services and/or any other services supplied by Talent Check to the Client as set out in the Proposal;
"Proposal" means the description or specification of the Services provided in writing by Talent Check to the Client including, details of the Charges; and
"Talent Check" means Talent Check Limited registered in England and Wales with company number 10406016.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes email.
2. Basis of contract
2.1 The Order constitutes an offer by the Client to purchase the Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Talent Check issues written acceptance of the Order at which point and on which date the Contract shall come into existence.
2.3 Any descriptive matter or advertising issued by Talent Check, and any descriptions or illustrations contained on Talent Check's website (or elsewhere), are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 The Proposal shall not constitute an offer.
3. Supply of Services
3.1 Talent Check shall supply the Services to the Client in accordance with the Proposal (as updated by agreement between the parties from time to time) in all material respects.
3.2 Talent Check shall use reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Talent Check shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Talent Check shall notify the Client in any such event.
3.4 Talent Check shall be entitled to supply the Services to the Client via its employees or any other sub-contracted representative that it considers, in its reasonable opinion, to be suitable.
3.5 Talent Check warrants to the Client that the Services will be provided using reasonable care and skill.
4. Client's obligations
4.1 The Client shall:
(a) ensure that the terms of the Order and any information it provides in the Proposal are complete and accurate;
(b) co-operate with Talent Check in all matters relating to the Services;
(c) provide Talent Check, its employees, agents, consultants and subcontractors, with access to the Client's premises, office accommodation and other facilities as required by Talent Check on the dates specified in the Proposal or otherwise agreed in writing to allow the supply of the Services;
(d) provide Talent Check with such information and materials as Talent Check may reasonably require in order to supply the Services, and ensure that such information is complete and accurate;
(e) where the Services are being supplied at the Client's premises, prepare the Client's premises for the supply of the Services;
(f) where the Services are being supplied at a third party's premises, ensure, at the Client's cost, that such premises are suitable for the supply of Services including, obtaining all necessary licences and consents and preparing the premises for the supply of the Services;
(g) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and
(h) comply with any additional obligations as set out in the Proposal.
4.2 If Talent Check's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation ("Client Default"):
(a) Talent Check shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Talent Check's performance of any of its obligations;
(b) Talent Check shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Talent Check's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Client shall reimburse Talent Check on written demand for any costs or losses sustained or incurred by Talent Check arising directly or indirectly from the Client Default.
5. Charges and payment
5.1 Unless otherwise agreed between the parties in writing, the Charges for the Services shall be set out in the Proposal. The Charges shall be calculated in accordance with Talent Check's quoted hourly, daily and half daily fee rates set out in the Proposal. If the Services are supplied on the basis of a half day on a half daily rate and extend beyond a half day the client will be charged the quoted hourly rate thereafter.
5.2 Talent Check shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom Talent Check engages in connection with the Services including, but not limited to:
(a) mileage at the rate set out in the Proposal or where no rate is specified in accordance with HMRC's recommended rates;
(b) travelling expenses at standard fare rates and where possible booked in advance;
(c) where the Services are supplied over one or more sequential days, hotel costs and where possible booked in advance;
(d) subsistence and any associated expenses; and
(e) for the cost of services provided by third parties including the hiring of a premises for the supply of the Services and required by Talent Check for the performance of the Services.
Where practicable, these expenses will be agreed in advance with the Client.
5.3 Unless otherwise agreed in the Proposal, Talent Check shall invoice the Client for the Charges and other expenses under the Contract on completion of the Services or monthly in arrears, whichever is the earlier.
5.4 The Client shall pay each invoice submitted by Talent Check:
(a) within 10 Business Days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated by Talent Check, and
time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being ("VAT"). Where any taxable supply for VAT purposes is made under the Contract by Talent Check to the Client, the Client shall, on receipt of a valid VAT invoice from Talent Check, pay to Talent Check such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 If the Client fails to make any payment due to Talent Check under the Contract by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 4% per cent per annum above HSBC's base rate from time to time, which shall compound weekly. 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 Client shall pay the interest together with the overdue amount.
5.7 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Talent Check may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Talent Check to the Client.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Talent Check or its licensors (as applicable) (the "Talent Check Materials"). For the avoidance of doubt, the Talent Check Materials represent Talent Check's confidential information and should not be disclosed to any third party or any individuals within the Client's business that have not directly received the benefit of any consultancy or training provided as part of the Services.
6.2 The Client grants Talent Check a non-exclusive licence to use, copy and modify any materials or other information provided by the Client to Talent Check (the "Client Materials") as necessary to provide the Services and for its business purposes.
6.3 The Client shall keep Talent Check indemnified in full against any costs, expenses, damages and losses awarded against or incurred by or paid by Talent Check as a result of or in connection with any claim brought against Talent Check for infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use in the performance of the Contract of the Client's Materials.
6.4 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client's use of any such Intellectual Property Rights is conditional on Talent Check obtaining a written licence from the relevant licensor on such terms as will entitle Talent Check to license such rights to the Client.
7. Limitation of liability
7.1 Nothing in the Contract shall limit or exclude Talent Check's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) for any liability which cannot be limited or excluded by applicable law.
7.2 Subject to clause 7.1, Talent Check shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for: loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of damage to goodwill; and any indirect or consequential loss.
7.3 Subject to clause 7.1, Talent Check's total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the Charges paid under the Contract.
7.4 Except as expressly and specifically provided in the Contract, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
7.5 This clause 7 shall survive termination of the Contract.
8. Confidentiality and Data Protection
8.1 Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 8.1 ("Confidential Information").
8.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 8; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
8.4 The Client confirms that it has obtained and shall maintain all necessary consents to enable Talent Check to use any and all personal data (as such term is defined in the Data Protection Act 1998) supplied by the Client as necessary for the performance of the Services.
8.5 Talent Check agrees to comply with its security and data retention policy (available on request) as such document may be amended from time to time by Talent Check in its sole discretion
9.1 The Client may terminate the Contract by giving Talent Check written notice. Where written notice is issued by the Client pursuant to this clause 9.1, the Client shall pay Talent Check a cancellation fee of 100% of the Charges listed in the Proposal or otherwise agreed between the parties within 10 Business Days of the date of Talent's Checks invoice (which may be issued by Talent Check at any time following receipt of written notice from the Client under this clause 9.1).
9.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without limiting its other rights or remedies, Talent Check may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified to make such payment.
9.4 Without limiting its other rights or remedies, Talent Check may suspend provision of the Services under the Contract or any other contract between the Client and Talent Check if the Client becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(d) or Talent Check reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
10. Consequences of termination
On termination of the Contract for any reason:
(a) the Client shall immediately pay to Talent Check all of Talent Check's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Talent Check shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) each party shall, at the other party's request, destroy or return to the other party its Confidential Information;
(c) 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
(d) clauses which expressly or by implication survive termination shall continue in full force and effect.
11.1 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 or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
11.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am 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 email, one business day after the receipt of a successful transmission receipt.
11.3 The provisions of this clause 11 shall not apply to the service of any proceedings or other documents in any legal action.
12.1 Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2 The Client shall not, without the prior written consent of Talent Check, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
12.3 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Contract.
12.4 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.5 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not: waive that or any other right or remedy; or prevent or restrict the further exercise of that or any other right or remedy.
12.6 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.7 Talent Check may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
12.8 No one other than a party to the Contract shall have any right to enforce any of its terms.
12.9 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
12.10 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.