1.1 The following definitions and rules of interpretation apply in these Conditions.Business Day,Charges,Client,Client Default Commencement Date Conditions,Contract Data Protection Legislation a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;the charges payable by the Client for the supply of the Services in accordance with clause 6;the person or firm who purchases Services from MTS; has the meaning set out in clause 5.2;has the meaning given in clause 2.2;these terms and conditions as amended from time to time in accordance with clause 11;the contract between MTS and the Client for the supply of Services in accordance with these Conditions;all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;any deliverables as set out in the Order produced by MTS for the Client and, if any, course materials as provided by MTS to the Client;Deliverables 22139071.V3 Terms and Conditions for the Supply of Medical Training Services. 326981.0002 31/08/2018 Intellectual Property Rights patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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;MEDICAL TRAINING SOLUTIONS LTD, a company registered in England and Wales with registered company number 11073734 and whose registered address is at Rouen House, Rouen Road, Norwich, Norfolk NR1 1RB;A quotation for the supply of services in response to an enquiry from the Client;the provision of the Services where attendance at the training course is not restricted to employees, agents or representatives of one particular organisation;the Client’s order for Services as set out in the Client’s written acceptance of the MTS’ Quotation or as set out in the Client’s purchase (as the case may be);the provision of medical training services, including the Deliverables (if any) supplied by MTS to the Client as set out in the Specification; the description or specification of the Services provided by MTS to the Client in MTS’ Quotation;the appropriately medically qualified individual provided by MTS who will provide the training as MTS MTS’ Quotation Open Session Order Services Specification Trainer 22139071.V3 Terms and Conditions for the Supply of Medical Training Services. 326981.0002 31/08/2018 required under the Services.
1.2 A reference to a statute or statutory provision is a reference to it as amended or re- enacted and a reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.3 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 A reference to writing or written includes email.
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when MTS issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 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.
2.4 The provision of an MTS Quotation by MTS to the Client shall not constitute an offer, and is only valid for a period of three Business Days from its date of issue.
2.5 Any samples, drawings, descriptive matter or advertising issued by MTS, and any descriptions or illustrations contained in MTS’ brochures, website or any other marketing materials, 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.
3.1 MTS shall use its reasonable endeavours to supply the Services to the Client in
accordance with the Specification in all material respects.
3.2 MTS shall use its reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 MTS reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially
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affect the nature or quality of the Services, and MTS shall notify the Client in any such event.
3.4 MTS warrants to the Client that the Services will be provided using reasonable care and skill.
4.1 From time to time a training session provided as part of the Services (Relevant
Training Session) may have to be postponed due to either:
4.2 In the unlikely event that a training session has to be postponed for the reasons as set out in clause
4.3 In the event that the parties are unable to agree an alternative date pursuant to clause 4.2.3 within 10 Business Days of the original date of the Relevant Training Session, the Relevant Training Session shall be deemed cancelled and no charge shall be payable by the Client in respect of it.
4.4 The provision of this clause 4.2.4 or clause 4.3 shall be the Client’s sole remedies if an event as described in clause 4.1 occurs.
5.1 The Client shall:
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5.2 If MTS’ 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):
6.1 MTS shall use its reasonable endeavours to accommodate changes to any Order as requested by the Client. However, MTS shall be under no obligation to accept any requested changes once the Contract has been formed pursuant to clause 2.2.
7.1 The Charges for the Services shall be as set out in the Order. For the avoidance of doubt, unless otherwise agreed in writing between the parties, the Client shall be liable to pay the full amount as set out in the Order irrespective of the number attendees at the relevant course provided as part of the Services.
7.2 MTS shall invoice the Client on completion of the Services.
7.3 The Client shall pay each invoice submitted by MTS:
7.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax (or any equivalent or replacement tax) chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by MTS to the Client, the Client shall, on receipt of a valid VAT invoice from MTS, pay to MTS such additional amounts in respect of VAT as are 22139071.V3 Terms and Conditions for the Supply of Medical Training Services. 326981.0002 31/08/2018 chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.5 If the Client fails to make a payment due to MTS under the Contract by the due date, then, without limiting MTS’ remedies under clause 12, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.6 All amounts payable by the Client to MTS under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.1 The Client acknowledges that all Intellectual Property Rights used in the Services remain the exclusive property of MTS (or, where applicable, the third party licensor from whom MTS derives the right to use them).
8.2 MTS grants to the Client a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Deliverables (if any) for the purpose of receiving and using the Services and the Deliverables in its business, but for no other purpose.
8.3 The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 8.1 and the Client agrees that it shall not, and shall procure that course attendees do not, make any copies of any Deliverables or distribute the Deliverables to any person who did not receive the Services on the course at which the Deliverables were supplied.
8.4 The Client grants MTS a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to MTS for the term of the Contract for the purpose of providing the Services to the Client.
8.5 The Client acknowledges and agrees that MTS may use its name and logo on MTS’ website and all other marketing literature for the purposes of providing examples of the organisations to which MTS has delivered the Services.
9.1 The parties agree at all times to comply with the provisions of MTS’ Privacy Policy
and with the Data Protection Legislation to the extent that it applies to the Contract.
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10.1 Nothing in the Contract shall limit or exclude MTS’ liability for:
10.2 Subject to clause 10.1, MTS 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:
10.3 Subject to clause 10.1 and 10.2, MTS’ 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 100% of the price paid or payable for the Services in respect of the Order from which the loss arose.
10.4 Notwithstanding clause 10.1, the losses for which MTS assumes responsibility and which shall (subject to clause 10.2 and clause 10.3) be recoverable by the Client include:
10.5 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.
10.6 This clause 10 shall survive termination of the Contract.
11.1 Without limiting its other rights or remedies, MTS may terminate this Contract with immediate effect by giving written notice to the Client if:
11.2 Without limiting its other rights or remedies, MTS may suspend supply of the Services under the Contract or any other contract between the Client and MTS if the Client becomes subject to any of the events listed in clause 11.1.1 to clause
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11.3 For the purposes of clause 11.1.1, material breach means a breach (including an anticipatory breach) that is serious in the widest effect on the benefit MTS would otherwise derive from a substantial portion of the Contract over the term of the Contract. In deciding whether any breach is material, due regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
12.1 On termination of the Contract for any reason the Client shall immediately pay to MTS all of MTS’ outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, MTS shall submit an invoice, which shall be payable by the Client immediately on receipt.
12.2 Termination of the Contract shall not affect any rights and remedies of the parties that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
12.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
13.1 Force Majeure Event means any circumstance not within a MTS’ reasonable
control including, without limitation:
13.2 If MTS is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event MTS shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
13.3 If the Force Majeure Event prevents, hinders or delays MTS’s performance of its obligations for a continuous period of more than 10 Business Days, MTS may terminate the Contract by giving five Business Days’ written notice to the Client.
14.1 The Client undertakes that it shall not at any time disclose to any person any information of a confidential nature concerning the business, affairs, customer, clients or suppliers of MTS (Confidential Information), except as permitted by clause 14.2.
14.2 The Client may MTS’ Confidential Information:
14.3 The Client shall not use any of MTS’ Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
15.1 Failure or delay by any party in exercising any right or remedy under the Contract will not in any circumstances operate as a waiver of it, nor will any single or partial exercise of any right or remedy in any circumstances preclude any other or further exercise of it or the exercise of any other right or remedy.
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15.2 If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.3 MTS may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.4 The Client may not 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 without the prior written consent of MTS.
15.5 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.6 Each party acknowledges that in entering into the Contract it does not rely on, and 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.
15.7 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
15.8 Nothing in the Contract shall limit or exclude liability for fraud or fraudulent misrepresentation.
15.9 If there is an inconsistency between any of the provisions of the Contract and the provisions of the Order, the provisions of the Contract shall prevail.
15.10 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
15.11 No one other than a party to the Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
15.12 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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16.1 All notices or other communications given in connection with the Contract will be in
writing and will be given, and will be deemed received:
and if given, or deemed given, at a time or on a date which is not a Business Day, it will be deemed to have been given on the next Business Day.
16.2 Notices will be sent to MTS and the Client at the addresses set out in the Order.
16.3 Any party may change the address to which such notices to it are to be delivered by giving not less than five Business Days’ notice to the other party.
16.4 This clause 16 does not apply to the service of any proceedings or other documents in any legal action.
17.1 If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (Dispute) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute.
17.2 If the parties are, for any reason, unable to resolve the Dispute within 10 Business Days of it being referred to them, the parties agree to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 20 Business Days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR Notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR Notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 30 Business Days after the date of the ADR Notice.
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18.1 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.
18.2 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.
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