TERMS AND CONDITIONS
1.1 In these Conditions:
‘Charges’ means the Charges for the Services as displayed on the Website;
‘Client’ means a school or other educational establishment purchasing the Services
‘Contractor’ means Get Gen Fit Ltd
‘FOIA’ the Freedom of Information Act 2000 and any subordinate legislation made under this Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government Department in relation to such legislation;
‘Request’ a request for information or an apparent request under
‘for’ the Code of Practice on Access to Government
‘Information’Information, FOIA or the Environmental Information
‘Services’ means the audio workout tracks to be provided as specified on the Website and shall, where the context requires, include any and all materials, articles and goods to be supplied in connection with the same
‘Staff’ means the Contractor and its employees, agents, representatives and sub-contractors.
‘Website’ Designed & Developed by www.ovacreative.co.uk, Unit 2 Whitesides Buildings, Back St Anne’s Road West FY8 1RD | TEL: 01253 725 081
1.2 The headings in these Conditions are for convenience only and shall not affect its construction or interpretation.
- VARIATION OF THE SERVICES
2.1 These Conditions may only be varied with the written agreement of the Client and the Contractor
2.2 Payment of the Charges by the Client shall constitute acceptance of these Conditions where acceptance has not previously been communicated.
- CONTRACTOR’S STATUS
In carrying out the Services the Contractor shall act as an independent Contractor, and as principal and not as the agent of the Client and nothing shall create the relationship of employer and employee, principal and agent or a partnership.
- CONTRACTOR‘S PERSONNEL
4.1 The Contractor shall take all reasonable steps to satisfy itself that its employees or sub-contractors (or their employees) are suitable in all respects to perform the Services.
4.2 The Contractor shall immediately notify the Client if they have any concerns regarding the propriety of any of its sub-contractors in respect of the Services
- TIME OF PERFORMANCE
5.1 The Services shall commence on payment by the Client of the Charges and shall continue for such periods as to referred to in the Website
5.2 Failure by the Contractor to adhere to any provision as to time shall entitle the Client at its option to terminate the Services. The Client shall be entitled to exercise its option at any time notwithstanding that it has waived any delay, unless a written extension of time has been given to the Contractor by the Client and the time of any extension has not elapsed. Failure by the Client to exercise its option to terminate shall not be deemed to constitute a waiver with respect to any subsequent part.
6.1 The Contractor warrants and represents to the Client that the Contractor and its Staff:
6.1.1 are properly trained, qualified, and adequately skilled and competent to the levels necessary to undertake the Services; and
6.1.2 shall undertake the Services in a workmanlike manner using reasonable skill, care and expertise to be expected on a competent Contractor using good industry practice.
6.2 The Client will be relying upon the Contractor’s skill, expertise and experience in the performance of the Services and also upon the accuracy of all representations or statements made and any advice given by the Contractor in connection with the performance of the Services.
6.3 The Contractor shall ensure that any goods procured for the purposes of the Services shall be of satisfactory quality, fit for their purpose and be free from defects in materials and workmanship.
7.1 The Client is to pay the Charges as referred to on the Website
7.2 The Client shall not be liable for any Charges relating to changes to the Services or additional Services other than those agreed by written variations signed by the duly authorised representatives of either party.
7.3 No payment of or on account of the Charges shall constitute any admission by the Client as to proper performance by the Contractor of its obligations.
Copyright in the Services and all reports and other documents and materials arising out of the performance by the Contractor of their duties shall remain vested in the Contractor absolutely. This condition shall apply during the continuance of the provision of the Services and after its termination howsoever arising.
- INDEMNITY AND INSURANCE
9.1 The Contractor shall not be liable for any expense, liability, loss, claim or proceedings arising under statute or at common law in respect of personal injury to or death of any person whomsoever or loss of or damage to property whether belonging to the Client or otherwise arising out of or in the course of or caused by the provision of the Services.
9.2 Nothing shall exclude or limit the liability of either party for death or personal injury caused by its negligence or for fraudulent misrepresentation.
- CONFIDENTIALITY & DATA PROTECTION
10.1 Both the Client and the Contractor shall and shall procure that it keeps secret and does not disclose any information of a confidential nature obtained by reason of the Services (and the content of the Services shall be deemed to be confidential information) except as required by law.
10.2 The provision of this Condition 10 shall apply during the continuance of the provision of the Services and after termination howsoever arising without limitation in time.
10.3 The Contractor shall comply with any and all requirements under the Data Protection Act 1998 and any subordinate legislation (“DPA“) as amended from time to time as though it were the Data Controller (as defined under the DPA) and shall not disclose or allow access to any Personal Data (as defined under the DPA) provided or acquired during the term of the Services
10.4 The Contractor shall use, disclose or allow access to any data produced as a result of the performance of the Services in accordance with the Client’s strict instructions and only to the extent that is specifically necessary for the purposes of the Services
11.1 In the event of any breach of these Conditions by either party, the non-breaching party may serve a notice on the party in breach requiring the breach to be remedied within a period specified in the notice which shall be reasonable in all the circumstances. If the breach has not been remedied by the expiry of the specified period, the non-breaching party may terminate the Services with immediate effect by notice in writing.
11.3 In the event of a material breach of the Condtions by either party, the non-breaching party may terminate the Services with immediate effect by notice in writing.
11.4 The Client may terminate the Services with immediate effect by notice in writing to the Contractor if at any time:-
11.4.1 the Contractor passes a resolution that it be wound-up or that an application be made for an administration order or the Contractor applies to enter into a voluntary arrangement with its creditors;
11.4.2 a receiver, liquidator, administrator, supervisor or administrative receiver be appointed in respect of the Contractor’s property, assets or any part thereof;
11.4.3 the court orders that the Contractor be wound-up or a receiver of all or any part of the Contractor’s assets be appointed;
11.4.4 the Contractor is unable to pay its debts in accordance with Section 123 of the Insolvency Act 1986;
11.4.5 the Contractor (being an individual or partnership) is declared or adjudicated bankrupt or enters into any arrangement or composition with its creditors;
11.4.6 the Contractor is convicted (or being a company, any officers or representatives of the Contractor are convicted) of a criminal offence related to the business or professional conduct;
11.4.7 the Contractor commits (or being a company, any officers or representatives of the Contractor commit) an act of grave misconduct in the course of the business;
11.4.8 the Contractor fails (or being a company, any officers or representatives of the Contractor fail) to disclose any serious misrepresentation in supplying information required by the Client in or pursuant to the Contract.
11.5 On termination of the Services for any reason whatsoever, the Client shall:
11.5.1 cease to have any right to use any intellectual property rights owned by the Contractor;
11.5.2 return any and all documents or information (in a tangible or intangible form) belonging to the Contractor and shall destroy all copies of such documentation or information relating to or supplied by the Contractor to the Client for the purposes of the Services and being in the Client’s possession, power or control.
- ASSIGNMENT AND SUB-CONTRACTING
12.1 The Contractor shall not assign, transfer or sub-contract any portion of the Services without the prior written consent of the Client. Sub-contracting any part of the Services shall not relieve the Contractor of any of its obligations.
12.2 Where the Client has consented to the placing of sub-contracts, copies of each sub-contract shall be sent by the Contractor to the Client immediately when it is issued. Any authority given by the Client for the Contractor to sub-contract the Services (or any part of them) shall not impose any duty on the Client to enquire as to the competency of any authorised sub-contractor but that the Contractor shall ensure that any authorised sub-contractor is competent and that the work is properly done.
Any notices to be given shall be delivered personally or sent by post or by facsimile transmission or by email. Any such notice shall be deemed to be served, if delivered personally, at the time of delivery, if sent by post, 48 hours after posting or, if sent by facsimile transmission or email, 12 hours after proper transmission.
- THIRD PARTY RIGHTS
It is not intended to create any rights of any kind whatsoever enforceable by any person who is not the Client or the Contractor (including any rights enforceable under the Contracts (Rights of Third Parties) Act 1999).
If any provision hereunder is or becomes unenforceable, void or invalid, such provision shall not take effect and shall be deemed to be severed from the remainder of the Conditions to the extent that the remainder of the Conditions and the unaffected part of the provision shall continue to be fully enforceable.
No delay or omission by the Client in exercising any of its rights under the Conditions shall constitute a waiver of that right and any partial exercise of any such right shall not prevent any future exercise of the right.
17.1 The Contractor shall not unlawfully discriminate within the meaning and scope of any law, enactment, order, or regulation relating to discrimination (whether in race, gender, religion, disability, sexual orientation or otherwise) in employment.
17.2 The Contractor shall take all reasonable steps to secure the observance of Clause 17.1 by all servants, employees or agents of the Contractor and all suppliers and sub-contractors employed in the execution of the Services
18 FREEDOM OF INFORMATION
18.1 The Contractor acknowledges that the Client is subject to the requirements of the Code of Practice on Government Information, FOIA and the Environmental Information Regulations and shall assist and cooperate with the Client to enable the Client to comply with its Information disclosure obligations.
18.2.2 provide the Client with a copy of all Information in its possession, or power in the form that the Client requires within five Working Days (or such other period as the Client may specify) of the Client’s request; and
18.2.3 provide all necessary assistance as reasonably requested by the Client to enable the Client to respond to the Request for Information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the Environmental Information Regulations.
18.3 The Client shall be responsible for determining in its absolute discretion and notwithstanding any other provision in this Agreement or any other agreement whether any Information is exempt from disclosure in accordance with the provisions of the Code of Practice on Government Information, FOIA or the Environmental Information Regulations.
18.5 The Contractor acknowledges that (notwithstanding the provisions of Clause 23) the Client may, acting in accordance with the Client of Constitutional Affairs’ Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the Freedom of Information Act 2000 (“the Code”), be obliged under the FOIA, or the Environmental Information Regulations to disclose information concerning the Contractor or the Project:
18.5.1 in certain circumstances without consulting the Contractor; or
18.5.2 following consultation with the Contractor and having taken their views into account;
18.5.3 provided always that where 18.5.1 applies the Client shall, in accordance with any recommendations of the Code, take reasonable steps, where appropriate, to give the Contractor advanced notice, or failing that, to draw the disclosure to the Contractor’s attention after any such disclosure.
- LAW AND JURISDICTION
Any dispute arising hereunder or in any way connected with the provision of the Services (whether of a contractual or tortious nature or otherwise) shall be governed by and interpreted in accordance with English Law and the parties submit to the jurisdiction of the English courts only