1.1. Words with capital letters will have the meanings given to them in clause 15 of these Terms.
1.2. In these Terms references to “includes” or “including” shall be deemed to have the words “without limitation” inserted after them.
1.3. Unless otherwise stated, references to “days” means calendar days.
2. CONTRACT PROCESS
2.1. Following any request from the Customer for Services from Strategy Coach, Strategy Coach may send the Customer an Order Confirmation.
2.2. If the Customer wishes to purchase Services from Strategy Coach as detailed as part of the signup process, the Customer must submit their details to Strategy Coach. By submitting such details the Customer acknowledges that these Terms have been accepted by an authorised party on behalf of theCustomer and as confirmation that the Order Confirmation accurately sets outthe Customer’s requirements.
2.3. No order for Services shall be deemed to be accepted by Strategy Coach until the earlier of Strategy Coach (a) accepting such offer in writing by providing an Order Confirmation or (b) providing the Services at which point a “Contract” for the provision of Services under theseTerms will come into effect.
2.4. Each Order Confirmation agreed by the Customer, or request for Strategy Coach’s Services from the Customer, shall be deemed to be an offer by the Customer to purchase the Services subject to these Terms:
2.4.1. to the exclusion of all other terms and conditions (including any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document); and
2.4.2. constitutes a separate Contract.
2.5. If there is any conflict or inconsistency between the following documents, to the extent of any conflict or inconsistency only, the following order of priority shall apply:
2.5.1. the Order Confirmation (including any Additional Terms); and
2.5.2. these Terms.
2.6. Strategy Coach may, at any time, and in its sole discretion, modify these Terms. Any such modification will be effective immediately on notification to the Customer. The Customer’s continued use of the Services following any such modification constitutes the Customer’s acceptance of the modified Terms.
3. STRATEGY COACH’S RESPONSIBILITIES
3.1. Strategy Coach shall use reasonable endeavours to supply the Services, and deliver the Deliverables to the Customer, in accordance with these Terms in all material respects.
3.2. Time for performance of the Services by Strategy Coach shall not be of the essence of the Contract.
3.3. Unless otherwise expressly agreed Strategy Coach accepts no liability for Deliverables complying with the applicable of laws of any territory.
3.4. Strategy Coach reserves the right to make changes to theServices or the Deliverables that it provides to the Customer, provided that such changes do not adversely affect the Services.
4.1. The Services and the Deliverables shall be provided using the Platform as notified to the Customer by Strategy Coach.
4.2. Strategy Coach:
4.2.1. does not warrant that the Customer’s use of the Platform will be uninterrupted or error-free;
4.2.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, incorrect use of the Platform by the Customer or by attempts to access the Platform by theCustomer with other than generally available browser software or by abuse or corruption by the introduction of any Virus.
4.3. The Customer:
4.3.1. acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communication facilities; and
4.3.2. is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to thePlatform and resolving all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
5. USER SUBSCRIPTIONS
5.1. In relation to the Authorised Users, the Customer undertakes that:
5.1.1. the maximum number of Authorised Users that it authorises to access and use the Services and the Deliverables shall not exceed the number of User Subscriptions purchased at any time;
5.1.2. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the priorAuthorised User shall no longer have any right to access or use the Services and/or Deliverables;
5.1.3. each Authorised User shall keep a secure password for his use of the Services and Deliverables.
5.2. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
5.2.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
5.2.2. facilitates illegal activity;
5.2.3. depicts sexually explicit images;
5.2.4. promotes unlawful violence;
5.2.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
5.2.6. in a manner that is otherwise illegal or causes damage or injury to any person or property; and Strategy Coach reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
5.3. The Customer shall not:
5.3.1. except to the extent expressly permitted under theContract, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and/or Deliverables (as applicable) in any form or media or by any means; or
5.3.2. access all or any part of the Services and Deliverables in order to build a product or service which competes with the Services and/or the Deliverables; or
5.3.3. use the Services and/or Deliverables to provide services to third parties; or
5.3.4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make theServices and/or Deliverables available to any third party except the AuthorisedUsers, or
5.3.5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Deliverables, other than as provided under this clause 5.
5.4. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Deliverables and, in the event of any such unauthorised access or use, promptly notify Strategy Coach.
6. CUSTOMER’S OBLIGATIONS
6.1. The Customer shall:
6.1.1. co-operate with Strategy Coach in all matters relating to the Services;
6.1.2. appoint a manager for the Services, such person as identified in the Order Confirmation;
6.1.3. provide, for Strategy Coach, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to theCustomer’s data and other facilities as reasonably required by Strategy Coach including any such access as is specified in the Order Confirmation;
6.1.4. provide to Strategy Coach, in a timely manner (within such timescales as specific by Strategy Coach) and at no charge, all documents, information, items and materials in any form (whether owned by the Customer or third party) required under the Order Confirmation or otherwise reasonably required by Strategy Coach in connection with the Services and ensure that they are accurate and complete in all material respects;
6.1.5. ensure that the Authorised Users use the Services and theDeliverables in accordance with the Contract and shall be responsible for anyAuthorised User’s breach of the Contract; and
6.1.6. obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Strategy Coach to provide the Services before the date on which the Services are to start.
6.2. If Strategy Coach’s performance of its obligations under these Terms is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Strategy Coach shall be allowed an extension of time to perform its obligations equal to the delay caused by theCustomer.
7. WORK CARRIED OUT OUTSIDE THE AGREED SCOPE OF SERVICES
7.1. The Customer from time to time may request Strategy Coach to supply additional services which are not included in the Order Confirmation (i.e. “Additional Services”). Strategy Coach shall endeavour to comply with the Customer’s request and where Strategy Coach agrees to provide any such Additional Services:
7.1.1. the details of those Additional Services shall be as agreed between Strategy Coach and the Customer from time to time; and
7.1.2. unless otherwise agreed by Strategy Coach in writing these Terms shall apply to the provision of such Additional Services.
8. CHARGES AND PAYMENT
8.1. In consideration of the provision of the Services by Strategy Coach, the Customer shall pay the Charges.
8.2. Unless otherwise stated by Strategy Coach in writing, the Charges shall be payable in advance of commencement of the Services.
8.3. The Customer shall pay each invoice submitted to it by Strategy Coach immediately on receipt to a bank account nominated in writing by Strategy Coach from time to time.
8.4. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Strategy Coach any sum due under the Contract on the due date:
8.4.1. the Customer 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 8.4.1 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%;
8.4.2. Strategy Coach may suspend all or part of the Services until payment has been made in full.
8.5. All sums payable to Strategy Coach under the Contract:
8.5.1. are inclusive of VAT; and
8.5.2. 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).
9. INTELLECTUAL PROPERTY RIGHTS
9.1. In relation to the Deliverables:
9.1.1. Strategy Coach and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables;
9.1.2. subject to clause 13.2, Strategy Coach grants theCustomer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables for the purpose of receiving and using the Services and the Deliverables in its business; and
9.1.3. the Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 9.1.2.
9.2. Strategy Coach:
9.2.1. warrants that the receipt, use of the Services and theDeliverables by the Customer shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
9.2.2. shall not be in breach of the warranty at clause 9.2.1, to the extent the infringement arises from: (i) any modification of theDeliverables or Services, other than by or on behalf of Strategy Coach; and(ii) compliance with the Customer’s specifications or instructions.
10.1. Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, or any other confidential information as otherwise made available to it during the Services except as permitted by clause 10.2.
10.2. Each party may disclose the other party’s confidential information:
10.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with theContract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
10.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3. No party shall use any confidential information belonging to another party for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
11. LIMITATION OF LIABILITY
11.1. This clause 11 sets out the entire financial liability ofStrategy Coach (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
11.1.1. arising under or in connection with the Contract;
11.1.2. in respect of any use made by the Customer of theServices and Deliverables or any part of them; and
11.1.3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
11.2. Except as expressly and specifically provided in the Contract:
11.2.1. the Customer assumes sole responsibility for results obtained from the use of the Services and the Deliverables by the Customer, and for conclusions drawn from such use. Strategy Coach shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Strategy Coach by the Customer in connection with the Services, or any actions taken by Strategy Coach at the Customer's direction;
11.2.2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
11.2.3. the Services and the Deliverables are provided to the Customer on an "as is" basis.
11.3. Nothing in the Contract excludes the liability of Strategy Coach:
11.3.1. for death or personal injury caused by Strategy Coach’s negligence; or
11.3.2. for fraud or fraudulent misrepresentation.
11.4. Subject to clause 11.2 and clause 11.3:
11.4.1. Strategy Coach shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
11.4.2. Strategy Coach’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Charges paid for the Services during the 12 months immediately preceding the date on which the claim arose.
11.5. If Strategy Coach provides the Customer with advice or information or otherwise assists the Customer, (“Consultancy”) unless StrategyCoach expressly agrees to provide and the Customer agrees to purchase consultancy services, Strategy Coach shall not be liable to the Customer forConsultancy whether in contract, tort (including negligence), for any collateral contract or any other grounds.
12. TERM AND TERMINATION
12.1. The Contract shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Term, unless otherwise terminated in accordance with the provisions of the Contract.
12.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
12.2.1. the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
12.2.2. the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;
12.2.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
12.2.4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
12.2.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
12.2.6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
12.2.7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
12.2.8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
12.2.9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
12.2.10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2.3 to clause 12.2.9 (inclusive);
12.2.11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; 12.2.12. there is a change of control of the other party.
13. CONSEQUENCES OF TERMINATION
13.1. On termination or expiry of the Contract:
13.1.1. access to the Platform shall immediately cease;
13.1.2. the Customer shall immediately pay to Strategy Coach all of Strategy Coach’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, Strategy Coach may submit an invoice, which shall be payable immediately on receipt; and
13.1.3. the following clauses shall continue in force: 1, 8, 9,10, 11, 13 and 14.
13.2. If the Contract is terminated by Strategy Coach in accordance with clause 12.2.1 and/or the Customer doesn’t comply with clause 13.1.1, the licence granted by Strategy Coach in accordance with clause 9.1.2 shall cease and the Customer shall immediately return any Deliverables supplied prior to the date of termination.
13.3. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.
14.1. Strategy Coach shall not be liable for any failure or delay in performing its obligations as a result of a Force Majeure Event. If a Force Majeure Event continues for more 14 days, Strategy Coach shall be entitled to terminate the Contract by giving 7 days notice in writing.
14.2. The Customer shall not partially or wholly assign or sub-contract any of its obligations under the Contract.
14.3. Strategy Coach may perform any or all of its obligations under the Contract through sub-contractors, agents or other third parties, without the Customer’s written consent.
14.4. The Contract represents the entire agreement between the parties and supersedes all earlier warranties, representations, statements or agreements (whether written or oral). The Customer acknowledges that in entering into the Contract, the Customer has not relied on any, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Contract or not) other than as expressly set out in the Contract as a warranty.
14.5. Any notice under the Contract or required by statute, law or regulation shall be delivered in person, sent by registered mail, properly posted and fully pre-paid envelope to the respective parties at their respective registered or principal offices.
14.6. The parties intend that any person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 (“Act”) to enforce any term of the Contract, but this does not affect any right or remedy of a third party which exists, or is available, apart from the Act.
14.7. If any provision is found by any Court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity shall not affect the rest of the Contract, which shall remain in full force and effect.
14.8. Failure by Strategy Coach to exercise or enforce any of its rights or remedies under the Contract shall not constitute a waiver of any such right or remedy, nor shall it prevent the exercise or enforcement of the right or remedy at any time.
14.9. If the Customer is unhappy with any aspect of theServices, please contact Strategy Coach on the contact details set out on its website.
14.10. Unless otherwise expressly stated, nothing in these Terms shall create a partnership or agency between the parties.
14.11. If a dispute arises between the parties in relation to the Contract in any way, the parties shall first try in good faith to amicably resolve the dispute within 28 days of the dispute arising.
14.12. Subject to clause 14.11, the Contract and any dispute arising out of or in connection with its subject matter or formation shall be governed by and construed in accordance with English law and the parties submit to the courts of England & Wales having exclusive jurisdiction in relation to such.
15.1. The definitions in this clause apply in the Terms.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use theServices and the Deliverables.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the sums payable for the Services, as set out in the Order Confirmation.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: as set out in the Order Confirmation.
Deliverables: any output of the Services to be provided by Strategy Coach to the Customer as specified in the Order Confirmation and any other documents, products and materials provided by Strategy Coach to the Customer in relation to the Services.
Effective Date: as set out in the Order Confirmation.
Force Majeure Event: includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following: (i) strikes lock-outs or other industrial action; (ii) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; (iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; (iv) impossibility of the use of public or private telecommunications networks; and (v) the acts, decrees, legislation, regulations or restrictions of any government; (vi) acts of third parties.
Intellectual Property Rights: intellectual property rights being, all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information(including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order Confirmation: the order confirmation for the Services agreed by or on behalf of the Customer which is accepted by Strategy Coach pursuant to clause 2.3.
Platform: the platform via which the Services are provided.Services: the services as set out in the Order Confirmation, including services which are incidental or ancillary to such services, including provision of the Platform.
Strategy Coach: Creative Huddle Limited; registered office: 23St Leonards Road, Bexhill On Sea, East Sussex TN40 1HH; registered company number: 07295980.
Term: the term of the Contract as set out in the Order Confirmation or as otherwise notified to the Customer.
User Subscriptions: the user subscriptions purchased by the Customer which entitle Authorised Users to access and use the Services and the Deliverables in accordance with the Contract.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.