The following definitions and rules of interpretation apply in these Terms.
"Booking Confirmation" means the booking confirmation, scope of work or course booking confirmation which forms the basis of the Contract entered into by Scotwork and the Client for the provision of the Services pursuant to clause 3.
"Business Day" means a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Edinburgh are open for business.
"Charges" means the charges, costs and expenses as determined by Scotwork from time to time and specified in the Booking Confirmation for each Participant and any additional Participants.
"Client" means the person or firm who purchases Services from Scotwork as identified on the Booking Confirmation.
"Confidential Information" means any information (including in written, oral, visual or electronic form, or on tape or disk) which is not publicly available including any information specifically designated by the disclosing party as confidential; any information supplied to the disclosing party by any third party in relation to which a duty of confidentiality is owed or arises; and any other information which should otherwise be reasonably regarded as possessing a quality of confidence. Confidential Information includes know-how and information about design, development, specifications, manuals, instructions, customer lists, sales, marketing, promotion, distribution, business plans, forecasts, and technical or other expertise.
"Content" means all content relating to the Course including text, information, data, software, executable code, images, audio, video material or digital content in any medium or form provided by Scotwork to the Client.
"Contract" means the contract between Scotwork and the Client for the supply of Services and which incorporates these Terms and which comes into existence in accordance with clause 3.1.
"Control" has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
"Client Default" has the meaning set out in clause 6.2.
"Course Materials" means the materials comprising the Content, in any electronic or physical form provided by Scotwork to the Client and/or Participants in the provision of the Course, including all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, and all other materials in whatever form (including but not limited to hard copy and electronic form).
"Derivative Work" means work generated or developed following the Commencement Date which is based on the Content or an underlying work in relation to this (including any documentation relative to the Course and all translations, modifications and adaptations thereof of sound recordings, condensations, or any other form in which a work may be recast, transformed or adapted).
"Participant" means the individuals authorised by the Client to access the Course, Content and Course Materials.
"Intellectual Property Rights" means all intellectual and/or industrial property in any part of the world including but not limited patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill (including all goodwill attaching to Scotwork and the name "Scotwork") 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.
"Specification" means the description or specification of the Services provided by Scotwork to the Client in the Booking Confirmation.
Scotwork” shall mean the entity providing the Services identified in the Booking Confirmation and being any of Scotwork Limited, incorporated and registered in Scotland with company number SC232330, Scotwork UK Limited, incorporated and registered in Scotland with company number SC535142 or Scotwork (Ireland) Limited, incorporated and registered in the Republic of Ireland with company number 272156.
"Terms" means these terms and conditions as amended from time to time in accordance with clause 20.
1.2.1. A reference to legislation or a legislative provision:
22.214.171.124. is a reference to it as amended, extended or re-enacted from time to time; and
126.96.36.199. shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.2.2. Unless the context otherwise requires the singular shall include the plural and vice versa.
1.2.3. 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.
1.2.4. A reference to writing or written includes email but not fax.
2.1. These Terms apply to all Services provided by Scotwork.
2.2. In the event of any conflict or inconsistency between:
2.2.1. the Booking Confirmation; and
2.2.2. these Terms;
then the order of precedence shall be as set out above.
3. Contract Formation and the Placing of Orders
3.1. A Contract shall come into existence between Scotwork and the Client on the date (the Commencement Date) when a Booking Confirmation issued by Scotwork is executed by the Client and returned to (and received by) Scotwork.
3.2. The Booking Confirmation will specify the Course, Content, the number of Participants (including any group of individuals who shall be deemed to be Participants) and the Charges.
3.3. Any descriptive matter or advertising issued by Scotwork, and any descriptions or illustrations contained on Scotwork's website, 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.
3.4. These Terms apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
4. Supply of Services
4.1. Scotwork shall supply the Services to the Client in accordance with the Specification in all material respects.
4.2. Scotwork reserves the right to amend the Specification and the Services at any time and without notice. Without limitation, Scotwork reserves the right to modify the Course content and timetable to suit the Course requirements and to change the Course tutors at any time and without notice.
4.3. Scotwork warrants to the Client that the Services will be provided using reasonable care and skill.
5.1. Course dates are offered on a first-come-first-served basis. When a course date is confirmed in writing between the parties, then the tutors will be assigned, and the date(s) reserved for the Client. After that time any cancellation or postponement of the course by the Client will be subject to a cancellation charge as follows:
5.1.1. At any point after confirming the course date – any non-refundable reasonable costs incurred by Scotwork in accordance with the Agreement, with the Client's prior agreement will be charged in full;
5.1.2. Less than eight full weeks but more than four full weeks prior to the course – half of the fee payable. Any non-refundable costs reasonably incurred in accordance with this Agreement by Scotwork will be charged in full; and
5.1.3. Less than four full weeks prior to the course – the fee will be payable in full. Any reasonable non-refundable costs incurred in accordance with this Agreement by Scotwork will be charged in full.
5.2. Unless otherwise agreed between the parties, postponement of the course to a different date counts as a cancellation for the purposes of this clause.
5.3. Notice of cancellation or postponement must be given in writing.
5.4. Where the Booking Confirmation prescribes a minimum number of Participants must attend a particular Course for it to run, Scotwork may cancel the Course if the minimum number of Participants are not in attendance by the end of the first session. If the Course is cancelled the Participants shall be notified and shall leave the venue. In the event of cancellation all Charges will be charged in full.
6. Client's obligations
6.1. The Client shall:
6.1.1. ensure that all details in the Booking Confirmation and any information it provides in the Specification are complete and accurate;
6.1.2. co-operate with Scotwork in all matters relating to the Services;
6.1.3. provide Scotwork with such information and materials as Scotwork may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
6.1.4. maintain as secret and confidential all trade secrets and Confidential Information for Scotwork including, without limitation, the systems, know-how, financial condition and business interests of Scotwork;
6.1.5. comply with all applicable laws in performing its obligations and exercising its rights under these Terms and obtain and maintain all necessary licences and consents as required to enable Scotwork to provide the Services;
6.1.6. facilitate timely payment by issuing purchase orders and providing complete billing instructions; and
6.1.7. procure the compliance of all employers, principals, agents and employees of the Client and any other agents or employees of such employers or principals with its obligations under this clause 6.
6.2. The Client shall:
6.2.1. select and enrol the course Participants and, to the extent reasonably possible, maintain a wait list for cover for any last minute cancellations;
6.2.2. circulate and require a response to the pre-course work for the Participants;
6.2.3. provide a list of Participants, their job titles and email addresses at least 4 weeks prior to the Course, save for last minute substitutions which shall be provided as soon as reasonably practicable;
6.2.4. ensure that the maximum number of Participants on each Course does not exceed any maximum specified in the Booking Confirmation. Scotwork reserves the right to refuse instruction to any Participants in excess of any maximum number so specified;
6.2.5. use commercially reasonable endeavours to ensure that the Participants are present for the entire period of the Course;
6.2.6. ensure using reasonable commercial efforts, that Participants protect the confidentiality of Scotwork's proprietary workshop materials, in accordance with these Terms;
6.2.7. on request from Scotwork, ensure that any Participant leaves the Course if their behaviour is judged to be disruptive by Scotwork;
6.2.8. use commercially reasonable endeavours to ensure that the digital broadband/wi-fi connections of Participants are able to support their presence on the Course and they have access to the platform on which the Course is run;
6.2.9. take all reasonable steps to ensure that Course joining instructions are sent to the Participants in advance;
Courses delivered offline
6.2.10. be responsible for the cost of food and accommodation for the Course tutor(s) for the duration of the Course and for their travel costs;
6.2.11. take all reasonable steps to ensure that Course joining instructions are sent to the Participants in advance and that they are made aware of the Client’s policy on charging drinks and other expenses;
6.2.12. minimise contact with the Participants around work matters during the running of the Course and encourage attention to be focussed solely on the Course; and
6.2.13. consult with Scotwork in advance about the suitability of any training venue arranged by the Client; and
6.2.14. be responsible for any charges made by the venue in respect of cancellation or non-arrivals; meeting room hire, provision of a screen, flip-chart paper and any charges incurred by their participants and not settled on departure.
6.3. If Scotwork'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):
6.3.1. without limiting or affecting any other right or remedy available to it, Scotwork shall 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 in each case to the extent the Client Default prevents or delays Scotwork's performance of any of its obligations;
6.3.2. Scotwork shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Scotwork's failure or delay to perform any of its obligations as set out in this clause 6.3; and
6.3.3. the Client shall reimburse Scotwork on written demand for any costs or losses sustained or incurred by Scotwork arising directly or indirectly from the Client Default.
7. Charges and payment
7.1. The Charges for the Services shall be the price set out in the Booking Confirmation.
7.2. The Client shall pay Scotwork the Charges in full within 30 days from the date of issue of Scotwork's invoice.
7.3. The Client shall pay the Charges by electronic bank transfer or similar payment method into the bank account nominated by Scotwork specified in the Booking Confirmation in the currency is specified in the Booking Confirmation.
7.4. All amounts due under these Terms are exclusive of VATor other local taxes which shall, where applicable, be paid by the Client at the prevailing rates and on receipt of an appropriate invoice from Scotwork.
7.5. All amounts due by the Client to Scotwork under a Contract shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.6. If the Client fails to make any payment due to Scotwork under a Contract by the due date for payment, then Scotwork shall be entitled to charge the Client interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 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%.
8.1. The Client shall ensure that each Participant complies with the Client's obligations under clauses 6 and 9 of these Terms and any other Terms that are relevant to Participants.
9. Intellectual property rights
9.1. Scotwork retains ownership of all Intellectual Property Rights in the Course, Content, Course Materials and in any Derivative Works (the "Works") which it may create.
9.2. The Client acknowledges that all Intellectual Property Rights in and to the Works created, owned or provided by Scotwork under these Terms are proprietary to Scotwork and are a valuable proprietary asset. Scotwork retains all worldwide right, title and interest in and to all such Intellectual Property Rights in the Works.
9.3. The Client assigns to Scotwork (for itself and on behalf of Participants), including by way of assignation of future copyright and database right, all Intellectual Property Rights in any development created now or in the future of the Content or any Derivative Work. The Client shall execute any such assignation as Scotwork may require and shall ensure that Participants do likewise.
9.4. The Client may use the concepts and methodology contained in the Works for its internal business purposes and Participants may use any Course Materials they are permitted to keep under these Terms for their own personal development but the Client shall not (and shall procure that its Participants shall not) at any time use any such Works (including any Intellectual Property Rights in them) for any other purpose or in any way that may prejudice Scotwork.
9.5. The Client shall co-operate fully with Scotwork by taking all steps required by Scotwork (in its sole discretion) in connection with any infringement of any Intellectual Property Rights in the Content and Course Materials, including, without limitation, legal proceedings in the name of Scotwork or in joint names of the parties. Scotwork shall be responsible for the cost of any legal proceedings it requires, and is entitled to any damages, account of profits and/or awards of costs recovered. The Client shall use reasonable endeavours to assist Scotwork in any legal proceedings relating to any infringement.
10. Data protection
10.1. For the purposes of this clause, the following definitions shall apply:
10.1.1. "Data Protection Laws" means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder); and the Privacy and Electronic Communications Regulations 2003 (SI 2003 No. 2426) as amended; and
10.1.2. "Personal Data", "Data Subject", "controller", "data breach" and "processor" shall have the meanings given to them in the Data Protection Laws.
10.2. The parties recognise that they shall each be processing Personal Data in connection with the performance of their obligations and/or exercise of their rights under these Terms and any Contract and that the factual arrangement between them shall dictate the role of each party (as to controller or processor) in respect of the Data Protection Laws. Notwithstanding the foregoing, the parties agree and acknowledge that where either party processes personal data pursuant to or in relation to these Terms or any Contract, that party will be carrying out the processing for its own purposes, and as such will be a controller under the Data Protection Laws.
10.3. Each party shall at all times comply with its respective obligations under all applicable Data Protection Laws to the extent such Data Protection Laws applies to it in connection with the performance of its obligations or exercise of its rights under these Terms or any Contract.
10.4. If either party receives any complaint, notice or communication which relates to the processing of Personal Data by the other party or to either party's compliance with the Data Protection Laws, or if any Personal Data processed in connection with these Terms is subject to a personal data breach, it shall immediately notify the other party and provide the other party with reasonable co-operation and assistance in relation to any such complaint, notice, communication or personal data breach.
11. Limitation of liability
11.1. Save where expressly provided, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the maximum extent permitted by law.
11.2. Nothing in these Terms limits any liability which cannot legally be limited, including but not limited to liability for:
11.2.1. death or personal injury caused by negligence;
11.2.2. fraud or fraudulent misrepresentation; and
11.2.3. any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
11.3. Scotwork shall have no liability for any losses or damages which may be suffered by the Client (or any person claiming under or through the Client), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, delict (including negligence) or otherwise howsoever, which fall within any of the following categories: loss of use; loss of profits; loss of anticipated savings; loss of business opportunity; loss of contracts; loss of goodwill; or loss arising from damaged, corrupted or lost data.
11.4. Subject to clause 11.2, Scotwork's liability, whether in contract, delict (including negligence), or otherwise and whether in connect with this licence or any collateral contract shall not exceed 125% of the Charges paid or payable.
11.5. The terms implied by sections 3 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Terms.
12.1. Each party warrants to the other that it has full power and authority to enter into and perform its obligations under these Terms.
12.2. Scotwork warrants that:
12.2.1. the Content, when used in accordance with these Terms, will not infringe any third party's Intellectual Property Rights;
12.2.2. appropriate anti-virus and security checks will have been carried out on the Content prior to it being made available to the Client in accordance with clause 4, but does not warrant that the use of the Content will be uninterrupted or error-free.
12.3. Except as expressly provided for in these Terms, the Content and Course Materials are provided without warranties or any kind, whether express or implied to the fullest extent permitted by applicable law. Scotwork shall have no liability whatsoever for errors in any Content or Course Materials developed by the Client or the Participants through use of the Content or Course Materials nor for any reliance placed upon them by the Client or any Participants.
12.4. The Client warrants that its use (and any use by Participants) of the Content and the Course Materials and its development and use of any Derivative Works will not:
12.4.1. infringe any third party's Intellectual Property Rights;
12.4.2. be defamatory, libellous, obscene, or otherwise unlawful; and
12.4.3. violate any applicable law, statute or subordinate legislation.
13.1. The Client shall indemnify Scotwork against all claims, liabilities and expenses arising out of:
13.1.1. the Client's or any Participant's activities other than use of the Content in accordance with these Terms;
13.1.2. any infringement of any rights of Scotwork or of any third party by the sale, possession or use of the Content or Course Materials by the Client or any Participant; or
13.1.3. the Client's failure to comply with all applicable laws and regulations.
13.2. If the use or possession of the Content and Course Materials (as permitted under these Terms) infringes or, in Scotwork's opinion, is likely to infringe any Intellectual Property Rights of a third party, Scotwork may at its option and expense:
13.2.1. procure for the Client the right to continue to use the Content and Course Materials free from any liability for such infringement;
13.2.2. modify or replace the Content and Course Materials so as to avoid the infringement; or
13.2.3. terminate the Contract immediately on written notice in respect of the affected Content.
14.1. Without affecting any other right or remedy available to it, Scotwork may terminate the Contract with immediate effect by giving notice to the Client if:
14.1.1. the Client fails to pay when due any Charges or amount due under the Contract; or
14.1.2. any Participant fails to comply with these Terms; or
14.1.3. the Client 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 14 days after being notified to do so; or
14.1.4. the Client or any Participant repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the Contract; or
14.1.5. the Client challenges or disputes Scotwork's ownership of, or rights in, the Works, or the validity of those rights.
14.2. Either party may terminate the Contract with immediate effect by giving notice to the other party if
14.2.1. the other party takes any step or action in connection with it 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; or
14.2.2. 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.
15. Consequences of termination
15.1. On any expiration or termination of a Contract:
15.1.1. all rights and authorisations granted by Scotwork to the Client under the Contract shall automatically terminate and immediately revert to Scotwork; and
15.1.2. the Client shall, at Scotwork's option and according to Scotwork's instructions, immediately return to Scotwork or destroy all Course Materials on any tangible medium in the Client's possession or subject to its control including from back-up systems and any cached Course Materials within the Client's control. For these purposes, the Client shall ensure that all Participants comply with these requirements as well.
15.2. Termination or expiration of a Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiration, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
15.3. Any provision of a Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiration of the Contract shall remain in full force and effect.
16. Force majeure
16.1. Scotwork shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
17. Assignment and other dealings
17.1. Neither Party shall assign, transfer, mortgage, charge, subcontract, sub-license, delegate, declare a trust over or deal in any manner with a Contract or any of its rights and obligations under a Contract.
18.1. Each party undertakes that it shall not for a period of five years after the Commencement Date disclose directly or indirectly to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 18.2.
18.2. Each party may disclose the other party's Confidential Information:
18.2.1. 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 the party's obligations under a Contract. 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 18.2; and
18.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
18.2.3. Neither party shall use the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with a Contract.
19. Entire agreement.
19.1. The Contract constituted by the relevant Booking Confirmation and these Terms 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.
19.2. Each party acknowledges 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 or negligent misstatement based on any statement in the Contract.
21.1. No failure or delay by a party to exercise any right or remedy provided under a Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
22.1. If any provision or part-provision of a Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
22.2. If any provision or part-provision of a Contract are deleted under clause 22.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. No partnership or agency
23.1. Nothing in a 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.
23.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
24.1. If Scotwork has a reasonable basis for believing that the Client or Participant has violated the terms of clauses 8 or 9 or that the Client or Participant has otherwise breached the terms of a Contract, Scotwork shall have the right, during the continuance of the Contract and for a period of 90 days thereafter, to audit the Client's use of the Content and Course Materials the purpose of confirming the Client's compliance with the Contract.
25.1. Any notice or other communication given to a party under or in connection with a Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Booking Confirmation.
25.2. Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt; or 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; and if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 25.2, business hours mean 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
25.3. This clause 25 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
26. Third party rights
26.1. These Terms do not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce a Contract.
27. Governing law and jurisdiction
27.1. A 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, English law.
27.2. Each party irrevocably agrees that the English courts shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with a Contract or its subject matter or formation.