1.1 In these Conditions, terms set out in bold in the Booking Form shall have the meanings set out there; in addition the following definitions apply:
Agreement: the agreement between the Client and ICAEW for the preparation and delivery of a Training Course in accordance with these Conditions;
Booking Form: the booking form for the Training Course signed by the parties;
Committed Costs: Any non-recoverable expenses and costs incurred by ICAEW in connection with any postponed or cancelled training course including but not limited to any fees agreed with ICAEW's contracted trainer(s) and any travel, venue or accommodation costs which may not be refunded or for which there are cancellation charges;
Conditions: these terms and conditions as amended from time to time in accordance with Condition 20;
Course Materials: the materials provided by ICAEW for the Training Course;
Controller, Data Subject, Personal Data, Processor, Sub Processor: shall have the respective meanings given to them in applicable Data Protection Legislation from time to time (and related expressions, including process, processing, processed, and processes shall be construed accordingly);
Data Protection Legislation: all applicable data protection and privacy legislation, regulations and guidance including the Privacy and Electronic Communications (EC Directive) Regulations and any guidance or codes of practice issued by the European Data Protection Board or the Information Commissioner from time to time, together with: (a) prior to 25 May 2018, the Data Protection Act 1998; and (b) from 25 May 2018 onwards Regulation (EU) 2016/679 (the "General Data Protection Regulation" or "GDPR"), (in each case, all as amended, updated or re-enacted from time to time);
Delegate: any employee or other permitted delegate from the Client attending the Training Course;
ICAEW: Institute of Chartered Accountants in England and Wales, incorporated by Royal Charter, with number RC000246 and having its principal office at Chartered Accountants' Hall, 1 Moorgate Place, London EC2R 6EA;
Intellectual Property Rights: 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.
Supervisory Authorities and Personal Data Breach: shall have the respective meanings given to them in the GDPR;
Training Course: the training event, seminar, event, workshop or programme delivered by ICAEW, at the request of the Client, as described in the Commercial Terms;
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a statute or statutory provision includes that statute or provision as amended or replaced from time to time and further includes any subordinate legislation made under that statute or statutory provision;
1.2.3 use of the term in particular or any similar expression is illustrative only and shall not limit the sense of the preceding words; and
1.2.4 a reference to writing or written includes e-mail.
2. Commencement and basis of contract
2.1 This Agreement starts on the Commencement Date and creates a contract between the Client and ICAEW.
2.2 These Conditions apply 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.
3. Course fee and payment
3.1 The Fee for the Training Course is as set out in the Booking Form.
3.2 Upon receipt of a signed Booking Form, an invoice will be issued to the Client.
3.3 The Client shall pay the invoiced amount within 30 days of the date of a correctly rendered invoice to a bank account nominated in writing by ICAEW unless ICAEW agrees otherwise in writing.
3.4 All amounts payable are exclusive of value added tax.
3.5 If the Client fails to make any payment due then it shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment.
ICAEW requires final delegate numbers at least 7 working days prior to the course date(s) as set out in the Booking Form. The attendance of any delegate or delegates from any firm or organisation other than the Client is expressly prohibited. No more delegates than the number stated in the Booking Form may attend.
5. Catering and venue
ICAEW does not cover the cost of venue, equipment or catering requirements for in-house courses.
6. Cancellation and postponement
6.1 All notice of cancellations must be made in writing to ICAEW.
6.2 Where notice of cancellation in respect of a Training Course is received by ICAEW more than 90 days before the start date of such Training Course, ICAEW shall refund the Client in full any amount already paid pursuant to Condition 3 less any Committed Costs.
6.3 In the event that the notice of cancellation is received more than 60 days but less than 90 Days before the start date of such Training Course ICAEW shall refund the Client 50% of any amount already paid, less any Committed Costs.
6.4 In the event that the Client or the Delegates fail to attend a Training Course or the notice of cancellation in respect of a Training Course is received by ICAEW within 60 days of the scheduled start date of such Training Course full payment of the Fee in respect of such Training Course shall be required.
6.5 ICAEW reserves the right to cancel a Training Course at any time for any reason due to unforeseen circumstances outside its control, without incurring any additional liability to the Client or any Delegate. In such circumstances ICAEW shall offer at its sole discretion either alternative dates, a full refund or a credit note.
6.6 The Client and ICAEW may agree in writing, to postpone the Training Course from time to time subject to payment in full by the Client of any Committed Costs. The Client acknowledges that any postponement requires a four week notification period. If a Client postponement is agreed with ICAEW this may result in higher charges for example where the Training Course is postponed to the next financial or calendar year or a different trainer has to be secured.
6.7 In the event that the Client requests a change of course or module date ICAEW will use all reasonable endeavours to accommodate the request but the following charges will apply:
6.7.1 Change request within 45 days of the course or module date(s) - an administration fee of 20% of the applicable module fee will be payable together with all Committed Costs.
6.7.2 Change request is made within 30 days of the course or module date(s) – 100% of the module fee payable together with all Committed Costs.
ICAEW reserves the right to alter the course content and/or trainer for reasons beyond its control.
7. Intellectual property rights
7.1 All Intellectual Property Rights in the Course Materials and/or arising out of or in connection with the delivery of the Training Course shall be owned by the ICAEW.
7.2 In consideration of receipt by ICAEW of the Fee, ICAEW grants, with effect from the start date of the Training Course, a non-exclusive, non-transferable licence for the Delegates to use the Course Materials for the sole purpose of participating in the Training Course and for their individual personal use thereafter.
7.3 All Course Materials are the exclusive property of ICAEW. Use, scanning, emailing, photocopying, reproduction or distribution of Course Materials not expressly permitted by these Conditions is strictly prohibited and shall constitute an infringement of ICAEW’s Intellectual Property Rights.
8. Client’s obligations
8.1 Neither the Client nor the Delegate shall:
8.1.1 copy, scan, email or share any recording of the Training Course or the Course Materials (whether internally or externally) except where approved by ICAEW and where necessary for the Delegates to complete the Training Course;
8.1.2 alter, or modify in whole or any part of the Course Materials nor permit the Course Materials or any part of them to be combined with or become incorporated into any other materials.
8.2 The Client and the Delegates are notified that the relevant trainer and/or training company for the Training Course have both undertaken to ICAEW not to carry out any repeat or replica training, or substantially similar, or follow-on, training, for any client to whom they deliver training under any ICAEW programme or course. The Client undertakes to ICAEW not to approach any such trainer and/or training company directly or indirectly but, if interested, to contact ICAEW and agree with them the relevant arrangements.
9.1 Both parties shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed by one party to the other party, or to that party’s employees, agents, consultants or subcontractors and any other confidential information concerning that party’s business or products which the other party may obtain during the development and/or delivery of the Training Course and use of the Course Materials (the “Confidential Information”).
9.2 Both parties shall ensure that their employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such Confidential Information comply with this Condition.
9.3 The Client shall not make use of or divulge to any third party any Confidential Information it may gain as a result of any visit to ICAEW’s premises.
9.4 The Client shall not use any such Confidential Information for any purpose other than to perform its obligations under the Agreement.
9.5 The receiving party acknowledges that the requirements in this Condition shall not apply to any part of the Confidential Information which:
9.5.1 is or becomes public knowledge through no fault of the receiving party;
9.5.2 is acquired by the receiving party from a third party with legal title to it;
9.5.3 the receiving party can prove was lawfully in its possession at the date it was disclosed by the disclosing party; or
9.5.4 is independently developed by the receiving party.
9.6 Either party may disclose any such Confidential Information:
9.6.1 to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information in connection with the performance of the Agreement; or
9.6.2 to the extent required by law, by any governmental or other regulatory authority, by a court or other authority of competent jurisdiction, or as is required to be disclosed by an accreditation or certification body only for the purposes of that party’s own internal audit.
10. Warranties and disclaimer
10.1 ICAEW does not make any representation, guarantee or commitment to the Client or any Delegate that the Course Materials shall be error free.
10.2 All representations, warranties and/or terms not expressly set out in these Conditions (whether implied by law, conduct or otherwise) shall be excluded to the maximum extent permitted by law.
11.1 Nothing in these Conditions shall exclude or limit either party’s liability for death or personal injury caused by its negligence, fraud or any other liability that cannot be excluded under applicable law.
11.2 Except in respect of death or personal injury caused by ICAEW’s negligence or as expressly provided in these Conditions, the Client acknowledges that ICAEW shall not be liable to the Client or any Delegate by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement, for any loss of profit or any direct, indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of ICAEW, its servants or agents or otherwise) which arise out of or in connection with the Training Course or the Agreement.
11.3 Except as expressly provided for in these Conditions and subject always to 11.1 and 11.2 above, the total liability of ICAEW under or in connection with the Agreement whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the Fee.
12.1 ICAEW shall be at liberty (without prejudice to any other rights it may have) to terminate the Agreement forthwith on giving notice in writing for any of the following reasons:
12.1.1 non-payment by the Client of any one or more invoices submitted by ICAEW;
12.1.2 a material breach of the Client’s express or implied obligations under the Agreement and where such breach is remediable the Client fails to remedy that breach within thirty (30) days of being notified by ICAEW in writing of the breach;
12.1.3 if a petition is made for the Client’s bankruptcy or if the Client makes any composition or arrangement with or for the benefit of creditors or makes any conveyance or assignment for the benefit of creditors;
12.1.4 where the Client is a company, if any action is taken for or with a view to its winding up, or a petition is presented for an administration or winding up order against it or such an order is made, or it becomes insolvent or unable to pay its debts as they fall due, or an administrative receiver or receiver or manager of its undertaking is duly appointed by a creditor or by the court, or possession is taken of any of its property by an encumbrancer and in that event such termination shall not affect any rights which ICAEW may have against the Client in consequence of the breach by the Client.
12.2 On termination of the Agreement the Client shall immediately pay to ICAEW all of ICAEW’s outstanding unpaid invoices and interest (if applicable) together with any Committed Costs.
12.3 The accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
13. Force majeure
13.1 Neither party shall be in breach of the Agreement if there is any total or partial failure of performance by it of its duties and obligations as a result of any act of God, fire, pandemic, epidemic, act of government or state, act of third-party war, civil commotion, insurrection, act of terrorism, embargo, failure of utility supplies or other reason beyond its reasonable control (“Force Majeure Event”).
13.2 If it is not safe or not possible to hold the Training Course due to a Force Majeure Event, we may, subject to availability, offer you a reasonable number of alternative dates for the Training Course, such alternative dates being within 12 months of the Training Course start Date. You agree in good faith to consider such alternative dates and to negotiate in good faith to agree an alternative date for the Training Course (“Alternative Date”).
13.3 If we have agreed an Alternative Date with you and you then cancel the Training Course scheduled for the Alternative Date other than due to a Force Majeure Event, clause 6 shall apply, and the cancellation charges shall be calculated with reference to the number of days before the Alternative Date.
13.4 If we have agreed an Alternative Date with you, but it is then not safe or possible to hold the Training Course on the Alternative Date due to a Force Majeure Event, either party may terminate this Agreement, and we will refund you all the sums you have paid under this Agreement less any costs we have incurred in performance of this Agreement.
14. Data protection
14.1 Each party agrees that in performing their obligations under the Agreement, they shall comply with the provisions of all applicable Data Protection Legislation to the extent it applies to them.
14.2 The Parties shall be Separate Data Controllers of any Personal Data obtained from each Party for the purpose of the Agreement.
14.3 Each Party shall process the Personal Data only in accordance with the Data Protection Legislation, and shall not process the Personal Data for any purposes other than those as may be expressly authorised from time to time.
14.4 Each Party will ensure that the Personal Data is only released to authorised individuals who are trained in data protection and have committed themselves to confidentiality;
14.5 Each Party shall ensure that they shall have in place appropriate technical and organisational measures to protect the Personal Data provided against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected;
14.6 Each Party shall implement appropriate Records Keeping practices, making such records available to The Parties or a Supervisory Authority on request;
14.7 The Personal Data shall not be transferred in any form or by any means to a country outside the European Economic Area.
14.8 The Client shall ensure the Delegates are made aware that ICAEW will be holding and processing data relating to them for the purposes set out in the Booking Form.
If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provision hereof shall continue in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
16. No partnership or agency
Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent for the other party for any purpose. No party shall have authority to act as agent for, and to bind, the other party in any way.
The Client shall not be entitled to assign its rights or obligations under the Agreement with ICAEW without the prior written consent of ICAEW.
Any waiver by ICAEW of any breach of, or any default under, any provision of the Agreement by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Agreement.
19. Complete agreement
The Agreement together with the Booking Form constitutes the entire agreement between the parties. Any descriptive matter or advertising issued by ICAEW, and any descriptions contained on the Website or any brochure, are issued or published for the sole purpose of giving an approximate idea of the Training Course. They shall not form part of the Agreement or have any contractual force. The Client and the Delegate each acknowledge that they have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of ICAEW which is not set out in the Agreement.
Any variation to these Conditions shall have no effect unless expressly agreed in writing and signed by a duly authorised representative of ICAEW.
21.1 Where a notice is required to be given to any party hereto it may be served by leaving it at the registered office or last known address of that party. Otherwise it may be delivered personally, or be sent by first class post, recorded delivery or by courier to the other party and for the attention of that party’s contact in accordance with Condition 21.2.
21.2 Any notice shall be deemed to have been duly received if delivered personally when left at the address or, if sent by pre-paid first class post or recorded delivery on the second business day after posting, or if delivered by courier on the date and at the time that the courier’s delivery receipt is signed.
22. Contracts (Rights of Third) Parties Act 1999
The parties to the Agreement do not intend that any term of the Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999.
23. Governing law and jurisdiction
The Agreement is governed by the laws of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).