These terms and condition together with any relevant Exhibit shall apply to, and shall govern, the provision by HP of consultancy and training services as described in the Quotation.
1. DEFINITIONS
1.1. “Agreement” means these terms and conditions and any relevant Exhibit incorporated herein; 1.2. “Breach of Duty” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty) 1.3. “Catalogue” means the current HP training catalogue. 1.4. “Charges” means the charges to be paid by Customer for the Services and which are specified in the Quotation. 1.5. “Customer” means the recipient of Services from HP. 1.6. “Exhibit” means a document which describes the terms of specific training services; 1.7. “Liability” means liability in or for breach of contract, Breach of Duty (including negligence), misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with the entering into, performance, non-performance or wrongful performance of this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to “this Agreement” shall be deemed to include any collateral contract). 1.8. “Order” means an Order for Services placed by Customer pursuant to the Quotation and which shall be subject to these terms and conditions. 1.9. “Quotation” means the quotation for the Services submitted by HP to Customer or the Catalogue services selected by the Customer, to which these terms and conditions shall apply. 1.10. “Services” means the Services to be provided by HP as specified in the Quotation. 1.11. “Third Party Services” means third party training courses set out in the Quotation. 1.12. “Timetable” means the estimated timetable in accordance with which HP will perform the Services as specified in the Quotation.
2. APPLICATION 2.1. These terms and conditions shall constitute the entire Agreement between the parties, and shall supersede and exclude any previous communications, representations or agreements between the parties, whether oral or written, relevant to the Services.
2.2. Customer acknowledges and agrees that no representations were made prior to the entering into of this Agreement and that, in entering into this Agreement, it does not rely on, 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 this Agreement or not) other than as expressly set out in this Agreement.
2.3. Neither party has any right of action against the other in respect of any untrue statement (written or oral) made to it in respect of this Agreement (except a fraudulent misrepresentation or any untrue statement as to a fundamental matter including a misrepresentation as to a matter fundamental to a party's ability to perform this Agreement).
2.4. Customer's additional or different terms and conditions shall not apply. Customer's acceptance of the Quotation or the Services and/or use of or licence of any products supplied by HP will constitute Customer's acceptance of these terms and conditions, which may not be changed except by a written amendment signed by an authorised representative of each party.
3. OBLIGATIONS OF HP 3.1. HP shall use all reasonable efforts to provide the Services in accordance with the Timetable, but shall not be liable for failure to meet the Timetable.
3.2. Unless otherwise agreed, the Services shall be performed during HP's normal business hours (09.00 to 17.30, Monday to Friday).
3.3. HP may select any suitably qualified person(s) including subcontractors to perform the Services. HP shall be responsible for the performance of any subcontractors which it appoints.
4. OBLIGATIONS OF CUSTOMER 4.1. Customer acknowledges that HP's ability to perform the Services is dependent upon Customer's full and timely co-operation with HP as well as the accuracy and completeness of any information and data Customer provides to HP. Therefore, Customer shall: 4.1.1. provide HP with access to, and use of, all information, data, documentation, computer time, facilities, working space and office services deemed reasonably necessary by HP to provide the Services; and 4.1.2. appoint a representative who shall provide professional and prompt liaison with HP, have the necessary expertise and authority to commit Customer, and be available at all times when the Services are being provided by HP at Customer's premises.
4.2. Customer shall be responsible for maintaining an external procedure for reconstruction of lost or altered files, data, or programmes to the extent deemed necessary by Customer, and for actually reconstructing any such materials.
5. FORCE MAJEURE 5.1. HP shall not be liable for delays or failure in performance due to unforeseen circumstances or causes beyond HP's reasonable control, including but not limited, to any industrial dispute. In the event of such non-performance continuing for more than three (3) months, either party may terminate the provision of further Services by giving written notice thereof to the other party. 5.2. Should any delay be caused by the default, act or omission of Customer or Customer's servants, agents, employees or subcontractors, then HP may recover any additional costs, charges or expenses incurred by HP as a result of such delay.
6. CHARGES AND PAYMENT 6.1. The Charges are as stated in the Quotation and are valid for thirty (30) days from the date of the Quotation. The Charges exclude Value Added Tax (VAT) which shall be added to each invoice at the rate applicable at the date of invoice.
6.2. Customer shall pay all invoices within thirty (30) days from the date of invoice. Should any sum due to HP remain unpaid after ten (10) days from the date of written notice to the Customer, HP shall not be obliged to continue performance of the Services under the Quotation with Customer. HP shall be entitled to interest on the amount due at the rate of three (3) per cent per annum above the HSBC Bank’s base rate ruling from time to time, calculated from the date due, and to recover its expenses including legal fees and costs of collection.
6.3. HP shall have the right to change payment terms specified herein at any time, if Customer's financial condition or previous payment record so warrants.
7. CANCELLATIONS/CHANGES 7.1. In the event the Customer wishes to cancel or transfer Services ordered from HP, such cancellation or transfer must be made in writing in accordance with Clause 16.4. Should the Customer give notice of cancellation or transfer of ten working days or less, Customer will be liable to pay to HP:-
7.1.1 for cancellation, 100% (one hundred per cent) of the charge for the Services cancelled.
7.1.2 for transfer, a fee of 30% (thirty percent) of the original price quoted to transfer the course to another date.
7.1.3 for Free of Charge (“FOC”) Courses, HP will determine whether the Customer must forfeit the FOC place or to charge a 30% of the current chargeable price to transfer the FOC place to another date.
7.1.4 where HP has booked course examinations and/or accommodation on behalf of the Customer, the Customer will be liable to pay HP 100% of the charge for the examination fee and unrecoverable accommodation costs in addition to the 30% fee set out in 7.1.2 above.
7.2. In the event Customer wishes to transfer the Services to another date, then subject to Customer giving HP at least ten (10) days written notice HP will use reasonable efforts to accommodate such a request. 7.3. Customer may request other changes to the Services quoted but such changes shall only become effective if agreed in writing by both parties, setting forth the implications on price and time scale.
7.4. Substitution of delegates from the same company by the Customer will be allowed upto the commencement of the course without charge.
8. CONFIDENTIAL INFORMATION 8.1. Each party shall protect against any unauthorised disclosure of the information of the other party which is clearly designated in writing as being confidential (hereinafter referred to as "Confidential Information") by using the same degree of care as it takes to preserve and protect its own confidential information of a similar nature but in no event shall this be less than a reasonable degree of care. Such obligation shall continue for the duration of the Agreement and for two (2) years thereafter. 8.2. In the event of oral disclosure of Confidential Information, such information shall be treated in accordance with the terms of this Clause from the time of disclosure, but the information disclosed shall be summarised in writing, marked as being Confidential Information and sent to the other party within ten (10) days of the initial oral disclosure. 8.3. A receiving party shall not be required to treat as confidential any information which is already in its possession, or becomes publicly available, is independently developed by it, or is lawfully obtained from third parties without restriction on disclosure. 8.4. HP may pass Confidential Information to Hewlett-Packard Company and its subsidiaries in which event: 8.4.1. these companies may only use the Confidential Information for the purposes of this Clause; and 8.4.2. HP hereby warrants that these companies will abide by the terms of this Clause. 8.4.3. the disclosing party warrants that it has the right to disclose any Confidential Information provided to the other pursuant to the provision of the Services. 8.4.4. in the event of termination of the Order the receiving party shall destroy or return to the disclosing party all Confidential Information received pursuant to the provision of the Services together with all partial or complete copies thereof.
9. INTELLECTUAL PROPERTY RIGHTS 9.1. All copyright and other intellectual property rights existing prior to the date of the Order shall vest in their originator absolutely. 9.2. Customer hereby grants HP a non-exclusive, world-wide, royalty-free licence to Customer's pre-existing copyright and other intellectual property rights to the extent necessary for HP to perform its obligations under the Order and will indemnify HP fully against any breach of this Clause. 9.3. Customer warrants that it is able to grant HP all necessary rights and licences in respect of any third party intellectual property rights licensed to Customer to the extent necessary for HP to perform its obligations under the Order and will indemnify HP fully against any breach of this Clause. 9.4. HP shall own all intellectual property rights, title and interest in any ideas, concepts, know-how, documentation or techniques developed hereunder. HP hereby undertakes to grant Customer upon request on such terms as may be agreed such licence(s) as are necessary to enable Customer to make use of the same solely for Customer's own internal purposes. 9.5. All documentation, educational material, including but not limited to assembled and individual items, web pages, graphics, designs, photos, source codes and texts and all other written information in any form, including electronic, provided by HP prior to or during supply of the Services are protected by HP copyright. All such materials are provided for the sole use of Customer and may not be copied or reproduced in any form without the prior written consent of HP. All authorised copies shall carry HP's approved copyright notice.
10. WARRANTIES 10.1. HP shall perform the Services in a professional manner in accordance with generally recognised commercial practices and standards. 10.2. Save as expressly set out in this Clause 10, all other conditions, warranties, undertakings, representations and other terms of any kind whatsoever, express or implied (whether by statute, common law or otherwise), in respect of the subject matter of this Agreement are hereby excluded by HP to the fullest extent permitted by law and HP shall have no other obligation, duty or Liability whatsoever to Customer. Without prejudice to the generality of the foregoing, HP specifically disclaims all warranties or conditions implied by law concerning satisfactory quality and/or fitness for purpose and/or as to description to the fullest extent permitted by law. 10.3. HP offers no warranty or condition of any kind in respect of Third Party Services. HP hereby assigns to the extent legally assignable any rights which HP may have under any warranties given by any third party in respect of Third Party Services and HP agrees to provide reasonable assistance to the Customer (at the Customer’s sole cost and expense) for the purpose of enforcing the Customer’s rights under any such warranties.
11. LIMITATION OF LIABILITY AND REMEDIES 11.1. The Customer acknowledges and agrees that it has accepted the terms of this Agreement in the knowledge that HP’s liability is limited and that the prices and charges payable have been calculated so as to reflect such limitations and thus represent a reasonable and commercial allocation of risk between the parties. 11.2. This Clause 11 prevails over all other clauses and sets forth the entire Liability of each party to the other and all other Liability, subject to Clause 11.3, is hereby excluded. 11.3. HP does not exclude or limit Liability for: (i) death or personal injury including to the extent that such injury results from its negligence (as such term is defined in the Unfair Contract Terms Act 1977); or (ii) any breach of any undertaking as to title, quiet possession and freedom from encumbrance implied by law; (iii) any fraudulent misrepresentation on the part of HP; (iv) Part 1 of the Consumer Protection Act 1987; or (v) any other Liability that cannot be excluded by law. 11.4. HP does not exclude (but for the avoidance of doubt does limit) Liability for any fundamental misrepresentation, including any misrepresentation as to a matter fundamental to its ability to perform its obligations under this Agreement, on the part of HP. 11.5. Except as provided in Clause 11.3, HP shall have no Liability for loss of or damage to tangible property (including real property) save to the extent it arises due to the negligence of HP, its employees, subcontractors or agents acting within the course of their employment during the performance of its obligations under this Agreement. 11.6. Except as provided for in Clause 11.3, HP's total Liability shall not exceed: 11.6.1. in respect of Liability for loss of or damage to tangible property (including real property) the sum of £1,000,000 (one million pounds) for any one event or series of connected events; and 11.6.2. in respect of all other Liability, 110% (one hundred and ten percent) of the total amount paid or payable by Customer under this Agreement. The limitation of Liability under this Clause 11.6 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement. 11.7. HP shall not be under any Liability for: 11.7.1. loss of actual or anticipated profits; 11.7.2. loss of goodwill; 11.7.3. loss of business; 11.7.4. loss of revenue or of the use of money; 11.7.5. loss of contracts; 11.7.6. loss of anticipated savings; 11.7.7. loss of data and/or undertaking the restoration of data or software restoration; 11.7.8. any damages relating to the procurement by Customer of any substitute goods or services (i.e., "cost of cover"); 11.7.9. any travel and/or accommodation expenses; 11.7.10. any special, indirect or consequential loss. and such liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of any doubt, clauses 11.7.1 to 11.7.8 above apply whether such damage or loss is direct, indirect, consequential or otherwise.
11.8. NOTHING IN THIS AGREEMENT SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER. 11.9. Customer agrees to indemnify HP in respect of any loss, damage or injury caused to the property of HP or its employees or any third party's property used by HP for the delivery of the Services, whether at the Customer site or any other site specified by the Customer, by the conduct, act or omission of any delegate, employee, servant or agent of the Customer. 11.10.Without prejudice to the provisions of clause 11.3, the only remedy available to Customer for breach of this Agreement shall be for breach of contract under the terms of this Agreement. 11.11.For the avoidance of doubt, HP shall not be liable for any Third Party Services.
12. NON-SOLICITATION 12.1. Neither party shall directly or indirectly solicit or offer employment to any of the other party's personnel associated with the Services performed hereunder while such Services are being performed and up to six (6) months after completion of the Services or termination of the Order whichever is later.
12.2. In the event of any breach of this clause the party in breach shall pay compensation to the other party equivalent to three (3) months of the new employee's gross salary.
13. DURATION AND TERMINATION 13.1. Either party may terminate the Order, by notice in writing, in the event of: 13.1.1. breach by the other of any material obligation hereunder and failure to remedy such breach within 30 (thirty) days of receipt of written notice to do so; or 13.1.2. any proceedings in bankruptcy, insolvency or winding up by or against the other party or the appointment of an assignee for the benefit of creditors or of a receiver or of any similar situation arising. 13.2. Upon termination Customer shall pay HP for all Services performed and charges incurred up to the date of termination. Should the sum of such amounts be less than any advance payment received by HP, HP shall refund the difference within 30 (thirty) days of receipt of an invoice from Customer.
14. ADMISSION AND EXPORT CONTROL 14.1. HP reserves the right to refuse admission to any person, or request any person to leave the premises on which the Services are being (or are to be) provided, whom it considers in its absolute discretion to be unsuitable for admission or disruptive to any education course or any other Services.
14.2. It is accepted and understood that on occasions it may be necessary for HP to obtain authorisation from the US Department of Commerce before training products, services and/or technical data covered by these Terms and Conditions can be provided or delivered. HP shall be responsible for applying for any necessary authorisations from Export Control Authorities to enable delivery to be made to the Customer. The Customer shall provide all information required in support of such applications. Delivery of product and Services is subject to such authorisations being available at time of delivery. The Customer undertakes not to deal with the products or technical data in violation of US Export Administration and other applicable regulations. The Customer shall be responsible for obtaining any necessary authorisations for re-export or transhipment from the United Kingdom.
15. MISCELLANEOUS 15.1. HP may provide the same or similar services to other customers.
15.2. Customer may not assign any rights or obligations without HP's written consent.
15.3. Any software installed or included in any of the Services shall be licensed from HP under HP’s standard software licence terms or such other licence terms as accompany the software.
15.4. Any required notices shall be given in writing at the registered address of each party or such other address as either party may substitute by written notice to the other.
15.5. HP's failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
15.6. The invalidity or unenforceability of any provision of these terms and conditions shall not affect the validity or enforceability of any other provision of these terms and conditions, which shall continue in full force and effect except for any such invalid or unenforceable provision.
15.7. These terms and conditions and the Order shall in all respects be governed by and construed in accordance with the laws of the Reublic of Ireland. The parties submit to the exclusive jurisdiction of the courts of the republic of Ireland.
15.8. For the avoidance of doubt, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
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