Contract

BACKGROUND

The Supplier is in the business of providing training and certification services to the HVAC industry.
The Supplier has created a third party certification scheme, to provide a framework of standards to ensure that installation operatives are competent and compliant in the workplace and are working to the highest possible industry standards; the National Occupational Standards (“NOS”)
The Customer agrees to obtain and the Supplier agrees to provide the Certification and CPD Services on the terms set out in this agreement.

Agreed terms

Interpretation

The following definitions and rules of interpretation apply in this agreement.

Definitions

Affiliate: in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.
Applicable Data Protection Laws: means:
1. To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
2. To the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Certification and CPD Services: the services as set out in Schedule 1, including delivery of the Scheme to the Customer.
Charges: the sums payable for the Certification and CPD Services and, as set out in Schedule 2.
Customer’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Certification and CPD Services.
Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Certification and CPD Services, including the items provided pursuant to 4.1(c).
Customer Personal Data: any personal data which the Supplier processes in connection with this agreement, in the capacity of a processor on behalf of the Customer.
Deliverables: any output of the Certification and CPD Services to be provided by the Supplier to the Customer as specified in Schedule 1 and any other documents, products and materials provided by the Supplier to the Customer in relation to the Certification and CPD Services (excluding the Supplier’s Resources).
Deposit: The amount stated in Schedule 2.
EU GDPR: means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill 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.
Scheme: the certification scheme developed by the Supplier onto which the Customer will be enrolled.
Supplier’s Resources: any equipment, including tools, systems, cabling or facilities, or online resource (including the online platform through which the Certification and CPD Services are delivered) provided by the Supplier to the Customer and used directly or indirectly in the supply of the Certification and CPD Services but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer.
Supplier Personal Data: any personal data which the Supplier processes in connection with this agreement, in the capacity of a controller.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.

Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
A reference to writing or written includes fax and email.
Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document, in each case as varied from time to time.
References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
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.

Commencement and duration
1. This agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with 11 (Termination), until the second anniversary of the Commencement Date (the “Initial Period”).
2. At the end of the Initial Period this agreement shall subject to clause 2.3, automatically renew for a period of 12 months (the “Extension Period”).
3. Either party may terminate this agreement by serving at least 3 months written notice expiring on the last day of the Initial Period, or any Extension Period.
Supplier’s responsibilities
1. The Supplier shall use reasonable endeavours to supply the Certification and CPD Services and deliver any Deliverables to the Customer in accordance with this agreement in all material respects. The Supplier makes no guarantee regarding the successful certification of the Customer.
2. The Supplier shall use reasonable endeavours to meet any performance dates specified in Schedule 1 but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement.
3. The Supplier shall procure that a representative attends the site at which the Customer is carrying out works at such time as is mutually agreed between the parties and as required for the performance by the Supplier of the relevant parts of the Certification and CPD Services. When attending such site, the Supplier shall observe all reasonable health and safety and security requirements that apply at such site and that have been communicated to it under 4.1(d), provided that it shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this agreement. In the event of the relevant site being of a condition that the Supplier or its representative reasonably believes them to be unsafe, the Supplier shall not be bound by this clause 3.3.
4. A large part of the Scheme will be delivered online. The Supplier shall provide the Customer with access to online resources for the delivery of the Scheme. The Customer shall keep all login details, passwords and content of such online resources confidential. The Customer is responsible for ensuring that they meet the technical requirements necessary to access the Scheme content online, and that they have suitable equipment and internet access. Where any third party software is necessary to access the course materials, the Customer agrees that it is their responsibility to install such software and the Supplier has no liability to the Customer in respect of that software.
5. Whilst the Supplier takes reasonable steps to ensure that any online resources used during the delivery of the Certification and CPD Services are secure, the Supplier does not guarantee that such online resources will be secure or free from bugs, viruses or any other malware. The Customer is responsible for configuring their systems, computer programmes and platform to access such online resource and must use their own virus protection software.
Customer’s obligations
1. The Customer shall:
  1. co-operate with the Supplier in all matters relating to the Certification and CPD Services;
  2. provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the sites at which the Customer is carrying out works as is reasonably necessary for the delivery of the Certification and CPD Services, in particular for inspections and assessments;
  3. provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) required under Schedule 1 or otherwise reasonably required by the Supplier in connection with the Certification and CPD Services and ensure that they are accurate and complete;
  4. inform the Supplier of all health and safety and security requirements that apply at such site at which the Customer is carrying out works and to which the Supplier’s personnel notifies the Customer it will be attending;
  5. ensure that all the Customer’s Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements;
  6. ensure that they treat all of the Supplier’s personnel involved in a respectful manner;
  7. keep, maintain and ensure that the Supplier’s Resources remain in good condition and in accordance with the Supplier’s instructions from time to time, and shall not dispose of or use the Supplier’s Resources other than in accordance with the Supplier’s written instructions or authorisation;
  8. ensure that they use any online platform or resource provided by the Supplier in a professional manner and that they do not upload content which the Supplier considers offensive, discriminatory or defamatory nor which breaches any obligations of confidentiality or infringes a third party’s intellectual property rights or introduces any viruses or other malware onto such platform. The Customer agrees to indemnify the Supplier for breach of this sub-clause (h).
2. If the Supplier’s performance of its obligations under this agreement 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, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
Non-solicitation
1. Except in respect of any transfer of employees of the Supplier to the Customer pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246), the Customer shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of 12 months after the termination or expiry of this agreement, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Certification and CPD Services.
2. Any consent given by the Supplier in accordance with 5.1 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
Charges and payment
1. In consideration of the provision of the Certification and CPD Services by the Supplier, the Customer shall pay the Deposit upon signing this Agreement; and the Charges monthly in advance, unless agreed otherwise between the parties in writing.
2. The Charges exclude the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Certification and CPD Services which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice.
3. The Supplier may increase the Charges at the end of the Initial Period and thereafter on an annual basis with effect from each anniversary of the date of this agreement in line with the percentage increase in the Retail Prices Index in the preceding 12-month period.
4. The Supplier shall invoice the Customer for the Charges monthly in advance.
5. In the event that the Customer is not certified after 2 assessments by the Supplier, an additional Charge will be due from the Customer to the Supplier for future assessments, which shall be as set out in Schedule 2 (or if no amount is stated, a reasonable charge).
6. The Customer shall pay each invoice submitted to it by the Supplier within 30 days of receipt to a bank account nominated in writing by the Supplier from time to time.
7. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this agreement on the due date:
  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 6.7(a) will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%;
  2. the Supplier may suspend all or part of the Certification and CPD Services until payment has been made in full.
8. All sums payable to the Supplier under this agreement:
  1. are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
  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).
Intellectual property rights
1. In relation to the Deliverables:
  1. the Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;
  2. the Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this agreement to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Certification and CPD Services and the Deliverables in its business; and
  3. the Customer shall not sub-license, assign or otherwise transfer the rights granted in 7.1(b) without the Supplier’s advance written consent.
2. In relation to the Customer Materials, the Customer:
  1. and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
  2. grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the Certification and CPD Services to the Customer.
3. The Supplier:
  1. warrants that the receipt and use of the Certification and CPD Services and the Deliverables by the Customer shall not infringe the rights, including any Intellectual Property Rights, of any third party;
  2. shall, subject to 10 (Limitation of liability), indemnify the Customer in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use of the Certification and CPD Services and the Deliverables; and
  3. shall not be in breach of the warranty at 7.3(a), and the Customer shall have no claim under the indemnity at 7.3(b), to the extent the infringement arises from:
    1. the use of the Customer Materials in the development of, or the inclusion of the Customer Materials in any Deliverable;
    2. any modification of the Deliverables or Certification and CPD Services, other than by or on behalf of the Supplier; and
    3. compliance with the Customer’s specifications or instructions.
4. The Customer:
  1. warrants that the receipt and use of the Customer Materials in the performance of this agreement by the Supplier, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
  2. shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Materials.
5. If either party (the Indemnifying Party) is required to indemnify the other party (the Indemnified Party) under this 7, the Indemnified Party shall:
  1. notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at 7.3(b) or 7.4(b) (as applicable) (IPRs Claim);
  2. allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
  3. provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
  4. not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
Data protection
1. For the purposes of this 8, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
2. Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
3. The parties have determined that for the purposes of Applicable Data Protection Laws the Supplier shall process the personal data as set out in 1.1 of Schedule 3 as processor on behalf of the Customer.
4. Should the determination in 8.3 change, the parties shall use all reasonable endeavours make any changes that are necessary to this 8 and Schedule 3.
5. The Customer consents to, (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by the Supplier in connection with the processing of Supplier Personal Data, provided these are in compliance with the then-current version of the Supplier’s privacy policy available at https://www.paddeco.com/privacy/ (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and this agreement, the Privacy Policy will take precedence.
6. Without prejudice to 8.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Supplier Personal Data and Customer Personal Data to the Supplier or lawful collection of the same by the Supplier for the duration and purposes of this agreement.
7. In relation to the Customer Personal Data, Schedule 3 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.
8. Without prejudice to 8.2, the Supplier shall, in relation to Customer Personal data:
  1. process that Customer Personal Data only on the documented instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that Customer Personal Data (Purpose). Where the Supplier is relying on Applicable Laws as the basis for processing Customer Personal Data, the Supplier shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer on important grounds of public interest. The Supplier shall inform the Customer if, in the opinion of the Supplier, the instructions of the Customer infringe Applicable Data Protection Laws;
  2. implement technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
  3. ensure that any personnel engaged and authorised by the Supplier to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
  4. assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  5. notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
  6. at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless the Supplier is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this 8.8(f), Customer Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
  7. maintain records to demonstrate its compliance with this 8.
9. The Customer provides its prior, general authorisation for the Supplier to:
  1. appoint processors to process the Customer Personal Data, provided that the Supplier:
    1. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this 8;
    2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
    3. shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.
  2. transfer Customer Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
10. Either party may, at any time on not less than 30 days’ notice, revise this 8 (Data protection) by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
11. The Supplier’s liability for losses arising from breaches of this 8 is as set out in 10.6(b).
Confidentiality
1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by 9.2.
2. Each party may disclose the other party’s confidential information:
  1. to its employees, officers, representatives, contractors, subcontractors 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 this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this 9; and
  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
3. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
Limitation of liability
1. References to liability in this 10 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
2. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
3. Nothing in this this 10 shall limit the Customer’s payment obligations under this agreement.
4. Nothing in this agreement shall limit the Customer’s liability under 7.4 (IPR indemnities).
5. Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for:
  1. death or personal injury caused by negligence;
  2. fraud or fraudulent misrepresentation; and
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
6. Subject to 10.2 (no limitations in respect of deliberate default) and 10.5 (liabilities which cannot legally be limited), each party’s total liability to the other:
  1. for damage to property caused by the negligence of its employees and agents in connection with this agreement shall not exceed £1,000,000.00 (one million pounds sterling) for any one event or series of connected events;
  2. for loss arising from that party’s failure to comply with its data processing obligations under 8 (Data protection) shall not exceed 150% the Charges actually paid to the Supplier in the previous 12 months; and
  3. for all other loss or damage which does not fall within subclause (a) or (b) shall not exceed 100% the Charges actually paid to the Supplier in the previous 12 months;
7. Subject to 10.2 (No limitations in respect of deliberate default), 10.3 (No limitation on the customer’s payment obligations), 10.4 (liability under identified clauses) and 10.5 (Liabilities which cannot legally be limited), this 10.7 specifies the types of losses that are excluded:
  1. loss of indirect profits;
  2. loss of sales or business;
  3. loss of agreements or contracts;
  4. loss of anticipated savings;
  5. loss of use or corruption of software, data or information;
  6. loss of or damage to goodwill; and
  7. indirect or consequential loss.
8. The Supplier has given commitments as to compliance of the Certification and CPD Services with relevant specifications in 3 (Supplier’s responsibilities). In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
9. Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
Termination
1. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
  1. the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
  2. the other party repeatedly breaches any of the terms of this agreement 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 terms of this agreement;
  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 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
  4. 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 (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986;
  5. 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 any of its creditors;
  6. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
  7. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
  8. the other party (being an individual) is the subject of a bankruptcy petition, application or order;
  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;
  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 11.1(d) to clause 11.1(i) (inclusive);
  11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
  12. the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
2. Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer, if the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.
Obligations on termination and survival
1. Obligations on termination or expiry

On termination or expiry of this agreement:

the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Certification and CPD Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
the Customer shall, within a reasonable time, return all of the Supplier’s Resources. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of the Supplier’s Resources. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
the Supplier shall on request return any of the Customer Materials not used up in the provision of the Certification and CPD Services.
Survival
1. On termination or expiry of this agreement, the following clauses shall continue in force: 1 (Interpretation), 5 (Non-solicitation), 7 (Intellectual property rights), 9 (Confidentiality), 10 (Limitation of liability), 12 (Consequences of termination), 16 (Waiver), 18 (Severance), 20 (Conflict), 24 (Governing law) and 25 (Jurisdiction).
2. Termination or expiry of this agreement 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 agreement which existed at or before the date of termination or expiry.

Force majeure
1. Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
  1. acts of God, flood, drought, earthquake or other natural disaster;
  2. epidemic or pandemic;
  3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
  4. nuclear, chemical or biological contamination or sonic boom;
  5. any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
  6. collapse of buildings, fire, explosion or accident;
  7. any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
  8. interruption or failure of utility service.
2. Provided it has complied with 13.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
3. The Affected Party shall:
  1. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
  2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
4. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 12 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving written notice to the Affected Party.
Assignment and other dealings
1. This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
2. The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that the Supplier gives prior written notice of such dealing to the Customer.
Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

Waiver
1. A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
2. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
3. A party that waives a right or remedy provided under this agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
Rights and remedies

The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

Severance
1. If any provision or part-provision of this agreement 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 this agreement.
2. If any provision or part-provision of this agreement is deemed deleted under 18.1 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.
Entire agreement
1. This agreement 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.
2. Each party agrees 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
Conflict

If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.

No partnership or agency
1. Nothing in this agreement 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.
2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Third party rights
1. This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
2. The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
Notices
1. Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
  1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
  2. sent by email to the address specified in Schedule 1.
2. Any notice or communication shall be deemed to have been received:
  1. if delivered by hand, at the time the notice is left at the proper address;
  2. 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; or
  3. 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 23.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
3. This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Governing law

This agreement 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 the law of England and Wales.

Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

This agreement has been entered into on the date stated at the beginning of it.

Services Details

1. Services

The Supplier shall carry out an assessment of the Customer in accordance with the Certification Procedure included at Appendix 1 to this Schedule 1, as may be reasonably amended by the Supplier from time to time.

2. Timetable

For initial assessment: within the first 3 months
Frequency of assignments: six-monthly following initial assessment

APPENDIX 1 TO SCHEDULE 1

Certification Procedure

Per the certification scheme manual, the following procedure shall apply when certifying individuals and maintaining certification. All certification shall be undertaken by Paddeco employees.

Upon successful registration, an on-site assessment visit will be arranged, at a mutually agreed time, during which a Paddeco assessor will observe the individual in his/her workplace and assess them against the relevant National Occupational Standards (NOS) for their job role. These NOS will have been provided to the individual ahead of the visit, so they are aware of what is expected of them.

The relevant NOS (per point 1) will form a certification report. This report will be updated by the assessor, on-site, on an electronic tablet device. The report will be stored online in a secure database, available to Paddeco staff and eventually the individual themselves.

Upon successful completion, the assessor will send the certification report, online, to the Paddeco IQA (Internal Quality Assurer). The IQA will quality check the report. If satisfied, the report will be posted to the individual’s online portal where they can view/download it. If the IQA is not satisfied it will be rejected and returned to the assessor for further feedback / explanation, after which the process will repeat.

If an individual fails an on-site visit, it will be repeated up to three months later and carried out by a different Paddeco assessor. Should it be failed a second time, the individual will be offered additional learning support.

Following the initial on-site visit, each individual will be required to complete three six-monthly assignments during each two-year certification period. These assignments will be job-role specific and will cover the remaining (Knowledge) NOS that were not covered by the on-site (Performance) NOS. Assignments will be posted in each individual’s online portal, completed offline and emailed to an assessor.

Once received, the assessor will ‘mark’ each assignment per the NOS requirements and then submit to the IQA for final verification. If approved, the result will be posted in the individual’s online portal. If rejected by the IQA, the assignment will be returned to the assessor for further feedback / explanation.

If an individual fails the assignment pass rate of 80%, they will be asked to re-submit the assignment, following assessor feedback.

Paddeco will endeavour to accommodate special needs at all times and, when requested, will provide offline information in the place of online assignments and report.

Recertification

The re-certification fee, payable if the Customer is not certified after its second certification assessment, will be £450 (inc. VAT)

Processing, Personal Data and Data Subjects

Parties’ roles
1. Where the Supplier acts as a processor: processing Personal Data in delivery of the Certification and CPD Services.
Particulars of processing
1. Scope: processing in the process of performing this Agreement and delivering the Certification and CPD Services; and for compliance with the requirements of any relevant certifying body regarding the certification of the Customer.
2. Nature: collection; storage; use; transmission; analysis and assessment of Personal Data.
3. Purpose of processing: for the performance of its obligations under this Agreement; for compliance with the requirements of any certifying body.
4. Duration of the processing: for the duration of this Agreement, the duration of any certification’s validity or the duration required by any certifying body for their audit or record keeping purposes.
5. Types of personal data: names; addresses; email addresses; telephone numbers; qualifications; health matters relevant to the certification process; electronic identifiers (IP addresses etc); Scheme online resource login details.
6. Categories of data subject: Customer