|Terms and Conditions for the Supply of Open Education Services|
1.1 Open Education agrees to provide and the Customer to take and pay for the Training Courses and/or facilities supplied under the Agreement. The terms and conditions of this Agreement apply to:
1.1.1 individual standard or bespoke courses at Open Education's and Customer's premises.
1.1.2 courses provided under an annual contract with Open Education.
1.1.3 the hire by the Customer of training facilities at Open Education's premises.
1.2 All charges quoted by Open Education are valid for a period of ninety (90) days from the date set out overleaf, or, if later in time, on the registration form.
2. INDIVIDUAL COURSES
2.1 Provisional course bookings may be made by telephone. However, to confirm each booking the Customer agrees that he will complete and return to Open Education the standard registration form. Open Education reserves the right to refuse attendance to the course in the event that the registration form is not completed and returned. If a booking is made with 48 hours of the commencement of the course, the registration form may be completed at Open Education's Education Centre, or the Customer may confirm his booking by facsimile, which shall acknowledge acceptance of these terms of conditions. The Customer may substitute personnel attending the course prior to commencement of the course.
2.2 The description and date and charges for the course are as set out on the registration form. Fuller details of the course are as generally set out in Open Education's then current Education Directory which is available on request. Open Education reserves the right to improve the specification and format of its courses for the benefit of its Customers without notice to the Customer.
2.3 The course will be given at Open Education's nominated Education Centre as advised to the Customer. Open Education reserves the right to nominate a reasonable alternative Education Centre and will advise the Customer of this.
2.4 Open Education reserves the right to cancel or reschedule any course if the number of attendees is insufficient to justify running the course, or if Open Education is prevented from doing so by events beyond its reasonable control, including in particular, but not limited to, illness of lecturing staff.
2.5 In the event Open Education is obliged to cancel or reschedule any course under the provisions of clause 2.4 Open Education will notify the Customer forthwith. Open Education will in addition, refund in full all monies paid by the Customer, or at the Customer's option apply the monies to a re-scheduled, or alternative course. Open Education accepts no liability for travel, accommodation or incidental costs incurred by the Customer in the event that any course is cancelled or rescheduled.
3. PERIODIC CONTRACT
3.1 For the purposes of this clause 'course days' shall mean the total number of days on which the Customer wishes to send its employees on Open Education courses during the period specified in the Agreement commencing with the date of signature of this Agreement by Open Education.
3.2 The Customer may in consultation with Open Education select any number of Course Days. Subject to availability and to the provisions of clause 2.4, the Customer may register its employees on any training courses given during the said specified period. The Customer will, if requested, provide Open Education at the time of registration, with its official purchasing number which Open Education will quote on its invoice to the Customer.
3.3 In consideration of the Customer agreeing to take and pay for the agreed number of Course Days Open Education shall extend a discount to the Customer on its normal charges for courses in accordance with its then standard commercial policy, based on the number of Course Days selected by the Customer. Open Education will apply the discount to each invoice rendered to the Customer in accordance with clause 7.
3.4 At the end of each annual period, Open Education will perform a reconciliation of the Customer's account, and the discount level will be adjusted to reflect the actual number of Course Days taken by the Customer. Open Education will invoice the Customer for any excess discount taken by the Customer. If the Customer is entitled to receive further discount, Open Education will apply a credit to the Customer's account.
3.5 Contracts for consequential years will be negotiated by Open Education and the Customer on or prior to the expiry of each periodic contract.
3.6 The Customer agrees to comply with the provisions of clause 2 for all courses to be taken under each periodic contract, and charges will be levied in accordance with clause 7.1.
4. COURSES AT CUSTOMER PREMISES
4.1 By prior arrangement with Open Education, and subject to the provisions of this clause, Open Education agrees that it will provide specified training course(s) to the Customer at the Customer's premises for the charges set out in this Agreement. Open Education reserves the right to increase charges in the event that the normal course day is extended owing to reasons beyond Open Education's control, or by specific requests from the Customer.
4.2 The Customer shall be responsible for the provision of a suitable and secure training room at the Customer's premises for the duration of the course, (the specifications of which will be agreed with Open Education prior to the course being given) together with all heating, lighting and a suitable electricity supply and power outlets, at no cost to Open Education. The Customer undertakes not to change the room. Open Education will provide an instructor, whiteboards, course materials, desks, audio visual and appropriate computer equipment. If requested by Open Education , the Customer agrees to make the training room available to Open Education in advance of the course being given for the installation of computer and other equipment.
4.3 When not in use for education purposes, the Customer may use the computer equipment solely for the purposes of practising course exercises given by the Open Education instructor, or by prior arrangement with Open Education or demonstration purposes to other employees. The Customer undertakes that it will:
4.3.1 look after the equipment and use the same in accordance with any written or oral instructions given by Open Education.
4.3.2 not use it for any other purposes (in particular for software development or copying of software).
4.3.3 if the equipment is to remain at the Customer's premises for longer than one day, ensure that the training room is locked after use of the equipment has finished on each day.
4.3.4 ensure that no part of the equipment is moved in or removed from the training room.
4.3.5 ensure that the equipment is switched off after use.
4.3.6 not make any alteration whatsoever to the equipment nor connect by electrical or mechanical means any other machines or devices to the equipment.
4.3.7 indemnify Open Education against any loss of or damage to the equipment and/or injury or death to its employees or agents arising out of its use of the equipment under the provision of this clause save where the same is caused by the negligence of Open Education.
4.4 In the event that the equipment or any part thereof shall develop a fault when the course instructor is not present, the Customer will cease forthwith the use of the affected part, and will report the fault as soon as possible to the course instructor, who will inform Open Education's Customer Centre. The Customer agrees that it will not itself try to correct any fault in the equipment.
5. HIRE OF OPEN EDUCATION FACILITIES
5.1 For the charges set out in this Agreement, Open Education agrees to hire and the Customer to take on hire, a designated classroom at Open Education's training centre for the period stared overleaf, for the purposes solely of the training by the Customer of its own personnel.
5.2 If selected by the Customer, Open Education will provide similar facilities in the classroom to those set out in clause 4.2 save that in respect of computer facilities the Customer will be given Open Education designated terminal access to a central processing unit at the training centre. The charges for the use of the facilities are included in the classroom charges, providing the Customer gives adequate notice to Open Education. Open Education will provide telephone facilities to the Customer at its training centre, either for the purpose of normal telephone calls, or for demonstration by the Customer of remote computing facilities. The charges for providing telephone lines, and all ancillary charges associated therewith including in particular but not limited to, per call charges, hire charges, central processing unit and hire time, will be invoiced to the Customer at intervals agreed with the Customer.
5.3 Open Education reserves the right to evaluate any of the Customer equipment which the Customer wishes to use during the courses and which it proposes to attach to Open Education equipment and may in its sole discretion refuse to allow such equipment to be attached to Open Education equipment.
5.4 By prior arrangement with Open Education , access to the computer room of Open Education's training centre will be given to the Customer, provided always that:
5.4.1 such access will be supervised by Open Education personnel.
5.4.2 physical demonstrations of equipment in the computer room will be carried out solely by Open Education personnel.
5.4.3 other than as set out in clause 5.4.2 no training will be carried out by Open Education personnel.
5.5 All Customer property brought onto Open Education's premises for the purpose of training shall be at the Customer's sole risk and Open Education will accept no liability whether in contract or tort, in respect of any loss of or damage to the said property from whatsoever cause.
5.6 Customer agrees to ensure that its employees will comply with all reasonable instructions given by Open Education staff, whether orally or in writing, concerning use of Open Education's premises, and in particular those instructions relating to health and safety.
5.7 Open Education shall have the right to terminate immediately the hiring of the room and the facilities contained therein, in the event that the room and/or facilities are used other than for the purpose of training.
6. BESPOKE COURSES
6.1 The Customer may request Open Education to develop a new course or modify an existing course specifically to the Customer requirements.
6.2 If such request is accepted by Open Education:
6.2.1 the Customer will analyse and determine its requirements for the course.
6.2.2 The Customer and Open Education will jointly prepare and agree the specification for the course, including but not limited to the content of the course, and course notes, the depth to which the content is to be covered, the time to be allocated to each subject, the number of days over which the course is to be given, and the type and skill of the Customer personnel who will undertake the course. The Customer will confirm the foregoing matters in writing to Open Education prior to any development work being carried out.
6.3 If the Customer wishes to modify a standard course, Open Education will provide details of the Subjects covered within the said course.
6.4 In consideration of carrying out the development or modification work on the course, the Customer agrees to pay Open Education's the current per diem charges. Any estimate of the amount of time necessary to develop the course shall be given by Open Education in good faith but shall not be binding on Open Education. All charges for bespoke work are due and payable to Open Education upon completion of the development work, whether or not the course is given by Open Education, and the Customer agrees to pay Open Education's invoice pursuant to clause 7.4.
6.5 The Customer may request Open Education to vary the extend or content of the course either during or after development. All such requests will be in writing. Open Education shall not unreasonably refuse to carry out such variation. The Customer agrees to pay Open Education's standard daily course development charges for any variations carried out by Open Education on the same basis as clause 6.4. No work shall commence until such variation and any consequential amendments have been recorded in writing.
6.6 If the course is consequentially given by Open Education, the provisions of clause 7.4 of this Agreement will apply. Clause 4 will apply to bespoke courses given on the Customer's premises.
7.1 For individual courses. Open Education will invoice the Customer after the course has been completed. Open Education reserves the right to specify that for individual courses, whether at Open Education's or the Customer's premises, payment shall be made to Open Education in full prior to commencement of the course. In such event the Customer is advised that the Customer's employees will not be permitted to attend the course unless payment has been received by Open Education.
7.2 For periodic contracts, Open Education will invoice the Customer monthly in arrears for the number of Course Days taken by the Customer in the previous month.
7.3 For the hire by the Customer of training and ancillary facilities in Open Education's Education Centre, Open Education will invoice the Customer monthly in arrears.
7.4 For bespoke courses supplied pursuant to clause 6, Open Education will invoice the Customer firstly when the bespoke development work has been completed and secondly, when the course has been given by Open Education.
7.5 If not prepared, all charges including any cancellation charges and charges due under clause 3.4 will be paid within thirty (30) days of date of invoice.
7.6 All charges are exclusive of Value Added Tax which will be added at the ruling rate at time of invoice.
7.7 If the Customer fails to make any payment when due, Open Education reserves the right to levy a late payment charge calculated at the rate of 3% over Lloyds Bank Base Lending Rate on the unpaid amount or part thereof. If the Customer consistently fails to pay monthly invoices for periodic contracts, Open Education reserves the right, without prejudice to any other remedies it may have, forthwith to terminate the periodic contract.
7.8 All pre-payments or vouchers for courses must be used within 1 calendar year of receipt by Open Education or Customer. They cannot be used to purchase courses after this period.
8.1 If the Customer cancels:
8.1.1 the attendance of any employee on any course.
8.1.2 the hire of any Open Education education facility under clause 5.
8.1.3 any course due to take place at the Customer's premises under clause 4.
less than two (2) weeks prior to the commencement date of the course or the employees fail to attend the whole or part of the course for any reason, or if cancellation is not confirmed in writing within the said two (2) weeks period, the Open Education will invoice the Customer for the appropriate charges in full and the Customer agrees to pay the same within thirty (30) days of receipt of Open Education's invoice.
8.2 For periodic contracts, the Customer may cancel attendance of one or more of its employees at any course up to ten (10) working days prior to the day of commencement of the course. No charge will be made for such cancellation, and the number of days cancelled will not count towards the total number of course days selected by the Customer pursuant to clause 3.1.
8.3 If less than ten (10) working days notice is given, the Customer will pay the charges for each Course Day cancelled. For the purposes of clause 3.1 the number of days cancelled will be included in the total number of Course Days.
9. WARRANTY AND LIMITATION OF LIABILITY
9.1 The courses are provided under this Agreement at the Customer's request. The Customer accepts that he is responsible for verifying that the courses are suitable for his requirements. Open Education will use all reasonable skill and care in the preparation and presentation of its courses and courses supplied under clause 6. All other conditions, warranties, guarantees and representations whether express or implied, statutory or otherwise are excluded.
9.2 Other than as specified in this clause, Open Education's liability for loss and damage (whether arising in contract, tort, or otherwise), shall be limited to a claim for damages. The maximum aggregated liability will be the charges for the course or hire of facilities out of which the loss and damage has arisen.
9.3 Open Education will be responsible for death and injury resulting from Open Education's negligence when carrying out courses, or the hire of facilities.
9.4 Open Education will not be liable for indirect, special or consequential loss (including loss of anticipated profit or data), howsoever arising, even if it has been advised of the possibility of such potential loss.
9.5 Except in respect of liability of Open Education for death or personal injury resulting from the negligence of Open Education or its employees, or in respect of a claim for non-payment of monies due under this Agreement, no action regardless of form arising out of the provision of training courses or facilities under this Agreement may be bought by either party more than two years after the cause of action has been accrued.
The copyright and all other intellectual property rights in all course materials, and the specifications therefore, and whether in standard courses, or courses developed under the provisions of clause 6 shall remain the sole and exclusive property of Open Education. The Customer undertakes that it will not copy or permit the copying of course materials, nor disclose or permit the disclosure or sell or hire the same to third parties, nor use the same for running the Customer's own courses.
11. TIMES OF COURSES AND HIRE OF FACILITIES
11.1 All courses will be given by Open Education personnel either at Open Education personnel either at Open Education's Education Centre or at the Customer's premises between the hours of 9.00 am to 5.00 pm Tuesday to Friday and 10.00 am to 5.00 pm on Monday, both excluding Public Holidays. If the Customer requests in writing, Open Education may be able to provide courses outside these hours and at weekends for additional charges.
11.2 The Customer may hire the training facilities at Open Education's Education Centre between the hours of 9.00 am to 5.30 pm Monday to Friday, excluding Public Bank Holidays.
12.1 Open Education may immediately terminate this Agreement if:
12.1.1 the Customer is in breach of a material obligation and has not commenced continuing and effective steps to remedy the same within 14 days of a notice calling upon it to do so.
12.1.2 has an order made or resolution passed for its winding up.
12.1.3 becomes insolvent or unable to pay its debts as they fall due.
12.1.4 has a receiver or similar officer appointed.
12.1.5 ceases to or threatens to cease to carry on business.
Any such termination shall be without prejudice to any rights of or remedies available to Open Education.
12.2 Open Education shall not be liable for any delay in or non-performance of its obligations hereunder, caused by an event beyond the control of Open Education including illness of staff, Acts of God, war, fire, strike, flood, labour trouble, lack of computer availability, riot or civil commotion or any act or omission of the other party, a supplier, sub-contractor or a third party.
12.3 No forbearance or indulgence by Open Education in enforcing the terms of this Agreement shall constitute a variation of it or a waiver of Open Education's rights under it.
12.4 Neither party shall assign this Agreement unless both parties consent in writing.
12.5 In the event that any clause or sub-clause of this Agreement is held by a Court to be ineffective, the other provisions of the Agreement shall continue in full force and effect notwithstanding such finding.
12.6 All notices to be given under this Agreement shall be in writing and shall be sent to the addresses first given in this Agreement. Any changes of address of either party shall be notified to the other in writing.
12.7 Clause headings are for ease of reference only and shall not affect the construction of this Agreement.
12.8 This Agreement shall be governed by the laws of Alberta, Educational Services under this Agreement are provided in Canada and the U.S. only.
12.10 THE CUSTOMER ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT AND UNDERSTANDS AND AGREES TO BE BOUND BY ITS TERMS, CONDITIONS AND CHARGES. THE CUSTOMER FURTHER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE MUTUAL UNDERSTANDING OF THE PARTIES AND THAT THIS AGREEMENT SUPERSEDES AND CANCELS ALL PREVIOUS WRITTEN AND ORAL AGREEMENTS AND COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.