1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following terms shall have the following meanings:
“Account” means a credit account facility agreed in writing with the Company;
“Affiliate” means at any time, and with respect to any Person, any other Person that, at such time, directly or indirectly through one or more intermediaries controls, or is controlled by, or is under the common control, with such Person. For the purposes of this definition, “control” means any: (a) direct or indirect beneficial ownership of more than fifty percent (50%) of the issued share capital, stock or other participating interest of a Person; or (b) possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through exercise or ownership of voting securities, contract trust or otherwise, even if its voting rights are registered in the name of (i) another Person or entity (or nominee), whether by security or in connection with the taking of security or (ii) its nominee; or (c) right to appoint the majority of the directors (or equivalent) of the Person.
“Business Customer” is a Person who has booked a Training Session acting in the course of their business, trade, craft or profession
“Business Customer Group” means the Business Customer and its Co-Venturers and its and their Affiliates and any of its and their Personnel and subcontractors of any tier but shall not include any member of Company Group.
“Certificate” means a document issued by the Company to the Registrant confirming that the Registrant has satisfactorily completed the Training Session;
“Claim” means any cost, claim, expense, fines, penalties, judgements (including legal reasonable expenses), damage, loss, liability or rights of action;
“Company” means Petrofac Facilities Management Limited, a company registered in Scotland under Company Number SC075047, with its registered office at Bridge View, 1 North Esplanade West, Aberdeen, AB11 5QF, UK.
“Company Group” means the Company and its Affiliates and any of its and their Personnel and subcontractors of any tier but shall not include any member of Business Customer Group.
“Consequential Loss” means (i) any indirect, special exemplary, incidental or consequential loss or damage of any nature however caused or arising whether under contract, by virtue of any fiduciary duty or in tort (including negligence), as a consequence of breach of any duty (statutory or otherwise) or under any other legal doctrine or principle whatsoever whether or not recoverable at common law or in equity; and (ii) loss and/or deferral of production, loss of product, loss of use, loss of bargain, contract expectation, business reputation or opportunity and loss of revenue, profit or anticipated profit (if any), in each case whether direct or indirect to the extent that these are not included in (i) and whether or not foreseeable at the Contract Start Date;
“Contract” means the agreement for the provision of a Training Session between the Company and the Customer in accordance with these Terms and the Registration Confirmation as per Clause 2.1;
“Contract Start Date” means the date the Registration Confirmation is sent to the Customer;
“Course Fee” means the full price or fee (but excluding any accreditation, exam or other fees) for a Training Session to be paid by the Customer to the Company;
“Co-Venturer” means any entity with whom the Business Customer is or may be from time to time a party to a joint operating agreement or unitisation agreement or similar agreement relating to the operations for which the Services are being performed and the successors in interest of such Co-Venturer or the assignees of any interest of such Co-Venturer.
“Customer” means either a Business Customer or Individual Customer.
“Customer Care” means the Company’s dedicated Customer Care department, contactable at Forties Road, Montrose, Angus, UK or email address email@example.com;
“Force Majeure” Means any cause or event which is not within the reasonable control of the Party affected thereby and which that Party is unable to overcome by the exercise of reasonable due diligence and shall include but not be limited to Act of God, strikes (excluding strikes occurring solely among the employees of Consultant or its Subcontractors) or other industrial disturbances of a general nature, acts of a public enemy, protestor action, terrorism, wars (whether declared or not), acts of governments, sanctions, embargoes, blockades, insurrections, riots, epidemics, landslides, floods, earthquakes, volcanic activity, ash clouds, hurricane, lightning, civil disturbances, explosions provided that a lack of funds shall not constitute Force Majeure;
“Group” means either Business Customer Group or Company Group.
“Individual Customer” means a is a Person who has booked a Training Session and is not acting in the course of their business, trade, craft or profession;
“Joining Instructions” means the documentation confirming all Registrant and Training Session details sent to the Customer by the Company as part of the Registration Confirmation;
“Party” means either the Customer or the Company and the “Parties” means the Customer and the Company together;
“Person” means an individual, partnership, corporation, limited liability company, limited liability partnership, joint venture, association, trust, estate, unincorporated organisation or a subdivision thereof or any other entity having legal capacity;
“Personnel” means in relation to any Party, all directors, officers, employees, contracted workers, agency workers, consultants, secondees, invitees and temporary staff of that entity.
“Registrant” means the individual for whom Registration is completed and who will attend the Training Session;
“Registration” means completion of the booking process by the Customer, offering to make a booking on a Training Session;
“Registration Confirmation” means the confirmation sent by the Company to the Customer containing the Joining Instructions and confirming acceptance of the Customer’s offer to make a booking;
“Services” means the services as detailed in the Joining Instructions;
“Terms” means these Terms and Conditions of Training – Directory Training Courses;
“Training Session” means the session detailed in the Company’s course directory as requested by a Customer at Registration and as detailed in the Registration Confirmation;
“Training Session Materials” means any materials provided to the Customer by the Company at the Training Session, for example, manuals, copies of slides, hand outs and other similar materials, in whatever form;
“Training Start Date” means the date on which the Training Session starts;
“Working Day/s” means a day or days on which banks are open for business as usual in Scotland.
1.2. Clause headings and table of contents are for convenience only and shall not affect the interpretation of these Terms.
1.3. The words “including”, “include”, includes” “other” or any similar variation shall be construed as meaning “including but not limited to”, “by way of example” and “including without limitation”, and the rule of construction known as the euisdem generis rule shall be disapplied.
1.4. Day(s) means calendar rather than business days, unless otherwise stated.
1.5. Reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.6. Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.
1.7. Unless the context otherwise requires, references:
1.7.1. to one gender include all genders, and reference the singular include the plural and vice versa;
1.7.2. to any statute, statutory provision or regulation, are references to that statute, statutory provision or regulation, as from time to time amended, extended or re-enacted.
1.8. The Sections (and any appendices attached thereto) form part of the Terms.
2.1 The Contract constitutes the entire agreement between the Company and the Customer in relation to the provision to the Customer of a Training Session. The Contract replaces any prior arrangements or agreements made between the Customer and the Company relating to the subject matter hereof unless otherwise agreed to in writing between the Customer and the Company and no amendment or variation to these Terms or the Contract is permitted, except with the prior written agreement of the Company. The Customer acknowledges that it is not relying on any statement, implied warranty or representation made by or on behalf of the Company other than those expressly set out in the Contract.
2.2 If any provision of the Contract becomes void or otherwise unenforceable in whole or in part, the validity of the remainder of the Contract shall not be affected.
2.3 If the Company fails to enforce, or delays in enforcing, its rights or remedies under the Contract, such failure or delay shall not operate as a waiver of that right or remedy and shall not prevent the Company from exercising that right or remedy in the future.
2.4 The Contract is not intended to be for the benefit of any third party and shall not confer any rights on any other person under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
3.1 Registration Process For Customers Without an Account
A Customer without an Account must pay the Course Fee in full at Registration. The Course Fee may be paid by major credit and debit card, cash, bank transfer or cheque made payable to Petrofac Facilities Management Limited. Joining Instructions will be issued once the Course Fee has been received in full by the Company. If a receipted invoice is required, the Customer should request this at Registration. The Company reserves the right to refuse attendance at a Training Session and/or withhold the issue of a Certificate if payment is not made in full in accordance with this Clause 3.1.
3.2 Registration Process for Customers with an Account
3.2.1 Customers with an Account must pay the Course Fee in full within thirty (30) days of the date of the Company’s invoice. Joining Instructions will only be sent once the Company receives written confirmation from the Customer that includes an order or reference number enabling the Company to invoice the Customer for the Training Session.
3.2.2 If the Customer disputes in good faith, any part of the Company’s invoice, the Customer shall pay any undisputed part within thirty (30) days of the date of the invoice. Subject to the foregoing, if the Customer fails to pay the Company any sum due and payable pursuant to these Terms, interest shall be due and payable on the outstanding amounts at the current Royal Bank of Scotland plc, annual base rate plus 5 per cent per annum, calculated pro rata from the due date for payment until the outstanding amount (together with accrued interest) is paid in full. Where payment is not made in accordance with the terms of this Clause 3.2, the Company reserves the right to withhold the issue of a Certificate or revoke Certificates that have been issued or, where a Training Session has not yet taken place, refuse attendance at the Training Session.
3.2.3 Customer shall not entitled to withhold monies due to the Company under any other Contract or order with the Company as set off against disputes under the Contract, nor shall it be entitled to withhold monies due under the Contract as set off against disputes under any other Contract or order.
3.3 Accreditation Fees
Fees that are payable to the Accrediting body are out with the control of Petrofac and are subject to change. The Accreditation Fee we will be charged at the prevailing rate at the date of completion of Training.”
4.1 Value Added Tax
With regards to Value Added Tax (VAT) and similar taxes, all compensation and payments due to Company under this Contract are stated exclusive of any VAT, sales tax or similar tax that may be rightfully levied on such compensation or payments. Any such tax, if properly imposed by the taxing authorities having jurisdiction over this Contract, shall be separately stated on the applicable invoices and shall be paid (directly or indirectly) by Customer to Company in accordance with Applicable Laws. This Article 4 shall survive the termination of the Contract.
4.2 Withholding Tax
If Customer is or was required by law to make any deduction or withholding for any Taxes from any payment due hereunder to Company, then the gross amount payable by Customer to Company will be increased so that Company receives an amount that is no less than Company would have received, had no such deduction or withholding been required to be made.
4.3 Change of Law
Should there be any changes in any law, rule or regulation affecting this Contract, or changes in the interpretation of any law, rule or regulation affecting this Contract, that affect the Course Fee, Company shall be entitled to any change which reflects the change in the law, rule or regulation and the impact of such change on the Course Fee.
5 TRANSFER POLICY
5.1 Following receipt of the Registration Confirmation, the Customer may transfer a Registrant (subject to availability), to another Training Session on one occasion up to 24 hours before the Training Start Date. The Customer shall send a written request to the Company marked for the attention of Customer Care, stating the original Registration details and the date of the Training Session to which Customer wishes the Registrant to be transferred (which must be within 3 months of the original Training Start Date). If the Registrant cannot for any reason (including but not limited to failure to meet any stipulated medical or other requirements) attend the Training Session to which he or she has transferred, the terms of Clause 6 shall apply.
5.2 The Customer can nominate another person to attend the Training Session in place of a Registrant at any time up to 24 hours before the Training Start Date by sending a written notice to the Company marked for the attention of Customer Care, providing the details of the original Registration and of the proposed replacement registrant. The replacement registrant must complete the Training Session within 3 months of the original Training Start Date. The Company shall thereafter process the proposed transfer and send revised Joining Instructions to the Customer. The Company reserves the right to refuse training to any person who attends a Training Session in place of an original Registrant who has not been transferred in accordance with these provisions. This will be treated as a cancellation by the Customer and the terms of Clause 6 shall apply.
6 “COOLING-OFF PERIOD” AND CANCELLATION POLICY BY CUSTOMER
A Customer may cancel a Contract and receive a full refund by written notice to the Company marked for the attention of Customer Care, at least 14 days prior to the Training Start Date. However, if a Contract is cancelled by a Customer less than 14 days prior to the Training Start Date, or if a Registrant fails to attend all or any part of a Training Session, the full Course Fee for the Training Session remains payable and no refund shall be given.
7 CANCELLATION BY COMPANY
Company reserves the right to cancel a Training Session for any reason upon provision of a minimum forty eight (48) hours written notice to the Customer. The Company shall use reasonable endeavours to reschedule the Training Session to a mutually acceptable date. In the event an alternative date is not available within three (3) months of the date of the cancelled Training Session, Company shall refund the value of any Course Fee received.
8 GENERAL DATA PROTECTION REGULATION
Personal details supplied by Customer to Company will be used for the administrative purposes related to the booking, securing, and attending the courses or qualifications Customer chooses and any subsequent repeats or renewals of those courses or qualifications. For those courses which are accredited by third parties, your personal and other relevant information will be shared with the relevant organisations to allow for the entry of the accreditation in the appropriate electronic register.
9 INTELLECTUAL PROPERTY RIGHTS
All copyright, design rights and other intellectual property rights used, created or embodied in or arising out of or in connection with the Training Session, including the Training Session Materials remain the sole property of the Company and the Customer shall not and shall procure that the Registrant shall not dispute the ownership of such rights. Any materials and information (in whatever form and including the Training Session Materials) provided by the Company in connection with the Training Session shall not be copied, distributed or made available in whole or in part to third parties or re-used and shall be used only to enable the Registrant to properly participate in the Training Session. Subject to the aforementioned restrictions, Registrants are entitled to keep, for their own use only, any Training Session Materials provided to them. The Customer must procure however, that any other materials, in whatever format, issued to the Registrant are returned to the Company on the earlier of the completion of the Training Session or when requested by the Company. The Customer shall not and will procure that the Registrant shall not copy or otherwise reproduce in any form, any Training Session Materials or other materials provided by the Company without the Company’s prior written consent.
10 REGISTRANT FITNESS
Where a Training Session requires proof of medical fitness to attend, it is the Customer’s sole responsibility to ensure that the Registrant is in possession of a valid certificate that meets the Training Session prerequisites. The Company reserves the right to refuse training to any Registrant not in possession of current and applicable evidence of medical fitness. If a Registrant does not provide evidence of medical fitness, the terms of Clause 5 shall apply. For Training Sessions requiring physical activity, it is the Customer’s sole responsibility to ensure that Registrants are physically fit and free from respiratory disorders or heart disease. The Company reserves the right to refuse to provide training to Registrants if it believes that they pose a safety risk.
11 COMPLETION OF SESSION AND COMPETENCE
11.1 All aspects of the Company’s Training Sessions must be completed to the specified standard(s) to receive certification. Should the Registrant successfully complete the Training Session, a Certificate will be issued. Should the Registrant fail to participate in any element of the Training Session, the Company will issue a letter of non-attainment to the Customer notifying them that a Registrant has failed to satisfactorily complete a Training Session. Where a Registrant is unable to complete a Training Session for any reason, the full Course Fee remains payable. In exceptional circumstances, should a Registrant provide, in the sole opinion of the Company, a valid reason for being unable to complete a Training Session, the Registrant may be given the opportunity to return and complete the uncompleted part of the Training Session within a 3-month period. The Company will advise additional fees associated with completion of an uncompleted Training Session and payment must be received in cleared funds at least 24 hours prior to recommencement of the Training Session.
11.2 Customer covenants and agrees that:
(a) any assessment or evaluation of competency is not valid unless the assessment or evaluation of competence is verified by the Customer using a qualified and trained verifier and in accordance with OPITO or SQA standards (or other standards acceptable to Company);
(b) any assessment or evaluation of competency does not constitute an evaluation of competency, knowledge, skills or abilities under all circumstances or all conditions or under all applicable standards;
(c) any assessment may not in all instances be or include an assessment of all competency elements or categories;
(d) any assessment of competency is limited in scope and extent to the factors actually assessed and under the conditions assessed on the day of such assessment; and
(e) to the extent any Company Group Personnel completes an assessment or evaluation, such assessment or evaluation of competency is no guarantee or warranty that any such person shall perform competently in the future under all circumstances or conditions or events under any particular circumstance or conditions.
12.1 During the Training Session, the Customer shall procure that the Registrant complies at all times with the directions given during the Training Session together with the Company’s health and safety policies posted around the premises where the Training Session takes place. Any safety equipment and/or protective clothing which the Registrant is required to bring to the Training Session will be specified in the Joining Instructions and the Customer will provide this and ensure that it is fit for its required purpose.
12.2 The Company reserves the right to postpone or suspend a Training Session at any time if it considers there to be any risk to the health or safety of any person or risk of loss or damage to any plant, machinery, equipment or material. In such circumstances, the Company will seek to reschedule the Training Session to another date.
12.3 The Company shall be entitled, at its sole discretion, if it deems it necessary in the interests of safety (whether to protect personnel, property or otherwise) to: (a) require a Registrant to leave a Training Session; or (b) to refuse a Registrant entry to a Training Session. The Company shall have no liability to the Customer or Registrant for any action it may take in accordance with this Clause 12.
12.4 Training Sessions are conducted in English and Registrants must be able to read, speak and understand English. The Company reserves the right to refuse a Registrant admission to a Training Session if a Registrant cannot speak and understand English to the standard required by the Company.
13 FORCE MAJEURE
In the event that the Company is rendered unable, wholly or in part, by Force Majeure to carry out its obligations hereunder, upon the Company giving notice and reasonably full particulars of such Force Majeure to the Customer within a reasonable time after the occurrence of the cause relied upon, the obligations of the Company, so far as they are affected by such Force Majeure, shall be suspended during but no longer than the continuance of the inability so caused and such further period thereafter as shall be reasonable in the circumstances. The Company shall use reasonable endeavours to eliminate the circumstances of Force Majeure relied on to enable it to resume the full performance of its obligations and minimise the effects is unable to provide any Training Session, or any part of any Training Session, by reason of Force Majeure, the Company shall be entitled to postpone or cancel that Training Session, or part of it. The Company shall use reasonable endeavours to reschedule the Training Session to a mutually acceptable date if possible.
The Company may terminate the Contract with immediate effect if the Customer materially breaches any of the provisions of the Contract and fails to remedy such breach (if capable of remedy) within such reasonable period as the Company specifies. Upon termination, the Customer shall immediately pay to the Company in full any outstanding monies due to it pursuant to the Contract.
15.1 The Company warrants to the Customer that the specified Services will be provided using reasonable care and skill expected of a competent and prudent contractor at the time the Services are performed within the limitations of the agreed Services and, as far as reasonably possible, in accordance with the Contract.
15.2 Where, in connection with the provision of the Services, the Company supplies any goods supplied by a third party, the Company does not give any warranty, guarantee or indemnity as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Company.
15.2 Notwithstanding anything expressed or implied to the contrary, the warranty provided by Company in this Clause 15 shall be Company’s sole liability to Customer whether in contract, tort (including negligence), statute or otherwise at law or under any legal theory or doctrine, relating to non-performance, defective or incomplete performance of the Contract and in respect of any and all liabilities or obligations howsoever arising on the part of Company under this Contract. All other terms, warranties, conditions, representations, guarantees and remedies whether express or implied, statutory, common law or otherwise are expressly excluded from this Contract.
16 LIABILITIES – BUSINESS CUSTOMER
16.1 Company shall defend, indemnify and hold harmless Business Customer Group from and against any and all Claims in respect of or in relation to (i) any loss, damage or impairments caused to property belonging to or used by Company Group; and (ii) any personal injury, death or illness of any member of the Company Group whatsoever and howsoever caused or arising in connection with the Contract or the performance or non-performance of these Terms thereof, notwithstanding the negligence or breach of duty of the Business Customer Group.
16.3 Business Customer Group shall defend, indemnify and hold harmless Company Group from and against any and all Claims in respect of or in relation to (i) any loss, damage or impairments caused to property belonging to or used by Customer Group; and (ii) any personal injury, death or illness of any member of the Business Customer Group whatsoever and howsoever caused or arising in connection with the Contract or the performance or non-performance thereof, notwithstanding the negligence or breach of duty of the Company Group.
16.4 Notwithstanding any other provision of the Contract, Company’s maximum aggregate liability to the Business Customer Group arising under or in relation to this Contract or the performance or non-performance thereunder whether in contract, tort (including negligence) or otherwise at law, shall to the maximum extent permitted by law, be limited to the Course Fee and Business Customer Group shall defend, indemnify and hold harmless the Company Group from and against any and all Claims in excess of this amount.
17 LIABILITIES – INDIVIDUAL CUSTOMER
Except in respect of personal injury or death caused directly by the negligence of the Company, the Company’s liability to the Individual Customer in respect of any Claim arising from, relating to or in connection with the performance or non-performance of the Contract whether in contract, tort (including negligence) or otherwise at law, shall be limited to the Course Fee.
18 CONSEQUENTIAL LOSS
Notwithstanding any other provision of the Terms, neither Party or its Group shall be liable to the other Party or its Group for Consequential Loss and each Party will release, defend, indemnify and hold harmless the other Party for its own Consequential Loss (including any Consequential Loss of its Group) in each case from or related to the performance of the Contract notwithstanding the negligence or breach of duty, statutory or otherwise.
19 DUPLICATE CERTIFICATES
The Company charges a fee of £15 per duplicate Certificate provided. Requests for duplicate Certificates must be made to the Company by the Customer in writing, marked for the attention of Customer Care and contain the name and Training Start Date of the Training Session; the Registrant’s name and date of birth. Once the Company has received full payment in cleared funds, the duplicate Certificate will be issued.
20 HOTEL ACCOMMODATION AND TRANSPORT
A Customer with an Account may request that the Company find and book hotel accommodation and/or transport for Registrants. The Customer is responsible for settling its own account with any third party suppliers of accommodation and transport arranged by the Company direct. For the avoidance of doubt, the Company will not be responsible for payment of any costs associated with Registrants’ travelling, accommodation, subsistence or other expenses.
21 COMPLAINTS PROCEDURE
If the Company fails to comply with its obligations under the Contract, in particular its obligations under Clause 15 (Warranty), the Customer shall advise the Company in writing, marked for the attention of Customer Care, giving details of the reasons why it believes the Company has not complied with its obligations under the Contract. The Company shall acknowledge the Customer’s complaint in writing within seven (7) Working Days of its receipt and thereafter, reply to the complaint in full within thirty (30) Working Days of its receipt. The Parties’ day to day representatives shall use all reasonable efforts to resolve the complaint satisfactorily, however if the complaint is not resolved satisfactorily and amicably after such efforts, the Parties shall escalate the complaint to the senior management of the Company and Customer in an increased effort to resolve the complaint satisfactorily and amicably.
22 APPLICABLE LAW AND JURISDICTION
The Contract, and any non-contractual rights or obligations arising out of or in connection with it or its subject matter, shall be governed by and construed in accordance with English law and each of the Parties agrees that the courts of England shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with the Contract or its subject matter.
23 THIRD PARTY CLAIMS
A person who is not a Party to the Contract shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999 except to the extent necessary to enforce any indemnity provision of which they are a beneficiary.
24 ANTI-BRIBERY COMPLIANCE AND TAX EVASION
The Customer shall, and shall procure that it and Customer Group shall comply with (a) all applicable laws, regulations, codes and sanctions relating to anti-bribery, anti-corruption or similar activities, and tax evasion of (i) the United Kingdom, including without limitation the Bribery Act 2010 and Criminal Finances Act 2017; (ii) the United States of America including, to the extent applicable, the Foreign Corrupt Practices Act 1977; and (b) any country or countries in which any of the Services or Contract obligations are to be or are performed. Each Party agrees that it has in place policies and procedures to prevent any breach of this Article 21 and further agrees that it shall not otherwise take any actions that will cause the other Party to violate such laws.