Terms and Conditions

1.              Interpretation

1.1           Definitions:

Agreement: the Membership Agreement between the Supplier and the Client for the supply of Services in accordance with these Conditions.

Business Day: a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business.

Charges: the charges payable by the Client for the supply of the Services in accordance with clause 5.

Coach: A member of the Practice Building team.

Commencement Date: has the meaning set out in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 10.5.

Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.

Client: the person or firm who purchases Services from the Supplier.

Client Default: has the meaning set out in clause 4.2.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Membership Fees: the fees relative to the different levels of membership described on page 2 of this Agreement.

Order: the Client's order for Services as set out in the Client's written acceptance of the Supplier's quotation.

Services: the provision of advisory business start up services together with ongoing business and marketing support services to independent Opticians.

Supplier:  Andrew Clark Limited, a company incorporated and registered in Scotland with company number SC212182  whose registered office is at 1 Rutland Square, Edinburgh, EH1 2AS  trading as Practice Building.

Supplier Materials: Each Client receives an extensive toolbox relative to their bespoke programme of training and coaching.

1.2           Interpretation:

(a)        A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(b)        Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(c)         A reference to writing or written includes fax and email.

2.              Basis of Agreement

2.1           The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.

2.2           The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Agreement shall come into existence (Commencement Date).

2.3           Any descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.

2.4           These Conditions apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5           Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

3.              Supply of Services

3.1           The Supplier shall supply the Services to the Client.

3.2           The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.

3.3           The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.

4.              Client's obligations

4.1           The Client shall:

(a)        ensure that the terms of the Order  are complete and accurate;

(b)        co-operate with the Supplier in all matters relating to the Services;

(c)         provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

(d)        obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;

(e)        comply with the Client Commitment obligations on page 4 of the Agreement;

(f)          bear sole responsibility for the use and implementation of the Services within their own business.

4.2           In the event that a Client’s preferred Coach becomes temporarily unavailable to provide Services for any reason whatsoever, the Client shall:

(i)          reschedule additional coaching appointments with their preferred Coach; or

(ii)         opt to be coached by a different Coach; or

(iii)        opt for a week without goals in which case no refund shall be provided.

4.3           The Client may be asked to evaluate the Supplier’s performance from time to time in which case the Client shall agree to certify in writing whether they are satisfied with the Services received. In the event that the Client is not satisfied with the Services received the Client shall inform the Supplier and the Supplier shall work with the Client to rectify the Client’s concerns.

4.4           If the Supplier's performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):

(a)        the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Supplier's performance of any of its obligations;

(b)        the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and

(c)         the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.

5.              Charges and payment

5.1           The Charges for the Services shall be on a fixed price basis:

(a)        The Charges for the Services shall be set out in the Order.

(b)        the Supplier shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.

5.2           The Supplier reserves the right to increase its standard fee rates, provided that such charges cannot be increased more than once in any 6 month period. The Supplier will give the Client written notice of any such increase 1 month before the proposed date of the increase. If such increase is not acceptable to the Client, it shall notify the Supplier in writing within 2 weeks of the date of the Supplier's notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Agreement by giving 1 weeks' written notice to the Client.

5.3           The Supplier shall invoice the Client in advance of the provision of Services and Membership Fees shall be paid by the Client monthly in advance by direct debit.

5.4           The Client shall pay each invoice submitted by the Supplier:

(a)        within 14 days of the date of the invoice; and

(b)        in full and in cleared funds to a bank account nominated in writing by the Supplier, and

time for payment shall be of the essence of the Agreement.

5.5           All amounts payable by the Client under the Agreement are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Agreement by the Supplier to the Client, the Client shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

5.6           If the Client fails to make any payment due to the Supplier under the Agreement by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 4% per cent per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.

5.7           The Client shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Supplier to the Client.

6.              Intellectual property rights

6.1           All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.

6.2           The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Client.

6.3           All Supplier Materials are the exclusive property of the Supplier.

7.              Limitation of liability

7.1           Nothing in the Agreement shall limit or exclude the Supplier's liability for:

(a)        death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b)        fraud or fraudulent misrepresentation; or

(c)         breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

7.2           Subject to clause 7.1, the Supplier shall not be liable to the Client, whether in Agreement, delict (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:

(a)        loss of profits;

(b)        loss of sales or business;

(c)         loss of agreements or Agreements;

(d)        loss of anticipated savings;

(e)        loss of use or corruption of software, data or information;

(f)          loss of damage to goodwill; and

(g)        any indirect or consequential loss.

7.3           Subject to clause 8.1, the Supplier's total liability to the Client, whether in Agreement, delict (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement shall be limited to 20% of the total Charges paid under the Agreement.

7.4           The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.

7.5           This clause 7 shall survive termination of the Agreement.

8.              Termination

8.1           Without limiting its other rights or remedies, either party may terminate the Agreement by giving the other party 1 months' written notice.

8.2           Without limiting its other rights or remedies, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

(a)        the other party commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

(b)        the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c)         the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)        the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.

8.3           Without limiting its other rights or remedies, the Supplier may terminate the Agreement with immediate effect by giving written notice to the Client if:

(a)        the Client fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment; or

(b)        there is a change of Control of the Client.

8.4           Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Agreement or any other Agreement between the Client and the Supplier if the Client becomes subject to any of the events listed in clause 8.2(b) to clause 8.2(d) or the Supplier reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Agreement on the due date for payment.

9.              Consequences of termination

On termination of the Agreement for any reason:

(a)        the final monthly Membership Fee shall be due upon the Client’s notice of termination;

(b)        the Client shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;

(c)         the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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; and

(d)        clauses which expressly or by implication survive termination shall continue in full force and effect.

10.           General

10.1         Force majeure: Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.

10.2         Assignment and other dealings:

(a)        The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent.

(b)        The Client shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement.

10.3         Confidentiality:

(a)        Each party undertakes that it shall not  disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.3(b).

(b)        Each party may disclose the other party's confidential information:

(i)          to its employees, officers, representatives, subcontracts or advisers who need to know such information for the purposes of carrying out the party's obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, subcontract or advisers to whom it discloses the other party's confidential information comply with this clause 10.3; and

(ii)         as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c)         Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Agreement.

10.4         Entire agreement:

(a)        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.

(b)        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.

10.5         Variation: No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

10.6         Waiver: A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

(a)        waive that or any other right or remedy; or

(b)        prevent or restrict the further exercise of that or any other right or remedy.

10.7         Severance: If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.

10.8         Notices:

(a)        Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.

(b)        A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.8(a); 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.

(c)         The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

10.9         Third parties: No one other than a party to the Agreement shall have any right to enforce any of its terms.

10.10      Governing law: The 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 Scotland.

10.11      Jurisdiction: Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.