ICA Commercial Services Limited: General Terms and Conditions

1.1 In this Agreement, unless the context otherwise requires:

"Agreement" means the contract made between the parties which incorporates:

1. a) the Order Form;
2. b) these Terms and Conditions;
3. c) any documents referred to in these Terms and Conditions.

“Commencement Date” means the date at which the Products and/or Services are supplied to the Client in accordance with the Order Form;

"Client" means the party (being an organisation or an individual) contracting with the Company and includes its representatives and/ or employees. For the avoidance of doubt this shall include ‘Employer’, ‘Member’ and ‘Learner’;

“Data Protection Law” means the Data Protection Act 2018, UK GDPR and any other applicable data protection law;

“Fees” means any and all Fees and charges due under the Agreement and payable in accordance with the provisions of clause 6, inclusive of membership subscription or booking fees;

“Materials” means materials supplied by the Company to the Client in the course of providing the Products or Services including but not limited to the online learning platform;

“Order Form” means the form on which the Learner or Employer confirms their wish to purchase a Product;

“Parties” means the Company and the Client;

“Product” and / or “Service” means the products supplied by the Company to include but not be limited to qualifications, courses, training, consultancy, audit, assessment, accreditation, subscription and / or memberships;

“Service Specifications” means the specific terms and conditions applicable to your Products and/or Services; and

“Term” means the duration of this Agreement.

2.1 The Agreement between the Parties concerns the (a) provision by the Company to the Client of all Products and/or Services during the Term, and (b) save as expressly agreed otherwise, subsequent to the Term, any renewal Term and (c) any additional Products and/or Services.

2.2 The Company reserves the right to revise these Terms and Conditions or any specific documents referred to herein at any time.

2.3 This Agreement shall commence on the Commencement Date and unless terminated under Clause 10 shall remain in force during the Term. To the extent any obligations hereunder have already been performed by either party prior to the Commencement Date, then such obligations shall for all purposes be deemed to have been performed in accordance with and subject to the provisions of this Agreement.

3.1 The Company shall provide the Products and/or Services in accordance with these Terms and Conditions together with the Service Specifications in accordance with the Order Form.

3.2 The Company may at its sole discretion in the case of emergency and otherwise on agreement by the Client (which shall not be unreasonably withheld) temporarily suspend all or any of the Products and/or Services for the purpose of repair, maintenance or improvement of any of its systems. The Company shall use its reasonable endeavours to minimise any disruption to the Products and/or Services caused by any such suspension and to restore service as soon as reasonably practicable. The Client agrees that the Client shall not be entitled to any set off, discount, refund or other credit in the case of any such suspension.

3.3 If at any time during the Term in the Company’s reasonable opinion the Client is in material breach of any term of this Agreement, the Company may on written notice to the Client (and notwithstanding any of the Company’s other rights under this Agreement) suspend the provision of all or any part of the Products and/or Services until such time as in the reasonable opinion of the Company the Client’s breach has been remedied.

3.4 For the duration of the Term and subject to Fees, and except as otherwise provided for in this Agreement or your Order Form, you have the non-exclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for your internal use or for learning purposes subject to the terms of this Agreement and Your Order Form, including the relevant Service Specifications.

3.5 Upon the end of the Services ordered, your right to access and use the Services will terminate subject to any relevant provisions within the Services Specifications.

4.1 The Product Specification is as set out on the Order Form. If the Service Specification is amended or altered for any reason by the Client, the Company reserves the right to charge additional Fees. 4.2 Subject to clause

4.1 any agreed modification to the Products and/or Services shall be in writing and agreed by both Parties.

5.1 All rights in and to any materials supplied by the Company in the provision of Products and/or Services shall remain with the Company.

5.2 If provision of the Products and/or Services includes the creation by the Company of any works capable of being the subject of intellectual property rights, ownership shall vest in the Company or its third party providers.

5.3 For the avoidance of doubt, the Company trademarks shall include but not be limited to any logos, wording, straplines or similar whether registered or unregistered.

5.4 The Company shall assert all moral rights arising out of Chapter IV of the Copyright, Designs and Patents Act 1988.

6.1 The Client shall pay the Fees as set out in the Order Form. Once placed, unless otherwise stated in the relevant booking specifications and / or Order Form, your order is non-cancellable and sums paid non-refundable except as provided in this Agreement.

6.2 Invoices may be issued by Us or our nominated invoice collection agent.

6.3 Payment of the Fees shall be made within 30 days from the invoice date (unless otherwise specified in the Order Form) in the currency specified in the Order Form in cleared funds to the Company’s nominated bank account.

6.4 Any Fees paid by credit card or debit card payments are processed through a payment processor as the Company may decide to nominate from time to time. As such, your card details used for payment are not stored on the Company’s servers. Accordingly, the Company takes no responsibility for the security of your payment card information.

6.5 Unless otherwise agreed in writing we will invoice the Client in full once the signed Order Form is received. If a purchase order number is required to make payment by invoice, the Client will provide this information on the Order Form.

6.6 Unless otherwise agreed, We will send all invoices to the person named in the Order Form.

6.7 You understand that You may receive multiple invoices for the Services You ordered. Invoices will be submitted to You in accordance with the terms of this Agreement.

6.8 You will forthwith on demand submit to the Company all information requested (including, but not limited to, any relevant purchase order number) in order for the Company to generate invoices for Fees incurred in the provision of services under these Advertising Terms and Conditions.

6.9 All references to payments refer to Fees and charges together with VAT thereon where appropriate.

6.10 In the event of the Client’s failure to pay in accordance with clause 6.2, the Company reserves the right (without prejudice to its other rights and remedies) to temporarily cease providing all or any of the Products and/or Services with the possible resulting delay in their completion or delivery.

6.11 Unless otherwise stated, Fees are quoted exclusive of VAT which shall be applied at the prevailing rate.

6.12 Interest shall accrue on any sums payable pursuant to this Agreement remaining unpaid at the due date for payment at a rate of four per cent (4%) above the Barclays Bank PLC base rate for the time being in force. Such interest shall accrue from day to day from the due date until the date of actual payment in full.

7.1 Both Parties warrant that they will comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and comply with such codes of conduct and anti-bribery and anti-corruption policies as are notified to the Client from time to time from the Company.

7.2 The Company warrants and undertakes to the Client that:
7.2.1 the Company shall use reasonable endeavours to provide the Products and/or Services from the Commencement Date and with reasonable skill and care as an experienced and diligent provider of similar Products and/or Services; and
7.2.2 the Company shall provide the Products and/or Services in accordance with the relevant Service Specifications and the Order Form.

7.3 The Client warrants and undertakes that:
7.3.1 you are authorised to enter into this Agreement; and
7.3.2 comply, without limitation, with all relevant laws and regulations in force;
7.3.3 comply with any instructions or directions issued by Us or on Our behalf;
7.3.4 they will not do, or omit to do, (their employees, agents or contractors will not do, or omit to do) anything which may:
7.3.5 bring Us into disrepute;
7.3.6 damage Our goodwill; or
7.3.7 otherwise prejudice Our image or reputation.
7.3.8 In the event that you change your name, trading style, identity or address or any other of the details disclosed by you to the Company, you will give the Company written notification of the change in question as soon as reasonably possible after becoming aware that the change will take place and in any event within five (5) working days of the change taking effect.
7.3.9 you will not use Our intellectual property in any way that, in Our reasonable opinion, suggests that we are forming a partnership or any trading arrangement, or that we endorse any part of your business, trading name or style.

7.4 Subject to Clause 8, the Client hereby agrees to indemnify and keep the Company fully indemnified on demand against all damages, costs, expenses, demands or liabilities (including reasonable legal fees) incurred by the Company as a result of any breach by the Client of these Terms and Conditions.


7.5 If during the term of this Agreement, either party becomes aware of any threatened or actual unauthorised use or any misuse of the other’s intellectual property or other proprietary rights then it will promptly notify the same to the other in writing. The non-owner of the intellectual property rights will, at the owning party’s reasonable request and cost, provide all reasonable co-operation (including the provision or completion of any documentation) in any action, claim or proceedings brought or threatened in respect of such intellectual property rights, but will not be obliged to take any further action.

8.1 Nothing in this Agreement excludes either party’s liability for (i) death or personal injury caused by that party’s negligence or wilful default; (ii) any fraudulent pre-contractual misrepresentations made by that party on which the other party can be shown to have relied; and (iii) any other liability which by law cannot be excluded.

8.2 The Company shall have no liability to the Client in relation to delays caused by the Client under clause 5.1. For the avoidance of doubt, unless otherwise specified and agreed between the Parties, time shall not be of the essence of the Agreement.

8.3 The Company shall not be liable for any consequential or indirect loss, including any loss of profits revenues or business, anticipated savings, whether or not in the contemplation of the Parties at the time of entering into this Agreement unless expressly set out in this Agreement.

8.4 Subject to Clause 8.1, notwithstanding anything contained in this Agreement the Company’s liability in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever arising by reason or in connection with this Agreement shall be limited to the Fees for the Products and/or Services payable during the 12-month period preceding the event giving rise to the Company’s liability.

9.1 The Company may at any time assign all, or part of its rights and benefits under this Agreement to any member of its group companies.

9.2 The Client shall not be entitled to assign, novate or otherwise transfer this Agreement, in whole or in part, without prior written consent and at the sole discretion of the Company.

10.1 This Agreement shall continue for the Term as set out in the Order Form and any subsequent renewal term.

10.2 Either party may by notice in writing terminate this Agreement with immediate effect if:
10.2.1 the other party commits a breach of any of the provisions of this Agreement, and
(a) the breach is capable of remedy and the other party fails to remedy the breach within 15 days of receipt of a written notice;
(b) the breach is not capable of remedy; or
(c) the breach is a material breach;
10.2.2 the other party commits an act of insolvency, is unable to pay its debts as or when they fall due or makes any composition or arrangement with its creditors, or goes into liquidation or if any order is made or a resolution is passed for the winding up of the other party (except for the purpose of a solvent amalgamation or reconstruction), or if it ceases or prepares to cease trading, or if it suffers the appointment of a receiver, administrative receiver, administrator or similar officer over the whole or part of any of its assets; or
10.2.3 the continued performance thereof is prevented by reason of an Event of Force Majeure as defined (and in accordance with sub-clause 14.1) and the parties are not able to rescue this Agreement pursuant to sub-clause 14.2.

10.3 The Company shall be entitled to terminate this Agreement with immediate effect in writing if at any time during the Term:
10.3.1 the Client shall fail to make any payment due under this Agreement in full in accordance with Clause 6;
10.3.2 the Client commits a breach of this Agreement and the breach is a minor breach which individually would not cause termination but has continued persistently; or
10.3.3 there is a change of control of the Client, for which purposes “control” means the ability to direct the affairs of the Client whether by virtue of contract, ownership of shares or otherwise howsoever.
10.3.4 For further details on cancellations or postponements please refer to the relevant Service Specifications.

10.4 On termination for any reason all Fees shall become immediately due. Termination of this Agreement for any reason is without prejudice to any rights or obligations that may have accrued to either party as at the date of such termination.

Each party expressly undertakes to retain in confidence the terms of this Agreement, all information (inclusive of Fees) and know-how transmitted to the other that the disclosing party has identified as being proprietary or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential and will make no use of such information either in whole or in part, for any purpose other than for the purposes set out within these Terms and Conditions of the Agreement. Either party may disclose the terms of this Agreement to its employees and outside legal and financial advisers in the ordinary course of business.

The Company retains ownership of all copyright, trademarks, service marks or trade names, rights in software, rights in design, rights in databases, image rights, moral rights, rights in an invention, patents, rights relating to passing off, domain names, rights in confidential information (including trade secrets), rights in privacy and all similar or equivalent rights in each case whether registered or not and including all applications (or rights to apply) for, or renewal or extension of, such rights which exist now or which will exist in the future in the United Kingdom and all countries in the world (“IPR”) in any materials including without limitation any course materials that it provides to the Client for the purposes of performing its obligations under this contract.

13.1 In the provision of the Products and/or Services the Company will comply with the Company Privacy Policy which is available at [Privacy Policy] and incorporated herein by reference. The Company Privacy Policy is subject to change at the Company’s discretion however such changes will not result in a material reduction in the level of protection provided for any personal data provided under this Agreement.

13.2 The Company Privacy Policy applicable to the Products and/or Services define the administrative, physical, technical and other safeguards applicable to the protection of your personal data.

13.3 You are responsible for determining your own legal basis for processing and compliance with applicable Data Protection Law.

13.4 Where We process any personal data in relation to Products and/or Services under this Agreement, We do so as a data controller on Our own behalf (including in order to comply with its obligations and exercise its rights under this Agreement) and shall comply with Data Protection Law in respect of such processing. Where you provide any personal data in relation to this Agreement, you warrant that you do so in compliance with Data Protection Law and that We may, process such data as required or contemplated under this Agreement. You will be responsible for any costs, losses, or expenses We incur or suffer as a result of breach of such warranty.

13.5 For further information about data protection and how We use your data please contact dataprotection@wilmingtonplc.com. We also encourage you to read our Privacy Policy and Cookie Policy.

13.6 By completing the Order, you consent to Us contacting you about relevant Products and/or Services based on legitimate interest via telephone or email. You will be able to opt out in all future communications at any time.

14.1 Neither party will be liable for delay in performing its obligations or for failure to perform its obligations if the delay or failure results from circumstances beyond its reasonable control and not attributable to its wilful acts, neglect or failure to take reasonable precautions including act of God, or governmental act, flood, fire, explosion, accident, war, civil commotion, or industrial dispute of another party (each an “Event of Force Majeure”).

14.2 Where any Event of Force Majeure continues or is expected to continue for a period of more than 30 days, either party shall have the right to terminate this Agreement without penalty.

15.1 Notices required under this Agreement will be sent by email to the email address on the Order Form or as otherwise agreed in writing for such purpose. Notice by email is deemed effective on the business day following transmission.

15.2 The failure of either party to exercise or enforce any right conferred upon it by this Agreement shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any times thereafter, as a waiver of another or constitute a continuing waiver.

Nothing in this Agreement shall be deemed to constitute either party as the agent of the other or create a partnership or joint venture between the Parties and neither party shall have power to bind the other party or to contract in the name of or create a liability against the other party in any matter whatsoever.

The unenforceability of any single provision of this Agreement shall not affect any other provision which shall remain valid and enforceable. Where such a provision is held to be unenforceable, the Parties shall use their best endeavours to negotiate and agree upon an enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the unenforceable provision.

This Agreement as defined in Clause 2.1 constitutes the entire understanding between the Parties with respect to the subject matter thereof and supersedes all prior contracts, negotiations and discussions between the Parties relating thereto.

This Agreement does not create or infer any rights under the Contracts (Rights of Third Parties) Act 1999 which are enforceable by any person who is not a party to this Agreement.

Unless otherwise stated on the Order Form, this Agreement shall be governed in accordance with English Law and the Courts of England and Wales shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement.