Gramacri Limited – Terms of Engagement
1. Definitions and interpretation
1.1 The Contract must be construed in accordance with the definitions and rules of interpretation set out at clause 12.
1.2 These terms supersede any previously issued terms and conditions of purchase or supply and any terms and conditions referred to, delivered with, or contained in any purchase order of the Client or other order confirmation.
1.3 If there is any ambiguity or inconsistency between the terms of the Contract Details and the Conditions, the terms of the Contract Details will prevail.
2. Commencement and term
2.1 The Contract commences on the Services Start Date set out in the Contract Details or when the Supplier commences provision of the Services, whichever occurs first. The Contract will continue until it is terminated in accordance with its terms or at common law.
3. Supply of Services
3.1 The Supplier will supply the Services to the Client in accordance with the Contract and with reasonable care and skill through the provision of an Individual or Individuals (as the case may be).
3.2 The Supplier will observe all reasonable health and safety rules and regulations, security requirements and policies that apply at any of the Client’s premises and have been communicated to the Supplier, provided that the Supplier shall not be liable under the Contract if, because of such observation, it is in breach of any of its obligations under the Contract.
3.3 If the Client requests a specific Individual the Supplier will endeavour to make that Individual available to provide the Services but cannot guarantee that the Individual requested will be available. If, for any reason, the Individual allotted to the Client becomes unavailable or unable to attend, the Supplier will endeavour to provide like for like cover (if available). The Supplier will provide details of that cover to the Client who may refuse the cover for any reason and request a credit in relation to that Session. If the Client accepts the cover proposed the Supplier will send an email to the Client with further details in relation to the Individual and associated DBS details. If like for like cover is not available the Client will give the Supplier 4 teaching weeks to replace them. Any time the Supplier does not provide the Services will be credited to the Client.
3.4 The Supplier will ensure that all Individuals hold Enhanced DBS accreditation, renewed every 3 years. The Supplier will provide the name and DBS details for each Individual only for the purposes of the Client receiving the Services and not for any other purpose.
4. Charges and payment
4.1 The Client will pay the Supplier the Charges for the Services in accordance with the Contract Details (plus any applicable VAT).
4.2 Unless otherwise stated in the Contract Details, the Supplier’s invoices are payable within 30 days of receipt.
4.3 If the Client fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s rights and remedies:
- (a) the Supplier may suspend the Services until payment has been made in full; and
- (b) the Supplier may charge statutory interest and compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
4.4 The Client will pay all amounts due to the Supplier under the Contract in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5. Client’s co-operation
5.1 The Client will co-operate with the Supplier in all matters relating to the Services, including providing in a timely manner, such information or approvals as the Supplier may reasonably require, and ensuring that it is accurate and complete in all material respects. Prior to receiving the Services or any Session, the Client will notify the Supplier of any fact or matter that may have a material impact on the Supplier’s ability to provide the Services or Session. The Client will follow all reasonable and lawful instructions of the Supplier in relation to the Services and any Session and agrees that the Supplier will have no liability for any failure by the Client to follow such instructions.
5.2 All Individuals are provided with a USB or other storage device containing lesson plans and other associated materials necessary for the provision of the Services at any Session. The Client will, at no charge to the Supplier or the Individual, provide all assistance necessary for the Individual to use the USB (or other storage device) and to connect to the Client’s Wi-Fi and any other equipment or services reasonably necessary for the provision of the Services.
5.3 The Client will be responsible for obtaining and maintaining any equipment and ancillary services needed for the provision of the Services.
5.4 The Client will ensure that it has a member of staff present at the beginning and end of every Session to ensure that pupils are not left unsupervised at any time. The Client will be responsible for ensuring all children attending the session are collected by their parent or guardian or other authorised adult. If the Client requires any Individual to move between classrooms at any time during the provision of the Services or any Session whilst the pupils / students remain in the classroom, the Client will ensure that a member of its staff supervises those pupils / students. The Client agrees that the Supplier will have no liability for any failure by the Client to provide such supervision.
5.5 The Client will ensure that the maximum class size to whom the Supplier will provide the Services will be 30 pupils for PPA cover and the maximum group size will be 5 pupils for any Services provided to Secondary Schools.
5.6 The Client will ensure that any adult providing 1 to 1 support or assistance to any child will remain with that child and continue to provide support or assistance at all times during the provision of the Services.
5.7 For Services on-site in relation to GCSE examination preparation, catch up classes and any specific skills practice, the Supplier will provide an Individual per language as set out in the Contract Details or otherwise agreed with the Client. Each Individual can work with a single group at a time but can work with multiple groups throughout any one day.
5.8 For Services in relation to PPA cover, the Supplier will provide an Individual per language as set out in the Contract Details or otherwise agreed with the Client. Each Individual can work with a single class at a time but can work with multiple classes throughout any one day (subject to receipt of a timetable setting out which classes should be seen and when).
5.9 The Client will use any DBS details provided to it by the Supplier only for the purposes of receiving the Services and not for any other purpose.
5.10 The Client will not itself or through any other person record or make available in any way or permit any other person to record or make available in any way, any part of the Services.
5.11 If the Client wishes to make any changes to the Services it receives from the Supplier it must request those changes in writing by email to email@example.com. The Supplier will consider all reasonable written requests and may agree to the changes (which must be documented in writing as a variation to the Contract and signed by the parties) but is not under any obligation to do so.
5.12 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client (or any other party under the Client’s direction or control), the Supplier will:
- (a) not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
- (b) be entitled to payment of the charges despite any such prevention or delay; and
- (c) be entitled to recover any additional costs, charges or losses it sustains or incurs that arise directly or indirectly from such prevention or delay.
5.13 The Client will provide or procure the provision of one free parking space for each Individual involved in the provision of the Services (such parking space to be no more than 20 metres) from the Client’s premises. If such parking is not available within 10 minutes of the agreed start time of any Session provided by an Individual the Client will reimburse the Individual for any parking costs (including parking tickets) incurred or the Supplier may treat the session as cancelled. If any Individual has to pay any parking fees the Client will reimburse the individual that same day on receipt of a pay and display parking ticket from the Individual or the Supplier if the Supplier invoices the Client for the cost of the parking.
5.14 The Client will allow senior representatives of the Supplier to attend the Client’s premises to observe any Individual and where appropriate participate in the delivery of the Services. The Supplier will provide the DBS details of any such representative to the Client in advance of the representative’s attendance.
5.15 If the Client offers any Individual a temporary or full-time position or any freelance work and the Individual accepts that position or work the Client will notify the Supplier in writing within 14 days of the acceptance and pay the Supplier the sum of £3,000 (ex VAT) by way of ‘introduction fee’ within 30 days of the date of the Supplier’s invoice.
5.16 The Client may cancel any Session provided that it sends a written notice to the Supplier by email at firstname.lastname@example.org and pays the following proportion of the Charges:
- (a) 0% of the Charges if the Supplier receives the cancellation request email 15 or more days before the Session is to be delivered;
- (b) 50% of the Charges if the Supplier receives the cancellation request email 7 or more but less than 15 days before the Session is to be delivered;
- (c) 100% of the Charges if the Supplier receives the cancellation request less than 7 days before the Session is to be delivered.
5.17 If the Supplier has to cancel any Session or any part of the Services because an Individual is unavailable or because it cannot provide like for like cover in relation to an Individual, it will provide the Client with a credit to the value of the relevant Session(s) within 30 days. Any such credit will be the Supplier’s total liability to the Client in respect of that cancellation.
6. Intellectual property
6.1 The Supplier (or its licensors) retain all Intellectual Property Rights in the Services (including all preparatory materials and output created in relation to the Services).
6.2 In consideration of the payment by the Client to the Supplier of the Charges, the Supplier grants to the Client from the Services Start Date the right to use the Intellectual Property Rights at its premises during the provision of the Services for educational purposes only. Any other use requires the prior written consent of the Supplier.
7. Data Protection
7.1 The Supplier and the Client will comply with all applicable data protection legislation and the provisions of Article 28(3) of the GDPR as implemented by law in the UK are hereby incorporated and will apply where the Supplier processes any personal data on behalf of the Client under these Conditions.
8.1 Each party shall treat as confidential all Confidential Information of the other and shall not use or divulge such Confidential Information to any person except as permitted by the Contract (or as permitted by law).
8.2 Each party may disclose the other party’s Confidential Information to such of its employees, officers, representatives, contractors, sub-contractors or advisers who need to know such information for the purposes of:
- (a) exercising the party’s rights or carrying out its obligations under or in connection with the Contract; or
- (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 Each party shall ensure that such recipients comply with this clause 8.
9. Limitation of liability
9.1 The limitations below reflect the insurance that the Supplier has in place. The Client must obtain and maintain such insurance as it considers appropriate to cover all risks, losses and liabilities that may arise under the Contract.
9.2 References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
9.4 Nothing in this clause shall limit the Client’s payment obligations under the Contract.
9.5 Nothing in the Contract limits any liability which cannot be limited by law including liability for:
- (a) death or personal injury caused by negligence; and
- (b) fraud or fraudulent misrepresentation.
9.6 Neither party shall be liable for any consequential, indirect or special losses.
9.7 Subject to clauses 9.3 to 9.6 above the Supplier’s total liability to the Client arising under or in connection with the Contract will not exceed a sum equivalent to 50% of the total Charges paid by the Client to the Supplier under the Contract.
9.8 Except as expressly stated in the Contract, and subject to this clause 9, all warranties and conditions whether express or implied by legislation, common law or otherwise are excluded to the extent permitted by law.
10.1 Either party may terminate the Contract for any reason by giving 30 days written notice to the other.
10.2 Either party may terminate the Contract with immediate effect by giving written notice to the other party if:
- (a) the other party commits a material breach of the Contract (and where remediable fails to remedy that breach within 7 days of being asked to do so);
- (b) 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
- (c) the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.3 The Supplier may terminate the Contract with immediate effect by giving 7 days’ written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment.
10.4 On termination or expiry of the Contract for whatever reason:
- (a) the Client will immediately pay to the Supplier all sums then due and, in respect of Services supplied but for which the Client has not yet paid, pay to the Supplier all such sums promptly on receipt of the Supplier’s invoice;
- (b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
- (c) termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
11.1 Co-operation: Each party will provide such co-operation and assistance to the other as may be reasonably necessary or desirable and will take any other action reasonably requested by the other party, for the purpose of putting the Contract into effect.
11.2 Entire agreement: The Contract 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.
11.3 Variation: No variation of the Contract will be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.4 Waiver: No failure or delay by a party to exercise any right or remedy provided under the Contract or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
11.5 Severance: If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will 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 will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause will not affect the validity and enforceability of the rest of the Contract.
11.6 Subcontracting: The Supplier may subcontract any or all of his rights and/or obligations under the Contract.
11.7 Force majeure: The Supplier will not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control including but not limited to: any act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Supplier’s or its suppliers’ workforce.
If any event of force majeure occurs, the Supplier will notify the Client promptly and explain how that event will affect the provision of the Services. The Supplier will endeavour to minimise the impact of any event of force majeure and where it has suspended provision of the Services, recommence the provision of the Services as soon as practicable. If the Supplier cannot perform the Services within a reasonable time because of an event of force majeure, it may cancel the provision of the Services and refund a fair and reasonable proportion of any Charges already received in relation to the Services. The Client acknowledges and agrees that an event of force majeure does not include: the Client’s inability to pay or circumstances resulting in the Client’s inability to pay or where the Client chooses to take any action (or omits to take any action) which renders it unable to receive the Services.
11.8 Notices: Any notice or other communication given to a party under or in connection with the Contract must be sent by email to the email address for the relevant party set out in the Contract Details. The provisions of this clause do not apply to the service of any proceedings or other documents in any legal action.
11.9 Third party rights: No one other than a party to the Contract has any right to enforce any of its terms.
11.10 Counterparts: The Contract may be executed in any number of counterparts, each of which will constitute a duplicate original, but all the counterparts will together constitute the one agreement.
11.11 Governing law and jurisdiction: The Contract, 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, will be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
12. Definitions and rules of interpretation
|Charges:||As set out in the Contract Details.|
|Client:||As set out in the Contract Details.|
|Confidential Information:||Any information that is confidential in nature concerning the other party and any associated parties including, any details of its business, affairs, customers, clients, suppliers, plans, proposals or strategy or any similar information.|
|GDPR:||The General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom.|
|Individual:||A suitably qualified individual involved in delivering the Services to pupils who has been subject to Enhanced DBS / CRB checks within the previous 3 years.|
|Intellectual Property Rights:||Copyright and related rights, patents, design rights, trade marks, (in each case whether registered or not), applications or rights to apply for any of the foregoing, database rights, know-how, trade or business names, rights to sue for passing off, rights in confidential information, rights in goodwill, rights in software, and all other similar rights existing in any part of the world.|
|Services:||As set out in the Contract Details.|
|Services Start Date:||As set out in the Contract Details.|
|Session:||A teaching session at which the Services are provided by the Supplier via an Individual or Individuals (as the case may be) or as set out in the Contract Details.|
|Supplier:||As set out in the Contract Details.|
12.2 In the Contract unless the context requires otherwise:
- (a) a clause, schedule or other heading in the Contract is included for convenience only and shall have no effect on the interpretation of the Contract;
- (b) any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
- (c) words in the singular include the plural and vice versa.