Terms and Conditions of Business
Note the disclaimers in clause 14 and the exclusions and limitations on liability in clause 15.
In these Conditions the following definitions apply:
1.1 ‘You or Your’ means the party entering into this Agreement with us and includes any Authorised User.
1.2 ‘Us, We, or Our’ means Aura Infection Control Limited, registered in England and Wales under Company No: 08814266 whose registered office address is: Hanover Buildings, 11-13 Hanover Street, Liverpool, L1 3DN.
1.3 ‘Agreement’ means the Order, the Terms and any variations agreed between us in writing;
1.4 ‘Authorised User’ includes any person we have agreed with you is to benefit from the Service.
1.5 ‘Delivery’ means the moment we dispatch, install, deliver or otherwise commence performance or supply of the Services or Training to you or make Services or Training available to you to access or download through our website or our supplier’s websites or by any other means.
1.6 ‘Force Majeure Event’ means an event beyond our reasonable control including but not limited to delay or default of suppliers, service providers or sub-contractors, strikes, lock-outs, disputes, shortage of labour, fuel, machinery and materials, failure of a utility service or transport or communications network, act of God, war, riot, civil commotion, malicious damage compliance with any law, governmental order or other competent body, rule, regulation or direction, accident, breakdown of equipment, plant or machinery, fire, flood, earthquake, storm.
1.7 ‘Hosting’ means the services we provide to allow you to access and use interactive Know-how or Training on our websites or through our supplier’s websites, such as the online training platform including any ancillary software provided by us or by our suppliers.
1.8 ‘Intellectual Property Rights’ means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, 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.
1.9 ‘Know-how’ means practical knowledge, information and guidance on how to accomplish something delivered by way of texts, documents, forms, templates or other means (whether in tangible or digital format) including, but not restricted to, the Aqua-Safe Legionella Compliance Packs.
1.10 ‘Order’ means the applicable ordering document or process.
1.11 ‘Price’ means the price payable for the Services or Training, either as a one-off payment or by way of a Subscription Fee.
1.12 ‘Services’ means the provision of Know-how and Hosting.
1.13 ‘Subscriber Data’ means any data input by you for use in conjunction with the Know-how or Training (including annotations), which is maintained via the Hosting.
1.14 ‘Subscription’ means an Agreement for Services or Training for a periodical or specified period of time.
1.15 ‘Subscription Fee’ means the Price payable for Services or Training under Subscription.
1.16 ‘Subscription Period’ means the period of Subscription as specified in the Order.
1.17 ‘Terms’ means the terms and conditions set out in this document.
1.18 ‘Training Assignments’ means practical case studies with multiple choice questions based on the subject matter of the Training.
1.19 ‘Training’ means any training or educational material (whether in tangible or digital format) together with any Training Assignments including, but not restricted to, Legionella Awareness and Competency Training.
1.20 ‘Writing’ or ‘Written’ includes email.
2.1 These Terms apply to the Agreement to the exclusion of any other terms which you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 This Agreement constitutes the entire agreement between us. You acknowledge that you have not relied on any statement, advice, promise, representation, assurance or warranty (whether negligently made or not) made or given by us or on our behalf which is not set out in this Agreement. The only remedy available to you for breach of the Agreement shall be for breach of contract under the Terms of this Agreement.
2.3 Any samples, pictures, drawings, illustrations, information, descriptive matter or advertising issued or published in our website, catalogues, brochures, literature or other document is for the sole purpose of giving an approximate idea of the Services or Training described in them. They shall not form part of the Agreement nor have any contractual force.
- Offer and Acceptance
3.1 Your Order constitutes an offer to purchase from us the Services or Training in accordance with these Terms.
3.2 No variation to the Order or these Terms shall be binding unless confirmed by us in writing.
3.3 You are responsible for ensuring the accuracy of any information referred to in the Order including the quantity, quality, description and Price and the name of any Authorised User.
3.4 All Orders must be for the minimum order quantities (or multiples thereof) for the relevant Services or Training as specified by us from time to time.
From the supplier's perspective, it is preferable that the offer should be made by the customer and (if appropriate) accepted by the supplier because:
- It will know whether and when a contract has been entered into. This would avoid the difficulties inherent in the postal acceptance rule, that is, that a valid contract can be made when acceptance of an offer is posted (see Practice note, Contracts: formation: Communication of acceptance (www.practicallaw.com/3-107-4828)).
- If it has made a mistake (for example, regarding the price) or is out of stock of relevant materials, it may reject the order.
- Characterising the customer's submission of a purchase order or acceptance of a quotation as an offer to enter into the contract will help the supplier establish that the conditions are incorporated into the contract for services in the event of a battle of the forms. This is because the defined term "contract" expressly incorporates the supplier's termsandconditions.
Clause 2.1, clause 2.2andclause 2.5 therefore attempt to regulate the formation of the contract in the supplier's favour.
3.5 The Order shall only be deemed to be accepted when we Deliver Services or Training to you or issue you with an acknowledgement of your Order, at which point this Agreement shall come in force. Nothing prior to that point will amount to an acceptance of your Offer.
3.6 Where an acknowledgement is accompanied by a proforma invoice, the Agreement shall only start upon receipt of cash or cleared funds from you in full payment of the pro-forma invoice.
3.7 Any quotation we provide shall not constitute an offer and is only valid for a period of 20 working days from its date of issue.
4.1 This Agreement (including the licences hereunder) shall end on the first of the following events:
a) (if paying the Price as a one-off payment), 1 month from the date of Delivery (unless we have agreed with you to extend this Agreement); or
b) (if paying the Price by Subscription Fee), the end of the Subscription Period, (unless we have agreed with you to renew this Agreement); or
c) termination of this Agreement under clause 17.
5.1 In return for granting you the rights and licences under this Agreement, you agree to pay us the Price.
5.2 The Price and any other sums payable under this Agreement are exclusive of VAT. You will, upon receipt of a valid VAT invoice, pay us such additional amounts in respect of VAT as are chargeable on such sums.
5.3 Prices are based on our current price list (as amended from time to time), or on our quotation.
5.4 Provided that we notify you before Delivery, we reserve the right to increase the Price to reflect any increase in the cost to us due to:
a) any factor beyond our control (including, but not limited to, foreign exchange rates, currency fluctuations or a significant increase in the cost of Hosting, service platforms, software or other supplier costs);
b) any change in the scheduled Delivery date or your failure to take Delivery on the Delivery date (or if there is none, within 3 months of our acceptance of your Order);
c) any delay caused by your failure to provide us with adequate information or instructions.;
d) any change in quantities or specifications for Services or Training requested by you; or
e) any error or mistake in the Price.
6.1 We may invoice you the Price for the Services or Training on or at any time after Delivery.
6.2 The invoice shall be paid in full within 30 days of the date of the invoice without any set-off, counterclaim, deduction or withholding except as required by law. Time of payment is of the essence of the Agreement.
6.3 We may, without limiting any other rights or remedies we may have, set-off any amount owing to us by you against any amount payable by us to you.
6.4 If payment is not made in full by the due date, without prejudice to any rights or remedies otherwise available, we reserve the right to do any one or all of the following:
a) refuse to make Delivery of any undelivered Services or Training without incurring liability for non-Delivery or any delay in Delivery;
b) require payment in advance of Delivery for any undelivered Services or Training;
c) suspend or withdraw access to Services or Training;
d) charge interest on the outstanding balance of all overdue sums at the rate of 4% per annum above the current base rate at Barclays Bank or the maximum interest rate permitted by law, whichever is the greater. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You must pay the interest together with the overdue amount; or
e) terminate the agreement under clause 17.
6.5 Credit and debit card payments may be subject to limits, charges and restrictions imposed by our credit card clearing organisation (including PayPal).
6.6 Credit terms and limits shall be entirely at our discretion and advance payment may be required from you where little or no trading history has been established with us or otherwise in accordance with this Agreement.
7.1 Delivery will be made to the address or email address specified by you in the Order. We can only Deliver Services and Training within the UK.
7.2 Where Services or Training are paid for in advance, we aim to make Delivery no later than 5 days following receipt in cash or cleared funds full payment of the invoice, or otherwise on the scheduled date.
7.3 Any date or time quoted for Delivery are estimates only and we shall not be liable for failure to Deliver the Services or Training on that date nor will you be entitled to reject any Delivery or to treat the Agreement as repudiated in the event of such failure. Time and date of Delivery shall not be the essence of the Agreement.
7.4 Unless otherwise agreed in writing, you shall be bound to accept partial Deliveries of the Services or Training, or Delivery by instalments and the Terms herein apply to such partial Delivery or Delivery by instalment. Where the Services or Training are to be Delivered in instalments, each Delivery shall constitute a separate Agreement and failure by us to Deliver any one or more of the instalments or any claim by you in respect of any one or more instalments, shall not entitle you to treat the Agreement as a whole as repudiated.
7.5 Unless otherwise agreed in writing, we reserve the right to Deliver Services or Training in advance of any scheduled date.
7.6 You are responsible for ensuring the Services or Training Delivered conform with the Order. Notification of shortages, visible defects or errors in Delivery must be made to us in writing within 7 days of receipt. We will not be liable for replacement Services or Training if you fail to notify us in accordance with this clause 7.6.
- Authority and Licence for Services
8.1 We authorise you on the terms and conditions of this Agreement to use the Services for your own use or for your own business purposes.
8.2 The authority under clause 8.1 permits you to:
a) retrieve, search, view, copy, print out and use the Know-how once for the purpose specified in clause 8.1, provided you keep intact all copyright and proprietary notices;
b) disclose Know-how to any court of a competent jurisdiction, any regulatory or administrative body or otherwise as required by law, or to others provided any such disclosure is on a reasonable, non-systematic basis which is not in any way commercially prejudicial to us; and
c) access and use the Hosting.
8.3 Except as expressly permitted under this Agreement, you will not reproduce, modify, alter, customise, revise, copy, print, distribute, sell, give-away, lend, lease, licence, sub-licence, supply or otherwise disclose all or any part of the Services nor use the Services for any purpose including, but not restricted to, advising or providing services to others commercially, professionally or otherwise other than as permitted by this Agreement, nor disclose or permit others to use your username, password, account or other security details to access any part of the Services unless authorised by us in writing.
9. Authority and Licence for Training
9.1 We authorise you on the terms and conditions of this Agreementto use the Training for your own personal training for purposes which are general and educational in nature and for completing Training Assignments.
9.2 The authority under clause 9.1 permits you to:
a) retrieve, search, view, copy, print out and use the Training for the purpose specified in clause 9.1 in your own name, provided you keep intact all copyright and proprietary notices; and
b) disclose Training to any court of a competent jurisdiction, any regulatory or administrative body or otherwise as required by law, or to others provided any such disclosure is on a reasonable, non-systematic basis which is not in any way commercially prejudicial to us.
9.3 Except as expressly permitted under this Agreement, you will not:
a) disclose answers to questions in Training Assignments to anyone else;
b) permit anyone else to answer questions in Training Assignments in your name; or
c) use reproduce, modify, alter, customise, revise, copy, print, distribute, sell, give-away, lend, lease, supply or otherwise disclose all or any part of the Training nor use the Training for any purpose including, but not restricted to, training, advising or providing services to others commercially, professionally or otherwise other than as permitted by this Agreement, nor disclose or permit others to use your username, password, account or other security details to access any part of the Training unless authorised by us in writing.
- Changes8.2(a) Loss of profits
10.1 We reserve the right to make any changes in the Terms at any time at our discretion. However, you will be subject to the Terms in force at the time you submit your Order.
10.2 We reserve the right to make any change in the specification of the Know-how or Training at any time at our discretion which does not (in our reasonable opinion) materially affect the use, nature, quality, performance or Price of the Know-how or Training without liability and without invalidating any Order or the remainder of any Order (as appropriate).
10.3 We reserve the right to withdraw all or any part of the Know-how or Training at any time at our discretion without liability and without invalidating the Order or the remainder of the Order (as appropriate) subject to our reimbursing any part of the Price paid to us by you attributable to such Know-how or Training.
11. Cancellations and Rescheduling
11.1 You may cancel or reschedule your Order provided any request for cancellation or rescheduling is made to us in writing (stating the nature and detailed reasons for the request) no less than 30 days prior to Delivery or the scheduled date for Delivery.
11.2 Cancellation and rescheduling cannot be accepted inside the 30 day period except at our sole discretion. Should we accept the request, we reserve the right to invoice you for costs and losses associated with the cancellation or rescheduling up to the amount equivalent to the Price.
12. Your Obligations
12.1 You are solely responsible for the appropriate use of Services and Training for your own use or for your own business purposes, and you assume sole responsibility for results obtained from the use or misuse of Services and Training by you, for any conclusions drawn from, or any action taken as a result of, such use.
12.2 You are responsible for completing Training Assignments to a satisfactory standard by the date set by us in order to qualify to receive your certificate and/or to qualify for CPD hours. Such standards and dates are set by us in our absolute discretion.
12.3 You are responsible for configuring your information technology, computer programmes and software in order to access the Services and Training. Notwithstanding clause 13.4, you should use your own virus protection software and you must bear the risks associated with the use of the Internet.
12.4 You will indemnify us and hold us harmless against all claims, actions, proceedings, losses, damages, expenses and all costs incurred or suffered by us or for which we may become liable (including any direct, indirect or consequential loss, loss of profit, reputation, business or goodwill and all interest, penalties and legal and professional costs and expenses, calculated on a full indemnity basis) arising out of your misuse or misapplication of the Services and Training or your breach or negligent performance or non-performance of this Agreement.
13. Our Obligations
13.1 We warrant that we are the sole legal and beneficial owner of, and own all the rights and interests in the Know-how and Training.
13.2 We will take reasonable steps to ensure that any data files we supply to you as part of the Know-how or Training are virus-free.
13.3 We will take reasonable steps to ensure that any Hosting we provide is continuous and that access to our website is not interrupted by any event in our control for more than 45 days in any 12 month period. Any planned downtime will, if reasonably practicable, be scheduled outside normal United Kingdom office hours. In the event of any excessive interruption, your sole and exclusive remedy shall be that we will reimburse you that part of the Price paid to us by you attributable to the relevant period of interruption.
13.4 We will take reasonable steps to ensure that Subscriber Data maintained by our Hosting is maintained securely and is properly backed-up. In the event of any loss or damage to Subscriber Data, your sole and exclusive remedy shall be that we use our reasonable endeavours to restore the lost or damaged Subscriber Data from the latest back up of such Subscriber Data.
13.5 If you satisfactorily complete your Training Assignment we will issue a certificate of completion.
14.1 We are a provider of practical know-how, products, training and resources for legionella risk assessment, risk management and control. We are not a legionella or water hygiene contractor or microbiologist, nor a legal or surveying firm. We are not providing legal, surveying, legionella, microbiological or water hygiene advice and we are not engaged in rendering legionella risk assessment, management or control services or microbiological analysis, do not consult or advise clients in any such matters and are not bound by the professional responsibilities and duties of such persons. Nothing in the Know-how, Training or in this Agreement nor any receipt or use of such Know-how or Training by you, shall be construed or relied on as advertising or soliciting to provide any such services, creating any professional-client relationship or providing any advice or opinion whatsoever on behalf of us. You should note in particular:
a) The Know-how and Training are general and educational in nature and are not intended to constitute a definitive or complete statement of the law or compliance on any subject, nor are they, or any part of them, intended to constitute legal or professional advice for any specific situation.
b) Due to the standardised nature of the Know-how and Training, it is impossible to predict all the circumstances in which they may be used and we do not undertake any obligation to consider whether,nor do we guarantee that, the Know-how or Training are up to do date, sufficient or appropriate for your precise needs and requirements or whether they apply to the specific facts and circumstances of individual properties or water systems. If you are in doubt as to the suitability of Know-how or Training to your circumstances, we strongly recommend that you seek specific advice from a competent person or body before use.
c) We give no warranty or assurance that the Know-how, Training and our means of delivering them are compatible with your software or computer configuration.
d) We undertake no obligation to respond to queries or to provide additional advice or guidance in respect of the subject matter of the Know-how, Training or Training Assignments. If we do, answers may be prepared entirely from existing Know-how.
14.2We do not accept any responsibility:
a) for loss or damage caused by:
i) failure by you to observe or perform any of your obligations under this Agreement;
ii) failure by you to provide us with adequate information or instructions or for errors or omissions in information, instructions, data or scripts provided by you;
iii) failure by you to follow instructions or recommendations in connection with the use or application of Services or Training or (if there are none) good trade practice; or
iv) actions taken by us at your direction;
b) where Services or Training are altered or modified other than by us or where or a defect arises as a result of misuse, neglect, accident, installation, wilful damage, negligence, abnormal working conditions, incorrect performance or any other reason which is not attributable to us;
c) for any delay or failure to perform our obligations under this Agreement as a result of events out of our control including, but not restricted to, a Force Majeure Event. In such an event, we may without liability and without limiting our other rights or remedies, terminate or vary the terms of the Agreement by giving you written notice; or
d) where you make any further use of the Services or Training after giving notice in accordance with clause 7.6.
- Exclusions and Limitations on Liability
15.1 Nothing in this Agreement excludes our liability for death or personal injury caused by negligence, fraud or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.
15.2 Except as set out in clause 13 above, we make no warranty, assurance or representation regarding the Services or Training and we expressly disclaim all other warranties, conditions and terms (express or implied) which arise by operation of law or otherwise. Any such warranties, conditions and terms are, to the fullest extent permitted by law, excluded from this Agreement.
15.3 Nothing in this agreement shall constitute any representation or warranty that the exercise by you of rights granted under this agreement will not infringe the rights of any person.8.2 Exclusions and limitations of liability
a)Exclusions and limitations of liability
b)Clause 8.2(a) sets out the different types of loss that a supplier may wish to exclude, while clause 8.2(b) sets out the types of loss for which the supplier wishes to limit its liability.
c)Application of UCTA
d)As the supplier is dealing on standard terms of business, any exclusion or limitation of liability for negligence, misrepresentation or breach of contract is only valid to the extent it satisfies the UCTA reasonableness test. See further Practice note, Drafting terms and conditions, Limiting or excluding liability in standard terms and conditions (www.practicallaw.com/2-501-7221).
e)Clause 8.2 must be stated to be subject to clause 8.1, or there is a risk it will fail the UCTA reasonableness test altogether.
15.4 Subject to clause 15.1:
a) in no event will we be liable whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, for any loss of profits, loss of revenue, loss of business, loss of anticipated savings, wasted expenditure, loss of privacy, loss of data, depletion of goodwill or similar losses or pure economic loss, or for any indirect, consequential or incidental loss costs, damages, charges, fines or expenses however arising under or in connection with this Agreement ; and
b) our total aggregate liability whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, in respect of all other losses arising under or in connection with this Agreement, shall in no circumstances exceed the aggregate Price paid to us by you in respect of the Services and Training which give rise to such a claim during the 12 months preceding the date on which the claim arose. You acknowledge that this limitation is reasonable.
15.5 Under this clause 15, ‘our liability’ includes any liability for the acts or omissions of any company in our group and our and their respective agents, employees, contributors, consultants and sub-contractors and ‘you’ includes any other party claiming through you.
16. Intellectual Property
16.1 All Intellectual Property Rights in the Services and Training are protected and shall remain our exclusive property or the exclusive property of our licensors.
16.2 Except as expressly stated in this Agreement, no right, title, interest or licence is granted to you under any Intellectual Property Rights in the Services and Training or otherwise created in connection with this Agreement.
17.1 Without affecting any other right or remedy available to us, we may terminate the Agreement with immediate effect if:
a) you are in breach of any of these Terms;
b) you fail to pay advance payment when required to do so, or in event of default of payment; and
c) where the breach is remediable, you have failed to remedy the breach within 30 days after we have given you written notice of it.
17.2 On termination of this Agreement for any reason:
a) all licences under this Agreement will terminate;
b) you will delete, destroy and remove all Know-how, Training and Software or any part of them from your electronic media, computers, intranet and electronic storage devices, except for print outs or copies of Know-how, Training, Training Assignments or certificates existing prior to termination; and
c) you will immediately pay to us all of our outstanding unpaid invoices, interest and all other sums due and payable under this Agreement notwithstanding any previous agreement or arrangement to the contrary, and, in respect of Services or Training Delivered but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately upon receipt.
17.3 We may destroy or otherwise dispose of any Subscriber Data in our possession.
17.4 Termination will not affect or prejudice the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly survive termination.
18.1 You may not, without our prior written consent, assign, transfer, mortgage, charge, licence, subcontract or deal in any other manner with all or any of your rights or obligations under this Agreement.
18.2 We may at any time assign, transfer, mortgage, charge, license, subcontract or deal in any other manner with all or any of our rights or obligations under this Agreement..
18.3 A person who is not a party to this Agreement shall not have any rights to enforce its terms and the provisions of the Agreements (Rights of Third Parties) Act 1999 are expressly excluded from this Agreement.
18.4 You agree that we may use your name, logo and any other relevant details for public relations activities including, without limitation, in blogs, on our websites or in promotional or marketing literature and materials.
18.5 Failure, delay or neglect by us to exercise any right in this Agreement will not prejudice our right to take subsequent action and no waiver by us of any breach of the Agreement by you is considered as a waiver of any subsequent breach of the Agreement or any other provision.
18.6 If any provision (or part of a provision) of this Agreement is found to be invalid, unenforceable or illegal, the other provisions (or the remainder of the provision in question) shall remain in force.
18.7 Clause 12.4, 15 and 18.5 shall survive termination of this Agreement.
18.8 This Agreement is governed by the laws of England and you submit to the non-exclusive jurisdiction of the English courts.
Version 1.0: Released 1 January 2014