Please note Total Negotiation Group’s standard cancellation fees are:
- 90+ days out – no charge unless flights booked
- 31 – 90 days – 50% charged
- 0-30 days – 100% charged
1. The Agreement
1.1 The Letter of Engagement to which these terms of business (“Terms of Business”) are attached and the Terms of Business set out the agreement (“Agreement”). The Agreement constitutes the entire agreement between the Client named in the Letter of Engagement (“Client”/”you”/”your”) and Total Negotiation Limited (“TN”/”we”/”our”) relating to the Services. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of TN which is not set out in the Agreement.
1.2 These Terms of Business apply to the Agreement to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.3 In the event of any conflict between any provision in these Terms of Business and in the Letter of Engagement, the provisions in the Letter of Engagement shall prevail.
1.4 Acceptance of the Agreement will be signified either by you signing and returning a copy of the Letter of Engagement to us or by some other written form of instruction given by you for us to commence the provisions of the Services
2. Fees and Payment
2.1 TN shall invoice you on completion of the Services or at the end of each stage of the Services as detailed in the Letter of Engagement.
2.2 A detailed estimate of the fees payable for the Services, together with the amounts to be invoiced and paid at each stage of delivery of the Services, is set out in the Letter of Engagement. You shall be liable to pay the fees as per the estimate or as revised under this clause. The estimate is subject to upward revision in the event that either the specification of the Services changes from that set out in the Letter of Engagement; or the delivery of the Services requires an increased workload from that anticipated in the estimate. If it appears that the fees are likely to exceed the estimate by a significant amount, TN will endeavour to notify you in writing, but if changes in your requirements for the Services are made before notification of revised costing can reasonably be supplied, you shall become liable for the increased fee.
2.3 All amounts payable by you pursuant to the Agreement are exclusive of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Agreement by TN to you, you shall, on receipt of a valid VAT invoice from TN, pay to TN such VAT at the same time as payment is due for the relevant Services.
2.4 The Letter of Engagement sets out an estimate of TN’s expenses and disbursements that are anticipated being incurred in connection with the Services. This estimate is for guidance only. You shall be liable to pay all expenses and all disbursements actually and reasonably incurred by TN at cost plus ten percent. Expenses and disbursements for these purposes shall include the following: all reasonable general out-of-pocket costs incurred in delivering the Services, such as business class air travel, car mileage, first class rail fares, accommodation, subsistence, outsourced materials, videos, photographs, design, printing and duplication charges, binding, presentation materials and handouts, course administration, etc. If it appears that the expenses and/or disbursements are likely to exceed the estimate by a significant amount, TN will endeavour to notify you in writing.
2.5 You shall pay each invoice within 30 days from the date of the invoice in full and cleared funds to a bank account nominated in writing by TN. Time for payment shall be of the essence of the Agreement. If you fail to make payment under the Agreement by the due date of such payment, you shall pay interest at 2% on overdue invoices. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
2.6 Fee charges for the time consultants spend travelling will only be incurred for any journeys lasting more than three hours each way.
3. Cancellations of training programmes
3.1 In the event that you cancel a training programme being provided as part of the Services, TN will use its reasonable endeavours to be flexible and re-book time. However, if this is not possible, cancellation fees will be levied as follows, if notification is given less than 90 days before commencement of the training activity:
- Cancellation 31 – 90 days prior to activity: 50% of fees
- Cancellation less than 31 days prior to activity: 100% of fees The parties confirm that, where a training programme is cancelled on less than 90 days before commencement of the training activity, the above sums represent a genuine pre-estimate of TN’s loss in respect of the damage caused by such cancellation.
3.2 Please note if the cancellation means any of the discounts no longer apply then a final reconciling amount will be due.
3.3 TN will not be held liable for any cancellation fees levied by a venue, or any other costs incurred by you.
4. TN’s Responsibilities
4.1 TN warrants to you that the Services will be provided using reasonable care and skill.
4.2 TN shall provide the Services on a non-exclusive basis and nothing in the Agreement shall prohibit TN from providing services similar to, or the same as, the Services to a third party.
4.3 TN shall provide the Services (including any advice and guidance) with reasonable care and skill for the benefit of your business in accordance with the terms of the Agreement. In the event that you reasonably consider that the Services have fallen short of this standard in any material way, on notification to TN in writing, TN will meet you to discuss the issue and TN will use all reasonable endeavours to reach a solution which is both fair to both parties and satisfactory to you in the circumstances.
4.4 The timetable for delivery dates (“Timetable”) set out in the Letter of Engagement is an estimate for planning purposes only. TN shall use all reasonable endeavours to carry out its obligations in accordance with the Timetable. The delivery dates as set out in the Timetable are not of the essence of the Agreement. The Timetable is subject to reasonable revision by TN, without liability for delay, and TN shall notify you in any such event.
4.5 TN 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 TN shall notify you in any such event.
5.1 The Services will be provided by the employees, consultants and/or subcontractors of TN as detailed in the Letter of Engagement subject to their availability. Where TN considers changes are necessary or appropriate, TN will give you reasonable notice of the changes and will provide you with replacement consultants of equivalent standard and experience.
5.2 TN reserves the right to use associates, agents and sub- contractors to assist TN when providing any part of the Services. TN will remain liable to you in respect of any Services provided, subject to the other provisions of the Agreement.
6. Client Responsibilities
6.1 You shall:
6.1.1 provide TN, its employees, agents, consultants and sub-contractors, with access to suitable offices and other facilities as reasonably required by TN; sufficient personnel resources and equipment to enable TN to carry out the Services;
6.1.2 co-operate with the Supplier in all matters relating to the Services;
6.1.3 provide TN with such information and materials as TN may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
6.1.4 prepare your premises for the supply of the Services;
6.1.5 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
6.1.6 keep and maintain all materials, equipment, documents and other property of TN (“TN Materials”) at your premises in safe custody at your own risk, maintain the TN Materials in good condition until returned to TN, and not dispose of or use the TN Materials other than in accordance with TN’s written instructions or authorisation.
6.2 You agree to nominate a contact person for TN to liaise with to help enable TN to perform the Services. Such contact person shall promptly respond to TN’s reasonable requests.
6.3 You shall be responsible for the well-being and safety of employees, agents, consultants and sub-contractors of TN when they are on your premises or any location designated by you for the delivery of the Services. You will ensure that all occupiers’ liability and other appropriate insurances exist and extend to include TN’s employees, agents, consultants and sub-contractors and that health and safety requirements are fully complied with.
6.4 If TN’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (“Customer Default”):
6.4.1 TN shall without limiting its other rights or remedies have the right to suspend performance of the Services until you remedy the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays TN’s performance of any of its obligations;
6.4.2 TN shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from TN’s failure or delay to perform any of its obligations as set out in this clause 6.4; and
6.4.3 you shall reimburse TN on written demand for any costs or losses sustained or incurred by TN arising directly or indirectly from the Customer Default.
7.1 Neither of us will disclose to any third party, without the written consent of the other party, any confidential information relating to the other party’s business, its products and/or services, and all technical or commercial know how which is received from the other party, its employees, agents or subcontractors for the purposes of this Agreement, or otherwise comes into the possession of the such party.
7.2 This duty of confidence will not extend to any part of the confidential information which is:
7.2.1 required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction;
7.2.2 already in the possession of the receiving party at the time of disclosure;
7.2.3 published either before or after the date of disclosure through no fault of the receiving party; or
7.2.4 lawfully received from a third party with no obligation of confidentiality.
7.3 The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Agreement, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Agreement.
7.4 Clauses 7.1 to 7.3 inclusive shall survive termination of the Agreement.
7.5 Where TN is providing services that are the same or similar to the Services to you and one or more third parties who are your competitors, or whose interests may otherwise conflict with your interests, TN will ensure that arrangements are in place to prevent any breach of its obligations of confidentiality pursuant to this clause .
7.6 TN and you agree to each other referring to the other’s name and business activity, together with a summary of the Services, in the other’s external/internal advertising material for the purposes of business communication, promotion and the pursuit of new business opportunities.
8. Intellectual Property Rights
8.1 Intellectual property rights, without limitation, includes all property in and rights under patents, copyright, conceptual solutions, design rights, designs, business names, trade names, trademarks, service marks, and any other form of intellectual property right, processes or know-how of any nature anywhere in the world (“IP”).
8.2 IP owned or disclosed by either party on or before commencement of the Services (“Commencement Date”) (“Background IP”) will remain the exclusive property of the owning party.
8.3 Upon completion of all phases of the Services and following full payment of all fees and charges due to TN pursuant to the Agreement, TN shall be deemed to grant you a worldwide, royalty free, revocable, non-transferable, non-exclusive licence to use for internal business purposes only that part of our Background IP TN has used in its performance of the Services which is wholly and necessarily required for you to utilise the results of the Services.
8.4 With effect from the Commencement Date, you hereby grant to TN a worldwide royalty free, revocable, non- transferable, non-exclusive licence to use that part of your Background IP which is wholly and necessarily required by us solely for the performance of the Services.
8.5 IP in or arising from or related to the Services (“Contract- Specific IP”) will be exclusively owned by TN and TN shall be entitled to use and exploit all or any part of the same at its sole discretion. Upon completion of all phases of the Services and on payment in full of all fees and charges due to TN pursuant to the Agreement, without breach of any of these Terms, TN will be deemed to grant to you a worldwide free, revocable, non-transferable, non- exclusive licence to use for internal business purposes only that part of our Contract-Specific IP which is wholly and necessarily required for you to utilise the results of the completed Services.
8.6 TN gives no warranty and makes no representation that any IP licensed by TN to you in the course of the Services does not infringe the rights of any third parties and the use of Background IP and Contract-Specific IP by you shall be at your risk.
8.7 You acknowledge that TN does not carry out patent infringement, trademark or other IP searches or warrant that the results of the Services will be outside the scope of any patent, trademark, copyright, design right or other IP registration by a third party.
8.8 We do not undertake to file for, or maintain protection or defend from infringement any IP licensed to you.
9. Liability – YOUR ATTENTION IN PARTICULARLY DRAWN TO THIS CLAUSE
9.1 Subject to clause 9.2:
9.1.1 TN’s total liability to you in respect of all losses (other than those excluded pursuant to clause 9.1.2) arising under or in connection with the Agreement, whether such liability arises in contract, tort or otherwise, shall in no circumstances exceed the fees payable for that part of the Services relating to such provision or non-provision or any such breach; and
9.1.2 TN shall in no circumstances be liable to you, whether in contract, tort or otherwise, for any loss of profit, business, contracts, and revenue or anticipated savings, or for any special, indirect, or consequential loss of any nature whatsoever suffered by you.
9.2 Nothing in these Terms shall operate or be construed to operate so as to exclude or restrict the liability of TN for death or personal injury caused by reason of the negligence of TN or of its subcontractors, employees or agents; fraud or fraudulent misrepresentation; or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.3 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.
9.4 This clause 9 shall survive termination of the Agreement.
9.5 TN is not responsible for any errors or omissions in artwork, illustrations, proofs, copy or other such material provided by TN to you which have been accepted by one of your employees, and for these purposes, acceptance shall be deemed given either by signature on receipt, or using the said material, or failure to notify any problem within a reasonable period.
10. Force Majeure
Neither party will be liable to the other party for any failure to fulfil obligations caused by circumstances outside its reasonable control for so long as such circumstances shall continue. The party failing to fulfil its obligations due to such circumstances shall give notice in writing to the other as soon as it becomes aware of the same, and the parties shall meet to discuss how best to proceed. If the circumstances have continued or are expected to continue for more than 30 days either of the parties shall be entitled to give notice terminating the Agreement immediately without liability other than the payment of fees and expenses in respect of Services provided up to that date.
11.1. Without limiting its other rights or remedies, subject to clause 10 and the other provisions of this clause 11, the Agreement may be terminated by either of us giving not less than 30 days notice in writing to the other.
11.2. The Agreement may be terminated by either party on written notice with immediate effect if the other commits a material breach of any term in the Agreement which is not remediable, or, (if such breach is remediable), remedied within 15 days of a written request to remedy the same.
11.3. The Agreement may be terminated by either of us by written notice with immediate effect in the event that the other party is unable to pay its debts; or has a receiver, administrator or liquidator appointed; or takes steps to be wound up; or ceases or threatens to cease for any other reason to carry on its business or a substantial part of it.
11.4. The termination of this Agreement shall not release either you or us from any liability owing and accrued in favour of the other at the date of such termination, nor shall it affect in any way the survival of any other right, duty or obligation which is expressly or by implication stated elsewhere in this Agreement to survive such termination.
11.5. Without limiting its other rights or remedies, TN may suspend provision of the Services under the Agreement or any other contract between the parties if you become subject to any of the events listed in clause 11.3 or TN reasonably believes that you are about to become subject to any of them, or if you fail to pay any amount due under the Agreement on the due date for payment.
11.6. On termination of the Agreement for any reason: 11.6.1. you shall immediately pay to TN all of our outstanding unpaid invoices and interest and, in respect of Services supplied or that TN has incurred time in preparing to provide but for which no invoice has been submitted, TN shall submit an invoice, which shall be payable by you immediately on receipt, save that, where TN commits a material breach of the Agreement pursuant to clause 11.3, you shall not be liable for TN’s time in preparing to provide Services, which have not yet been provided;
11.6.2. you shall return all of the TN’s Materials and any Deliverables which have not been fully paid for. If you fail to do so, then TN may enter your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement;
11.6.3. 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
11.6.4. clauses which expressly or by implication survive termination shall continue in full force and effect.
12. Governing Law and Jurisdiction
12.1 This Agreement will be governed by and interpreted in accordance with the laws of England.
12.2 Should any dispute arise between the parties, the parties will attempt to resolve it in good faith by senior level negotiations. If the dispute is not resolved through negotiation, both of the parties irrevocably agree that the English Courts will have exclusive jurisdiction in connection with the resolution of the dispute.
13.1 Assignment and other dealings. TN 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. You shall not, without the prior written consent of TN, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights or obligations under the Agreement.
13.2.1 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 (if it is a company) or its principal place of business (in any other case) 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, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
13.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working 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 e-mail, one working day after transmission.
13.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.3 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. If any provision or part-provision of the Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.4 Waiver. A waiver of any right under the Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.5 No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
13.6 Third parties. A person who is not a party to the Agreement shall not have any rights to enforce its terms.
13.7 Variation. Except as set out in these Terms, no variation of the Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by TN.