TERMS AND CONDITIONS FOR THE SUPPLY OF CONSULTANCY OR MENTORSHIP SERVICES BY CHRIS BEARDSLEY PROVIDED EITHER AS A TELEPHONE (OR SKYPE) CONSULTATION OR BY EMAIL. YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 7 (LIMITATION OF LIABILITY)
1.1 The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 4(Charges and payment).
Commencement Date: the date the Contract starts as set-out in the Contract Details.
Conditions: these terms and conditions as set out herein.
Contract: the contract between the Consultant and the Client for the supply of Services in accordance with these Conditions.
Client: the person or organisation who purchases Services from the Consultant.
Client Default: has the meaning set out in clause 3.2.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the GDPR and any other directly applicable European Union regulation relating to privacy.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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.
Services: the services, supplied by the Consultant to the Client in the form of email and telephone (or Skype) consultations, including (1) verbal or written presentation and synthesis of sports science research as it relates to strength training and either athletic performance or muscle growth, (2) verbal or written presentation of opinions regarding how this research can be used in practice to enhance results during physical preparation of athletes or for bodybuilding, and (3) the provision of background information in the form of links to research, or written or video materials presenting research, or written or video materials summarizing research. For the avoidance of doubt, the Services explicitly exclude the provision of personal training and the writing of strength training programs for specific individuals. If the Services include verbal or written presentation of opinions regarding existing strength training programs written by the Client or by any other person, such opinions cannot be considered as endorsement by the Consultant of the safety or efficacy of those strength training programs.
Consultant: Chris Beardsley
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes fax and email.
2. Basis of contract
2.1 Any samples, drawings, descriptive matter or advertising issued by the Consultant, and any descriptions or illustrations published on the Consultant’s websites or social media, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.2 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Client’s obligations
3.1 The Client shall:
(a) co-operate with the Consultant in all matters relating to the Services;
(b) be available to speak with the Consultant at the appointed time;
(c) provide the Consultant with such information and materials as the Consultant may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
(d) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
3.2 If the Consultant’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) without limiting or affecting any other right or remedy available to it, the Consultant shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Consultant’s performance of any of its obligations;
(b) the Consultant shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Consultant’s failure or delay to perform any of its obligations as set out in this clause; and
(c) the Client shall reimburse the Consultant on written demand for any costs or losses sustained or incurred by the Consultant arising directly or indirectly from the Client Default.
4. Charges and payment
4.1 The Charges for the Services shall be calculated based on the Consultant’s hourly fee rate, which is $100.
4.2 The Client shall pay the Consultant for the Services before the Services are undertaken, through the software used to book the Services.
4.3 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Consultant to the Client, the Client shall, on receipt of a valid VAT invoice from the Consultant, pay to the Consultant such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
4.4 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5. Intellectual property rights
5.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by the Consultant.
5.2 The Consultant grants to the Client, or shall procure the direct grant to the Client of a fully paid-up, worldwide, non-exclusive, royalty-free licence to use Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) for the purpose of receiving and using the Services.
5.3 The Client shall not sub-license, assign or otherwise transfer the rights granted in this clause 5.
5.4 The Client grants the Consultant a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Consultant for the term of the Contract for the purpose of providing the Services to the Client.
5.5 For the avoidance of doubt, nothing in this agreement shall give the Consultant any right, title or interest whatsoever in any Intellectual Property Rights of the Client which predate, or are otherwise unconnected to, the Services.
6. Data protection and data processing
6.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
6.2 Calls may be recorded. This is done solely for the purpose of keeping an accurate log of the consultancy services provided to the Client.
7. Limitation of liability
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.2 Subject to clauses 7.1 the Consultant’s total liability to the Client shall not exceed an amount equal to the total fees received from the Client under the Contract. The Consultant’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
8. Cancellation and termination
8.1 The Client may cancel Services under the Contract, without penalty, by giving notice in writing to the Consultant up to 48 hours before the Services are due to commence.
8.2 If the Client cancels Services under the Contract within 48 hours of the Services falling due, the Charges for the Services will become payable to the Consultant, in full and on demand.
8.3 Without affecting any other right or remedy available to it, the Consultant may terminate the Contract and any Services thereunder with immediate effect by giving written notice to the Client if:
(a) the Client does not, within a reasonable time of being asked, provide information necessary to provide the Services; or
(b) the Client fails to pay any amount due under the Contract on the due date for payment.
9. Consequences of termination
9.1 On termination of the Contract the Client shall immediately pay to the Consultant all of the Consultant’s outstanding unpaid invoices and, in respect of Services supplied but for which no invoice has been submitted, the Consultant shall submit an invoice, which shall be payable by the Client immediately on receipt.
10.1 Force majeure. Neither party shall 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 result from events, circumstances or causes beyond its reasonable control.
10.2 Assignment and other dealings. The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Consultant.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
10.4 Entire agreement.
(a) 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.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
10.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
10.7 Severance. If any provision or part-provision of the Contract 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 Contract.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or if sent by email to the following email address:
(i) In the case of a notice sent by the Client to the Consultant through the software used to book the Services.
(ii) In the case of a notice sent by the Consultant to the Client through the software used to book the Services.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and
(iii) if sent by Email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. Business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
10.9 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
10.10 Governing law. 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 shall be governed by, and construed in accordance with the law of England and Wales.
10.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall 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.