Terms and Conditions of Supply
Issued November 2013
These Terms and Conditions apply to your purchases of services and ancillary goods from our website.
Please read these Terms carefully before enrolling on a course.
1. Definitions and Interpretation
1.1 The definitions and rules of interpretation in this Condition 1 apply in these terms and conditions of supply (the “Conditions”) unless otherwise stated:
“Access Methods” means the unique password(s) and user identification(s) required to access the BIM elearning® course;
“Agreement” means the entire agreement between us and you comprising these Conditions and the Registration Form;
“Business Day” means any day other than Saturday or Sunday that the clearing banks are open for business in the City of London;
“Document” means, without limitation, in addition to any documents in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form regardless of the media on which it is contained;
“Fees” means the fees payable by you to us in accordance with Condition 6.1;
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Materials” means the learning and training materials comprising all Documents, information, data, records and materials provided by us in any media relating to a BIM elearning® Course and shall include any replacement learning and training materials if the Customer transfers a BIM elearning® course in accordance with Condition 14;
“BIM elearning® course” means a course(s) identified in the Registration Form (or such other course(s) as we may from time to agree in writing) and all related Materials and support where applicable (however supplied);
“Registration Form” means the registration form completed by you online and submitted to us (together with payment for the Services) detailing the course(s) which you have enrolled on and specifying the Fees payable by you to us;
“Services” means the distance learning services to be provided by us, or a Third Party Seller (as applicable), to you in respect of a BIM elearning® course;
“Support Period” means the period during which we shall provide you with support in relation to a BIM elearning® course as advertised;
“Software” means any software provided by us to you as part of the BIM elearning® course;
“Third Party Seller” means a partner organisation which we have entered into an arrangement with to provide certain Services;
“us”, “we” or “our” means Fulcro (registered company number …..) together with its successors or assigns; and
“you” or “your” means the person entering into this agreement by accepting its terms and/or named in the registration section and to whom we shall provide the online learning resource.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 A reference to writing or written includes e-mail.
1.5 Singular words shall include the plural and vice versa.
1.6 Headings are included for convenience only and shall not affect the construction or interpretation of this Agreement.
2. Terms of Supply
2.1 The Customer should print a copy of these Conditions for future reference.
2.2 By placing an order through our website, you warrant that you are:
(a) legally capable of entering into binding contracts;
(b) if you are not a consumer, you have authority to bind any business on whose behalf you use our site; and
(c) if you are a consumer, at least 18 years old.
2.3 In some cases, we accept orders as agents on behalf of Third Party Sellers. The resulting legal contract is between you and that Third Party Seller, and is subject to the terms and conditions of that Third Party Seller, which they will advise you of directly. You should carefully review their terms and conditions applying to the transaction.
2.4 We may also provide links on our website to the websites of other companies, whether affiliated with us or not. We cannot give any undertaking that any Online BIM Course which you may purchase from a Third Party Seller via our website, or from companies to whose website we have provided a link on its website, will be of satisfactory quality, and any such warranty or representation is disclaimed by us absolutely. The foregoing does not affect any statutory rights you may have in relation to the Third Party Seller. We will make you aware when a Third Party Seller is involved in a transaction, and we may disclose information relating to you to the Third Party Seller for such transaction to be performed and by agreeing to these terms you consent to this.
Price and Payment
2.5 The price and/or Fees of the Services will be as quoted on our website from time to time, except in cases of obvious error. These prices include VAT where applicable.
2.6 Fees are liable to change at any time, but changes will not affect orders in respect of which we have already sent you a purchase confirmation. We reserve the right to make changes to the pricing at any time prior to you being in receipt of the Services.
3. How the contract is formed
3.1 After placing an order, you will receive an e-mail from us acknowledging that we have received the order. Please note that this does not mean that the order has been accepted. The order constitutes an offer by you to us to buy a BIM elearning® course. All orders are subject to acceptance by us, and we will confirm such acceptance to the Customer by sending the Customer an e-mail that confirms acceptance (the “Confirmation”). The contract between us and you will only be formed when we send the Confirmation.
3.2 The contract between us and you will relate only to the BIM elearning® course for which we have confirmed acceptance in the Confirmation. We will not be obliged to supply any other BIM elearning® course.
4. Right of Cancellation
This Condition 4 shall only apply if you are a consumer.
4.1 Subject to Condition 4.4, you shall have the right to cancel this Agreement within 7 days from the day after your receipt of the Confirmation (the “Cooling Off Period”). In this case you will receive a full refund of the price paid in accordance with our refunds policy set out in Condition 8.
4.2 Cancellation must be made in writing and should be made in via e-mail to firstname.lastname@example.org and not by telephone. When doing so you should state your name, address and the reason for cancellation.
4.3 By starting the BIM elearning® course within the Cooling Off Period you waive your right to cancel arising under clause 4.1. You may still be able to transfer pursuant to clause 14.
4.4 Nothing in these Conditions shall affect your statutory rights.
5. Availability and Delivery
5.1 Orders will be fulfilled following receipt of payment, if payment by invoice is selected then within a reasonable time of the date of the Confirmation, unless there are exceptional circumstances, which will be communicated to you.
5.2 Following receipt of payment we shall issue Access Methods and relevant information to you by e-mail.
6.1 In consideration for the provision of the Services you shall pay to us the Fees, details of which shall be set out in the Confirmation.
6.2 Time for payment of the Fees shall be of the essence of this Agreement.
6.3 You shall submit payment of the Fees either (a) together with the Registration Form; or (b) by another method indicated by you in the Registration Form; or (c) in the case of corporate customers only and subject to our prior agreement and such additional terms as we may require being satisfied, in arrears and strictly in accordance with our invoice terms. The Materials will be made accessible to you only following our receipt of the Fees or a purchase order (as the case may be).
6.4 If you fail to comply with any term of this Agreement, we shall be entitled to recover from you the reasonable costs, expenses and losses incurred by us as a result of locating you, communicating with you and collecting any unpaid sums. Such sums shall be payable to us on demand. In the event of legal action for breach of the payment obligations, you will be responsible for all costs and expenses allowable by the court if an award is made in favour of us.
7. Import Duty
7.1 If you order Services for delivery outside the UK, it may be subject to import duties and taxes which are levied when the delivery reaches the specified destination. You will be responsible for payment of any such import duties and taxes. Please note that we have no control over these charges and cannot predict their amount.
7.2 You shall comply with all applicable laws and regulations of the country for which the Services are destined. We will not be liable for any breach by you of any such laws.
8. Refunds Policy
8.1 If you cancel a BIM elearning® Course within the 7 day cooling-off period in accordance with Condition 4.1, we will process the refund due to you as soon as possible and, in any case, within thirty (30) days of the day on which you give notice of cancellation. In this case, we will refund the payment made by you in full.
8.2 We will usually refund any money received from the Customer using the same method originally used by the Customer to pay for the purchase.
9.1 If a Support Period forms part of a BIM elearning® course we shall provide you with support as more particularly described in the Materials.
9.2 If requested we may at our sole discretion extend the Support Period for a fee to be agreed between us and you but we shall not be obliged to extend the Support Period.
9.3 We shall use our reasonable endeavours to:
(a) provide the Services and to deliver the BIM elearning® course to you in accordance with these conditions; and
(b) meet any performance dates specified in this Agreement, but any such dates shall be estimates only and time shall not be of the essence.
10. Your obligations
10.1 You shall:
(a) co-operate with us in all matters relating to the provision of the Services;
(b) not copy, dispose of, use, offer to sell, license or transfer the Materials (whether in whole or in part in any manner or form or in or on any media) other than in accordance with this Agreement or our written instructions;
(c) ensure that your computer satisfies the minimum system requirements as specified on the website as we are not able to provide a course to any user that does not have these minimum requirements; and
(d) have sole responsibility for the security and secrecy of the Access Methods and shall bear all risk attaching to their loss and/or misuse.
10.2 If our performance of our obligations under this Agreement is prevented or delayed by any act or omission by you, we shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay.
11. Intellectual Property Rights
11.1 You agree that all Intellectual Property Rights and all other rights in the Materials shall be owned by us.
11.2 In consideration of payment of the Fees, we grant you the non-exclusive, non-transferable right to use the Materials for your non-commercial private use and study. If this Agreement terminates, this licence shall automatically terminate.
12.1 You shall keep in strict confidence all Materials and any other confidential information concerning our business or our products which you may obtain.
12.2 You may disclose such confidential information as may be required by law, court order or any governmental or regulatory authority.
12.3 You shall not use any confidential information obtained from us for any purpose other than for personal use by individuals identified in the Registration Form.
13. Data Protection
13.2 You acknowledge and agree that personal data will be processed by us and on our behalf in connection with the provision of the BIM elearning® course and that details of the your name, address and payment record may be submitted to a credit reference agency.
14. Course transfer facility
14.1 If you wish to transfer to a different course offered by us, we may at our sole discretion agree to such transfer.
14.2 If we agree that you may transfer to a different course, we will transfer any fees paid to that date for the BIM elearning® course that you wish to discontinue (the “Discontinued BIM Course”) towards the amount payable for the new course to which it has been agreed that you may transfer PROVIDED THAT:
(a) We receive payment for the balance of the Fees if any due in respect of the new BIM elearning® course (if more expensive than the Discontinued BIM Course); or
(b) the appropriate transfer fee (if any is applicable) has been paid to us to cover administrative costs.
14.3 15.3 In no circumstances is a course transferable:
(a) after completion of the course; or
(b) if account payment is in arrears.
15.1 We warrant that:
(a) the Materials will be of satisfactory quality and reasonably fit for all the purposes for which materials of the kind are commonly supplied (however we do not warrant that the Materials will be error free); and
(b) we will perform the Services with reasonable skill and care.
15.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
16. Limitation of Liability
16.1 Nothing in this Agreement limits or excludes our liability:
(a) for death or personal injury resulting from our negligence or the negligence of our employees or agents; or
(b) for any damage or liability incurred by you as a result of fraud or fraudulent misrepresentation by us;
(c) any other liability that cannot be limited or excluded by law.
16.2 Subject to Condition 17.1, we will under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) any loss of profits, sales, business, or revenue;
(b) loss or corruption of data, information or software;
(c) loss of business opportunity;
(d) loss of anticipated savings;
(e) loss of goodwill;
(f) any indirect or consequential loss; or
(g) any claim brought against you by any other party,
save for in the case of consumers and if we fail to comply with these conditions, we are responsible for loss or damage you suffer that is a foreseeable result of our breach of these conditions or our negligence, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of our breach or if they were contemplated by you and us at the time we entered into the Contract.
17.1 Without prejudice to any other rights or remedies which we may have, we may terminate this Agreement without liability to you immediately on giving notice to you if you fail to pay any amount due under this Agreement including, but not limited to the Fees on the due date for payment and remain in default not less than seven days after being notified in writing to make such payment.
17.2 Either party may terminate this Agreement at any time if the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified by email of the breach.
18. Consequences of Termination
18.1 Termination of this Agreement, however arising, shall not affect or prejudice the accrued rights of the parties as at expiry or termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
18.2 On termination of this Agreement for any reason:
(a) you shall immediately pay to us all outstanding sums, including, without limitation, Fees;
(b) you shall, within ten (10) Business Days, delete or remove Materials as appropriate. Until such time as the Materials, including copies, have been returned or repossessed, you shall be solely responsible for their safe keeping; and
(c) Conditions 1 (Definitions and Interpretation), 6.4 (Payment), 7 (Import Duty), 11.1 (Intellectual property rights), 12 (Confidentiality), 15.2 (Warranties), 16 (Limitation of Liability), 18 (Consequences of Termination), and 29 (Governing Law and Jurisdiction) shall survive termination of this Agreement and continue in full force and effect.
19. Force majeure
19.1 We shall have no liability to you under this Agreement if we are prevented from, or delayed in performing, our obligations under this Agreement or from carrying on our business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
20.1 We may, from time to time and without notice, amend any BIM elearning® course content and the terms and conditions of this Agreement in order to comply with changes in technology, changes in payment methods or changes in applicable regulatory or statutory requirements, provided that such changes do not materially affect the nature of any BIM elearning® course.
20.2 Subject to Condition 20.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
21.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under this Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
21.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
22.1 If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
22.2 If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
23. Entire agreement
23.1 This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
23.2 Each party acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than for breach of contract. Nothing in this Condition 23 shall limit or exclude any liability for fraud.
24.1 You shall not, without our prior written consent (which we will not withhold or delay unreasonably), assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of your rights or obligations under this Agreement.
24.2 We may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of our rights under this Agreement and may subcontract or delegate in any manner any or all of our obligations under this Agreement to any third party or agent, but this will not affect your rights under this Agreement.
24.3 If there is an assignment pursuant to this Condition 24, we may disclose to any proposed assignee any information in our possession that relates to this Agreement or its subject matter, the negotiations relating to it and you which it is necessary to disclose for the purposes of the proposed assignment.
24.4 Each party is acting on its own behalf and not for the benefit of another person.
25. No partnership, joint venture or agency
25.1 Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between us and you, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
26. Written Communications
26.1 Applicable laws require that some of the information or communications we send should be in writing. You accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that you provide to us electronically comply with any legal requirement that such communications be in writing. This Condition does not affect your statutory rights.
27.1 Any notice or other communication required to be given under this Agreement shall be in writing and shall be delivered personally, or sent by e-mail or by post to the other party to such address as has been provided by that party in accordance with Condition 27.3 below.
27.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to in Condition 27.3, or if sent by e-mail 24 hours after the e-mail is sent, or if sent by post at 9.00 am on the second Business Day after posting. In proving the service of any notice, it will be sufficient to prove, in the case of a letter that such letter was properly addressed, stamped and placed in the post and in the case of an e-mail that such an e-mail was sent to the specified e-mail address of the addressee.
27.3 The following addresses shall be the addresses to which any notice or other communication should be sent in relation to this Agreement:
(a) Fulcro, email@example.com; and
(b) You: the last known e-mail address or address as supplied by you to us,
and in each case as the same may be updated in writing from time to time.
27.4 You shall notify us immediately by email of any change of email address or other contact details.
27.5 Any complaints should be addressed in terms of our Complaints Policy. To view our Complaints Policy click here.
28. Rights of third parties
28.1 Save as expressly provided in this Agreement, no term of this Agreement shall be enforceable by a third party (being any person other than the parties and their permitted successors and assignees).
29. Governing law and jurisdiction
29.1 This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with English law.
29.2 The parties irrevocably agree that the English Courts shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this Agreement or its subject matter or formation (including non-contractual disputes or claims).