KAINOS TRAINING TERMS AND CONDITIONS
1. DEFINITIONS
"Agreement" means these terms and conditions and the Booking Form (once accepted by Kainos).
“Booking Form” means the booking form issued to the Customer by Kainos.
“Charges” means the charges for the Training Services set out in the Booking Form.
“Customer” means the company, organisation, individual or entity purchasing the Training Services set out in the Booking Form.
"Clause" means a clause of this Agreement.
“Training Start Date” means the date(s) upon which the Training Services are due to commence as set out in the Booking Form.
“Delegates” means the numbers of the Customer’s staff who are to receive the Training Services as set out in the Booking Form.
“Expenses” means expenses incurred in connection with the provision of the Training Services to include travel and accommodation.
“Kainos” means the trading name of Kainos group of companies comprising:
Kainos Software Limited registered in Northern Ireland No. NI19370
Kainos Software Ireland Limited registered in Ireland No. 510943
Kainos Software Poland Spolka Z.o.o registered in Poland No. 221656287
having its registered offices at Kainos House, 4-6 Upper Crescent, Belfast, BT7 1NT, Northern Ireland. Registered in the UK for VAT under number: 454598802 and registered in Ireland for VAT under number: 9950340E.
“Personal Data” means data which relates to a living individual who can be identified from that data or from that data and other information and which is provided to Kainos by the Customer as more particularly defined in the Data Protection Act 1998.
“Third Party Products” means the third party software contained on the training discs (if any) provided to the Customer.
“Train the Trainer” means the provision of training to the Customer on a knowledge transfer basis with a view to the Customer assuming responsibility for the continued training of its staff.
“Trainer(s)” means the person or persons delivering the Training Services.
“Training Duration” means the period over which the Training Services will be undertaken.
“Training Location” means the place at which the Training Services will be carried out as set out in the Booking Form.
“Training Services” means the training services to be provided by Kainos as determined by reference to the Course Code and Course Title stated on the Booking Form.
2. TRAINING SERVICES
2.1 Signature and return of the Booking Form by the Customer to Kainos shall be treated as an offer from the Customer to purchase the Training Services, subject to these terms and conditions. Confirmation from Kainos, evidenced by Kainos issuing a booking confirmation notice confirming that Kainos is available to provide the Training Services, as described, will be deemed acceptance of the offer and this Agreement will be effective from and including the date on which the confirmation notice is sent by Kainos.
2.2 The Training Services shall be provided at the Training Location, on the Training Start Date for the Training Duration in accordance with these terms and conditions and the details contained within the Booking Form.
3. CANCELLATION, POSTPONEMENT & RESCHEDULING
3.1 If the Customer cancels the Training Services (in whole or in part) the following cancellation charges shall fall due, the levying of these Charges does not constitute a penalty but represents a genuine pre-estimate of the loss that Kainos will suffer as a result of the cancellation:
Cancellation Charges
Notice Given / % of Charges* DueLess than 14 calendar days notice before the Training Start Date / 100%
Between 15 and 30 calendar days notice before the Training Start Date / 50%
31+ calendar days before the Training Start Date / 20%
* plus VAT and Expenses incurred which Kainos is unable to recover.
3.2 If the Customer postpones the Training Services:
3.2.1 The postponement will be treated as a cancellation in accordance with clause 3.1 above unless the Customer serves 14 calendar days or more notice on Kainos before the Training Start Date.
3.2.2 Where the Customer serves 14 calendar days or more notice on Kainos before the Training Start Date in respect of the first instance that the Training Services are postponed only and not in respect of subsequent postponements Kainos will not levy the cancellation charges PROVIDED THAT:
(a) The Training Services are rescheduled within 3 months of the postponed Training Start Date;
(b) The Customer pays all wasted expenses that Kainos has incurred in connection with the postponed Training Services, to include without limitation travel expenses; Kainos will use reasonable efforts to mitigate such losses;
In the event that: a new date for the postponed Training Services is not re-scheduled within the timeframe set out in clause 3.2.2 (a); or the Training Services are further postponed; or no date is arranged then at the end of a period of 3 months calculated from and including the original Training Start Date, the postponement will be treated as a cancellation and Kainos will be entitled to levy the associated cancellation fee.
3.3 Notice is calculated from and including the date that Kainos receives notice from the Customer. Where notice is received at the weekend, on a public holiday or after 5.30pm for the purpose of calculating the date that notice was received, the notice will be deemed to be received on the next working day.
3. 4 A substitute Delegate may be provided at no additional cost.
3. 5 Notification of any cancellation or postponement must be made in writing (email will satisfy the requirement for writing) to the Kainos Contact specified on the Booking Form or .
3.6 Kainos reserves the right to cancel, change or reschedule the Training Services, where necessary and will advise the Customer as soon as possible if this need arises. In such circumstances Kainos will make a reasonable attempt to reschedule the Training Services as soon as possible (subject to securing the minimum required number of attendees for public courses, failing which the Training Services will be cancelled and a refund of the associated Charges will be provided to the Customer) or, at the Customer’s election will provide a full refund of the associated Charges. Kainos’ liability will be limited to a refund of any Charges paid for the cancelled or rescheduled Training Services and Kainos will not be liable for any costs or damages occasioned by the Customer or the Delegates as a result of delay, rescheduling, cancellation or postponement of the Training Services.
3.7 Up until 72 hours before the Training Start Date, Kainos may by notice in writing alter the Training Location provided that the new location is within five (5) miles of the original location.
4. CUSTOMER RESPONSIBILITIES & DELEGATES
4.1 It is the Customer’s responsibility to ensure that each Delegate meets the course pre-requisites (if any) listed in the training pack.
4.2 Delegates shall act reasonably at all times and Kainos reserve the right to remove a Delegate from a course, where, in the reasonable opinion of the Trainer, which shall be final, the Delegate is behaving unreasonably.
4.3 Where Kainos provides the Customer with training disc(s) that contain a working training environment Customer acknowledges that such discs may contain licensed Third Party Products and Customer is confirming by submitting the Booking Form that it has the necessary licences for the relevant versions of the Third Party Products contained on the discs which will be advised to the Customer by Kainos on request.
4.4 Unless the Training Services are undertaken on a “Train the Trainer” basis (as specified on the Booking Form), in which case clause 4.5 below shall apply, the Customer acknowledges and agrees that any training disc(s) and/or training materials provided by Kainos:
4.4.1 are licensed to the Customer and are and remain the property of Kainos and/or its licensors.
4.4.2 are strictly for the Customer’s own, time limited, internal use;
4.4.3 are to be used solely for the Customer’s participation in the Training Services.
4.4.4 will be destroyed by the Customer (with the exception of individual training materials (if any) given to the Delegates) and all copies of the material contained on the training discs installed on the Customer’s machines and/or networks, or at the Training Location will be permanently deleted, within five (5) working days of the end of the Training Services. At Kainos’ request, the Customer will confirm in writing within ten (10) working days of the date of the request that it has fully complied with this Clause 4.4.4.
4.5 Where the Customer has purchased “Train the Trainer” Training Services from Kainos the Customer acknowledges and agrees that any training disc(s) and/or training materials provided by Kainos:
4.5.1 are licensed to the Customer and are and remain the property of Kainos and/or its licensors and Kainos reserves the right (not more frequently than annually) to audit the Customer’s use of the training disc(s) and/or training materials to ensure that such use is compliant with the terms and conditions of this Agreement.
4.5.2 may be used by the Customer strictly for its own internal use in the provision of training to the Customer’s staff (and where applicable to those of its group) and shall not be used by the Customer for any third party or external commercial purpose or gain;
4.5.3 will not be updated by Kainos. Customer is responsible for any subsequent use of the training disc(s) and/or the training materials by the Customer and will hold Kainos harmless from any consequences arising out of the Customer’s continued use of the training disc(s) and/or the training materials.
4.6 For the avoidance of doubt, Customer does not have the right to copy or distribute the training disc(s) to any third party or use the training disc(s) for any other purpose other than for participating in the Training Services or, where the Customer has availed of the Train the Trainer package, to provide training to its own staff under and in accordance with Clause 4.5.
5. CHARGES AND PAYMENT
5.1 The Charges for Training Services shall accrue on signature of the Booking Form. Subject to clause 5.2, Kainos shall raise an invoice for the Charges and the Customer shall pay the Charges in full within twenty-eight (28) calendar days of the date of the invoice.
5.2 The Charges due shall include Expenses at cost. Where “Total Estimated Trainer Expenses” are set out in the Booking Form these are for budgetary purposes only. Expenses shall be billed as incurred which may be more than or less than the Total Estimated Trainer Expenses set out in the Booking Form. Expenses shall be invoiced monthly in arrears and the Customer shall pay Expenses in full within twenty-eight (28) calendar days of the date of the invoice.
5.3 The Customer shall pay the Charges without deduction or set-off.
5.4 Sums due under this Agreement are exclusive of VAT which shall be payable by the Customer in addition (where applicable).
5.5 Kainos reserves the right to invoice for additional delegates in the event that the number of delegates availing of the Training Services exceeds the Delegates specified on the Booking Form.
5.6 In the event the Customer fails to make payment in accordance with this Agreement, Kainos may:
5.6.1 charge interest at the statutory interest rate specified in the Late Payment of Commercial Debts (Interest) Act 1998 until payment is received in full; and/or
5.6.2 by notice in writing to the Customer (email will satisfy the requirement for writing) suspend supply of the Training Services.
6. LIABILITY AND ITS EXCLUSION AND
LIMITATION
6.1 The Charges have been calculated in reliance on the limits of liability set out in this Agreement.
6.2 Clause 6 sets out the entire liability of and exclusion of liability by Kainos under and/or in connection with this Agreement and in respect of breach of this Agreement or statutory duty, representations, statements or tortious act or omission including negligence.
6.3 In no event shall Kainos be liable for (whether direct or indirect) any loss of contracts, profits, anticipated savings, revenue, goodwill, business, loss or corruption of data or software programs, financing expenses, interruption in the use or availability of data, stoppage to other work or consequential losses, nor for any indirect losses.
6.4 Subject to Clause 6.5 and 6.6, Kainos’ liability shall not exceed the Charges paid by the Customer.
6.5 Kainos and the Customer shall indemnify each other against damage to tangible property, whether personal or real, provided that:
6.5.1 the other party is immediately notified of any claim and has full power to negotiate and settle any claims;
6.5.2 the total liability of each party to the other for damage to tangible property, whether personal or real, shall be limited to £1,000,000 in the aggregate.
6.6 Nothing in this Clause 6 or in this Agreement shall operate to reduce or limit either party’s liability for personal injury or death, which by law, cannot be limited.
6.7 Each provision of this Clause shall survive independently.
6.8 Clause 6 shall survive termination of this Agreement.
7. ADVERTISING
7.1 Kainos may make reference to the Customer as a customer of Kainos within any proposal to future clients, provided that only fundamental facts are divulged and not proprietary and/or confidential information.
7.2 Kainos may store the names of the Delegates for the purpose of advising them of the availability of further courses in the future.
8. CONFIDENTIALITY
The parties shall treat as and keep confidential all information whether of a technical, commercial or any other nature relating to the other party and shall not, during the period of this Agreement, or at any time after its termination, divulge any such information to any person not authorised by the divulging party to receive it and shall not utilise any secret or confidential knowledge or information acquired in connection with this Agreement to the detriment or prejudice of the other party or use the same for any purposes save for the purposes of this Agreement. It is acknowledged and agreed that in discharge of Kainos’ obligations in respect of the Third Party Products, this Agreement may be made available for inspection by the Third Party Product vendors.
9. DATA PROTECTION
9.1 The Customer shall ensure that it has in place all necessary consents in connection with Personal Data to allow Kainos at all times to perform the Training Services without infringing any third party rights. Kainos shall not be liable to perform the Training Services to the extent it is unable to do so as a result of a breach of this Clause.