How we operate

1.1. These Terms are a contract between you and Positive Health Strategies Limited a company registered in England and Wales with company number 04388523 and registered office 2 Maple Court, Davenport Street, Macclesfield, Cheshire, England, SK10 1JE (we, us).

1.2. References to you or your are to the company or other organisation accessing the Services. The person who enters these Terms confirms that it has your authority to enter into these Terms on your behalf and in doing so will bind you to these Terms.

1.3. The following Terms are binding on any use of the Services, and apply from the time that you begin using a Service unless we agree another start date.

In these Terms, the following words have the following meanings:

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

Client Content: all material, including documents you provide to us in order to assist us to provide the Services;

Completion Deadline: the date specified in the Statement of Work (“SOW”);

Confidential Information: has the meaning given to it in Condition 11;

Consulting Services: shall be set out in our SOW and may include scoping and design work; programme development and customisation, measurement and data strategy implementation, communications and engagement strategy implementation, programme management and operational support;

Data Protection Legislation: any laws and regulations of the UK relating to the processing of personal data including the Data Protection Act 2018 and the General Data Protection Regulation 2016/679;

Event: the live and/or virtual events that we have agreed to provide to you;

Event Materials: any materials provided to you and/or the User relating to the Event whether in hard copy or electronic form;

Fee: the fees due for the Services;

Data Report: a report prepared by us containing information about your business reflecting the content we have agreed to include;

IP Rights: any patent, trade mark, registered design or any application for registration of the same, or the right to apply for registration of the same, any copyright or related rights, database right, design rights, rights in trade, business or domain names, rights in trade dress, rights in inventions, rights in confidential information or know-how or any similar of equivalent rights in any part of the world;

Our Content: any materials provided to you and/or the Users, whether in hard copy or electronic form, including the Event Materials, any Data Reports and Positive’s Learning Content;

Personal Data: shall have the meaning given to it in the Data Protection Legislation;

Positive’s Learning Content: Positive’s proprietary learning content, digital assets, and tools;

Service: the provision of Consulting Services, Events, and access to Positive’s Learning Content;

Start Date: the date of signature of the SOW; and

Users: you, your employees or students as the case may be, each as authorised to access the Services.

3.1. We may agree to host an Event for you and/or your Users. If we do so, the provisions of this Condition 3 apply.

3.2. Unless otherwise agreed, you shall arrange the location for any live Event and you shall ensure that all necessary facilities and equipment shall be made available to our presenters and the Users. You warrant and represent that the number of Users attending shall be no more in number than the legal number permitted at the location. Each of us shall comply with all health, safety and security rules that apply to the location for the live Event together with the provisions of the health and safety laws and regulation including the Health & Safety at Work etc. Act 1975, the Equalities Act 2010 and the Protection from Harassment Act 1997 in attending the live Event.

3.3. Events may be delivered virtually on our platform for up to 500 (five hundred) Users. If the number of Users exceeds 500 (five hundred) you shall notify us in advance and the parties shall agree an appropriate online platform, at your cost. If the Event is delivered virtually on your platform, you agree that we have no liability for any unavailability of access to, or poor access to, the Event.

3.4. We grant you and the Users the right to access and use the Event Materials for your normal business purposes, or where you are an educational establishment, for your non-commercial educational purposes. This right is non-exclusive, non-transferable and limited by and subject to restrictions set out in these Terms.

3.5. No recording or photographs may be made of all or part of an Event without our prior written consent.

3.6. You shall, and shall procure that your Users shall, maintain the confidentiality of the credentials used to access the Event and Event Materials and you shall, and shall procure that your Users shall, not permit or assist anyone else to access the Event or Event Materials through their credentials. Access to our platform and the Event Materials must not be used for any unauthorised or unlawful purpose. You are responsible for ensuring User compliance with these Terms and accept responsibility and liability for the acts and omissions of your Users.

3.7. If either party wishes to postpone an Event, it must notify the other party as soon as reasonably practical and we shall work together to agree a revised date. If together we are unable to agree a revised date, we shall refund to you the Fee paid for the Event in accordance with Condition 3.9 less any third party expenses we have incurred that cannot be cancelled in accordance with Condition 3.10.

3.8. Notwithstanding Clause 3.7, all Services shall be completed and delivered by the Completion Deadline. You will remain liable for the Total Fees as outlined in the SOW if the Services are not scheduled and delivered by this date.

3.9. If you wish to cancel or postpone an Event you must notify us as soon as reasonably practical, and the following payment terms apply depending on when you notify us:

a) up to 20 (twenty) Business Days prior to the first day of the Event, you shall pay 100% of the Fee due for the Event;
b) then, up to 40 (forty) Business Days prior to the first day of the Event, you shall pay 50% of the Fee due for the Event;
c) then, up to 60 (sixty) Business Days prior to the first day of the Event, you shall pay 25% of the Fee due for the Event; and
d) more than 60 (sixty) Business Days prior to the Event, no Fee shall be due for the Event.

3.10. If you postpone and/or cancel an Event, we shall endeavour to cancel and where applicable obtain a refund for any expenses reasonably incurred by us in respect of the Event. If we are unable to do so, you agree that in addition to the sums due under Condition 3.9, you shall pay to us all such expenses in full.

3.11. If you wish to change a live Event to a virtual Event (in the absence of any legal restrictions on live Events) you must notify us as soon as reasonably practical, and the following payment terms apply depending on when you notify us:

a) up to 40 (forty) Business Days prior to the first day of the Event, you shall be liable for the Fee due for the live Event;
b) more than 40 (forty) Business Days prior to the Event, you shall be liable for the Fee due for the virtual Event, and where necessary, we shall refund you the difference between the Fee due for the live Event and the Fee due for the virtual Event.

3.12. If we are required to postpone an Event for any reason, we shall notify you as soon as reasonably practical and we shall work together to agree a revised date. If we are unable to do so, we shall refund you the Fee paid for the Event that we postpone.

3.13. For the purposes of Conditions 3.9 and 3.11 , the Fee due for an Event shall be as set out in the SOW, on a pro rata basis where relevant.

4.1. Once we have agreed the Fee and the requirements for our Consulting Services, you may not cancel the Consulting Services except as set out in Condition 13.

4.2. We shall use our reasonable endeavours to deliver the Consulting Services to you in accordance with any timetable we have agreed, provided that time shall not be of the essence.

4.3. We shall provide an estimate for consulting time based on the agreed scope. If the scope of work evolves or requires additional time beyond the original estimate, we will inform you in advance. Any additional consulting time and the relevant fee shall be agreed between the parties.

4.4. From time to time, at our request, you shall provide such Client Content as agreed or as we reasonably require properly to undertake the Consulting Services. If you fail to comply with this requirement, you will remain liable for the Fee for the Consulting Services as set out in the SOW. In the event of a delay in providing the required Client Content, we shall discuss with you the impact on our ability to undertake the Consulting Services and on the Fee, and we shall each act reasonably to agree any adjustment to the Fee to reflect any resulting increase in the time required to undertake the Consulting Services.

4.5. Unless we otherwise agree, we grant you and the Users the right to use any Data Report for your normal business purposes.

5.1. We grant you and the Users the right to access and use Positive’s Learning Content for your normal business purposes. This right is non-exclusive, non-transferable and limited by and subject to restrictions set out in these Terms.

5.2. Access to Positive’s Learning Content shall continue for 12 (twelve) months from the date of signature of the SOW, unless otherwise agreed between the parties. This will not prevent early termination in accordance with these Terms.

5.3. Positive’s Learning Content must not be used for any unauthorised purpose. In particular, you agree that you shall not, and shall procure that Users shall not:

a) use Positive’s Learning Content to provide unauthorised training, whether within your organisation or to third parties;
b) use or access Positive’s Learning Content to build or support, and/or assist a third party in building or supporting, products or services competitive to us; or
c) hold yourself out as representing us or the Positive brand.

6.1. The parties may agree that you shall host elements of Our Content on a platform owned or operated by you. In the event that you host Our Content, you undertake and agree that:

a) you shall permit Our Content to be viewed only by the Users;
b) you shall delete all copies of Our Content at the end of the relevant term as outlined in the SOW, and on request you shall provide confirmation or evidence of your compliance with this obligation.

7.1. The Fee is exclusive of taxes, and you shall pay all taxes or other similar charges you are legally required to pay. The Fee is also exclusive of expenses, such as call costs for virtual Events, and hotel, subsistence, travel and other ancillary expenses for live Events reasonably incurred by us in our provision of the Services. Unless otherwise agreed, you will reimburse us for these expenses within 30 (thirty) days of receipt by you of an invoice for the expense in question. Electronic evidence of expenses incurred can be provided on request.

7.2. We may increase the Fee for access to Positive’s Learning Content with 1 (one) month’s prior written notice to you effective on renewal of each initial 12 (twelve) month term as set out in Condition 5.2. We will inform you via email of any increase.

7.3. Unless otherwise stated, all invoices are due within 30 (thirty) days of receipt. If any payment is not received full and cleared within 5 (five) Business Days after the due date, and without prejudice to any other rights and remedies available to us, we may:

a) suspend your access to and our provision of the Services; and
b) charge you costs and interests in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.

8.1. You warrant and represent that the Client Content will not:

a) breach the provisions of any law, statute or regulation including any data protection laws and/or regulations;
b) infringe the IP Rights or other legal rights of any person;
c) be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
d) contain any Personal Data unless you have the right under the Data Protection Legislation to allow us to use such Personal Data for the provision of the Services;
e) be deliberately or knowingly false, inaccurate or misleading; and/or
f) give rise to any cause of action against us.

8.2. You grant to us the non-exclusive right and licence to use, edit, publish and distribute the Client Content to provide the Services to you. You agree that your Users may access Client Content within (i) a Data Report; or (ii) the Event Materials or Positive’s Learning Content where these have been tailored to apply to your organisation.

8.3. We are not responsible for and accept no liability for Client Content. You shall indemnify and keep indemnified us, our directors and employees from and against all costs, claims, losses, expenses, fines and damages that we may suffer or incur as a result of the use of the Client Content in accordance with these Terms, including any third party claim for infringement of IP Rights.

8.4. In the event of any loss or damage to Client Content, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Client Content from the latest back up of such Client Content maintained by us. You acknowledge and agree that this process will overwrite the Client Content stored prior to the restoration. Accordingly, you shall separately maintain up-to-date copies of the Client Content.

9.1. All IP Rights in the Services, and Positive’s Learning Content are owned by us or have been licensed to us. You may not copy, distribute or otherwise use any of our IP Rights except as set out in these Terms without our prior written consent. If you do so, you shall indemnify and keep indemnified us, our directors and employees from and against all losses, costs, claims, expenses, fines and damages that we may suffer or incur as a result of such unauthorised use.

9.2. You and/or your licensors shall remain the owner of all IP Rights in the Client Content.

9.3. You shall promptly notify us of any claim, notification or allegation that you receive that your use of the Services infringes the IP Rights of any third party (a Claim). For the avoidance of doubt, this Condition 9.3 does not apply to any claim in respect of the Client Content. You shall:

a) not make any admission of liability, agreement, settlement or compromise in relation to a Claim without our prior written consent;
b) give to us and our professional advisers all reasonable assistance as may be required in relation to a Claim;
c) at our request, give us the exclusive control and right to defend a Claim and make settlements in relation to a Claim; and
d) mitigate your losses in relation to a Claim, including where requested to do so by stopping using the Services.

9.4. On receipt of a notice under Condition 9.3, we shall at our sole expense either procure for you the right to continue accessing and using the Services or modify or replace the infringing part of the Services to avoid the infringement.

10.1. Either party shall be entitled to publicise the existence of their relationship under these Terms including in marketing material, which may be a press release, media alert, blog, video, or other form of disclosure.

10.2. In exercising its rights under Condition 10.1, neither party will do anything that may damage the reputation of the other party or bring that other party into disrepute.

11.1. Confidential Information shall mean all information either marked as confidential or manifestly by its nature confidential whether written or oral and in whatever medium and relates to the business, products, financial and management affairs, clients, or authorised agents, plans, proposals, strategies or trade secrets disclosed by one party (the Disclosing Party) to the other party (the Receiving Party).

11.2. The Receiving Party shall not use copy or disclose any of the Confidential Information of the Disclosing Party except to carry out its obligations and exercise its rights under these Terms.

11.3. The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its employees and representatives to the extent that they need to know the same in order to carry out its obligations under these Terms and where those employees and representatives are bound by written obligations of confidentiality and non-use and such obligations apply to the Confidential Information disclosed to them.

11.4. The provisions of Conditions 11.1, 11.2 and 11.3 shall not apply to any Confidential Information which:

a) is or becomes generally available to the public other than as a result of any act or omission of the Receiving Party;
b) is already in or comes into the possession of the Receiving Party from a person lawfully in possession of the information and owing no obligation of confidentiality to the Disclosing Party in respect of the information; or
c) is required to be disclosed by any court, government or administrative authority competent to require disclosure.

12.1. You acknowledge that we determine what personal data is required to provide the Services and we determine how we use such personal data in order to provide the Services. Accordingly, we are the controller (as such term is defined in the Data Protection Legislation) of the User’s Personal Data and accordingly, we shall process the User’s Personal Data in accordance with our obligations as a controller under the Data Protection Legislation and in accordance with our privacy policy.

12.2. Notwithstanding the provisions of Condition 8.1(d) you should not send to us any personal data unless we ask you to do so.

13.1. Without prejudice to any other rights or remedies which may be available to it, either party shall be entitled to give notice in writing to the other party terminating the Services with immediate effect if:

a) the other party commits any material breach of any of the terms of these Terms and if such breach is capable of remedy fails to remedy that breach within 14 (fourteen) days of being notified of the breach; or
b) the other party enters into liquidation compulsorily or voluntarily or compounds with its creditors or has an administrator, receiver or administrative receiver appointed over all or any part of its assets or takes or suffers any similar action in consequence of debt (except where any action occurs for the purposes of reconstruction or amalgamation whilst solvent).

13.2. Upon termination of the Services you may no longer access the Positive Learning Content, and we shall have no obligation to provide the Services. In addition, you acknowledge that your Client Content may be deleted.

13.3. Expiry or earlier termination of the Services shall not affect the accrued rights of the parties. Notwithstanding expiry or earlier termination, the following Conditions shall remain in force: Condition 1 (Definitions and Interpretation), 8.3 (Client Content), 11 (Confidential Information), 13.3 (Termination), 14 (Warranties and Liability) and 23 (Governing Law and Jurisdiction).

14.1. We warrant that we will provide the Services using reasonable skill and care and in accordance with all applicable laws. However, you agree that Our Content does not constitute any form of advice, recommendation or arrangement and shall not be relied upon in making (or refraining from making) any specific investment or other business or personal decisions.

14.2. We warrant that we will comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption and put in place, comply with and maintain codes of conduct and anti-bribery and anti-corruption policies as are appropriate to meet our statutory responsibilities.

14.3. Except as set out in these Terms, and to the extent permitted by law, no representation, warranties and/or conditions are given or assumed by us in relation to the Services, and you agree that you have not relied upon any other representations, warranties or conditions to enter into these Terms. In particular, we do not warrant that the Services are fit for your particular purposes, nor that any particular result in relation to your business will be achieved or achievable as a result of the Services.

14.4. We shall not be liable to you for:

a) loss of profits;
b) loss of business;
c) loss or corruption of data or information;
d) business interruption;
e) loss of or wasted staff or management time;
f) any kind of special, indirect, consequential loss or pure economic loss; and/or
g) error, omission, failure to operate, loss or damage arising as a result of any error, omission or inaccuracy in the Client Content.

14.5. You agree that the provisions of this Condition 14.4 are severable.

Our total liability to you for all claims or series of claims under these Terms whether in contract, negligence or otherwise for any damages, losses or expenses shall be limited to the Fee paid by you for the Services that are the subject of the claim in the 12 months preceding the date the claim arose.

14.6. Nothing in these Terms limits or excludes our liability for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation and/or any other liability that cannot lawfully be excluded under English law.

15.1. For the purposes of this Condition 15, an event of Force Majeure means any event beyond the reasonable control of either party, including change in laws or regulations, war, invasion, armed conflict, terrorism, strike, lock-out, labour dispute, failure of suppliers or subcontractors, riot, civil commotion, accident, act of God, fire, flood and storm, epidemic or pandemic.

15.2. If a party is prevented, hindered or delayed from or in performing any of its obligations under these Terms by an event of Force Majeure, the affected party’s obligations under these Terms are suspended without liability while the event of Force Majeure continues and to the extent that it is prevented, hindered or delayed.

15.3. If performance of any obligation under these Terms is prevented, hindered, or delayed due to an event of Force Majeure either party shall be entitled to terminate these Terms on written notice to the other party.

15.4. The provisions of Condition 15 shall not be relied on in relation to the inability to pay any Fees due under these Terms.

16.1. We may from time to time send any important notices by email. Such notices may relate to matters including changes to these Terms and increases to our Fees.

17.1. We may transfer our obligations and rights under these Terms to a third party. This may happen, for example, if we sell our business. If this happens, we will notify you in writing. Your rights under these Terms will not be affected and our obligations under these Terms will be transferred to the third party who will remain bound by them.

17.2. You may not transfer your obligations and rights under these Terms without our express prior written permission.

18.1. These Terms are between us and you. They are not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms.

19.1. If any of the provisions of these Terms are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, then such provision shall be deemed severed from the remainder of these Terms. The remainder of these Terms shall be valid and enforceable.

20.1. No variation of these Terms shall be effective unless it is in writing and signed by both parties.

21.1. No failure or delay by us in exercising any of our rights under these Terms means that we have waived that right, and no waiver by us of a breach of any provision of these Terms means that we will waive any subsequent breach of the same or any other provision.

22.1. If a dispute arises between the parties under these Terms, then within 5 (five) Business Days of the dispute arising, the dispute shall be escalated by each of the parties to a director. If the directors are unable to resolve the dispute within 10 (ten) Business Days, then the parties shall be entitled to pursue legal action under Condition 22.

23.1. These Terms shall be governed by and construed in accordance with the laws of England and Wales. The parties agree that any dispute arising from these Terms will be subject to the exclusive jurisdiction of the English courts.