Terms and Conditions of Supply (Ref 040504)

Last updated 5-May-04

IMPORTANT NOTICE

Liam Healy & Associates' on line psychometric assessment services are intended for UK business use only, and not for consumers, or individuals under 18 years of age. If the Client is a business from outside the UK, it is the Client's sole responsibility to ensure that any services requested from the Service Provider and the Client's use of this website is compatible with the Client's local laws. The Client should not order anything from this website or use this website if its local laws are not compatible with any content on this website, or services available through this website. The Client's use of this website to purchase services from the Service Provider is governed by these Conditions any Special Conditions, the Service Provider's privacy and cookie statement and the Service Provider's Website's terms of use. Please read these carefully before shopping.

General Information about us:

Our name: Liam Healy & Associates

Our geographic address: PO BOX 97, South Shields NE34 7YW

Our VAT no: 698 9801 53

Here is an overview of these Conditions, you should read this overview together with the main text of these Conditions as set out below:

1. Definitions and Interpretation

1. 1 In these Conditions:

"ACCEPTANCE" means an electronic communication from the Service Provider accepting the Client's order.

"CLIENT" means the person who proposes to place an order for the Services with the Service Provider;

"CONDITIONS" means the standard terms and conditions set out in this document;

"CONTRACT" means the contract for the provision of the Services;

"COVER LETTER" means a letter containing full details of the Services and attaching these Conditions and the Special Conditions;

"INTELLECTUAL PROPERTY RIGHTS" means any copyright, database right, unregistered design right, registered design right, patent right, trade marks or any other form of industrial property rights (whether registered or unregistered) or any applications in relation to any of the foregoing owned, used, existing or arising in connection with the provision of the Services and the Materials;

"KNOW HOW" means technical information, know how, specifications and other information in the possession of the Service Provider relating to or in respect of the Services;

"MATERIALS" means materials (including but not limited to any data, reports, computer software or hardware) supplied by the Service Provider in the course of the Services;

"SERVICE PROVIDER" means Liam Healy & Associates;

"SERVICE PROVIDER'S WEB-SITE" means the Internet web site having the domain name address www.psychometrics.co.uk or www.cpc.ne-web.net or www.candidatemanager.com;

"SERVICES" means the Services (including any instalment of the Services or any part of them) which the Service Provider is to supply in accordance with these Conditions;

"SPECIAL CONDITIONS" means any conditions attached to these Conditions as Schedule 1 as may be imposed by the Service Provider in addition to these Conditions and which shall form part of the Contract.

"WRITING" includes telex, cable, facsimile transmission and comparable means of communication.

1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

1.4 In the event of a conflict between any of these Conditions and the Special Conditions the conflict will be resolved according to the following order of priority: the Special Conditions, these Conditions.

2. Basis of the supply of the services

2.1 The Service Provider shall provide the Services to the Client in accordance with any order of the Client where the Service Provider has confirmed acceptance in Writing and the Client has signed and returned the Cover Letter or the Service Provider has issued an Acceptance, subject to these Conditions and any Special Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.

2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Client and the Service Provider.

2.3 The Service Provider's employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Service Provider in Writing. In entering into the Contract the Client acknowledges that it does not rely on any such representations which are not so confirmed.

2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Service Provider shall be subject to correction without any liability on the part of the Service Provider.

3. Information on how to conclude a Contract with the Service Provider

These are the steps the Client needs to take to conclude a Contract with the Service Provider.

Check variable information such as prices

3.1 The Service Provider will display on the Service Provider's Website certain variable information which the Client will need to know before it placed its order, such as descriptions of the Services and their current prices (exclusive of VAT). This information may also be available outside the Service Provider's Website, for example in printed documentation or supplied over the telephone.

3.2 Note that this variable information is known as an "invitation to treat" and not a contractual offer from the Service Provider which the Client may accept. This means the Service Provider reserves the right to correct any errors in that information without any liability to the Client. It also means that in no circumstances will the Service Provider be contractually bound to supply the Services on the basis of any incorrect information, even it that information is repeated in the Client's order.

Read and understand the terms

3.3 It is the Client's responsibility to read the legal terms on the Service Provider's Website carefully and to raise any problems with the Service Provider before placing an order. That includes these Conditions any Special Conditions, our terms of use and privacy and cookie statement.

Complete Order

3.4 The Client will be responsible for selecting the Services it wishes to purchase, for supply its delivery address, for telling the Service Provider how it wishes to pay and for giving the Service Provider any other information it may request to enable it to fulfil the Client's order and comply with the Contract. All information the Client submits to the Service Provider must be adequate, relevant, accurate and up to date and supplied to the Service Provider with sufficient time to enable the Service Provider to perform the Contract or in accordance with the Conditions and Special Conditions.

3.5 The Client may pay online by credit or debit card or ask the Service Provider to send it an invoice. If the Client chooses to pay by credit or debit card, the Service Provider will check to see whether the transaction is authorised. If the Client asks to pay by invoice, the Service Provider will post the Client a paper invoice, which it must pay within 30 days of the date of the invoice. In all cases full payment for the services must be received by the Service Provider an advance of and service provision.

3.6 When the Client has completed its order, it will be shown a copy on screen. It is the Client's responsibility to check its order carefully to identify any errors and to correct them prior to placing it. The Website allows the Client to cancel a draft order, and to edit any details and once it has finished checking and correcting its order, it should print out a copy before placing it.

Place Order

3.7 The Client may place its order by clicking on the "Place Order" button.

3.8 The Service Provider will acknowledge receipt of the Client's order on the Service Provider's Website without undue delay. This is not the Service Provider's Acceptance of the Client's order, but a confirmation of its receipt.

Wait for Acceptance of order

3.9 The Client may not assume the Service Provider has accepted its order until the Service Provider confirms acceptance in Writing and the Client signs and returns the Cover Letter or the Service Provider sends an Acceptance. The Service Provider reserves the right to request further information from the Client before agreeing to provide the Services. Only if and when the Client receives acceptance in Writing and the Client signs and returns the Cover Letter or the Service Provider sends an Acceptance will the Service Provider have made a binding legal contract with the Client.

3.10 The Client may receive an acknowledgement from the Service Provider's payment processor, advising whether or not the Client's credit or debit card payment has been authorised. This acknowledgement relates to the Client's payment only and is not the Service Provider Acceptance of the Client's order.

3.11 The Service Provider will be entitled to refuse to accept the Client's order if in its sole discretion it considers it necessary. If that happens, the Service Provider will let the Client know as soon as it can. If the Service Provider accepts the Client's order, the Service Provider will send the Client an Acceptance without undue delay.

3.12 Once the Service Provider has entered into a Contract with the Client in the manner set out above, the Service Provider shall supply the Client with the Services specified in the Client's order in accordance with the terms of the Contract.

3.13 No order which has been accepted by the Service Provider may be cancelled by the Client except with the agreement in Writing of the Service Provider and on terms that the Client shall indemnify the Service Provider in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Service Provider as a result of cancellation.

4. Charge for the Services

4.1 The price of the Services shall be the Service Provider's price set out in the Service Provider's Written acceptance or Acceptance of the Client's order.

4.2 Unless otherwise stated the price is exclusive of any applicable value added tax, which the Client shall be additionally liable to pay to the Service Provider.

5. Terms of payment

5.1 Subject to any special terms agreed in Writing between the Client and the Service Provider, the Service Provider shall be entitled to invoice the Client for all or part of the price of the Services on commencement of or at any time after the performance of the Services or any instalment of the Services.

5.2 The Client shall pay the price of the Services without any deduction within 30 days of the date of the Service Provider's invoice. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

5.3 If the Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Service Provider, the Service Provider shall be entitled to:

5.3.1 cancel the Contract or suspend any further performance of the services;

5.3.2 appropriate any payment made by the Client to such of the Services (or the Services supplied under any other contract between the Client and the Service Provider) as the Service Provider may think fit (notwithstanding any purported appropriation by the Client); and

5.3.3 charge the Client interest (both before and after any judgement) on the amount unpaid, at the rate of 4 per cent per annum above Lloyds Bank Plc's base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

6. Delivery

6.1 Any dates quoted for performance of the Services are approximate only and the Service Provider shall not be liable for any delay in performance of the Services however caused. Time for performance shall not be of the essence of the Contract.

6.2 Where the Services are to be performed in instalments, each performance shall constitute a separate contract and failure by the Service Provider to perform any one or more of the instalments in accordance with these Conditions or any claim by the Client in respect of any one or more instalments shall not entitle the Client to treat the Contract as a whole as repudiated.

7. Warranties and Liability

7.1 Subject as expressly provided in these Conditions, and except where the Services are performed for a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

7.2 Except in respect of death or personal injury caused by the Service Provider's negligence, the Service Provider shall not be liable to the Client in connection with the provision of the Services by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) and, in particular; (i) whether such losses arise naturally from any breach of the Contract by the Service Provider and/or (ii) were reasonably anticipated or contemplated by both the Client and the Service Provider when entering into this Contract and/or (iii) are ones which the Client specifically informed the Service Provider were a likely consequence of a breach by the Service Provider prior to that breach and the entire liability of the Service Provider under or in connection with the Contract shall not exceed the price of the Services, except as expressly provided in these Conditions.

7.3 Without prejudice to the generality of clause 7.2 of these Conditions the Client acknowledges that no guarantee of accuracy or fitness for purpose is given in respect of information provided and that the Service Provider accepts no responsibility for any loss, damage, costs or expenses incurred by the Client and arising from any course of action adopted by the Client pursuant to such information.

7.4 The Service Provider shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Service Provider's obligations in relation to the Services, if the delay or failure was due to any cause beyond the Service Provider's reasonable control, including, but not limited to the failure of any hardware, software or other equipment supplied by third parties other than the Service Provider.

8. Intellectual Property

8.1 Unless otherwise agreed in Writing all Intellectual Property Rights and Know How in any Services shall be vested in the Service Provider or its licensors (as the case may be). The Service Provider grants to the Client a non-exclusive license to use the Intellectual Property Rights throughout the duration of the Contract, solely for the purpose of utilising the Services. The Client will at the Service Provider's request take all such steps as the Service Provider may reasonably require to vest such Intellectual Property Rights and Know How in the Service Provider.

8.2 Where the Service Provider agrees to transfer, assign or licence any Intellectual Property Rights and/or Know-How to the Client such transfer, assignment or licence shall not be deemed effective until payment in full has been received by the Service Provider in respect of such transfer, assignment or licence.

8.3 Where the Client has supplied any specification, design, equipment or instruction the Client agrees to indemnify and keep indemnified the Service Provider against all demands, claims, damages, charges, liability, costs and expenses which may be incurred or sustained by the Service Provider by reason of or arising out of any third party claims or rights or otherwise howsoever in respect of any Services or any products manufactured as a result of the Services supplied in accordance therewith and whether relating to the infringement or the alleged infringement of a patent, copyright, registered design, unregistered design right or other protected industrial property right or otherwise howsoever.

8.4 The Client undertakes that it shall not and, where appropriate, shall procure that its customers and/or employees will not:

8.4.1. cause or permit any acts or omissions which may prejudice, jeopardise or endanger the Intellectual Property Rights or the Know How or the title of the Service Provider to them; or

8.4.2. in any way seek to challenge the validity of the Intellectual Property Rights or the Know How or support or encourage any third party to challenge the validity of the same;

8.4.3. download or print off copies of material comprising or appearing on the Service Provider's Web-site without the prior written consent of the Service Provider;

8.4.4. copy, modify, decompile, reverse engineer or adapt any Materials provided by the Service Provider without the prior written consent of the Service Provider except as permitted by Law.

8.5 The Client shall ensure that all of its relevant employees and its customers are advised that the Intellectual Property Rights and the Know How are the absolute property of the Service Provider and shall ensure that all of its employees and its customers comply with the Conditions.

9. Confidentiality

The Client shall and shall procure that its customers and/or employees shall maintain as confidential all and any information relating to the Intellectual Property Rights and the Know How which is disclosed to it or becomes known to it as a result of the provision of the Services except where expressly authorised in writing by the Service Provider.

10. Insolvency of Client

10.1 This clause applies if:

10.1.1 an order is made or a resolution is passed for the winding up of the Client or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the Client;

10.1.2 an order is made for the appointment of an administrator to manage the affairs, business and property of the Client or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Client or notice of intention to appoint an administrator is given by the Client or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);

10.1.3 a receiver is appointed of any of the Client's assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Client or if any other person takes possession of or sells the Client's assets;

10.1.4 the Client makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;

10.1.5 the Client ceases to trade;

10.1.6 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

10.2 If this clause applies then, without prejudice to any other right or remedy available to the Service Provider, the Service Provider shall be entitled to cancel the Contract or suspend performance under the Contract without any liability to the Client, and if the Services have been performed but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

11. Termination

The Contract may be terminated forthwith upon Written Notice by the Service Provider and upon termination the charge for the Services will become immediately due and payable.

12. General

12.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

12.2 No waiver by the Service Provider of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.

12.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

12.4 The Contract shall be governed by the laws of England and Wales, and the Client agrees to submit to the exclusive jurisdiction of the courts of England and Wales.

12.5 A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

Special Conditions (Ref 0405040) (last updated 5-May-04)

1. Interpretation

1.1. In these Special Conditions the following the following words and expressions shall, unless the context otherwise requires, have the following meanings:

"Candidate" shall mean the data subject (as defined in s.1 of the Data Protection Act 1998) whose Personal Data is processed pursuant to these Special Conditions

"Candidate Area" means the part of the OLPA Website restricted to use exclusively by Candidates where Candidates complete on-line psychometric assessment

"Contract" means the contract for the provision of the Services

"Credits" shall mean the number of unique passwords purchased by the Client as part of the Services

"OLPA" means the on-line psychometric assessment facility operated from the OLPA Website

"OLPA Website" means the Service Provider's website at http://cpc.ne-web.net or such other website as the Service Provider shall notify to the Client from time to time

"OLR" means any report generated by the Client in respect of a Candidate following completion by the Candidate of any on-line psychometric assessment using the OLPA and shall include without limitation any of the results contained in any report generated

"Personal Data" shall mean personal data as defined in s.1 of the Data Protection Act 1998 which is processed by the Service Provider on behalf of Client (the "Data Controller") for the purposes of this Agreement

"Services" shall mean the making available by the Service Provider of the OLPA to the Client in accordance with the Contract

1.2. Any defined terms contained in these Special Conditions, and not defined under clause 1.1 above, shall have the same meaning as prescribed to them in the Conditions.

1.3. These Special Conditions are in addition to and shall be construed in accordance with the Conditions and shall form part of the Contract.

1.4. Reference to clauses and other provisions are references to clauses and other provisions of these Special Conditions and any reference to a sub-provision is, unless otherwise stated, a reference to a sub-provision of the provision in which the reference appears.

1.5. To the extent that any provision of these Special Conditions conflicts with any provision of the Conditions these Special Conditions shall prevail in all circumstances.

2. Data Protection

The Service Provider shall:

2.1. process the Personal Data strictly in accordance with the Contract and the Client's instructions from time to time;

2.2. at all times comply with the seventh data protection principle as defined in Schedule 1 to the Data Protection Act 1998 in its provision of the Services.

The Client:

2.3. undertakes to make available to the Candidate a copy of its privacy policy and, in particular, inform the Candidate of its intended use of any Personal Data relating to that Candidate before it directs the Candidate to the OLPA Website;

2.4. undertakes, in respect of any Personal Data, to provide any instructions to the Service Provider at all times which confirm with English law; and

2.5. warrants that the Service Provider's processing of any Personal Data on behalf of the Client shall at all times be in accordance with the English law.

3. Obligations

3.1. If you are entering into the Contract on behalf of a corporate entity, you represent that you are authorised to do so. If you are not so authorised, nor deemed in law to have such authority, you assume sole personal liability for the obligations set out in the Contract.

The Client:

3.2. shall generate each OLR within 21 days of the Service Provider informing the Client that the Candidate has completed the assessment. The Client hereby instructs the Service Provider to delete all personal data relating to the Candidate immediately following expiry of the period of 21 days referred to above without any liability to the Client;

3.3. shall have satisfied itself as to the suitability of the Services (including without limitation the characteristics measured by the Services as they apply to the job description in question), either by means of any trial or demonstration given by the Service Provider or by any other method (including, without limitation, review of the Service Provider's promotional literature or on-line description) prior to making any request for the Services to the Service Provider;

3.4. shall keep the OLR confidential and shall only disclose the same to those of its employees as may be directly involved in the recruitment of the Candidate to which the OLR relates and shall not disclose the OLR to any third party (including without limitation the Candidate to whom the OLR relates) unless otherwise required to do so by law;

3.5. shall, where any OLR is generated by the Service Provider for any demonstration, instructional or training purposes, not use such OLR for any other purpose whatsoever [and shall immediately following such demonstration, instruction or training destroy the OLR];

3.6. disclose only to each Candidate a single client identification number and password in respect of each OLR the Client requires in respect of that Candidate;

3.7. irrevocably acknowledges and agrees that it will not rely upon the OLR to the exclusion of any other recruitment methods (including without limitation application forms, interview processes or other assessment) to determine the suitability of the Candidate as an employee for the vacancy for which the Candidate is being assessed;

3.8. notwithstanding the provisions of clause 3.7 above, the Client undertakes to use the OLR or any part of it only in conjunction with universally recognised methods of recruitment and the Client shall immediately destroy any OLR generated where it does not intend to use the OLR or any part of it in conjunction with universally recognised methods of recruitment;

3.9. warrants that it shall use only suitably qualified staff to undertake any feedback and/or validation interviews involving or referring (directly or indirectly) to the results of the OLR;

3.10. shall not access the Candidate Area of the OLPA Website, nor shall it log on to the Candidate Area of the OLPA Website for the Candidate;

3.11. shall provide to the Candidate copies of any written instructions as to the use of the OLPA Website and the OLPA as the Service Provider may provide to the Client from time to time and the Client shall not modify (in any manner) any such written instructions;

3.12. irrevocably acknowledges and agrees that it is the Client's sole responsibility to verify the identity of any Candidate undertaking an on-line psychometric assessment;

3.13. irrevocably acknowledges and agrees that the Service Provider shall not be obliged to and shall not discuss the results of any OLR with the Client or the Candidate and the Client shall be responsible for drawing its own conclusions from the results of the OLR in accordance with these Special Conditions;

3.14. irrevocably acknowledges that the Services are not error free and that the existence of any errors shall not constitute a breach of this Contract;

3.15. shall only use the OLPA for recruitment and selection purposes and shall not use any of the OLPA for any other purposes including without limitation to select individuals for redundancy or development or training;

3.16. shall reproduce the Service Provider's copyright or other intellectual property notice upon any material company the Service Provider's intellectual property.

4. Credits and Refunds

4.1. Any Credits purchased by the Client must be used within 90 days of the Service Provider providing to the Client the same. For the avoidance of doubt, any unused Credits are non-refundable.

4.2. Credits may only be used on a single occasion and will become invalid after such use irrespective of whether or not the Candidate completes the on-line psychometric assessment.

4.3. For the avoidance of doubt the Client shall not be entitled to any refund where:

4.3.1. the Candidate does not complete the on-line psychometric assessment; and/or

4.3.2. the Client does not use any OLR generated as part of the Services.

5. Liability

5.1. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

5.2. The Service Provider's liability in respect of:

5.2.1. fraudulent misrepresentation;

5.2.2. death or personal injury caused by the Service Provider's negligence;

5.2.3. any matter which it would be illegal for the Service Provider to exclude or attempt to exclude its liability; shall not be limited.

5.3. The Service Provider shall not be liable to the Client in any way whatsoever:

5.3.1. for any unavailability of the Services;

5.3.2. as a result of the Client not fulfilling its obligation under clauses 2.3, 2.4, 2.5 and 3 above;

5.3.3. for the suitability or unsuitability of any Candidate for any vacancy offered by the Client for which the Candidate is being considered;

5.3.4. for any inability of a Candidate to complete an on-line psychometric assessment for whatever reason;

5.3.5. any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract and, in particular, whether such losses;

5.3.5.1. arise naturally from any breach of the Contract by the Service Provider; and/or

5.3.5.2. were reasonably anticipated or contemplated by both the Client and the Service Provider when entering into this Contract; and/or

5.3.5.3. are ones which the Client specifically informed the Service Provider were a likely consequence of a breach by the Service Provider prior to that breach.

5.4. Subject to the foregoing provisions of this clause 5, or as may be provided for elsewhere under the Conditions or the Special Conditions the Service Provider's liability under or in connection with the Contract, whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed the price of the Services.