TERMS AND CONDITIONS
1.1 Definitions. In these Conditions, the following definitions apply:
Client: the person or company purchasing a Program from FBF, further details of which are set out in the Order.
Commencement Date: the date that FBF commences providing the Initial Program to the Client in accordance with clause 2.1 below.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.4.
Contract: the contract between FBF and the Client for the supply of a Program comprising of the Order and these Conditions.
FBF: Wellness Marketing Solutions Ltd t/a The Fully Booked Formula (International Office: Fully Booked Formula, 3rd Floor, Standard Chartered Tower, Cybercity, Ebene, Republic of Mauritius 72201) (Dublin Office:Unit 113 Citygate Business Centre, Hills Industrial Estate, Lower Lucan Road, Lucan, Co. Dublin K78XC66 Eire)
FBF Materials: all documents, guides, booklets, digital or physical products, CD-ROMs, equipment, content on FBF’s website and any other materials relating to the Program which are provided by FBF to the Client.
Fees: the fees payable by the Client for the supply of a Program in accordance with clause 5.
Initial Program: the initial marketing program provided by FBF for the Client during the 24 month period from the Commencement Date.
Order: the Client’s order of a Program (and any subsequent Renewal Program(s)) as set out in the Client’s purchase order form to which these Conditions are incorporated.
Program: the Initial Program and/or any Renewal Program(s), as the case may be.
Renewal Program(s): the marketing program(s) delivered to the Client in the period of 24 months from the end of the Initial Period and any subsequent periods of 24 months until terminated in accordance with clause 9.2.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Client to enrol on the Program in accordance with these Conditions. The Order will be accepted by FBF commencing to provide the Program to the Client
2.2 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of FBF which is not set out in the Contract. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 Any sample materials, descriptive matter or advertising issued by FBF, and any descriptions or illustrations contained in FBF’s website or brochures, are issued or published for the sole purpose of giving an approximate idea of a Program and the services offered by FBF. They will not form part of the Contract or have any contractual force.
3. THE PROGRAMS
3.1 FBF will supply a Program to the Client and FBF warrants to the Client that such Program will be prepared using reasonable care and skill. FBF provides no guarantee that a Program will be successful for the Client but if it is not, and provided that the Client is not in breach of any of its obligations under the Contract, including but not limited to those set out in clause 5, the Client may be entitled to receive a refund of Fees in accordance with clause 6.
3.2 FBF will use reasonable endeavours to meet any performance dates specified in a Program (including but not limited to dates for the Client to attend live events or seminars over the course of a Program) but any such dates will be provisional only and may be subject to change at the discretion of FBF, with no liability attaching to FBF in respect of such changes.
3.3 FBF will have the right to make any changes to a Program which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of a Program, and FBF will notify the Client in any such event.
4. CLIENT’S OBLIGATIONS
4.1 The Client will:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with FBF in all matters relating to a Program;
(c) pay the Fees strictly in accordance with the payment schedule set out in the Order;
(d)provide FBF with such information and materials as FBF may reasonably require in order to prepare a Program and ensure that such information is accurate in all material respects;
(e) not use a Program or FBF Materials for any purpose other than that which has been expressly authorised under the Contract, nor will it compete or seek to compete, either directly or indirectly, with the business of FBF;
(f) respect the privacy rights of any other participants in a Program;
(g) participate fully and enthusiastically for the full duration of a Program and complete any tasks or activities set during a Program by FBF to the best of its abilities andin a timely manner; and
(h) permit FBF to include information or video footage on its website highlighting any benefits which the Client’s business has obtained from completing a Program and in this regard, the Client hereby grants to FBF a royalty-free, perpetual licence to use any intellectual property rights of the Client for this purpose.
4.2 If FBF’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any obligation (Client Default), FBF, without limiting its other rights or remedies, will (a) have the right to suspend offering a Program until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays FBF’s performance of any of its obligations, and (b) not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from FBF’s failure or delay to perform any of its obligations as set out in this clause 4.2.
5. FEES AND PAYMENT
5.1 The Fees for a Program will be detailed in the Order. The Fees will be paid in accordance with the payment schedule set out in the Order in full and in cleared funds to FBF’s bank account and time for payment will be of the essence of the Contract. The Fees will remain payable by the Client even if it does not complete an entire Program. All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT).
5.2 The Client will pay all amounts due under the Contract in full without any deduction or withholding and the Client will not be entitled to assert any credit, set-off or counterclaim against FBF in order to justify withholding payment of any such amount. FBF may set off any amount owing to it by the Client against any amount payable by FBF to the Client.
5.3 FBF reserve the right to continue processing payments for any outstanding monies using any of the Client’s card details held on the Clients account.
6. REFUND OF FEES
6.1 If at the end of a Program, the Client’s turnover during that Program is not greater than the Fees then the Client will be entitled to apply for a full refund of the Fees for that Program provided at all times that the Client has not breached any of its obligations under the Contract, including but not limited to those obligations set out in clause 5 above. If the Client has breached any of its obligations under the Contract then no Fees will be refunded by FBF. For the avoidance of doubt, any expenses incurred by the Client during a Program will not be considered when calculating the Client’s turnover during that Program. For the avoidance of doubt, the calculation of the Clients turnover includes any and all business entities, including sole trader, that the Client takes income from, in any form, registered in any country. For the avoidance of doubt, the Clients turnover for any period prior to the commencement of the Program will not be considered when calculating the Clients turnover in respect to a refund application.
6.2 If the Client wishes to apply for a refund of Fees, the Client must provide FBF with the following:
(a) copies of audited accounts for the Client for the period of the Program;
(b) written evidence from the Client which demonstrates that it fully and enthusiastically participated in a Program and that it completed all tasks and activities set during a Program to the best of its abilities and in a timely manner; and
For avoidance of any doubt, by agreeing to participate fully and enthusiastically in the program, you must:
i)Attend (and provide proof of attendance in the form of hotel or travel receipts, if requested) every live event connected with your program
ii) Attend (and provide proof of attendance in the form of a call log from your telecoms provider, if requested) every live call connected with your program (including all Q&A’s)
iii) Undertake all the activities outlined in your online members area, (including all the associated proficiency tests for each subject) and any additional tasks deemed required by your coach and for you and your business.
iv) Provide, if requested, actual examples of your activities and the results associated with them
Failure to comply with any of these points will constitute a brech of the clients obligations under the contract and no Fees will be refunded.
FBF will in its sole discretion determine whether the Client has participated fully and enthusiastically in a Program and if it has completed any tasks and activities set to the best of its abilities and in a timely manner
6.3 The Client must apply for the refund, and submit copies of the above documents, within 30 days of completion of a Program.
7. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights in or arising out of or in connection with a Program and FBF Materials will be owned by FBF. FBF hereby grant the Client with a revocable, non- exclusive royalty free licence to use FBF Materials for the duration of a Program.
8. LIMITATION OF LIABILITY AND DISCLAIMERS: THE CLIENT’S ATTENTION IS PARTICUALRLY DRAWN TO THIS CLAUSE
8.1 Nothing in these Conditions will limit or exclude FBF’s liability for (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors, or (ii) fraud or fraudulent misrepresentation.
8.2 Subject to clause 8.1 and FBF’s obligation to refund Fees to the Client under clause 6 above:
FBF will under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
FBF’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed the Fees actually received by it from the Client under the Contract.
8.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 will survive termination of the Contract.
8.5 FBF does not provide any legal, tax, financial or accounting advice and any information provided to the Client as part of a Program is not intended to constitute such advice.
9. DURATION AND TERMINATION
9.1 The Contract will commence on the Commencement Date and will continue until terminated in accordance with clauses 9.2 to 9.3 below.
9.2 Each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
(c) the other party becomes insolvent or a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
(d) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party, or a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(e) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.3(b) to clause 9.3(d) (inclusive); or
(f) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
9.3 FBF may terminate the Contract with immediate effect, and without any obligation to refund any Fees paid to that point, by giving written notice to the Client if (i) the Client fails to pay any amount due under this Contract on the due date for payment, or (ii) the Client becomes aggressive, disruptive or difficult to deal with, or if it fails to follow any guidelines set out in a Program or to fulfil any action plans in a timely and effective manner.
10. CONSEQUENCES OF TERMINATION
10.1 On termination of the Contract for any reason:
the Client will immediately pay to FBF all of FBF’s outstanding unpaid invoices and interest and, in respect of a Program but for which no invoice has been submitted, FBF will submit an invoice, which will be payable by the Client immediately on receipt; and
10.2 the Client will return all of FBF Materials and any deliverables which have not been fully paid for. If the Client fails to do so, then FBF may enter the Client’s premises and take possession of them. Until they have been returned, the Client will be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
11.1 Assignment and subcontracting: The Client will not, without the prior written consent of FBF, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. For the avoidance of doubt, the Client will not share any of FBF Materials or details of a Program with any third party without the prior written consent of FBF.
11.2 Waiver: A waiver of any right under the Contract is only effective if it is in writing and will not be deemed to be a waiver of any subsequent breach or default.
11.3 Severance: If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract will not be affected.
11.4 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, will only be binding when agreed in writing and signed by FBF.
11.5 Governing law and jurisdiction: This Contract, 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), will be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
International Office: Wellness Marketing Solutions Ltd, Suite 1, 3rd Floor Standard Chartered Tower, Cybercity, Ebene, Republic of Mauritius, 72201 TEL: +2304541876
UK Office: Wellness Marketing Solutions Ltd, Kemp House, 152-160 City Road, London, EC1V 2NX. TEL: 0208 242 4985
EU Office: WMSL, Unit 113 Citygate Business Centre, Hills Industrial Estate, Lower Lucan Road, Lucan, Co. Dublin K78XC66 Eire TEL: 015034322