Terms of Subscription – SME Marketing Academy

1. DEFINITIONS AND INTERPRETATION

1.1

In these Conditions the following definitions apply:

“Academy” means JSFR Consulting Ltd, (trading as The SME Marketing Academy), a company incorporated and registered in England and Wales with company number 10149831, whose registered address is at 29 Kingfisher Road, Knaresborough, North Yorkshire, HG5 0GD;

“Affiliate” means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;

“Applicable Law” means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national;

“Bespoke Services” means any services which the Academy agrees to provide to a Member in addition to the Services.

“Business Day” means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;

“Charges” means the charges specified in clause 3;

“Conditions” means the Academy’s terms and conditions of supply set out in this document;

“Confidential Information” means any commercial, financial or technical information, information relating to the Services, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;

“Consumer Regulations” includes the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134);

“Contract” means the agreement between the Academy and the Member for access to the Academy incorporating these Conditions and the Order and including all their respective schedules, attachments, annexures and statements of work;

“Control” has the meaning given to it in section 1124 of the Corporation Tax Act 2010 and “Controls”, “Controlled” and “under common Control” shall be construed accordingly;

“Force Majeure” means an event or sequence of events beyond the Academy's reasonable control preventing or delaying it from performing its obligations under the Contract including without limitation an act of God, fire, flood, lightning, earthquake or other natural disaster, epidemic or pandemic, law or action taken by a government or public authority, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Academy or its workforce;

“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case:

(a)	whether registered or not;
(b)	including any applications to protect or register such rights;
(c)	including all renewals and extensions of such rights or applications;
(d)	whether vested, contingent or future;
(e)	to which the relevant party is or may be entitled, and
(f)	in whichever part of the world existing;

“Members” means the named party in the Contract which has agreed to purchase the Services from the Academy and whose details are set out in the Order;

“Order” means the order for the Academy’s Services from the Academy placed by the Member on the Website or on a call with the Academy;

“Services” means the Academy’s courses and services set out in the Order and to be performed by the Academy for the Member in accordance with the Contract;

“VAT” means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services;

“Website” means www.smemarketingacademy.com

1.2

In these Conditions, unless the context requires otherwise:

1.2.1

a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);

1.2.2

any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;

1.2.3

a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;

1.2.4

a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

1.2.5

a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

1.2.6

a reference to a gender includes each other gender;

1.2.7

words in the singular include the plural and vice versa;

1.2.8

any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.2.9

a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;

1.2.10

A reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Contract;

1.2.11

A reference to legislation includes all subordinate legislation made from time to time under that legislation; and

1.2.12

a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.

2.	APPLICATION OF THESE CONDITIONS
2.1	These Conditions apply to and form part of the Contract between the Academy and the Member. They supersede any previously issued terms and conditions of purchase or supply.
2.2	No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Academy and the Member respectively.
2.3	If the Academy is unable to accept an Order, it shall notify the Member in writing as soon as reasonably practicable.
2.4	Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.

3.	SIGN UP DETAILS, SUBSCRIPTION AND CHARGES
3.1	The Academy’s services are a subscription only service for a minimum period of 12 months. The subscription will continue after the initial 12 month period until at least 30 days’ notice is given by the Member to the Academy or vice versa.
3.2	In consideration of the Academy providing the Services, the Member must pay the Charges in accordance with this clause 3.
3.3	The Charges are the prices specified for the Academy’s services at the time the Member submits an Order.
3.4	The Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services the Member must pay the Academy such additional amounts in respect of VAT, at the applicable rate, at the same time as the Academy pays the Charges.

4.	PAYMENT
4.1	Payment for the Services are in advance on a subscription basis and no refunds will be made once access to the Website and the Services is granted (as the Member will have been able to download some materials).
4.2	The Academy will provide details for payment to the Member upon acceptance of the Member’s Order.
4.3	Subscription payments will be taken monthly until the end of the Contract (with a minimum initial period of 12 months as detailed in clause 3.1).
4.4	Time of payment is of the essence and the Member will be sent a reminder if payment fails. Where sums due under these Conditions are not paid in full by the due date:
	4.4.1	the Member’s place on an Academy’s course will not be reserved;
	4.4.2	the Academy may, without limiting its other rights, recover the remainder of the initial 12 month period still outstanding and/or charge interest on such sums at 6% a year above the base rate of the Bank of England from time to time in force; and
	4.4.3	interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
4.5	The Member shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.6	Payment for any Bespoke Services will be as confirmed by the Academy.

5.	CANCELLATION AND REFUNDS
5.1	Where the Member has placed an Order for the Services and this has been accepted by the Academy, the Member will not be entitled to a refund for any reason.
5.2	Consumer Right to Cancel
5.3	Where the Member is classed as a consumer, for the purposes of the Consumer Regulations, the Member has a limited period, referred to as the ‘cooling off period’, in which they may change their mind and cancel their Order with the Academy.
5.4	The cooling off period lasts for 14 days after the day the Academy emails the Member to accept their Order. However, once the Services have commenced and access to the Website has been granted, the Member does not have the right to change their mind even if the period is still running.
5.5	The Member must supply written notice of the request to cancel by email to hello@smemarketingacedemy.com
5.6	If the Member exercises their right to cancel with the terms of this Contract, the Services will be terminated.

6.	PERFORMANCE AND DETAILS OF WHAT THE ACADEMY WILL PROVIDE
6.1	The Academy will perform the Services (or any Bespoke Services as agreed). The Services sometimes may not be able to be performed due to third party terms or for reasons outside of the Academy’s control.
6.2	Members will have the first opportunity to book specific slots with experts to discuss challenges, but such slots will be provided on a first come, first served basis and these will be scheduled on an ad hoc basis.
6.3	The pre-recorded content will be delivered via Teachable, and a Member will be sent a Teachable login within two Business Days of paying their first subscription payment.
6.4	Members will get access to 12 core training modules on Teachable, plus a live question and answer session with a senior nominated member of the Academy 12 times per annum (dates to be confirmed, subject to availability). There will also be regular ‘ask the expert’ sessions to be confirmed.
6.5	The Members may also access ad-hoc email support by emailing hello@smemarketingacademy.com. This will be subject to reasonable use, however, and should be used only for queries related to the course or for concerns that do not require in depth consultancy. The Academy reserves the right to inform a Member if this part of the Service is being mis-used. The Academy reserves the right to answer such queries within 3 working days, subject to annual leave or busy periods.
6.6	The Academy shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are indicative only.
6.7	The Academy shall not be liable for any delay in or failure of performance caused by:
	6.7.1	Force Majeure;
	6.7.2	the failure of any third party company other than the Academy, which does not form part of the Services.

7.	WARRANTY
7.1	The Academy warrants that the Services shall be supplied with reasonable skill and care within the meaning of the Supply of Goods and Services Act 1982, Part II, s13.
7.2	Except as set out in this clause 7, the Academy gives no warranties and makes no representations in relation to the Services and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.

8.	INDEMNITY AND INSURANCE
	The Member shall indemnify, and keep indemnified, the Academy from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Academy as a result of or in connection with the Member’s breach of any of the Member’s obligations under the Contract.

9.	LIMITATION OF LIABILITY
9.1	The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 9.
9.2	Subject to clause 9.5, the Academy’s total liability shall not exceed the sum of 120% of the Charges.
9.3	Subject to clause 9.5, the Academy shall not be liable for consequential, indirect or special losses or any losses incurred in accordance with clause 6.
9.4	Subject to clause 9.5, the Academy shall not be liable for any of the following (whether direct or indirect):
	9.4.1	loss of profit;
	9.4.2	loss or corruption of data;
	9.4.3	loss of use;
	9.4.4	loss of production;
	9.4.5	loss of contract;
	9.4.6	loss of opportunity;
	9.4.7	loss of savings, discount or rebate (whether actual or anticipated);
	9.4.8	harm to reputation or loss of goodwill;
	9.4.9	loss resulting from implementation in the Member’s Business of any of the Services.
9.5	Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
	9.5.1	death or personal injury caused by negligence;
	9.5.2	fraud or fraudulent misrepresentation;
	9.5.3	any other losses which cannot be excluded or limited by Applicable Law;
	9.5.4	any losses caused by wilful misconduct.

10.	INTELLECTUAL PROPERTY
10.1	All Intellectual Property Rights in or arising out of or in connection with the Services will be owned by the Academy, and the Member agrees not to share these with others for any purpose.
10.2	The Academy agrees to grant the Member a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the deliverables specified in the Member’s Order for the purpose of receiving and using the Services and such deliverables in the Member’s business. The Member may not sub-license, assign or otherwise transfer the rights granted in this clause 10.2.
10.3	The recordings of the live sessions & the online trainings or any other Services are the intellectual property of the Academy and are not allowed to be shared or copied with third parties.
10.4	The Member consents to the Academy recording any and all online Zoom calls (or other such platforms).

11.	CONFIDENTIALITY
11.1	The Member and the Academy shall keep confidential all Confidential Information of the other party and of its Affiliates and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
	11.1.1	any information which was in the public domain at the date of the Contract;
	11.1.2	any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
	11.1.3	any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract; or
	11.1.4	anything discussed on an Academy call, which will be recorded and available on the Website.
11.2	This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.

12.	PERSONAL DATA
12.1	The Academy will use any personal information the Member provides to:
	12.1.1	provide the Services;
	12.1.2	process the Member’s payment for the Services; and
	12.1.3	inform the Member about similar services that the Academy provides, but the Member may stop receiving these at any time by contacting the Academy.
12.2	The Academy will process the Member’s personal information in accordance with their data protection privacy policy, the terms of which are incorporated into the Contract.

13.	FORCE MAJEURE
	The Academy shall not have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The Academy shall promptly notify the other party in writing when such an event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 60 days, either party may terminate the Contract by written notice to the other party.

14.	TERMINATION
14.1	Without limiting any of the Academy’s other rights, the Academy may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to the Member if:
	14.1.1	the Member commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so;
	14.1.2	the Member fails to pay any amount due under the Contract on the due date for payment (subject to having being sent one reminder under clause 4.4);
	14.1.3	the Member takes any step or action in connection with them entering administration, provisional liquidation or any composition or arrangement with their creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of their assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
	14.1.4	the Member suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of their business; or
	14.1.5	the Member’s financial position deteriorates to such an extent that in the Academy’s opinion the Member’s capability to adequately fulfil their obligations under the Contract has been placed in jeopardy.
14.2	On termination of the Contract the Member must return all of the Academy’s materials (if any) and any deliverables specified in the Order which have not been fully paid for.
14.3	Termination of the Contract will not affect either party’s rights and remedies that have accrued as at termination.
14.4	Survival. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.

15.	NOTICES
15.1	Any notice or other communication given by a party under these Conditions shall:
	15.1.1	be in writing and in English;
	15.1.2	be signed by, or on behalf of, the party giving it (except for notices sent by email); and
	15.1.3	be sent to the relevant party at the address set out in the Contract
15.2	Notices may be given, and are deemed received:
	15.2.1	by hand: on receipt of a signature at the time of delivery;
	15.2.2	by post: at 9.00 am on the second Business Day after posting;
	15.2.3	by email: on receipt of a delivery email from the correct address.
15.3	Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 15.1 and shall be effective:
	15.3.1	on the date specified in the notice as being the date of such change; or
	15.3.2	if no date is so specified, five Business Days after the notice is deemed to be received.
15.4	All references to time are to the local time at the place of deemed receipt.
15.5	This clause does not apply to notices given in legal proceedings or arbitration.

16.	CUMULATIVE REMEDIES
	The rights and remedies provided in the Contract for the Academy only are cumulative and not exclusive of any rights and remedies provided by law.

17.	TIME
	Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Member’s obligations only.

18.	OTHER IMPORTANT TERMS
18.1	The Academy reserves the right to make changes to the Services or content.
18.2	From the date the Contract commences, any behaviour displayed by the Member that the Academy deems to be disruptive or abusive in any manner (in the sole discretion of the Academy), may result in the Member being denied access to the Services. All Charges still outstanding will remain payable.

19.	FURTHER ASSURANCE
	The Member shall at the request of the Academy, and at the Member’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.

20.	ENTIRE AGREEMENT
20.1	The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
20.2	Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
20.3	Nothing in these Conditions purports to limit or exclude any liability for fraud.

21.	VARIATION
	No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.

22.	ASSIGNMENT
22.1	The Member may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Academy’s prior written consent, such consent not to be unreasonably withheld or delayed. The Academy may assign or subcontract any right or obligation under the Contract, in whole or in part without the Member’s prior consent.
22.2	Notwithstanding clause 22.1, the Member may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives the Academy prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Member acknowledges and agrees that any act or omission of its Affiliate in relation to the Member’s rights or obligations under the Contract shall be deemed to be an act or omission of the Member itself.

23.	SET OFF
23.1	The Academy shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Member under the Contract or under any other contract which the Academy has with the Member.
23.2	The Member shall pay all sums that it owes to the Academy under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

24.	NO PARTNERSHIP OR AGENCY
	The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party's behalf.

25.	SEVERANCE
25.1	If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
25.2	If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

26.	WAIVER
26.1	No failure, delay or omission by the Academy in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
26.2	No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Academy shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Academy.
26.3	A waiver of any term, provision, condition or breach of the Contract by the Academy shall only be effective if given in writing and signed by the Academy, and then only in the instance and for the purpose for which it is given.

27.	CONFLICTS WITHIN CONTRACT
	If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail to the extent of the conflict.

28.	THIRD PARTY RIGHTS
28.1	Except as expressly provided for in clause 28.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
28.2	Any Affiliate of the Academy shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.

29.	GOVERNING LAW
	The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

30.	JURISDICTION
	The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).

1.

DEFINITIONS AND INTERPRETATION

2.

APPLICATION OF THESE CONDITIONS

3.

SIGN UP DETAILS, SUBSCRIPTION AND CHARGES

4.

PAYMENT

5.

CANCELLATION AND REFUNDS

6.

PERFORMANCE AND DETAILS OF WHAT THE ACADEMY WILL PROVIDE

7.

WARRANTY

8.

INDEMNITY AND INSURANCE

9.

LIMITATION OF LIABILITY

10.

INTELLECTUAL PROPERTY

11.

CONFIDENTIALITY

12.

PERSONAL DATA

13.

FORCE MAJEURE

14.

TERMINATION

15.

NOTICES

16.

CUMULATIVE REMEDIES

17.

TIME

18.

OTHER IMPORTANT TERMS

19.

FURTHER ASSURANCE

20.

ENTIRE AGREEMENT

21.

VARIATION

22.

ASSIGNMENT

23.

SET OFF

24.

NO PARTNERSHIP OR AGENCY

25.

SEVERANCE

26.

WAIVER

27.

CONFLICTS WITHIN CONTRACT

28.

THIRD PARTY RIGHTS

29.

GOVERNING LAW

30.

JURISDICTION