City & Guilds Learning Assistant Subscription Agreement
THE CITY AND GUILDS OF LONDON INSTITUTE a body incorporated by Royal Charter and registered as a charity in England and Wales (Reg. No. 312832) and in Scotland (Reg. No. SC039576) whose registered office is at 1 Giltspur Street, London EC1A 9DD (the “Supplier”)
(A) The Supplier is the owner of a web-based e-portfolio with offline capability for supporting the delivery and assessment of qualifications and other learning programmes which it makes available to subscribers via the internet on a subscription basis.
(B) The Supplier has agreed to provide and the Client has agreed to take and pay for the Service subject to the terms and conditions of this Agreement.
1 Definitions and Interpretation
1.1 In this Agreement except where the context otherwise requires the following words and expressions shall have the following meanings:
Acceptable Use Policy means the policy described as such available via the Service as updated from time to time;
Additional Services means the services described as such in the Proposal;
Agreement means this agreement, consisting of the Proposal, the General Terms and any document referred to therein;
Associated Company means a company which is a subsidiary, a holding company or ultimate holding company of a Party, or any company which is a subsidiary of any such subsidiary, holding company or ultimate holding company.
A company is a “subsidiary” of another company, or its “holding company”, if that other company:
(a) holds a majority of the voting rights in it; or
(b) is a member of it and has the right to appoint or remove a majority of its board of directors; or
(c) is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it, and “company” shall include any corporate body;
Authorised Users means the Client's students, employers of students (where applicable), staff and verifiers who are authorised by the Client to use the Service;
Client means the company or organisation so described in the Proposal;
Client Data means all data inputted by the Client, the Authorised Users and the Supplier on the Client’s behalf for the purpose of using the Service or facilitating the Client’s use of the Service;
Commencement Date means the date on which the Order Form is returned to the Supplier;
Confidential Information means the Proposal and any other information, know-how or data belonging to either Party and/or its Associated Companies relating to its business which is communicated in any form which is marked as confidential or might reasonably be considered to be confidential in nature including, any kind of commercial or technical information, business, financial and marketing information, computer software and know-how;
Completion Service means the service so described in the Proposal;
Exit Period means the period following the end of the Subscription Term in which the Exit or Completion Service (as applicable) is provided;
Exit Service means the service so described in the Proposal;
Fees means the fees described as such and specified in the Proposal;
Go Live Date means the date on which the Client has access to the City & Guilds Learning Assistant platform;
Order Form means the document described as such;
Party or Parties means the Client and the Supplier individually or together as applicable;
Proposal means the document described as such;
Intellectual Property Rights means all rights in and to inventions (whether patentable or not), patents, designs (both registered or unregistered), copyright, database rights, rights in computer software, trade and service marks (both registered and unregistered) and any other intellectual property right or sui generis rights, together with all rights to the grant of and applications for the same and the right to issue proceedings for passing off, and including all similar or analogous rights throughout the world and all future rights of such nature;
Initial Subscription Term means the initial period described as such in the Proposal commencing on the Go Live Date;
Service means the service package the Client has selected as described in the Proposal;
Software means the online software applications provided by the Supplier as part of the Service;
Subscription Term means the Initial Subscription Term and the Renewal Terms together (as applicable);
Support means the support to be provided by the Supplier as described in the Proposal; and
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). Words in the singular shall include the plural and vice versa.
1.3 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 If there is any conflict or inconsistency between the Proposal, the General Terms and any other part of this Agreement, the General Terms shall prevail.
2 Service Subscription
2.1 In consideration of the Fees, the Supplier hereby grants the Client, subject to the terms of this Agreement, a non-exclusive non-transferable right to permit the Authorised Uses to use the Service during the Subscription Term.
2.2 The Supplier shall:
2.2.1 from the Commencement Date, configure the Service for the Client; and
2.2.2 from the Go Live Date and for the Subscription Term, provide the Service on and subject to the terms of this Agreement.
2.3 The Supplier shall use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for:
2.3.1 planned maintenance as notified to the Client at least 5 days in advance; and
2.3.2 unscheduled maintenance performed outside working hours (being from 9am to 5pm on a day that isn’t a Bank Holiday in England) provided that the Supplier has used reasonable endeavours to give the Client at least 6 hours notice in advance.
2.4 In relation to the Authorised Users the Client undertakes and procures that:
2.4.1 the maximum number of Authorised Users shall not exceed the number allowed in the Proposal;
2.4.2 each Authorised User will keep a secure password for the use of the Services;
2.4.3 each Authorised User will keep their username and password confidential and not permit any third party and/or unauthorized person to use the Service in any way whatsoever;
2.4.5 no Authorised User will make any alteration to or modification of the whole or any part of the Service or any underlying software nor permit the Service any such software or any part thereof to be combined with or become incorporated in any other programs, nor decompile or disassemble the object code version of such software nor attempt to do any of such things; and
2.4.6 all Authorised Users are properly trained in respect of the use of the Service.
2.5 If the number of Authorised Users exceeds the number allowed in the Proposal, then without prejudice to the Supplier’s other rights, the Supplier may charge, and the Client will pay an amount equal to such underpayment as calculated in accordance with the then current prices for the Service which allow for that number of Authorised Users.
2.6 The Client shall:
2.6.1 make available free of charge to the Supplier all information, facilities and services reasonably required by the Supplier to provide the Service including without limitation access to the Client's documentation and relevant systems, computer-runs, print-outs, co-operation of the Client's staff and data preparation;
2.6.2 notify the Supplier in writing, immediately on becoming aware of a fault in the Service or of any proposed material change to its systems or of any other circumstances which might materially affect the operation of the Service;
2.6.4 keep full secure copies of all Client Data;
2.6.5 use reasonable endeavours to prevent any unauthorised access to, or use of the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.7 The Client agrees that it will not:
2.7.1 make any alteration to or modification of the whole or any part of the Service or any underlying software nor permit the Service any such software or any part thereof to be combined with or become incorporated in any other programs, nor decompile or disassemble the object code version of such software nor attempt to do any of such things;
2.7.2 except to the extent permitted by this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Software in any form or by any means;
2.7.3 access the Service in order to build a product or service which competes with the Service; and
2.7.4 allow any person other than the Authorised Users access to the Service.
2.8 If the Client shall fail to comply with any of the provisions set out in clauses 2.6 and 2.7, then the Supplier may suspend the provision of the Service until such failure has been remedied (if it is capable of remedy).
2.9 In the case of material, repeated or persistent breach of any of the provisions set out in clauses 2.6 and 2.7, the Supplier may by immediate (if such breach is incapable of remedy) or by 30 days written notice terminate this Agreement.
3 Additional Services
3.1 The Client may request and the Supplier will provide Additional Services as requested at times agreed between the parties. If such Additional Services are provided during the Initial Subscription Term the cost of such Additional Services will be as outlined in the Proposal. If, however the Additional Services are provided in any Renewal Term, the cost of such Additional Services will be notified to the Client at the time of their request.
4 Intellectual Property Rights
4.1 All Intellectual Property Rights in the Software and the Service shall remain at all times the property of the Supplier and the Client shall acquire no rights in any such material except as expressly provided in this Agreement.
4.2 The Client confirms that it has no right to have access to any unique software of the Supplier in source code form or in unlocked coding or with comments.
5 Client Data
5.1 The Client shall own all rights in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
5.2 The Supplier shall follow its archiving procedures for Client Data as set out in the Proposal. In the event of any loss or damage to Client Data, the Client's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party.
5.3 Notwithstanding clause 5.2 above, the Client acknowledges and agrees that it is the Client’s sole responsibility to ensure it retains a copy of the Client Data on termination of this Agreement.
5.4 If the Supplier processes any personal data on the Client's behalf when performing its obligations under this Agreement, the parties record their intention that the Client shall be the data controller and the Supplier shall be a data processor and in any such case:
5.4.1 the Client acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Client and the Authorised Users are located in order to carry out the Service and the Supplier's other obligations under this Agreement;
5.4.2 the Client shall ensure that the Client is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Client's behalf;
5.4.3 the Client shall ensure that the Authorised Users have been informed of, and have given their consent to, such use, processing, and transfer as required by the Client and all applicable data protection legislation;
5.4.4 the Supplier shall process the personal data only in accordance with the terms of this Agreement or on the instructions of the Client; and
5.4.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
6.1 Each party may be given access to Confidential Information of the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
6.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
6.1.2 was in the receiving party's lawful possession before the disclosure;
6.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
6.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
6.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
6.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the performance of this Agreement.
6.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
6.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
6.5 The Client acknowledges that details of the Service, and the results of any performance tests of the Service, constitute the Supplier's Confidential Information.
6.6 This clause 6 shall survive termination of this Agreement, however arising.
7.1 In consideration of the Supplier performing its obligations under this Agreement, the Client shall pay the Supplier the relevant portion of the annual Fees and any fees and expenses for Additional Services monthly during the Subscription Term.
7.2 If, for whatever reason, this Agreement is terminated before the Go Live Date, the Supplier shall be entitled to recover, and the Client will pay, the costs for the work (on a time and materials basis) already undertaken by the Supplier to configure the Service for the Client.
7.3 The Supplier may increase the Fees annually after the expiry of the Initial Subscription Term provided that at least 60 days notice of such increase is provided to the Client.
7.4 All charges in this Agreement are unless otherwise stated exclusive of value added tax which shall be added to invoices at the applicable rate and paid by the Client.
7.5 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
7.5.1 the Supplier may, without liability to the Client or its Authorised Users, suspend the Client and/or its Authorised Users' passwords, accounts and access to all or part of the Service for the period of non-payment and the Supplier shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and
7.5.2 interest shall accrue on such due amounts at an annual rate equal to 2% over the then current base lending rate of the Bank of Scotland at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.6 If the Client terminates this Agreement before the end of the Initial Subscription Term or Renewal Term the Fees for that Initial Subscription Term or Renewal Term and any outstanding fees and expenses for Additional Services shall become due and payable.
8.2 Except as expressly and specifically provided in his Agreement, to the maximum extent permitted by applicable law the Supplier disclaims and excludes any and all implied warranties, terms and conditions, including, but not limited to: (i) any warranties, terms and conditions concerning the availability, accuracy, usefulness, or content of information, products, or Service and (ii) any warranties, terms and conditions of title, warranty of non-infringement, warranties of merchantability, satisfactory quality or fitness for a particular purpose in all cases whether implied by statute, custom or otherwise. This disclaimer applies to any action, proceeding, claim, damage, loss, cost or expense ("Loss") caused by or arising from any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorised access to, alteration of, or use of record, whether for breach of contract, tortious or delictual behaviour, negligence, or under any other cause of action.
8.3 The Supplier shall not be liable for any failure to perform any obligation caused by any event beyond its reasonable control.
8.4 Nothing in this Agreement shall exclude or restrict the Supplier's liability for fraudulent misrepresentation, death or personal injury resulting from the negligence of the Supplier or of its employees while acting in the course of their employment.
8.5 Notwithstanding anything else in this Agreement, the Supplier's liability to the Client in contract, tort (including negligence), misrepresentation or otherwise arising out of or in connection with the Site, Service or the Support, the provision of any other services provided in relation to the Service, or other performance or non-performance of the Supplier's obligations under this Agreement shall, subject to clause 8.4:
8.5.1 be limited to the aggregate of all sums paid by the Client under this Agreement for the preceding twelve months in respect of any one incident or any series of incidents arising from a single fault;
8.5.2 not extend to any loss of profits, loss of revenue, business, goodwill, contracts, anticipated savings or for any special, indirect or consequential loss whatsoever, whether sustained by the Client or any other person.
9 Term and Termination
9.1 This Agreement shall, unless otherwise terminated as provided in this clause 9 commence on the Commencement Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Term) unless the Client serves written notice to the Supplier not less than 30 days before the end of the Initial Subscription Term or any Renewal Term, in which case this Agreement shall terminate upon the expiry of the Initial Subscription Term or Renewal Term as applicable.
9.2 Subject to clause 9.4, the Supplier may terminate this Agreement by serving not less than 90 days prior written notice on the Client.
9.3 On termination of this Agreement by the Client, the Client may elect to utilise the Exit or Completion Service. On such election the Supplier shall provide the relevant service, will invoice the Client, and the Client shall pay the fee for such service. In either such case the terms of this Agreement will continue to apply until the expiry of any Exit Period.
9.4 Either party may (without prejudice to its other rights) terminate this Agreement at any time forthwith by notice in writing to the other if:
9.4.1 a voluntary agreement is approved, or an administration order is made, or a receiver is appointed over any of the other party's assets or an undertaking or a resolution or petition to wind up the other party is passed or presented (other than for the purposes of amalgamation or reconstruction) or if any circumstances arise which entitle the court or a creditor to appoint a receiver or administrator or to present a winding-up petition or make a winding-up order; or
9.5 Termination of this Agreement, for any reason, shall be without prejudice to the rights and liabilities of either party which may have accrued on or at any time up to the date of termination.
9.6 Upon termination of this Agreement for any reason or on expiry of the Exit Period (as applicable), the Client shall forthwith cease using the Service, destroy any usernames and passwords to the system.
9.7 On termination of this Agreement for any reason or on expiry of the Exit Period (as applicable) the Supplier may destroy or otherwise dispose of any of the Client Data..
10.1 Other than provided for in this Agreement, the Client is not entitled to assign or sub-licence to any third party any of its rights or obligations under this Agreement without the Supplier's prior written consent. The Supplier shall be entitled to assign or sub-contract its rights and obligations under this Agreement to any Associated Company.
10.2 If any part, term or provision of this Agreement be held illegal or unenforceable the validity or enforceability of the remainder of this Agreement shall not be affected.
10.3 A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms and conditions of this Agreement.
10.4 This Agreement supersede and cancel all previous agreements and working arrangements whether oral or written, express or implied between the parties in respect of or in connection with the matters referred to in this Agreement.
10.5 No waiver of any term or condition of this Agreement shall be effective unless made in writing and signed by the party against which enforcement of the waiver is sought. The waiver of any breach of any term or any condition of this Agreement shall not be construed as a waiver of any subsequent breach of a term or condition of the same or a different nature.
10.6 This Agreement may be amended only in writing signed by both parties.
10.7 Any notice to be given under this Agreement shall either be delivered personally, by first class recorded delivery post or by electronic mail. The address for service of either party shall be the address stated above or any other address for service previously notified to the other Party and shall be deemed to have been served as follows:
10.7.1 if personally delivered, at the time of delivery; and
10.7.2 if posted, at the expiration of 48 hours after the envelope containing the same was delivered into the custody of the postal authorities; and
10.7.3 if delivered by electronic mail, on the date of delivery to a server accessible by the recipient and provided that on the same day the sender delivers the original signed notice to the recipient personally or despatches it to the recipient by first class post or commercial courier. In proving such service it shall be sufficient to prove that personal delivery was made, or that the envelope containing such notice was properly addressed and posted as a prepaid first class recorded delivery letter as the case may be.
10.8 This Agreement shall be governed by and construed in accordance with the law of England and Wales and the parties hereto prorogate and submit to the non-exclusive jurisdiction of the English Courts.