Learning Assistant Terms and Conditions
Assessment Delivery Platform SaaS Agreement
Between
1. 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 5-6 Giltspur Street, London EC1A 9DE (“Supplier”); and
2. the Client.
WHEREAS
(A) The Supplier is the owner of a web-based assessment delivery platform
with offline capability for supporting the delivery and assessment of
qualifications, standards and other learning programmes, which it makes
available to its clients 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 Subscribed Services subject to the terms and conditions of
this Agreement.
GENERAL TERMS
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:
Agreement
means this agreement, consisting of the Proposal, Order Form, 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. “Subsidiary”
and “holding company” shall have the meanings ascribed to them in section
1159 Companies Act 2006 and “company” shall include any body corporate;
Authorised Users
means the Client's students, employers of students (where applicable),
trainers and super users who are authorised by the Client to use the
Service;
Business Day
means a day other than a Saturday, Sunday or bank or public holiday in
England;
Business Hours
means 09:00-17:00, Monday to Friday GMT or BST (as applicable) excluding
any day which is not a Business Day;
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 Subscribed
Services or facilitating the Client’s use of the Subscribed Services
(excluding Third Party Materials);
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 post-termination service, so described in the Proposal, which
allows students to complete their programme of study;
DPA
means European Directives 95/46/EC and 2002/58/EC and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them, including the General Data Protection Regulation (EU) 2016/679, the Data Protection Act 2018, and all other applicable data protection or privacy laws and regulations that may exist in the territory where the Services are being provided to the Client;
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 post-termination service so described in the Proposal which
permits the Client access to the Client Data post termination;
Go Live Date
means the date on which the Client has access to the Subscribed Services;
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;
Order Acceptance
means the date the Supplier accepted the relevant Order Form from the
Client;
Order Form
means the document described as such, incorporating the terms and
conditions of this Agreement, under which the Client agrees to this
Agreement;
Party or Parties
means the Client and the Supplier individually or together as applicable;
Personal Data
means any information relating to an identified or
identifiable natural person;
Privacy Policy
means the policy described as such available via the Subscribed Services as
updated from time to time;
Proposal
means the document described as such provided to the Client by the
Supplier;
Service
means the service package the Client has selected as described in the
Proposal;
Subscription Fees
means the fees described as such and specified in the Proposal and any fees
agreed under clause 4;
Subscription Term
means the Initial Subscription Term and the Renewal Terms
together or separately (as applicable);
Subscribed Services
means the online software applications provided by the Supplier as part of
the Service;
Supplier Materials
means all data, documents, content, and materials supplied by the Supplier
for use by the Client and/or the Authorised Users in connection with the
Subscribed Services;
Support
means the support services to be provided by the Supplier as described in
the Proposal;
Terms of Use
means the terms described as such available via the Subscribed Services as
updated from time to time; and
Third Party Materials
means all data, documents, content, and materials supplied by the Client to
the Supplier, which include or comprise of Intellectual Property Rights,
which belong to a third party, for use by the Authorised Users in
connection with the Subscribed Services.
1.2 Clause, schedule and paragraph headings shall not affect the
interpretation of this Agreement and, unless otherwise stated, references
in this Agreement to clauses and schedules are clauses and schedules of
this Agreement.
1.3 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.
1.4 References to each Party herein include references to its successors in
title, permitted assignees and novatees.
1.5 In this Agreement, including means including but not limited to, or
without limitation.
1.6 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.
1.7 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
Subscribed Services
2.1 In consideration of the Subscription Fees, the Supplier shall:
2.1.1 from Order Acceptance, set up and configure the Subscribed Services
for the Client;
2.1.2 from the Go Live Date and for the Subscription Term, provide the
Service to the Client; and
2.1.3 provide any additional services as agreed between the Parties under
clause 4, on and subject to the terms of this Agreement.
2.2 The Supplier hereby grants the Client, subject to the terms of this
Agreement, a non-exclusive and non-transferable right to use (and permit
the Authorised Users to use) the Subscribed Services during the
Subscription Term.
2.3 The Supplier shall use commercially reasonable endeavours to make the
Subscribed Services 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 Business Hours provided
that the Supplier has used reasonable endeavours to give the Client at
least 6 hours’ notice in advance.
2.4 The Supplier may at any time during the Subscription Term, and for
a period of 12 months following the expiry of the Exit Period, conduct
an audit to verify the number of Authorised Users registered on the
Subscribed Services and/or the accuracy of the Subscription Fees paid
or payable by the Client under this Agreement.
2.5 The Supplier shall endeavour to provide no less than five Business
Days’ notice of its intention to conduct an audit.
2.6 The Client shall provide the Supplier (or its appointed
representative) with all reasonable co-operation and assistance in
relation to each audit, including a copy of all information reasonably
requested by the Supplier, and access to any relevant systems or
records kept in relation to the Subscribed Services.
2.7 The Parties agree that they shall each bear their own respective costs
and expenses incurred in respect of compliance with their obligations under
clauses 2.4 to 2.6.
2.8 If an audit identifies that:
2.8.1 the Client has overpaid any Subscription Fees, the Supplier shall
deduct the relevant amount from any subsequent Subscription Fees payable,
or issue a credit note if no further Subscription Fees are payable; or
2.8.2 the Client has underpaid any Subscription Fees, the Client shall pay
to the Supplier the relevant amount within 30 days of receipt of invoice.
3
Responsibilities of the Client
3.1 In relation to the Authorised Users, the Client undertakes and procures
that:
3.1.1 the number of Authorised Users shall not exceed the maximum number
allowed in the Proposal;
3.1.2 each Authorised User will keep a secure password for the use of the
Subscribed Services;
3.1.3 each Authorised User will keep their username and password
confidential and not permit any third party and/or unauthorised person to
use the Subscribed Services in any way whatsoever;
3.1.4 all Authorised Users use the Subscribed Services in accordance with
the Terms of Use and shall be responsible for any Authorised User's breach
of the Terms of Use;
3.1.5 no Authorised User will make any alteration to or modification of the
whole or any part of the Subscribed Services nor permit the Subscribed
Services or any part thereof to be combined with or become incorporated in
any other programs, nor decompile or disassemble the object code version of
the Subscribed Services nor attempt to do any of such things; and
3.1.6 all Authorised Users are properly trained in respect of the use of
the Subscribed Services.
3.2 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.
3.3 The Client shall:
3.3.1 make available free of charge to the Supplier all information,
facilities and services reasonably required by the Supplier to provide the
Subscribed Services, and use the Client Data and Third Party Materials,
including access to the Client's documentation and relevant systems,
computer-runs, print-outs, co-operation of the Client's staff and data
preparation;
3.3.2 notify the Supplier in writing, immediately on becoming aware of a
fault in the Subscribed Services or of any proposed material change to its
systems or of any other circumstances which might materially affect the
operation of the Subscribed Services;
3.3.3 use the Subscribed Services only in accordance with the Terms of Use;
3.3.4 keep full secure copies of all Client Data; and
3.3.5 use reasonable endeavours to prevent any unauthorised access to, or
use of the Subscribed Services and, in the event of any such unauthorised
access or use, promptly notify the Supplier in writing.
3.4 The Client agrees that it will not:
3.4.1 make any alteration to or modification of the whole or any part of
the Subscribed Services nor permit the Subscribed Services, or any part
thereof, to be combined with or become incorporated in any other programs,
nor decompile or disassemble the object code version of the Subscribed
Services nor attempt to do any of such things;
3.4.2 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
Subscribed Services in any form or by any means;
3.4.3 access the Subscribed Services in order to build a product or service
which competes with the Service; and
3.4.4 allow any person other than the Authorised Users access to the
Service.
3.5 If the Client shall fail to comply with any of the provisions set out
in clauses 3.3 and 3.4, then the Supplier may suspend the provision of the
Service until such failure has been remedied (if it is capable of remedy).
3.6 In the case of material, repeated or persistent breach of any of the
provisions set out in clauses 3.3 and 3.4, the Supplier may terminate this
Agreement immediately by written notice (if such breach is incapable of
remedy) or by serving 30 days’ written notice to terminate this Agreement.
4
Change control
4.1 The Client may, at any time during the Subscription Term, request
changes or additions to the Services by notifying the Supplier in writing.
4.2 The Parties will jointly assess a written request for changes or
additions to the Services for likely impacts in respect of time, the
Subscription Fees, and other relevant factors. In the event that both
Parties agree that the change or addition is to be made, the Supplier
shall update the Proposal, which shall include a detailed description
of the work, the applicable Subscription Fees, the payment schedule,
and any applicable delivery dates and timeframes.
4.3 The Supplier shall be under no obligation to make any change or
addition to the Services, until the corresponding Order Form is signed by
both Parties.
4.4 Once signed by both Parties (1) an Order Form shall form part of this
Agreement and (2) any material change to an Order Form must be agreed to by
both Parties in writing.
4.5 Notwithstanding clause 4.2, the Supplier reserves the right to modify
the Services without requiring approval from the Client, provided that such
modification does not have a materially adverse effect on the provision of
the Subscribed Services to the Client. When the Supplier employs its right
to modify the Subscribed Services under this clause it will notify the
Client of the modification in writing after implementing the modification.
5
Subscription Fees
5.1 In consideration of the Supplier performing its obligations under this
Agreement, the Client shall pay the Supplier the Subscription Fees as set
out in the Proposal.
5.2 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 Subscribed Services for the
Client.
5.3 The Supplier may increase the Subscription Fees annually after the expiry of the Initial Subscription Term provided that at least 30 days’ written notice of such increase is provided to the Client. If the Client does not agree to the increase of the Subscription Fees, the Client may terminate this Agreement by providing written notice of termination to the Supplier, provided that such notice of termination is served within 30 days of receipt of notice of the Subscription Fee increase.
5.4 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.
5.5 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:
5.5.1 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 Subscribed Services and/or the Service for
the period of non-payment and the Supplier shall be under no obligation to
provide any or all of the Subscribed Services and/or Service while the
invoice(s) concerned remain unpaid; and/or
5.5.2 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.
5.6 If the Client terminates this Agreement before the end of the Initial
Subscription Term or any Renewal Term the Subscription Fees for that
Initial Subscription Term or Renewal Term shall become due and payable.
6
Client Data
6.1 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. The Client hereby
grants to the Supplier a non-exclusive, royalty-free licence to use,
develop, modify, and incorporate the Client Data into other materials,
as may be necessary to provide the Subscribed Services and the Services
to the Client during the Subscription Term and the Exit Period.
6.2 In the event that the Supplier develops or modifies the Client Data in
accordance with clause 6.1, the Supplier hereby assigns all Intellectual
Property Rights in such developments and modifications to the Client
absolutely.
6.3 The Client is an authorised licensor of the Intellectual Property
Rights in the Third Party Materials. The Client hereby grants to the
Supplier a non-exclusive, royalty-free licence to use the Third Party
Materials as may be necessary to provide the Subscribed Services and
the Services to the Client during the Subscription Term and the Exit
Period. The Client shall notify the Supplier in writing if there are
any restrictions on the use of the Third Party Materials by the
Supplier. The Supplier shall not develop or modify the Third Party
Materials without the prior written consent of the Client.
6.4 The Supplier shall follow its archiving procedures in relation to
the retention of 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.
6.5 Notwithstanding clause 6.4 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.
7
Intellectual Property Rights
7.1 Nothing in this Agreement affects either Party’s rights in any
Intellectual Property Rights existing prior to Order Acceptance.
7.2 The Supplier is the owner or authorised licensor of the Intellectual
Property Rights in the Subscribed Services, which may include: (1) software
owned by the Supplier; (2) software owned by the Supplier’s Associated
Companies of which the Supplier is an authorised licensor; and/or (3) open
source software. The Supplier hereby grants to the Client a non-exclusive,
non-transferrable, royalty-free licence to access and use, and allow
Authorised Users to access and use, the Intellectual Property Rights in the
Subscribed Services during the Subscription Term and the Exit Period.
7.3 The Supplier is the owner or authorised licensor of the Intellectual
Property Rights in the Supplier Materials. The Supplier hereby grants to
the Client a non-exclusive, non-transferrable, royalty-free licence to use,
and allow the Authorised Users to use, the Supplier Materials in connection
with the Subscribed Services during the Subscription Term and the Exit
Period. For the avoidance of doubt, nothing in this Agreement shall
transform or assign ownership of the Supplier Materials to the Client.
7.4 The Client shall not: (1) allow any third party (other than the
Authorised Users) to access or use the Supplier Materials or the Subscribed
Services; or (2) develop, modify, alter, decompile, reverse engineer,
create interfaces, copy, or otherwise make amendments to the Supplier
Materials or the Subscribed Services, without the prior written consent of
the Supplier.
7.5 The Supplier shall own and retain all rights, title, and interest in
and to all deliverables, reports, documents, materials, techniques, ideas,
concepts, trade marks, know how, algorithms, software, computer code,
routines, sub-routines, specifications, plans, notes, drawings, designs,
pictures, images, text, expressions, developments, improvements,
modifications, works of authorships, and other work product of any kind
which are authored, produced, created, conceived, collected, developed,
discovered or made by, or on behalf of, the Supplier in connection with the
provision of the Subscribed Services and the Services (“Work Product”).
7.6 In the event that the Client acquires ownership of any rights in or to
any Work Product, the Client hereby assigns all such rights to the Supplier
absolutely. The Client shall execute all documents and take all actions
reasonably requested by the Supplier to document, obtain, maintain, or
perfect the Supplier’s rights in any Work Product on the Supplier’s request
and at the Supplier’s expense.
7.7 Neither Party shall use the name, trade mark, and/or logo of the other
Party without the prior written consent of that other Party, and then only
in accordance with the terms of that consent.
7.8 For the avoidance of doubt, open source software is provided on the
terms and conditions of the applicable open source software licence for the
open source software.
8
Data Protection
8.1 Each Party shall comply fully with the content and principles of the
DPA in dealing with any Personal Data under or in connection with this
Agreement.
8.2 Where Personal Data is provided by the Client to the Supplier for the
purposes of undertaking the Services and providing the Subscribed Services,
the Parties hereby acknowledge that for the purposes of the DPA the Client
is the data controller and the Supplier is the data processor of such
Personal Data. The subject-matter of the data processing is the performance
of the Services and the processing will be carried out until the expiry of
the Exit Period in accordance with clause 14, or termination of this
Agreement if earlier. Appendix A sets out the nature and purpose of the
processing, the types of Personal Data the Supplier processes, and the
categories of data subjects whose Personal Data are processed in the
context of the Services.
8.3 The Client shall notify the Authorised Users, and obtain any necessary
consent, to enable the Supplier to lawfully use, process, transfer, as
required by Client, the Personal Data of the Authorised Users, in
accordance with this Agreement and the DPA.
8.4 When the Supplier processes Personal Data in the course of providing
the Services, it shall:
8.4.1 process only such Personal Data in accordance with the written
instructions of the Client and as strictly necessary to perform the
Services and not for any other purpose. If the Supplier is required to
process the Personal Data for any other purpose by European Union or Member
State laws to which the Supplier is subject, the Supplier will inform the
Client of this requirement first, unless such law(s) prohibit this on
important grounds of interest;
8.4.2 notify the Client immediately if, in the Supplier's opinion, an
instruction for the processing of Personal Data given by the Client
infringes applicable DPA;
8.4.3 take appropriate technical and organisational measures against
unauthorised or unlawful processing of Personal Data and against accidental
loss or destruction of, or damage to, Personal Data;
8.4.4 assist the Client: (i) by taking appropriate technical and
organisational measures and in so far as is possible, in fulfilling the
Client's obligations to respond to requests from data subjects exercising
their rights; (ii) in ensuring compliance with the obligations pursuant to
Articles 32 to 36 of the General Data Protection Regulation, and (iii) by
making available to the Client all information which it reasonably requests
to allow it to demonstrate that the obligations set out in Article 28 of
the General Data Protection Regulation relating to the appointment of
processors have been met;
8.4.5 not give access to or transfer any Personal Data to any third party
without the prior written consent of the Client. Where the Client does
consent to the Supplier engaging a sub-contractor to carry out any part of
the Services, the Supplier must include in any contract with the third
party the same obligations imposed in this Agreement. For the avoidance of
doubt, where a third party fails to fulfil its obligations under any
sub-processing agreement or any applicable DPA, the Supplier will remain
fully liable to the Client for the fulfilment of the Supplier's obligations
under these terms;
8.4.6 ensure that any of the Supplier personnel required to access the
Personal Data are subject to a binding duty of confidentiality in respect
of such Personal Data;
8.4.7 promptly comply with any request from the Client requiring the
Supplier to amend, transfer or delete such Personal Data;
8.4.8 if the Supplier receives any complaint, notice or communication which
relates directly or indirectly to the processing of such Personal Data or
to either Party's compliance with the DPA and/or the data protection
principles set out therein, immediately notify the Client and provide the
Client with full co-operation and assistance in relation to any such
complaint, notice or communication;
8.4.9 at the Client's request, provide to the Client a copy of all such
Personal Data held by the Supplier in the format and on the media
reasonably specified by the Client;
8.4.10 allow the Client, and its respective auditors or authorised agents
to conduct audits or inspections during the term of the Agreement and for
12 months thereafter, which will include providing access to the premises,
resources and personnel of the Supplier and any sub-contractors that may be
used in connection with the provision of the Services, and provide all
reasonable assistance in order to assist the Client in exercising its audit
rights under this clause;
8.4.11 not transfer such Personal Data outside the European Economic Area
without the prior written consent of the Client;
8.4.12 promptly inform the Client if such Personal Data is lost or
destroyed or becomes damaged, corrupted, or unusable and as soon as
reasonably practicable thereafter restore such Personal Data at the
Supplier’s own expense; and
8.4.13 at the end of the Services, upon the Client 's request, securely
destroy or return such Personal Data to the Client, and delete existing
copies unless European Union or Member State laws require storage of
Personal Data.
9
Confidentiality
9.1 Each Party agrees that it shall:
9.1.1 keep the Confidential Information strictly confidential and shall
not, without the other Party’s prior written consent, disclose or
distribute the Confidential Information to any person other than for the
purposes of providing or receiving the Subscribed Services and the
Services;
9.1.2 subject always to clause 9.1.3, disclose the Confidential Information
only to such employees, agents, professional advisors, and sub-contractors
to whom disclosure is strictly necessary for the purposes of providing or
receiving the Services;
9.1.3 ensure that any such employees, agents, professional advisers and
sub-contractors comply with the provisions of this clause and are bound
by terms and conditions of use and non-disclosure at least equivalent
to those contained in this clause;
9.1.4 keep the Confidential Information stored securely and marked as the
Confidential Information of the other Party, and use its best endeavours to
prevent unauthorised persons having access to the Confidential Information;
9.1.5 on expiry or termination of this Agreement (for whatever reason)
promptly upon the request of the other Party, destroy all Confidential
Information held by it, including all copies, summaries, and notes of the
Confidential Information and any documents or materials compiled as a
result of the disclosure of the Confidential Information.
9.2 The obligations in this clause shall not apply to Confidential
Information which:
9.2.1 had become known to the other Party without breach of any
confidentiality obligation prior to receipt from the other Party;
9.2.2 is or becomes public knowledge other than by breach of this clause 9;
9.2.3 is required to be disclosed by any applicable law or by order of any
court of competent jurisdiction or any government body, agency or
regulatory body, provided that as much prior written notice of the
disclosure is given as is possible.
9.3 Without prejudice to any other rights or remedies, each Party agrees
that, in the event of any breach or attempted breach of this clause 7,
damages may not be an adequate remedy and either Party shall be entitled to
seek, in addition to any other relief: (1) injunctive relief restraining
such breach, attempted breach, or further breach of the terms of this
clause and (2) its legal costs incurred in that action.
10
Compliance with Relevant Laws
10.1 Each Party shall: (1) comply with the Bribery Act 2010 and any other
equivalent legislation in any jurisdiction in which the Supplier performs
Services under this Agreement (“Act”); (2) not do, or omit
to do, any act that will cause or lead either Party to be in breach of the
Act; and (3) promptly report to the other Party any request or demand for
any undue financial or other advantage of any kind received by it in
connection with the performance of this Agreement. Where the Client does
not have its own policy, to ensure compliance with the Act, the Client
shall comply with the Supplier’s Anti-bribery Policy available at https://www.cityandguildsgroup.com/responsibility.
10.2 The Supplier shall: (1) comply with the Modern Slavery Act 2015; and
(2) shall implement due diligence procedures for its own suppliers,
subcontractors and other participants in its supply chain, to ensure that
there is no slavery or human trafficking in its supply chains.
10.3 The Supplier warrants that: (1) none of its key personnel, officers,
or employees have been convicted of any offence involving slavery and/or
human trafficking; or (2) have been or are the subject of any
investigation, inquiry or enforcement proceedings by any governmental,
administrative or regulatory body regarding any offence or alleged offence
of or in connection with slavery and human trafficking.
11
Warranties
11.1 Each Party warrants and undertakes to the other Party that:
11.1.1 it has full power and authority to enter into this Agreement;
11.1.2 it shall comply with all applicable laws in performing its
obligations under this Agreement;
11.1.3 it is not bound by any legally enforceable obligations or any other
circumstance, financial or otherwise, which would prevent it from providing
or receiving the Subscribed Services and/or the Services, and from
complying with the terms of this Agreement.
11.2 The Client warrants and undertakes that:
11.2.1 it will only use the Subscribed Services in accordance with the
terms of this Agreement;
11.2.2 it has obtained all necessary consents, approvals, and licences to
enable the Supplier to use the Client Date and Third Party Materials in
accordance with this Agreement; and
11.2.3 use of the Client Data and/or Third Party Materials by the Supplier
(or any of its Associated Companies or sub-contractors) in accordance with
this Agreement will not: (1) breach the terms of any such consent,
approval, or licence; (2) infringe any applicable laws, regulations, or
third party rights; or (3) infringe the Intellectual Property Rights of any
third party.
11.3 The Client acknowledges and agrees that provision of Subscribed
Services and the Services by the Supplier is based upon information
provided by or on behalf of the Client, and that the Supplier will not
verify such information provided by the Client. Accordingly, the Supplier
gives no warranty, express or implied, that the Subscribed Services and the
Services provided by the Supplier are the only or best solution for the
purposes of the Client.
11.4 The Supplier warrants and undertakes that the Subscribed Services
shall substantially perform in accordance with the Proposal.
11.5 The Supplier does not warrant that the Client’s use of the Subscribed
Services will be uninterrupted or error free.
12 Indemnity
12.1 The Client shall indemnify, keep indemnified and hold harmless the
Supplier from and against any losses, claims, damages, liability, data
protection losses, costs (including legal and other professional fees) and
expenses incurred by it as a result of the Client’s breach of this
Agreement.
13
Liability
13.1 Nothing in this Agreement shall limit the liability of the
Supplier for:
13.1.1 death or personal injury caused by negligence;
13.1.2 fraud or fraudulent misrepresentation; and
13.1.3 for any liability that cannot be limited or excluded by applicable
law.
13.2 The Supplier shall not be liable to the Client for:
13.2.1 loss of profit;
13.2.2 loss of goodwill;
13.2.3 loss of anticipated savings;
13.2.4 loss or corruption of data or information;
13.2.5 loss or corruption of software or systems;
13.2.6 loss or damage to equipment;
13.2.7 loss of use;
13.2.8 loss of contract;
13.2.9 loss of opportunity; or
13.2.10 for any indirect, incidental, special or consequential losses, arising under or in connection with this Agreement.
13.3 Subject to clauses 13.1 and 13.2, the Supplier's total liability in
contract, tort (including negligence), misrepresentation or otherwise in
relation to this Agreement shall be limited to 125% of the Subscription
Fees paid or payable in the 12 months preceding the act, omission or other
event which gives rise to such liability or, if the date
of the breach is less than 12 months after Order Acceptance, the aggregate
of the amounts paid by the Client over the period since Order Acceptance
pro-rated to the equivalent of a 12-month period.
14
Term and Termination
14.1 This Agreement shall come into force on Order Acceptance and, unless
otherwise terminated earlier in accordance with this clause 14, shall
continue for the duration of the Initial Subscription Term.
14.2 After expiry of the Initial Subscription Term, this Agreement shall
automatically renew 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.
14.3 The Supplier may terminate this Agreement by serving not less than 90
days’ prior written notice on the Client.
14.4 Either Party may terminate this Agreement immediately by providing
written notice to the other Party if:
14.4.1 the other Party commits a material breach of any of the terms of
this Agreement and has failed to remedy such breach (if it is capable
of remedy) within 30 days of receipt of notice requiring it to do so,
or such reasonable shorter period specified in the notice;
14.4.2 the other Party commits a series of persistent minor breaches which,
when taken together, amount to a material breach, in which case clause
14.4.1 shall apply;
14.4.3 the other Party ceases, or threatens to cease, to carry on all or
substantially the whole of its business;
14.4.4 an encumbrancer takes possession, or a receiver is appointed, or any
of the property or assets of the other Party becomes subject to an
administration order by the court, or an administrator is appointed out of
court by the other Party, its directors or creditors, or the other Party
makes any voluntary arrangement with its creditors;
14.4.5 the other Party goes into liquidation (except for the purposes of
amalgamation or reconstruction and in such a manner that the Client
resulting therefrom effectively agrees to be bound by or assume the
obligations of that Client);
14.4.6 the other Party becomes bankrupt or makes any arrangement or
composition with its creditors; or
14.7 Following termination, the Supplier shall continue to provide the Client access to the Subscribed Services for the duration of the Exit Period to enable the Client to access the Client Data.
14.8 The Client may not register any new Authorised User during the Exit Period.
14.9 On termination of this Agreement by the Client, the Client may elect to utilise the Exit Service or Completion Service. On such election the Supplier shall provide the relevant service, will invoice the Client for provision of the Completion Service only, and the Client shall pay the fee for such Completion Service. In either such case the terms of this Agreement will continue to apply until the expiry of any Exit Period.
14.10 On expiry of the Exit Period, the Client shall forthwith (and shall procure that each Authorised User):
14.10.1 cease using the Subscribed Services; and
14.10.2 destroy and delete the Supplier Materials in its possession any usernames and passwords to the Subscribed Services.
14.11 On expiry of the Exit Period, the Supplier may destroy or otherwise dispose of any of the Client Data.
14.12 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.
14.13 Clauses 1, 5.5.2, 7 - 14 and 17, shall all survive the termination or expiry of this Agreement for whatever reason.
15
Force Majeure
15.1 Neither Party shall be liable to the other Party for any delay or
non-performance of its obligations under this Agreement to the extent that
its performance is interrupted or prevented by anything beyond the
reasonable control of either Party.
15.2 Such delay or failure shall not constitute a breach of this Agreement
and the time for performance shall be extended by a period equivalent to
that during which performance is so prevented subject to clause 15.3.
15.3 Should such delay or failure persist for 45 days or such shorter
period as is reasonable in the circumstances the Party not affected
may, at its option and if it is reasonable for it to do so, terminate
this Agreement by giving 14 days’ written notice to the other Party.
16
Notices
16.1 Any notices required to be given under this Agreement shall be in
writing, signed by an authorised signatory of the Party giving the notice,
and delivered either by hand, by commercial courier or by first class post
to:
16.1.1 in the case of the Supplier, to the address set out at the beginning
of this Agreement; and
16.1.2 in the case of the Client, to the contact details set out on the
Order Form (as updated from time to time).
16.2 Any notice served by the following means shall be deemed served as
indicated:
16.2.1 delivery by hand: at the time of delivery;
16.2.2 commercial courier: on the date of signature of the courier’s
delivery receipt;
16.2.3 first class post: at 9:00am on the second Business Day after
posting.
16.3 If deemed receipt is not within Business Hours, the notice is deemed
to have been received the next Business Day at the place of receipt.
17 General
17.1 This Agreement constitutes the entire agreement between the Parties,
and supersedes all prior oral and written communications, understandings,
representations or warranties (except those made fraudulently) relating to
the subject matter hereof. Each Party warrants to the other that it has not
relied on any such communications, understandings, representations or
warranties in entering this Agreement.
17.2 Each Party shall do and execute or procure to be done or executed all
necessary acts, deeds, and documents to give effect to this Agreement as
are reasonably requested by the other Party.
17.3 If any provision of this Agreement is found to be invalid, illegal, or
unenforceable, it shall apply with the minimum modification necessary to
make it legal, valid, or enforceable and the remainder of this Agreement
shall not be affected.
17.4 The Supplier may on 30 days’ written notice to the Client amend this
Agreement and the amendments shall become final and binding on the Parties
unless, during that 30 days’ notice period, the Client objects to the
proposed amendments, in which case the Client may serve 30 days’ written
notice to terminate on the Supplier.
17.5 Nothing in this Agreement shall be construed as establishing or
implying any partnership, joint venture, or any relationship of employment
or of principal and agent, between the Parties and neither Party shall hold
itself out as in any way authorised to bind the other Party.
17.6 The Client shall not assign, subcontract, novate, charge or otherwise
transfer or dispose of this Agreement or any of its rights, benefits or
obligations under it in whole or in part (including by trust) without the
prior written consent of the Supplier.
17.7 Each Party shall be fully responsible and liable for all acts and
omissions of its sub-contractors as if such acts and omissions were
performed by it. The Client shall be fully responsible and liable for the
acts and omissions of all Authorised Users and any Client personnel
involved in the provision of the Services by the Supplier.
17.8 No failure or delay by either Party to exercise any power or right
under this Agreement shall operate as a waiver of it, nor shall any single
or partial exercise of such rights or powers preclude any other or further
exercise of the right or power. Any of the rights or remedies of the
Parties under this Agreement may at any time be enforced separately or
concurrently with any other rights and remedies whether under this Agreement or arising by operation of law with the effect that the rights
and remedies are cumulative and not exclusive of each other.
17.9 A person who is not a Party shall have no rights to enforce any of the
terms and conditions of this Agreement.
17.10 This Agreement and any dispute or claim arising out of or in
connection with it or its subject matter shall be governed by and construed
in accordance with the law of England and Wales and the Parties hereby
submit to the exclusive jurisdiction of the English courts.
Appendix 1
Where the Supplier is processing Personal Data as a data processor of
the Client in the context of the Subscribed Services:
Data Subjects
The Personal Data concerns the following categories of data subjects
(please specify): the Client’s learners of various ages, the Client’s
employees and service providers, and employers of the learners.
Categories of data
The Personal Data transferred concerns the following categories of data:
first and last name, gender, contact information including email address,
date of birth, photograph, identification and unique enrolment number.
Special categories of data (if appropriate)
The Personal Data relates to the following special category of data: racial
or ethnic origin, health data.
Criminal offence data
N/A
Processing operations
The Personal Data will be subject to the following basic processing
activities (please specify): assessing, marking, registering, certifying,
data capturing, quality assuring, and moderating in relation to the
provision of the Subscribed Services.