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 1 Giltspur Street, London EC1A 9DD (“ 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, 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.

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

14.4.7 is a change of control of the other Party.

14.5 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.

14.6 The Client may not register any new Authorised User during the Exit Period.

14.7 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.

14.8 On expiry of the Exit Period, the Client shall forthwith (and shall procure that each Authorised User):

14.8.1 cease using the Subscribed Services; and

14.8.2 destroy and delete the Supplier Materials in its possession any usernames and passwords to the Subscribed Services.

14.9 On expiry of the Exit Period, the Supplier may destroy or otherwise dispose of any of the Client Data.

14.10 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.

14.11 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.