General Conditions for Services – Terms applying to all aspects of eLearning Plus
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO CLAUSE 8 (LIMITATION OF LIABILITY)
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Business Hours: 9.00 am to 5:00pm local UK time, each Business Day;
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5 (Charges and payment).
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.5.
Contract: the contract between eLearning Plus and the Customer for the supply of Services in accordance with these Conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
Customer: the person or firm who purchases Services from eLearning Plus.
Customer Default: has the meaning set out in clause 4.2.
Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Deliverables: the deliverables set out online or in the Order produced by eLearning Plus for the Customer.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Including, without limiting the foregoing, all rights held by eLearning Plus in relation to its products and services such as software, training courses, documentation and policies.
Order: the Customer’s order for Services as set out in eLearning Plus’s order form, online order, engagement letter or any substantially similar eLearning Plus document that states commercial terms on the face of it (individually or a combination, where applicable) whether it incorporates these Conditions by reference or not.
Policies: eLearning Plus’s business policies and/or notices, as amended from time to time.
Privacy Notice: A notice relating to eLearning Plus’s data processing activities which includes information such as the legal basis for processing and retention periods published on eLearning Plus’s website as updated from time to time.
eLearning Plus: A Trading division of The Academy for Business Limited (company number – 11221759) and/or any of Affiliated companies that provide the Services to the Customer from time to time.
eLearning Plus Materials: has the meaning set out in clause 4.1.7.
Services: the services, including the Deliverables, supplied by eLearning Plus to the Customer as set out in the Specification and/or Order (online or offline).
Specification: any documentation (online of offline) provided by eLearning Plus that provides a description of the Services or sets out user instructions for the Services.
Term: has the meaning set out in clause 10.1.
1.2 Interpretation
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3 A reference to writing or written includes faxes.
2. BASIS OF CONTRACT
2.1 The Order (online of offline) constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted from the earlier of (i) when eLearning Plus issues written acceptance of the Order, or (ii) eLearning Plus commencing supply of the Services; at which point and on which date the Contract shall come into existence (Commencement Date), each order being a separate Contract.
2.3 Any samples, drawings, descriptive matter or advertising issued by eLearning Plus, and any descriptions or illustrations contained in eLearning Plus’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 The Order, any Specification, Specific Conditions (if relevant to the Services) and these Conditions, apply to the Contract, and will prevail in the order listed to the extent that there is any conflict between them, to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by eLearning Plus shall not constitute an offer, and is only valid for a period of 30 Business Days from the date stated on the quotation.
2.6 The Contract shall not prevent eLearning Plus from entering into similar agreements with third parties, or from independently developing, using, selling or licensing products and/or services which are similar to those provided under the Contract.
3. SUPPLY OF SERVICES
3.1 eLearning Plus shall supply the Services to the Customer in accordance with the Specification and Order in all material respects.
3.2 eLearning Plus shall use commercially reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Clauses 3.1 and 3.2 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to eLearning Plus’s instructions, or modification or alteration of the Services by any party other than eLearning Plus or eLearning Plus’s duly authorised contractors or agents. If the Services do not conform with clauses 3.1 and 3.2, eLearning Plus will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach.
3.4 eLearning Plus reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and eLearning Plus shall notify the Customer in any such event.
3.5 eLearning Plus warrants to the Customer that the Services will be provided using reasonable care and skill.
3.6 eLearning Plus shall comply with the Policies.
3.7 The Customer accepts and understands that eLearning Plus does not offer any regulated advice, including legal advice or financial advice.
3.8 No services supplied by eLearning Plus will absolve the Customer’s responsibility to comply with any regulations or legal obligations they are subject to.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order and any information it provides are complete and accurate;
4.1.2 co-operate with eLearning Plus in all matters relating to the Services;
4.1.3 provide eLearning Plus, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by eLearning Plus;
4.1.4 provide eLearning Plus with such information and materials as eLearning Plus may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
4.1.6 comply with all applicable laws, including health and safety laws;
4.1.7 keep all materials, equipment, documents and other property of eLearning Plus (eLearning Plus Materials) at the Customer’s premises in safe custody at its own risk, maintain eLearning Plus Materials in good condition until returned to eLearning Plus, and not dispose of or use eLearning Plus Materials other than in accordance with eLearning Plus’s written instructions or authorisation;
4.1.8 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to eLearning Plus’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
4.1.9 comply with any additional obligations as set out in the Specification.
4.2 The Customer shall not:
4.2.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:
4.2.1.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services, Deliverables and/or eLearning Plus Materials;
4.2.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services, Deliverables and/or eLearning Plus Materials;
4.2.2 access all or any part of the Services, Deliverables and/or eLearning Plus Materials in order to build a product or service which competes with eLearning Plus;
4.2.3 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Deliverables available to any third party; or
4.2.4 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Deliverables.
4.3 If eLearning Plus’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
4.3.1 without limiting or affecting any other right or remedy available to it, eLearning Plus shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays eLearning Plus’s performance of any of its obligations;
4.3.2 eLearning Plus shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from eLearning Plus’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.3.3 the Customer shall reimburse eLearning Plus on written demand for any costs or losses sustained or incurred by eLearning Plus arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be as stated in the Order (online or offline).
5.2 eLearning Plus shall be entitled to charge an overtime rate of 50% (fifty per cent) in addition to the then current eLearning Plus daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside Business Hours.
5.3 eLearning Plus shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom eLearning Plus engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by eLearning Plus for the performance of the Services, and for the cost of any materials.
5.4 eLearning Plus reserves the right to increase the Charges by 10% (ten per cent) on an annual basis with effect from each anniversary of the Commencement Date.
5.5 Unless agreed otherwise, eLearning Plus shall invoice the Customer in advance of providing the Services.
5.6 The Customer shall pay each invoice submitted by eLearning Plus (or any eLearning Plus Affiliate as nominated by eLearning Plus):
5.6.1 within 30 days of the date of the invoice;
5.6.2 to any eLearning Plus Affiliate as nominated by eLearning Plus; and
5.6.3 in full and in cleared funds to a bank account nominated in writing by eLearning Plus or by way of direct debit.
5.7 time for payment shall be of the essence of the Contract.
5.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by eLearning Plus to the Customer, the Customer shall, on receipt of a valid VAT invoice from eLearning Plus, pay to eLearning Plus such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.9 If the Customer fails to make a payment due to eLearning Plus under the Contract by the due date, then, without limiting eLearning Plus’s remedies under clause 9, the Customer shall pay any and all associated charges and expense, together with interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.9 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.10 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by eLearning Plus and/or its licensors.
6.2 eLearning Plus grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the Term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
6.4 The Customer grants eLearning Plus a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to eLearning Plus for the term of the Contract for the purpose of providing the Services to the Customer.
7. DATA PROTECTION AND DATA PROCESSING
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and eLearning Plus is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The Customer will promptly notify eLearning Plus if it disagrees with this clause 7.2 and the parties shall negotiate in good faith to agree appropriate terms with respect to Data Protection Legislation.
7.3 Without prejudice to the generality of clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to eLearning Plus for the duration and purposes of the Contract.
7.4 Without prejudice to the generality of clause 7.1, eLearning Plus shall, in relation to any Personal Data processed in connection with the performance by eLearning Plus of its obligations under the Contract:
7.4.1 process that Personal Data only on the written instructions of the Customer (eLearning Plus shall be deemed to be in compliance with this requirement if processing Personal Data for the purpose of the provision of the Services) unless eLearning Plus is required by the laws of any member of the European Union or by the laws of the European Union applicable to eLearning Plus to process Personal Data (Applicable Data Processing Laws). Where eLearning Plus is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, eLearning Plus shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit eLearning Plus from so notifying the Customer;
7.4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
7.4.3 ensure that all employees, agents, consultants and subcontractors who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
7.4.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
7.4.4.1 the Customer or eLearning Plus has provided appropriate safeguards in relation to the transfer;
7.4.4.2 the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
7.4.4.3 eLearning Plus complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
7.4.4.4 eLearning Plus complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
7.4.5 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.4.6 notify the Customer without undue delay on becoming aware of a Personal Data breach;
7.4.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data or eLearning Plus continues to hold the Personal Data in accordance with its internal policies and procedures in relation to Data Protection Legislation and its Privacy Notice; and
7.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 7
7.5 The Customer shall be responsible for its actions and the action of its employees, agents, consultants and subcontractors that result in eLearning Plus being in breach of clause 7.4, and in particular, eLearning Plus shall have no responsibility under 7.4.4 if the Customer or its employees, agents, consultants or subcontractors access the Personal Data from outside of the European Economic Area resulting in the transfer of the Personal Date outside of this territory.
7.6 The Customer consents to eLearning Plus appointing any and all third-party processors of Personal Data as required to perform the Services. eLearning Plus confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business, providing they are compliant with GDPR or incorporating terms which are substantially similar to those set out in this clause 7. As between the Customer and eLearning Plus, eLearning Plus shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 7.
7.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 The limits and exclusions in this clause 8 reflect the insurance cover eLearning Plus has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
8.2 Nothing in the Contract shall limit or exclude eLearning Plus’s liability for:
8.2.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.2.2 fraud or fraudulent misrepresentation;
8.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law; or
8.2.4 any other loss that cannot be excluded pursuant to applicable laws.
8.3 Subject to clause 8.2, eLearning Plus shall not be liable to the Customer or any third party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
8.3.1 loss of profits;
8.3.2 loss of sales or business;
8.3.3 loss of agreements or contracts;
8.3.4 loss of anticipated savings;
8.3.5 loss of damage to goodwill; and
8.3.6 any indirect or consequential loss.
8.4 Subject to clause 8.2 and without prejudice to clause 8.1 and 8.3, eLearning Plus’s total liability to the Customer or any third party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to 100% (one hundred per cent) of the total Charges paid by the Customer and received by eLearning Plus under the Contract, 12 months preceding the date any such liability arises.
8.5 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.6 This clause 8 shall survive termination of the Contract.
9. INDEMNITY
9.1 The Customer shall defend, indemnify and hold harmless eLearning Plus against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Specification, provided that:
9.1.1 the Customer is given prompt notice of any such claim;
9.1.2 eLearning Plus provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
9.1.3 the Customer is given sole authority to defend or settle the claim.
10. TERM AND TERMINATION
10.1 The Term of the Contract shall commence on the Commencement Date and continue for a period as stated on the Order Form (online or offline) (“Initial Term”) and thereafter shall continue to renew for successive periods equivalent to the duration of the Initial Term (each a “Renewal Term”), unless the Customer notifies eLearning Plus in writing that it wishes to cancel renewal no later than 90 days prior the end of the Initial Term or the then current Renewal Term. For the avoidance of doubt, should any such written notice be provided later than 90 days prior to the end of the Initial Term or the then current Renewal Term the Term shall subsist until the end of the subsequent Renewal Term.
10.2 Without affecting any other right or remedy available to it, eLearning Plus may terminate the Contract by giving the Customer one month’s written notice.
10.3 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
10.3.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
10.3.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
10.3.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
10.3.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.4 Without affecting any other right or remedy available to it, eLearning Plus may terminate the Contract with immediate effect by giving written notice to the Customer
10.4.1 if the Customer fails to pay any amount due under the Contract on the due date for payment; or
10.4.2 there is a change of Control of the Customer.
10.5 Without affecting any other right or remedy available to it, eLearning Plus may suspend the supply of Services under the Contract or any other contract between the Customer and eLearning Plus if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 10.3.1 to clause 10.3.3 or eLearning Plus reasonably believes that the Customer is about to become subject to any of them.
11. CONSEQUENCES OF TERMINATION
11.1 On termination or expiry of the Contract:
11.1.1 the Customer shall immediately pay to eLearning Plus:
11.1.1.1 all of eLearning Plus’s outstanding unpaid invoices and interest;
11.1.1.2 in respect of Services supplied but for which no online order or invoice has been submitted; and
11.1.1.3 except where eLearning Plus terminates the Contract, for Services that would have otherwise been provided under the Contract until the end of the Term, eLearning Plus shall submit an online order or invoice, which shall be payable by the Customer immediately on receipt;
11.1.2 the Customer shall return all of eLearning Plus Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then eLearning Plus may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;
11.1.3 all licences granted under the Contract shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Specification; and
11.1.4 each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party.
11.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
11.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.4 In the event that the Customer is in breach of its payment obligations in accordance with clause 5, without prejudice to any other remedy available to eLearning Plus and without any requirement to terminate the Contract, the Customer shall be obligated to immediately pay to eLearning Plus any and all amounts due in accordance with clauses 11.1.1,
12. GENERAL
12.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2 Assignment and other dealings.
12.2.1 eLearning Plus may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
12.2.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of eLearning Plus, which is not to be unreasonably withheld.
12.3 Confidentiality.
12.3.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.3.1.
12.3.2 Each party may disclose the other party’s confidential information:
12.3.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12.3; and
12.3.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.4 Entire agreement.
12.4.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.4.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
12.4.3 Nothing in this clause shall limit or exclude any liability for fraud.
12.5 Variation.
12.5.1 eLearning Plus may revise these General Conditions from time to time in the following circumstances:
12.5.1.1 changes in how eLearning Plus accept payment from the Customer;
12.5.1.2 changes in relevant laws and regulation;
12.5.1.3 as otherwise stated in the Contract; and
12.5.1.4 for any other reason.
12.5.2 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is expressly notified to the Customer by eLearning Plus.
12.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.8 Notices.
12.8.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number
12.8.2 Any notice or other communication shall be deemed to have been received:
12.8.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
12.8.2.2 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or,
12.8.2.3 if sent by fax, on the next Business Day after transmission.
12.8.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
12.9 Third party rights
12.9.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.9.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
12.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Specific Conditions for Online Services
THESE SPECIFIC CONDITIONS SHALL APPLY IN ADDITION TO THE GENERAL CONDITIONS FOR SERVICES TO THE EXTENT THAT ELEARNING PLUS SUPPLY THE CUSTOMER WITH SOFTWARE AS A SERVICE OR OTHER APPLICABLE ONLINE SERVICES. CAPITALISED TERMS THAT ARE UNDEFINED IN THESE CONDITIONS ARE DEFINED IN THE GENERAL CONDITIONS FOR SERVICES.
1. DEFINITIONS
Administrator: An Authorised User with administration rights of a Software as specified in the Order or in the account settings of a Software
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Specification, as further described in clause 3.2.4.
Customer Data: the data inputted by the Customer, Authorised Users, or eLearning Plus on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Software: the online software applications as a service provided by eLearning Plus as part of the Services.
Training Library: A library of e-learning courses that can be made available to an Authorised User or in an Order.
User Subscriptions/Licences: the maximum number of user subscriptions/licences purchased by the Customer as stated in the Order, which entitle Authorised Users to access and use the Services and the Specification in accordance with the Contract.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2. ONLINE SERVICES
2.2 eLearning Plus may provide to the Customer, from time to time:
2.2.1 Software;
2.2.2 Training Library; and/or
2.2.3 other online services and/or products as developed by eLearning Plus and described in the Specification, online ecommerce system and/or Order Form.
3. USER SUBSCRIPTIONS/LICENCES
3.1 Subject to the Customer paying the Charges in accordance the terms of the Contract and the obligations together with the restrictions contained therein, eLearning Plus hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Specification during the Term solely for the Customer’s internal business operations.
3.2 In relation to the Authorised Users, the Customer undertakes that:
3.2.1 the maximum number of Authorised Users that it authorises to access and use the Services and the Specification shall not exceed the number of User Subscriptions/Licences it has purchased from time to time;
3.2.2 it will not allow or suffer any User Subscription/Licence to be used by more than one individual Authorised User.
3.2.3 each Authorised User shall keep a secure password for his use of the Services and Specification, that each Authorised User shall keep his password confidential;
3.2.4 it shall maintain a written, up to date list of current Authorised Users and provide such list to eLearning Plus within 5 Business Days of eLearning Plus’s written request at any time or times;
3.2.5 it shall permit eLearning Plus or eLearning Plus’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and eLearning Plus’s data processing facilities to audit compliance with the Contract/Online Order. Each such audit may be conducted no more than once per quarter, at eLearning Plus’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
3.2.6 if any of the audits referred to in clause 3.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to eLearning Plus’s other rights, the Customer shall promptly disable such passwords and eLearning Plus shall not issue any new passwords to any such individual; and
3.2.7 if any of the audits referred to in clause 3.2.5 reveal that the Customer has underpaid Charges to eLearning Plus, then without prejudice to eLearning Plus’s other rights, the Customer shall pay to eLearning Plus an amount equal to such underpayment as calculated in accordance with the Charges or eLearning Plus’s then current charges within 10 Business Days of the date of the relevant audit.
3.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2 facilitates illegal activity;
3.3.3 depicts sexually explicit images;
3.3.4 promotes unlawful violence;
3.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.3.6 is otherwise illegal or causes damage or injury to any person or property;
and eLearning Plus reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
4. SERVICE AVAILABILITY AND SUPPORT
4.1 eLearning Plus shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for maintenance (planned and unplanned) which shall be carried out outside of Business Hours, provided that eLearning Plus has used commercially reasonable endeavours to give the Customer notice in advance of unplanned maintenance.
4.2 eLearning Plus does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Specification and/or the information obtained by the Customer through the Services will meet the Customer’s requirements.
4.3 eLearning Plus is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Specification may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.4 eLearning Plus will, as part of the Services, where included in the Order (online of offline) and in part consideration of the Charges, provide the Customer with eLearning Plus’s standard customer support services (response within 24 hours in normal Business Hours). The Customer may purchase enhanced support services separately at eLearning Plus’s then current rates.
5. CUSTOMER DATA
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2 eLearning Plus shall follow its archiving procedures for Customer Data, as may be notified to the Customer from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against eLearning Plus shall be for eLearning Plus to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by eLearning Plus in accordance with the archiving procedure. eLearning Plus shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by eLearning Plus to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.
6. THIRD PARTY PROVIDERS
The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. eLearning Plus makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not eLearning Plus. eLearning Plus recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. eLearning Plus does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
7. INDEMNITY
7.1 eLearning Plus shall defend the Customer, its officers, directors and employees against any claim that the Services or Specification infringes any United Kingdom patent effective as of the Commencement Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
7.1.1 eLearning Plus is given prompt notice of any such claim;
7.1.2 the Customer provides reasonable co-operation to eLearning Plus in the defence and settlement of such claim, at eLearning Plus’s expense; and
7.1.3 eLearning Plus is given sole authority to defend or settle the claim.
7.2 In the defence or settlement of any claim, eLearning Plus may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
7.3 In no event shall eLearning Plus, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
7.3.1 a modification of the Services or Specification by anyone other than eLearning Plus; or
7.3.2 the Customer’s use of the Services or Specification in a manner contrary to the instructions given to the Customer by eLearning Plus; or
7.3.3 the Customer’s use of the Services or Specification after notice of the alleged or actual infringement from eLearning Plus or any appropriate authority.
7.4 The foregoing states the Customer’s sole and exclusive rights and remedies, and eLearning Plus’s (including eLearning Plus’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
8. INSTRUCTIONS
8.1 eLearning Plus is permitted to accept instructions from Administrators or other representatives of the Customer as eLearning Plus, taking reasonable measures, believes to represent the Customer. eLearning Plus shall have no liability to the Customer in act or refusing to act on such instructions.
