Pearltech Contractual Terms and Conditions
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
means the date on which the Licensed Programs are accepted (or deemed to be accepted) by the Licensee pursuant to Clause 6;
shall mean online advertisements.
means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in the United Kingdom;
means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to, or in connection with, this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such).
means the delivery date specified in the deal particulars or such extended date as may be agreed by the Licensee;
shall means advertisements promulgated by any display networks.
means such computer equipment (including mobile devices where appropriate) as may be specified by the Licensee from time to time;
“Intellectual Property Rights”
- (a) any and all rights in any copyrights, patents, trademarks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trademarks and service marks, database rights, know-how, rights in designs and inventions;
- (b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a);
- (c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and
- (d) the right to sue for past infringements of any of the foregoing rights;
means the licence granted by the Licensor pursuant to sub-Clause 2.1;
means the fee for the Licence provided
“Licensed Program Materials”
means, collectively, the Licensed Programs, the Program Documentation and the Media;
means the computer software programs of the Licensor and all releases and versions thereof;
means the media or URL on which the Licensed Programs and the Program Documentation are stored or printed as provided to the Licensee by the Licensor;
shall all mean Pay Per Click advertising.
“PPV”, “PPM”, “CPA”, “CPM”
shall all mean Cost Per View advertising.
means the operating manuals, user instructions, technical literature and all other related materials in eye-readable form supplied to the Licensee by the Licensor for aiding the use and application of the Licensed Programs;
shall mean Search Engine Optimisation.
shall mean all forms of social media such as Facebook, Google+, LinkedIn etc.
the specification of the Licensed Programs describing the facilities and functions thereof, a copy of which is annexed to this Agreement; and
shall mean advertising on Youtube.com, Vimeo.com or any other similar public or private video website.
shall include all forms of viral advertising, stealth advertising and advertising using internet memes.
“Use the Licensed Program Materials”
means to read any or all parts of the Licensed Programs from any form of storage media, to load the Licensed Programs on the Equipment for the storage and/or running of the Licensed Programs, to read and possess the Program Documentation in conjunction with the use of the Licensed Programs and to possess the Media.
1.2 Unless the context otherwise requires, each reference in this Agreement to:
“writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
“this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
a Schedule is a schedule to this Agreement;
a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule; and
a "Party" or the "Parties" refer to the parties to this Agreement.
1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 Words importing persons include firms, companies and corporations and vice versa.
2. Grant of Licence
2.1 The Licensor grants to the Licensee a non-exclusive licence to Use the Licensed PEARL Software as a Service (SaaS) Program Materials subject to the terms and conditions contained in this Agreement.
2.2 The Licensee shall use the licensed PEARL Materials for processing its own data for its own internal business purposes only.
2.3 Apart from a 14 days’ grace period from enrolment date during which the licensee may delete learners without incurring cost, under no circumstances may you delete or reassign a learner’s login details to a different learner.
2.4 A licensee may only use PEARL content within the PEARL LMS platform and may not print, copy or duplicate our training materials for classroom delivery or any other training activity outside of the PEARL platform (without express consent).
2.5 While your PEARL account is up to date (not in arrears) you may:
Use PEARL to register new learners;
You may charge anyone for using training materials on PEARL but it must be made clear that the contract is between you and your client and not between PEARL and your client. For the avoidance of doubt such training materials are not ‘Confidential Information’
2.6 PEARL’s functionality, the content and the services we provide in connection with PEARL are as described in the product specifications schedule.
2.7 Except to the extent that any such term is to be treated as being included by virtue of the Consumer Rights Act 2015 and cannot be excluded, it is not a term of your agreement with us that PEARL has any functionality that is not described within the Software Licence Agreement.
2.8 You must not use PEARL in connection with any offence, fraudulent activity or in contravention of SFA funding guidelines.
2.9 Subject to the Consumer Rights Act 2015, we reserve the right to may remove any functionality from PEARL. If we choose to remove functionality we will advise you in writing 30 days in advance and consult with you on changes before taking final action.
2.10 We warrant that we have exercised reasonable care and reasonable skill in creating PEARL, and that we will provide our services with reasonable care and reasonable skill, but it is not a term of your agreement with us that we will achieve any particular outcome with respect to learner completions.
2.11 PEARL may require the installation of browser software and software updates on your device, and the exchange of information between your device and our systems, and you agree to this.
2.12 The use of the Licensed PEARL Materials is restricted to use as per the terms of this contract save that:
if the Licensed PEARL Materials cannot be used because it is inoperable for any reason then the Licence shall be temporarily extended without additional charge to use until such failure has been remedied;
2.13 The Licence shall not be deemed to extend to any programs or materials of the Licensor other than the Licensed Program Materials unless specifically agreed to in writing by the Licensor.
2.14 The Licensee acknowledges that it is licensed to use the Licensed Program Materials only in accordance with the express terms of this Agreement and not further or otherwise.
2.15 These written terms, and any which have to be treated as being included by virtue of the Consumer Rights Act 2015 and/or the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and/or the E-Commerce Regulations, form the whole agreement you have with us., and you confirm and warrant that, apart from any trial of PEARL you may have had, you have not relied on anything else when deciding to enter into that agreement.
2.16 We may close your PEARL account; If any of the following events occur we may, at our absolute discretion, close your app account and prevent your use of the app or your projects without any liability to you:
If you fail to pay any monies due under these terms by the due date;
If you materially breach any of these terms in any way;
If you use PEARL or your projects in any way which, in our reasonable opinion, is in breach of these terms;
If a third party threatens to start legal proceedings against us unless we prevent the use of the PEARL in connection with one or more of your projects;
If you challenge or dispute the subsistence or validity of any title, right, or interest to or in the PEARL (or the persons who have licensed any parts of PEARL to us)
3. Obligations of the Licensor in its marketing services provider capacity
3.1 The licensor may use the following means to promote the products or services of the Company as agreed between the Parties from time to time:
- Text Ads
- Emails ads
- Image Ads
- PPC Ads
- PPV Ads
- Social Media Advertising
- Advertisement on Search Engine [Google/Bing/Yahoo]
- Viral Advertising
- Video Advertising
- Radio Advertising
- TV Advertising
- Magazine Advertising
- Billboard Advertising
- Word of Mouth Advertising
- Public outreach
4.1 The Fees shall be paid by the Licensee as provided in the quote.
4.2 The combined Fees and other charges payable under this Agreement are exclusive of any applicable VAT and other sales tax which shall be payable by the Licensee at the rate and in the manner prescribed by law against submission of a valid tax invoice.
4.3 All scheduled payments by the Licensee under this agreement as outlined in the payment schedule must be paid before each payment date after receipt by the Licensee of the Licensor's invoice therefor. Within 10 working days the licensee will produce a purchase order number to cover the full value of the agreement.
4.4 The Licensor shall have the right to charge interest on overdue invoices at the rate of 4% per month above the Bank of England base rate (interest to be compounded monthly), calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment. Where the licensee is experiencing unforeseen payment delays or there is an invoicing inaccuracy they may request in writing an extension and the licensor has the exclusive option to grant this extension or otherwise.
5. Delivery and Installation
Upon signing of this contract the Licensor shall deliver the Licensed Pearl Materials to the Licensee and customise the setup of the Licensed Program within 30 days of signing of this contract. The Licensed PEARL Program so delivered shall consist of unlimited administration and tutor logins for which the Licensee will not be charged. Access to the PEARL programme shall be via a personalised domain.
6. Testing and Acceptance
6.1 The Licensee shall supply to the Licensor immediately after installation of the Licensed Programs, test data/users which in the reasonable opinion of the Parties is suitable to test whether the Licensed Programs are in accordance with the Specification, together with the results expected to be achieved by processing such test data/users using the Licensed Programs. The Licensor shall not be entitled to object to such test data or expected results unless the Licensor can demonstrate to the Licensee that they are not suitable for testing the Licensed Programs as aforesaid, in which event the Licensee shall make any reasonable amendments to such test data and expected results as the Licensor may request. Subject to the receipt of such test data and expected results, the Licensor shall process such data, in the presence of the Licensee or its authorised representative, on the Equipment using the Licensed Programs by way of acceptance testing within 10 days after such receipt at a time mutually convenient to both Parties.
6.2 The Licensee shall accept the Licensed Programs immediately after the Licensor has demonstrated that the Licensed Programs have correctly processed the test data by achieving the expected results.
6.3 In the event of failure of the Licensed Programs to pass the tests referred to in sub-Clause 6.1 the Licensor shall, not later than 5 Business Days following notification of the relevant failure, at its own expense correct the errors in the Licensed Programs and notify the Licensee that it is ready to repeat the tests. Such tests shall be repeated within 5 Business Days after such notice at a time mutually convenient to both Parties.
6.4 In the event of failure of the Licensed Programs to pass the repeat tests referred to in sub-Clause 7.3, the Licensee shall be entitled to terminate this Agreement or, by notice to the Licensor within 5 Business Days require the Licensor to correct the errors in the Licensed Programs. Where such notice is provided, the provisions of sub-Clause 6.3 shall, mutatis mutandis, apply.
6.5 Notwithstanding the above, installation of the Licensed Programs shall be deemed to be completed and the Licensed Programs shall be deemed to be accepted upon successful execution of the tests referred to above or when the Licensed Programs have been put into operational use, whichever is the earlier. The Acceptance Date shall be the date on which acceptance is deemed to have taken place. The Licensee will deem to have accepted installation of the Licensed programme once the client testing phase has been passed and been accepted by the Licensee as specified under the heading “Client Testing”.
7. Restrictions on Copying
7.1 The Licensee may not make copies of the Licensed Programs or of the learning materials included within the PEARL platform. All learning materials and coding contained within the PEARL LMS remain the property of the Licensor.
7.2 No copies may be made of the Program Documentation without the prior written consent of the Licensor.
8. Restrictions on Alterations
8.1 The Parties acknowledge that the Licensed Programs may be modified from time to time by the Licensor to integrate and operate with third party software.
8.2 The Licensee undertakes not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Licensed Program Materials in any manner without the Licensor's prior written consent.
8.3 Notwithstanding sub-Clause 8.2, in the case of reverse analysis where permitted by applicable law, the Licensee may incidentally decompile the Licensed Programs only if it is essential to do so to achieve interoperability of the Licensed Programs with another software program or hardware (“Permitted Purpose”). Such decompilation shall only be permitted provided the information obtained by the Licensee thereby is only used for the Permitted Purpose and is not disclosed or communicated to any third party without the Licensor's prior written consent and is not used to create any software which is substantially similar to the Licensed Program Materials. No use in any manner which would be restricted by copyright shall be permitted.
8.4 Notwithstanding sub-Clause 8.3, the Licensee shall first consult the Licensor regarding any data the Licensee requires to achieve interoperability or to deduce underlying ideas and principles. The Licensor shall consider making the same available to the Licensee (without the Licensee having to rely on sub-Clause 8.3) subject to the restrictions on disclosure set out in sub-Clause 9.3.
9. Security and Control
The Licensee shall during the continuance of the Licence:
9.1 Effect and maintain adequate security measures to safeguard the Licensed Program Materials from access or use by any unauthorised person;
9.2 Retain the Licensed Program Materials and all digital copies (if provided) thereof under the Licensee's effective control; and
9.3 Maintain a full and accurate record of the Licensee's copying and disclosure of the Licensed Program Materials and shall produce such records to the Licensor on request from time to time.
10. Licensor’s Proprietary and Intellectual Property Rights
10.1 The Licensed Program Materials and all Intellectual Property Rights of whatever nature which now or in the future subsist in the Licensed Program Materials are and shall remain the property of the Licensor.
10.2 The Licensee shall notify the Licensor immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the Licensed Program Materials by any person.
11. Intellectual Property Claims and Disputes
11.1 The Licensor shall defend at its own expense any claim brought against the Licensee alleging that the Use of the Licensed Program Materials infringes the Intellectual Property Rights of a third party (“Intellectual Property Claim”) and the Licensor shall pay all costs and damages awarded or agreed to in settlement of an Intellectual Property Claim provided that the Licensee:
Furnishes the Licensor with prompt written notice of the Intellectual Property Claim;
Provides the Licensor with reasonable assistance in respect of the Intellectual Property Claim; and
Gives to the Licensor the sole authority to defend or settle the Intellectual Property Claim.
11.2 If, in the Licensor's reasonable opinion, the use of the Licensed Program Materials are or may become the subject of an Intellectual Property Claim then the Licensor shall either:
Obtain for the Licensee the right to continue using the Licensed Program Materials which are the subject of the Intellectual Property Claim; or
Replace or, with the written consent of the Licensee, modify the Licensed Program Materials which are the subject of the Intellectual Property Claim so they become non-infringing.
11.3 If the remedies set out in sub-Clause 12.2 are not in the Licensor's opinion reasonably available, then the Licensee shall return the Licensed Program Materials which are the subject of the Intellectual Property Claim and the Licensor shall refund to the Licensee the corresponding portion of the Licence Fee, as normally depreciated, whereupon this Agreement shall immediately terminate.
11.4 The Licensor shall have no liability for any Intellectual Property Claim resulting from the Use of the Licensed Program Materials in combination with any equipment (other than the Equipment) or programs not supplied or approved by the Licensor or any modification of any item of the Licensed Programs by a party other than the Licensor or its authorised agent.
12.1 The Licensor warrants that following the Acceptance Date:
The Licensed Programs will provide the facilities and functions set out in the Specification when properly used;
The training provided will provide adequate instructions to enable the Licensee to make proper use of such facilities and functions; and
The Licensed Programs will operate fully with any internet enabled device, laptop, tablet or smartphone.
12.2 The Licensor warrants that in fulfilling its obligations under this Agreement it will attain standards of care and skill commensurate with those currently prevailing in the software industry and that all personnel will have qualifications and experience appropriate for the tasks to which they are allocated.
12.3 The Licensor shall ensure that it and its servants, agents and subcontractors take all reasonable precautions to ensure that no known viruses, spyware or other malware for which detection and antidote software is generally available are coded or introduced into the Licensed Programs.
12.4 If the Licensor receives written notice from the Licensee after the Acceptance Date of any breach of the said warranties, then the Licensor shall at its own expense and within 14 Business Days after receiving such notice remedy the defect or error in question.
12.5 When notifying a defect or error the Licensee shall (so far as it is able) provide the Licensor with a documented example of such defect or error. This should include examples of usernames, URLs, screenshots, device information and workflows followed to generate the defect or error.
12.6 The said warranties above shall be subject to the Licensee complying with its obligations under the terms of this Agreement and shall also be subject to the limits and exclusions of liability set out in Clause 13. The said warranties shall not apply to the extent that any defect in the Licensed Programs arose or was exacerbated as a result of:
Incorrect use, operation or corruption of the Licensed Programs;
Any unauthorised modification or alteration of the Licensed Programs; or
Use of the Licensed Programs with other software or on equipment with which it is incompatible.
12.7 To the extent permitted by applicable law, the Licensor:
Disclaims all other warranties with respect to the Licensed Programs, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result;
Makes no warranty that the Licensed Programs are error free or that the use thereof will be uninterrupted and the Licensee acknowledges and agrees that the existence of such errors shall not constitute a breach of this Agreement. In the event of errors being identified the Licensor warrants to expedite remedy of errors identified;
Does not give any warranty in respect of third party products. The Licensor will pass on to the Licensee the benefit of any third party warranty supplied by a third party manufacturer or supplier.
13.1 The Licensor shall, during the term of this Agreement, maintain employer's liability, third party liability, product liability and professional negligence insurance cover in respect of its liabilities arising out of or connected with this Agreement, such cover to be to a minimum value of £1,000,000 and with an insurance company of repute. The Licensor shall on request supply copies of the relevant certificates of insurance to the Licensee as evidence that such policies remain in force. The Licensor undertakes to use reasonable commercial efforts to pursue claims under such insurance policies.
13.2 The Licensor shall indemnify the Licensee for personal injury or death caused by the negligence of its employees in connection with the performance of their duties under this Agreement or by defects in any product supplied pursuant to this Agreement.
13.3 The Licensor will indemnify the Licensee for direct damage to tangible property caused by the negligence of its employees in connection with the performance of their duties under this Agreement or by defects in any product supplied pursuant to this Agreement. The Licensor's total liability under this clause shall be limited to the in-year cost of licence fees for PEARL for any one event or series of connected events. This will be capped at the lower of £10,000 or the licence fee paid during the year in which the claim relates.
13.4 Save in respect of claims for death or personal injury arising from the Licensor's negligence, in no event will the Licensor be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Licensor whether such damages were reasonably foreseeable or actually foreseen.
13.5 Except as provided above in the case of personal injury, death and damage to tangible property, the Licensor's maximum liability to the Licensee under this Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to the greater of:
The sum for which the Licensor carries comprehensive insurance cover pursuant to sub-Clause 13.1; or
A sum equivalent to the price paid to the Licensor for the products or services that are the subject of the Licensee's claim, plus damages limited to 10% of the same amount for any additional costs directly, reasonably and necessarily incurred by the Licensee in obtaining alternative products and/or services.
13.6 The Parties acknowledge and agree that the limitations contained in this Clause 13 are reasonable in the light of all the circumstances.
13.7 The Licensee's statutory rights as a consumer (where the Licensee is a consumer and not acting in the course of business) are not affected. All liability that is not expressly assumed in this Agreement is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. For the purposes of this clause, references to the “Licensor” includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.
14.1 Both Parties undertake that, except as provided by sub-Clause 14.2 or as authorised in writing by the other Party, they shall at all times during the continuance of this Agreement and for 12 months after its termination:
keep confidential all Confidential Information;
not disclose any Confidential Information to any other party;
not use any Confidential Information for any purpose other than as contemplated by this Agreement;
not make any copies of, record in any way or part with possession of any Confidential Information; and
ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 14.
14.2 Subject to sub-Clause 14.3, either Party may disclose any Confidential Information to:
any of their sub-contractors, substitutes, or suppliers;
any party appointed to maintain the Equipment on which the Licensed Programs are being used (within the terms of the Licence);
any governmental or other authority or regulatory body; or
any of their employees or officers or those of any party described in sub-Clauses 14.2.1 to 14.2.3;
14.3 Disclosure under sub-Clause 14.2 may be made only to the extent that is necessary for the purposes contemplated by this Agreement, or as required by law. In each case the disclosing Party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body described in sub-Clause 14.2.3 or is an authorised employee or officer of such a body, the disclosing Party must obtain and submit to the other Party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
14.4 Either Party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that Party.
14.5 When using or disclosing Confidential Information under sub-Clause 14.4, the disclosing Party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
14.6 The provisions of this Clause 14 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
15.1 This contract is a for a fixed volume of services within a fixed term. The Licensee may decide not to renew the services and terminate the agreement from the first anniversary of the marketing services beginning by giving one months written notice to the Licensor.
15.2 The Licensor may terminate the Licence forthwith on giving notice in writing to the Licensee if:
The Licensee commits any serious breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 15 Business Days after the receipt of a request in writing from the Licensor to do so, to remedy the breach; or
The Licensee permanently discontinues the use of the Licensed Program Materials.
15.3 Save as expressly provided in sub-Clause 15.2 or elsewhere in this Agreement the Licence may not be terminated.
15.4 Upon the termination of the Licence, the Licensee shall immediately return to the Licensor the Licensed PEARL Program Materials and all copies of the whole or any part thereof.
15.5 Where destruction is required by the Licensor under sub-Clause 15.4, the Licensee shall certify in writing to the Licensor that they have destroyed the Licensed Program Materials.
15.6 Notwithstanding the provisions of sub-Clause 15.4, the Licensee may extract and store from the Licensed Programs any data belonging to the Licensee and store the same on separate media for continuity purposes.
15.7 Any termination of the Licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
16. Data Protection
Clauses 30-33 will apply to this Agreement in respect of compliance with Data Protection Laws.
17. Force Majeure
17.1 Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
17.2 If such circumstances continue for a continuous period of more than 30 days, either Party may terminate this Agreement by written notice to the other Party.
18. No Agency or Partnership
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
20.1 All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
20.2 Notices shall be deemed to have been duly given:
when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
21. Successors and Assignees
21.1 This Agreement shall be binding upon, and inure to the benefit of the Parties and their respective successors and permitted assignees, and references to a Party in this Agreement shall include its successors and permitted assignees.
21.2 In this Agreement references to a Party include references to a person:
who for the time being is entitled (by assignment, novation or otherwise) to that Party's rights under this Agreement (or any interest in those rights); or
who, as administrator, liquidator or otherwise, is entitled to exercise those rights, and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that Party. For this purpose, references to a Party's rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.
22. Nature of the Agreement
22.1 This Agreement is personal to the Parties and neither Party may assign, mortgage, or charge any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the other Party, such consent not to be unreasonably withheld.
22.2 Notwithstanding the provisions of sub-Clause 22.1, either Party may assign this Agreement to any acquirer of all or of substantially all of that Party's equity securities, assets or business relating to the subject matter of this Agreement or to any entity controlled by, that controls, or is under common control with a Party to this Agreement. Any attempted assignment in violation of this Clause will be void and without effect.
22.3 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
22.4 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement & the adjoining Service Level Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
22.5 No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.
24. Time of the Essence
Time shall be of the essence in this Agreement as regards any time, date or period mentioned in this Agreement or subsequently substituted as a time, date or period by agreement in writing between the Parties.
25. Costs and Expenses
Each Party shall bear its own legal costs and other costs and expenses arising in connection with the drafting, negotiation, execution and registration (if applicable) of this Agreement.
Where either Party has incurred any liability to the other Party, whether under this Agreement or otherwise, and whether such liability is liquidated or unliquidated, each Party may not set off the amount of such liability against any sum that would otherwise be due to the other Party under this Agreement.
27. Third Parties
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from such Act.
28. Dispute Resolution
28.1 This Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with the laws of England and Wales notwithstanding the conflict of law provisions and other mandatory legal provisions save that:
The Licensor shall have the right to sue to recover its fees in any jurisdiction in which the Licensee is operating or has assets; and
The Licensor shall have the right to sue for breach of its Intellectual Property Rights and other proprietary information and trade secrets (collectively “IPR”) (whether in connection with this Agreement or otherwise) in any jurisdiction where it believes that infringement or a breach of this Agreement relating to its IPR might be taking place. For the avoidance of doubt, the place of performance of this Agreement is agreed by the parties to be the United Kingdom.
28.2 Each Party recognises that the other Party's business relies upon the protection of its IPR. In the event of a breach or threatened breach of IPR, the other Party will be caused irreparable damage and such other Party may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its IPR.
28.3 With respect to all other disputes which are not IPR related pursuant to sub-Clauses 28.1 and 28.2, the following procedures in sub-Clauses 28.3 to 28.6 shall apply. Where there is a dispute the aggrieved Party shall notify the other Party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other Party. A representative from senior management of each of the Parties (“representatives”) shall meet in person or communicate by telephone within 5 Business Days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective Parties. The representatives shall produce a report about the nature of the dispute in detail to their respective boards and if no agreement is reached on corrective action, then the chief executives of each Party shall meet in person or communicate by telephone, to facilitate an agreement within 5 Business Days of a written notice by one to the other. If the dispute cannot be resolved at board level within a further 5 Business Days, or if the agreed upon completion dates in any written plan of corrective action are exceeded, either Party may seek its legal remedies as provided below.
28.4 If the Parties cannot resolve a dispute in accordance with the procedure in sub-Clause 28.3, then they shall with the assistance of the Centre for Effective Dispute Resolution (“CEDR”), seek to resolve the dispute or difference amicably by using an Alternative Dispute Resolution (“ADR”) procedure acceptable to both Parties before pursuing any other remedies available to them. If either Party fails or refuses to agree to or participate in the ADR procedure or if in any event the dispute or difference is not resolved to the satisfaction of both Parties within 15 Business Days after it has arisen, the matter shall be settled in accordance with the procedure below.
28.5 If the Parties cannot resolve the dispute by the procedure set out above, the Parties shall irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for the purposes of hearing and determining any dispute arising out of this Agreement as confirmed under Clause 29.
29. Law and Jurisdiction
29.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
29.2 Subject to the provisions of Clause 28, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
30. Data Protection - Definitions and Interpretation
30.1 Definitions and Interpretation. Unless set out below and unless the content otherwise requires, a term defined elsewhere in the Agreement has the same meaning in this clause.
“Agreement” shall mean this Agreement.
The terms Data Controller, Data Processor, Data Subject, Process/Processing and Special Categories of Personal Data shall have the same meaning as described in the Data Protection Laws.
"EEA" means the European Economic Area.
"Personal Data Breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed, as well as any breach of the security requirements set out in paragraph 31.2.4.
Personal Data means the data set out in clauses 30-33 and any other personal data, as defined in the Data Protection Laws, Processed by the Data Processor on behalf of the Data Controller pursuant to or in connection with the Agreement.
Standard Contractual Clauses means the standard contractual clauses, as agreed by the European Commission, for the transfer of Personal Data to processors established in third countries which do not ensure an adequate level of protection, as updated, amended replaced or superseded from time to time by the European Commission.
"Supervisory Authority" means (a) an independent public authority which is established by a Member State pursuant to Article 51 GDPR; and (b) any similar regulatory authority responsible for the enforcement of Data Protection Laws.
31. Data Processing Terms
31.1 The Data Controller hereby appoints the Data Processor in relation to the Processing of Personal Data under the Agreement and the parties agree to act in accordance with their respective obligations under clauses 30-33.
31.2 The Data Processor agrees that it shall undertake the obligations set out in this paragraph 31.2.
It shall only process the Personal Data relating to the categories of Data Subjects for the purposes of the Agreement and for the specific purposes in each case as set out in clauses 30-33 and shall not Process, transfer, modify, amend or alter the Personal Data or disclose or permit the disclosure of the Personal Data to any third party other than in accordance with the terms of the Agreement and the Data Controller's documented instructions from time to time and for the sole purpose of fulfilling its obligations under the Agreement, unless Processing is required by Applicable Laws to which the Data Processor is subject, in which case the Data Processor shall to the extent permitted by Applicable Laws inform the Data Controller of that legal requirement before Processing that Personal Data.
It shall take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to the Personal Data, ensuring in each case that access is strictly limited to those individuals who need to access the relevant Personal Data, as strictly necessary for the purposes set out in paragraph 31.2.1 above in the context of that individual's duties to the Data Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, it shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate the measures referred to in Article 32(1) of the GDPR.
In assessing the appropriate level of security, it shall take account in particular of the risks that are presented by Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Personal Data transmitted, stored or otherwise Processed.
It shall notify the Data Controller without undue delay and in any case within 24 hours, upon becoming aware of or reasonably suspecting a Personal Data Breach, providing the Data Controller with sufficient information which allows the Data Controller to meet any obligations to report a Personal Data Breach under the Data Protection Laws. Such notification shall as a minimum:
communicate the name and contact details of the Data Processor's data protection officer or other relevant contact from whom more information may be obtained;
describe the likely consequences of the Personal Data Breach; and
describe the measures taken or proposed to be taken to address the Personal Data Breach.
It shall co-operate with the Data Controller and take such reasonable commercial steps as are directed by the Data Controller to assist in the investigation, mitigation and remediation of each Personal Data Breach.
It shall co operate as requested by the Data Controller to enable the Data Controller to comply with any exercise of rights by a Data Subject under any Data Protection Laws and, taking into account the nature of the Processing, it shall assist the Data Controller by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Data Controller's obligation to respond to requests for exercising Data Subject rights laid down in GDPR.
It shall promptly, and in any case within 5 Working Days, notify the Data Controller if it receives a request from a Data Subject under any Data Protection Laws in respect of the Personal Data.
It shall provide reasonable assistance to the Data Controller with any data protection impact assessments which are required under Article 35 GDPR and with any prior consultations to any supervisory authority of the Data Controller which are required under Article 36 GDPR, in each case solely in relation to Processing of Personal Data by the Data Processor on behalf of the Data Controller under this Agreement, and taking into account the nature of the Processing and information available to the Data Processor.
31.3 Where the Data Processor receives a request for disclosure of Personal Data from any government agency or regulator or under any statutory requirement (or is otherwise required or wishes to make a disclosure to a government agency or regulator or under any statutory requirement), it shall advise the Data Controller, in writing, of the request as soon as possible and prior to any disclosure, unless prohibited from doing so by law.
31.4 The Data Processor shall not authorise any third party and/or sub-contractor to Process the Personal Data ("Sub-processor") other than with the prior written consent of the Data Controller, which the Data Controller may refuse in its absolute discretion and in each case subject to the Data Processor:
providing the Data Controller with full details of the Processing to be undertaken by the each Sub-processor;
carrying out adequate due diligence on each Sub-processor to ensure that it is capable of providing the level of protection for the Personal Data as is required by clauses 30-33 including without limitation sufficient guarantees to implement appropriate technical and organisational measures in such a manner that Processing will meet the requirements of GDPR and clauses 30-33;
including terms in the contract between the Data Processor and each Sub-processor which are the same as those set out in clauses 30-33. Upon request, the Data Processor shall provide a copy of its agreements with Sub-processors to the Data Controller for its review;
insofar as that contract involves a transfer of the Personal Data outside of the EEA, incorporate the Standard Contractual Clauses into the contract between the Data Processor and each Sub-processor, or procure that each Sub-processor enter into such a contract with the Data Controller, in each case in order to ensure the adequate protection of the transferred Personal Data; and
remain fully liable to the Data Controller for any failure by each Sub-processor to fulfil its obligations in relation to the Processing of any Personal Data Processed under the Agreement.
31.5 The Data Processor shall not under any circumstances Process any Personal Data outside the EEA unless authorised in writing to do so by the Data Controller (which consent shall be subject to Data Processor agreeing details of the transfer with the Data Controller and Data Processor and its sub-processor complying with the Data Controller’s IT security requirements as applicable). When requested by the Data Controller, the Data Processor shall promptly enter into (or procure that any relevant Sub-processor of the Data Processor enters into) an agreement with the Data Controller including or on such provisions as the Standard Contractual Clauses and/or such variation as the Data Controller might require, in respect of any processing of Personal Data outside of the EEA, which terms shall take precedence over those in clauses 30-33.
31.6 The Data Processor shall make available to the Data Controller on request all information necessary to demonstrate compliance with clauses 30-33 and allow for and contribute to audits, including inspections by the Data Controller or another auditor mandated by the Data Controller of any premises where the Processing of Personal Data Processed under this Agreement takes place, in order to assess compliance with clauses 30-33. The Data Processor shall permit the Data Controller or another auditor mandated by the Data Controller to inspect, audit and copy any relevant records, processes and systems in order that the Data Controller may satisfy itself that the provisions of clauses 30-33 are being complied with. The Data Processor shall provide full co operation to the Data Controller in respect of any such audit and shall at the request of the Data Controller, provide the Data Controller with evidence of compliance with its obligations under clauses 30-33. The Data Processor shall immediately inform the Data Controller if, in its opinion, an instruction pursuant to this paragraph 31.6 infringes the GDPR or other EU or Member State data protection provisions.
31.7 The Data Processor agrees that it shall hold the Personal Data in such a manner that it is capable of being distinguished from other data or information processed by the Data Processor.
31.8 The Data Processor shall indemnify and hold harmless the Data Controller against all losses, fines and regulatory sanctions arising from any claim by a third party or Supervisory Authority arising from any breach of clauses 30-33.
31.9 In the event of any termination of the Agreement, the Data Processor shall:
subject to paragraph 31.9.2, cease processing the Data Controller Personal Data;
promptly, and in any event within 28 days, at the Data Controller’s instruction, either (a) return a complete copy of all the Personal Data to the Data Controller by secure file transfer in such format as notified by the Data Controller to the Data Processor; or (b) securely delete the Personal Data, such that it cannot be recovered or reconstructed, and procure the deletion of all other copies of the Personal Data Processed by Data Processor or any Sub-processor under this Agreement; and
certify that all copies of the Personal Data have been destroyed or returned in compliance with paragraph 31.9.2 within a reasonable time but in any event not later than 28 days after termination.
32. Changes in Data Protection Laws
The Data Controller may notify the Data Processor in writing from time to time of any variations to clauses 30-33 which are required as a result of a change in Data Protection Laws including without limitation to the generality of the foregoing, any variations which are (i) required as a result of any changes to UK Data Protection Laws following any exit of the UK from the European Union; or (ii) required to take account of any new data transfer mechanisms for the purposes of paragraph 32.5. Any such variations shall take effect on the date falling 30 days after the date such written notice is sent by the Data Controller and the Data Processor shall procure that where necessary the terms in each contract between Data Processor and each Sub-processor are amended to incorporate such variations within the same time period.
33. Personal Data
33.1 Clauses 30-33 include certain details of the Processing of Personal Data as required by Article 28(3) GDPR.
33.2 Subject matter and duration of the Processing of Personal Data:
the subject matter and duration of the Processing of the Personal Data are as set out in this Agreement.
33.3 The nature and purpose of the Processing of Personal Data:
for the purpose of the provision of the Processing of the Personal Data as set out in this Agreement.
33.4 The types of Personal Data to be Processed
Learner Christian name, learner surname, phone number, email address and location data (first line of address through to postcode and IP address) only.
33.5 The categories of Data Subject to whom the Personal Data relates
Student related data including learning evidence, progression, attainment and quality assurance data.