Please read these terms and conditions (“Terms and Conditions”) including the schedule (“Schedule”) carefully – they contain important information about your (“the Subscriber’s”) rights and obligations.
1 INTRODUCTION
1.1 Skill Boosters (a trading name of Inclusive Learning Ltd (Company No. 7307267)) (“Skill Boosters” or “we”) is a provider of interactive multi-media and e-learning resources (“Resources”) and related products and services (“Services”). The Subscriber wishes to engage Skill Boosters to provide the Services set out in the Order Confirmation (overleaf).
2 GENERAL
2.1 These Terms and Conditions govern and are incorporated into every contract for the provision of Services made by or on behalf of Skill Boosters with the Subscriber to the exclusion of all other terms and conditions. Such contract consists of these Terms and Conditions (including the Schedule), the Order Confirmation and any addenda in writing and signed by a duly authorised representative of Skill Boosters and the Subscriber (together “this Agreement”).
3 FEE AND PAYMENT TERMS AND SERVICES
3.1 In consideration of Skill Boosters’ performance of its obligations under this Agreement, the Subscriber shall pay to Skill Boosters the fee as set out in the Order Confirmation, or, if no fee is stated, in accordance with Skill Boosters’ current price list for the services concerned which is (“the Licence Fee”).
3.2 The Licence Fee shall be invoiced by Skill Boosters and paid by the Subscriber in consideration for the provision of the Services (annual licence fees will be paid annually in advance). The Licence Fee is exclusive of VAT or other taxes, duties and expenses which shall be additionally payable by the Subscriber.
3.3 On payment of the Licence Fee or Deposit (as stated on the Order Confirmation) (as the case may be), Skill Boosters shall provide the relevant Services with reasonable skill and care.
3.4 The Subscriber shall provide such co-operation, assistance and information to Skill Boosters as Skill Boosters may reasonably require in the provision of the Services.
3.5 In the event that the Subscriber requires any additional products or services or requires any amendments to the Services following signature of the Order Confirmation, Skill Boosters shall not be obliged to provide such additional or amended Services without the agreement in writing or by email by the Subscriber of the scope of such amendments and additional charges, if any. In the event that the parties cannot reach agreement, Skill Boosters is not obliged to provide any additional or amended services or products.
3.6 Unless specified to the contrary, the Licence Fee shall be as shown in the Order Confirmation and will include all costs associated with the supply of the Services. Payment of a correct invoice submitted in accordance with this condition shall normally be made within thirty (30) calendar days from the date of receipt. Payment to be made by bank transfer.
3.7 Skill Boosters shall submit invoices in accordance with this Agreement which shall contain the particulars required by law in respect of VAT, including the purchase order number generated by the Subscriber’s group procurement system and shall be sent to the address specified in the Order Confirmation Purchase Order.
3.8 The Subscriber shall pay all amounts due under this Agreement in full without any deduction or withholding except as required by law and the Subscriber shall not be entitled to assert any credit, set-off or counterclaim against Skills Boosters in order to justify withholding payment of any such amount in whole or in part. The Subscriber may, without limiting its other rights or remedies, set off any amount owing to it by the Subscriber against any amount payable by the Skills Boosters to the Subscriber.
4 CONFIDENTIALITY
4.1 The parties agree to treat in confidence the other’s data documentation and information which is marked confidential or which is by its nature clearly confidential (“Confidential Information”). The parties further agree not to disclose any Confidential Information to any other person other than its own employees under conditions of confidentiality and then only to the extent required for the proper performance of this Agreement. Nothing in this Agreement shall operate so as to prevent either party from making use of know-how acquired or experience gained of a non-proprietary or non-confidential nature during the execution of this Agreement. Skill Boosters acknowledges that all practices, procedures and documentation standards for which the Subscriber holds intellectual property rights constitute Confidential Information of the Subscriber.
4.2 Nothing contained herein shall be construed to impose a confidentiality obligation on a party in respect of:-
(a) any matter appearing in public literature or otherwise within the public domain unless the information is in the public domain as a result of a breach of this Agreement by that party; or
(b) any information or knowledge possessed by that party prior to disclosure to it by the other or rightfully acquired from sources other than the other party; or
(c) any information or knowledge acquired in a bona fide arm’s length transaction by the party making the disclosure.
4.3 Upon any termination of this Agreement, each party shall cause all Confidential Information belonging to the other party in whatever medium it is recorded or held to be returned, deleted or destroyed according to the written instructions of the other party.
4.4 Skill Boosters may refer to the Subscriber in any publicity or advertising material without first obtaining the Subscriber’s written consent.
4.5 The provisions of this clause 4 shall continue after the termination this Agreement.
5 INTELLECTUAL PROPERTY RIGHTS
5.1 Skill Boosters and/or its licensors and/or its partners (where applicable) own all title, copyright and all and any other intellectual property rights in each and all of the Services, including in particular the content of all Resources, and any bespoke versions and modifications or translations of them (“the Property”), however delivered. The Subscriber acknowledges that it does not and shall not own any title, copyright or any other intellectual property rights in the Property or any right save as set out herein and shall not modify, translate, adapt or otherwise amend them and shall only use them for training its personnel and for monitoring such training and in accordance with any instructions for use given by Skill Boosters. This Agreement conveys a limited licence to use the Product and shall not be construed to convey title to or ownership of the Product to Subscriber. All rights in and to the Product not expressly granted to Subscriber are reserved by Skill Boosters.
5.2 The provisions of this clause 5 shall continue after the termination this Agreement.
6 WARRANTIES
6.1 Skill Boosters warrants to the Subscriber that:
(a) Skill Boosters will perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards;
(b) the Services will conform with all descriptions and specifications provided to the Subscriber by Skill Boosters; and
(c) the Services will be provided in accordance with all applicable legislation from time to time in force, and Skill Boosters will inform the Subscriber as soon as it becomes aware of any changes in that legislation.
6.2 The Customer’s rights under this agreement are in addition to the statutory terms implied in favour of the Subscriber by the Supply of Goods and Services Act 1982 and any other statute.
7 INDEMNITIES
7.1 Skill Boosters shall indemnify and hold the Subscriber harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the Subscriber as a result of or in connection with any alleged or actual infringement, whether or not under English law, of any third party’s intellectual property rights out of the use or supply of the Services and Products.
7.2 The Subscriber shall indemnify Skill Boosters from and against any and all losses, claims, costs, damages, costs, charges, expenses, liabilities and demands which Skill Boosters may incur, and/or against any proceedings or actions which may be brought or established against Skill Boosters by any third party, which arise out of or by reason of any breach by the Subscriber of its obligations under this Agreement howsoever caused.
7.3 During the term of this Agreement and for a period of 6 years thereafter, Skill Boosters shall maintain in force, with a reputable insurance company, professional indemnity insurance and product liability insurance in an amount not less than £ 100,000, on the Subscriber’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium.
7.4 The provisions of this clause 7 shall survive termination of this Agreement, however arising.
8 LIMITATION OF LIABILITY
8.1 Subject to clauses 8.2 and 8.3, Skills Boosters’ maximum aggregate liability under or in connection with this Agreement, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to the Licence Fee.
8.2 In no event shall Skill Boosters be liable for any special, indirect, incidental, or consequential damages, including loss of profits and goodwill, business or business benefit, or the cost of procurement of substitute products by subscriber even if advised of the possibility of such damages. in no circumstances shall Skill Boosters be liable for any failure of the product to perform in accordance with the documentation, or at all, resulting from a failure by the subscriber to comply with the minimum requirements. Additionally, subscriber acknowledges that whilst the product may be used in combination with third party product, Skill Boosters bears no liability, howsoever arising, for any loss, damage or cost that arises from a failure of the product to integrate with subscriber or third party product. Skill Boosters shall not be liable to any subscriber employees, permitted users or permitted third parties and the subscriber shall indemnify Skill Boosters in respect of any and all claims made against Skill Boosters by any such persons or entities.
8.3 Neither party excludes or restricts its liability for death or personal injury caused by negligence or in respect of any fraudulent misstatement.
9 TERMS AND TERMINATION
9.1 The initial term of this Agreement is 12 months (“Initial Term”) unless otherwise stated on the Order Confirmation. All Resources are, unless agreed expressly in writing to the contrary, licensed on an annual basis.
9.2 If either party wishes to terminate this Agreement at the end of the Initial Term, it must give the other party at least three (3) months written notice (“Notice”) to expire at the end of the Initial Term. If no such notice is given, this Agreement will automatically continue for further 12 month periods (“Further Term(s)”), unless and until terminated by Notice expiring at the end of any such Further Term. During a Further Term the Fees (including annual licence fees for Resources and the fee rates for other Services) may be increased by Skill Boosters on three (3) months’ written notice to the Subscriber. If further Services are requested during the Initial Term or any Further Term, an amended Order Confirmation form shall be completed.
9.4 Either party may terminate this Agreement, or in Skill Boosters’ case any of the licences granted under it, immediately by written notice to the other, if (a) the other is in material breach of any of the terms of this Agreement and fails to remedy the breach within thirty (30) days of receipt of notice from the other specifying the breach and requiring its remedy; or (b) if the other party has a liquidator, receiver, administrative receiver or administrator appointed in respect of any of its assets or undertakings or becomes unable to pay its debts when due or makes a composition or arrangement with its creditors generally.
9.5 Upon any termination or expiry of this Agreement, (a) the rights and licences granted to Subscriber herein shall terminate; (b) Subscriber shall cease all use of the Services and shall delete all copies of any products supplied under this Agreement from its servers and/or other hardware; (c) Subscriber shall return to Skill Boosters any copies of any products supplied under this Agreement and any other Confidential Information of Skill Boosters in Subscriber’s possession or under its control; and (d) Subscriber shall certify in writing to Skill Boosters its compliance with the foregoing.
10 ASSIGNMENT
10.1 Neither party may assign, transfer, hold on trust, sub-license, charge or sub-contract any of its rights or obligations under these this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
11 SEVERANCE
11.1 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect.
12 NOTICES
12.1 All notices shall be given to a party to this Agreement by the other at the postal address specified in the Order Confirmation or such other address as is notified in writing to the other party. Notice will be deemed to be received 3 days after the date of posting.
13 LAW AND JURISDICTION
13.1 This Agreement shall be governed by the laws of England and the parties agree to submit to the exclusive jurisdiction of the English courts.
SCHEDULE
SECTION B: TERMS APPLICABLE TO SERVICES PROVIDED ON CD-ROM & DVD TO SUBSCRIBERS
This section B shall apply to all Subscribers who purchase any type of CD-ROM & DVD (for the avoidance of doubt including, but not limited to Video Clips on DVD and Video Clips DVD Collections) as available for purchase.
B. ADDITIONAL TERMS
B1. In consideration of the payment of the Licence Fee, Skills Boosters hereby grants to you a non-exclusive, non-transferable licence to use the Product on the terms of this Agreement. The Subscriber hereby agrees to abide by the terms of this Agreement. In the event that the Subscriber fails to do so, Skill Boosters may terminate this Agreement immediately on notice in writing to the Subscriber.
B2. The Subscriber is licensed to use one copy of each CD (“a Licensed Program”) supplied by Skill Boosters on a single terminal connected to a single computer (i.e., with a single CPU). The Subscriber may not network any licensed copy of the Licensed Program or otherwise use it on more than one computer or computer terminal at a time and shall not make any copies of the Licensed Program (except such transient copies as may be made automatically by loading a CD containing a copy of the Licensed Program on a single computer) and shall not rent, lease, sub-license or transfer the Licensed Program or reverse engineer, recompile or disassemble it.
B3. Except as expressly set out in this Agreement or as permitted by any local law, you undertake to supervise and control use of the Licensed Program and ensure that your employees and representatives use the Licensed Program in accordance with the terms of this Agreement.
B4. Skill Boosters warrants that the CD medium will be free from defect in material for a period of thirty (30) days from delivery and agrees, as the Subscriber’s sole remedy, to replace any defective CD medium. The Subscriber shall not modify, translate, copy, adapt or otherwise amend the CD or permit it to come into the possession of any other person or entity. The CD shall at all times remain the property of Skill Boosters and on termination of the Subscriber’s licence to use the Resources or other Services contained on it, the Subscriber shall return the CD to Skill Boosters.
SECTION C: TERMS APPLICABLE TO SERVICES PROVIDED VIA INTRANET TO SUBSCRIBERS
This section C shall apply to all Subscribers who purchase any type of the Intranet Product (Intranet Product means an intranet licence hosted by Skills Booster or hosted by the Subscriber) as set out in the Order Confirmation, together with any updates, modifications the Intranet Product which are provided at Skill Booster’s sole discretion to Subscriber from time to time hereunder.
C. ADDITIONAL TERMS
C1. Skill Boosters hereby grants Subscriber a, non-exclusive, non-transferable licence to install and use the Intranet Product within the Territory (as specified in the Order Confirmation) on the Permitted Number of servers or users (as specified in the Order Confirmation) for its own internal use only. This licence is in respect of use of the Intranet Product by the Subscriber only and no subsidiaries or holding company of the Subscriber may use the Intranet Product. The Subscriber hereby agrees to abide by the terms of this Agreement. In the event that the Subscriber fails to do so, Skill Boosters may terminate this Agreement immediately on notice in writing to the Subscriber.
C2. Except as expressly permitted in this Agreement, the Subscriber shall not, and shall not permit others to: (i) modify, translate, create derivative copies of or copy the Intranet Product (other than one backup copy which reproduces all proprietary notices), in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the Intranet Product to source code form; (iii) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Intranet Product or the Subscriber’s right to use the Intranet Product; (iv) remove or modify any copyright, trademark, or other proprietary notices of Skill Boosters affixed to the media containing the Intranet Product or contained within the Intranet Product; or (v) use the Intranet Product in any manner not expressly authorized by this Agreement. Notwithstanding the foregoing, the Subscriber may allow a third party to host the Intranet Product on its equipment provided that the Intranet Product must be used solely for the benefit of the Subscriber and not for the benefit of the hosting entity or any other third party. If the Subscriber wishes to exercise the rights specified in the foregoing sentence it shall first notify Skill Boosters of the name and address of the hosting entity, together with the proposed location of the Intranet Product.
C3. The Subscriber shall indemnify Skill Boosters from and against any and all losses, claims, costs, damages, costs, charges, expenses, liabilities and demands which Skill Boosters may incur, and/or against any proceedings or actions which may be brought or established against Skill Boosters by any third party, which arise out of or by reason of any breach by the Subscriber of its obligations under this Agreement howsoever caused.
C4. Following completion of any implementation services, Skill Boosters shall provide to the Subscriber the Services for use by employees of the Subscriber (“Permitted Users”) at the Location by licensing and assisting the Subscriber to post them on its intranet (the “Intranet”) during the Licence Period (as stated on the Order Confirmation). The Subscriber shall post on that part of its Intranet where the Services appear such conditions relating to their use by Permitted Users as Skill Boosters have agreed with the Subscriber.
C4. If the Intranet is accessible from sites other than the Location, the Subscriber shall ensure that the Services are only accessed by Permitted Users and Skill Boosters may carry out on-site or remote inspections to verify the Subscriber compliance with this obligation. Notwithstanding the foregoing, in the event that the Subscriber wishes to install the Course on more than one server, it shall purchase an additional Multi-User Intranet Licence in respect of each additional server.
C5. The Licence Fee for the licence is based on the total number of Permitted Users who have access to the Intranet and the estimated usage of the Services. If at any time the number of Permitted Users or such usage exceeds that on which the Fee is based, Skill Boosters shall have the right to increase the Fee on a pro-rata basis on notice to the Subscribers in writing (“Fee Notice”) and to charge a retrospective fee for such additional Users or use prior to the date of the Fee Notice.
C6. The Subscriber is responsible for ensuring that its Intranet and computer system generally meet all relevant technical specifications necessary to use the Services and capable of running the Services. Permitted Users may use the Services on a portable or home computer linked to the Intranet, but only for the permitted purposes as described above.
C7. Except as expressly stated in the Services, any copying, distribution, transmission or publication of Information outside the Intranet is strictly prohibited without the express written consent of Skill Boosters. Notwithstanding the above, the Permitted Users shall be entitled to download and print the Summary Sheet on completion of a Course, provided that they shall not copy it or distribute it to any person.
C8. Where Skills Boosters provides hosting services (“Hosting Services”) Skills Booster will provide, between the hours of 09:00 to 17:30 on each Business Day, the support (“Support”) to the Subscriber’s appointed representative (“Support Representatives”) which includes:
(a) advice by telephone or e-mail on the installation and use of the Intranet Product; and
(b) the diagnosis and rectification (to the extent possible) of defects in the Services.
C9. Skills Boosters shall only accept Support requests from Support Representative. The Support shall not include:
(a) advice on the use of, of the diagnosis and rectification of defects in, the any software;
(b) the diagnosis and rectification of any defect resulting from
(i) the improper use, operation or neglect of the Intranet Product;
(ii) the use of the Services for a purpose for which they were not designed;
(iii) faults or other problems affecting or manifested in the operation of the Intranet Product which are not attributable to Skills Boosters, including (without limitation):
(A) failure of the Subscriber’s own computer and information systems and related infrastructure or lack of user training or user competency;
(B) faults or failures reported by the Subscriber which Skills Boosters is unable to reproduce for the purposes of verifying and categorising such reported fault or failure.
C10 The Intranet Product are provided to the subscriber on an ‘as is’ basis without warranty of any kind, whether express or implied, including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement or title, except as expressly set out herein.
C12. The Subscriber hereby warrants and represents that it shall (i) comply with all applicable laws and regulations which may govern the use of the Intranet Product, and (ii) use the Intranet Product only for lawful purposes and in accordance with the terms of this Agreement.
SECTION D: TERMS APPLICABLE TO SERVICES PROVIDED VIA ONSITE TRAINING SUBSCRIBERS
This section D shall apply to all Subscribers who purchase any onsite training (for the avoidance of doubt including, but not limited to consultancy, seminars, workshops, executive briefings and blended training) as available for purchase (“Trainer-Led Training”).
D. ADDITIONAL TERMS
D1. The Subscriber is responsible for advance notification to Skills Booster of any special requirements relating to attendees (the “Attendees”). Skills Booster will endeavour to accommodate such notified needs if it is considered both reasonable and practical to do so.
D2. The Subscriber shall ensure that Attendees shall have adequate competence, knowledge and skill to interpret and benefit from the training provided by Skills Booster.
D3. Skills Booster reserves the right to exclude Attendees from the training due to Attendee’s disorderly conduct or failure to fulfil the prerequisites as published by Skills Booster or otherwise notified to The Subscriber. The relevant Fees shall remain chargeable to The Subscriber in such circumstances.
D4. All Intellectual Property Rights relating to the Trainer-Led Training, including software, data and documentation used and/or provided by Skills Booster and any related materials (the “Trainer-Led Training Materials”) provided to the Subscriber hereunder by Skills Booster are owned exclusively by Skills Booster and/or its party licensors. Skills Booster hereby grants to the Subscriber a non-exclusive, non-transferable, non-sublicensable licence to use such Trainer-Led Training Materials solely for the purpose of receiving the Trainer-Led Training.
D5. Under no circumstances may the whole or any part of the Trainer-Led Training Materials be produced or copied in any form or by any means or translated into another language by the Subscriber without the prior written permission of Skills Booster.
D6. The Subscriber shall not delete, amend, alter or deface any confidentiality or proprietary notices on the Trainer-Led Training Materials.
D7. The Subscriber shall and shall ensure that Attendees shall keep confidential the Trainer-Led Training Materials and comply fully with all use restrictions notified to the Subscriber by Skills Booster in relation to Trainer-Led Training Materials.
D8. Skills Booster reserves the right to amend the content of any Trainer-Led Training without notice to The Subscriber when, in the opinion of the Skills Booster, such amendment does not fundamentally change the content of such Trainer-Led Training.
D9. Skills Booster will use reasonable endeavours to ensure that the Trainer-Led Training is provided with reasonable skill and care and will follow practices consistent with the professional standards in the industry.
D10. The Subscriber shall indemnify and hold harmless Skills Booster, its officers, directors, agents and employees, from and against all claims, actions, demands, losses, costs, expenses (including, without limitation, all legal fees and disbursements), damages, liabilities and lawsuits arising from any breach of the Subscriber’s obligations under this Agreement.
D.11 1 If the Subscriber wishes to cancel the Trainer-Led Training he may do so at any time by written notice (“Cancellation Notice”) to Skill Boosters provided that:
(a) If the Cancellation Notice is received by Skill Boosters not less than four (4) weeks before the first day of the Trainer-Led Training, 75% of the total price payable shall be returned to the Subscriber, to the extent that the same has already been received by Skill Boosters.
(b) If the Cancellation Notice is received by Skill Boosters not less than two weeks (3) weeks before the first day of the Trainer-Led Training, 50% of the total price payable shall be returned to the Subscriber, to the extent that the same has already been received by Skill Boosters.
(c) If the Cancellation Notice is received by Skill Boosters not less than two weeks (2) weeks before the first day of the Trainer Led Training, 25% of the total price payable shall be returned to the Subscriber, to the extent that the same has already been received by Skill Boosters.
(d) If the Cancellation Notice is received by Skill Boosters less than one (1) week before the first day of the Trainer-Led Training, the total price payable shall be non-refundable and shall become immediately due and payable to the extent that the same has not already been received by Skill Boosters.
