Terms and Conditions

A copy of the following terms and conditions along with company policy and quality documentation can be obtained at the commencement of any e-learning development project.

Terms and Conditions of End-User Licence for e-Comply compliance e-learning systems produced by e-learning WMB

The Contractor is E-Learning WMB Limited trading at Huntingdon House, 278-290 Huntingdon Street , Nottingham NG1 3LY who have agreed to carry out the work as defined in appended scoping documentation.

The Client is the party named in the Invoice and in default of a party being named in the Invoice is the party for whom the bespoke development is carried out.

1. Introduction

•  the Contractor has developed the e-learning system for the client.

•  The Client wishes to use the E-learning System (as those terms are defined in these Terms and Conditions), and the Contractor is willing to grant the Client all rights to the bespoke e-learning content created for the client ...

•  Interpretation

2.1 In these Terms and Conditions:

'The Acceptance Date' means the date on which the E-learning System is deemed to have been accepted by the Client in accordance with clause 4.3;

"The Agreement" means the License agreement granted in accordance with these Terms and Conditions;

'Chargeable Hour' means an hour (or part of an hour) during any part of which an employee of the Contractor is engaged in the provision of any services for the Client, including meal breaks and rest periods;

"Software Tools" means the in-house tools (Learning Management System and Content Management System) developed by E-Learning WMB Limited provided for sole use by the Client as part of the bespoke e-learning content delivery.

'The Documentation' means the user guides, instruction manuals and other documents, whether in written or machine-readable form, issued by the Contractor from time to time for the Use of the E-learning System;

'The E-learning System' means the computer E-learning System referred to in clause 1.1 particulars of which are given on the Invoice, and includes all programs, algorithms, techniques, processes, methods, know-how and other information comprised in the system and all corrections, updates or improvements to the system which are issued by the Contractor from time to time;

"The Fee" means the total of the fees as specified on the Invoice. Unless specified to the contrary all fees payable in accordance with the License are payable annually.

"The Invoice" means the invoice provided by the Contractor specifying particulars of the License and the particulars form part of the License agreement.

"The License" means the license between the Contractor and the Client in accordance with these Terms and Conditions and including the particulars specified on the Invoice.

"The Password" means a password or code supplied by the Contractor to the Client to enable the Client to use the E-learning System.

"the Trial Program" means such part of the E-learning System as is designed to give an illustration to a potential Client of the capabilities of the E-learning System.

'The E-learning System Material' means any media containing or recording the E-learning System or any part of it;

'the Term' means the period during which the Agreement continues in force pursuant to clause 11.1 or 11.2;

'Use' (as a noun) means, in relation to the E-learning System of (where it is in machine-readable form) the Documentation, its loading, displaying, running, transmission or storage for the purpose of processing the instructions contained in the E-learning System of (as the case may be) the Documentation, and 'Use' (as a verb) has corresponding meaning;

'Working Day' means a day (other than Saturday or Sunday or any bank or public holiday) consisting of not more than 8 hours' work, including meal breaks, rest periods and traveling time.

2.2 Any reference in these Terms and Conditions to 'writing' or any cognate expression includes a reference to any communication effected by telex, facsimile transmission, e-mail or similar means.

2.3 The headings in these Terms and Conditions are for convenience only and shall not affect its interpretation.

•  Grant of Licence

3.1 Upon the completion of the project, the Contractor grants to the Client, subject to the provisions of these Terms and Conditions, the sole rights to the E-learning System. Where additional Software Tools are provided for the client, namely the Content Management and Learning Management systems, the rights remain the property of E-Learning WMB Limited and the following restrictions in their use apply:

(a) The Client may not distribute the Software Tools outside the organization

(b) The Client may not sell or license the Software Tools to third-party vendors.

3.2 The Software Tools may only be Used by the Client for supporting the delivered bespoke E-learning System for the purposes of the Client's business. License to use these tools may not be transferred to a third party without the prior consent of e-learning WMB.

4. Supply, installation and acceptance of the E-learning System

4.1 The E-learning System shall be deemed to have been accepted by the Client as having been supplied in accordance with these Terms and Conditions and the stipulations outlined in the scoping documentation and e-learning scripts.

4.2 After the project has been completed, if the Client has not already been supplied with the E-learning System, the Contractor shall, as soon as practicable after acceptance of the final installment supply the Client with one copy of the E-learning System in object-code form or, at the Contractor's discretion, in machine-readable form;

4.3 The E-learning System Material and the Documentation supplied to the Client shall be developed to the agreed project specification detailed in e-learning scripts and scoping documentation.

•  Use of the E-learning System

5.1 The Client shall comply with all applicable laws and regulations concerning the E-learning System, the E-learning System Material and the Documentation or their Use. The Client agrees that the E-learning System will not be used in any manner prohibited by UK export laws, restrictions or regulations.

5.2 The Client shall not use any of the confidential information of the Contractor contained in or derived from the E-learning development approach to develop or market any bespoke E-learning development service which is substantially similar in its function or expression to any part of the E-learning bespoke system offered by the contractor.

5.3 Trade marks shall be used in accordance with the accepted trade mark practice including the identification of the trade mark owner's names. Trade marks of the Contractor can be used only to identify printed output produced by the E-learning System. Such use of any trade mark does not give the Client any rights of ownership in the Contractor's trade marks.

5.4 The Client agrees that the Contractor shall have the sole rights to any technological advancement acquired during development process.

6 Assistance and Maintenance

6.1 The Contractor shall, for a period of 120 days after delivery of the completed E-learning system, provide assistance and maintenance for the E-learning System in accordance with the following provisions of the sub clauses of clause 6. Further assistance and maintenance for the E-learning system can be purchased on a daily rate basis or through an annual maintenance agreement.

6.2 Subject to 6.1, at the reasonable request of the Client the Contractor shall provide the services of one of its suitably qualified employees to assist the Client in the Use of the E-learning System and the Documentation, by telephone or in writing, or by any other means agreed between the Contractor and the Client during normal office hours (9.00 am to 5.00 pm, Monday to Friday, excluding Bank Holidays).

6.3 The Client shall promptly notify the Contractor of any defect or error in the E-learning System or the Documentation, and the Contractor shall, subject to 6.1 and the following provisions, use it reasonable endeavors to correct the defect or error, and to send a corrected version of the portion of the E-learning System Material or the Documentation in question to the Client, as soon as practicable after being so notified.

6.4 The Contractor shall not be obliged to correct any defect or error in the E-learning System or the Documentation which arises from:

•  any improper or unauthorised Use or operation of the E-learning System or equipment on which it is Used;

•  the adaptation, modification or alteration in any way of any part of the E-learning System or the Documentation (without the Contractor's prior consent), or the merger of combination of any part of the E-learning System or the Documentation with any other computer E-learning System of documentation;

( c) any failure by the Client to comply with any advice or instructions given by the Contractor with regard to the Use of the E-learning System or the Documentation;

(d) any failure by the Client to install any corrected version or any update or improvement of the E-learning System or the Documentation supplied by the Contractor.

6.5 Subject to 6.1 the Contractor shall, as soon as practicable after its availability for release:

•  provide the Client with one copy of any update or improvement to the Software Tools or the Documentation which the Contractor makes generally available to its Clients;

•  supply the Client with one copy of such up to date information concerning the Software Tools and its Use as the Contractor may think necessary to enable the Client to exercise its rights under these Terms and Conditions.

6.6 The Client shall ensure that any corrected version or any update or improvement of the Software Tools or the Documentation supplied by the Contractor is (when in machine readable form) installed on the Equipment forthwith upon its delivery to the Client.

6.7 Assistance and maintenance shall not include the diagnosis and rectification of any fault resulting from fault resulting from a inappropriate use or neglect of the E-learning System. Notwithstanding any other agreements or provisions concerning payment the Contractor shall be entitled to levy reasonable additional charges if assistance is provided in circumstances where any reasonably skilled data processing operator would have judged the Client's request to have been unnecessary.

6.8 Any assistance or maintenance pursuant to the preceding provisions of this clause 6 shall be provided subject to the provisions of clause 8 and otherwise on the Contractor's standard terms and conditions from time to time.

7. Site visits and training

7.1 Site visits and project meetings are agreed with the Client and Contractor prior to project commencement and are entered into the project schedule. If after the completion of the project it is necessary for any employee of the Contractor to attend the premises of the Client then the provisions of clause 8.2 apply and such visit is subject to the following provisions of the sub clauses of clause 7.

 

7.2 Subject to 7.1, at the reasonable request of the Client the Contractor shall provide the services of one or, if the Contractor considers it necessary or convenient, more of its suitably qualified employees to attend the premises of the Client during normal office hours (9.00 am to 5.00 pm, Monday to Friday, excluding Bank Holidays) as soon as practicable to assist the Client in the Use of the E-learning System and the Documentation or to resolve any problem or to provide training.

7.3 Subject to clause 7.2, if it is agreed that the Contractor shall provide training, such training shall take place at the nomination of the Contractor at the Contractor's premises; or at the Client's premises or at such venue as the Contractor reasonably specifies.

7.4 If the Contractor provides assistance in the case of emergency, outside office hours, by telephone or any other means agreed between the parties as to the Use of the E-learning System and the Documentation the rates under clause 8.2 apply to such assistance.

7.5 The Client shall

(a) give the Contractor all necessary assistance to obtain any visas, work permits, residence permits or other approvals which are required for entering into and working in any part of the location of the Client's premises by any employee of the Contractor who is to be made available by the Contractor pursuant to the preceding provisions of this clause 7;

(b) bear the entire cost of all salaries, fringe benefits, traveling (including air travel), accommodation and other expenses of any employee of the Client who is sent to the Contractor's premises or any other venue

7.6 Any employees of either the Contractor or the Client who are sent to visit the premises of the other or any other venue for the purposes of these Terms and Conditions shall remain employed by the party sending them.

7.7 In the event of any employee of the Client (or Contractor) attending at the premises of the Contractor (or Client) or any other venue, the Client (or Contractor) shall ensure that each such employee complies with all security, health and safety and other regulations which apply to or are in force at those premises and shall indemnify the Contractor (or Client) against any damage to the property of the other party or any personal injury to any individual which is caused by the negligent act or omission of any such employee at such premises.

•  Financial provisions

 

•  In consideration of the rights granted under these Terms and Conditions, the Client shall, subject to the following provisions, pay to the Contractor upon delivery of completed e-learning content as agreed in the scoping documentation and signed-off scripts. Payments are invoiced for on a monthly basis in accordance with our standard terms and conditions.

8.2 The Client shall:

•  reimburse the Contractor for:

•  all traveling (including air travel). Accommodation and other expenses of any employees of the Contractor who are sent to the Client's premises pursuant to clause 7

•  any costs of providing a venue for training other than the premises of the Client or Contractor

 

•  pay to the Contractor a fee at the Site Visits and Training Rate specified on the Invoice, for any time spent by any of the Contractor's employees in providing site visits or training pursuant to clause 7

•  pay to the Contractor a fee at double the Site Visits and Training Rate specified on the Invoice, or, if higher, the double Site Visits and Training Rate of the Contractor from time to time in force for any time spent in excess of a full Working Day by any of the Contractor's employees in providing services pursuant to clause 7

8.3 Any fees or other sums payable pursuant to clause 8.2 shall be paid by the Client within 30 days after receipt of an invoice from the Contractor, save that the Client shall provide an advance payment for anticipated fees at the reasonable request of the Contractor.

8.4 All fees or other sums payable under the License are exclusive of value added tax or other applicable taxes or duties, for which the Client shall be additionally liable, and shall be paid in cleared funds to such bank account or in such other manner as the Contractor may specify from time to time, with out any set-off, deduction or withholding except any tax which the Client is required to deduct or withhold by law, and if the Client is required by law to make any such deduction or withholding, the Client shall make reasonable endeavours to enable or assist the Contractor to claim exemption from or (if that is not possible) a credit for the deduction or withholding under any applicable double taxation or similar agreement from time to time in force, and shall from time to time give the Contractor proper evidence a to the deduction or withholding and payment over of the tax deducted or withheld.

•  Rights in the E-learning System

 

9.1 The Contractor acknowledges that the copyright and all other intellectual property rights in the bespoke content within the E-learning System and the Documentation belong exclusively to the Client.

9.2 The Software Tools and the Documentation provided with the e-learning content contain confidential information of the Contractor, and the Client shall not at any time (either during the Term or after the termination of the License):

•  disclose to any person, except the Client's properly qualified, trained and authorised employees who needs to have access to the information; or

•  use for any unauthorised purpose,

any information contained in or concerning Software Tools or the Documentation, except to the extent that the information is at the date when it is disclosed to the Client or at any time after that date through no fault of the Client has become public knowledge, and the Client shall accordingly ensure that each of its employees is instructed as to the confidential nature of such information, and shall take all practical steps to prevent its unauthorised disclosure or use.

9.3 The Client shall fully notify the Contractor as soon as practicable after it becomes aware of:

•  any actual, threatened or suspected infringement of the copyright or other intellectual property rights of the Contractor in the Software Tools or the Documentation, or of any breach of confidence relating to any of the foregoing;

•  any claim brought against the Client alleging that its Use of the Software Tools or the Documentation infringes the copyright or any other intellectual property rights belonging to or alleged to belong to the claimant.

9.4 If the Client acquires an upgrade or update for the Software Tools, the Client shall update copies stored on computers. The Client may use the old version of the Software Tools for 90 days after receiving any upgrade or update of the E-learning System in order to assist in the transition to the new version, after which time the previous version of the Software Tools is no longer supported by the Contractor.

9.5 U Until all sums payable under these Terms and Conditions are paid in full. , the Client is limited to use of the E-learning System for User Acceptance Testing only.

10 Warranties and liability

10.1 The Contractor does not and cannot warrant results that the Client may obtain by Using the E-learning System or Documentation.

10.2 The Client acknowledges that the E-learning System has been prepared to meet the Client's individual requirements.

10.3 The Contractor does not give any representation, warranty or undertaking as to the effectiveness, quality or fitness for any purpose of the E-learning System or any E-learning System Material or the Documentation, or that the E-learning System or any E-learning System Material or the Documentation supplied by the Contractor is free from any defect or error, or that the supply or Use of the E-learning System or any E-learning System Material or the Documentation will not infringe the copyright or other intellectual property rights of any third party.

10.4 The Contractor shall not be liable to the Client for any loss, damages, costs, expenses or other claim for compensation whether occasioned by the negligence of the Contractor, its servants or agents or otherwise which in any way relates to the intellectual content of the E -Learning System, to the extent that:

 

any such claim is for loss of profits, contracts, goodwill or anticipated savings, or for wasted expenditure, or for any indirect, special or consequential loss or damages even if a representative of the Contractor has been advised of the possibility of such damages, or any claim by any third party; or

the amount of any claim for which the Contractor would otherwise be liable exceeds the total amounts paid by the Client under clause 8 for the year in which the claim arises.

10.5 Notwithstanding any of the provisions of clause 7, the Contractor shall have no liability for the performance Use or consequences of any changes to the E-learning System or any E-learning System Material or the Documentation which are made otherwise than by the Contractor, and the Contractor shall have no obligation to correct, maintain or update any part of the E-learning System or any E-learning System Material or the Documentation which has been the subject of any such change.

10.6 Neither party shall be deemed to be in breach of these Terms and Conditions or have any liability to the other in so far as it is prevented from performing its obligations under these Terms and Conditions by reason of any circumstances beyond its reasonable control, including (without limitation) any strike, lock-out or other industrial action.

11 Duration and termination

11.1 The agreement comes into force upon on date of this document and, shall, unless terminated earlier for any reason, continue in force.

11.2 The Client shall be entitled to terminate the License at any time by giving not less that three months' written notice to the Contractor.

11.3 The Contractor may forthwith terminate this Agreement by giving written notice to the Client if:

(a) any sum payable by the Client under these Terms and Conditions is not paid within 30 days of the due date; or

(b) the Client commits any other breach of this Agreement and, if the breach is capable of remedy, fails to remedy it within thirty days after being given a written notice containing full particulars of the breach and requiring it to be remedied; or

(c) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or

(d) the Client becomes subject to an administration order or makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986); or

(e) the Client goes into liquidation (except for the purpose of amalgamation or reconstruction and so that the resulting company effectively agrees to be bound by or assume the obligations imposed on the Client under these Terms and Conditions); or

(f) the Client ceases, or threatens to cease, to carry on business; or

(g) control of the Client is acquired by any person who does not have control of the Client at the date of this Agreement.

11.4 For the purposes of clause 11.4(b), a breach shall be considered capable of remedy if the Client can comply with the provision in question in all respects other than as to the time of performance (provided that the time of performance is not of the essence).

11.5 The rights given by this clause 11 to terminate this Agreement shall not prejudice any other right or remedy of the Contractor in respect of the breach concerned or any other breach.

11.7 Additional Annual Maintenance for the E-learning System can be purchased at 20% of the initial development cost adjusted in line with the Bank of England: Monetary and Financial Statistics rate of inflation.

12 Nature of Agreement

 

12.1 The Client shall be entitled to assign the benefit of the contract to another nominee if the control or structure of the Client's company is altered in any way.

12.2 Nothing in these Terms and Conditions shall create, or be deemed to create, a partnership, or the relationship of principal and agent, between the parties.

12.3 These Terms and Conditions together with the scoping document contain the entire agreement between the parties with respect to this subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties.

12.4 Each party acknowledges that, in entering into the License, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly provided in these Terms and Conditions, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

12.5 No failure or delay by the Client and Contractor in exercising any of its rights under these Terms and Conditions shall be deemed to waiver of that right, and no waiver by the Client and Contractor of a breach of any provision of these Terms and Conditions shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

12.6 If any provision of these Terms and Conditions is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the other provisions of these Terms and Conditions and the remainder of the affected provision shall continue to be valid.

12.7 The rights of the Client and Contractor under these Terms and Conditions are cumulative and in addition to any other right or remedy available to it at law or in equity.

13 Arbitration and applicable law

13.1 Any dispute between the parties arising out of or in connection with these Terms and Conditions shall be referred to the arbitration in the UK of a single arbitrator appointed by agreement between the parties or, failing agreement between the parties within 30 day after a request for a reference is made by either party by the President for the time being of the British Computer Society.

13.2 English law shall apply to the whole of any agreement incorporating these Terms and Conditions, and each party agrees to submit to the exclusive jurisdiction of the English courts. The agreement incorporating these Terms and Conditions will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application which is specifically excluded.

14 Notices and service

14.1 any notice or other information required or authorised by these Terms and Conditions to be given by either party to the other shall be given by:

•  delivering it by hand; or

•  sending it by pre-paid registered post; or

•  sending it by telex, facsimile transmission or similar means of communication;

to the other party at the address given in clause 14.4.

14.2 Any notice or other information sent by post in the manner provided by clause 14.1(b) which is not returned to the sender as undelivered shall be deemed to have been given on the seventh day after the envelope containing it was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.

14.3 Any notice or other information sent by telex, facsimile transmission or similar means of communication shall be deemed to have been duly given on the date of transmission, provided that a confirming copy of it is sent as provided in clause 14.1(b) to the other party at the address given in clause 14.4 within 24 hours after transmission.

14.4 Service of any legal proceedings concerning or arising out of the License shall be effected by either party by causing the document in question to be delivered to the other party at its registered or principal office, or to such other address as may be notified in writing from time to time to the party serving the proceedings.