TERMS AND CONDITIONS


WHEREAS:

The Parties have signed an Order Document for the provision of licenses for the GDPR Staff Awareness Training Course (or the “Product”), these Terms and Conditions along with the fully executed Order Document and Service Level Agreement, shall be together referred to as the “Agreement” of which shall apply and govern the delivery and receipt of the Product to the Customer.

1. Definitions

1.1        In these Terms and Conditions the words on the left hand column shall have the meaning attributed to it on the right hand column:

“Agreement Date”

Shall have the date attributed to it on the Order Document.

“Agreement Term”

Shall have the date attributed to it on the Order Document.

“Charges”

Shall mean the charges payable in respect of the Product as detailed in the Order Document, all of which are net and exclusive of any taxes, duties or other additional sums associated with the Product.

“Company”

Shall mean MHR International UK Limited (or “MHR”), a company registered in England and Wales under number 1852206, of Peterbridge House, 3 The Lakes, Northampton, NN4 7HB              

“Confidential Information”

Means all information shared by one Party with the other  including, but not limited to, its business, finances, customers, services, processes and products communicated or received in any way whatsoever including, but not limited to, orally, in writing, electronically or obtained through observation. All such information which is designated as confidential or which is otherwise clearly confidential in nature.

“Customer”

Shall mean the customer as provided in the Order Document.

“Data Controller” and “Data Processor”

Shall have the meanings set out in s.1 (1) Data Protection Act 1998.

“Data Protection Legislation”

Shall mean (i) unless and until it is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the General Data Protection Regulation or the Data Protection Act 1998

“Force Majeure”

Shall mean an event which is beyond the control of an affected Party and which such Party could not anticipate or mitigate by means of insurance, contingency planning or any other prudent business means. Any event will only be considered Force Majeure if it is not attributable to the wilful act, negligence, default or other failure to take reasonable precautions to the affected Party, its agents, employees or contractors. Industrial dispute or action shall not give rise to an event of Force Majeure.

“GDPR Staff Awareness Training Course”

Is an e-learning course provided by MHR which aims to provide Customer employees with information on the new General Data Protection Regulation legislation set to come into force May 2018.

“Intellectual Property Rights”

Means copyrights, rights in databases, patents, trademarks, business or trade names, domain names, registered designs, utility models, design rights, inventions, trade secrets, confidential information, know-how, get-up, and all other intellectual property and neighbouring rights and rights of a similar or corresponding character anywhere in the world (whether or not the same are registered or capable of registration) and all applications and rights to apply for or for the protection of any of the foregoing.

“Losses”

Means costs, expenses, liability, injuries, losses, damages, claims, demands and legal costs, including any judgments. All of which hereby expressly excludes any special, indirect or consequential losses which shall not be payable by the Company under any circumstance.

“Order Document”

Refers to the document signed by both Parties which details, inter alia, the Agreement Date, Agreement Term, total number of Users and any other agreed terms.

“Party” or “Parties”

Shall mean the Company and/or the Customer.

“Personal Data”

Shall have the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Company is the service provider and Data Processor;

“Product”

Shall mean the GDPR Staff Awareness Training Course

“SLA”

Shall mean the Service Level Agreement (SLA) relevant to the GDPR Staff Awareness Training Course, detailing, inter alia, the service description and the responsibilities of the Parties.

“Users”

Shall mean the Customer nominated delegates whom will be provided login details by the Company in order to access and make use of the Product in accordance with the Agreement.

“Working Day(s)”

Shall mean any day other than Saturdays, Sundays and English bank and other public holidays.

 

 

 

 

1.2        Words imparting one gender shall include all genders, words imparting the singular shall include the plural, and vice versa.

1.3        Any headings are for ease of reference only and shall not affect the construction of any provisions of this Agreement.

1.4        The words “include” or “including”, and “included” shall be construed without limitation.

1.5        In the event of conflict, the order of precedence shall be as follows:

            (a)        the SLA;

            (b)        the Order Document; and

            (c)        these Terms and Conditions

2. Charges

2.1        The Customer shall pay the Charges to the Company in accordance with the terms of this clause 2 and the Order Document, all of which will be exclusive of Value Added Tax. All invoices shall be due within 30 days of the date of receipt of the Company’s invoice. Any dispute or query regarding an invoice must be raised by the Customer within 10 Working Days.

2.2        If any sum due from the Customer to the Company is not paid by the Customer by the due date for it, and is not subject to a bona fide dispute, the Company reserves the right (without prejudice to its other rights and remedies) to:

            2.2.1     charge interest on the outstanding sum until payment at the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998, in which case the Customer shall pay such interest on demand; and

            2.2.1     suspend access to the Product along with any rights granted to the Customer which may have accrued, by the Company giving the Customer 7 days’ written notice to that effect.

2.3        In the event that new legislation is enacted such that the Company must incur substantial expense in modifying the Product to ensure legislative compliance, then the Company will use reasonable endeavours to provide such modified Product in advance of the legislation taking effect, but in no event shall the Company be liable if despite such endeavours it is unable to do so. To ensure a timely delivery of the modified Product, the Company may increase the Charges. Such increase shall be made by way of written notice to the Customer, effective within 30 days, and will represent an increase of no more than 10 percent of the total Charges paid or payable per the Agreement.

3. Term and Termination

3.1        This Agreement shall commence on the Agreement Date and shall continue for the Agreement Term unless terminated earlier in accordance with clause 3.2, after which point the Agreement shall expire.

3.2        This Agreement may be terminated:

3.2.1     Immediately by either Party if the other Party commits a material breach of the Agreement which (in the case of a breach capable of being remedied) has not been remedied within 15 Working Days of a written notice from the Party not in default requiring the other Party to remedy that breach;

3.2.2     Immediately by the Company if an amount due per an Order Document is overdue and is not paid within 15 Working Days of the Company giving written notice to the Customer setting out details of the amount and stating that it is overdue;

3.2.3     Immediately by either party if any of the following events (or any event analogous to any of the following, in a jurisdiction other than England and Wales) occurs in respect of the other Party:

(a)        a proposal is made for a voluntary arrangement or for any other composition, scheme or arrangement with, or assignment for the benefit of, its creditors;

(b)        a shareholders’ meeting is convened or a resolution is passed for its winding up (except for a bona fide reconstruction or amalgamation);

(c)        a petition is presented for its winding up (which is not dismissed within 14 days of its service) or an application is made for the appointment of a provisional liquidator or a creditor’s meeting is convened pursuant to s.98 Insolvency Act 1986;

(d)        a receiver, manager or administrative receiver is appointed over any or all of its undertaking or assets;

(e)        an administrator is appointed or an application is made for such an appointment or the making of an administration order;

(f)         it becomes insolvent within the meaning of s.123 Insolvency Act 1986; or

(h)        a moratorium comes into force pursuant to Schedule A1 of the Insolvency Act 1986.

3.2.4     If either Party is unable to perform its obligations under this Agreement for a consecutive period of more than 3 months due to Force Majeure, the other Party may terminate this Agreement upon 30 days’ written notice.

3.3        In the event of early termination of this Agreement for whatever cause, the Customer shall not be entitled to any refunds of any amounts paid.

4. Obligations

4.1        In addition to any obligations set out in the Agreement, the Customer shall ensure:

4.1.1     it uses the Product in accordance with any relevant documentation or guidance supplied by the Company from time to time;

4.1.2     it does not, nor attempt or permit a Customer employee or agent to, reverse engineer, reverse compile, disassemble, adapt, modify or correct any errors in the Product or any part of it;

4.1.3     upon termination or expiry of the license as granted by this Agreement, the Customer expeditiously returns to the Company any Product (or Product documentation, including all copies thereof) and ceases to use the Product;

5. License Terms

5.1        All Intellectual Property Rights in the Product belongs and shall belong to the Company, and the Customer shall have no rights in or to them other than the right to make use of them in accordance with the terms of this Agreement.

5.2        The Company hereby grants to the Customer, for the Agreement Term, a non-exclusive, non-transferable license to access the Product for the purpose of completing the GDPR Staff Awareness Training Course. The Customer shall only use the Product solely for its own internal business purposes in the United Kingdom and for no other purposes whatsoever (this shall not prohibit remote access to the Product from outside of the United Kingdom).

5.3        The total amount of Users the license in 5.2 applies to shall be outlined in the Order Document.

5.4        The Company shall indemnify the Customer from and against all Losses sustained or incurred by the customer as a result of any claim by a third party that the use of the Product infringes the third party’s Intellectual Property Rights (an “IPR Claim”).

5.5        The indemnity in clause 5.4 shall not apply in respect of an IPR Claim where:

5.5.1     the IPR Claim is due to the Customer using the Product other than in accordance with the terms of the Agreement;

5.5.2     the Customer is in material breach of such Agreement;

5.5.3     the Customer has failed to notify the Company in writing of the IPR Claim within 15 Working Days of first knowing or being aware of it;

5.5.4     the Customer has made an admission of liability in respect of the IPR Claim without the prior written consent of the Company; or

5.5.5     the Customer has prevented the Company (at the Company’s expense) conducting any litigation and negotiations for settlement of the IPR Claim;

5.6        If the Customer’s acts or omissions cause the provisions of clause 5.5 to apply, the Customer shall indemnify the Company from and against all Losses sustained or incurred by the Company which might have been avoided but for such acts or omissions.

5.7        In the event of any actual or threated IPR Claim, the Company may, as its sole option and expense:

            5.7.1     procure for the Customer the right to continue using the affected part of the Product;

            5.7.2     modify or amend the Product provided that any such modification or amendment does not (in the Company’s reasonable opinion) materially adversely affect the capability and functionality of the Product.

            5.7.3     replace the Product (in whole or in part) with another product of substantially similar capacity, capability and functionality.

6. Warranties

6.1        The Company hereby warrants the following:

            6.1.1     That its title to and property in the Product is free and unencumbered and that it has the right, power and authority to license the same on the terms of this Agreement; and

            6.1.2     the Product has been compiled in accordance with good industry practice.

6.2        If the Company breaches the warranty given in 6.1, it shall at its option, and as applicable:

            6.2.1     amend the Product so that it conforms with the warranty; or

            6.2.2     refund an appropriate proportion of the Charges paid by the Customer, such amount to be determined by the Company in its sole opinion.

6.3        The warranty in clause 6.1 is conditional upon:

            6.3.1     the Customer giving written notice to the Company of any alleged breach of such warranty within 30 days of the date when the Customer discovers or ought to reasonably have discovered the alleged breach;

            6.3.2     the Customer affording the Company reasonable opportunity to investigate the failure; and

            6.3.3     the Customer not having committed any breach of its obligations under this Agreement which has led or contributed to the breach of warranty concerned.

6.4        Each of the Parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to an Agreement or not) other than as expressly set out in an Agreement as a warranty. The only remedy available to it for breach of the warranties will be as set out in the Agreement.

6.5        Whilst efforts have been made to ensure that the information and/or guidance contained in the Product is accurate, given the changing nature of laws, rules and regulations, there may be from time-to-time omissions or inaccuracies of the information and/or guidance contained in, or generated by the Product. Accordingly, all of the information and/or guidance arising out of, or in connection with the Product shall be without liability to the Company and the Product is provided “as is” with no guarantee of completeness, accuracy or fitness for any purpose other than that which is expressly provided by this Agreement.

7. Indemnity and Liability

7.1        Nothing in this Agreement excludes or limits the liability of either Party for death or personal injury caused by that Party’s negligence or for fraudulent misrepresentation; and the liability of the Company in respect of physical damage caused to the Customer’s property as a result of the Company’s negligence shall not exceed £5,000,000 (five million) GBP in respect of any one event or series of events.

7.2        Subject to clause 7.1 and 7.3, the aggregate liability of the Company in respect of any Losses which may be suffered by the Customer which arise out of or in connection with (a) any breach of this Agreement (whether made by act or omission), or (b) the Product, shall not exceed 100% of the total amount of Costs paid or payable by the Customer.

7.3        The aggregate liability of the Company under the indemnity provided in clause 9 in respect of all Losses suffered or claimed by the Customer (or any other person having benefit of the Agreement) during the Agreement Term or thereafter shall not exceed £1,000,000 (one million) GBP.

7.4        In no event shall the Company be liable for any decision made or action taken in reliance on the information and/or guidance provided by the Product. It is solely for the Customer to make its own assessment of the requirements imposed by Data Protection Legislation to ensure Customer employees awareness and compliance.

8. Confidentiality

8.1        Each Party may receive from the other Party Confidential Information of the other Party and neither Party shall copy or disclose any Confidential Information to any third party without the other Party’s prior written consent.

8.2        The restrictions set in clause 8.1 shall not apply to:

8.2.1     items which were already in the possession of the Party concerned before disclosure;

8.2.2     items obtained from another source which is free to disclose the same;

8.2.3     items which are in the public domain (except as a result of a breach of this Agreement);

8.2.4     the compiling and copying of elements of any data generated by the Product (which do not, taken together, comprise Personal Data or allow for the Customer or its employees to be identified) by the Company for the purposes of collating aggregated data or statistics for research purposes; or

8.2.5     disclosure of the Confidential Information to any representative of either Party whom have a need to know and are contractually bound not to disclose the same.

8.3        On termination or expiry of this Agreement both Parties shall, upon written request and direction of the other Party, return or destroy all Confidential Information (or copies thereof) that belongs to the other Party.

9. Data Protection

9.1        The Parties acknowledge that, for the purposes of the Data Protection Legislation, the Company is the Data Processor and the Customer is the Data Controller in respect of any Personal Data. As such the Company shall only process Personal Data on behalf of the Customer and only for the purposes of performing the Agreement. The SLA sets out the scope, nature and purpose of processing said Personal Data by the Company, as directed by the Customer.

9.2        Both Parties shall comply with all applicable requirements of the Data Protection Legislation in respect of Personal Data and as such, the Company shall not transfer Personal Data to a third country or international organisation, unless required to do so by applicable law.

9.3        Both Parties shall fully indemnify the other Party against any Losses for a breach of its obligations per the Data Protection Legislation.

10. General

10.1      The Parties agree that no person may enforce the terms of the Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 (or any successor legislation thereof).

10.2      Any terms and conditions contained within the Customer’s own form of order (or other similar document) shall be superseded by the terms of this Agreement.

10.3      Any notice required (including by law) or permitted under the terms of this Agreement shall be made in writing in the English language and delivered in person, sent by first class mail, or air mail to the Party’s address as stated in this Agreement. Notice shall be deemed delivered upon delivery (if delivered in person) or 48 hours after having been posted.

10.4      Nothing in this Agreement is intended to, or shall, operate to create a partnership or joint venture of any kind between the Parties, nor authorise either Party to act as agent for the other Party, or authorise either Party to act in the name or on behalf of, or otherwise to bind, the other Party in any way.

10.5      No variation to this Agreement shall be binding upon the Parties unless made in writing and signed by a duly authorised representative of each of the Parties.

10.6      In the event that any part or any term of the Agreement is determined invalid, unlawful or unenforceable to any extent then such term, or such part thereof shall be severed from the remaining terms of the Agreement which shall continue to be valid and enforceable to the fullest extent permitted by law.

10.7      Failure or neglect by the Company to enforce at any time any of the provisions hereof shall not be construed as, nor shall it be deemed to be, a waiver of the Company’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice the Company’s rights to take subsequent action.

10.8      No Party shall in any circumstances be liable to the other Party for any Losses suffered by the other Party by reason of any failure or delay in the performance of its obligations per the Agreement which is due to Force Majeure. Notwithstanding the foregoing, each Party shall use reasonable endeavours to continue to perform, or resume performance of, such obligations for the duration of such Force Majeure.

10.9      This Agreement may not be assigned or transferred in any way by the Customer without the Company’s prior written consent. The Company shall be entitled however, to assign the benefit (subject to the burden) of this Agreement to a company which succeeds to the business of the Company as a result of any internal reorganisation, reconstruction or amalgamation of the Company or any group of companies of which the Company from time to time forms part of.

10.10    If any dispute should arise in connection with this Agreement, the Parties shall first attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) model mediation procedure. This clause 10.10 shall not prevent either Party from seeking injunctive or interlocutory relief or remedy from the English courts in relation to any dispute.

10.11    This Agreement shall be governed by the laws of England and Wales and subject to clause 10.10, the Parties agree to submit any disputes under or in connection with this Agreement to the exclusive jurisdiction of the English courts.

10.12    This Agreement is entered into by the Parties upon signature of a duly authorised representative of each Party on the Order Document.

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