Terms and Conditions - GoodPractice

GENERAL TERMS AND CONDITIONS - TOOLKIT

1.Definitions

Access Period means the period during which the Users are provided with access to the Toolkit.

Agreement means these general terms and conditions together with the Commercial Terms.

Client means the client identified in the Commercial Terms.

Commercial Terms means the commercial terms agreed between GoodPractice and the Client in respect of the use of the Toolkit by the Client and varied from time in writing.

Fee means the amount payable set out in the Commercial Terms, as varied in accordance with this Agreement
GoodPractice means Good Practice, a trading name of Emerald Learning Limited, a company registered in Scotland with its registered office at 2nd Floor, Stewart House, 22 North West Thistle Street Lane, Edinburgh, EH2 1EA.

Initial Period means the initial period during which the Service shall be provided (from the Launch Date to the End Date) as set out in the Commercial Terms.

Maximum Number of Users means the maximum number of Users as stated in the Commercial Terms.

Term means the period from the Launch Date to the expiry or earlier termination of this Agreement.

Toolkit means the digital performance support tool for multimedia learning and development comprising resources such as articles, practical tools, self-assessments, infographics, e-learning, audio and video.

Users means individuals who have been properly authorised by the Client to access the Toolkit via the Website.

Website means the website used to provide access to the Toolkit as detailed in the Commercial Terms.

2. Licence 

2.1 In consideration of the Fee, GoodPractice grants to the Client the non-exclusive and non-transferable right to give Users access to the Toolkit throughout the Term, subject to the terms and conditions of this Agreement.

2.2 GoodPractice reserves the right to update, revise and replace the resources comprising the Toolkit at any time acting reasonably.

3. Fee and Payment

3.1 Unless otherwise stated in the Commercial Terms, the Client shall pay the Fee to GoodPractice within twenty eight (28) days of receipt of GoodPractice’s invoice.

3.2 For the avoidance of doubt, the Fee shall be exclusive of any sales, use, value added, non-recoverable, withholding or similar taxes and the Client shall be liable for any such taxes in addition to the Fee.

3.3 If this Agreement is automatically renewed in accordance with clause 8 GoodPractice will be entitled to increase the Fee for each renewal period, by an amount equal to the Retail Prices Index prevalent on the date of renewal plus an additional five (5) per cent.

4. Permitted Uses

4.1.Subject to payment of the Fee, the Client:

4.1.1 may allow Users to have access to the Toolkit through the Website for the Client’s training, learning and development purposes; and

4.1.2 may download or make paper copies of individual items of content forming part of the Toolkit available to Users for the purposes of the Client’s face-to-face training and development activities.

4.2 Subject to payment of the Fee, Users may search, view, retrieve, use, display on screen and download resources from the Toolkit for their training, learning and development purposes.

4.3 All rights in and to the Toolkit not expressly granted to the Client under this Agreement are reserved to GoodPractice and its licensors.

5. GoodPractice Obligations

5.1 GoodPractice shall, subject to the Client’s compliance with its obligations under this Agreement:

a) make the Toolkit available to the Client from the Launch Date through the Website based on internet access by an industry standard means of authentication;

b) provide the Client with information sufficient to enable the Client to access the Toolkit from the Launch Date; and

c) use its reasonable endeavours to make the Toolkit available to the Client and to Users from the Launch Date at all times and on a twenty-four hour basis, save for routine maintenance, and to restore access to the Toolkit as soon as possible in the event of an interruption or suspension of the service.

5.2 GoodPractice acknowledges that any copyright or other intellectual property rights in any materials provided by the Client for use on the Website will be unaffected by the terms of this Agreement. GoodPractice is hereby granted a non-exclusive, worldwide, royalty free licence to place and/or host such materials on the Website for the sole access of the Client and its Users.

6.Client Obligations

6.1 Within 30 days of this Agreement, the Client shall provide to GoodPractice all information sufficient to enable GoodPractice to provide access to the Toolkit via the Website.

6.2 The Client will use, and shall procure that Users use, the Toolkit in accordance with the terms of this Agreement and any instructions provided by GoodPractice in writing or on the Website (as may be updated from time to time).

6.3 The Client will ensure that the aggregate number of Users shall not exceed the Maximum Number of Users during the Term. If the Client requires the Maximum Number of Users to be increased, it should request permission from GoodPractice, who shall be entitled to increase the Fee.

6.4 The Client shall:

6.4.1 use all reasonable endeavours to ensure that all Users are aware of the permitted uses of Toolkit under this Agreement;

6.4.2 use reasonable efforts to prevent unauthorised use of the Toolkit and, on becoming aware of any unauthorised use or other breach of this Agreement, inform GoodPractice as soon as practicable in writing;

6.4.3 authenticate the identity of Users to accepted industry standards at log in and issue passwords (or equivalent access verification) to Users;

6.4.4 take all reasonable steps and appropriate steps (including, without limitation, taking disciplinary action), to promptly cease any unauthorised use of the Toolkit and ensure it does not recur. 

7. Warranties and Indemnities.

7.1 Each party warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.

7.2 Except as expressly provided in this Agreement, all representations or warranties of any kind, express or implied, including but not limited to the accuracy of the information contained in the Toolkit, merchantability or fitness of use for a particular purpose are to the fullest extent permitted by law excluded from this Agreement and accordingly the Toolkit is supplied “as is”.

7.3 GoodPractice shall not be liable to the Client or to any other person, including but not limited to Users, for any special, exemplary, indirect or consequential loss, costs, damages, charges or other expenses of any kind (including loss of profits or revenues, loss of business, depletion of goodwill, loss of anticipated savings, loss of contract or business interruption) arising under or in connection with this Agreement, in particular arising out of the inability to use, or the use of, the Toolkit.

7.4 GoodPractice’s aggregate liability for all claims, losses or damages arising under or in connection with this Agreement or any collateral agreement shall be limited to an amount equivalent to the Fee(s) received by GoodPractice from the Client in respect of the calendar year during which such claim, loss or damage occurred.
No party limits its liability for death or personal injury caused by its own negligence (or the negligence of its employees or agents) or for fraud.

8. Term and Termination

8.1 This Agreement will commence on the Confirmation Date and will automatically renew for consecutive periods of one (1) year unless and until either party gives the other no less than thirty (30) days' written notice, such notice to expire at the end of the Initial Service Period (the End Date in the Commercial Terms) or the end of the applicable renewal period.

8.2 Either party may terminate this Agreement by notice in writing to the other if the other party:

8.2.1 commits a material or persistent breach of any term of this Agreement and fails to remedy the breach (if capable of remedy) within thirty (30) days of notification in writing; and//or

8.2.2 becomes insolvent or becomes subject to bankruptcy, receivership, liquidation or administration.

8.3 If on expiry or earlier termination of this Agreement the Access Period is less than the Term, GoodPractice may, at its discretion, provide access to the Toolkit to the Users for an additional period up to a maximum of three (3) months. In such circumstances access to the Toolkit is subject to the terms of this Agreement.

8.4 On termination of this Agreement, all rights of the Client or Users to access the Toolkit will cease and the Client shall destroy any copies of the Toolkit in its possession or control and promptly provide to GoodPractice such evidence as it may reasonable require of the Client’s compliance with this requirement.

9. Confidentiality and Announcements

9.1 The terms of this Agreement are confidential and, except as permitted below or required by law, neither Party shall disclose the same to any third party without the written permission of the other Party.

9.2 The Client consents to GoodPractice providing the details of the Client’s customer account to the its group companies, associates, agents and IT service providers, some of which are based outside of the European Economic Area, where this is necessary to provide the services requested by the Client.

9.3 The Parties agree to maintain the confidentiality of any data relating to usage of the Toolkit by the Client and its Users. Such data may be provided to third parties in aggregated form only and shall not include any information relating to the identity of individual Users.

9.4 GoodPractice may publicly acknowledge that the Client is a customer and the Client grants to GoodPractice the right to use the Client’s name and quotations in public relations and promotional material.

10. General

10.1 Either party’s delay or failure to perform any provision of this Agreement, as a result of circumstances beyond its control (including, without limitation, war, strikes, floods, governmental restrictions, power, telecommunications or internet failures, or damage to or destruction of any network facilities) (a Force Majeure Event) shall not constitute a breach of this Agreement and neither party shall have any liability or responsibility for failure to fulfil any obligation under this Agreement so long as and to the extent to which the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.

10.2 This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter of this Agreement, whether oral or written. On giving notice via its website, GoodPractice may vary these General Terms and Conditions.

10.3 This Agreement may not be assigned by the Client to any other person or organisation without the prior written consent of GoodPractice.

10.4 Any notices to be served in writing on either of the parties by the other shall be sent by first class post and email to the address of the addressee as set out in this Agreement or to such other address as notified by either party in writing to the other as its address for service of notices. If no sooner response is received, notices shall be deemed served 24 hours after sending by email or 7 days after posting.

10.5 If any provision of this Agreement (or part of any provision) is found by any court or other competent authority to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid or un-enforceable provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

10.6 Either party’s waiver or failure to require performance by the other of any provision of this Agreement will not affect its full right to require such performance at any subsequent time, or be taken or held to be a waiver of the provision itself.

10.7 No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.

10.8 Unless otherwise stated in the Commercial Terms, this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and the parties submit to the non-exclusive jurisdiction of the Courts of England.

GENERAL TERMS AND CONDITIONS - BESPOKE E-LEARNING SERVICES

These terms and conditions apply to all services provided by GoodPractice in connection with bespoke e-learning products and all services are provided by GoodPractice on this basis.

1. Definitions

Agreement means these terms and conditions together with the Terms of Work;

Client means the company, organisation, firm or individual identified in the Terms of Work;

Confidential Information means all information which is identified or treated by the parties as confidential or which, by reason of its character or the circumstances or manner of its disclosure, is evidently confidential;

Fee means the fee set out in the Terms of Work, as varied in accordance with clause 3.3;

Final Release means the final release, forming part of the Services to be provided to the Client, a set out in the Terms of Work .

Intellectual Property and ‘IP’ means all patents, registered designs, trademarks and service marks (whether registered or not and all applications relating to the same), copyright, database rights, design rights, know-how, information and all similar property including that subsisting in inventions, designs, confidential information, business names and goodwill in any jurisdiction in any part of the world;

Services means the services required as set out in the Terms of Work

Terms of Work means the terms of work from GoodPractice in respect of each individual brief for e-learning product(s);

2. Services

2.1 GoodPractice shall provide the Services to the Client in return for observance by the Client of its obligations under this Agreement.

2.2 If the Terms of Work provide that the Services will be provided in stages and deliverables are specified; the Client’s acceptance of the services shall not be unreasonably withheld or delayed.

2.3 Each stage of the Services shall be deemed to have been provided on the sooner of (i) confirmation by the Client that it accepts the relevant part of the Services or (ii) the date 20 working days from the date that GoodPractice has provided the relevant part of the Services in accordance with this Agreement.

2.4 The Client will provide GoodPractice with the materials required to enable GoodPractice to perform the Services under this Agreement, including any materials detailed on the Terms of Work.

3. Payment

3.1 The Client will pay to GoodPractice the Fee (or any part of the Fee) within 30 days of receipt of an invoice supplied to the Client in respect of the Services (or any part of the Services) provided (see clause 2.3 in respect of when Services with specified deliverables are deemed provided). Payment will be in the manner detailed in the invoice.

3.2 Payments are stated exclusive of Value Added Tax or any other applicable sales tax, which will be payable in addition by the Client.

3.3 GoodPractice will be entitled to increase the Fee to reflect changes to the brief / increases in the scope of the Services, whether requested or caused by the Client, and which for the avoidance of doubt includes amendments after the conclusion of a stage of work and increases to the duration of the indicative timetable as detailed in the Terms of Work. Such increases to the Fee will be calculated in a manner that is consistent with the calculation used in the Terms of Work or, at GoodPractice’s option, on a time and costs incurred basis.

3.4 GoodPractice will notify the Client of any resultant increase in the Fee under clause 3.3 and where the changes to the brief / increases in the scope of the Services:

(a) are caused (but not requested) by the Client, the Client may elect to terminate this Agreement by giving written notice of termination within 5 working days of the notification from GoodPractice;
(b) are requested by the Client, the Client may retract its request by giving written notice of termination within 5 working days of the notification from GoodPractice and the Fee and Services shall remain unchanged.

3.5 Without prejudice to any other remedies of GoodPractice, in the event that the Fee (or any part of it) is not paid in full on the due date, GoodPractice may charge the Client interest (both before and after any judgement) on the amount unpaid, at the rate of 4% per annum above the Bank of England’s base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest), or, at GoodPractice’s option, suspend (wholly or partially) the provision of the Services.

4. Intellectual Property Rights

4.1 Any IP owned by either party and used in connection with the Services shall remain the property of the party introducing it. GoodPractice is hereby granted a non-exclusive, worldwide, royalty free licence to use materials provided to it by the Client (including all information and graphics however delivered) in connection with the provision of the Services.

4.2 The Client warrants that the use of the materials it provides to GoodPractice as contemplated in this Agreement will not infringe the IP or related rights of any third party. The Client agrees to fully indemnify and hold GoodPractice harmless from and against any loss arising out of any legal action taken against GoodPractice by a third party claiming infringement of such rights.

4.3 Any IP in the Final Release will vest in the Client and is assigned to the Client on the condition of receipt by GoodPractice of cleared funds representing full and final payment of the Fee for the Services.

4.4 Subject to clause 4.3 any IP written, originated, conceived or made in the conduct of the Services by GoodPractice (for example any drafts or material developed for but not used in the Final Release) will remain the property of GoodPractice unless otherwise agreed by the Parties in writing.

5. Confidentiality

5.1 Each party shall keep the other's Confidential Information confidential, and shall only use it for the purpose of which such Confidential Information was disclosed or as permitted by this Agreement.

5.2 A party will not be in breach of this Agreement where Confidential Information becomes generally available to the public other than by reason of a breach of this Agreement or is required to be disclosed by law or a court or other competent authority.

6. Exclusions and Limitations

6.1 GoodPractice warrants that it shall deliver the Services with the care, skill and diligence required in accordance with applicable industry standards. All other warranties, conditions, representations or other terms implied by statute or common law as to the nature or quality of the Services or otherwise are excluded to the fullest extent permitted by law. GoodPractice’s maximum liability in respect of the provision of the Services (whether arising in negligence or otherwise) will be limited to the total price paid by the Client for the Services under this Agreement. GoodPractice will in no event be liable for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill and/or any consequential or indirect loss (howsoever caused and whether arising out of any breach of these conditions, negligence or otherwise).

6.2 If requested by the Client, the Final Release may contain hyperlinks to a range of other websites. These sites are not under the control of GoodPractice and are not monitored by GoodPractice and therefore GoodPractice assumes no responsibility or liability for any material that may reside on any external web link.

6.3 Nothing in this Agreement shall be construed as limiting or excluding liability for death or personal injury caused by the negligence of GoodPractice, its directors, employees or agents, or for fraudulent misrepresentation.

7. Term and termination

7.1 This Agreement will continue to apply unless and until it is terminated in accordance with this Agreement.

7.2 Either party may terminate this Agreement by giving the other no less than 30 (thirty) days' written notice.

7.3 If the Client is in breach of this Agreement, GoodPractice may immediately terminate this Agreement by notifying the Client.

7.4 In the event that one party becomes insolvent or becomes subject to bankruptcy, receivership, liquidation or administration, then the other party may terminate this Agreement by notifying the first party in writing.

7.5 In the event that one party commits any fraud or dishonesty or acts in any manner which in the opinion of the other party brings or is likely to bring the other party into disrepute or is materially adverse to the interests of the other party the other party may terminate this Agreement by notifying the first party in writing.

7.6 Termination of this Agreement by either party shall not affect the rights and obligations accrued prior to the effective date of termination. In the event of Termination by the Client, any part of the Fee in respect of any part of the Services that have been provided in accordance with this Agreement but not yet accepted and/or invoiced at the effective date of termination will remain payable in full.

8. Data Protection

The Client consents to GoodPractice holding and processing all necessary personal data relating to the Services. GoodPractice shall comply with the relevant obligations under the Data Protection Act 1998 and other applicable laws and associated codes of practice when processing this data.

9. General

9.1 Either party’s delay or failure to perform any provision of this Agreement, as a result of circumstances beyond its control (including, without limitation, war, strikes, floods, governmental restrictions, power, telecommunications or internet failures, or damage to or destruction of any network facilities) (a Force Majeure Event) shall not constitute a breach of this Agreement and neither party shall have any liability or responsibility for failure to fulfil any obligation under this Agreement so long as and to the extent to which the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.

9.2 This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter of this Agreement, whether oral or written. On giving notice via its website, GoodPractice may vary these General Terms and Conditions.

9.3 This Agreement may not be assigned by the Client to any other person or organisation without the prior written consent of GoodPractice.

9.4 Any notices to be served in writing on either of the parties by the other shall be sent by first class post and email to the address of the addressee as set out in this Agreement or to such other address as notified by either party in writing to the other as its address for service of notices. If no sooner response is received, notices shall be deemed served 24 hours after sending by email or 7 days after posting.

9.5 If any provision of this Agreement (or part of any provision) is found by any court or other competent authority to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid or un-enforceable provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

9.6 Either party’s waiver or failure to require performance by the other of any provision of this Agreement will not affect its full right to require such performance at any subsequent time, or be taken or held to be a waiver of the provision itself.

9.7 No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.

9.8 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and the parties submit to the non-exclusive jurisdiction of the Courts of England.

 

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