For ease of reference, certain words used throughout this Agreement are given a specific meaning. These meanings are set out below:
“Agreement” means these terms and conditions together with the Membership Letter or email;
“Date of Commencement of the Service” means the date to be agreed between the parties for the commencement of the Service following the end of the Evaluation Period;
“GoodPractice” means Good Practice Limited, a company registered in Scotland with its registered office at 160 Dundee Street, Edinburgh, EH11 1DQ;
“GoodPractice Materials” means the Materials produced by GoodPractice including but not limited to the Materials based on the information provided by the Member specifically for this purpose;
“Materials” means all information and graphics appearing on the Website, including text, illustrations and images;
“Member” means the company, organisation, firm or individual identified in the Membership Letter or email;
“Member Materials” means Materials produced by the Member;
“Membership Fee” means the amount set out in the Membership Letter or email, as varied in accordance with Clause 4;
“Membership Letter or email “ means the letter or letters or email or emails from GoodPractice setting out details of the Member, the Service details, the Service period, the Number of Users, the Membership Fee, and the name(s) of the Member’s representative(s);
“Multi-Year Member” means a Member for whom the Membership Fee covers the period from the Date of Commencement of the Service until the end of the Service Period specified in the Membership Letter or email, such Service Period being greater than a calendar years from the Date of Commencement of the Service;
“Number of Users” means the total number of Users who may use the Service;
“One-Year Member” means a Member for whom the Membership Fee covers the period from the Date of Commencement of the Service until the end of Year One;
“Service” means that part of the web based knowledge management and resource service provided by GoodPractice as described in the Membership Letter or email;
“Service Period” means the period during which the Service shall be provided, as more specifically set out in the Membership Letter or email;
“User” means an individual who is licensed to use the Service under the terms of the Membership Letter or email;
“Website” means the website at www.GoodPractice or such other website used to deliver the Service as detailed in the Membership Letter or email; and
“Year One” means the first calendar year of the Service, commencing on the Date of Commencement of the Service;
2.1 GoodPractice shall provide access to the Service to the Member who shall allow the identified Users access to the Service in return for observance by the Member and the User of their obligations under this Agreement.
2.2 The Service may be supplied initially for the Evaluation Period. Use of Service for the Evaluation Period will be free of charge.
2.3 The Service will cease automatically after the Evaluation Period and the Agreement will terminate unless the Member notifies GoodPractice in writing or via the Website within 60 (sixty) days that it wishes to subscribe to the Service, in which case the Agreement will continue in force in accordance with the provisions of Clause 15.
2.4 The Member will ensure that all usernames and passwords provided in the Membership Letter or email are kept confidential and will not permit any person other than the Users to access the Service using these passwords.
2.5 The Member shall ensure that the User shall not disclose to any third party the username and password provided to it.
3.1 The Member hereby nominates the person(s) named in the Membership Letter or email as the Member’s representative(s) for the purposes of this Agreement. The Member confirms that the Member’s representative(s) has the full authority of the Member to give instructions to GoodPractice and to receive any notice from GoodPractice in relation to matters relating to this Agreement.
3.2 The Member will use, and shall ensure Users use, the Service in accordance with the terms of this Agreement and any instructions provided by GoodPractice in writing or on the Website (as this may be updated from time to time).
3.3 The Member shall ensure that Users are bound by an obligation of confidentiality to the Member. The Member acknowledges that GoodPractice may require Users to enter into separate confidentiality and acceptable use policies with the Member or GoodPractice before such Users are permitted to access the Service. Where the Member has entered into a contract directly with Users, it shall take all reasonable steps to enforce such contract in the event of any breach of its terms.
3.4 The Member shall maintain accurate written records of all Users, and shall, at GoodPractice’s request, exhibit such records to GoodPractice and allow GoodPractice to take such copies as are reasonably required. Where the Member intends to allow any contractor to have access to the Service, the identity of the contractor must be given to GoodPractice for approval in advance.
3.5 If the Member wishes to change the identity of any User or increase the Number of Users, it may do so on notifying GoodPractice in writing. If the Member has been authorised by GoodPractice in writing to amend details via the Website then the Member may change the identity of any User or increase the number of Users only to the extent agreed by GoodPractice. If any increase in the Number of Users is requested, GoodPractice will notify the Member of the additional cost payable.
4.1 Unless this Agreement has been terminated under Clause 2.3, the Member will pay the Membership Fee as follows:
4.1.1 Any Multi-Year Member will pay the Membership Fee for the Service Period in annual instalments, with the first payment being payable within 30 (thirty) days of the Date of Commencement of Service. Thereafter, further annual payments during the Service Period shall be payable within 30 (thirty) days of each anniversary of the Date of Commencement of Service. Each payment being in return for an invoice from GoodPractice.
4.1.2 Any One-Year Member will pay the Membership Fee for the period to the end of Year One in one instalment, payable within 30 days of the Date of Commencement of Service, such payment being in return for an invoice from GoodPractice. Thereafter, if the User wishes to continue to access the Service the Membership Fee will be payable annually within 30 (thirty) days of each anniversary of the Date of Commencement of Service.
4.2 GoodPractice will be entitled to increase the Membership Fee annually, by an amount equal to the Retail Prices Index as prevalent on the date of renewal, such increase to take effect from the third or subsequent anniversaries of the Date of Commencement of Service for Multi-Year Members and from the first or subsequent anniversaries of the Date of Commencement of Service for One-Year Members. If the Member does not wish to pay the increased Membership Fee, it may terminate this Agreement on giving written notice to GoodPractice, such notice to have effect from the date the new Membership Fee would come into force.
4.3 Payment shall be made in the manner detailed in the invoice supplied to the Member.
4.4 Payments are stated exclusive of Value Added Tax or any other applicable sales tax, which will be payable in addition by the Member.
4.5 Without prejudice to any other remedies of GoodPractice, in the event that the Membership Fee or any instalment of the Membership Fee, as applicable, is not paid in full on the due date, GoodPractice may charge the Member interest (both before and after any judgement) on the amount unpaid, at the rate of 4% per annum above the Royal Bank of Scotland plc’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) access to the Service by the Member or any User.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Subject to Clause 5.3 the Member acknowledges that all copyright, trade marks (registered or unregistered), know-how, and all other intellectual property rights in the GoodPractice Materials (excepting always the information provided by the Member), the Website and the Service shall belong to GoodPractice or its licensor as the case may be.
5.2 The GoodPractice Materials are provided by GoodPractice for the sole use of the Member and Users, and on the following conditions:
5.2.1 Subject to Clause 5.2.3, the GoodPractice Materials may be accessed, viewed, downloaded, stored, amended, copied and used solely for the internal business purposes of the Member in accordance with the terms of this Agreement;
5.2.2 The GoodPractice Materials may be stored electronically by the Member and Users, provided that only the Member and Users view the GoodPractice Materials;
5.2.3 Physical (not electronic) copies of a reasonable part of the GoodPractice Materials may be made available by Members and Users to staff and clients of the Member and Users for the purposes of face-to-face training and development activities or coaching services or the development of associated materials. Such staff and clients must agree to an obligation of confidentiality in respect of the GoodPractice Materials in like form to that set out in Clause 6 of this Agreement, and may not use the GoodPractice Materials other than for their internal business purpose.
5.2.4 No other reproduction, modification, copying or use is allowed, and save as permitted by Clause 5.2.3, GoodPractice Materials or information based on the GoodPractice Materials may not be supplied to any third party without the express written consent of GoodPractice.
5.3 No copyright notices may be removed from the GoodPractice Materials by the Member and the Member shall ensure that the Users do not remove any copyright notices from the GoodPractice materials.
5.4 GoodPractice acknowledges that the copyright in the Member Materials and the information provided by the Member for the GoodPractice Materials will be owned by the Member. GoodPractice is hereby granted a non-exclusive, worldwide, royalty free licence to place and/or host such Member Materials on the Website for the sole access of the Member and its Users. GoodPractice confirms that it will not make any Member Material or GoodPractice Material which is based in information provided by the Member available to any third party without the prior consent of the Member, but that GoodPractice may use the general know-how acquired in developing the GoodPractice Material within other Materials on the Website, provided that no information confidential to the Member is disclosed.
5.5 The Member confirms that it has all necessary permissions and consents to:
5.5.1 allow GoodPractice to use the information upon which the Member Materials is based and to place the Member Materials on the Website: and
5.5.2 allow GoodPractice to use such information provided by the Member to produce the GoodPractice Materials.
6.1 For the purposes of this Clause, “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.
6.2 In addition to the obligations under Clause 5 in respect of the Materials, each party shall keep the other’s Confidential Information confidential, and shall only use it for the purpose for which such Confidential Information was disclosed or as permitted by this Agreement.
6.3 Either party may disclose the Confidential Information of the other only to those of its employees, agents, subcontractors or advisors who need to know such information and who are bound by equivalent obligations of confidentiality as are imposed by this Agreement.
6.4 A party will not be in breach of this Agreement where Confidential Information becomes generally available to the public without a breach of Clause 6 or has been independently disclosed, without an obligation of confidentiality, to the other party.
6.5 A party may disclose Confidential Information to the extent required by law where the disclosure is required by law, by order of a court of competent jurisdiction, by legal request of a regulator or supervisory body or authority with whose request a party is obliged or accustomed to comply (whether or not having the force of law) or if required by the laws or regulations of any stock exchange other organised securities market, H.M.Revenue &Customs or the Financial Services Authority.
7. EXTERNAL WEB LINKS
The Website contains hyperlinks to a range of other websites. These sites are not under the control of GoodPractice and therefore GoodPractice assumes no responsibility or liability for any material that may reside on any external web link.
8. ACCURACY OF INFORMATION
GoodPractice uses its best efforts to keep the GoodPractice Materials available on the Website accurate. However GoodPractice makes no guarantee of any kind, either express or implied, regarding the accuracy or validity of the GoodPractice Materials. The Member acknowledges that (i) any reliance upon such GoodPractice Materials obtained from the Website is at the sole risk of the Member and (ii) the Member is solely liable for the accuracy or otherwise of the Member Materials and any information provided to GoodPractice for the production of any GoodPractice Materials.
9. EXCLUSIONS AND LIMITATIONS
9.1 GoodPractice WARRANTS THAT THE MEMBER MAY MAKE USE OF THE SERVICE AS PERMITTED BY THIS AGREEMENT. ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW AS TO THE NATURE OR QUALITY OF GOODS OR SERVICES OR OTHERWISE ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. GoodPractice’S MAXIMUM LIABILITY IN RESPECT OF THE PROVISIONS OF THE SERVICE (WHETHER ARISING IN NEGLIGENCE OR OTHERWISE) WILL BE LIMITED TO THE GREATER OF £10,000 OR AN AMOUNT EQUAL TO THE ANNUAL MEMBERSHIP FEE PAID BY THE MEMBER. GoodPractice WILL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL OR INDIRECT LOSS OR DAMAGE OR FOR ANY LOSS OF PROFIT, DATA OR BUSINESS (HOWSOEVER CAUSED AND WHETHER ARISING OUT OF ANY BREACH OF THESE CONDITIONS, NEGLIGENCE OR OTHERWISE).
9.2 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.
10. RESERVATION OF RIGHTS
GoodPractice reserves the right to suspend all or any of the Service for technical, legal or regulatory reasons. Wherever possible, GoodPractice shall provide notice of such matters.
11. INTERRUPTION TO SERVICE
The Member and Users accept that computer and telecommunication systems are not fault free and may experience or require occasional periods of downtime (during which some or all of the Service will not be available) whether for repair, maintenance, upgrading or otherwise, and GoodPractice cannot guarantee uninterrupted availability. GoodPractice will use all reasonable endeavours to minimise such periods of non-availability. The Member shall have no claim for breach of contract or otherwise in respect of any such period of non-availability.
12.1 The Member shall indemnify GoodPractice against any and all claims, actions, damages, liabilities, costs and expenses including reasonable lawyer’s fees and expenses arising:
12.1.1 out of the Member’s or the user’s breach or non-observation of any of the terms of this Agreement; and
12.1.2 from any intellectual property rights infringement for hosting of member Materials and/or any information provided by the Member in the GoodPractice Materials.
13. MEMBER INFORMATION
14. MEMBER’S OBLIGATIONS
14.1 The Member will not use, and will ensure that no User uses, the Service to transmit any improper, illegal or defamatory messages nor transmit any message, data, image or program that would violate the property rights of others, including unauthorised copyrighted text, images or programs, trade marks or trade secrets or other confidential proprietary information
14.2 The Member will not, and will ensure that Users do not, interfere, in any way, with others’ use of or access to the Website.
14.3 GoodPractice reserves the right to take such action as it deems appropriate, including but not limited to the immediate removal of such content, where the Website is used by Users to disseminate statements which are offensive or harmful.
14.4 GoodPractice reserves the right to suspend or terminate provision of the Service to any Member which is or appears to be in breach of any of the provisions of this Agreement, including the provision by Members or Users of false registration details or other misuse of Service, or where the Member is subject to a change of control or ownership.
14.5 The Member acknowledges that the Member is solely liable for the acts and omissions of the Users and shall remain liable for such persons following the removal by the Member of permission to access the Service, whether by deletion of a password or otherwise.
15.1 This Agreement will commence on the date set out in the Membership Letter or email and, unless terminated in accordance with this Agreement, will continue thereafter unless and until either party gives the other no less than 30 (thirty) days’ notice, such notice to expire as follows:
15.1.1 for any Multi-Year Member, at the end of the agreed Service Period as set out in the Membership Letter or email, or as specified in Clause 18.4.
15.1.2for any One-Year Member, 12 (twelve) months after the Date of Commencement of Service or on any subsequent anniversary of the Date of Commencement of Service, or as specified in Clause 18.4.
15.2 On termination of this Agreement, all rights of the Member or Users to access, view, download, store, amend, copy, and use the GoodPractice Materials (excepting always the GoodPractice Materials based on information provided by the Member), and to permit any of the above, will cease
16. BREACH AND INSOLVENCY
16.1 This Agreement is binding on GoodPractice and the Member. If either GoodPractice or the Member are in breach of this Agreement, the party not in breach may immediately terminate this Agreement by notifying the other in writing.
16.2 In the event that one party convenes a meeting of its creditors or if a proposal for a voluntary arrangement within Part I of the Insolvency Act 1986 or for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors is made or if one party shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of one party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of one party or for the making of an administration order (otherwise then for the purpose of a solvent amalgamation or reconstruction), then the other party may terminate this Agreement by notifying the first party in writing.
17. DATA PROTECTION
Each party warrants to the other that they have made the proper notification to the Office of the Information Commissioner in respect of their use and processing of personal data (as that term is defined in the Data Protection Act 1998) and that they have all necessary consents and permissions in relation to any personal data which they supply to the other party.
18.1 Any notice to be given in writing under this Agreement will be validly served only if given in writing to (in the case of the Member) the registered office or the address details supplied by the Member or (in the case of GoodPractice) the registered office, or such other address notified to Members by GoodPractice.
18.2 GoodPractice’s rights under this Agreement may be exercised as often as necessary, are cumulative and not exclusive of its rights under the general law and may be waived only in writing and specifically. Delay in exercising or non-exercise of any right is not a waiver of that right.
18.3 Any right to withdraw from or cancel this Agreement conferred upon GoodPractice by this Agreement shall be in addition to and without prejudice to all other rights and remedies available to GoodPractice.
18.4 This Agreement and the documents referred to in it, together with any additional terms provided pursuant to Clause 3.2, constitute the entire agreement and understanding between the parties and supersede any previous agreement between the parties relating to the subject matter of this Agreement. On giving notice via the Website, GoodPractice may vary these terms and conditions. In such event, the Member will have 30 (thirty) days from the date of notification of any amendment to give GoodPractice written notice to terminate this Agreement, such notice having effect from the coming into force of the new terms and conditions. In such an event, GoodPractice will refund to the Member within 30 (thirty) days any prepaid Membership Fee for the relevant unexpired period on a pro rata basis.
18.5 GoodPractice may assign or sub-contract its rights or obligations under this Agreement. Assignation or sub-contracting of the Member’s rights and obligations will be permitted only with the prior written consent of GoodPractice.
18.6 Each party acknowledges and agrees that in entering into this Agreement and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or undertaking (whether negligently or innocently made) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement. Nothing in this Agreement shall, however, operate to limit or exclude any liability for fraud.
18.7 Neither party will be liable for any breach of this Agreement due to a matter outside that party’s reasonable control.
18.8 If any provision of this Agreement becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement or the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement.
18.9 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either of the parties to act as agent for the other, and neither of the parties shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18.10 In the event of any dispute arising out of or relating to this Agreement, the representatives of the parties shall meet to resolve the dispute and shall do so in good faith.
18.11 This Agreement shall be governed and construed in accordance with the law of Scotland and both parties hereby submit to the exclusive jurisdiction of the Scottish courts.
Chief Executive Officer
22 North West Thistle Street Lane
EDINBURGH EH2 1BY
Freephone: 0800 280 0414
Phone: +44 (0)845 22 33 002
Fax: +44 (0)131 221 3127