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Dangerous Substances

What are dangerous substances? This course explores the definition of dangerous substances and considers different types of substances and the possible short and long term health implications. We will consider the responsibilities of the employee and the organisation to ensure everyone is safe from the hazards and risks of dangerous substances in the workplace. Furthermore we will look at the law in relation to harmful substances.

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Micro Learn

MicroLearn designs and delivers top-class microlearning resources, to an impressive range of organisations and our cost-effective, off-the-shelf library is growing rapidly, now featuring over 200 eye-catching, interactive resources. So, no matter what you’re eLearning objectives, MicroLearn has a quick and easy solution to help you reach organisation's goals. As a dedicated training provider, we update our catalogue every quarter, releasing new titles that are designed to help improve both workplace performance and personal wellbeing. In fact, we pride ourselves on listening to our customers in order to develop content learners actually want, and need, to tackle modern learning challenges.

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white labelling Customise your LMS with your company logo and brand colours.
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premium onboarding Face to face full day discovery session for implementation, with ongoing 24/7 support and face to face training sessions. - project management - dedicated account manager

SOFTWARE LICENSE AND SERVICES AGREEMENT

AGREEMENT dated the (“effective date”); BETWEEN , having its registered office at (hereinafter called “the Client” which expression shall include its successors and assigns) of the one part AND My Learning Hub Ltd, 8974897 having its registered office at 3 Martineau Drive, Twickenham, TW1 1PZ, United Kingdom (the “Contractor” which expression shall include its successors and permitted assigns) of the other part. WHEREAS Client and the Contractor have agreed that, for the duration of the Term, Client shall engage the Contractor to provide the Services, in accordance with the terms of this Agreement. NOW IT IS HEREBY AGREED as follows:

“Acceptance”

means acceptance of the final completed Solution.

“Acceptance Tests”

means the tests (to be agreed in writing by the parties during the design phase) and carried out in accordance with Clause 2.7, which tests are designed to show, as relevant, that the Solution works in accordance with the Solution Specification.

“Agreement”

means this Agreement herein.

“Authorised Use”

means the specific uses for which Client is authorised and permitted to use the Software pursuant to the license as granted in Clause 28 and as set out in this Agreement.

“Client Internal Policies”

means all internal policies which are notified to the Contractor by Client from time to time and which ordinarily apply to Contractor employees, agents and sub-contractors including, without limitation, policies relating to health and safety, human resource policies, I.C.T security, data privacy and the acceptable use of stationery, telephones, e-mail, intranet and internet.

“Client Representative”

means an individual or group of individuals appointed by the Client to act on its behalf throughout the Term.

“Computer Virus”

means any undocumented malicious data, code, program, malware or other internal component (for example, computer worm, computer time bomb or similar component), which could damage, destroy, alter or disrupt any computer program, firmware or hardware or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information.

“Contractor Delay”

means in respect of Milestone Dates, circumstances in which the material and principal cause of the relevant delay is due to the act, omission, failure or refusal to act in accordance with the Agreement of and by the Contractor and/or any party for whom the Contractor is responsible, such that there is no other material cause for the delay.

“Contractor Representative”

means one of the account managers assigned to the project.

“Documentation”

means any relevant documents associated with the Services and the Software to be provided by the Contractor to Client under this Agreement.

“Fault”

shall include, but shall not be limited to, any fault, error or omission in the Solution caused by design defect, faulty materials, bad workmanship or other reason or a failure to meet the Solution Specification.

“Force Majeure Event”

means in relation to a party, any reasonably debilitating event or circumstance beyond the reasonable control of that party and which is not due to the act, error, omission, breach, default or negligence of that party or any of its employees, agents or contractors. Subject always to the foregoing, Force Majeure Events include:

  • acts of terrorists;
  • any strike, lock-out or other industrial action or labour dispute primarily or substantially aimed at a party or its suppliers, sub-contractors, agents or employees;
  • war declared or threatened, blockade, revolution, riot, insurrection, civil commotion, invasion or armed conflict;
  • sabotage or acts of vandalism, criminal damage or the threat of such acts; and
  • natural disasters and phenomena including exceptional weather or environmental conditions or extreme events, damage or delay to operations as a result fire, flood, earthquake, meteorites, explosions including nuclear explosion, radioactive or chemical contamination or ionising radiation, but does not include: (i) lack of funds; (ii) inability of a party to pay; (iii) events affecting a contractor or supplier of the party that would not have constituted a Force Majeure Event under this Agreement; (iv) changes in market conditions; or (v) inability to make a profit.

“Health and Safety Acts”

means the Safety, Health and Welfare at Work Acts 1989 to 2005, the Safety, Health and Welfare at Work (Construction) Regulations 2001 to 2006 and the Safety, Health and Welfare at Work (General Application) Regulations 2007, or if outside the UK, any other applicable health and safety rules or legislation.

“Initial Services”

means any project management, consultancy, analysis, design, development, delivery, implementation, training and “go live” date set out in Schedule 2 hereto, which shall be completed in accordance with the project plan.

“Intellectual Property Rights”

means patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in set-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights (to include any design, specification, ideas, know-how, techniques, documentation, software, reports that may be developed herein and/or supplied herein), in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.

“Know-how”

means unpatented business and technical information (including, without limitation, information relating to inventions, discoveries, concepts, methodologies, models, research, development and testing procedures, the results of experiments, tests and trials, manufacturing processes, techniques and specifications, quality control data, analyses, reports and submissions) that is not in the public domain;

“Laws”

means all laws (including common law), statutes, statutory instruments, directives, regulations, rules, regulations, bye-laws, codes, orders, decrees, judgments, consent decrees, settlement agreements, or other pronouncements, in each case having force of law.

“Milestone Date(s)”

means the date of substantial completion, the date of final completion, and any other dates stated in the Purchase Order or Project Plan for the Learning Management System’s implementation project.

“Minimum System Requirements”

Supported Browsers: Chrome - Version 58 and above Firefox Version 60 and above Edge - Version 16 and above Safari - Version 11.1 and above IE 11 - Minor glitches IE 10 - Limited functionality

“Modification”

means a software modification which may in any way modify, correct, add, amend or upgrade the Software, but for the avoidance of doubt does not constitute a New Version.

“New Version”

means a new version release or update of the Software which may be made publicly available by the Contractor which corrects Faults, adds functionality or otherwise amends, updates or upgrades the Software.

“Pre-Contractual Statement”

means any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person or party (whether party to this agreement or not) relating to the engagement, save for as expressly set out in this Agreement.

“Services”

means the services (including the Support Services and any Initial Services) and Solution (as relevant) as set out in Schedule 2 hereto.

“Site”

means Client’s head office at 965 Corporate Boulevard, Aurora, Illinois 60502, or any other Client site and/or sites, within its ownership and/or control, as may reasonably be specified, from time to time, by Client and notified to the Contractor.

“Software”

means any computer software, as relevant, which may be required to be developed and/or supplied by the Contractor under this Agreement, including any third party software (supplied by the Contractor) and shall include any New Version or Modifications to be supplied under this Agreement.

“Solution”

means the Software including Solution Specification, design, implementation and the Documentation.

“Solution Specification”

means the document, to be developed by the Contractor and agreed in writing by Client in accordance with the Services, which will contain a breakdown of the business and functional requirements of the Solution, as well as a detailed specification for each Software module within the Solution and the elements comprising each Software module.

“Support Services”

means the support services to be provided by the Contractor (including as set out in the Service Levels) to Client, pursuant to this Agreement and its provisions, as more set out in the Schedule 4 hereto for the period of months or such further period as may be agreed by the parties hereto.

“Service Levels”

means the Contractor service levels set out in Clause 30.

“Term”

means the term of months.

Words importing the singular includes the plural, the masculine include the feminine and vice- versa where the context requires. In this Agreement, headings are for convenience and ease of reference only and shall not affect interpretation. In the event of any ambiguity or discrepancy within or between any of the documents comprising this Agreement, Client, acting reasonably, shall direct how such ambiguity or discrepancy shall be resolved. A reference to a particular Laws is a reference to it as it is in force for the time being taking account of any amendment, extension, modification, replacement or re-enactment and includes any subordinate legislation or instrument for the time being in force as may be made under it. Any words following the terms “including”, “include”, in particular, or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. Any reference to Schedules and/or Appendices to this Agreement form part of and are incorporated into this Agreement.

TERMS OF ENGAGEMENT

Client and the Contractor have agreed that, for the duration of the Term, Client shall engage the Contractor to provide the Services, in consideration of the amount specified in Schedule 1.

Unless it has been specifically authorised to do so by Client (pursuant to the provisions of this Agreement or otherwise in writing), the Contractor shall not:

  • have any authority to incur any expenditure in the name of or for the account of Client, save with the express consent in writing of Client,
  • hold itself out as having authority to bind Client; or
  • make any public reference to its engagement hereunder. A public reference includes but is not limited to the Contractor’s dealings with third parties whether involved or not in the provision of the Services, whether verbally or by way of its own promotional or advertising material (to include, but not limited to, brochures and websites) and otherwise except where it is specifically required by this Agreement.

The relationship of the Contractor to Client will be that of an independent contractor and nothing in this Agreement shall render the Contractor or any of its personnel engaged in the performance of this Agreement an employee, worker, agent or partner of Client and the Contractor agrees and undertakes that it and its personnel shall not hold itself out as such. This Agreement constitutes a contract for supply or provision of independent services only and is not a contract or agreement of employment nor is it to be construed as any other form of contract or agreement between the parties. The Contractor shall bear the sole risk and responsibility for its own personnel, to include its/their employees, contractors, sub-contractors, servants and agents, as may be engaged in the performance of this Agreement and for ensuring their compliance with and adherence to the terms and conditions of this Agreement. The Contractor warrants that it shall comply with all Laws relevant to it as a provider of IT services, employment protection and working conditions and obligations. Nothing in this Agreement shall prevent the Contractor from being engaged, concerned or having any financial interest in any capacity in any other business, trade, profession or occupation during the Term, provided always that it does not in any way pose a conflict of interest, interfere or conflict with and/or impact upon Client and/or its performance of this Agreement. The Contractor shall not offer, give or agree to give, whether directly or indirectly, any person or party in the service of Client any gift or consideration of any kind as an inducement or reward in relation to the obtaining or execution of this Agreement, or any other agreement or contract, for or with Client.

Acceptance Tests

Unless otherwise agreed between the parties, the Contractor shall give Client not less than 7 days’ notice that the Solution is ready for Acceptance Tests. If the Solution fails the Acceptance Tests (disregarding any minor and inconsequential failures), subject to the Client notifying the Contractor within 14 days of the date of failure in writing, the Contractor shall, forthwith rectify free of charge such Faults in the Solution as it shall in the circumstances reasonably judge necessary and in sufficient time to make possible the repetition of the Acceptance Tests within 30 days of the date of notification of failure (or such later date as the parties may agree) (the “First Repeat Acceptance Tests”). If the Solution fail(s) the First Repeat Acceptance Tests, Client may, at its option:

  • subject to the Client notifying the Contractor within 14 days of the date of failure in writing, require the Contractor to rectify forthwith free of charge such Faults in the Solution as the Contractor shall reasonably judge necessary to enable the Solution to pass repeat Acceptance Tests (the “Second Repeat Acceptance Tests”). The Second Repeat Acceptance Tests shall be carried out within 30 days of the date of notification of failure or such later date as the parties may agree If the Contractor shall not have completed such alterations or modifications by the 30th day after the First Repeat Acceptance Tests or such later date as may have been agreed, if the Solution (or any part thereof) shall fail the Second Repeat Acceptance Tests, Client shall be entitled at its option to proceed under Clauses 2.7.3.2 to 2.7.3.4 (inclusive) below;
  • fix a new date for carrying out further Repeat Acceptance Tests on the same terms and conditions as the Second Repeat Acceptance Tests;
  • accept such Second Repeat Acceptance Tests;
  • without prejudice to any rights or remedies to which Client may have, to include the termination of this Agreement and to receive up to a full refund of all and any Payment in respect of Software licencing paid pursuant to this Agreement or reliance upon this Agreement, save for any Payment made in respect of Services already provided.

As may be relevant and applicable, the parties hereby agree that the time frames for the completion of successful Acceptance Tests may be amended on agreement between the parties, where reasonably required to deal with the complexity of testing and/or reasonable time frames required for the rectification of Faults in the Solution. As may be relevant and applicable, the parties agree to provide each other with all such assistance and advice as is reasonable in connection with the tests to be carried out pursuant to this Clause 2.7 with a view to ensuring that the Solution passes the Acceptance Tests. For the avoidance of doubt, references in this Clause 2.7 to “minor and inconsequential failures” shall be failures which in no way inhibit normal business practices and operations. Schedule 1 shall, where appropriate, set out, or refer to, a timetable (the “Timetable”) of delivery. Both parties shall use their reasonable efforts to perform their respective responsibilities in accordance with the Timetable. The end of the Timetable is intended to be the deadline for delivery. The Timetable shall set out one or more Milestone Dates as agreed by the parties. The parties acknowledge that the Timetable may be subject to change from time to time, which shall be either agreed by the Client Representative and Contractor Representative or, where necessary, agreed by way of Change Management Process. If the Solution passes the Acceptance Tests, First Repeat Acceptance Tests or Second Repeat Acceptance Tests, Client shall confirm this to Contractor in writing within 5 days of the date of passing. The Solution shall be deemed to be accepted by the Client if:

  • Client does not confirm the outcome of the Acceptance Tests, First Repeat Acceptance Tests or Second Repeat Acceptance Tests in writing within 5 days of the completion of such testing; or
  • Client uses the Solution in a live production environment at any point.

In the event that the Contractor is no longer operating or in business and/or any of the criteria of Clause 14.2.5 apply, the Services to be performed and provided herein by the Contractor shall be performed and shall be provided to Client in a format suitable to meet the requirements of Client, including, in respect of Software, the provision of the applicable source code and all necessary supporting Documentation that would allow Client’s reasonably competent and trained users make use of the functions and facilities of the Software and, where appropriate, allow Client development and Modification of the source code for its own use, to enable continuity of the provision of the Services and the performance of this Agreement. The Contractor shall comply with all reasonable Client Internal Policies, as they pertain to this Agreement.

PAYMENT

Payment pursuant to this Agreement shall be made by Client to the Contractor, in accordance with the terms of this Clause 3 and Schedule 1. All sums payable under this Agreement are exclusive of any applicable sales, use, VAT or similar tax. The Contractor shall invoice Client in accordance with the Schedule 1. Subject to this Clause 3.4, any invoiced amount that is not disputed by Client shall be paid within 30 days after the properly due and properly submitted invoice was received, by electronic transfer to such bank account of the Contractor, to be notified to Client (or alternative arrangement as agreed by the parties in writing). If Client fails to pay any non-disputed amount by its applicable due date under this Agreement, the Contractor shall be entitled (but not obliged) to charge Client interest on the said overdue amount only, from the due date up to the date, pursuant to the provisions of The European Communities (Late Payments in Commercial Transactions) Regulations 2002 (or any successor legislation). Rate of interest is 4 per cent above the Bank of England’s base rate. Rates are as at close of business on the day indicated. Client shall have the right to query and/or dispute, in good faith, any invoice received from the Contractor, provided that such right is utilised within 10 days, following receipt by Client of that invoice, and that such right by Client shall not affect:

  • the obligation of Client to pay any undisputed element of such invoice; or
  • the timing of such payment obligation, in relation to the undisputed element of such invoice.

For the avoidance of doubt, it is hereby agreed by the parties hereto, that they shall endeavour to resolve any dispute pertaining to any invoice, with the intent that the dispute shall be resolved within the period as provided for in clause 3.2. If Client fails to pay to the Contractor, within 60 days of the payment due date, any past-due amount payable under this Agreement (including interest thereon) that is not the subject of a good faith dispute in addition to all other rights and remedies which the Contractor may have under this Agreement or at law or in equity, the Contractor may, in its sole discretion and without further notice to Client, suspend performance of any or all of its obligations under this Agreement until all past due amounts are paid in full and the Contractor shall have no liability with respect to Client’s use of the Software. Client may request any data held by the Contractor to be transferred to Client at this time. If Client fails to pay to the Contractor, within 90 days of the payment due date, any past-due amount payable under this Agreement (including interest thereon) that is not the subject of a good faith dispute in addition to all other rights and remedies which the Contractor may have under this Agreement or at law or in equity, the Contractor may either, (i) in its sole discretion and without further notice to Client, suspend performance of any or all of its obligations under this Agreement, except for Contractor’s privacy policy, cookie policy and GDPR compliance policy obligations, until all past due amounts are paid in full and the Contractor shall have no liability with respect to Client’s use of the Software; and Client may request any data held by the Contractor to be transferred to Client at this time; or (ii) terminate this Agreement and permanently delete any Client data held by the Contractor. The Contractor shall bear the cost of any travel and or any other expenses or costs that may be incurred in providing the Services in accordance with the terms of this Agreement, save with the express consent in writing of Client. The Contractor acknowledges that Client may be obliged to deduct Professional Services Withholding Tax (“PSWT”), if applicable, from payments made in respect of Services, pursuant to the provisions of the Taxes Consolidation Act 1997. The rate at which PSWT, if applicable, is deducted will be at the standard rate of PSWT in force. On an annual basis, by giving at least thirty (30) days prior written notice to Client, the Contractor may increase the Payments payable under this Agreement, provided that the annual percentage increase shall not exceed 1%. All amounts are in US dollars unless otherwise agreed in writing by Contractor.

EMPLOYEES AND AGENTS OF THE CONTRACTOR

If requested, the Contractor shall furnish to Client, details of all employees, agents or any other person whatsoever who will have an involvement in the provision of the Services. The Contractor shall also provide the required information in respect of any additional or replacement personnel or any other personnel whatsoever who may in the future provide any or all of the Services. If Client reasonably determines at any time that any employees or agents of the Contractor are not suitable for the provision of the Services, it shall notify and discuss this determination with the Contractor. Unless agreed otherwise by the parties in the context of such discussion, the Contractor shall immediately remove the employees or agents in question and propose further employees or agents.

ACCESS TO THE SITE, PERSONNEL AND DATA

Client may afford (as may be necessary), to the appropriate personnel of the Contractor at all reasonable times and upon receipt of adequate prior notice, such permitted access to the Site (subject to any reasonable requests of Client) as may be necessary for the performance of the Services provided always that Client shall have the right to refuse admission to, or order the removal from the Site of any person who is in breach of any Client internal policy or who, in the opinion of Client, is under the influence of alcohol, drugs or other substances whilst on or at the Site. Any action taken pursuant to this clause shall be confirmed in writing to the Contractor by Client, as soon as practicable. Any such person who has been expelled from the Site by Client shall not be readmitted without the prior written consent of Client. Client shall provide timely responses to any queries raised by Contractor and shall ensure Contractor access to appropriate, responsive and sufficient Client personnel, as required by Contractor to provide the agreed Services. Client shall provide to Contractor all data needed for, as required by Contractor to provide the agreed Services. Client acknowledges that the Contractor shall have no liability for delays or losses incurred by the Client as a result of Client’s breach of this Clause 5.

DISRUPTION, DEFECT AND DAMAGE

The Contractor shall take all reasonable care to ensure that, in performing the Services, it does not cause outage to Client’s production environment and/or disrupt the operations of or, save as may be reasonably unavoidable, inconvenience Client, its employees, agents or any other contractor or other person (including customers of Client). The Contractor shall make good at its own expense any defects in the performance of the Services. The Contractor shall ensure that the Services are carried out pursuant to this Agreement in a good and workmanlike manner using (where appropriate) good quality materials and equipment in accordance with good industry practice, which are not in any way deleterious (by themselves, in conjunction with other materials, by virtue of location or passage of time), likely to cause damage or be a hazard to health and safety. The Contractor shall not do (or permit to be done) anything (save with the written consent of Client) which shall be or become or cause a nuisance, damage, disturbance, injury or danger to Client or to any other person or party, in the performance of this Agreement.

CHAIN OF COMMUNICATION

The Contractor Representative and the Client Representative shall be the primary point of contact, with each other, for the purposes of this Agreement (save where otherwise provided in this Agreement). The parties hereby agree that (acting reasonably and in good faith) the Contractor may change the Contractor Representative and that Client may change the Client Representative, at any time during the Term, by 7 days notice in writing to the other party hereto. Instructions received from or information given by either party shall not be valid unless received from, given by, or verified by that party’s Representative. In addition, Client Representative shall appoint a project manager and a back up project manager specifically in relation to the implementation of the Software. The Contractor reserves the right to escalate any issues encountered when working with such project manager or, if applicable, back up project manager, to the Client Representative. The Client Representative shall appoint an alternative project manager if requested by the Contractor, acting reasonably. The Contractor is not responsible for any delays caused by replacement of the Client Representative, Client project manager for implementation or any other Client personnel. Any costs associated with on boarding or otherwise training a replacement Client personnel shall be borne by the Client.

APPLICABLE LAW

The Contractor agrees to comply with all obligations and/or conditions imposed under or by virtue of any Laws, permits, licenses or notices for the time being in force relating to or in the performance of this Agreement that are applicable to the Contractor as a provider of IT services, to include any relevant and accepted industry standards and/or codes of practice and to include (but not to be or interpreted to be limited too) compliance with the Health and Safety Acts.

INDEMNITY

The Contractor hereby indemnifies and agrees to keep indemnified, defend and hold harmless Client, against all, losses, expenses (including reasonable attorney fees), costs, claims, proceedings, demands, damages, in respect of (i) any breach of the warranty set out in Clause 29.1 and (ii) any other liabilities which may occur by reason of any wrongful, negligent, willful or criminal act of the Contractor its servants and/or agents pursuant to this Agreement. In respect of any and all claims against Client, the indemnification obligations set forth herein shall not be limited in any way by any limitation on the amount or type of damages or insurance limits. The obligations of this paragraph shall not be construed to negate, abridge, or otherwise reduce any other right or obligation which would otherwise exist as to any person, party or entity described in this Clause. The obligations of Contractor under this provision continue in full force notwithstanding the termination or expiration of this Agreement for a period of 1 year after termination or expiration of this Agreement.

INSURANCE

The Contractor shall effect and keep in force during the Term at its own cost, with a reputable insurance company, such levels of insurance cover as may be required to meet its potential liabilities under the Agreement.

FORCE MAJEURE

Neither party shall be in breach or otherwise be liable to the other party in any manner whatsoever for any failure or delay in performing its obligations under this Agreement, if and to the extent that it is prevented, hindered or delayed from or in performing such obligations by a Force Majeure Event provided that the date for performance of the obligation which has been delayed by the Force Majeure Event shall be deemed suspended for so long as such obligation is affected by such Force Majeure Event; The party seeking to exempt itself from liability by virtue of this clause (the “Affected Party”) must:

  • give written notice to the other party as soon as reasonably practical (so far as the Affected Party is aware at the time of giving the notice) identifying:
    • the Force Majeure Event that has occurred;
    • the date from which the event has prevented, hindered or delayed the Affected Party in the performance of its obligations;
    • the obligation affected; and
    • its best estimate of the date or dates upon which it will be able to resume performance of the affected obligation.
  • at all times use all reasonable endeavors to mitigate the effect of the Force Majeure Events. For the avoidance of doubt, Client is under no obligation to accept any alternative arrangement offered where a Force Majeure Event prevent, hinders or delays the Contractor in the performance of its obligations under this Agreement;
  • give notice to the other party forthwith (upon becoming aware of the same) upon the Force Majeure Event ending or being removed or its existence no longer preventing performance of an obligation and must resume the full performance of those of its obligations no longer affected as soon as possible thereafter; and
  • the Affected Party shall not be entitled to payment from the other party in respect of extra costs and expenses incurred by virtue of a Force Majeure Event save as provided hereunder.

If a party receiving a notice given under clause 11.1.2.1 raises any issue or matter regarding a Force Majeure Event having occurred, or the effect of such Force Majeure Event it shall give written notice to the party claiming Force Majeure within 10 days stating the grounds on which it disputes such claim and if neither the notice under clause 11.1.2.1 nor the notice of dispute under this clause has been withdrawn within 2 days of the date of the notice under this clause then the issue which is the subject of the notice under clause 11.1.2.1 and/or under this clause 11.2 shall be referred to the dispute resolution procedure at clause 12 herein. If the Force Majeure Event is in effect for a period of time in excess of 30 days (not including the period referred to at clause 11.2 above) then either party may, by written notice to the other party during the period of 30 days after the expiry of that 30 day period, forthwith terminate this Agreement provided that such notice shall be deemed not to have been given in the event that notice of the cessation of the Force Majeure Event given in accordance with Clause 11.1.2.3 is received by the party that gave notice of termination under this Clause before the expiry of such 30 day period.

DISPUTE RESOLUTION

Any dispute arising in relation to any aspect of this Agreement shall except where otherwise specifically provided be subject to the provisions of this clause 12. If a dispute arises in relation to this Agreement appropriate management personnel from Client and the Contractor shall use their reasonable endeavors to resolve the dispute within 30 days. If any dispute is resolved pursuant to clause 12.2 a written memorandum (“Memorandum of Resolution”) shall be prepared jointly and signed by each party. The Memorandum of Resolution shall confirm the resolution is in full and final settlement of the dispute and shall record all matters in issue and all material factual details of the dispute and the terms of the resolution and a copy shall be supplied to both parties hereto. If the representative of both parties fail to resolve any dispute pursuant to Clause 12.2 within 30 days of the referral of the dispute for resolution under Clause 12.2 either party may refer the dispute to mediation by a single suitably qualified and competent mediator that is mutually agreed by the parties within 30 days after written notice by the party requesting such mediation. Neither party will unreasonably withhold consent to the selection of such mediator. The fees and costs of the mediator shall be shared equally by the parties, but otherwise shall bear any of their own costs and expenses. Mediation will take place in London, England, unless agreed otherwise. In circumstances, where either party refuses to participate in mediation, where a mediator fails to be mutually selected and agreed or failing satisfactory resolution by mediation within 90 days of referral, then either party may commence legal proceedings. Nothing contained in this clause shall restrict either party’s freedom to commence legal proceedings where such proceedings are required urgently to preserve any legal right or remedy, to protect any Intellectual Property Rights or rights in confidential information or to otherwise prevent irreparable harm.

LIMITATION OF LIABILITY

EXCEPT FOR A PARTY’S FRAUD, ILLEGALITY, STATUTORY VIOLATION OF WILLFUL OR NEGLIGENT MISCONDUCT, OR CLAIMS RELATING TO A PARTY’S BREACH OF PROVISIONS INVOLVING CLAUSES 9, 21, 26 AND 29, THE CONTRACTOR’S TOTAL LIABILITY UNDER THIS AGREEMENT WHETHER IN CONTRACT, TORT, UNDER STATUTE OR INDEMNITIES OR OTHERWISE, INCLUDING NEGLIGENCE OR FUNDAMENTAL BREACH, SHALL UNDER NO CIRCUMSTANCES EXCEED GREATER THAN ONE HUNDRED PERCENT (100%) OF THE PAYMENT ACTUALLY PAID BY CLIENT TO THE CONTRACTOR UNDER THIS AGREEMENT WITHIN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT THE CONTRACTOR’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY THE CONTRACTOR’S NEGLIGENCE OR OTHERWISE LIMIT OR EXCLUDE THE CONTRACTOR’S LIABILITY FOR DAMAGES TO THE EXTENT THAT SUCH LIMITATION OR EXCLUSION IS NOT PERMITTED BY APPLICABLE LAW. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL THE CONTRACTOR (OR ANY OF ITS AFFILIATES PROVIDING SOFTWARE OR SERVICES UNDER THIS AGREEMENT) BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR LOSSES OR DAMAGES WHICH FALL INTO EACH OF THE FOLLOWING CATEGORIES: (I) TRADING, MARKET OR PORTFOLIO LOSSES, INACCURATE DISTRIBUTIONS, LOST REVENUES, LOST PROFITS OR LOSS OF BUSINESS, (II) LOSS OF OR DAMAGE TO GOODWILL, OR LOSS OF ANTICIPATED SAVINGS, (III) UNAVAILABILITY OF OR CORRUPTION TO DATA, OR (IV) ANY INCIDENTAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, INCLUDING (IN EACH CASE) SUCH DAMAGES ARISING FROM ANY TERMINATION OF THIS AGREEMENT OR FROM CLIENT'S MISUSE OF THE SOFTWARE, SOLUTION OR SERVICES PROVIDED UNDER THIS AGREEMENT, AND (IN EACH CASE) WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, NEGLIGENCE, OTHER TORT, STATUTE OR OTHERWISE AND WHETHER OR NOT FORESEEABLE, EVEN IF THE CONTRACTOR HAS BEEN ADVISED OR WAS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. The parties acknowledge and agree that: (a) the price reflects the level of liability undertaken by the Contractor as set out in this Section 13 and that if the exclusions and limitations contained in this Agreement were not to apply then the Contractor would not be willing to provide the Services for that price; (b) it is not intended that the Contractor will or should provide business interruption (or any other kind of) insurance to Client (or undertake any liability that would have the effect of doing so) and that Client is solely responsible for taking out any insurance policy or other financial cover for loss or damage which may arise from loss of data for any reason or for any other lost profits or consequential loss or damage which may result from use of the Software or receipt of Services under this Agreement; and (c) the exclusions and limitations contained in this Agreement are regarded by Client as reasonable and reflect the agreed balance of risk.

TERMINATION

The initial term of this Agreement is from its effective date, and shall automatically renew annually for one (1) year renewal terms thereafter. Client shall have the right to terminate the Agreement by giving Contractor not less than 90 days advance written notice ending on a date that is the end of the initial term or the end of a renewal term. The initial term, together with any renewal terms shall be known as the “Term”. Such termination shall be effective in the manner specified in the said notice and shall be without prejudice to any claims which either party may have against the other. Client may immediately terminate this Agreement, without prejudice to any other right or remedy, by giving the Contractor written notice thereof to take effect on the day of its service on the Contractor or upon such other day as may be specified therein, when the Contractor:

  • commits a material breach of this Agreement and fails to remedy the material breach, or reach a mutually agreeable solution, within 90 days of so being notified in writing;
  • abandons the Agreement;
  • fails to disclose any conflict of interest;
  • commits any act of fraud, misrepresentation, theft, criminal act or deliberate or reckless misconduct or damage;
  • becomes bankrupt, or makes any composition or arrangement with, or conveyance or assignment for the benefit of its creditors, or any application is made under any bankruptcy act to which the Contractor may be subject for a sequestration of its estate, or a trustee is appointed by him on behalf of their creditors, or if the Contractor, being a company, enters into voluntary or compulsory liquidation (except for the purpose of reconstruction or amalgamation), or has a receiver or manager, or where an administrative receiver is appointed over any of its assets or the Contractor carries on business under an examiner or administrator, or anything analogous to the foregoing occurs in respect of the Contractor in any applicable jurisdiction; and/or
  • fails to provide certificates of insurance or certified copy policies pursuant to the Agreement, when required.

Without prejudice to Client’s right to terminate pursuant to Clause 14.2.1, Client may suspend performance of some or all of the provision of the Services by the Contractor in the event of a material breach of this Agreement and fails to remedy the breach or reach a mutually agreeable solution, within 90 days of so being notified in writing. From and upon the effective date of any suspension ordered by Client, the Contractor (unless directed by Client) shall incur no further expense and/or obligations in connection with the suspended portion of the provision of the Services and shall cease performing the Services under the suspended portions of this Agreement except as otherwise directed in writing by Client. If Client lifts any suspension by notice in writing to the Contractor, then the Contractor shall promptly resume performance of the Services pursuant to this Agreement. If any suspension of the performance and provision of the Services ordered by Client lasts for a period in excess of 6 months then the Contractor shall, at the expiry of such period, be entitled upon 14 days’ notice to Client, to terminate this Agreement The Contractor may terminate the Agreement, by giving written notice to Client, if Client:

  • commits a material breach of the Agreement and fails to remedy the material breach within 30 days of so being notified in writing;
  • commits any act of fraud or deliberate or reckless misconduct in relation to the Agreement;
  • enters into voluntary or compulsory liquidation (except for the purpose of reconstruction or amalgamation), or has a receiver or manager or administrative receiver appointed over any of its assets or carries on business under an examiner or administrator;
  • fails to make timely payment, in accordance with clause 3.6(ii) of this Agreement.

If the Agreement is terminated early for any reason in accordance with its terms, then each party's further rights and obligations under the Agreement shall cease upon the effective date of termination provided that the accrued rights of the parties as at termination, or the continuation after termination of any provision which, by its meaning or effect, is intended to continue to be effective after the expiration or termination, shall not be affected or prejudiced.

THIRD PARTY RIGHTS

The warranties made by the Contractor in this Agreement, and the obligations of the Contractor under this Agreement, run only to Client and not to its affiliates, its customers or any other persons. Under no circumstances shall any affiliate or customer of Client or any other person be considered a third party beneficiary of this Agreement or otherwise entitled to any rights or remedies under this Agreement or to enforce any term of this Agreement, even if such affiliates, customers or other persons are provided access to the Software or data maintained in the Software via the Internet or other networked environment. Client shall have no rights or remedies against the Contractor except as specified in this Agreement.

NOTICES

For the avoidance of doubt, for the purposes of the Electronic Commerce Act 2000, the parties hereby consent to:

  • the provision of information in electronic form where information is required to be provided ‘in writing’ or in ‘written’ form under the Agreement;
  • the use of electronic signatures (as defined in the Electronic Commerce Act 2000) for the formation of the Agreement and any matter to be agreed under the Agreement; and
  • the use of electronic communications as a means of communication pursuant to or in connection with the Agreement.

Any notices and/or communications to be given pursuant to the Agreement shall be in writing and shall be deemed duly given or made:

  • if delivered by hand or sent by post to the address and for the attention of the person set forth in the agreement in respect of the relevant party or to such other address and for the attention of such other person as such party shall communicate to the party giving the notice or communication
  • if sent by email, to the correct email address of the party to which it is being sent.

Every notice or communication given in accordance with this clause shall be deemed to have been received as follows:

Means of Dispatch: Deemed Received Delivery by hand: the day of delivery; Post: 3 business days after posting within the UK, or upon receipt of a delivery notification from an internationally recognized courier service for destinations out of country; Email: 24 hours after the email leaves the sender’s email server

Provided that if, in accordance with the above provisions, any such notice or other communication would otherwise be deemed to be given or made outside working hours (being 9 a.m. to 5 p.m. on a business day) such notice or other communication shall be deemed to be given or made at the start of working hours on the next business day. Each party shall notify the other of a change to its name, relevant addressee, address, or email address for the purposes of this clause. Such notification shall only be effective on:

  • the date specified in the notification as the date on which the change is to take place which must be at least 10 days from the date of notification unless otherwise agreed; or
  • if no date is specified or the date specified is less than 5 days after the date on which notice is given, the date falling 5 days after notice of any such change has been given.

ENTIRE AGREEMENT

This Agreement and all the other documents annexed or to be delivered pursuant hereto, constitute the entire Agreement between the parties and supersede any prior or contemporaneous written or oral agreement or understanding with respect to the subject matter of this Agreement. The execution and delivery of any other documents contemplated to be executed and delivered hereunder shall not supersede or otherwise affect the provisions of this Agreement and in entering into this Agreement neither party has relied on any Pre- Contractual Statement.

NO AMENDMENTS

No amendments, additions or modifications to this Agreement may be made unless in writing and signed by both parties.

WAIVER

No waiver of any provision of or rights under this Agreement shall be effective unless in writing and signed by the waiving party. Waiver of performance of any obligation by either the Client or the Contractor shall not be deemed a waiver of performance of other obligations or a future waiver of the same obligation. No waiver by either party of any event or a default or other breach of any of the covenants or conditions of this Agreement shall be construed as a waiver of any succeeding event of default or breach of the same or any other covenants or conditions of this Agreement.

SEVERABILITY

If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy all the remainder of this Agreement shall survive and remain in full force and effect. Upon a determination that any term or other provision is invalid, illegal or incapable of being enforced the parties shall negotiate in good faith to modify this Agreement to effect and fulfill the original intent of the parties as closely as possible.

CONFIDENTIALITY

In this clause, “Confidential Information” means all information disclosed or obtained (whether in writing, orally or by any other means and whether directly or indirectly and whether specifically designated as ‘confidential’ or which ought reasonably be regarded as confidential) under or in connection with the Agreement by Client (the “Owning Party”) to the Contractor (the “Receiving Party”) whether before or after the date of the Agreement including, without limitation, information relating to the Owing Party’s products, services, operations, Know-how (and any other know-how), ideas, inventions, processes, plans or intentions, product information and development, schematics, design rights, trade secrets, market opportunities and other business, financial, technical and company information and affairs. During the Term and after termination or expiration of the Agreement for any reason, the Receiving Party:

  • will not use Confidential Information for a purpose other than the performance of its obligations under the Agreement;
  • will not disclose Confidential Information to a person except with the prior written consent of the Owing Party or in accordance with Clauses 21.3 and 21.4; and
  • shall make every effort to prevent the unauthorised use or disclosure of Confidential Information.

During the Term the Receiving Party may disclose Confidential Information to any of its directors, officers and employees (a “Recipient”) to the extent that disclosure is reasonably necessary for the purposes of the Agreement provided that the Receiving Party shall ensure that a Recipient is made aware of and complies with the Receiving Party’s obligations of confidentiality under the Agreement as if the Recipient was a party to the Agreement. The Receiving Party may disclose Confidential Information if and to the extent that:

  • this is required by the Laws of any relevant jurisdiction or pursuant to an order, request or direction of a court of competent jurisdiction or that of a governmental department or competent regulatory authority provided that any information disclosed pursuant to this clause shall be disclosed, where reasonably practicable, only after notice to the other party and solely to the extent required by law;
  • the information is disclosed on a strictly confidential basis to the professional advisers, auditors and bankers of that party, to the extent that disclosure is reasonably necessary for the purposes of the Agreement;
  • the information has come into the public domain through no fault of that party;
  • the information was in the possession of the Receiving Party before such disclosure by the Owing Party, as aforesaid;
  • the information was obtained by the Receiving Party from a third party who was free to divulge the same;
  • it is disclosed to Receiving Party’s legal counsel, as required to enable that party to enforce its rights under the Agreement, or
  • it is disclosed to bona fide current and/or potential buyer, investor and/or lender of the Receiving Party, and any legal and/or professional representatives thereof; provided that such potential buyer, investor and/or lender shall be subject to a confidentiality agreement (on terms usual to such transactions) covering such Confidential Information.
  • the Contractor will, where possible, give written notice prior to any disclosure under clause 21.4 and will comply with Owning Party’s request in relation to the form and content of the disclosure.

The obligations of the Receiving Party as to disclosure and confidentiality shall continue in force notwithstanding the termination or expiration of this Agreement.

ASSIGNMENT

The Contractor shall not assign, transfer, novate, sub-contract, charge, encumber, hold in trust for another or in any manner share or part with possession of this Agreement or any part, clause or provision thereof, without the prior consent in writing of Client, such consent shall not be unreasonably withheld and/or delayed. The foregoing shall not prevent the Contractor from assigning, transferring or novating this Agreement to an affiliate of the Contractor. In the event that the Contractor sub-contracts any of its obligations under the Agreement in accordance with Clause 22.1, it shall remain responsible and liable to Client for all acts and omissions of its sub-contractor as fully as if they were its own acts and omissions.

NON-SOLICITATION

Each party agrees that, during the Term of this Agreement and for a period of 6 months from the termination of this Agreement, that it shall not (without the other party's prior agreement in writing, which shall not be unreasonably withheld or delayed) directly or indirectly offer to employ, engage as an independent contractor or induce any person who has been associated in a technical or managerial capacity with any of the Services during the preceding six months to leave the other party's employment. This Clause 23 shall not prohibit a party from hiring any person solicited and hired in response to a general public solicitation for employees in the ordinary course of the hiring party’s business.

RIGHTS CUMULATIVE

Unless otherwise specified in the Agreement, each party’s rights and remedies are cumulative and not exclusive of any other rights or remedies provided by law.

REPRESENTATIONS AND WARRANTIES

The Contractor represents and warrants to Client, that:

  • it is duly organised and validly existing under the laws of jurisdiction of formation and is up to date on all and any payments and filings required in order to maintain such existence and good standing under the laws of its jurisdiction of formation;
  • it has all necessary power, authority, approval and consent to carry on its business as presently conducted and to perform its obligations and carry out, provide and supply the Services under this Agreement;
  • it shall not (at any time) have exclusive use, possession, management or control of any part of the Site and/or any other Client property, which shall remain with Client;
  • the Services shall be provided by appropriately experienced, qualified and trained personnel and shall be rendered with all due skill, care and diligence;
  • all consents, Professional Services, permits, consents, approvals and authorisations required in connection with its entry into and performance of the Agreement have been obtained and shall be maintained in full force and effect for the duration of the Term;
  • for the duration of the Term, from the date of Acceptance, (the “Warranty Period”), the Solution shall perform materially in accordance with the Solution Specification and shall be free from material Faults in normal use;
  • operation of the Software, will be subject to the Minimum System Requirements;
  • the Contractor shall use recognised industry standard virus scanners (updated with the then-most current virus signatures and data sets) to scan all work product or software immediately prior to introducing it to any Client computer system. If a Computer Virus is found to have been introduced into Client’s computer systems by the Contractor, the Contractor shall provide all necessary assistance to Client in reducing the effects of the Computer Virus. Client shall also use up to date anti- virus measures and have adequate security policies in place with which Client’s personnel shall comply. The Contractor shall have no liability to Client with regards to a Computer Virus, if the Client is in breach of the foregoing sentence.

If, within the Warranty Period, the Contractor notifies Client and/or Client notifies the Contractor, in writing, of any Fault in the Solution in consequence of which it fails to conform in all material respects to the Solution Specification, the Contractor shall within a reasonable time period, as agreed with the Client, and without charge or expense to the Client, and at the Client’s sole discretion:

  • repair the Solution; or
  • replace the Solution (including the Software); or
  • terminate this Agreement by notice in writing and refund any pre-payment paid by Client.

Without prejudice to the generality herein, the Contractor warrants and represents to Client that it is fully authorised to carry out the Services and grant the license to the Software to Client on the terms set out in this Agreement. Except as expressly stated in this Agreement and to the extent permitted by law, the Software, Services and Solution are provided "as is." Except to the extent prohibited by law, the warranties in this Agreement are Customer’s exclusive warranties with respect to the Software, Services and Solution or any other matter pertaining to this Agreement and replace all other warranties, representations, terms or conditions (oral or written, express or implied) regarding any matter pertaining to this Agreement (including the implied warranties, terms or conditions relating to merchantability, fitness for a particular purpose but excluding any implied warranties, terms or conditions relating to title). The Contractor does not warrant that the Solution will meet all of Client's requirements or that the use of the Software, Services and Solution will be uninterrupted or error free. The Contractor representations and warranties provided under this provision continue in full force and effect notwithstanding the termination or expiration of this Agreement for a period of 1 year after termination or expiration of this Agreement.‎

DATA PROTECTION

If and to the extent that the Contractor processes any personal data, as defined in the General Data Protection Regulation (the “GDPR”), on Client’s behalf when performing its obligations under this Agreement, the parties shall enter into a separate Data Protection Agreement. In any event, the Contractor shall:

  • process such personal data solely in accordance with the written instructions of Client and the terms of this Agreement;
  • implement and maintain such technical and organisational security measures as may be required to comply with the data security obligations in the GDPR and shall permit Client (or its authorised representative(s)), at reasonable times and on reasonable notice, to audit the technical and organisational security measures adopted by the Contractor to ensure that they comply with such obligations;
  • report any incident which gives rise to a risk of unauthorised disclosure, loss, destruction or alteration of such personal data to Client immediately upon becoming aware of such an incident and shall provide all reasonable co-operation and assistance as may be necessary for Client to comply with its obligations in respect thereof;
  • provide Client with all reasonable co-operation and assistance as may be necessary to deal with any request for access to such personal data made under the GDPR which is received by Client or the Contractor;
  • not transfer such personal data outside the European Economic Area, to a country which the European Commission does not regard as conferring an adequate level of data protection, without the prior written consent of Client;
  • The Contractor GDPR obligations provided under this provision continue in full force and effect notwithstanding the termination or expiration of this Agreement; and
  • comply with Contractor’s own privacy policy, cookie policy and GDPR compliance policy, as found at www.mylearninghub.com:

    https://www.mylearninghub.com/tos https://www.mylearninghub.com/gdpr-compliance https://www.mylearninghub.com/privacy-policy https://www.mylearninghub.com/cookie-policy

CHANGE MANAGEMENT PROCESS

Any material change to the relevant Services or request for new services including customisation and development work that may be requested by the Client (a “Change”) shall be dealt with in accordance with the following procedure:

  • Client will provide the Contractor with a written request detailing the proposed Change (a “Change Request”) in the form set out at Appendix 2 and the person within Client’s undertaking to whom all correspondence in respect of the Change must be addressed (the “Change Representative”);
  • The Contractor will provide the Change Representative with an evaluation report on the Change Request which will cover the feasibility, impact on any time or other schedules contained or referred to in this Agreement, resource requirements and a detailed breakdown of the cost (based on Clause 32) associated with the proposed Change (the “Evaluation Report”);
  • the Change Representative will consider the Evaluation Report and will notify the Contractor in writing, within a reasonable time of receipt of the Evaluation Report having regard to the nature and extent of the proposed Change, of Client’s decision whether or not to request the Contractor to proceed with the Change on the basis of the Evaluation Report.
  • If the Change Representative requests the Contractor to proceed with the Change on the basis of the Evaluation Report, then the relevant Services and any other relevant Documentation shall be amended by the parties to reflect the content of the Change Request and the Evaluation Report.
  • The parties shall discuss reasonably and in good faith any difficulties that the Change Representative may have with the Evaluation Report, but if no agreement can be reached, then the Evaluation Report and the issues surrounding it shall be referred to the dispute resolution procedure set out in Clause 12.

The Contractor may propose a Change in accordance with the procedure detailed in Clause 27.1 above adapted mutatis mutandis to refer to the Contractor.

LICENSING AND USE

Where appropriate to this Agreement, the Contractor hereby grants to Client a personal, non-exclusive, non-transferrable (subject to Clause 28.4), license to use the Software for the Authorised Use subject to the terms and conditions of this Agreement. Pursuant to Clause 28.1, Client may make such copies of the Software as are necessary for its operational use and security. This Clause 28 applies to such copies as it applies to the Software. Client shall take all reasonable steps to prevent unauthorised copying. For the avoidance of doubt, a license granted to Client under this Clause 28 shall permit Client’s agents and service providers to use the Software on Client’s behalf solely within the scope of the Authorised Use and subject to this Agreement. No such agents or service providers shall be entitled to copy the Software or to make use of the Software for any purpose other than the Authorised Use for the benefit of Client. For the avoidance of doubt, a license to Client is perpetual, irrevocable and shall survive the termination or other expiration of this Agreement, save where the Contractor is entitled to terminate the license granted to Client for an event of default by Client pursuant to this Agreement. Except as expressly permitted under this Agreement or in writing by the Contractor or except as expressly permitted by law, Client shall not do, attempt to do, nor permit any other person to: (a) use any Contractor Intellectual Property Right for any purpose, at any location or in any manner not specifically authorised by this Agreement; (b) make or retain any copy of any Contractor Intellectual Property Right except as specifically authorised by this Agreement; (c) create or recreate the source code for the Software, or re-engineer, reverse engineer, decompile or disassemble the Software; (d) modify, adapt, translate or create derivative works based upon the Software or documentation, or combine or merge any part of the Software or documentation with or into any other software or documentation; (e) refer to or otherwise use any Contractor Intellectual Property Right as part of any effort either to (i) develop a program having any functional attributes, visual expressions or other features similar to those of the Software, or (ii) compete with the Contractor; (f) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in any Contractor proprietary item, or fail to preserve all copyright and other proprietary notices in any copy of any Contractor Intellectual Property made by Client; (g) sell, market, license, sublicense, distribute or otherwise grant to any person, including any outsourcer, vendor, consultant or partner, any right to use any Contractor Intellectual Property Right whether on Client's own behalf or otherwise; or (h) use the Software to conduct any type of ASP (application services provider), service bureau or time-sharing operation. Any breach of the foregoing Clause 28.5 by Client shall give the Contractor the right (but not the obligation) to terminate the license and/ or this Agreement. From time to time, but no more than once in a twelve (12) month period, at the Contractor’s expense and by giving reasonable prior written notice, the Contractor may enter Client locations during normal business hours and audit for the sole purpose of auditing Client’s compliance with Clause 28.5. The Contractor shall comply with reasonable security and to premises access guidelines advised in advance by Client to the Contractor while the Contractor is on Client locations for such audit purposes.

INTELLECTUAL PROPERTY RIGHTS

The Contractor warrants that the carrying out and provision of the Services or any part thereof, does not in any way knowingly (to include where it reasonably ought to have known), maliciously or deliberately infringe any Intellectual Property Rights. Client acknowledges and agrees that all Intellectual Property Rights in the Software and all parts and copies thereof shall remain vested in the Contractor. All Know-how of Client, Intellectual Property Rights and any other rights in all and any Client data and all parts and copies thereof shall remain vested in Client. The Client acknowledges and agrees that Contractor retains the ownership of all and any that all Intellectual Property Rights in the solution and the Client is given a right to use it only throughout the duration of this contract. The parties shall take all necessary steps to give effect to the foregoing. The Contractor Intellectual Property obligations provided under this provision continue in full force and effect notwithstanding the termination or expiration of this Agreement for a period of 1 year after termination or expiration of this Agreement.

SERVICE LEVELS

Please refer to the Service Level Agreement attachment.

SUPPORT LIMITATIONS

The Support Services set out at Schedule 4 shall be subject to the following limitations based on the Solution option selected by the Client.

Customers using “Lite” subscription

Discovery Session 2 hours
Admin Training 2 hours
Onboarding 2 hours
Technical Support (annual allowance) * 50 hours

*Excluding any system bugs or glitches

Customers using “Pro” subscription

Discovery Session 5 hours
Admin Training 5 hours
Onboarding 5 hours
Project Management (valid for 8 weeks) 50 hours
Technical Support (annual allowance) * 100 hours

*Excluding any system bugs or glitches

Customers using “Enterprise” subscription

System Setup and Workflows 2 weeks
Admin Training 1 day*
UAT** 2 weeks
Onboarding 1 day*
Soft Launch 2 weeks
GoLive 2 weeks
Total time for implementation: 8,5 weeks
Maximum amount of time for implementation: 10 weeks

*Depending on Client’s preference, this can be one (1) full day of training or spread across one (1) week, with a one (1) hour call per day.

Limits (for Enterprise clients only):

Discovery Session 5 hours
Admin Training 5 hours
Onboarding 5 hours
Project Management (valid for 10 weeks) 100 hours
Technical Support (annual allowance) * 300 hours
Custom Development** 40 hours
Implementation (Maximum time allowed) 10 weeks

*Excluding any system bugs or glitches

ADDITIONAL PROFESSIONAL SERVICES

At Client’s reasonable request and subject to the availability of the Contractor’s personnel, whether based on the Change process set out at Clause 27 or otherwise, the Contractor shall provide to Client any additional installation services, additional training, consulting services, custom programming, assistance with data transfers or Client system or database upgrades, system restarts and reinstallations and other specialised support services that are outside the scope of the Services at the Contractor’s then prevailing professional services fees for the type of service requested. The current professional service rates are set out below. In addition, the Contractor reserves the right to charge a premium for any ongoing support services requested by Client to be performed outside of Client’s normal business hours and/or at Client’s locations.

Learning and Development Consulting £200/ $255/hour
Custom Development £70/ $90/hour
Training and Onboarding £60/$80/hour
Project Management/td> £50/ $65/hour
Technical Support £40/$50/hour

GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the English law and, the parties hereto submit to the exclusive jurisdiction of the Courts of England & Wales for the resolution of disputes hereunder.

SCHEDULE 1

“Schedule 1"

Contractor Schedule 1 - Month Term
Cost Item Description Cost
1 LMS Implementation - Year 1

This includes:

  • 8 – 12 weeks for implementation
  • Online workshops and Seminars
  • Complimentary video tutorials
  • Data Migration
-
2 LMS Software License – Year 1 -
3 LMS Software License – Year 2 -
4 LMS Software License – Year 3 -
Total

SCHEDULE 2

“Schedule of Services”

The Contractor will provide Services in accordance with the Service Level Agreement.

Basic Services

Project Implementation

Contractor will work with a Client project team to complete the implementation of this project. Contractor and Client will each appoint a project manager to provide a single point of contact between the parties. Contractor and Client will each appoint an IT specialist to ensure that all technical, data migration and integration-related queries can be answered. Contractor and Client Project Managers will agree a schedule for the Implementation Project and for the Transition to Ongoing support. This will be in line with the schedule included in the proposal received from Contractor.

Workflows

Contractor will ensure that the system operates in accordance with the specified standard workflows and any custom workflows that have been agreed and signed off by the Client at the start of the project. Contractor will work with Client project managers to ensure the system is fully tested during the UAT Phase and works in accordance with such workflows.

Customisation

Contractor will help the Client customise the software appropriately to meet their branding requirements. This will include some changes to the web page logos and colours etc. to make the page applicable to Client.

User Access and Permissions

Contractor will work with the Client’s IT specialist to provide any relevant integrations with the internal HR software and/or “Single Sign On”. Contractor will expect the Client to provide any relevant access levels and user permissions and help the Client set this up in the system. If this cannot be achieved, Client and Contractor will agree an appropriate methodology for user access and permissions within the software.

Reporting

Contractor will provide any necessary training to the Client to show how reports can be set- up and customised in the system. Contractor will give access to allow supervisors and administrators to create customised reports on an ad-hoc basis as required by them based on all available user data, subject to data protection considerations.

Testing

Contractor will confirm that their software has been fully tested before release to production. Any configuration changes made to the software during the Implementation Phase of the Project will be tested by Contractor to ensure software functionality is maintained. Client will undertake functional and User Acceptance testing of the configured software to ensure that it meets the agreed functional requirements. Upon completion of testing, Contractor and Client will both confirm a Test Acceptance document prior to the software being put in production.

Third Party System Integrations

Where required, Contractor will work to complete integrations with existing Client systems to ensure user and training data can be passed between them. This is to ensure that existing data can be migrated to the Contractor system, and that regular updates to this data can be made based on data changes to the existing Client systems. Client agrees to provide all the necessary resources and assign competent IT specialists to assist in the integration process and provide any necessary documentation and contact details of the account managers in case the Contractor needs to get in touch with one of the 3rd party software providers directly to deliver the integration. Any exceptions to this will be agreed by both parties during the implementation phase of the project.

Training

Contractor will provide access to the video tutorials and appoint a trainer to complete training for Client Supervisors and Administrators to ensure they are familiar with the use of the software. The training will include:

  • Creating groups or individual users
  • Group of individual enrolment
  • Loading and testing third party SCORM objects
  • Creating grading structures for courses
  • Running standard and custom reports
  • Customising email templates
  • Customising certificates & attaching certificates to learning

Contractor will provide an introductory launch session to Client personnel and appointed third-parties to familiarise them with the key features of the software Contractor will ensure access to video and online tutorials for the purpose of user training Contractor will provide required documentation/information to the Client Service Desk to ensure basic troubleshooting can be performed in accordance with Client standard processes. Contractor will provide support for Client Supervisors and Administrators (trainers) during the business rollout period to ensure any issues that arise can be addressed.

SCHEDULE 3

SUPPORT SERVICES

Ongoing Support and Maintenance Services

Transition to Ongoing Support Model

Contractor and Client will each appoint a Project Manager to oversee the transition of the Design and Implementation Project to an ongoing support phase. Contractor will ensure that all required and reasonably requested documentation will be completed in advance of handover of the Design and Implementation Project

Help, support & guidance

Contractor will continue to provide access, updated as required to reflect changes to the software, to online support tutorials for users. Where significant changes to the Software are being introduced, Contractor will provide details of these changes and ensure an opportunity for learning is available to Client for this. All support related queries can be logged using Contractor’s helpdesk: https://[client_name].mylearninghub.com/helpDesk Or by emailing Contractor at: support@mylearninghub.com

Ongoing Service Review

Contractor and Client will each appoint a single point of contact for ongoing service management. Contractor and Client will conduct regular service reviews on a quarterly basis to ensure required quality of service continues to be met

Service Coverage

All Support Services must be based on a unique ID ticketing system The service hours are defined as:

Service Availability The service will be available 24-hours a day, 365 days a year.
Service Support Hours The application will be supported during the standard Service Desk support hours which are: 09:00 – 18:00 Central Time Mon – Fri Tickets can be logged 24/7/365.
Maintenance Windows Any maintenance must take place during non-core business hours and notified in advance.

As outlined in the Contractor proposal, support services will be provided in accordance with the Service Levels.

Failure to meet Service Levels

As per the Contractor proposal, Service Credits are applied at the following rate: for each service failure outside the 95% tolerance

  • Level 1 Service Failure $25.00
  • Level 2 Service Failures $45.00
  • Level 3 Service Failures $65.00
  • Level 4 Service Failure $100 each day where core functionality is lost

Data Backup

Full back up of all data must take place to ensure disaster recovery targets can be achieved. Access to extract the full data set must be available to allow information to be archived externally.

Data Restoration

Restoration of data will be available where required up to 30 days

Disaster Recovery

The Recovery Time Objective (RTO) is defined as 4 hours. RTO is the targeted duration of time and a service level within which the Learning Management System must be restored after a disaster and/or disruption in order to avoid unacceptable consequences associated with a break in business continuity. Recovery Point Objective (RPO) is defined as 4 hours. RPO is the maximum targeted period in which data might be lost from the Contractor due to a major incident. RPO is set to give Contractors IT team a limit to work to.

APPENDIX 1

Please refer to the standard system workflows document

By the signatures of their duly authorised representatives below, Contractor and Client, intending to be legally bound, agree to all of the provisions of this Agreement and all schedules, exhibits and addenda to this Agreement as set out herein.

Client Contractor My Learning Hub
Print Name: Print Name: Victor Potapov
Print Title: Print Title: Managing Director
Address: Address: 3 Martineau Drive, Twickenham, TW1 1PZ, United Kingdom
Date: Date:

Signature mode: TypingDrawing

Signature:

seller-signature

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