Compliance e-Learning Platform

1. LICENCE AND RESTRICTIONS ‌

1.1   Subject to the terms and conditions contained in this Order, Braithwate hereby grants and Client accepts, with effect from the License Start Date and for the duration of the License Period, a limited, non-exclusive and non-transferable licence to access the Braithwate Compliance e-Learning Platform including the content and features contained therein by the number of Users specified in the Client Order, upon the terms and subject to the conditions contained herein.‌

‌1.2   The License shall be granted as of the License Start Date and for the duration of the License Period. The license will be automatically renewed unless notice is given at least 30 days prior to the end of the License Period.

1.3   Each user account is assigned to a specific, named individual and may not be transferred or used by any other person.   

1.4   During the term of this Order, the Client may add additional Users for the remaining term of this Order for an additional fee per User, equal to the Licence Fee divided by the Number of Users, which shall be invoiced immediately by Braithwate.  

1.5   The Client may not (a) sell, assign or in any other manner transfer, whether for consideration or otherwise, the Licence to third parties, or otherwise commercially exploit the Braithwate Compliance e-Learning Platform in any way other than for the Client's own use or for the use of the Users for whom the Client has acquired the License; (b) cause, permit and/or authorise any modification, creation of derivative works, translation, decompiling, disassembling or reverse engineering or access the Braithwate Compliance e-Learning Platform in order to (i) build a competitive product or service, (ii) copy ideas, features, source code, functions, text, graphics, videos or animations, or (iii) build a product using ideas, source code, features, functions, text, graphics, videos or animations (c) Use the Braithwate Compliance e-Learning Platform in any way that would violate any applicable law and/or Braithwate or Skillcast’s Intellectual Property Rights.

1.6   If Licence includes the Learning Management System, the Client may customise the course materials using the facilities provided in the Braithwate Compliance e-Learning Platform and employing its own efforts at no extra charge, or retain Braithwate to customise the course materials for a fee agreed between the parties.

1.7   If the Licence includes the Learning Management System, the Client may:

(i)    develop new e-learning modules on the Braithwate Compliance e-Learning Platform at no extra charge, but an extra charge will apply if Braithwate is called upon to aid the development of the new modules;   
(ii)    upload externally developed e-learning modules on the Braithwate Compliance e-Learning Platform at no extra charge, but an extra charge will apply if Braithwate or Skillcast is called upon to upload, test or integrate such modules.  
(iii)    deliver any course materials procured and other e-learning modules developed or uploaded by the Client on the Braithwate Compliance e-Learning Platform to the assigned Users during the Licence Period at no extra charge.

2. INTELLECTUAL PROPERTY OWNERSHIP‌

2.1   Any and all of the copyrights, trademarks, title and interest contained in the course materials and learning management system and any other documentation, specifications, manuals, source code and other ancillary matter in connection or subsisting with or in the course materials and learning management system (“Intellectual Property Rights”) are the exclusive property of Skillcast. The limited, non-exclusive and non-transferable License granted to the Client by virtue of this Agreement shall not convey to the Client any rights of ownership in or related to the course materials and/or the learning management system. Skillcast alone shall own all rights, title and interest, including all related Intellectual Property Rights, in and to its IP,  related to any modifications, derivative works, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Client or any other party to the course materials or the learning management system.‌

2.2   Nothing contained in clause 2.1 is intended or shall be construed as giving Braithwate or Skillcast any rights over e-learning modules developed by the Client, or developed by Braithwate or Skillcast on behalf of the Client, or procured by the Client from third parties.

2.3     Nothing in this Licence conveys any rights of ownership or the grant of any licence to Braithwate or Skillcast in any intellectual property rights of the Client.  Any intellectual property of the Client shall only be used by Braithwate or Skillcast for the purposes of providing the Services under this Order.

2.4     All parties retain all rights to their respective names, logos, and trademarks provided for the purpose of executing this Order.

3. TERMINATION‌

3.1   Either party may terminate the Order by providing written notice to the other party at any time if:

(i) the other is in material breach of these terms and conditions and fails to remedy such breach (if capable of remedy) within 30 days of notice of that breach; or

(ii) if the other party becomes bankrupt or unable to pay its debts or compounds or makes any arrangement with or for the benefit of its creditor or (being a company) enters into compulsory or voluntary liquidation or amalgamation (other than the purpose of a bona fide reconstruction or amalgamation without insolvency).

3.2   In the event of termination or the expiration of this Order, Braithwate will:

(i)   wind down its performance in an orderly manner;

(ii)   provide the Client with Users' training records in a CSV file format at no further charge;

(iii)   provide the Client with any files that the Client has uploaded to Braithwate Compliance e-Learning Platform and requests copies thereof by specifying their file name at no further charge;

(iv)   delete all User records and all the course materials customised, developed or uploaded by or for the Client after a period of one year unless requested to do so earlier by the Client; and 

(v)   delete any third-party e-learning modules - AICC or SCORM - that the Client has uploaded on the Braithwate Compliance e-Learning Platform.

4. WARRANTIES ‌

‌4.1   The course materials and learning management system are provided ‘as is’ and neither Braithwate nor Skillcast makes any representation, warranty or guarantee as to the suitability of the course mateials, learning management system and/or ancillary services for meeting the Client's legal or regulatory obligations or the Client's expectations. The Client bears the sole responsibility to check the course materials and make any modifications required to ensure that the course materials are fit for the Client's particular purpose. Any modifications carried out by Braithwate or Skillcast shall be subject to the terms stipulated herein. 

‌4.3   Save as otherwise expressly set out herein, to the maximum extent permitted by applicable law, neither Braithwate nor Skillcast makes any representations, warranties or conditions, whether express, implied, statutory or otherwise, including, without limitation, warranties or conditions of merchantability, fitness for a particular purpose, no encumbrances, no liens and non-infringement of third-party rights.

‌4.4   The Client warrants that it will:

(i)    direct its Users to address their questions to the Client's Users' administrators or the Client help desk, who will use their best endeavours to resolve Users' queries, and, if unable to do so, will direct them to Braithwate, and

(ii)   not permit its Users or administrators to upload to the Braithwate Compliance e-Learning Platform any material that is obscene, blasphemous or defamatory, violates any third-party intellectual property right, duty of confidence or right to privacy, or the Official Secrets Acts, or is otherwise unlawful.

5. DATA PROTECTION ‌

5.1   Where Braithwate or Skillcast processes the Client's Users' details and any other personal data ("Data") in the fulfilment of this Order, Braithwate or Skillcast shall comply with all the requirements of the UK Data Protection Act 2018 and applicable EU regulations including the General Data Protection Regulation (GDPR), and the Parties shall process personal data according to the Data Processing Agreement (DPA) agreed between the Parties.

6. LIMITATION OF LIABILITY‌

6.1   Notwithstanding any other provision herein, neither party excludes or limits its liability for death or personal injury caused by its negligence, or for fraud or breach of intellectual property rights, or in respect of any other liability that by law cannot be excluded or restricted.

6.2   Subject to clause 6.1 above and the DPA, each party's total aggregate liability to the other party in respect of all losses, liabilities or damages suffered or incurred by the other party under or in connection with this Order (and whether the liability arises because of a breach of contract, negligence or for any other reason) shall not exceed the Licence Fee paid for this Order.

6.3   Under no circumstances will either party be liable to the other party for lost profits, data, business, revenue, goodwill or anticipated savings, or regulatory or legal fines, or any indirect, incidental, special, punitive, exemplary or consequential damages or losses of any kind, howsoever caused.

7. PAYMENT‌

7.1   Braithwate may invoice the Client for the Total fees stated above immediately upon the execution of this Order. Invoices are payable immediately without set-off or deduction. Interest at the annual rate of 1% above the Bank of England base rate will apply to overdue payments that are not in dispute. No late payment interest will accrue in relation to invoices against which the Client has raised genuine queries or dispute.

7.2   The amounts specified in this Order do not include VAT or other sales tax, and to the extent that these are applicable the Client will pay these as well as the amounts concerned.

7.3   Any payments made by the Client in relation to this Order are non-refundable except in case of Termination by the Client under the provisions of Clause 3.1.   ‌

8. GENERAL PROVISIONS‌

8.1   Save as otherwise provided herein, the terms and conditions and Schedules of this Order constitute the entire agreement and understanding between the Client and Braithwate and supersede all prior or contemporaneous negotiations, agreements and understandings between the Client and Braithwate, whether verbal or written, regarding the subject matter contained herein.

8.2   Except where such disclosure is required by any applicable law or order of a court of competent jurisdiction or by any supervisory or regulatory body, each party shall keep confidential and shall not disclose to any third party without the prior written consent of the other party any confidential or proprietary information that it receives or obtains as a result of the entering into and/or performance of this Order.

8.3   The Client permits Braithwate to include the Client's name in any general list of clients produced by Braithwate from time to time.

8.4   Braithwate permits the Client to include the Braithwate brand name and logo in its list of suppliers and service providers.

8.5   All rights not expressly granted to the Client in these terms and conditions are reserved by Braithwate.

8.6   These terms and conditions, or any part thereof, may only be amended or modified by written agreement between each of the parties.

8.7   To the extent that any provision of these terms and conditions is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of the Order, and it shall not affect the enforceability of the remainder of this Order, nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.

8.8 These terms and conditions shall be governed by and construed in accordance with English law. Each of the parties irrevocably submits for all purposes in connection with these terms and conditions to the exclusive jurisdiction of the English courts.