“GDPR” means the General Data Protection Regulation and any other applicable legal or regulatory act, as amended from time
“Order Form” means the ordering documents for purchases hereunder, including invoices, that are entered into between You and Us from time
to time. Order Forms shall be deemed incorporated herein by reference.
“Personal Data” means any information relating to an identified or identifiable
natural person (‘Data Subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to
one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation,
use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
means the online, web-based applications and platform provided by Us and online content that have been purchased by You under an Order Form, but excluding Third Party Content.
"Third-Party Content” means eLearning content provided by third parties that interoperate with the Services, and are identified as third-party content.
“User Guide” means the online user guide for the Services as updated from time to time.
“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include
but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
or “Our” means the Elite Training Solutions company described in Section(Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means all electronic data or information submitted by You to the Services.
Provision of Services.
We shall make the Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder
are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
Unless otherwise specified in the applicable
Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions,
prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated
Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who are no longer employed by You or your affiliates.
We shall: (i) provide to You basic support for the Services at no additional charge. (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime
(of which We shall give at least 8 hours’ notice via the Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Greenwich Mean Time Friday to 6:00 a.m. Greenwich Mean Time Monday), or (b) any unavailability
caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Our employees), or Internet
service provider failures or delays, and (iii) provide the Services only in accordance with applicable laws and government regulations.
You shall (i) be responsible for Users’
compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of
the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than
Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services
to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in Pounds Sterling(ii) fees are based on services
purchased and not actual usage, (iii) payment obligations are non-cancellable and fees paid are non- refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form.
Invoicing and Payment.
You will provide Us with valid and updated payment information, or with a valid purchase order or alternative document reasonably acceptable to Us. Such charges shall be made in advance, stated in the invoice. If the Order Form specifies
that payment will be by a bacs payment transfer, We will invoice You in advance and otherwise in accordance with the relevant Order Form. All costs must be paid prior to any E-learning user accounts being activated.
Once a User licence (User login & password) has been activated by ETS course
payment is nonrefundable, user licences last for 60 days, ETS will send reminders to candidates 1 week and 1 day prior to course expiry. If courses are not completed by the expiry date then certification is then nonredeemable or refundable, the onus is on
the booker to ensure that all courses are completed prior to the user expiry date.
Scope of Confidential Information.
Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Invoices, as well as business and marketing plans, technology
and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach
of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any
obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
GENERAL DATA PROTECTION REGULATION
We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data,
(b) disclose Your Data except as compelled by law in accordance with Section 7.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems,
or at Your request in connection with customer support matters, (d) use or process Your Data except to provide the Services to You as agreed in this Agreement.
Each party shall comply with all applicable requirements of GDPR in respect of Personal Data. Without limiting the generality of the foregoing, We shall:
(a) acknowledge that under GDPR, You are a Data Controller and We are a Data Processor where Processing Personal Data under the terms of the Agreement. Each party must ensure compliance with GDPR at all times during the Term of the Agreement;
(b) agree to process the Personal Data only for the purposes outlined in the contract and strictly for no other purpose without Your written authority;
(c) keep a record of Processing activities undertaken on Your data or on Your behalf;
(d) not disclose or transfer the Personal Data to a third party located outside the EEA without Your prior written authorisation;
(e) agree to notify
You immediately and no later than 48 hours upon receipt of a request from an individual seeking to exercise any of their rights under GDPR. Taking into account the nature of the Processing, assist You by appropriate technical and organisational measures, for
the fulfilment of Your obligation to respond to requests by Data Subjects to exercise their rights under Chapter III of the GDPR (including the right to transparency and information, the data subject access right, the right to rectification and erasure, the
right to the restriction of Processing, the right to data portability and the right to object to Processing);
(f) inform You if, in Our opinion, an instruction
infringes any Articles of GDPR;
(g) take such measures in relation to the security of the Personal Data as are required of it by Article 32 of the GDPR and
to ensure access is restricted to authorised users only and administration rights are exercised.
(h) not engage a sub-processor without your prior written consent
except if we seek to change Our server infrastructure provider. In such an instance, We shall notify You of our intention to engage a server infrastructure provider and unless You object to such notification within 30 days, You shall be deemed to have consented
to the engagement of the server infrastructure provider.
(i) take into account the nature of the processing under an Agreement and the information available
to Us, assist You in carrying out Your obligations under Articles 32 to 36 of the GDPR and any other Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(j) make available to You information that demonstrates its compliance with Article 28 (3) of the GDPR and its obligations;
(k) permit You or a third party authorised by You, to carry out audits and inspections of the processing of Personal Data by Us, on reasonable notice in normal business hours;
(l) notify You without undue delay after becoming aware of a personal data breach; and
that the Personal Data belongs to You.
WARRANTIES AND DISCLAIMERS
ETS offers no warranty on user course licences, once the user licence has expired the qualification is non extendable and non refundable, the client accepts responsibility for courses
to be completed within the agreed allotted time scale
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Indemnification by Us.
We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriate
the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable legal fees incurred by You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the
Claim; (b) give Us sole control of the defence and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
Indemnification by You.
You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement,
infringes or misappropriate the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable legal fees incurred by Us in connection with any such Claim; provided,
that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defence and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide
to You all reasonable assistance, at Our expense.
LIMITATION OF LIABILITY
Limitation of Liability.
In no event shall either party’s aggregate liability arising out of or related to this agreement, whether in contract, tort or under any other theory of liability,
exceed the total amount paid by You hereunder or, with respect to any single incident, 150% of the amount paid by You hereunder (in aggregate) in the 12 months preceding the incident. The foregoing shall not limit your payment obligations under section 5 (fees
and payment for services).
of Consequential and Related Damages.
In no event shall either party have any liability to the other party for any lost profits or revenues
or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer
shall not apply to the extent prohibited by applicable law.
We endeavour to ensure the courses reflect best practice in the subject area
they cover but it is the customer’s responsibility to ensure they meet the needs of their employees and local legislation.
TERM AND TERMINATION
Term of Agreement.
This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
Term of Purchased User Subscriptions.
User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. The per-unit
pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon
renewal and thereafter. Any such pricing increase shall not exceed 7% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
A variation in contract term or products included within a contract resulting in a subsequent increase in price does not constitute an increase in per-unit pricing during the term and is therefore not applicable to this clause.
Return of Your Data.
Upon request by You made within 30 days after the effective date of termination of a Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format. After
such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
are contracting with Elite Training Solutions any contractual termination Agreement should be sent in writting to the Director of Elite Training Solutions, 10 Oakham Grove, Ashby De La Zouch Leicestershire, LE65 2QP
Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the
second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).
Notices to You shall be addressed to the main system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated
to Governing Law and Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of England and Wales and each
party agrees to submit to the non-exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this Agreement or the legal relationships established by this Agreement and/or any Contract and any proceedings
in respect of any such claim or matter may be brought in such courts.
Notwithstanding the other provisions of this Agreement, We shall be entitled to
bring an action in any jurisdiction where this relates to the protection of our intellectual property rights or other rights.
Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under
this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to
the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
You shall pay all of Our reasonable direct legal fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of
Section (Invoicing and Payment)
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing clause (i)
We may appoint a server infrastructure provider under the conditions set out in clause 8.2(h) and (ii) either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection
with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph
shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party.
This Agreement, including all exhibits
and addenda hereto and all Order Forms constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment,
or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency
between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated
in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.