ACT Customer Agreement
This Customer Agreement (“Agreement”) contains the terms and conditions that govern your use of the Services (as defined below) and is an agreement between The Learn Centre (“we,” “us,” or “our”) and you or the entity you represent (“you”,” your”).
This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Service Offerings (“Effective Date”).
As you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.
1. Use of the Services
1.1 Use. You may use the Services in accordance with this Agreement. You will adhere to all laws, rules, and regulations applicable to your use of the Services, and with any reasonable instructions given by us in relation to the Services.
1.2 Your Account. To access the Services, you must have an account associated with a valid e-mail address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement, we are not responsible for unauthorized access to your account.
1.3 Support. Technical support is available from your account manager
2. Changes
2.1 To the Services. We may change the Services, or change or remove features or functionality of the Services from time to time. We will notify you of any material change to, or discontinuation of, the Services.
3. Data Protection
3.1 Personal Data.
(a) If We are processing and storing personal data on behalf of you, it will comply with all relevant laws.
(b) You hereby warrant that both you and all relevant individuals have given their express permission for us to process and store all personal data provided to our systems by you.
4. Your Responsibilities
4.1 Usage. You are solely responsible for the use of the Services, which includes but is not limited to:
(a) the upload of personal data and creation of accounts for users from your organization
(b) the use of assessment content provided by us
(c) the communication of and use of the results of the assessments
4.2 Prohibited activities.
You will not:
(a) use the Services for any unlawful or illegal purpose or in any illegal or unlawful manner;
(b) use the Services in any manner that prevents others from using the Services (including “denial of service” attacks, or any other attempt to crash a Services host or network);
(c) violate the security or integrity of any network, computer or communications system, software application, or network or computing device involved in the Services;
(d) carry out any other action which may adversely affect the Services or their operation.
5. Fees and Payment
5.1. Service Fees. Fees are payable under the terms of your order for the Services. We may suspend your account if fees are more than 30 days in arrears.
6. Temporary Suspension of your Account
6.1 General Suspension. We may suspend your right to access or use any portion or all of the Services immediately upon notice to you if we believe that:
(a) your use of or registration for the Service Offerings (i) poses a security risk, (ii) may adversely impact the Services, (iii) may subject us, our affiliates, or any third party to liability, or (iv) may be fraudulent;
(b) use of your account is in breach of this Agreement;
(c) you have ceased to operate in the ordinary course of business, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
Our right to suspend your right to access or use the Service Offerings is in addition to our right to terminate this Agreement.
7. Term; Termination
7.1. Term. The term of this Agreement will commence on the Effective Date and will remain in effect until the Expiry Date of your order, or until it is terminated by you or us in accordance with Section 7.2.
7.2 Termination.
(a) Termination for Cause.
(i) By Either Party. Either party may terminate this Agreement for cause upon 30 days’ advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30-day notice period.
(ii) By Us. We may also terminate this Agreement immediately upon notice to you if any act or omission by you results in a suspension described in Section 6.1, or if we determine use of the Services by you or our provision of any of the Services to you has become impractical for any legal or regulatory reason.
7.3. Effect of Termination.
(a) Upon any termination of this Agreement:
(i) all your rights under this Agreement immediately terminate;
(ii) you remain responsible for all fees and charges you have incurred through the date of termination;
(iii) Sections 7, 8, 9,10,11, and 13.1 will continue to apply in accordance with their terms.
(b) Your data post-termination. We will store your data for 1 (one) Month following the termination date.
8. Proprietary Rights
8.1 Services License. We own and reserve all right, title, and interest in and to the Services, including all content included therein. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Services and content solely in accordance with this Agreement. You obtain no rights under this Agreement from us to the Services, including any related intellectual property rights.
All licenses granted to you in this Agreement are conditional on your continued compliance this Agreement and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement.
9. Indemnification
9.1. You will defend, indemnify, and hold harmless us, our employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning:
(a) your use of the Services (including any activities under your account and use by your employees and personnel);
(b) breach of this Agreement or violation of applicable law by you;
9.2 We will defend, indemnify, and hold harmless you, your employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any unaffiliated third party claim that our Services infringe its patent, copyright or trademark or makes unlawful use of its trade secret. If we reasonably believe that a claim under this Section may bar your use of the Product, we will seek to: (i) obtain the right for you to keep using it; or (ii) modify or replace it with a functional equivalent and notify you to stop use of the prior version of the Product. If these options are not commercially reasonable, we may terminate your rights to use the Product and then refund any advance payments for unused Subscription rights.
9.3 Process. Each party will promptly notify the other on receipt of any claim subject to Section 9.1 or Section 9.2 (as the case may be) but failure to promptly notify the other party will only affect the failing party’s obligations under Section 9.1 or 9.2 to the extent that the failure prejudices the other party’s ability to defend the claim. The defending party may: (a) use counsel of their own choosing to defend against any claim; and (b) settle the claim as they deem appropriate, provided that they obtain the other party’s prior written consent, not to be unreasonably withheld, before entering into any settlement.
10. Warranties
THE SERVICES ARE PROVIDED “AS IS.” WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES, INCLUDING ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT.
11. Limitations of Liability
11.1 SUBJECT TO SECTION 11.3, WE WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER, WE WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH:
(A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY
(I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICS,
(II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES
(III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS;
(B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
(C) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA.
11.2 SUBJECT TO SECTION 11.3, IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEEDING THE CLAIM.
11.3 NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY ARISING OUT OF ANY INDEMNIFICATION PURSUANT TO SECTION 9, FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, OR FOR FRAUD.
12. Modifications to the Agreement
We may modify this Agreement (including any Policies) at any time by posting a revised version on our Web Site or by otherwise notifying you. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms.
13. Miscellaneous
13.1 Confidentiality and Publicity. You may use our Confidential information only in connection with your use of the Services as permitted under this Agreement. You will not disclose our Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of our Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature.
13.2 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.3 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
13.4 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
13.5 Notice.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Site; or (ii) sending a message to the email address then associated with your account.
(b) To Us. To give us notice under this Agreement, you must contact us as follows: Support@thelearncentre.co.uk Notices provided by email will be effective when sent.
(c) Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
13.6 Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 13.6 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
13.7 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
13.8 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
13.9 Governing Law. The laws of England and Wales govern this Agreement and any dispute of any sort that might arise between you and us. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
13.10 Entire Agreement. This Agreement is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document.
14. Definitions
“Confidential Information” means all nonpublic information disclosed by our employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to our technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Confidential Information.
“Services” means the Learn Centre ACT assessment platform
“Site” www.thepayrollcentre.co.uk
“Term” means the term of this Agreement described in Section 7.1.