EduMe Terms and Conditions

 

1.             Interpretation

1.1          Definitions

In this Agreement, unless the context otherwise requires, the expressions and terms listed in the Definitions section shall have the meaning stated in that section.

1.2          Construction of certain references

In this Agreement where the context admits:

(A)            references to statutory provisions shall be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions of which they are re-enactments (whether with or without modification);

(B)            references to Clauses and Appendices are references to Clauses and Appendices of and to this Agreement and references to paragraphs are, unless otherwise stated, references to paragraphs of the Appendix in which the reference appears; and

(C)            references to a person include an individual, a body corporate and an unincorporated association of persons; and

(D)            references to a Party to this Agreement include references to the successors or assigns (immediate or otherwise) of that Party.

1.3          Headings

                  The headings and sub headings are inserted for convenience only and shall not affect the construction of this Agreement.

 

2.          Learning and Communication Services

2.1       EduMe undertakes that the Learning and Communication Services will be performed in accordance with the Deal Terms, and with reasonable skill and care, it shall:

(A)            make the Content available to Customer and its Users;

(B)            perform the obligations relating to the Content set out in the Deal Terms;

(C)            ensure the Learning and Communication Services comply with the technical specifications set out in the Deal Terms; and

(D)           host and maintain the Learning and Communication Services on the EduMe Platform.

2.2       The undertaking in the immediately preceding clause shall not apply to the extent of any non-conformance which is caused by use of the Learning and Communication Services contrary to EduMe’s instructions, or modification or alteration of the Learning and Communication Services by any party other than EduMe or any authorised contractors or agents. If the Learning and Communication Services do not conform with the foregoing undertaking, EduMe will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer's sole and exclusive remedy for any breach of the undertaking set out in the immediately preceding clause.  Notwithstanding the foregoing, EduMe:

A)     does not warrant that Customer’s use of the Learning and Communication Services will be uninterrupted or error-free; and

B)     is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet. Customer acknowledges that the Learning and Communications Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

 

3.       Licences

3.1       EduMe grants to Customer during the Term of this Agreement a non-exclusive, royalty-free, non-transferable licence to (i) use the Developed IP to receive the Learning and Communication Services, and (ii) allow Users to access the Content via the EduMe Platform.

3.2       Where Customer Content is required for the purpose of the Learning and Communication Services, Customer grants EduMe during the Term a non-exclusive, royalty-free licence to

(A)            host, copy, display, use, reproduce, electronically store, distribute and include the Customer Content via the EduMe Platform as is necessary for EduMe to provide the Learning and Communication Service to Users and comply with its obligations under this Agreement; and

(B)            use the Customer Marks in or on any media to for the purpose of delivering the Learning and Communication Services in connection with the Mobile Learning Service(s).

3.3       For the avoidance of doubt, EduMe shall only use Customer Content for the purpose of providing the Learning and Communication Services to Customer and will not provide such Customer Content available to third parties unless otherwise agreed with Customer.

 

4.          Intellectual Property Rights

4.1       Customer acknowledges and agrees that all copyright and other Intellectual Property Rights in the EduMe Marks, the EduMe Platform, the Learning and Communication Services, any Developed IP (whether registered or unregistered), any derivative works thereof and anything developed or delivered by or on behalf of EduMe under this Agreement belong to EduMe or its licensors and Customer shall not acquire or claim any title to any of the foregoing by virtue of the rights granted to Customer by this Agreement.

4.2       Customer may not, and may not cause or permit others to:

(A)   modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish or copy any part of the Learning and Communication Services (including data structures or similar materials produced by programs) unless required to be permitted by law for interoperability;

(B)   access or use the Services to build or support, directly or indirectly, products or services competitive to EduMe; or

(C)   license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Learning and Communication Services to any third party except as permitted by this Agreement.

4.3       To the extent EduMe needs to use the Customer Marks in order to perform its obligations or exercise its rights under this Agreement, EduMe shall be entitled to use such Customer Marks provided such Customer Marks shall be used in accordance with branding guidelines made available to EduMe from time to time. 

4.4       Neither Party shall use or amend the other Party’s Marks pursuant to this Agreement in any manner which may be harmful to the goodwill of the other Party or bring the other Party’s Marks into disrepute or otherwise affect the validity of the other Party’s Marks. 

4.5       If either Party objects to the form in which the other Party is using its Marks, it shall notify the other Party immediately and the other Party shall comply with any reasonable requests to cease such use.

4.6       Customer warrants that, during the Term, there will be no royalties, licence fees or other sums payable to third parties by EduMe for the exercise of the rights granted under Clause 3 above.

 

5.          Advertising and Marketing

The Parties will comply with the obligations relating to marketing and branding (if any) as set out in the Deal Terms.

 

6.          Customer Responsibilities

6.1       In addition to any Customer Responsibilities specified in the Deal Terms, Customer shall:

(A)        Ensure that EduMe has reasonable access to all necessary Customer information as reasonably required for EduMe to provide the Learning and Communication Services; 

(B)        keep EduMe informed of all material developments or proposals in relation to its business or operations that may have an effect upon the Learning and Communication Services;

(C)        designate points of contact who will be Customer’s primary interface with EduMe for the Learning and Communication Services and who will have the authority to make decisions and provide approvals to EduMe as necessary for EduMe to provide the Learning and Communication Services in accordance with this Agreement;

(D)        provide EduMe with access in a timely manner to Customer personnel, equipment, information and networks as may be reasonably requested by EduMe or required for EduMe to provide the Learning and Communication Services in accordance with this Agreement including but not limited security access information and configuration services;

(E)         carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of assistance, personnel, equipment, and information, any agreed timetable or delivery schedule shall be adjusted as reasonably necessary;

(F)         ensure that the Users use the Services strictly in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;

(G)        obtain and shall maintain all necessary licences, consents necessary for EduMe to use the Customer Content in accordance with this Agreement;

(H)        ensure that its network and systems comply with the relevant specifications provided by EduMe from time to time; and

(I)          be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems and for any problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

 

7.       Technical Support

7.1       EduMe will, as part of the Learning and Communication Services, provide the Customer with the EduMe’s standard customer support services during Normal Business Hours.  EduMe may amend the Support Services Policy in its sole and absolute discretion from time to time.  Customer may purchase enhanced support services separately at EduMe’s prevailing rates.

7.2       Complaints that either Party has about the other Party related to this Agreement should be raised with the designated contact for technical fault/service issues (as identified on the Term Sheet) by email.

7.3       The other Party will us reasonable endeavours to respond back to the complaining Party within twenty-four (24) hours of the original phone call.

7.4       Upon notification of unavailability of the Customer Content by either Party, Customer shall remedy the unavailability as soon as is practicable.

7.5       Customer shall report to EduMe all known faults and issues in relation to the Learning and Communication Services that are affecting Content and/or the Learning and Communication Services. In all cases, communication must take the form of a phone or other type of call and an email to EduMe’s designated technical fault contact as identified on the Term Sheet as soon as reasonably possible.

7.6       EduMe shall use reasonable endeavours to ensure that its designated technical contact, as identified on the Term Sheet, is contactable during the hours of availability specified on the Term Sheet. EduMe shall ensure that its designated technical contact, as identified on the Term Sheet, is contactable.

7.7       EduMe reserves the right to: (i) replace the Content and/or the Learning and Communication Services; (ii) replace the link to the Content and/or the Learning and Communication Services with a holding page; and/or (iii) suspend the Content and/or the Learning and Communication Services subject to EduMe giving Customer as much online, written or oral notice as is reasonably practicable in the circumstances and to restoring service as soon as is reasonably practicable.

 

8.          Users

8.1       In relation to the Users, Customer undertakes that:

(A)            it will not allow or suffer any User License to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Learning and Communication Services;

(B)            it shall permit EduMe to audit the use of the Learning and Communication Services by Customer.  Such audit may be conducted no more than once per quarter, at EduMe’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Customer’s normal conduct of business;  

(C)            if any of the audits reveal that Customer has underpaid License Fees to EduMe, then without prejudice to EduMe’s other rights, Customer shall pay to EduMe an amount equal to such underpayment as calculated with agreed prices 10 Business Days after the date of the relevant audit.

8.2          For the avoidance of doubt, agreed per User charges shall be payable by the Customer regardless of whether Users actually access or use the Learning and Communication Services.

8.3          In relation to the Users, EduMe undertakes that nominated Company managers with admin rights will be able to define the list of Users and make changes to this on a real-time basis.

 

9.             Fees and Payment

9.1          The fees payable in respect of this Agreement, including License Fees, are specified in the Deal Terms. 

9.2          Unless otherwise stated all sums payable under this Agreement shall be payable in US Dollars and are exclusive of VAT and any applicable sales tax.

9.3          Subject to Clause 9.2, each Party shall, in respect of any sums payable by the other Party pursuant to the Deal Terms, submit an invoice to the other Party, which shall comply with VAT requirements if applicable. The other Party shall pay all valid and undisputed invoices in accordance with the Deal Terms.

9.4          EduMe may deduct or set off any amounts due to EduMe from Customer under this Agreement) against invoices payable by EduMe to Customer.

9.5          If a withholding tax or deduction is required by applicable law to be paid by Customer in respect of any amounts due under this Agreement, Customer will pay such additional amounts as may be necessary, such that EduMe receives the full amount it would have received had no withholding or deduction been imposed.

9.6          If a Party fails to pay in full on the due date any sum payable by it under or in connection with this Agreement, interest on the outstanding amount shall accrue on a daily basis from the due date until the date of payment (whether before or after judgment) at the rate of 3% per annum above the base rate of National Westminster Bank Plc from time to time. EduMe reserves the right to review and adjust the Pricing at the end of the twelve (12) month period, and on its anniversary thereafter.  EduMe will provide three (3) months’ written notice to Customer of any changes.

 

10.       Records, Right to Audit and Reporting

10.1        Customer shall keep or cause to be kept full and accurate records of all material matters directly related to this Agreement

10.2         Each Party shall ensure that all reports due under the Deal Terms are accurate and delivered on-time. 

 

11.           Confidentiality

11.1       Subject to Clauses 11.2 and 11.3, each Party will ensure that its directors, officers, employees and Affiliates will treat as confidential all Confidential Information and will not disclose such Confidential Information to any third party person, firm or company.  This includes details of the EduMe Platform and the fees being paid by Customer.

11.2       The provisions of Clause 11.1 shall not apply to any information which:

(A)            is already in the possession of the recipient Party prior to its receipt in connection with this Agreement provided the recipient Party is not bound by any existing obligation of confidentiality in respect of such information;

(B)            is in the public domain other than by default of the recipient Party;

(C)            is obtained by the recipient Party from a bona fide third party having free right of disposal of such information and without breach by the recipient Party; or

(D)           is properly disclosed as required by law, court order or other authority of competent jurisdiction or pursuant to and in accordance with a relevant statutory or regulatory obligation or to obtain or maintain any listing on a Stock Exchange.

11.3       Each Party which receives Confidential Information from the other Party shall only use it for the purpose of performing its obligations and asserting its rights under this Agreement.

11.4       Confidential Information received by a Party pursuant to this Agreement may be disclosed to professional advisers, auditor, bankers, agents and sub-contractors of the Parties on a need to know basis provided that each Party does so on terms protecting the information substantially the same as the terms of this Clause 11.

11.5       The provisions of this Clause 11 shall survive termination of this Agreement for any reason.

 

12.           Warranties

12.1       Each Party warrants that:

(A)           it has requisite corporate power and authority to enter into and fully perform its obligations under this Agreement;

(B)           the entering into and performance of its obligations under this Agreement has been duly authorised by all necessary corporate action on its part;

(C)           it shall perform its obligations under this Agreement with reasonable care and skill;

(D)           it is not a Party to any contracts or other arrangements, where the performance or non-performance of its obligations could reasonably be expected to hinder or prevent the performance of its obligations under this Agreement; and

(E)           so far as it is aware, there are no actions, suits proceedings or regulatory investigations pending or threatened against it or any member of its Group that might be reasonably expected to have an adverse effect on the performance of its obligations under this Agreement.

12.2       Customer warrants and undertakes to EduMe that at all times during the Term:

(A)           it has obtained all consents, permissions and licences (whether regulatory, copyright, contractual or otherwise) necessary to enable it to perform its obligations under this Agreement;

(B)           it is solely responsible for paying any fees, royalties and/or other sums due to third parties in relation to the Customer Content and/or the Learning and Communication Services;

(C)           it owns the Customer Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Content;

(D)           the use of the Customer Content or Customer Marks by EduMe in accordance with this Agreement will not infringe any copyright, trade mark or other Intellectual Property Rights or similar right of any third party;

(E)           except as permitted by Applicable Law it shall not reverse engineer, hack or otherwise attempt to access or circumvent on an unauthorized basis any information or materials provided to Customer or Users by EduMe or any EduMe hardware or software (including the EduMe Platform and the Learning and Communication Services);

(F)            the Customer Content shall not contain any errors, bugs, viruses, worms, Trojan horses or other contaminants that may, be used to, access, modify, delete or damage any data files or other computer programs or computer systems of or operated on behalf of EduMe, the EduMe Platform, the Learning and Communication Services or any computer systems of a User;

(G)           in performing its obligations under this Agreement it will comply with all Applicable Laws;

(H)           the Customer Content will not be defamatory, offensive, obscene, incite hatred, racist or in breach of any person's rights, including a breach of confidence, privacy or any other rights.

(I)             it shall not and shall ensure Users shall not copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the EduMe Content in any form or media or by any means; or reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of EduMe Content or Learning and Communication Services;

(J)            it will not access all or any part of the Learning and Communication Services in order to build a product or service which competes with the Learning and Communication Services and/or EduMe Platform;

(K)           it will not use the Learning and Communication Services and/or EduMe Platform to provide services to third parties;

(L)            it will not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Learning and Communication Services available to any third party except the Users, and/or

(M)           it shall take reasonable steps to prevent any unauthorised access to, or use of, the Learning and Communication Services and/or the Content and, in the event of any such unauthorised access or use, promptly notify EduMe.

12.3       The rights provided under this Agreement are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

12.4       EduMe will exercise its reasonable skill and care in the performance of the Learning and Communication Services. 

 

13.           Indemnity and Insurance

13.1       Both Parties agree to indemnify and hold harmless the other Party (and their respective employees, officers, and directors) in full against any and all liabilities, costs, expenses, damages and losses suffered or incurred by the other Party (and their respective employees, officers, and directors) arising out of or in connection with any third party claims received as a result of a breach of any provision of this Agreement or any negligent act or omission of the other Party or its employees, agents or sub-contractors.

13.2       Where either Party (the "Indemnifying Party") is required to indemnify the other Party (the "Indemnified Party") pursuant to any provision of this Agreement, then the Indemnified Party shall:

(A)            promptly notify the Indemnifying Party in writing of the existence of and in reasonable detail, the facts of any claim or allegations of claim of which it has notice as soon as reasonably practicable after its receipt of such claim, and will not make any admissions nor compromise any such claim without the Indemnifying Party’s written consent;

(B)            at the Indemnifying Party's request and expense allow the Indemnifying Party the sole right to conduct and/or settle all negotiations and litigation resulting from such claim; and

(C)            at the request of the Indemnifying Party, afford all reasonable assistance with such negotiations or litigation, and shall be reimbursed by the Indemnifying Party for any reasonable costs in so doing.

The availability of an indemnity under this Agreement shall be without prejudice to each Party’s rights and remedies arising other than in accordance with such indemnity.

13.3       Without prejudice to its express obligations under this Agreement, each Party shall take out and maintain in force with reputable insurance companies sufficient insurance to cover its commercial risks and liabilities arising under or in connection with this Agreement.            

 

14.          Suspension

14.1       EduMe may at its sole discretion suspend access to the Content, the Learning and Communication Services, the EduMe Platform either in whole or in part under any of the following circumstances:

(A)           where Company is in material breach of this Agreement and fails to remedy such material breach within forty eight (48) hours after receiving written notice requiring it to remedy that material breach;

(B)           where the Customer is obligated to do so to comply with an order, instruction or request of Government, regulatory authority, emergency services organisation, or other competent authority;

(C)           in any of the circumstances detailed in the Deal Terms; and

(D)           in the case of EduMe, for the purpose of repair, improvement, upgrading or maintenance of the EduMe Platform or any other facilities which are necessary to provide the Learning and Communication Services, subject to EduMe giving Customer as much on-line, written or oral notice as is reasonably practicable in the circumstances and restoring access to the Content the EduMe Platform, and/or the Learning and Communication Services as applicable as soon as is reasonably practicable.

14.2       Any exercise or non-exercise by one Party of its right of suspension under this Clause 14 shall not affect that Party’s right to terminate this Agreement subsequently in respect of the same or any other event.

 

15.           Term and Termination

15.1       This Agreement shall commence on the Commencement Date and shall remain in force and effect for the duration of the Term, save where terminated earlier in accordance with its terms.

15.2       Without prejudice to any other rights or remedies, either Party may, by written notice to the other, terminate this Agreement (in whole or in part) with immediate effect on the happening of any of the following events:

(A)            the other Party commits a material breach of this Agreement which is incapable of remedy; or

(B)            the other Party commits a material breach of this Agreement which is capable of remedy and fails to remedy such material breach within twenty (20) Business Days after receiving written notice requiring it to remedy that material breach; or

(C)            the other Party ceases to trade (either in whole, or as to any part or division involved in the performance of this Agreement), or becomes insolvent, has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation of reconstruction).

15.3       Without prejudice to any other rights or remedies, EduMe may terminate this Agreement (in whole or in part) with immediate effect if the Customer undergoes a change of control, and for the purposes of this Clause 15.3, “control” shall have the meaning given in section 1124, Corporation Tax Act 2010.

15.4       If either Party wishes to terminate this Agreement for reasons other than those outlined above, three (3) months’ written notice must be provided to the other Party prior to the end of the first 12 month period, or its anniversary thereafter.

15.5       Upon expiry or termination of this Agreement for whatever reason the licences granted at Clause 3 shall terminate and each Party shall, within a reasonable period of time, cease to make any use of the other Party's trademarks.

15.6       All rights and obligation of the Parties shall cease to have effect immediately on termination of this Agreement except that termination shall not affect:

(A)            the accrued rights and obligations of the Parties at the date of termination; or

(B)            the coming into force or the continuation in force of any provisions of this Agreement which are expressly or by implication intended to come into force or continue in force on or after such termination, and any provisions of this Agreement necessary for the interpretation or enforcement of this Agreement.

 

16.           Data

16.1       Both Parties shall (and shall procure that each of its subcontractors shall) comply with the provisions of the Data Protection Legislation as appropriate in connection with its obligations under this Agreement.

 

17.           Warranties, Disclaimers and Exclusive Remedies

17.1       Each Party represents that it has validly entered into this Agreement and that it has the power and authority to do so.  EduMe warrants that the Learning and Communication Services will be performed using commercially reasonable care and skill in all material aspects as described in this Agreement and the Term Sheet.  If the Learning and Communication Services provided to Customer are not performed as warranted, Customer must promptly provide EduMe with a written notice that describes the deficiency in the Learning and Communication Services.

17.2       EduMe does not warrant that the Learning and Communication Services will be performed error-free or uninterrupted, that EduMe will correct all service errors, or that the Learning and Communication Services will meet Customer’s requirements or expectations.  EduMe is not responsible for any issues related to the performance, operation or security of the services that arise from Customer Content or third party content or services provided by third parties.

17.3       For any breach of the services warranty, Customer’s exclusive remedy and EduMe’s entire liability shall be the correction of the deficient services that caused the breach of the warranty, or, if EduMe cannot substantially correct the deficiency in a commercially reasonable manner, Customer may end the deficient services and EduMe will refund the fees for the terminated services that were pre-paid following the effective date of termination.

17.4       To the extent not prohibited by law, these warranties are exclusive and all other warranties or conditions, whether express or implied, are expressly excluded, including, without limitation, for software, hardware, systems, networks or environments or for merchantability, satisfactory quality and fitness for a particular purpose.

 

18.           Liability

18.1       Notwithstanding anything else in this Agreement neither Party excludes or restricts its liability for fraud, death or personal injury caused by its own negligence or the negligence of its employees or for any other liability that cannot be excluded or limited under Applicable Laws.

18.2       Nothing in this Agreement shall operate to exclude or limit either Party’s liability for a breach of Clause 11, Clause 13 and/or Clause 16.

18.3       Subject to Clause 18.1, EduMe shall not be liable to the Customer for the following loss or damage in connection with this Agreement, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, and even if foreseeable:

(a)         loss of profits;

(b)        loss of business;

(c)         loss of contracts;

(d)        loss of revenue;

(e)         loss of or corruption of data;

(f)          loss of goodwill; or

(f)          any indirect or other consequential loss.

18.4       Subject to Clauses 18.1 and 18.3, EduMe’s aggregate liability under or in connection with this Agreement (whether arising in contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited to the greater of:

(A)                USD 10,000; and

(B)            100% of the amounts paid by Customer under this Agreement during the period of twelve (12) months immediately preceding the date on which the claim arose.

18.5       EduMe shall not be liable under this Agreement for any failure to comply with its obligations under this Agreement to the extent that such failures arise or occur due to reasons beyond the reasonable control of EduMe (which include including power or internet failure or outages or failure of the Mobile Network) or for reasons due to the Customer’s failure to comply with its obligations and responsibilities. 

18.6       Except as expressly provided herein, the Learning and Communication Services and any other services provided hereunder are provided for the Customer and each User’s use during the Term “as is” and EduMe does not warrant that the operation of the Learning and Communication Services will be uninterrupted or error free or that EduMe will implement any future functionality or features nor does EduMe warrant any outcome by Users in connection with the Learning and Communication Services.  All warranties, terms, conditions, undertakings and obligations regarding the Learning and Communication Services or any part thereof, whether express or implied, by statute, common law, trade usage, course of dealing or otherwise are excluded to the maximum extent legally possible.

 

19.           Announcements

19.1       Save as set out in clause 19.2, neither Party to this Agreement shall make any announcement concerning the provisions or subject matter of this Agreement or containing any information about the other Party without the prior written approval of the other (which shall not be unreasonably withheld or delayed). 

19.2       EduMe shall be entitled to publicise that it is carrying out services for Customer for general marketing purposes subject to Customer’s prior consent to the publication (such consent not to be unreasonably withheld or delayed by Customer).

19.3       The restrictions contained in this Clause 19 shall survive termination or expiry of this Agreement and continue without limit of time.

 

20.           Assignment and Subcontracting

20.1       Neither party shall, without the prior written consent of the other, transfer, assign, novate, subcontract or otherwise dispose of all or any of its rights and/or obligations under this Agreement to any third party.

20.2       Where a Party provides its consent to the other sub-contracting in accordance with Clause 20.1, the other Party shall:

(A)            ensure that any third party subcontractor shall be subject to a duty to comply with provisions commensurate with this Agreement; and

(B)            remain responsible for the performance of its obligations under this Agreement where it subcontracts such performance and for the avoidance of doubt the Party shall not be relieved of any of its obligations under this Agreement by appointing a subcontractor.

 

21.          Notices

21.1       Any notice (which term shall in this Clause 21 include any other communication) required to be given under this Agreement or in connection with the matters contemplated by it shall, except where otherwise specifically provided, be in writing in the English language.

21.2       Any such notice shall be addressed as provided in Clause 21.3 and may be:

(A)                personally delivered, in which case it shall be deemed to have been given upon delivery at the relevant address if it is delivered not later than 17.00 hours on a Business Day, or, if it is delivered later than 17.00 hours on a Business Day or at any time on a day which is not a Business Day, at 08.00 hours on the next Business Day; or

(B)                if within the United Kingdom, sent by first class pre-paid post or recorded delivery, in which case it shall be deemed to have been given two (2) Business Days after the date of posting; or

(C)                if from or to any place outside the United Kingdom, sent by pre-paid airmail, or by air courier in which case it shall be deemed to have been given three (3) Business Days after the date of posting or delivery as applicable;

(D)                sent by electronic mail, in which case it shall be deemed to be given when actually received in readable form, but subject to the notifying Party also sending a further copy of such notice which complies with one of the requirements of Clauses 21.2 (A) – (C) above.

21.3       The addresses and other details of the Parties referred to in Clause 21.2 are, subject to Clause 21.4:

For EduMe:

For the attention of:

Managing Director Edume Limited

Barley Mow Centre

10 Barley Mow Passage

Chiswick, London, W4 4PH

United Kingdom

21.4       Any Party to this Agreement may notify the other Party of any change to the address or any of the other details specified in Clause 21.3, provided that such notification shall only be effective on the date specified in such notice or five (5) Business Days after the notice is given, whichever is later.

 

22.           Entire Agreement

22.1       This Agreement, together with any documents referred to in it, constitutes the entire agreement between the Parties relating to its subject matter and supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, between the Parties relating to such subject matter.

22.2       Each Party acknowledges that it does not rely, and has not relied or been induced to enter into this Agreement upon or by any representation (whether negligent or innocent), statement or warranty other than those expressly contained in this Agreement and, having negotiated and freely entered into this Agreement, agrees that the only remedy in respect of any misrepresentation or untrue statement made to it shall be a claim for breach of contract under this Agreement, except in the case of fraud.

22.3       No variation of this Agreement shall be effective unless made in writing and signed by each of the Parties.

 

23.    Non-solicitation

23.1       Customer hereby covenants and agrees that without the prior written consent of EduMe, it will not hire, or make any offer of employment to any person employed or any agent retained by EduMe: (i) at any time during the term of this Agreement, and (ii) for a period of twelve (12) months following the expiration or termination hereof; provided that Customer will not be in breach of this Clause 23 if the employees of the other Party respond to a job vacancy announcement advertised in any media of general circulation where Customer can prove that it has not actively solicited such employee or employees of EduMe, by giving them any incentive or offering them a position within their company.  Furthermore, in the event of any breach of this undertaking, the Customer shall pay compensation to the EduMe equivalent to six (6) months of the relevant employee’s then current gross salary.

 

24.    General

24.1       This Agreement does not create any right or benefit enforceable by any person not a Party to it (within the meaning of the Contracts (Rights of Third Parties) Act 1999)

24.2       No waiver of any right or remedy under this Agreement shall prevent any further or future exercise of such right, or remedy.

24.3       At any time after the date hereof each of Customer shall, at the request and cost of EduMe, execute or procure the execution of such documents and do or procure the doing of such acts and things as EduMe may reasonably require for the purpose of giving to EduMe the full benefit of all the provisions of this Agreement, subject to any express restrictions in this Agreement on the extent of either Party’s obligations under this Agreement.

24.4       Subject to any express provisions to the contrary each Party to this Agreement shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Agreement.

24.5       If any provision of this Agreement is held by any court or competent authority to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Agreement in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Agreement in any other jurisdiction shall not be affected. In these circumstances, the Parties shall meet to discuss the affected provisions and shall substitute a lawful and enforceable provision which so far as possible results in the same economic effects.

24.6       This Agreement may be executed in any number of counterparts, which shall together constitute one Agreement.  Any Party may enter into this Agreement by signing any such counterpart.

24.7       Nothing in this Agreement shall constitute, or be deemed to constitute, a partnership between the Parties nor shall it constitute, or be deemed to constitute, any Party the agent of any other Party for any purpose except as expressly provided.

24.8       Subject to any express provisions to the contrary in this Agreement, neither Party shall have no right or authority to and shall not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of the other Party or bind the other Party in any way.

24.9       This Agreement and any non-contractual obligations arising from or connected with it shall be governed by English law and this Agreement shall be construed in accordance with English law.

24.10    In relation to any legal action or proceedings arising out of or in connection with this Agreement (whether arising out of or in connection with contractual or non-contractual obligations) (“Proceedings”), each of the Parties irrevocably submits to the exclusive jurisdiction of the English courts and waives any objection to Proceedings in such courts on the grounds of venue or on the grounds that Proceedings have been brought in an inappropriate forum.  This Clause 24,.10 shall not prevent either Party from applying for provisional measures (including interim injunctive relief) in the courts of any other competent jurisdiction.

 

DEFINITIONS

Affiliate

means, in respect of any company, a company which is, from time to time, its subsidiary undertaking or parent undertaking, or a subsidiary undertaking of that parent undertaking (as the terms “subsidiary undertaking” and “parent undertaking” are defined in section 1159 of the Companies Act 2006);

Agreement

means this agreement between EduMe and Customer incorporating the Terms and Conditions, the Term Sheet, the Deal Terms, the Definitions and any agreed schedules and appendices attached or referenced hereto;

Applicable Laws

means all applicable laws and regulations or requirements of all relevant regulators;

Business Day

means a day (other than a Saturday or Sunday) on which banks in London are open for general business;

Confidential Information

means all information whether conveyed orally, in writing, in machine readable form or otherwise which relates to a Party’s business, equipment, services, developments, trade secrets, know-how, personnel, suppliers and customers (whether or not designated as “confidential information” by the disclosing Party) together with all information derived from the above, the existence and terms of this Agreement and all information designated as confidential or which ought reasonably to be considered confidential;

Content

means the EduMe Content and/or the Customer Content as applicable;

Customer Content

means the collection of text, graphics, still pictures, video and/or audio material, software, database content and other information, data and materials created or compiled by or on behalf of Customer, based on source material provided by Customer, and made available to EduMe for distribution by EduMe to Customer and Users via the EduMe Platform as part of the Learning and Communication Services;

Data Protection Legislation

means the Data Protection Act 1998 and all other applicable or replacement data protection or privacy laws;

Deal Terms

means the deal terms attached to these Terms and Conditions;

Developed IP

means all Intellectual Property Rights created or developed by EduMe under this Agreement, including without limitation any software, tools, specifications, explanations, documents, reports, diagnostic tests, reports, data or other development work, results of the Content;

EduMe Content

means the collection of text, graphics, still pictures, video and/or audio material, software, database content and other information, data and materials created or compiled by EduMe, based on source material provided by EduMe, and made available for distribution by EduMe to Customer and Users via the EduMe Platform as part of the Learning and Communication Services;

EduMe Marks

means the EduMe name and logo and any other trade marks, names, brands and logos of EduMe or any other member of its Group;

EduMe Platform

means the EduMe software platform on which the EduMe Learning and Communication Service is hosted;

Intellectual Property Rights

means all rights in patents, copyrights, database rights, design rights, trade marks and trade names, domain names, service marks, trade secrets, know-how and other intellectual property rights (whether registered or unregistered) and all applications for the same and all rights having similar effect anywhere in the world;

Learning and Communication Services                

means the services to be delivered under this Agreement pursuant to which EduMe will make available the Content for distribution to Users;

Learning Management System

means the online authoring tool used to upload Content to the EduMe Platform

Marks

means the trademarks, trade names, service marks, names, brands and logos, domain names of each Party;

Mobile Network

means any mobile telecommunications networks;

Normal Business Hours

means 9.00 am to 6.00 pm local UK time, each Business Day;

Records

has the meaning set out in Clause 10;

Renewal Period

means any automatic renewal in accordance with the Deal terms;

Term

means the term specified in the Deal Terms;

Term Sheet

means the term sheet attached to this Agreement; 

Terms and Conditions

means these terms and conditions;

User

means an employee, contractor or customer of Customer who is entitled to use the Learning and Communication Services;

User Licenses

the licenses purchased by the Customer pursuant to the Deal Terms which entitle Users to access and use the EduMe Platform in accordance with this Agreement;

User Management System

means the online tool used to grant User access to the Learning and Communication Services;

VAT

means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature.