CUSTOMER TERMS AND CONDITIONS
1.1 The definitions in this clause apply to these Conditions.
Agreement: the agreement between Entelechy and the Customer for the supply of Services in accordance with these Conditions.
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5 or clause 10.6.
Customer Data: the data inputted by the Customer, Learners, or Entelechy on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services and any data generated by, or derived from the Customer's use of the Services, whether hosted or stored within the Services or elsewhere.
Customer: the person or legal entity that purchases the Services from Entelechy.
Data Protection Laws: means (a) the European Union General Data Protection Regulation (Regulation (EU) 2016/679) as adopted into and amended for the purpose of UK law; (b) the Data Protection Act 2018; and (c) all other laws concerning the processing of data relating to living persons.
Effective Date: the date on which the Customer accepts these Conditions.
Entelechy: Entelechy Academy Limited, a company registered in England and Wales under Company no 12526435 with its registered office at 21 Navigation Business Village, Navigation Way, Ashton-on-Riddle, Preston, PR2 2YP.
Initial Subscription Term: the initial term of this Agreement as agreed between Entelechy and the Customer in writing.
Insolvency Event: where a person ceases or threatens to cease to carry on business, becomes insolvent, has an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, enters into any composition with creditors generally, or has an order made or resolution passed for it to be wound up (otherwise than in furtherance of any scheme for amalgamation or reconstruction) or undergoes any similar or equivalent process in any jurisdiction, and a person shall be “solvent” where it has not undergone (or having undergone, is discharged from all aspects of) an Insolvency Event;
Learners: individuals, employees, agents, members or independent contractors of the Customer, its subsidiaries and affiliates, who are authorised by the Customer to use the Services.
Platform: the online applications provided by Entelechy as part of the Services.
Renewal Period: the period described in clause 12.1.
Services: the subscription services provided by Entelechy to the Customer under this Agreement via www.entelechy.academy or any other website notified to the Customer by Entelechy from time to time.
Subscription Fees: the subscription fees payable by the Customer to Entelechy for the User Subscriptions, as set out on the website or otherwise agreed between Entelechy and the Customer in writing.
Subscription Term: has the meaning given in clause 12.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 8.1 which entitle Learners to access and use the Services in accordance with this Agreement and the Terms of Service.
1.2 The terms “personal data”, and “process” (and its derivatives) shall have the meanings given to them in the Data Protection Laws.
2 User subscriptions
2.1 These are the Conditions on which Entelechy supplies the Services to its Customers. The placement of an order by the Customer constitutes an offer to purchase Services in accordance with these Conditions.
2.2 Entelechy’s acceptance of a Customer order will take place when Entelechy emails the Customer to accept it, at which point and on which date the Agreement will come into existence.
2.3 Upon acceptance of an order in accordance with clause 2.2, Entelechy hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit Learners to use the Services during the Subscription Term.
2.4 In relation to Learners, the Customer undertakes that the maximum number of Learners that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time.
2.5 The Customer shall not knowingly:
2.5.1 distribute or transmit to Entelechy, via the Services, any viruses;
2.5.2 store, access, publish, disseminate, distribute or transmit via the Services any material which:
18.104.22.168 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
22.214.171.124 facilitates illegal activity;
126.96.36.199 depicts sexually explicit images;
188.8.131.52 promotes unlawful violence;
184.108.40.206 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
220.127.116.11 is otherwise illegal or causes damage or injury to any person or property, and Entelechy reserves the right, on no less than thirty (30) days' prior written notice to the Customer, such notice specifying the breach of this clause and requiring it to be remedied within the thirty (30) day period, to disable the Customer's access to the Services for the duration of time that the breach remains unremedied.
2.6 The Customer shall not:
2.6.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
18.104.22.168 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means; or
22.214.171.124 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform;
2.6.2 access all or any part of the Services in order to build a product or service which competes with the Services;
2.6.3 use the Services to provide services to third parties;
2.6.4 subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Learners, or
2.6.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
2.7 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, if there is any such unauthorised access or use, promptly notify Entelechy.
3 Additional User Subscriptions
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number agreed between the parties in writing and Entelechy shall grant access to the Services to such additional Learners in accordance with the provisions of this Agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Entelechy in writing and Entelechy shall activate the additional User Subscriptions within 5 days of the Customer's request.
3.3 The Customer shall, within 30 days of the date of the Entelechy’s invoice, pay to Entelechy the relevant fees for such additional User Subscriptions.
Entelechy shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this Agreement.
5 Data protection
5.1 The parties shall comply with Data Protection Laws when processing personal data under or in connection with this Agreement.
6 Entelechy's obligations
6.1 Entelechy undertakes that the Services will be performed in accordance with reasonable skill and care in accordance with good industry practice.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Entelechy's instructions, or modification or alteration of the Services by any party other than Entelechy or Entelechy's duly authorised contractors or agents.
6.3 This Agreement shall not prevent Entelechy from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
6.4 Entelechy does not warrant that the Customer's use of the Services will be uninterrupted or error-free.
6.5 Entelechy warrants and undertakes that:
6.5.1 it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement; and
6.5.2 it will comply with all applicable laws and regulations with respect to its obligations under this Agreement.
7 Customer's obligations
7.1 The Customer shall:
7.1.1 provide Entelechy with:
126.96.36.199 all necessary co-operation in relation to this Agreement; and
188.8.131.52 all necessary access to such information as may be required by Entelechy; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
7.1.2 without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement; and
7.1.3 ensure that its Learners comply with the Terms of Service.
7.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
8 Charges and payment
8.1 The Customer shall pay the Subscription Fees to Entelechy for the User Subscriptions in accordance with this clause 8.
8.2 The Customer shall on the Effective Date provide to Entelechy valid, up-to-date and complete credit card details or approved purchase order information acceptable to Entelechy and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
8.2.1 its credit card details to Entelechy, the Customer hereby authorises Entelechy to bill such credit card:
184.108.40.206 on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
220.127.116.11 subject to clause 12.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
8.2.2 its approved purchase order information to Entelechy, Entelechy shall invoice the Customer:
18.104.22.168 on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
22.214.171.124 subject to clause 12.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
and the Customer shall pay each invoice within 30 days after the date of such invoice.
8.3 If Entelechy has not received payment within 5 days after the due date, and as Entelechy's sole remedy, interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of Entelechy's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.4 All amounts and fees stated or referred to in this Agreement:
8.4.1 shall be payable in pounds sterling; and
8.4.2 are exclusive of value added tax, which shall be added to Entelechy's invoice(s) at the appropriate rate.
8.5 Entelechy shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 30 days' prior notice to the Customer.
9 Proprietary rights
The Customer acknowledges and agrees that Entelechy and/or its licensors own all intellectual property rights in the Services. Except as expressly stated in this Agreement, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
10.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
10.1.2 was in the other party's lawful possession before the disclosure;
10.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
10.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
10.2 Subject to clause 10.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
10.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
10.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Entelechy's Confidential Information.
10.6 Entelechy acknowledges that the Customer Data is the Confidential Information of the Customer.
10.7 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10.8 The above provisions of this clause 10 shall survive termination of this Agreement, however arising.
11 Limitation of liability
11.1 Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use.
11.2 Nothing in this Agreement excludes the liability of Entelechy:
11.2.1 for death or personal injury caused by Entelechy's negligence; or
11.2.2 for fraud or fraudulent misrepresentation.
11.3 Subject to clause 11.1 and clause 11.2:
11.3.1 Entelechy shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
11.3.2 Entelechy's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
12 Term and termination
12.1 This Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
12.1.1 the Customer notifies Entelechy that it wishes to terminate the Agreement, in writing, at least [60 days] before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
12.1.2 otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
12.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
12.2.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
12.2.2 the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
12.2.3 the other party undergoes an Insolvency Event; or
12.2.4 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.3 On termination of this Agreement for any reason:
12.3.1 all licences granted under this Agreement shall terminate and the Customer shall cease all use of the Services within 60 days of the date of termination of this Agreement;
12.3.2 each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party; and
12.3.3 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
13 Force majeure
Entelechy shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, act of God, pandemic or epidemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of this Agreement and any other agreement between the parties, the provisions of this Agreement shall prevail.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17 Rights and remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
18.2 If any provision or part-provision of this Agreement is deemed deleted under clause 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
19 Entire agreement
19.1 This Agreement, together with the Terms of Service, constitute the entire Agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to their subject matter.
20.1 The Customer shall not, without the prior written consent of Entelechy, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
20.2 Entelechy may assign or subcontract any or all of its rights and obligations under this Agreement to a member of its group.
21 No partnership or agency
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22 Third party rights
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
23 Governing law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).