Published and effective on 27 January 2025
IMPORTANT BACKGOUND INFORMATION:
Parties. These T&Cs set out the agreement (“Agreement”) between:
- us, TEACH HQ LIMITED, a company registered in England and Wales under company number 14516976 with its registered office at C/O Parkins Accountants, Moor Park House, Bawtry Road, Wickersley, Rotherham, S66 2BL (“Teach HQ”); and
- you (the “Customer”),
in relation to (a) the Customer’s use of Teach HQ’s learning management platform and e-learning content, which are made available to the Customer by way of a service via the internet (the “LMS Platform”); and (b) any technical support that Teach HQ agrees to provide in connection with the LMS Platform under this Agreement ((a) and (b) together being, the “Services”).
- Only these T&Cs apply. These T&Cs shall apply to the provision of Services (defined above) by Teach HQ to the Customer, to the exclusion of any other terms and conditions that the Customer may purport to apply or which may be implied by trade, custom, practice or course of dealing.
- Teach HQ’s quotations are non-binding. A binding agreement between the parties only arises once both parties have indicated their acceptance of these T&Cs.
- These T&Cs may be updated from time to time. The most current version will always be published on our website, foodcompliancehq.com, and the Customer must check and read them carefully when purchasing Subscriptions (defined below). Whenever Teach HQ updates these T&Cs, it will email the Customer and/or clearly display that they have been updated (with the relevant version date) at the top of this page. Unless otherwise noted, the updated T&Cs will be effective immediately on publication for new Subscriptions purchased and the Customer’s purchasing and use of new Subscriptions confirms its acceptance of the changes. If the Customer does not agree to the updated T&Cs, it must not proceed with purchasing and using new Subscriptions.
TERMS AND CONDITIONS:
1. Interpretation
1.1 Capitalised terms used but not defined in these T&Cs shall have the meanings set out in the Important Background Information section above.
1.2 The definitions and rules of interpretation in this clause apply to the Agreement.
Additional Services and Additional Services Fees has the meaning given in clause 10.7.
Affiliate: in relation to a party, any company, joint venture or other legal entity that directly or indirectly Controls, is Controlled by, or is under common Control with such party.
Applicable Data Protection Laws: (i) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and/or (ii) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Teach HQ is subject, which relates to the protection of personal data.
Authorised Users means employees, agents and independent contractors of the Customer who are authorised by the Customer to use the LMS Platform and Documentation.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.1.
Credits: credits purchased by the Customer and issued by Teach HQ, which the Customer is entitled to assign to the Authorised Users as it so wishes, enabling them to access the LMS Platform. Each single Credit can be redeemed against one e-learning course.
Customer Data: the data inputted or provided by the Customer, Authorised Users, Teach HQ on the Customer's behalf, for the purpose of enabling or facilitating use of the LMS Platform and related Services.
Customer Personal Data: any personal data within the Customer Data and any personal data which Teach HQ processes in connection with the Agreement, in the capacity of a processor on behalf of the Customer.
Control: beneficial ownership of more than fifty percent (50%) of the issued share capital of a company, joint venture or other legal entity, or the legal power to direct or cause the direction of the general management of a company, joint venture or other legal entity. Controls and Controlled shall be construed accordingly.
Documentation: the document(s) made available to the Customer by Teach HQ which sets out a description of the Services and the user instructions for the LMS Platform.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Fees: has the meaning given in clause 10.1.
Initial Credits: the number of Credits initially purchased by the Customer, as set out in the Order Confirmation.
Insolvent: means, in relation to a party, that (i) it passes a resolution for its winding-up (excluding in the context of a bona fide solvent corporate reorganisation) or a winding up order is made against it by a court or it has an administrator or an administrative receiver or a receiver or provisional liquidator appointed over its assets, income or any part thereof, or it is subject to a notice of intention to appoint an administrator or it enters into an arrangement with its creditors or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or (ii) it has any distraint, execution or other process levied or enforced on any of its property; or (iii) it ceases to trade or appears in the reasonable opinion of the other party likely or is threatening to cease to trade; or (iv) the equivalent of any of the above occurs to in another jurisdiction to which that party is subject.
Intellectual Property Rights or IPR:patents, utility models, rights to inventions, rights in software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.
Order Confirmation: the online confirmation issued by Teach HQ to the Customer at the same time as, or shortly after, when the Customer purchases the Subscription setting out: (i) the Initial Credits ; (ii) the Fees to be paid by the Customer in respect of such Initial Credits; (iii) the date on which the Customer’s and its Authorised Users’ access to the LMS Platform shall start; and (iv) confirmation that such Subscription will be provided by Teach HQ subject to, and in accordance with, these T&Cs.
Purpose: means the purpose of processing the Customer Data for the normal business purposes of the Customer, which shall not include allowing the use of the LMS Platform by, or for the benefit of, any person other than the Authorised Users.
Renewal Period: has the meaning given in clause Error! Reference source not found..
Representatives: employees, officers, agents, sub-contractors, representatives and/or advisers.
Services: has the meaning given in the Important Background Information section above.
LMS Platform: has the meaning given in the Important Background Information section above.
Start Date: the date on which the Customer’s and its Authorised Users’ access to the LMS Platform shall start, being the later of (i) the date specified in the Order Confirmation; or (ii) the date on which Teach HQ has received, in full and cleared funds, any Fees due to be paid in advance of the Customer and its Authorised Users’ being granted access to the LMS Platform.
Subscription Term: the period starting on the Start Date and ending on the date the Credits have all been used up by the Customer and its Authorised Users.
Subscription: The subscription purchased by the Customer under the Agreement in the form of Credits, which entitles Authorised Users to access and use the LMS Platform, related Services and the Documentation in accordance with the Agreement.
Teach HQ’s IPR: means the IPR in the LMS Platform, the Documentation and the Services.
UK GDPR: has the meaning given to it in the Data Protection Act 2018. For the purposes of the Agreement, controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
1.3 Headings used in this Agreement shall not affect its interpretation.
1.4 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.7 A reference to a statute or statutory provision: (i) is a reference to it as amended, extended or re-enacted from time to time; and (ii) shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.8 A reference to writing or written excludes fax but not email.
1.9 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. Subscription term
2.1 The Subscription shall, unless otherwise terminated in accordance with clauses 2.2 or 15 commence on the Start Date (provided Teach HQ has received, in full and cleared funds, any Fees due to be paid in advance of the Customer and its Authorised Users’ being granted access to the LMS Platform) and shall continue until the Credits have all been used up.
2.2 Without affecting any other right or remedy available to it, Teach HQ may terminate this Agreement (including the Subscription) on giving not less than 30 days’ written notice to the Customer. In such circumstances, Teach HQ shall refund any Fees paid for unused Credits and that shall be the full extent of Teach HQ’s liability to the Customer.
3. Grant of licence
3.1 Teach HQ is the entire legal and beneficial owner and/or licensor of the Teach HQ’s IPR and is willing to license the Customer to use its LMS Platform, Documentation and related Services subject to these T&Cs.
3.2 Teach HQ hereby grants to the Customer a non-exclusive, non-transferable right and licence without the right to grant sub-licences, to permit the Authorised Users to use the Teach HQ’s IPR, but only for the Purpose, for the Subscription Term.
3.3 The licence granted in clause 3.1 is conditional on the Customer complying at all times with these T&Cs.
4. Subscription
4.1 The Customer may permit the Authorised Users to use the LMS Platform, related Services and the Documentation during the Subscription Term solely for the Purpose.
4.2 The Customer undertakes that:
a) each Authorised User shall keep a secure password for their use of the LMS Platform, related Services and Documentation, that such password shall be regularly changed and that each Authorised User shall keep their password confidential; and
b) it shall:
i) permit Teach HQ or Teach HQ's designated auditor, no more than once every three (3) months, and upon at least seven (7) days’ prior notice to the Customer, to inspect (including manual inspection, electronic methods or both) the Customer’s records, systems and facilities, including any premises and computer equipment at or on which the LMS Platform is being kept or used; and
ii) provide Teach HQ with all records and information requested by Teach HQ within thirty (30) days of such request, in each case to enable Teach HQ to verify that the use of the LMS Platform and related Services comply with the Agreement, and if the Customer is found not to be so complying, the Customer will immediately purchase any necessary licences, subscriptions and applicable back maintenance and support or take any other applicable action in order to remedy any such non-compliance.
4.3 The Customer shall not introduce, access, store, distribute or transmit any Viruses or Vulnerabilities, or any material during the course of its use of the LMS Platform that:
a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
b) facilitates illegal activity;
c) depicts sexually explicit images;
d) promotes unlawful violence;
e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
f) is otherwise illegal or causes damage or injury to any person or property;
and Teach HQ reserves the right, without liability or prejudice to its other rights, to disable the Customer's Subscription if the Customer breaches this clause.
4.4 The Customer shall not:
a) except as may be allowed by any applicable law which cannot be excluded by agreement between the parties and except to the extent expressly permitted under the Agreement, attempt to or actually:
i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, adapt, or distribute all or any portion of the LMS Platform and/or Documentation (as applicable) in any form or media or by any means; or
ii) de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the LMS Platform or the Services;
b) access all or any part of the LMS Platform and/or Documentation in order to build a product or service which competes with the LMS Platform, related Services and/or the Documentation;
c) use (or attempt to use) the LMS Platform, related Services and/or Documentation to provide services to third parties (except where the intended function of the LMS Platform is to facilitate the provision of services to third parties, where this is explicitly permitted in the Documentation);
d) license, sell, resell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the LMS Platform, related Services and/or Documentation available to any third-party except the Authorised Users;
e) attempt to obtain, or assist third parties in obtaining, access to the LMS Platform and/or Documentation, other than as provided under this clause 4; or
f) introduce or permit the introduction of, any Virus or Vulnerability into the LMS Platform or related Services or Teach HQ’s network and information systems.
4.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the LMS Platform and related Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Teach HQ.
4.6 The rights provided under this clause 4 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
4.7 The Customer shall promptly notify Teach HQ f any breach of this clause 4.
5. LMS Platform and related services
5.1 Subject to clauses 5.2, 5.3, 5.7, Teach HQ shall provide the LMS Platform and perform the related Services substantially in accordance with the Documentation and with reasonable skill and care. If the LMS Platform or related Services do not conform with the terms of this clause 5.1, Teach HQ shall, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in this clause 5.1.
5.2 Without prejudice to clause 5.1, the Customer acknowledges and agrees that the LMS Platform and related Services are provided on an “AS-IS” and “AS AVAILABLE” basis, not least because they rely, amongst other things, on third-party operating systems, platforms and data sources over which Teach HQ has no control. Any statements as to the specification or functionality of the LMS Platform contained in any documentation provided to the Customer by Teach HQ (including the Documentation): (i) are for guidance only; and (ii) shall not be read and construed as any warranty or representation by Teach HQ, and Teach HQ shall not be liable if the LMS Platform does not function in accordance with such statements.
5.3 The Customer acknowledges that: (i) prior to purchasing the Subscription, it has had an opportunity to familiarise itself with the LMS Platform and related Services; and (ii) its decision to use, access and/or license the LMS Platform and related Services is not contingent on the delivery of any future functionality or features or dependant on any oral or written comments made by Teach HQ regarding current or future functionality or features.
5.4 Teach HQ may modify, update or discontinue the LMS Platform and related Services (including any portions or features) at any time, without liability to the Customer.
5.5 Teach HQ shall use commercially reasonable endeavours to make the LMS Platform and related Services available 24 hours a day, 7 days a week, except for:
a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
b) unscheduled maintenance performed outside Normal Business Hours, provided that Teach HQ has used reasonable endeavours to give the Customer at least 6 Business Hours' notice in advance.
5.6 Teach HQ will, as part of the Services and at no additional cost to the Customer, provide the Customer with Teach HQ's standard online customer support services during Normal Business Hours.
5.7 Teach HQ shall not be liable to the extent any non-conformances are caused by: (i) acts or omissions of the Customer or its Representatives, including use of the LMS Platform or related Services contrary to Teach HQ's instructions, or modification or alteration of the LMS Platform or related Services by any party other than Teach HQ or Teach HQ's duly authorised Representatives; or (ii) third parties that Teach HQ uses to provide all or any part of the LMS Platform or related Services; or (iii) updates, changes or faults to, or with, third-party software, operating systems, platforms or data sources that impact the performance of the LMS Platform or related Services; or (iv) changes made by the Customer.
5.8 Teach HQ does not warrant that:
a) the Customer's use of the LMS Platform and related Services will be uninterrupted, secure or error-free; or
b) the LMS Platform, Documentation and/or the information obtained by the Customer through use of the LMS Platform and related Services will meet the Customer's requirements; or
c) any advice, guidance or other information (together, “Advice”) provided to the Customer through use of the LMS Platform or as part of the related Services (including advice generated by Artificial Intelligence tools used as part of the LMS Platform) is correct, and it is entirely for the Customer to consider and choose whether or not to follow such Advice; or
d) the LMS Platform or the related Services will be free from Vulnerabilities or Viruses; or
e) the LMS Platform, Documentation or Services will comply with any particular cybersecurity requirements.
5.9 Teach HQ 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, and the Customer acknowledges that the LMS Platform, related Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.10 The Agreement shall not prevent Teach HQ 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 the Agreement.
5.11 Teach HQ warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
5.12 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Teach HQ shall be for Teach HQ to use reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Teach HQ in accordance with its standard archiving procedures. Teach HQ shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third-party.
6. Data protection
6.1 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. The provisions of this clause 6 are in addition to, and do not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
6.2 The parties have determined that, for the purposes of Applicable Data Protection Laws, Teach HQ shall process the Customer Personal Data as a processor on behalf of the Customer.
6.3 If the determination in clause 6.2 changes, the parties shall work together in good faith to make any changes which are necessary to this clause 6 or the related schedules.
6.4 By entering into the Agreement, the Customer consents to (and shall procure all required consents, from its Representatives, in respect of) all actions taken by Teach HQ in connection with the processing of the Customer Personal Data, provided these are in compliance with the then-current version of Teach HQ’s privacy policy available from Teach HQ upon request (“Privacy Policy”). In the event of any inconsistency or conflict between the terms of the Privacy Policy and the Agreement, the Privacy Policy will take precedence.
6.5 Without prejudice to the generality of clause 6.1, the Customer will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of Customer Personal Data to Teach HQ or lawful collection of the same by Teach HQ for the duration and purposes of the Agreement.
6.6 Schedule 1 sets out the scope, nature and purposes of the processing of Customer Personal Data by Teach HQ, the duration of the processing and the types of personal data and categories of data subject.
6.7 Without prejudice to the generality of clause 6.1, Teach HQ shall, in relation to Customer Personal Data:
a) process it only on the documented instructions of the Customer, which shall be to process the Customer Personal Data for the purposes set out in Schedule 1, unless Teach HQ is required by applicable laws to otherwise process it. Where Teach HQ is relying on applicable laws as the basis for such processing, it shall notify the Customer of this before performing the processing required by the applicable laws unless those applicable laws prohibit them from so notifying the Customer. Teach HQ shall inform the Customer if, in its respective opinion, the instructions of the Customer infringe Applicable Data Protection Laws;
b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to (i) the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage; and (ii) the nature of the data to be protected, in each case having regard to the state of technological development and the cost of implementing any measures;
c) ensure that any of its Representatives engaged and authorised by Teach HQ to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
d) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to Teach HQ), and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
e) notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
f) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Agreement unless Teach HQ is required by applicable laws to continue to process that Customer Personal Data. For the purposes of this clause, Customer Personal Data shall be considered deleted where it is put beyond further use by Teach HQ; and
g) maintain records to demonstrate its compliance with this clause and allow for reasonable access by the Customer or the Customer’s designated representative (at the Customer’s cost), for the purpose of auditing these records, at reasonable times and on reasonable notice.
6.8 The Customer hereby provides its prior, general authorisation for Teach HQ to:
a) appoint sub-processors to process the Customer Personal Data, including the sub-processors set out in Schedule 1 provided that Teach HQ:
i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on it in this clause 6;
ii) shall remain responsible for the acts and omissions of any such processor as if they were its acts and omissions; and
iii) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Teach HQ’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify Teach HQ for any losses, damages, costs (including legal fees) and expenses suffered by them in accommodating the objection.
b) transfer Customer Personal Data cross-borders where such transfer is necessary for the purpose set out in Schedule 1, provided that Teach HQ shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Teach HQ, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer). Where personal data transfers are made to a restricted country, the Customer is responsible for carrying out any transfer risk assessment.
6.9 Teach HQ may, at any time by giving not less than 30 days' notice, revise this clause 6 by replacing it (in whole or part) with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner's Office or forming part of an applicable certification scheme or code of conduct (“Amended Terms”). Such Amended Terms shall apply when replaced by attachment to the Agreement, but only in respect of such matters which are within the scope of the Amended Terms.
7. Third-party providers
7.1 The Customer acknowledges that the LMS Platform may enable or assist it and its Authorised Users to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it and its Authorised Users do so solely at their own risk. Teach HQ makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third-party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third-party, and not Teach HQ. Teach HQ recommends that the Customer and its Authorised Users refer to the third-party's website terms and conditions and privacy policy prior to using the relevant third-party website. Teach HQ does not endorse or approve any third-party website nor the content of any such website made available via the Services.
7.2 Where Customer Data is shared or accessed in accordance with clause 8.1, the Customer hereby acknowledges and agrees that the relevant third-party processors are approved sub-processors for the purposes of processing personal data.
8. Customer Data
8.1 The Customer may share Customer Data with Teach HQ, or Teach HQ may otherwise have access to Customer Data, in connection with the use of the LMS Platform and related Services.
8.2 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.
8.3 Without prejudice to any other rights to use Customer Data granted to Teach HQ under the Agreement, the Customer grants to Teach HQ and its Affiliates, a worldwide, royalty-free, perpetual, non-exclusive licence to use the Customer Data solely for the purpose of providing the LMS Platform, related Services and Documentation, for the Customer’s and its Authorised Users’ use.
9. Customer's obligations
9.1 The Customer shall:
a) provide Teach HQ with: (i) all co-operation; and (ii) all access to such information as may be required by Teach HQ, in each case as is necessary for it to provide the LMS Platform and related Services, including access to Customer Data, security access information and configuration services;
b) without affecting its other obligations under the Agreement, comply with all applicable laws and regulations with respect to its activities under, or in connection with, the Agreement;
c) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance, Teach HQ may adjust any agreed timetable or delivery schedule as reasonably necessary;
d) ensure that the Authorised Users use the LMS Platform, related Services and the Documentation in accordance with the Agreement and shall be responsible for any Authorised User's breach of the Agreement (accordingly, where the context requires, obligations in the Agreement that are on the Customer shall be read and construed as obligations on the Customer to procure that the Authorised Users comply with such obligations);
e) obtain and maintain all necessary licences, consents, and permissions necessary for Teach HQ and its Representatives to perform their obligations under the Agreement, including to provide the LMS Platform and related Services;
f) ensure that its network and systems comply with the relevant specifications provided by Teach HQ from time to time; and
g) be, to the extent permitted by law and except as otherwise expressly provided in the Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Teach HQ's (or relevant third-party’s) data centres, and all 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.
10. Charges and payment
10.1 The charging model for the Subscription is based on the Customer purchasing a specified number of Credits to be used by its Authorised Users to access and use the LMS Platform. Each Credit entitles an Authorised User to access and undertake one e-learning course, and can be assigned by the Customer as it wishes to its Authorised Users. The number of Initial Credits purchased by the Customer and their related fees are as specified in the Order Confirmation. These fees, together with any fees payable in respect of additional Credits purchased in accordance with clause 10.2 and any Additional Services Fees, are referred to as the “Fees” in these T&Cs.
10.2 The Customer can request to buy more Credits via the LMS Platform, which Teach HQ may issue to the Customer at its discretion. The Fees payable for additional Credits may differ from the Fees paid in respect of the Initial Credits and will be displayed on the LMS Platform at the point of sale.
10.3 On or before the Start Date, the Customer shall provide to Teach HQ valid, up-to-date and complete credit card details and any other relevant valid, up-to-date and complete contact and billing details necessary for Teach HQ to process payment of the Fees. The Customer hereby authorises Teach HQ to bill such credit card: (i) on or before the Start Date for the Fees payable in respect of the Initial Credits; and (ii) on the date any additional Credits are purchased in accordance with clause 10.2, for the Fees payable in respect of those Credits.
10.4 Unless otherwise agreed in writing by the parties, the Subscription will only start once Teach HQ has received the Fees due in respect of the Initial Credits in full and in cleared funds.
10.5 If payment of the Fees is not received in accordance with clause 10.2 then, without prejudice to any other rights and remedies that Teach HQ has:
a) if applicable, Teach HQ may, without liability to the Customer, disable the Customer's password, account and access to all or part of the LMS Platform and related Services and Teach HQ shall be under no obligation to provide any or all of the LMS Platform and related Services while the payment concerned remains unpaid; and
b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then-current base lending rate of HSBC plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.6 All amounts and fees stated in the Agreement: (i) shall be payable in pounds sterling; (ii) are, subject to clause 14.3(b), non-refundable; (iii) are exclusive of value added tax, which shall be added to Teach HQ's invoice(s) at the appropriate rate; and (iv) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If a payment due from the Customer is subject to tax required by law (whether by way of direct assessment or withholding at its source), Teach HQ shall be entitled to receive from the Customer such amount as shall ensure that the net receipt, after tax, of Teach HQ in respect of the payment is the same as it would have been were the payment not subject to tax.
10.7 Unless otherwise specified in the Agreement, the Fees include the Services. Teach HQ shall inform the Customer if any request for services falls outside of its standard levels of support (“Additional Services”) and of the fees payable for such Additional Services (the “Additional Services Fees”). The Customer can then choose whether to proceed with the Additional Services or not.
11. Proprietary rights
11.1 The Customer acknowledges and agrees that Teach HQ and/or its licensors own all Teach HQ’s IPR. Except as set out in clause 3, the Agreement does not grant the Customer any Intellectual Property Rights in respect of such Teach HQ’s IPR.
11.2 Teach HQ confirms that it has all the rights in relation to Teach HQ’s IPR that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
11.3 If a third-party brings a claim against the Customer for infringement of its Intellectual Property Rights directly attributable to its use of Teach HQ’s IPR, Teach HQ may, in its sole discretion, procure the right for the Customer to continue using the LMS Platform or related Services or Documentation, replace or modify the LMS Platform or related Services or Documentation, so that they become non-infringing or, if such remedies are not reasonably available, immediately terminate the Agreement on notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer. These are the Customer's sole and exclusive rights and remedies, and Teach HQ's (including Teach HQ's Representatives’) entire obligations and liability, for infringement of any third-party Intellectual Property Rights.
11.4 In no event shall Teach HQ or its Representatives be liable to the Customer to the extent that any alleged or actual infringement is based on:
a) a modification of the LMS Platform or related Services by anyone other than Teach HQ;
b) the Customer's use of the LMS Platform or related Services in a manner contrary to the instructions given to the Customer by Teach HQ (including, those given in the Documentation);
c) the Customer's use of the LMS Platform or related Services after notice of the alleged or actual infringement from Teach HQ or any appropriate authority; or
d) the Customer's breach of the Agreement.
12. Confidentiality
12.1 Each of the parties undertakes that it shall not at any time use, or disclose to any person, any confidential information (“Confidential Information”) concerning (i) the existence and terms of this Agreement; (ii) the business, assets, affairs, commercial strategies, customers, clients, suppliers, plans, intentions or market opportunities of the other party or any of its clients or Affiliates; and (iii) the operations, processes, product information, know-how, designs, trade secrets or software of the other party or any of its clients or Affiliates, except as permitted by clause 12.2 (and the parties agree that details of the LMS Platform and related Services, and the results of any performance tests of the LMS Platform, shall constitute Teach HQ’s Confidential Information).
12.2 Each party may only:
a) use the other party’s Confidential Information for the purpose of exercising or performing its rights and obligations under this Agreement; and
b) disclose Confidential Information: (i) to its Representatives who need to know such information for the purpose of, or in connection with, such party exercising or performing its rights and obligations under this Agreement, in which case such party shall ensure that its Representatives to whom it discloses Confidential Information know that that it is confidential and comply with this clause 12; and (ii) as permitted in accordance with clause 12.3.
12.3 A party may disclose the other party’s Confidential Information to the minimum extent required by: (i) an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction; (ii) the rules of any listing authority or stock exchange on which its shares are listed or traded; or (iii) the laws or regulations of any country to which its affairs are subject, provided that, before the disclosing party discloses the other party’s Confidential Information such party shall, to the extent permitted by applicable law, use all reasonable endeavours (or, where any of its Affiliates and/or Representatives are concerned, procure that all reasonable endeavours are used) to give the other party as much notice of the disclosure as possible. Where notice of such disclosure is not prohibited and is given, the disclosing party shall take into account (or shall procure that its Affiliates and/or Representatives take into account) the reasonable requests of the other party in relation to the content of the disclosure.
12.4 Clause 12.1 shall not apply to any Confidential Information that:
a) is or becomes generally available to the public (other than as a result of a breach of this clause);
b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
d) the parties agree in writing is not confidential or may be disclosed; or
e) is developed by or for the receiving party independently of the information disclosed by the disclosing party.
12.5 No party makes any express or implied warranty or representation concerning its Confidential Information.
12.6 No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except: (i) as required by law, any governmental or regulatory authority (including, any relevant securities exchange), any court or other authority of competent jurisdiction; and (ii) that Teach HQ may disclose the identity of the Customer and details of the LMS Platform and related Services both internally and externally, including for the purposes of marketing its services to other prospective customers (including in any public relations materials and direct marketing materials).
12.7 The obligations under this clause 12 shall apply for the duration of the Agreement and for a period of 2 years after termination or expiry of the Agreement.
13. Indemnity
13.1 The Customer shall indemnify Teach HQ and its Representatives against all claims, actions, proceedings, liabilities, losses, damages, expenses and costs (whether direct or indirect and including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Teach HQ or its Representatives) suffered or incurred by Teach HQ and/or its Representatives arising out of, or in connection with: (i) the Customer's use of the LMS Platform, related Services and/or Documentation; (ii) the Customer’s breach or negligent performance or non-performance of the Agreement; or (iii) the processing of personal data on the Customer’s behalf, in each case provided that:
a) the Customer is given prompt notice of any such claim;
b) Teach HQ provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
c) the Customer is given sole authority to defend or settle the claim.
14. Limitation of liability
14.1 Except as expressly provided in the Agreement:
a) the Customer assumes sole responsibility for the results and outcomes obtained from the use of the LMS Platform, related Services and the Documentation by the Customer, and for conclusions drawn from such use;
b) Teach HQ shall have no liability for any damage caused by errors or omissions in, or loss of, any Customer Data, information, instructions or scripts provided to Teach HQ by the Customer in connection with the LMS Platform or related Services, or any actions taken by Teach HQ at the Customer's direction;
c) the Customer is solely responsible for any damage to its systems or loss of data (including Customer Data) resulting from its use of the LMS Platform, related Services and the Documentation;
d) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement.
14.2 Nothing in the Agreement excludes Teach HQ’s liability for: (i) death or personal injury caused by Teach HQ's negligence; (ii) fraud or fraudulent misrepresentation; (iii) breach of any terms implied by the Supply of Goods and Services Act 1982; or (iv) anything else that Teach HQ cannot lawfully limit or exclude its liability for.
14.3 Subject to clauses 14.114.1 and 14.2:
a) Teach HQ shall have no liability for any:
i) loss of profits,
ii) loss of sales or business,
iii) loss of anticipated savings,
iv) wasted expenditure,
v) depletion of goodwill and/or similar losses,
vi) loss or corruption of data or information, or
vii) any special, indirect or consequential loss, costs, damages, charges or expenses; and
b) Teach HQ's total aggregate liability to the Customer, in respect of all breaches of duty occurring within any Contract Year shall not exceed the Cap. If breaches committed in more than one Contract Year give rise to a single claim or a series of connected claims, Teach HQ’s total liability for those claims shall not exceed the single highest annual Cap for those Contract Years.
c) In clause (b):
i) The Cap is one hundred per cent (100%) of the total Fees paid in the Contract Year in which the breaches occurred;
ii) A Contract Year means a 12 month period commencing on the Start Date or any anniversary of it.
14.4 Unless the Customer notifies Teach HQ that it intends to make a claim in respect of an event within the Notice Period, Teach HQ shall have no liability for that event. The Notice Period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred (as opposed to it becoming aware of its having grounds to make a claim in respect of it) and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14.5 References to liability in this clause 14 include every kind of liability arising under or in connection with the Agreement but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
14.6 Nothing in the Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of Teach HQ’s Intellectual Property Rights or breach of its personal data obligations as a data controller.
15. Termination
15.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
a) the other party fails to pay any amount due under the 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;
b) the other party commits a material breach of any term of the 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; or
c) the other party is Insolvent.
15.2 Without affecting any other right or remedy available to it, Teach HQ may at any time immediately suspend the Customer’s right to use and access the LMS Platform and related Services, including suspending the licence granted in clause 3, if, in Teach HQ’s sole discretion, the Customer materially breaches any provision of the Agreement (or acts in a manner that clearly shows it does not intend to, or is unable to, comply with the Agreement).
15.3 On expiry or termination of the Agreement for any reason:
a) all licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease all use of the LMS Platform, related or Additional Services and/or the Documentation;
b) the Customer shall immediately pay to Teach HQ all of Teach HQ’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Teach HQ may submit an invoice, which shall be payable immediately on receipt;
c) each party shall return or delete and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
d) each party shall: (i) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information; (ii) erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and (iii) certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of clause 12 shall continue to apply to any such documents and materials retained by a recipient party;
e) Teach HQ may destroy or otherwise dispose of any of the Customer Data in its possession;
f) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of expiry or termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of expiry or termination shall not be affected or prejudiced; and
g) any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
16. Force majeure
16.1 Neither party shall be in breach of the Agreement or otherwise liable for any failure or delay in the performance of its obligations (other than the Customer’s payment obligations to Teach HQ) if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 3 months, the party not affected may terminate the Agreement by giving 30 days' written notice to the affected party.
18. General
18.1 Assignment and other dealings. The Customer shall not, without the prior written consent of Teach HQ, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement. Teach HQ may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.
18.2 Variations. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.3 Third party rights. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
18.4 Electronic signature. This Agreement may be executed by electronic signature (whatever form the electronic signature takes, including by DocuSign) and such method of execution is as conclusive of the parties’ intention to be bound by this Agreement as if executed by the parties using their manuscript signatures.
18.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
18.6 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
18.7 Severance. If any provision or part-provision of the 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 the Agreement. If any provision or part-provision of the Agreement is deemed deleted under this clause 18.7 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.
18.8 Remedies cumulative. Teach HQ’s rights and remedies set out in this Agreement are in addition to any rights and remedies provided by law.
18.9 Further assurance: At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this agreement.
18.10 Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, representations and undertakings between them whether written or oral, relating to its subject matter and neither party has entered into this Agreement in reliance upon, and it will have no remedy in respect of, any representation, misrepresentation or statement (whether made by the other party or any other person) which is not expressly set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement. Nothing in this clause 18.818.10 will be interpreted or construed as limiting or excluding the liability of either party for fraud or fraudulent misrepresentation.
18.11 No partnership or agency. Nothing in this Agreement is intended to, nor shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
18.12 Notices:
18.12.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (in the case of a company) or residential address or principal place of business (in the case of an individual); or
b) sent by email to the email address notified in writing by it to the other party is to be used for the service of notices (or an address substituted in writing by the party to be served).
18.12.2 Any notice shall be deemed to have been received:
a) if delivered by hand, at the time the notice is left at the proper address;
b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
c) if sent by email, at the time of transmission or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume (except if an automatic electronic notification is received by the sender informing them that the email has not been delivered or that the recipient is out of the office, in which case that email will be deemed not to have been served).
18.12.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
19. Governing law and jurisdiction
19.1 This Agreement and any non-contractual obligations arising out of or in connection with it will be governed by English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for determination of any disputes.
SCHEDULE 1 - DATA PROTECTION CLAUSES
1. Types of Personal Data: Personal data determined by the Customer is required to be processed by Teach HQ in order for the Customer and its Authorised Users to use and enjoy the LMS Platform and related Services (including, names and contact details, job roles or descriptions, courses attended and results of any tests undertaken).
2. Categories of Data Subject: Categories determined by the Customer are required to be processed by Teach HQ in order for the Customer and its Authorised Users to use and enjoy the LMS Platform and related Services (including, the Customers’ employees or other Representatives).
3. Particulars of processing
Subject matter of processing: The provision and use of the LMS Platform and related Services in accordance with the terms of the Agreement.
Nature of processing: Uploading, inputting or collecting, storing, transferring or other processing as necessary for Teach HQ to provide, and the Customer and its Authorised Users to use, the LMS Platform and related Services in accordance with the terms of the Agreement.
Purpose of processing: The provision and use of the LMS Platform and related Services in accordance with the terms of the Agreement.
Duration of the processing: The duration of the Agreement and thereafter to the extent necessary to perform any post-expiry or termination obligations under the Agreement.