"Bespoke Content" content created by or on behalf of KnowledgePool for the Client as specified on the Order or proposal;
"Closed Training" Training provided by KnowledgePool for the Client and its employees and which is available only to employees of the Client and such other persons as KnowledgePool shall agree;
"Confidential Information" all information and materials (whether in written, oral or electronic form) concerning the business and affairs of a party or any other member of its group, together with any other information or materials that at any time either before or at the time of the disclosure are stipulated by the disclosing party to be confidential, that the other party obtains or receives as a result of the discussions leading up to or the entering into or the performance of this Agreement;
"Course" any training course offered by KnowledgePool as part of either Closed Training or Open Training;
"Delegate" a person attending Training;
"Fees" the fees for the provision of the Services as set out on the Order or proposal for each Service;
"Intellectual Property Rights" the following rights for their full term (including any extensions or renewals thereof) and wherever in the world enforceable: (i) rights in, and in relation to, any patents, petty patents, registered designs, design rights, trade marks, rights in domain names, trade and business names (including all goodwill associated with any trade marks or trade or business names) copyrights, moral rights, rights in databases, topography rights, and utility models, including the benefit of all registrations of, applications to register and the right to apply for registration of any of the foregoing items and all rights in the nature of any of the foregoing; (ii) trade secrets, confidential information and other proprietary rights in data and information, including rights to know how and other technical information; (iii) rights in the nature of unfair competition rights and to sue for passing off; and (iv) all other intellectual or industrial property rights of any nature whatsoever;
"Materials" materials to be provided to the Client by KnowledgePool as part of the Services;
"Open Training" training which is generally provided by a third party supplier and is made available to the public through an open schedule;
"Order" request for goods or services from the Client;
"Products" training products including but not limited to courseware, certification packages, exam vouchers, generic elearning;
"Services" the services set out in the Order or proposal to be provided by KnowledgePool to the Client as modified, added to or replaced during the term of this Agreement in accordance with the terms of this Agreement;
"Term" the term for which any Software is licensed to the Client, as specified on the Order or proposal;
"Training" the training specified on the Order or proposal and comprising Closed Training and/or Open Training;
"Training Services" the training services set out in the Order or proposal to be provided by KnowledgePool to the Client that could include, but are not limited to learning consultancy, development of bespoke training materials, project management, training and course administration, delivery of a training event or series of events;
"VAT" value added tax; and
"Working Day" means from the hours of 9.00 am to 5.30 pm on a day other than a Saturday or Sunday or public holiday in England and Wales and 9.00 am to 5.00 pm on a Friday.
(a) - words in the singular include the plural and vice versa and words importing any gender include every gender;
(b) - references to persons include individuals, firms, partnerships, companies, corporations, unincorporated associations, governments, authorities, agencies and trusts (in each case, whether or not having separate legal personality);
(c) - any reference to a statue, statutory provision or subordinate legislation ("legislation") shall (except where the context otherwise requires) be construed as referring to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation.
2.1 The Client shall:
(a) - co-operate with KnowledgePool and promptly provide KnowledgePool with such information, assistance and materials as KnowledgePool may reasonably require from time to time in order to enable or facilitate KnowledgePool to comply with its obligations under this Agreement;
(b) - provide access to its premises as required by KnowledgePool from time to time to enable KnowledgePool to comply with its obligations under this Agreement. The Client shall take full responsibility for the safety and security of KnowledgePool's personnel whilst at the Client's premises;
(c) - ensure that the Services it requests are suitable to meet the needs of the Client and/or Delegates. KnowledgePool makes no warranty or representation about the suitability or otherwise of the Services and accepts no liability in the event the Services do not meet the needs of the Client;
(d) - to the extent that KnowledgePool's personnel are required to work at the Client's premises, provide adequate office space and provision of normal office services at those premises; and
(e) - to the extent that the performance of the Services requires the use of the Client's equipment, ensure that KnowledgePool's personnel are given such access to the equipment as is necessary to facilitate the performance of the Services. Any equipment which belongs to the Client and which is used by KnowledgePool or its personnel, whether at the Client's premises or elsewhere, shall remain at the Client's risk and KnowledgePool shall not assume any responsibility or liability for the safety and security of such equipment. The Client shall take all reasonable precautions to safeguard the health and safety of KnowledgePool's personnel whilst working with equipment which belongs to the Client or is located at the Client's premises. The Client shall ensure that such equipment at all times complies with all relevant statutory regulations and approved codes of practice, including without limitation those issued pursuant to the Health and Safety at Work Act 1974.
3.1 - KnowledgePool warrants to the Client that:
(a) - the provision of the Services under this Agreement and the Client's use of the Services in accordance with the terms of this Agreement shall not infringe the Intellectual Property Rights of any third party in the United Kingdom; and
(b) - it will use all reasonable care and skill in performing the Services.
3.2 - The Client warrants that all information provided by it to KnowledgePool will be accurate in all material respects, and that the Client is entitled to provide the information to KnowledgePool for its use under the terms of this Agreement.
3.3 - The warranties and conditions stated in this Agreement are in lieu of all other conditions, warranties or other terms concerning the supply or purported supply of, or failure to supply or delay in supplying the Services which might but for this Clause 3.3 have effect between KnowledgePool and the Client or would otherwise be implied into or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, all of which are hereby excluded (including, without limitation, the implied conditions, warranties or other terms as to the use of reasonable skill and care).
4.1 - In the event that the Client requires any services outside the scope of the Services, or which are not specified on the Order or in the proposal, or requires changes to the Services, the Client shall inform KnowledgePool of such requirements and KnowledgePool shall have the right to tender for such work. This clause shall neither oblige KnowledgePool to tender for such work nor oblige the Client to award any such work to KnowledgePool. Any such additional services provided by KnowledgePool shall be subject to a separate agreement between KnowledgePool and the Client.
5.1 - In consideration of the provision of the Services the Client shall pay to KnowledgePool the Fees set out opposite the relevant Service on the Order or proposal. Payment of the Fees for each Service shall be subject to any special conditions set out on the Order or in the proposal.
5.2 - KnowledgePool will invoice the Client for all reasonable out of pocket expenses incurred whilst delivering the Services, including but not limited to travel, subsistence, hotel accommodation, equipment hire, telephone calls, printing and postage. KnowledgePool will apply a 10% administration charge to the amount of any expenses.
5.3 - All Fees payable under this Agreement shall be payable in pounds sterling and shall be payable within 30 days of the date of the relevant invoice.
5.4 - Any disputes regarding invoices must be advised in writing to KnowledgePool within 10 working days of receipt of the invoice. In the event of a dispute, the invoice shall be payable within 30 days of the date of the invoice or on resolution of the dispute, whichever is the later.
5.5 - All Fees are exclusive of VAT and any other applicable tax or duty which (if and to the extent applicable) shall be payable by the Client.
5.6 - If the Client fails to pay on the due date any amount which is payable to KnowledgePool under this Agreement then KnowledgePool is entitled to charge interest from the due date until payment is made in full at the rate of 4% per annum over Barclays Bank plc's base rate from time to time upon which interest shall accrue on a daily basis from the date payment becomes overdue until KnowledgePool has received payment of the overdue amount together with all interest that has accrued.
5.7 - Training purchased on a prepayment basis (i.e. an advance payment for a specific amount of training either in terms of value or number of days) must be booked and attended within eleven months of the date of the invoice for the prepayment.
6.1 - KnowledgePool hereby assigns including by way of future assignment to the Client all Intellectual Property Rights subsisting in the Bespoke Content. The Client hereby grants to KnowledgePool a non-exclusive irrevocable licence for use of the Bespoke Content for its own business purposes.
6.2 - Notwithstanding any other term of this Agreement nothing in this Agreement shall operate to transfer any title or interest in any underlying tools or methodologies or know-how used or developed by KnowledgePool in the development of the Bespoke Content.
7.1 - KnowledgePool will provide Training Services at the times and places as described on the Order or in the proposal to such number of the Client's employees as are specified on the Order or in the proposal.
7.2 - KnowledgePool and the Client shall each appoint a representative (the "KnowledgePool Representative" and the "Client Representative") who shall be authorised to monitor the day to day progress of the Training Services.
7.3 - The KnowledgePool Representative and the Client Representative shall have a meeting no less than once every month from the date of this Agreement for the purpose of monitoring the Training Services.
7.4 - The KnowledgePool Representative and the Client Representative shall act in good faith and shall record all decisions in writing.
7.5 - Either party shall be able to replace its representative at any time and shall notify the other party of such replacement no later than two Working Days before replacement is to take effect.
7.6 - Fees for Training Services are payable by the Client at the rates set out on the Order or in the proposal and on receipt of an appropriate invoice. The minimum Fees payable are one working day and any part working day will be rounded up to the nearest whole day.
7.7 - KnowledgePool will invoice the Client:
(a) - in full for the Fees for Closed Training not more than 10 working days prior to the commencement of the Closed Training. Payments by credit card will be processed on confirmation of the booking;
(b) - on a 2 weekly or monthly basis for Services delivered where a range of Training Services are being delivered over a period of time,
7.8 - Training Services cancelled or postponed by the client within 15 working days of the delivery of those services will incur payment of full fees and any expenses incurred.
7.9 - KnowledgePool will reschedule Training Services following a request from the Client provided that any such request is received more than 15 working days prior to the commencement of the delivery of the Training Services and that the rescheduled Training Services commence within 3 months of the original date booked for the Training Services as specified on either the Order, in the proposal, or in the mutually agreed schedule of training services/project plan.
7.10 - KnowledgePool reserves the right to charge the Client and the Client agrees to pay KnowledgePool an administration fee in respect of rescheduling of Training Services pursuant to a request from the Client.
7.11 - The Client shall pay KnowledgePool in respect of all unpaid charges incurred by Delegates of the Client, including but not limited to unpaid accommodation, unpaid sundry items, and costs of repairs of any damage to any facilities caused by the negligence or wilful misconduct of such persons.
7.12 - The Client shall not be entitled to any refund of Fees in the event any Delegate fails to attend any Closed Training.
7.13 - The Client warrants to KnowledgePool that all Delegates are employed directly by, are guests of or are under contract to, the Client and undertakes to bring these terms and conditions to the attention of those who have booked the Training Service.
7.14 - The Client may substitute one Delegate for another. The substituted Delegate must comply with any Course prerequisites. In all cases, Delegate substitutions must be notified to KnowledgePool in writing in advance.
7.15 - The Client acknowledges that it is the Client's responsibility to ensure the Training is suitable for its and any Delegate's requirements. KnowledgePool makes no warranty or representation about the suitability or otherwise in relation to the Course or any Course content and accepts no liability in the event that the content of the Training does not meet the Client's requirements or the Delegate's requirement
7.16 - KnowledgePool reserves the right to substitute alternative suppliers for the Training, and alternative equivalent facilities to those booked, including but not limited to changes in room allocation without prior notice. KnowledgePool will, however, where possible provide a room of a similar or higher standard within the same location.
7.17 - If any Training is cancelled other than as a result of the fault of the Client and/or one or more Delegates then KnowledgePool will either:
(a) - Offer suitable alternative Training on a date to be agreed with the Client and/or the Delegate(s) each acting reasonably; or
(b) - If the Client and/or Delegate(s) reasonably refuse such alternative Training provide the Client with a full refund of the Fees for the cancelled Training.
7.18 - The Client shall ensure that its Delegates shall abide by any reasonable instructions given in respect of security, health and/or safety and that its Delegates vacate the facilities by the times stipulated at the facilities and shall indemnify KnowledgePool forthwith on demand in respect of any losses, damages, costs, claims and expenses that KnowledgePool suffers as a result of any breach of this clause.
7.19 - Where KnowledgePool agrees to provide a Course at a location provided by the Client, the Client shall be responsible at its own expense for arranging all necessary resources and facilities in accordance with KnowledgePool's stated minimum requirements for the Course. The Client shall indemnify KnowledgePool forthwith on demand in respect of any losses, damages, costs, claims and expenses that KnowledgePool suffers as a result of any loss or theft of or damage to any KnowledgePool property while it is at such location of the on-site Course and or as a result of any death or personal injury sustained by any person at such location.
8.1 - A Delegate may provisionally book a place for Open Training.
8.2 - Provisional bookings will be held for the shorter of the time notified to the Delegate at the time the provisional booking is made and 7 days. A provisional booking will immediately lapse after such time without further reference to the Delegate.
8.3 - A provisional booking for Open Training will become a confirmed booking once KnowledgePool confirms to the Delegate that the Delegate's proposed payment method for Fees is acceptable.
8.4 - KnowledgePool will invoice the Client in full for the Fees for Open Training at the time that the booking becomes confirmed. Payments by credit card will be processed on confirmation of booking.
8.5 - KnowledgePool shall not be liable to the Delegate or any Client for any course dates missed because a provisional booking has not been confirmed.
8.6 - The Client shall not be entitled to any refund of Fees in the event any Delegate fails to attend any Open Training.
9.1 - KnowledgePool will deliver Products to the site nominated by the Client at the time of Order. Where the Client wishes to change the place of delivery KnowledgePool may agree to do so provided that the Client provides sufficient notice of the change and pays any additional delivery charges incurred by KnowledgePool.
9.2 - KnowledgePool shall not be liable to the Client for defects in the Product unless KnowledgePool is notified within 7 days of receipt of the Product and the Client returns the Product to KnowledgePool so as to reach KnowledgePool within 14 days of receipt of the Product.
9.3 - In any event the sole liability of KnowledgePool in the circumstances set out in Clause 9.2 shall be to remedy the fault.
9.4 - Where the Client returns a Product to KnowledgePool, the Client shall be responsible for any damage to or loss or theft of the Product between the date of delivery to the Client and its return to KnowledgePool.
9.5 - Risk in the Product(s) shall pass to the Client on delivery. KnowledgePool shall retain title to the Products until the Client has paid in full for all Products which are included in the applicable Order.
9.6 - The Product is supplied subject to the licence conditions of the licensor, a copy of which conditions is included with the packing of the Product. On opening the Product, or in the case of Products supplied via the World Wide Web on completing the registration request, the Client will be deemed to have accepted these conditions.
10.1 - Neither KnowledgePool nor the Client exclude or limit liability to the other for:
(a) - death or personal injury caused by its negligence or that of its employees, agents or consultants; or
(b) - any breach of any obligations implied by Section 12 of the Sales of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
(c) - any other liability which cannot lawfully be excluded.
10.2 - Subject always to Clause 10.1 the aggregate liability of either party to the other party under or in connection with this Agreement, whether arising from contract, negligence or howsoever shall be subject to the financial limits set out in this Clause 10.2 (without prejudice to any non-financial remedies) as follows:
(a) - The aggregate liability of either party to the other party resulting in direct loss of or damage to the real or tangible property of the other shall in no event exceed one million pounds (£1,000,000);
(b) - The aggregate liability of either party to the other party in respect of liabilities (other than those covered by Clause 10.2(a)) under this Agreement in respect of any particular Service shall be limited to an amount which in no event shall exceed the aggregate of any sums paid by the Client to KnowledgePool in respect of that Service delivered in the previous 12 months.
10.3 - Subject always to Clause 10.1 in no event shall either party be liable to the other party for:
(a) - loss of profits, business revenue, goodwill or anticipated savings; and/or
(b) - special, indirect or consequential loss or damage.
11.1 - Without prejudice to any other right to which it may be entitled, either party may terminate this Agreement with immediate effect by giving written notice of such termination to the other party at any time on or after the occurrence of any of the following events:
(a) - the other party commits a material breach of any of the terms of this Agreement which is irremediable or, if capable of remedy, is not remedied within 14 days of being notified in writing of the breach; or
(b) - (i) insolvency or winding-up proceedings are instituted by or against the other party; (ii) a receiver, liquidator or administrator is appointed for the other party, or the other party passes a resolution for the appointment of a liquidator (other than (in any such case) a voluntary winding-up of a solvent company for the purposes of amalgamation or reconstruction); (iii) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986); (iv) the other party takes steps to enter into a company voluntary arrangement, a scheme of arrangement under section 425 Companies Act 1985 or any analogous compromise or arrangement (whether formal or informal) with any of its creditors (other than (in any such case) a voluntary winding-up of a solvent company for the purposes of amalgamation or reconstruction); (v) any substantial part of the assets of the other party is the object of attachment, sequestration or other type of comparable proceeding; or (vi) the other party is unable to pay its debts within the meaning of section 123(e) of the Insolvency Act 1986.
11.2 - Without prejudice to any other right to which it may be entitled, KnowledgePool may suspend performance of the Services with immediate effect by giving written notice of such suspension to the Client at any time if the Client commits a material breach of any of the terms of this Agreement which is capable of remedy (including for the avoidance of doubt non payment of Fees when due) and is not remedied within 14 days of being notified in writing of the breach.
11.3 - Any termination of this Agreement shall be without prejudice to the rights or liabilities of either party accrued at the date of termination.
11.4 - On termination:
(a) - each party shall return to the other party all property belonging to the other party then in its possession, including without limitation all Confidential Information;
(b) - all sums due to KnowledgePool become payable by the Client without set-off or deduction; and
(c) - all licences granted under this Agreement by KnowledgePool to the Client shall terminate immediately and Client shall promptly return to KnowledgePool all Software and other Materials the subject of such licences.
11.5 - Clauses 3, 6, 12, 11.4, 11.5, 13 and 16 shall survive termination of this Agreement and shall continue to apply as shall any other provision which by its nature is intended to survive termination.
The Client's attention is hereby drawn to the Data Protection Act 1998. The Client undertakes to abide by the Data Protection Act 1998 in relation to the provision of the Services and in particular to comply with the obligations set out in the seventh principle of Schedule 1 of the Data Protection Act 1998 in relation to the provision of the Services.
13.1 - Confidential Information does not include information which:
(a) - is or becomes generally available to the public other than by breach of this Agreement;
(b) - can be shown by written or other records:
(c) - is received from a third party who lawfully acquired or developed it and who is under no obligation restricting its use or disclosure.
13.2 - Subject to Clause 13.3 each of the parties undertakes at all times to maintain and procure the maintenance of the confidentiality of the Confidential Information of the other party and to keep all such Confidential Information secure and protected against theft, damage, loss or unauthorised access, and not at any time, whether during the term of this Agreement or at any time thereafter, without the prior written consent of the other party, directly or indirectly, to use, disclose, exploit, reproduce, reduce to writing, copy, modify or adapt any part of the Confidential Information of the other party, or authorise or permit any third party to do the same, except as strictly necessary for the purpose of exercising its rights and performing its obligations under this Agreement.
13.3 - The provisions of Clause 13.2 shall not apply so as to prevent disclosure of Confidential Information by a party:
(a) - to those of its directors, employees, officers, agents, representatives and professional advisors to the extent strictly necessary for the purpose of that party performing its obligations and exercising its rights under this Agreement provided that before any such disclosure that party makes such directors, employees, officers, agents, representatives and professional advisors aware of its obligations of confidentiality under this Agreement and ensures that they comply with the terms of this Agreement as if they were a party to it; and
(b) - to the extent that such disclosure is required to be made by any applicable law or regulation, or by any court or governmental or administrative authority competent to require the same but, where reasonably practicable, the party required to make the disclosure shall give the other party not less than two Working Days' notice prior to such disclosure and shall assist that party in avoiding such disclosure.
14.1 - The Client shall not be entitled (whether at law or in equity) without the prior written consent of KnowledgePool:
(a) - to assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under this Agreement; nor
(b) - sub-contract any or all of its obligations under this Agreement, nor purport to do any of the same.
14.2 - The Client acknowledges that, in providing the Services KnowledgePool may, from time to time sub-contract all or part of its obligations under this Agreement.
For the duration of this Agreement and for the period of six months thereafter neither party shall, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), actively solicit or entice away (or seek or attempt to entice away) from the employment of the other party any person employed (or any person who has been so employed in the preceding six months) by such other party.
KnowledgePool reserves the right to charge a fee equivalent to one year's salary in the case of any employee of KnowledgePool who commences employment with the Client.
16.1 - If the performance of any of the parties' obligations under this Agreement is prevented, restricted or interfered with by reason of war, threat of or preparation for war, invasion, terrorism, revolution, civil commotion, act of public enemy, blockade, embargo, act of God, riot, sabotage, earthquake, epidemic, power failure or failure of the Internet then the party whose performance is prevented, restricted or interfered with shall, upon giving written notice to the other party, be excused from such performance to the extent of such prevention, restriction, or interference, and shall have no liability as a result thereof. In the event that the performance of a party is prevented, restricted or interfered with for a continuous period of more than one month either party may terminate this Agreement on 30 days' written notice to the other party.
16.2 - This Agreement constitutes the entire agreement and understanding between the parties and supersedes any and all previous agreements arrangements and/or understandings (whether written or oral) between the parties relating to the subject matter of this Agreement.
16.3 - No third party shall have any rights under or in connection with this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999.
16.4 - No provision of this Agreement is intended to or shall operate to create a partnership between the parties to this Agreement or authorise either party to act as agent for the other for any purpose.
16.5 - If any provision of this Agreement or the application thereof to any party or circumstances is prohibited by law or judged by a court or administrative body of competent jurisdiction to be unlawful, void or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement which shall continue in full force and effect to the extent permitted by applicable law. In such event, the parties shall negotiate in good faith to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.
16.6 - Any failure by either party to enforce at any time any term or condition under this Agreement shall not be considered a waiver of that party's right thereafter to enforce each and every term and condition of this Agreement.
16.7 - All notices and other communications in connection with this Agreement shall be in writing and shall be sent to the respective parties at the addresses set out on the Order or in the proposal by hand, or by registered airmail, postage prepaid, or by express courier service, service fee prepaid, or by facsimile transmission.
16.8 - A change to this Agreement will only be effective if it is recorded in writing and signed by an authorised representative of each of the parties.
16.9 - This Agreement shall be governed by and construed in accordance with English law and each party hereby irrevocably submits to the non-exclusive jurisdiction of the English courts.