Last updated: May 2016
1.1 In this Contract, the following expressions shall have following meanings unless the context otherwise requires:
Confidential Information: any information which has been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information which relates to the business, affairs, finances, properties, assets, trading practices, Services, products, marketing, developments, trade secrets, Intellectual Property Rights, know-how, personnel, and customers of the HEA or the Subscriber (as the case may be) and all personal data and sensitive personal data within the meaning of the Data Protection Act 1998, which is in each case provided or obtained by one party, to or for the other party;
DP Legislation: the Data Protection Act 1998 including applicable regulatory policies, guidelines or industry codes;
Initial Term: shall mean a period commencing on the Effective Date and expiring on the date that is 12 (twelve) months from the Effective Date;
Intellectual Property Rights: any copyright and related, patents, rights to inventions, registered designs, database rights, design rights, topography rights, trade marks, service marks, trade names and domain names, trade secrets, rights in unpatented know-how, rights of confidence, rights in databases, moral rights and any other intellectual or industrial property rights of any nature including all applications (or rights to apply) for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, marketing methods and procedures and advertising literature, including the “look and feel” of any websites, now or in the future in any part of the world;
Leaflet: the document sent with the Options Letter entitled “Subscription Packages for higher education providers 2016-2017”;
Materials: all materials including but not limited to items, documents, web based content supplied by the HEA to the Subscriber as part of the Subscription;
Named Representatives: the Subscriber’s named institutional contacts;
Options Letter: the e-mail sent by the HEA to the Named Representatives with details of the Subscription options available;
Renewal Date: the end of the Initial Term or any Extended Term;
Services: the subscription services provided by the HEA to the Subscriber under this Contract, and more particularly described in the Leaflet, the Options Letter and on the Website;
Subscriber: the organisation that pays or will pay for the Subscription;
Subscription: means the subscription package offered by the HEA and accepted by the Subscriber in the Options Letter, which entitles the Subscriber and Users to use and access the Services in accordance with the Contract;
Subscription Fee: the subscription fee payable by the Subscriber to the HEA for the Subscription, as set out in the Options Letter;
Subscription Term: the Initial Term and any Extended Term;
Users: including those employees of the Subscriber who are authorised by the Subscriber to use the Services;
Webpage: www.heacademy.ac.uk/subscriptiontsandcs or website link as notified by the HEA to the Subscriber from time to time.
1.2 Where the words “include(s)” or “including”, or words of a similar nature, are used in this Contract, they are deemed to have the words “without limitation” following them, and are illustrative and shall not limit the sense of the words preceding them.
1.3 Words denoting the singular shall include the plural and vice versa and words denoting one gender shall include each gender and all genders.
1.4 Unless otherwise stated, a reference in this Contract to a statute or statutory provision is a reference to the relevant UK statute or statutory provision as it is in force during the Subscription Term, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation made under such statute or statutory provision and in force during the Subscription Term.
2.1 The HEA hereby grants to the Subscriber the non-exclusive, non-transferable right to use and access the Services via the Website during the Subscription Term solely for the Subscriber’s internal business operations.
2.2 The Subscriber shall:
2.2.1 provide details of the Website to the Users;
2.2.2 provide the HEA with 30 (thirty) days’ notice should it wish to change the Subscription package; and
2.3 The Subscriber shall not:
2.3.1 use the Services to provide services to third parties;
2.3.2 licence, sell, rent, lease, transfer, assign or otherwise commercially exploit or otherwise make the Services available to any third party except the Users.
3. User Subscriptions
3.1 In relation to the Users, the Subscriber undertakes not to do or say anything throughout the Subscription Term which damages or which could reasonably be expected to damage the interests or the reputation of the HEA or its officers, employees, agents, contractors, funders or owners.
4. HEA obligations
4.1 The HEA warrants that it has and will maintain all necessary licences, consents and permissions necessary for the performance of its obligations under these Terms.
5. Subscription Fee
5.1 The Subscriber shall pay the Subscription Fee to the HEA in accordance with this clause 5.
5.2 The Subscriber shall pay to the HEA the Subscription Fee in full cleared funds (without deduction or set-off) in pound sterling within 30 days upon receipt of an invoice submitted by the HEA to the Subscriber.
5.3 Without prejudice to any other right or remedy that it may have, if the Subscriber fails to pay the HEA within the timescale set out in clause 5.2 above, the HEA may:
5.3.1 charge interest on such sum from the due date for payment at the annual rate of 4% above the base rate from time to time of the Royal Bank of Scotland accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Subscriber shall pay the interest immediately on demand; and
5.4 immediately withdraw/suspend all Services until full cleared payment has been received from the Subscriber by the HEA.
5.5 The HEA shall be entitled to vary the amount of the Subscription Fee which shall be effective on the anniversary of the Initial Term or the anniversary of each Extended Term (as applicable), by giving the Subscriber 30 (thirty) days’ notice.
5.6 The HEA shall provide the Services to the Subscriber only upon receipt of the Subscription Fee.
6.1.1 For the purposes of this clause 6:
6.1.2 the “Disclosing Party” is the party which discloses Confidential Information to, or in respect of which Confidential Information comes to the knowledge of, the other party; and
6.1.3 the “Receiving Party” is the party which receives Confidential Information relating to the other party.
6.2 The Receiving Party shall take all necessary precautions, and apply the same security measures and degree of care to the Confidential Information as the Receiving Party applies to its own confidential information (which the Receiving Party warrants as providing adequate protection from unauthorised disclosure, copying or use) to ensure that all Confidential Information it receives under or in connection with this Contract:
6.2.1 is given only to such of its staff, funders, owners, professional advisors or consultants engaged to advise it in connection with this Contract as is strictly necessary for the performance of this Contract and only to the extent necessary for the performance of this Contract; and
6.3 is treated as confidential and not disclosed (without the prior written consent of the Disclosing Party) or used by the Receiving Party or any member of its staff or its funders, owners, professional advisors or consultants otherwise than for the purposes of this Contract.
6.4 The provisions of clause 6.2 shall not apply to any Confidential Information which:
6.4.1 is or becomes public knowledge (otherwise than by breach of this clause 6);
6.4.2 was in the possession of the Receiving Party, without restriction as to its disclosure, before receiving it from the Disclosing Party
6.4.3 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
6.4.4 is independently developed without access to the Confidential Information; or
6.4.5 is required to be disclosed by any applicable law or regulation, or any court, or governmental or administrative or regulatory authority competent to require such disclosure, provided that the Receiving Party has given the Disclosing Party reasonable notice (where legally permissible to do so) in writing of such required disclosure so that the Disclosing Party has had an opportunity to defend or apply to limit or protect such Confidential Information from disclosure and the provisions of this clause 6 shall not apply to that Confidential Information to the extent only that it is so required to be produced or disclosed.
6.5 This clause 6 shall remain in full force and effect in the event of any termination or expiry of this Contract.
7. Intellectual Property Rights
7.1 The Intellectual Property Rights in any Materials shall belong to the HEA or its licensors (as the case may be). The HEA hereby grants to the Subscriber a non-exclusive, personal, revocable, non-transferable, royalty-free licence to use the Materials solely for the purpose of using the Services and subject to the terms set out below and for no other purpose whatsoever (“Licence”):
7.1.1 the Subscriber may use the Material for its own academic teaching and academic research purposes only; for the avoidance of doubt the Subscriber may not distribute, publish or make available the Material to the public, whether for commercial advantage or otherwise, in any media or format whether now known or hereafter devised; and
7.1.2 under the terms of the Licence, the Subscriber may not make adaptations of the Materials (including any translation, adaptation, derivative work or other alteration derived from the original Materials); without the prior written consent of the HEA.
7.2 As a condition of the Licence granted to the Subscriber, the Subscriber must keep intact all copyright notices for the Materials together with any other attribution notices as directed by the HEA from time to time.
7.3 The Subscriber shall not use the Materials in any manner that infringes the HEA’s or its suppliers’ Intellectual Property Rights in them.
7.4 Nothing in this Agreement shall operate to grant any licence or rights to the Subscriber to use the HEA’s names, trade marks or logos whether in connection with the Materials or otherwise, except where expressly provided in writing.
7.5 All rights that are not expressly granted by the HEA are reserved by the HEA.
7.6 The provisions of this clause 7 shall survive the termination or expiry of this Contract, however arising.
8. Data Protection
8.1 The Subscriber shall comply with any notification requirements under the DP Legislation and both parties will duly observe all of their obligations under the DP Legislation which arise in connection with this Contract.
8.2 The provisions of this clause 8 shall apply during the Subscription Term and indefinitely after its expiry
9. Limitation of Liability
9.1 This clause 9 sets out the entire financial liability of the HEA to the Subscriber in respect of:
9.1.1 any breach of this Contract;
9.1.2 any use made by the Subscriber of the Services or any part thereof; and
9.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract.
9.2 Nothing in this Contract shall exclude or restrict the liability of either party to the other:
9.2.1 for death or personal injury resulting from negligence; or
9.2.2 for fraudulent misrepresentation; or
9.2.3 in any other circumstances where liability may not be limited under any applicable law.
9.3 Nothing in this Contract shall exclude or restrict the liability of the Subscriber to the HEA:
9.3.1 for any breach by the Subscriber of:
126.96.36.199 clause 6 (Confidentiality); or
188.8.131.52 clause 7 (Intellectual Property Rights); or
184.108.40.206 clause 8 (Data Protection).
9.4 Subject to clauses 9.2 and 9.3:
9.4.1 the HEA shall not under any circumstances whatsoever be liable for:
220.127.116.11 loss of profits; or
18.104.22.168 loss of business; or
22.214.171.124 depletion of goodwill and/or similar losses; or
126.96.36.199 loss of anticipated savings; or
188.8.131.52 loss of goods; or
184.108.40.206 loss of contract; or
220.127.116.11 loss of use; or
18.104.22.168 loss of corruption of data or information; or
22.214.171.124 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.4.2 the HEA’s total aggregate liability whether in contract, tort, negligence, breach of statutory duty or otherwise at law, in respect of any one claim or series of linked claims under or in connection with this Contract shall be limited to the sum equal to the Subscription Fee properly paid and payable in the preceding year in which the claim or series of claims arose.
9.5 Except where otherwise expressly stated in this Contract, all remedies available to either party for breach of this Contract are cumulative and may be exercised concurrently or separately, and the exercise of one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
9.6 The provisions of this clause 9 shall survive the termination or expiry of this Contract, however arising.
10.1 The Subscriber shall defend, indemnify and hold harmless the HEA against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Subscriber’s use of the Services, provided that:
10.1.1 the Subscriber is given prompt notice of any such claim;
10.1.2 the HEA provides reasonable co-operation to the Subscriber in the defence and settlement of such claim, at the Subscriber’s expense; and
10.1.3 the Subscriber is given sole authority to defend or settle the claim.
10.2 The HEA shall defend the Subscriber, its officers, directors and employees against any claim that the Services infringe any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality and shall indemnify the Subscriber for any amounts awarded against the Subscriber in judgement or settlement of such claims, provided that:
10.2.1 the HEA is given prompt notice of any such claim;
10.2.2 the Subscriber provides reasonable co-operation to the HEA in the defence and settlement of such Claim, at the HEA’s expense; and
10.2.3 the HEA is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, the HEA may procure the right for the Subscriber to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 (two) days’ prior written notice to the Subscriber without any additional liability or obligation to pay damages, whether liquidated or otherwise, or other additional costs to the Subscriber.
10.4 In no event shall the HEA, its employees, agents and sub-contractors be liable to the Subscriber to the extent that the alleged infringement is based on:
10.4.1 a modification of the Services by anyone other than the HEA; or
10.4.2 the Subscriber’s use of the Services after notice of the alleged infringement from the HEA or any appropriate authority.
11. Subscription Term and Termination
11.1 This Contract shall commence on 1 August 2016 or such other date as communicated by the HEA to the Subscriber (“Effective Date”). Unless terminated earlier in accordance with this clause 11, this Contract shall continue for the Initial Term and shall automatically extend for 12 months at the end of the Initial Term (“Extended Term”) and a further 12 months at the end of each Extended Term thereafter.
11.2 The Contract may be terminated by either party on written notice:
11.2.1 if the other party commits a material breach of the Contract, provided that if the breach is capable of being remedied, and the defaulting party has failed to remedy the same within 20 (twenty) days from the date of receipt of notice specifying the breach and requiring its remedy;
11.2.2 if a force majeure event occurs in accordance with clause 12;
11.2.3 the Subscriber is unable to pay its debts within the meaning of s.123 Insolvency Act 1986 or equivalent provision in another jurisdiction;
11.2.4 any step, action, application or proceeding is taken by or in respect of the Subscriber in relation to the whole or any part of its undertaking for;
126.96.36.199 a voluntary arrangement or composition with its creditors or reconstruction of its debts; or
188.8.131.52 winding-up, dissolution, administration or receivership (administrative or otherwise) or bankruptcy;
11.2.5 any step, action, application or proceeding is taken by or in respect of the Subscriber in any jurisdiction to which it is subject (including, without limitation, one in which the Subscriber is incorporated) which has an effect similar or equivalent to any of the events mentioned in clause 11.2.3 and clause 11.2.4.
11.3 The HEA may terminate the Contract at any time by giving the Subscriber not less than 30 (thirty) days’ notice in writing. The HEA shall refund the Subscription Fee paid by the Subscriber for the remainder of the Subscription Term. The Subscriber shall not be entitled to claim any compensation on account of such termination. In the event of termination by the HEA in accordance with this clause 11.3, the Subscriber must notify the HEA of its payment details in accordance with the notice of termination within 14 (fourteen) days of the date of the notice of termination in order for the HEA to arrange for a refund. The Subscriber shall forfeit the refund if the payment details are not supplied within the aforementioned time period.
11.4 The Subscriber may terminate the Contract by serving 12 (twelve) months’ notice in writing prior to the commencement of a Renewal Date. For the avoidance of doubt, the Subscription Fee paid by the Subscriber for the preceding Subscription Term shall not be refunded by the HEA.
11.5 On termination of this Contract for any reason the Subscriber shall immediately delete or return to the HEA, at the HEA’s request, all documents, Materials, information and other resources provided by the HEA to the Subscriber for the purposes of or in connection with this Contract, including any Confidential Information, except that:
11.5.1 where expressly agreed in writing by the HEA, the Subscriber shall be entitled to retain one copy of such documents, Materials, information and other resources for audit purposes only; and
11.5.2 the Subscriber shall not be required to return or destroy any such documents, materials, information and other resources stored in its automatically archived electronic files, provided that such files are accessible only to those persons engaged by the Subscriber to be responsible for the safe and secure storage of such files, and in each case the provisions of clause 6 (Confidentiality) shall continue to apply to such retained documents, materials, information and other resources.
11.6 Termination of this Contract, however it arises shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
12. Force Majeure
12.1 The HEA shall not be breach of this Contract if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control (“force majeure”) including (insofar as beyond such control but without prejudice to the generality of the foregoing expression) strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, volcanic ash, earthquake, explosion, terrorist act, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of consultants or sub-contractors.
12.2 In the event of a force majeure, the HEA may at its own discretion, perform, suspend performance of or terminate the Contract with immediate effect.
13.1 Publicity: The Subscriber shall not publicise the terms of the Offer Letter or use the name of the HEA or any trade name or trade mark used by the HEA or refer to the HEA in any other way in any press release, promotional literature, publications or advertising material, including any website, “blogs”, social media or other online services, without the prior written consent of the HEA.
13.2 Assignment: The Subscriber shall not, without the prior written consent of the HEA, assign, transfer, charge, create a trust in, or deal in any other manner with all or any of its rights or obligations under this Contract. The HEA may assign or novate this Contract to: (i) any separate entity controlled by the HEA; or (ii) any body or department which succeeds to those functions of the HEA to which this Contract relates. The Subscriber warrants and represents that it will (at the HEA’s reasonable expense) execute all such documents and carry out all such acts, as reasonably required to give effect to this clause 13.2.
13.3 Subcontracting: The HEA 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 this Contract. The Subscriber shall not, without the prior written consent of the HEA, subcontract any of its rights and obligations under this Contract.
13.4 Third Party Rights: The Contract does not create any rights or benefits enforceable by any person not a party to it (within the meaning of The Contracts (Rights of Third Parties) Act 1999).
13.5 Entire agreement: This Contract contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing, provided that nothing in this clause 13.5 shall operate to limit or exclude either party’s liability for fraudulent misrepresentation.
13.6 Waiver: A waiver of any right under this Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
13.7 Severability: If any provision (or part of a provision) of this Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
13.8 Notices: All notices and other communications shall be in writing and shall conclusively be deemed to have been duly given when delivered by first class post to the address of the relevant party as set out in these Terms or the Offer Letter or such other address as notified by the parties from time to time.
13.9 Insurance: During the Subscription Term, the Subscriber shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, upon the HEA’s request, produce satisfactory documentary evidence to demonstrate compliance with this clause.
13.10 Variation: The HEA may at any time vary these Terms subject to 1 (one) months’ prior notification in writing to the Subscriber of such variation. For the avoidance of doubt, such variation shall be permissible by e-mail.
13.11 Dispute Resolution: Subject to the remainder of this clause 13.11, the parties agree irrevocably that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including any non-contractual dispute or claim) that arises out of or in connection with this Contract or its subject matter. If any dispute or claim arises out of or in connection with this Contract, the parties shall, following service of written notice by one party on the other, attempt to resolve amicably by way of good faith negotiations and discussions any such dispute or claim as soon as reasonably practicable (and in any event within 10 working days after such notice or by such later date as the parties may otherwise agree in writing). If the dispute or claim is not settled by mediation within 30 days of the commencement of the mediation, or such further period as the parties shall agree in writing, either party may commence proceedings in accordance with clause 13.11. Nothing in this clause 13.11 shall prevent either party from applying at any time to the court for injunctive relief on the grounds of infringement, or threatened infringement, of the other party's obligations of confidentiality contained in this Contract or infringement, or threatened infringement, of the applicant's Intellectual Property Rights.
13.12 Governing law: This Contract and any dispute or claim (including any non-contractual dispute or claim) arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the laws of England and Wales.