1.1 In this Contract, the following expressions shall have the following meanings unless the context otherwise requires:
Brochure: the document provided by the HEA to the Subscriber entitled “Subscription Package for higher education providers 2017-2018”;
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;
HEA Surveys: means Postgraduate Research Experience Survey (PRES), Postgraduate Taught Experience Survey (PTES) and/or UK Engagement Survey (UKES);
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;
Letter: the e-mail and/or letter sent by the HEA to the Named Representatives with details of the Subscription packages available;
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 contact(s);
Services: the services provided by the HEA to the Subscriber as part of the relevant Subscription (as more particularly described in the Brochure, the Letter and on the Website), in accordance with this Contract;
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 Letter, which entitles the Subscriber and Users to use and access the Services in accordance with the Contract;
Subscription Fee: the fee payable by the Subscriber to the HEA for the Subscription, as set out in the Letter;
Users: including those employees of the Subscriber who are authorised by the Subscriber to use the Services; and
Website: https://www.heacademy.ac.uk/subscription-terms-and-conditions-17-18 or website link as notified by the HEA to the Subscriber from time-to-time.
1.3 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.
1.4 Words denoting the singular shall include the plural and vice versa and words denoting one gender shall include each gender and all genders.
1.5 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.
1.6 The terms of this Contract shall prevail over any other terms and conditions issued by the Subscriber, whether on a purchase order or otherwise.
2.1 The HEA hereby grants to the Subscriber the non-exclusive, non-transferable right to use and access the Services (via the Website, when available) 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 (when available);
2.2.2 provide details of the Services available to the Subscriber and access if required;
2.2.2 provide the HEA with 30 (thirty) written days’ notice should it wish to change the Subscription package;
2.2.4 if purchasing the HEA Surveys, ensure that it has access to any necessary platform required to access the HEA Surveys at its own cost.
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. Obligations of the HEA
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
5.3.2 immediately withdraw/suspend all Services until full cleared payment has been received from the Subscriber by the HEA.
5.4 The HEA shall provide the Services to the Subscriber only upon receipt of the Subscription Fee.
6.1 Each party undertakes that it shall not at any time disclose to any person any Confidential Information of the other party, except as permitted by clause 6.2.
6.2 Each party may disclose the other party's Confidential Information:
6.2.1 to its employees, officers, representatives, professional advisers or consultants who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives, professional advisers or consultants to whom it discloses the other party's confidential information comply with this clause 6; and
6.2.2 to the extent required by law, a court of competent jurisdiction or any governmental or regulatory authority.
6.3 No party shall use any of the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
6.4 The provisions of this clause 6 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; or
6.4.4 is independently developed without access to the Confidential Information.
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, revocable, non-transferable, non-assignable, 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 In this clause 8, “Data Subject”, “Personal Data”, “Process”, “Processed” and “processing” shall have the meanings ascribed to them in the Data Protection Act 1998.
8.2 Both parties will duly observe all of their obligations under the DP Legislation which arise in connection with this Contract.
8.3 The Subscriber acknowledges and agrees that Personal Data provided to the HEA by, or on behalf of, the Subscriber will be Processed by and on behalf of the HEA in connection with this Contract and in accordance with the privacy statement made available at (https://www.heacademy.ac.uk/privacy-policy).
8.4 If any Personal Data belonging to the HEA personnel or any third parties are disclosed to the Subscriber pursuant to this Contract, the Subscriber shall, in relation to such Personal Data:
8.4.1 Process the Personal Data only in accordance with instructions from the HEA;
8.4.2 Process the Personal Data only to the extent, and in such a manner, as is necessary for the performance of the Subscriber’s obligations under this Contract or as is required by law;
8.4.3 implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure;
8.4.4 not transfer the Personal Data to any country or territory outside the European Economic Area without the prior written consent of the HEA;
8.4.5 take reasonable steps to ensure that such Personal Data are not unlawfully disclosed or Processed as a result of the Subscriber’s access to such Personal Data; and
8.4.6 provide to the HEA such information regarding the Subscriber’s compliance with clauses 8.4.1 to 8.4.5 as the HEA may from time-to-time reasonably require to enable it to comply with its obligations and to ensure that Personal Data relating to the HEA are appropriately protected.
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:
188.8.131.52 clause 6 (Confidentiality); or
184.108.40.206 clause 7 (Intellectual Property Rights); or
220.127.116.11 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:
18.104.22.168 loss of profits; or
22.214.171.124 loss of business; or
126.96.36.199 depletion of goodwill and/or similar losses; or
188.8.131.52 loss of anticipated savings; or
184.108.40.206 loss of goods; or
220.127.116.11 loss of contract; or
18.104.22.168 loss of use; or
22.214.171.124 loss of corruption of data or information; or
126.96.36.199 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 judgment 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 2017 or such other date as communicated by the HEA to the Subscriber (“Effective Date”) and unless terminated earlier in accordance with its terms, shall continue in full force and effect for a period of 12 (twelve) months from the Effective Date (“Subscription Term”).
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;
188.8.131.52 a voluntary arrangement or composition with its creditors or reconstruction of its debts; or
184.108.40.206 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 Should the Subscriber not wish to renew its Subscription after the Subscription Term, the Subscriber must provide 6 (six) months’ notice in writing prior to the commencement of a new subscription term. For the avoidance of doubt, the Subscription Fee paid by the Subscriber for the 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 in 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 Letter or use any HEA trade mark(s) 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.