Inclusive Employers Terms of Sale:
e-Learning

1. Definitions and interpretation

• In this Agreement the following definitions apply unless the context requires otherwise:
  • “Agreement” means these terms and conditions together with the terms of any applicable Order.
  • “Annual Licence Fee” means the annual fee payable by the Customer to the Supplier for the continued right to use a SCORM File under clause 5, calculated in accordance with clause 5.4.
  • “Content” means the e-learning or micro-learning module or modules supplied by the Supplier to the Customer under this Agreement, whether supplied as a Standard module, a Tailored module, or a Bespoke module, as set out in the Order.
  • “Control” has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression Change of Control shall be construed accordingly.
  • “Customer” means the organisation or person who purchases the Content from the Supplier.
  • “Data” means all data, information, text, drawings, diagrams, images, sounds and other materials which are embodied in any medium, including any electronic, optical, magnetic or tangible medium, including compilations of any of the foregoing.
  • “Data Protection Legislation” means (i) the UK Data Protection Legislation and all laws that relate to data protection, privacy, the use of information relating to individuals, and the information rights of individuals, in each case as may be replaced, extended or amended from time to time; and (ii) any other national privacy laws in force in any relevant jurisdiction which implement the UK GDPR, together with all applicable guidance, codes of practice and recommendations of the Information Commissioner’s Office or other relevant regulator.
  • “Data Subject” has the meaning given under the Data Protection Legislation.
  • “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks 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, rights in computer software, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, whether registered or unregistered, in each and every part of the world, together with all applications, renewals, revisions and extensions of such rights.
  • “Order” means a statement of work, quotation, order form, proposal or similar document describing the Content to be supplied by the Supplier to the Customer.
  • “Personal Data” means any information which falls within the definition of “Personal Data” under the Data Protection Legislation and which the Supplier is required to Process in connection with this Agreement.
  • “Processing” and “Process” have the meaning given under the Data Protection Legislation.
  • “SCORM File” means the Content supplied to the Customer in Sharable Content Object Reference Model format for upload to the Customer’s own learning management system.
  • “Supplier” means INCLUSIVE EMPLOYERS LIMITED of 30 Stamford Street, London, England SE1 9LQ.
  • “UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK, including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder), the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended, and guidance or codes of practice issued by the UK Information Commissioner’s Office.
  • “UK GDPR” means the EU GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018, as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019.
• Interpretation:
  • A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  • A reference to a party includes its personal representatives, successors and permitted assigns.
  • A reference to legislation or a legislative provision is a reference to it as amended or re-enacted, and includes all subordinate legislation made under it.
  • 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.
  • A reference to writing or written excludes fax but not email.

2. General

• These terms and conditions apply to all Orders for the supply of the Content by the Supplier to the Customer.
• Before supply of the Content commences, the Supplier shall provide the Customer with an Order, which shall specify the Content to be supplied, the licence type (Standard, Tailored or Bespoke) and the price payable. The Customer shall notify the Supplier immediately if it does not agree with the contents of the Order. All Orders are subject to these terms and conditions.
• For the avoidance of doubt, no description, specification or illustration contained in any product overview, pamphlet or other sales or marketing material of the Supplier, and no representation, written or oral, correspondence or statement, shall form part of the Agreement unless expressly incorporated into the Order.

3. The content and licence types

• The Content is made available to the Customer under one of the following licence types, as specified in the Order:
  • Standard: a module from the Supplier’s existing programme, supplied without amendment to learning design, themes, colour scheme or imagery. The Customer is invited to supply a brand logo and short text for the opening and closing pages of the learning package.
  • Tailored: a module from the Supplier’s existing programme, supplied without amendment to learning design, themes, or colour scheme. The Customer is invited to supply a brand logo and short text for the opening and closing pages of the learning package, plus amendments to five additional pages within the learning package. Amendments examples: updated scenarios, text changes or alterations to imagery.
  • Bespoke: a module developed to a scope, structure and creative approach specifically agreed in writing with the Customer in advance, as set out in the Order.
• For Tailored and Bespoke modules, the Customer and the Supplier shall agree the desired outcomes and learning objectives prior to the design process commencing. For Tailored modules, the Customer shall be invited to one round of review of each module, during which it may request amendments. The Supplier shall complete one round of agreed updates arising from that review. For Bespoke modules, the Customer shall be invited to two rounds of review of each module, during which it may request amendments. The Supplier shall complete two rounds agreed updates arising from the reviews. Any further rounds of review or amendment requested by the Customer shall be chargeable at the Supplier’s then-current rates.
• Save as set out in clause 3.2, the Customer acknowledges that themes, colour scheme and imagery are standard elements of the Supplier’s methodology and cannot be altered under any licence type, except that in a Tailored or Bespoke module, any AI-generated avatars or voiceovers may be selected from the range of options made available by the Supplier from time to time.
• The Supplier warrants that, on delivery, the Content shall conform in all material respects with the Order.

4. Delivery of the content

• The Content shall be made available to the Customer as a SCORM File, supplied to the Customer for upload to the Customer’s own learning management system.
• The Customer is solely responsible for the compatibility of the SCORM File with its own learning management system, and for the hosting, security, access management and technical performance of that system. The Supplier gives no warranty as to the performance of the SCORM File once uploaded to a third-party system outside the Supplier’s control.
• The Supplier shall use reasonable endeavours to meet any delivery dates set out in the Order, but any such dates are estimates only. Time for delivery shall not be of the essence, and the Supplier shall not be liable for any loss, cost, damage, charge or expense caused directly or indirectly by any delay in delivery.

5. Licence fees and annual renewal

• The price for the SCORM File is as set out in the Order. The first year’s Annual Licence Fee is included within the purchase price stated in the Order.
• The Customer’s right to use the SCORM File continues only for so long as the Annual Licence Fee is paid in accordance with this clause 5.
• From the second year of the Agreement onwards, and on each subsequent anniversary of the Order, the Customer shall pay the Supplier the Annual Licence Fee in order to continue to use the SCORM File.
• The Annual Licence Fee payable under clause 5.4 shall be fifteen per cent (15%) of the original purchase price paid by the Customer for the SCORM File under the Order, plus VAT where applicable. Where the Order includes more than one SCORM File, whether Standard, Tailored or Bespoke, the Annual Licence Fee shall be calculated as fifteen per cent (15%) of the aggregate original purchase price of all SCORM Files then licensed to the Customer.
• The Supplier shall invoice the Annual Licence Fee no less than thirty (30) days before the relevant anniversary of the Order. The Annual Licence Fee is payable within thirty (30) days of the date of invoice.
• If the Customer does not pay the Annual Licence Fee within thirty (30) days of the due date, the Supplier may suspend or withdraw the Customer’s right to use the SCORM File, including by disabling any integration the Supplier is able to disable, until payment is received in full.

6. Price and payment

• The price for the Content is as set out in the Order.
• For Orders where the total price is less than £10,000 plus VAT, invoices will be issued upfront on acceptance of the Order. For Orders where the total price is greater than £10,000, invoices will be issued in milestones for work completed, as set out in the Order.
• Invoiced amounts shall include VAT at the then current rate, where applicable, and are due and payable within thirty (30) days of the date of invoice.
• The Supplier shall be entitled to charge interest on overdue invoices, from the date payment becomes due until the date of payment, at a rate of 4% per annum above the base rate of the Bank of England.
• The Supplier may, at its absolute discretion, carry out credit checks on any Customer prior to supply of the Content. The Customer consents to the Supplier obtaining and using information from credit reference agencies and other sources for this purpose.

7. Customer’s obligations

• To enable the Supplier to perform its obligations under this Agreement, the Customer shall:
  • co-operate with the Supplier;
  • provide the Supplier with any information reasonably required, and ensure that information is complete and accurate in all material respects;
  • obtain and maintain all necessary licences, permissions and consents required for the Content before they are first used; and
  • comply with any other requirements set out in the Order or otherwise agreed between the parties.
• The Customer shall be liable to compensate the Supplier for any expenses incurred by the Supplier as a result of the Customer’s failure to comply with clause 7.1.

8. Warranty

• The Supplier warrants that the Content shall be provided using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
• Except as expressly stated in this Agreement, all warranties, whether express or implied, by operation of law or otherwise, are to the fullest extent permitted by law hereby excluded in relation to the Content.

9. Indemnification

The Customer shall indemnify the Supplier against all claims, costs and expenses which the Supplier may incur and which arise, directly or indirectly, from the Customer’s breach of any of its obligations under this Agreement, including any claims alleging that material provided by the Customer for inclusion in Tailored or Bespoke Content infringes the Intellectual Property Rights of a third party.

10. Limitation of liability

• Nothing in the Agreement limits any liability for:
  • death or personal injury caused by negligence;
  • fraud or fraudulent misrepresentation;
  • breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
  • any liability that legally cannot be limited.
• Subject to clause 10.1, the Supplier’s total liability arising under or in connection with the Agreement, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall not exceed the total price paid by the Customer in the twelve (12) months preceding the event giving rise to the claim.
• Subject to clause 10.1, in no event shall the Supplier be liable to the Customer for any: (a) loss of sales or business; (b) loss of opportunity; (c) loss of profits; (d) loss of agreements or contracts; (e) loss of anticipated savings; (f) loss of use or corruption of software, data or information; (g) loss of or damage to goodwill; or (h) any indirect or consequential loss or damage whatsoever.
• This clause 10 shall survive termination of the Agreement.

11. Confidentiality and data protection

• Each party undertakes that it shall not, at any time during the Agreement and for a period of two years after its termination or expiry, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.
• Each party may disclose the other party’s confidential information to its employees, officers, representatives, contractors or advisers who need to know such information for the purposes of the Agreement, provided they are bound by equivalent confidentiality obligations, or as may be required by law, a court of competent jurisdiction, or a governmental or regulatory authority.
• The Supplier may refer to the fact that the Customer is a customer, and such information shall not be deemed confidential.
• Both parties shall comply at all times with their own obligations under the Data Protection Legislation. The parties acknowledge and agree that, in respect of any Personal Data processed in connection with the providing the Content, the Customer is the Controller, and the Supplier is the Processor acting for and on behalf of the Customer.
• The Supplier shall Process Personal Data only as required to provide the Content. The scope, nature and purpose of such Processing, its duration, and the types of Personal Data and categories of Data Subject, are set out in Annex 1 or as otherwise agreed between the parties.
• The Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to the Supplier for the duration and purposes of this Agreement.
• The Supplier shall, in relation to any Personal Data processed in connection with providing the Content:
  • process that Personal Data only on the documented written instructions of the Customer, as set out in Annex 1;
  • ensure appropriate technical and organisational measures are in place to protect against unauthorised or unlawful processing, and against accidental loss, destruction or damage to Personal Data;
  • ensure that all personnel who have access to Personal Data are obliged to keep it confidential;
  • not transfer Personal Data outside the UK or the EEA unless the conditions set out in Article 46 of the UK GDPR (or equivalent provisions of the Data Protection Legislation) are satisfied;
  • assist the Customer, at the Customer’s cost, in responding to requests from Data Subjects and in complying with its obligations regarding security, breach notification and data protection impact assessments;
  • notify the Customer without undue delay on becoming aware of a Personal Data Breach; and
  • at the Customer’s written direction, delete or return Personal Data on termination of the Agreement, unless retention is required by law.

12. Termination

• Either party may terminate this Agreement immediately by notice in writing to the other if:
  • the other party commits a material breach of this Agreement and, where capable of remedy, fails to remedy it within thirty (30) calendar days of being given written notice to do so;
  • the other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or
  • the other party becomes insolvent, enters administration or liquidation, or any analogous process in any jurisdiction.
• The Customer may terminate this Agreement for convenience, at any time and without cause, by giving the Supplier no less than thirty (30) days’ written notice.
• Where the Customer terminates this Agreement for convenience under clause 12.2, or otherwise terminates or ceases to use the Content before the end of any period for which it has paid, the Customer shall not be entitled to any refund, in whole or in part, of any sums already paid to the Supplier, including the purchase price for any SCORM File and any Annual Licence Feen.
• Without affecting any other right or remedy available to it, the Supplier may s withdraw the Customer’s right to use a SCORM File, with immediate effect by written notice if the Customer fails to pay any amount due under this Agreement on the due date for payment, including any Annual Licence Fee due under clause 5.
• On termination or expiry of this Agreement for any reason, the Customer may retain and use any SCORM File already lawfully delivered to it, for so long as the Annual Licence Fee in respect of that SCORM File continues to be paid in accordance with clause 5.
• Termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement existing at or before that date.

13. Intellectual property rights

• All Intellectual Property Rights in or arising out of or in connection with the Content (other than materials provided by the Customer for inclusion in Tailored or Bespoke Content) shall be owned by the Supplier, including the Supplier’s underlying behaviour change methodology, learning design approach, themes and templates.
• Subject to payment of the Annual Licence Fee in accordance with clause 5, the Supplier grants to the Customer a fully paid-up, non-exclusive, non-transferable licence to use the Content for the Customer’s own internal training purposes only.
• The Customer shall not sub-license, assign, resell, distribute or otherwise transfer the rights granted by clause 13.2, and shall not use the Content to develop, or assist any third party to develop, any product with substantially the same purpose or functionality.
• The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer for the purpose of developing Tailored or Bespoke Content

14. Force majeure

Neither party shall be liable for any delay or failure to perform its obligations if the delay or failure results from events or circumstances outside its reasonable control, including acts of God, strikes, lock-outs, accidents, war, fire, the act or omission of government or other competent authority, or the delay or failure in manufacture, production or supply by third parties of equipment or services. The affected party shall be entitled to a reasonable extension of time after notifying the other party of the nature and extent of such events.

15. General provisions

• Independent contractors. The Supplier and the Customer are independent contractors, and neither has authority to bind the other or act as its representative, unless expressly agreed in writing.
• Assignment. The Supplier may at any time assign, subcontract, or otherwise deal with any of its rights and obligations under this Agreement. The Customer shall not assign, transfer or sub-contract any of its rights or obligations without the Supplier’s prior written consent.
• Severability. If any provision of this Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, that provision shall be severed and the remainder of the Agreement shall continue in full force and effect.
• 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.
• Notices. Any notice shall be in writing and may be served by email, personal service or post to the address given in the Order, or such other address as notified in writing. Notices sent by email shall, unless the contrary is proved, be deemed received on the day sent.
• Entire agreement. This Agreement contains the entire agreement between the parties relating to its subject matter, and supersedes any previous agreements, arrangements or proposals, oral or written.
• Third party rights. Nothing in this Agreement confers any rights on a third party under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
• Variation. Except as set out in these terms and conditions, no variation of this Agreement shall be effective unless agreed in writing and signed by authorised representatives of both parties.
• Governing law and jurisdiction. This Agreement, and any dispute or claim arising out of or in connection with it, shall be governed by and construed in accordance with the law of England and Wales, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.