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Software as a Service Subscription Agreement

Last updated 17 December 2019

This agreement sets out the agreement between Train Visual Ltd a company incorporated registered in England and Wales with company number 03595911 at 28 Attimore Road, Welwyn Garden City, Hertfordshire AL8 6LP (referred to as Train Visual in this agreement) and you the Customer.

BACKGROUND

  • Train Visual has developed the HOW2s Application which it makes available to subscribers via the internet for the purpose of supporting and educating teachers.

  • The Customer wishes to use Train Visual’s Services in its business operations.

  • Train Visual has agreed to provide and the Customer has agreed to take and pay for Train Visual’s Services subject to the terms and conditions of this agreement.

AGREED TERMS

  1. Interpretation

    1. The definitions and rules of interpretation in this clause apply in this agreement.

      • Additional Services: the additional services listed at clause 2.3.
      • Additional User Subscription Fees: means the fees payable by the Customer for purchasing additional User Subscriptions in accordance with clause 3.
      • Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services as further described in clause 2.5.
      • Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
      • Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
      • Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.6.
      • Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
      • Customer Data: the data inputted by the Customer or Train Visual on the Customer's behalf, including the personal data of the Authorised Users, for the purpose of using the Services, or facilitating the Customer's use of the Services.
      • Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
      • Effective Date: the date these terms are accepted by the Customer clicking the “accept” button at the end of this agreement.
      • Fees: has the meaning set out at clause 9.2.
      • HOW2s Application: the online software application and content provided by Train Visual.
      • Initial Subscription Term: the period stipulated on the Subscription Form.
      • Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, 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, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
      • Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
      • Renewal Period: the period described in clause 14.1.
      • Services: has the meaning given at clause 2.2.
      • Subscription Fees: the subscription fees payable by the Customer to Train Visual as set out in clause 9.2.1.
      • Subscription Form: the initial subscription form provided by Train Visual to the Customer which confirms the Customer’s use of the Services.
      • Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
      • UK Data Protection Legislation: all applicable data protection and privacy you pay a legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
      • User Subscriptions: the user subscriptions which the Customer pays for pursuant to clause 9.1 which entitle Authorised Users to access and use the Services in accordance with this agreement.
      • Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
    2. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

    3. References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

    4. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

    5. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

    6. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

    7. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

    8. Unless otherwise provided, a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time provided that, as between the parties, no such amendment, extension or re-enactment made after the date of this agreement shall apply to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect, the rights of any party.

    9. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

  2. The Services

    1. Subject to the Customer purchasing the User Subscriptions in accordance with this clause 2, clause 3, clause 9, and the other terms and conditions of this agreement, Train Visual hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the HOW2s Application during the Subscription Term solely for the Customer's internal business operations.

    2. Train Visual will provide the following services to enable the Customer’s Authorised Users to use the HOW2s Application:

      1. An Administrators Account – provides access to a helpdesk via a support link on the HOW2s’ website;
      2. Information and tips in respect of how to use the HOW2s Application;
      3. Web hosting;
      4. Technical support;
      5. Feature & content updates;
      6. Admin support;

      together the Services.

    3. Where included in the Subscription Form the following Additional Services may be provided:

      1. Bespoke support – an onsite training day;
      2. Webinars – Monthly support webinars for the Authorised Users;
      3. On-site support;
      4. Off-site support;
      5. Induction;
      6. Implementation planning.
    4. In relation to the Authorised Users, the Customer undertakes that:

      1. the maximum number of Authorised Users that it authorises to access and use the HOW2s Application shall not exceed the number of User Subscriptions it has paid for from time to time;

      2. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the HOW2s Application;

      3. each Authorised User shall keep a secure password for his use of the HOW2s Application (which Train Visual reserves the right to require the Authorised User to change intermittently) and that each Authorised User shall keep his password confidential;

      4. it shall maintain a written, up to date list of current Authorised Users and provide such list to Train Visual within 5 Business Days of the Train Visual’s written request at any time or times;

      5. it shall permit Train Visual or Train Visual’s designated auditor to audit the HOW2s Application in order to establish the name and password of each Authorised User and Train Visual’s data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;

      6. if any of the audits referred to in clause 2.4.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Train Visual’s other rights, the Customer shall promptly disable such passwords and Train Visual shall not issue any new passwords to any such individual; and

      7. if any of the audits referred to in clause 2.4.5 reveal that the Customer has underpaid Subscription Fees to Train Visual, then without prejudice to Train Visual’s other rights, the Customer shall pay to Train Visual on demand an amount equal to such underpayment as calculated in accordance with the prices set out in clause 9.

    5. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the HOW2s Application that:

      1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

      2. facilitates illegal activity;

      3. depicts sexually explicit images;

      4. promotes unlawful violence;

      5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

      6. is otherwise illegal or causes damage or injury to any person or property;

        and Train Visual reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to the HOW2s Application if there is any breach of the provisions of this clause.

    6. The Customer may only use the HOW2s Application:

      1. to train its Authorised Users. For such training Train Visual allows the Customer to use a projector to allow groups of Authorised Users to participate in the training, however such projections should not be captured by any other media;

      2. all content, information and Intellectual Property in the HOW2s Application can only be viewed online and not downloaded unless such content, information and Intellectual Property is identified as being for download on the HOW2s Application.

    7. The Customer shall not:

      1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:

        1. attempt to modify, duplicate, create derivative works from, frame, mirror or republish, display or transmit all or any portion of the HOW2s Application in any form or media or by any means; or

        2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the HOW2s Application; or

      2. except as expressly provided for by Train Visual for the purposes of training Authorised Users, attempt to copy, print, download or distribute all or any portion of the HOW2s Application; or

      3. access all or any part of the Services in order to build a product or service which competes with the HOW2s Application; or

      4. use the HOW2s Application to provide services to third parties; or

      5. subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the HOW2s Application available to any third party except the Authorised Users; or

      6. attempt to obtain, or assist third parties in obtaining, access to the HOW2s Application, other than as provided under this clause 2.

    8. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the HOW2s Application and in the event of any such unauthorised access or use, promptly notify Train Visual.

    9. The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless agreed in writing by Train Visual.

  3. Additional user subscriptions

    1. Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Subscription Form and Acknowledgement. If this clause 3.1 should apply Train Visual shall grant access to the Services to such additional Authorised Users as is agreed in accordance with the provisions of this agreement.

    2. If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Train Visual in writing. Train Visual shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request and confirm the Additional User Subscription Fees payable by the Customer for such additional User Subscriptions.

    3. Any Additional User Subscription Fees shall be payable by the in accordance with clause 9

  4. Services

    1. Train Visual shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.

    2. Train Visual shall use commercially reasonable endeavours to make the HOW2s Application available 24 hours a day, seven days a week, except for:

      1. planned maintenance carried out during the maintenance window of 6.00 pm to 2.00 am UK time or at any time outside Normal Business Hours; and
      2. unscheduled maintenance performed outside Normal Business Hours, provided that Train Visual has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
    3. Train Visual will, as part of the Services provide the Customer with Train Visual’s standard customer support services via the ‘contact support’ link on the HOW2s Application website during Normal Business Hours.

  5. Customer data

    1. The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

    2. In accordance with its Privacy Policy, Train Visual retains the personal data of each Authorised User for a period of 12 months from when such Authorised User ceases to be an Authorised User, unless the Customer expressly instructs Train Visual in writing to hold such personal data for a different period. Where, in its complete discretion, Train Visual considers the period instructed to be too long for the purpose of the Data Protection Legislation it reserves the right to refuse to extend this period.

    3. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Train Visual shall be for Train Visual to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Train Visual. Train Visual shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.

    4. Train Visual shall, in providing the Services, maintain in place appropriate and reasonable security measures to ensure that the Customer Data is secure.

    5. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

    6. The parties acknowledge that: 1. when Train Visual processes any personal data on the Customer's behalf when performing its obligations under this agreement, the Customer is the controller and Train Visual is the processor for the purposes of the Data Protection Legislation. 2. the scope, nature and purpose of processing any personal data on the Customer’s behalf by Train Visual as well as the duration of the processing and the types of personal data and categories of data subject are set out in the Subscription Form. 3. the personal data comprised in the Customer Data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and Train Visual’s other obligations under this agreement.

    7. Without prejudice to the generality of clause 5.5, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data comprised in the Customer Data to Train Visual for the duration and purposes of this agreement so that Train Visual may lawfully use, process and transfer the personal data comprised in the Customer Data in accordance with this agreement on the Customer's behalf.

    8. Without prejudice to the generality of clause 5.5, Train Visual shall, in relation to any personal data comprised in the Customer Data processed in connection with the performance by Train Visual of its obligations under this agreement:

      1. process that personal data only on the documented written instructions of the Customer unless Train Visual is required by the laws of any member of the European Union or by the laws of the European Union applicable to Train Visual and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws).

      2. not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled: 1. the Customer or Train Visual has provided appropriate safeguards in relation to the transfer; 2. the data subject has enforceable rights and effective legal remedies; 3. Train Visual complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and 4. Train Visual complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;

      3. assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

      4. notify the Customer without undue delay on becoming aware of a personal data breach; and

      5. at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data.

    9. Each party shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

    10. The Customer consents to Train Visual appointing third-party processors of personal data under this agreement. In the event Train Visual does appoint such a third-party processor it will enter into an agreement with the third-party processor which reflects the requirements of Data Protection Legislation.

    11. Train Visual may, at any time on not less than 30 days' notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

  6. Third party providers
    The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Train Visual makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Train Visual. Train Visual recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Train Visual does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

  7. Train Visual’s obligations

    1. Train Visual undertakes that the Services will be performed with reasonable skill and care.

    2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Train Visual’s instructions, or modification or alteration of the Services by any party other than Train Visual or Train Visual’s duly authorised contractors or agents.

    3. If the Services and / or the HOW2s Application do not conform with the foregoing undertaking, Train Visual will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Train Visual:

      1. does not warrant that the Customer's use of the HOW2s Application will be uninterrupted or error-free; or that the HOW2s Application and/or the information obtained by the Customer through the HOW2s Application will meet the Customer's requirements; and

      2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and / or HOW2s Application may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

    4. For the avoidance of doubt this agreement shall not prevent Train Visual from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement including but not limited to the HOW2s Application.

  8. Customer's obligations

    1. The Customer shall:

      1. provide Train Visual with:

        1. all necessary co-operation in relation to this agreement; and

        2. all necessary access to such information as may be required by Train Visual; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

      2. without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;

      3. carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Train Visual may adjust any agreed timetable or delivery schedule as reasonably necessary;

      4. ensure that the Authorised Users use the HOW2s Application in accordance with the terms and conditions of this agreement and the terms of the EULA. The Customer shall be responsible for any Authorised User's breach of this agreement and the EULA;

      5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Train Visual, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

      6. ensure that its network and systems comply with the relevant specifications provided by Train Visual from time to time; and

      7. be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Train Visual’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet. For the avoidance of doubt Train Visual will not be responsible for any failure of the Customer to procure, maintain or secure its network connections and telecommunications links.

  9. Charges and payment

    1. The Customer shall pay the Fees to Train Visual for the User Subscriptions in accordance with this clause 9.

    2. The following fees are payable:

      1. Subscription Fees – The Subscription Fees shall amount to the figure provided in the Subscription Form;

      2. Additional Fees – which are the fees payable for any Additional Services that the Customer purchases from Train Visual under clause 2.3, such fees to be determined by Train Visual at the time such Additional Services are requested;

      3. Additional User Subscription Fees – the fees payable by the Customer for such additional User Subscriptions as purchased under clause 3;

      together the Fees.

    3. The Customer will pay the Subscription Fees and Additional Fees (if appropriate) for the Initial Subscription Term within 30 days of the date of an invoice submitted by Train Visual thereafter the Subscription Fees and Additional Fees (if appropriate) for each Renewal Period will be paid within 30 days of the date of an invoice submitted by Train Visual to the Customer.

    4. Any Additional User Subscription Fees will be payable within 30 days of the date of an invoice submitted by Train Visual to the Customer.

    5. If Train Visual has not received any payment due under this agreement within 30 days after the due date for it, and without prejudice to any other rights and remedies of Train Visual.

      1. Train Visual may, without liability to the Customer, disable the Customer's, and Authorised Users, password, account and access to all or part of the Services and Train Visual shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

      2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Train Visual’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

    6. All amounts and Fees stated or referred to in this agreement:

      1. shall be payable in pounds sterling;

      2. are exclusive of value added tax, which shall be added to Train Visual’s invoice(s) and be paid by the Customer at the appropriate rate.

    7. Train Visual shall be entitled to increase any of the Fees at the start of each Renewal Period upon one months’ prior notice to the Customer.

  10. Proprietary rights

    1. The Customer acknowledges and agrees that Train Visual and/or its licensors own all Intellectual Property Rights in the HOW2s Application and the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the HOW2s Application and / or Services.
  11. Confidentiality

    1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:

      1. is or becomes publicly known other than through any act or omission of the receiving party;

      2. was in the other party's lawful possession before the disclosure;

      3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

      4. is independently developed by the receiving party, which independent development can be shown by written evidence.

    2. Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.

    3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

    4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

    5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

    6. The Customer acknowledges that details of the Services including the content of the HOW2s Application and all related Intellectual Property Rights constitute Train Visual’s Confidential Information.

    7. The above provisions of this clause 11 shall survive termination of this agreement, however arising.

  12. Indemnity

    1. The Customer shall indemnify Train Visual against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses):

      1. arising out of or in connection with the Customer's use of the Services;

      2. suffered or incurred by Train Visual arising out of or in connection with the breach of any of the obligations and undertakings in clauses 2.4 - 2.9 above;

      3. suffered or incurred by Train Visual arising out of or in connection with the breach of any of the Authorised User’s obligations in accordance with clause 8.1.4 above.

    2. Liability under clause 12.1 is unlimited;

  13. Limitation of liability

    1. The HOW2s Application is designed for the purpose of assisting with the training of educators. The content and information, whilst based on research and experience is not to be taken as a definitive guide on teaching techniques. It is designed to be used in conjunction with other sources of learning. Therefore, except as expressly and specifically provided in this agreement:

      1. the Customer assumes sole responsibility for results obtained from the use of the HOW2s Application and/or Services by the Customer, and for conclusions drawn from such use. Train Visual shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Train Visual by the Customer in connection with the HOW2s Application and / or Services, or any actions taken by Train Visual at the Customer's direction;

      2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

      3. the HOW2s Application and/or Services are provided to the Customer on an "as is" basis.

    2. Nothing in this agreement excludes the liability of Train Visual:

      1. for death or personal injury caused by Train Visual’s negligence; or
      2. for fraud or fraudulent misrepresentation.
    3. Subject to clause 13.1 and clause 13.2:

      1. Train Visual shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and

      2. Train Visual's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

  14. Term and termination

    1. This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

      1. Train Visual gives the Customer 30 days’ notice in writing at any time.

      2. the Customer notifies Train Visual of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

      3. otherwise terminated in accordance with the provisions of this agreement;

      and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

    2. Without affecting any other right or remedy available to it, Train Visual may terminate this agreement with immediate effect by giving written notice to the Customer if:

      1. the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default for more than 14 days after being notified in writing to make such payment;

      2. the Customer commits a material breach of any other term of this agreement which breach is irremediable or, if such breach is remediable, fails to remedy that breach within a period of 7 days after being notified in writing to do so;

      3. the Customer breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;

      4. the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

      5. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

      6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of the Customer;

      7. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer;

      8. the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;

      9. a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;

      10. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer's assets and such attachment or process is not discharged within 14 days;

      11. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2.4 to clause 14.2.10 (inclusive);

      12. the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

      13. there is a Change of Control of the Customer; or

      14. on the date the United Kingdom (UK) ceases to be a member of the European Union (EU) or during any transitional period agreed by the UK Government and the EU during which the UK ceasing to be a member of the EU continues to be negotiated (Brexit), Train Visual reasonably believes the agreement has been adversely effected by Brexit.

    3. On termination of this agreement for any reason:

      1. all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;

      2. each party shall return and make no further use of any equipment, property and any other items (and all copies of them) belonging to the other party;

      3. Train Visual may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 5.2; and

      4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

  15. Force majeure
    Train Visual shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Train Visual or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

  16. Conflict
    If there is an inconsistency between any of the provisions in the main body of this agreement and the Subscription Form, the provisions in the Subscription Form shall prevail.

  17. Variation
    No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  18. Waiver
    No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

  19. Rights and remedies
    Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

  20. Severance

    1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

    2. If any provision or part-provision of this agreement is deemed deleted under clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

  21. Entire agreement

    1. Subject to clause 16, this agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

    2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

    3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

    4. Nothing in this clause shall limit or exclude any liability for fraud.

  22. Assignment

    1. The Customer shall not, without the prior written consent of Train Visual, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

    2. Train Visual may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

  23. No partnership or agency
    Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

  24. Third party rights
    This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

  25. Notices

    1. Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.

    2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

  26. Governing law
    This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.

  27. Jurisdiction
    Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).