Terms and Conditions

Circus Street London Limited Client Terms and Conditions

TERMS AND CONDITIONS ("Terms and Conditions") between CIRCUS STREET INC., a New York corporation, with a principal office located at 79 Madison Avenue. 8th Floor, New York, NY 10016 (“Circus Street”), and the Client named in the Order Form in connection with the Client obtaining access to use the Product pursuant to the Hosted Service (“Client” and, collectively, with Circus Street “Parties”).

ARTICLE I

DEFINED TERMS
Section 1.1 Unless the context shall otherwise require, the following terms used in these Terms and Conditions shall have the following meanings:

(a) “Access Term” means the initial period of time during which the Lessons ordered may be accessed by Learners, as may be set out in the Order Form or, if not set out there, it shall be twelve (12) months, beginning on the Launch Date.
(b) “Administrator” means an employee, officer, director, contractor (acting in a similar role to an employee) or authorized representative nominated and designated by the Client to deal with administrative functions relating to the Client's and its Subsidiaries’ and Learners’ use of and access to the Lessons and the Hosted Service including for Registration and support.
(c) “Affiliate” means anyone who controls or is controlled by the applicable Party, or anyone controlled by someone who controls the applicable Party; where “control” means the power directly or indirectly to secure that the affairs of the controlled person are conducted in accordance with the wishes of the controlling person: (i) by means of the holding of shares, the possession of voting securities, or any other contract, in or in relation to that controlled person; or (ii) by virtue of any powers conferred by the articles of incorporation, or any other document, regulating that controlled person.
(d) “Agreement” means these Terms and Conditions, and the applicable Order Form, and any changes or amendments thereto in accordance with Section 16.9 or Section 16.10.
(e) “App” means the mobile and tablet application software, the data supplied with the software and the associated media provided by Circus Street through which a Learner may access certain features of the Product from time to time.
(f) “Authorized Requester” means an Administrator who is authorized by the Client from time to time to request Individual Reports or Team Reports (or the designated substitute or replacement for that person).
(g) “Business Day” means any day other than a (a) Saturday, (b) Sunday, or (c) day when banks are not open for business in The City of New York.
(h) “Client Brand” means any trademark, service mark, trade name, brand, logo or domain name owned or used by the Client (whether registered or unregistered) (and not belonging to Circus Street or Circus Street’s Affiliates or other licensors or suppliers).
(i) “Client Content” means any Client specific content, including the Client Brand and User Data, for use in or to be uploaded to the Product or provided or made available by the Client to Circus Street, and which Circus Street had no part in creating, developing or designing, and which may be more particularly described as being required to be delivered in or pursuant to the applicable Order Form.
(j) “Client Systems” means the computer systems operated by or for the Client or its Affiliates or Users and any mobile devices owned or provided to Users (whether provided to Users by the Client or its Affiliates or not) and used in conjunction with the Product.
(k) “Commencement Date” means the date on which the applicable Order Form commences, and unless otherwise agreed in writing by the Parties, this shall be the date on which the last Party signs that Order Form.
(l) “Confidential Information” means any information, in any form or medium, which is obtained or received by or on behalf of one Party or its Affiliates from or on behalf of the other Party or that other Party’s Affiliates under or in connection with this Agreement or any other agreement between the Parties and which is either marked as, or which a reasonable person would reasonably consider to be, confidential, whether disclosed or obtained before, on or after the date of this Agreement together with any reproductions of such information or any part of this information, and this includes (i) where Circus Street or its Affiliate is the discloser, the Product and Product Content; and (ii) where the Client or its Affiliate or User is the discloser, the Client Content.
(m) “Consulting Services” means services provided or to be provided by Circus Street under this Agreement other than the Hosted Service, including anything described as these services in the Order Form, creation of Product Developments, or provision of User Data and Reports.
(n) “Consulting Services Fee” means the fee charged by Circus Street for provision of Consulting Services, which shall be at the rate set out in the Order Form or if not there then at Circus Street's standard rates for provision of those Consulting Services from time to time.
(o) “Contaminants” means any computer software routine intended or designed to disable, damage, erase, disrupt or impair the normal operation of, or provide unauthorized access to, or modification or monitoring of, any computer system or any software or information stored on any computer system, including viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors or trap door devices.
(p) “Data Protection Laws” means all applicable data protection laws in relation to this Agreement, including but not limited to relevant laws of the United States, the General Data Protection Regulation EU 2016/679 (“GDPR”), and any national laws or regulations constituting a supplement, replacement or successor data protection regime to that governed by GDPR (including the UK’s Data Protection Act 2018).
(q) “Data Protection Particulars” means the details describing Circus Street’s processing of User Data under or pursuant to this Agreement, as set out in Schedule 1 below.
(r) “Electronic Signature Provider” means a trusted third party electronic signature provider that is able to verify that an electronic signature has come from the relevant Party.
(s) “Enroll” means the Client's request with Circus Street (using Circus Street's process) for a Lesson to be accessed by an individual learner Registered by the Client (and “Enrollment” shall be construed accordingly).
(t) “Fee” means the License Fee or the Consulting Services Fee.
(u) “Full Access License” means the right for an individual Learner to have access to all Lessons in the Lesson Catalog, as ordered by the Client for its Learners in accordance with the applicable Order Form.
(v) “Good Industry Practice” means in relation to any undertaking and any circumstances, the exercise of that degree of professionalism, skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of activity under the same or similar circumstances.
(w) “Hosted Service” means the provision by Circus Street of access to Lesson Licenses or Full Access Licenses to Learners pursuant to this Agreement, together with any support for that access in accordance with Article V.
(x) “Individual Report” means a Report that relates to an individual and their use of or access to the Lessons and which may provide comparator information against a benchmark.
(y) “Intellectual Property Rights” means all present and future copyright and related rights, trademarks and service marks, trade names and domain names, rights under licenses, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and 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 now or in the future in any part of the world.
(z) “Launch Date” means the date stipulated in the Order Form on which a Learner is to be first given access to a Lesson by Circus Street, which shall be the date that is three (3) months after the Commencement Date (unless the Order Form stipulates another date).
(aa) “Learner” means an employee, officer, director, contractor (acting in a similar role to an employee) or authorized representative of the Client or the Client’s Subsidiary who is Registered and Enrolled pursuant to the Order Form.
(bb) “Lesson” means the part of the Product which is a distinct web-based or app-based training lesson identified as such by Circus Street and made available for access to the Client and the Client’s Subsidiaries and Learners from time to time.
(cc) “Lesson Catalog” means the complete catalog of Lessons made available by Circus Street for use or access by the Client and the Client’s Subsidiaries and Learners from time to time.
(dd) “Lesson License” means an individual Learner’s access to an individual Lesson from the Lesson Catalog, as ordered by the Client for its Learners in accordance with the applicable Order Form.
(ee) “Liability” means liability in or for breach of contract (including liability under any indemnity), Negligence, tort (whether intentional or not), misrepresentation, restitution, breach of statutory duty or any other cause of action whatsoever relating to or arising under or pursuant to or in connection with this Agreement and any other agreement between the Parties, including, without limitation, liability expressly provided for under this Agreement or any other agreement between the Parties or arising by reason of the invalidity or unenforceability of any term of this Agreement or any other agreement between the Parties (and for the purposes of this definition, all references to “this Agreement” shall be deemed to include any collateral contract and all Order Forms, in the aggregate).
(ff) “License” means the license granted under Article II.
(gg) “License Fee” means the fee set out in the applicable Order Form (or otherwise expressly agreed in writing between Circus Street and the Client) for Learners’ access to the Lesson Licenses and Full Access Licenses.
(hh) “Minimum Specification” means any minimum technical specification for accessing the Product, provided by Circus Street in the App, on the Website or to the Client or User from time to time.
(ii) “Negligence” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).
(jj) “Order Form” means the written order form, in the form stipulated or provided by Circus Street and attached as Schedule 2 containing the details of the specific products or services to be provided or supplied by or on behalf of Circus Street to the Client and of the fees to be paid to Circus Street by the Client.
(kk) “Party” means either the Client or Circus Street.
(ll) “Policies” means any health and safety, bribery and anti-corruption, equality, ethical working and security or other policies agreed in writing between the Parties from time to time (such agreement not to be unreasonably withheld or delayed).
(mm) “Product” means the web-based and/or app-based training product specified in the applicable Order Form and supplied, created or developed by or on behalf of Circus Street, and any other related documentation or material (including any Product Data and Reports) supplied, created or developed by or on behalf of Circus Street in conjunction with that product.
(nn) “Product Content” means any information and materials (including works of authorship, files, processes, systems, ideas, know-how, concepts, methodologies, flowcharts, manuals, data, databases, digital content, database structures, content, descriptions, documents, notes, records, results, reports, text, research, lists, diagrams, artwork, designs, sketches, models, photographs, drawings, plans, specifications, images, logos, styles and graphics (in whatever form and on whatever media)) provided by Circus Street from time to time as part of the Product.
(oo) “Product Data” means any data about users generally (rather than the Users specifically, but which may be partially derived from User Data) obtained by Circus Street, including any related to the use of and access to the Lessons by learners (and which may include Learners). This may include data that enables benchmarking the use of and access to Lessons.
(pp) “Product Developments” means any modules, configurations or customizations to the Lessons or their delivery or provision that are developed by Circus Street for the Client or Users.
(qq) “Product Specification” means any specification for the Product, provided by Circus Street on the Websites, in the App or in writing to the Client from time to time.
(rr) “Registration” means the uploading of individual learner details by or on behalf of the Client or learner (or Circus Street on behalf of the Client) onto the Product, Website or the App or otherwise as permitted by Circus Street, to create an account for the learner in order for the learner to access the Product (and “Registered” shall be construed accordingly).
(ss) “Report” means a report provided or made available by Circus Street to the Client around Learners’ use of or access to the Lessons.
(tt) “Service Level Schedule” means Circus Street’s service levels for provision of access to the Hosted Service, as set out in Schedule 3.
(uu) “Services” means the Hosted Service or Consulting Services.
(vv) “Subsidiary” means any Affiliate who is controlled by the applicable Party (where “control” has the meaning given to it in the definition of “Affiliate”) from time to time.
(ww) Team Report” means a Report that relates to a team of Learners and their use of or access to the Lessons and which may provide comparator information against a benchmark.
(xx) “Terms and Conditions” means these Circus Street terms and conditions, together with any variations made in accordance with Section 16.9 or Section 16.10.
(yy) “User” means an Administrator or Learner.
(zz) “User Data” means any data about Users obtained by Circus Street, including related to the use of and access to the Lessons by Learners.
(aaa) “User Rules” means the standard user rules which Circus Street requires Users to agree to from time to time including in relation to their access to and use of the Lessons.
(bbb) “Websites” means the Circus Street websites, whose URLs are currently circusstreet.com or any relevant subdomain, such as my.circusstreet.com or a Client specific subdomain, where “my” is substituted with a Client name, e.g. [clientname.circusstreet.com].
(ccc) “Year” means the period of one year commencing on the Commencement Date of the first Order Form agreed between the Parties, or commencing on an anniversary of such date.

Section 1.2 References to Articles, Sections and Schedules are to articles, sections and schedules to these Terms and Conditions. These Terms and Conditions include the Schedules.

Section 1.3 The headings of the Articles and Sections are inserted for convenience only and shall not affect the interpretation or construction of this Agreement.

Section 1.4 Unless the context otherwise requires: words in the singular shall include the plural and in the plural shall include the singular; words imparting a gender shall include the other gender and the neutral; and references to persons shall include an individual, company, corporation, firm, partnership or limited liability partnership.

Section 1.5 References to “writing” or “written” include the electronic form.

Section 1.6 References to “includes” or “including” or like words or expressions shall mean without limitation.

Section 1.7 References to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification).

Section 1.8 Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.

Section 1.9 An obligation on a Party includes an obligation to procure that its Affiliates comply with that obligation.

ARTICLE II

GRANT OF LICENSE
Section 2.1 In consideration of the Client’s payment of the License Fee and the Client’s compliance with this Agreement and all Users’ compliance with the User Rules, Circus Street hereby grants to the Client a non-exclusive, non-transferable, non-sublicensable license to the Client and its Subsidiaries to access and use the Product and Product Content and to permit Learners to access and use the Product and Product Content by way of the Hosted Service, in each case only during the Access Term and in accordance with this Agreement.

Section 2.2 The Client shall use the Product and Product Content for the Client’s and its Subsidiaries’ ordinary internal business purposes and shall not make the Product or Product Content available for use or access by any third party other than its Subsidiaries, except to the extent that Circus Street expressly permits in writing.

Section 2.3 The Client may enable each Learner to print off extracts from the Product in hard copy solely for their own use in accordance with this Article II, and provided that any and all copyright and proprietary notices are kept intact. The Client shall not otherwise copy, reproduce, alter, vary or modify the Product or Product Content or use the Product or Product Content or transfer the Product or Product Content to any third party (other than its Subsidiaries), nor allow a User to do so.

Section 2.4 Any rights in respect of the Product or Product Content not expressly granted in this Agreement by Circus Street are reserved by Circus Street and Client shall have no rights therein or claims thereto.

ARTICLE III

USERS AND ADMINISTRATORS
Section 3.1 The Client shall ensure that each User agrees to comply with, and does comply with, the User Rules. The Client shall be liable for any failure by a User to comply with the User Rules and any obligation or agreement to be performed or observed by a User in accordance with this Agreement.

Section 3.2 The Client shall Register its Learners through its Administrator.

Section 3.3 The Client undertakes that the maximum number of Learners or Lesson Licenses or Full Access Licenses that it Registers and allows to Enroll shall not exceed the number of Learners or Lesson Licenses or Full Access Licenses specified in the Order Form (or as otherwise expressly agreed in writing by Circus Street).

Section 3.4 If the Client would like to make access to the Product available to any more Learners or for any more Lesson Licenses or Full Access Licenses than is specified within the parameters ordered, then:
(a) the Client shall first contact Circus Street to discuss any additional License Fee with a new agreement for additional Learners or Lesson Licenses or Full Access Licenses (and Access Term for those additional Learners or Lesson Licenses or Full Access Licenses); and
(b) the Client shall agree to pay any additional License Fee for those additional Learners or Lesson Licenses or Full Access Licenses prior to such access.
The amount for payment of the additional Learners or Lesson Licenses or Full Access Licenses shall be as set out in the Order Form or agreed in writing between the Client and Circus Street (or otherwise according to Circus Street’s standard rates from time to time for additional Learners or Lesson Licenses or Full Access Licenses).

Section 3.5 Circus Street may provide data or information to help the Client to monitor how many of its Lesson Licenses or Full Access Licenses have been used, but it is the Client’s responsibility to check that it has ordered sufficient Lesson Licenses or Full Access Licenses for its Learners and obtain Lesson Licenses or Full Access Licenses for its Learners as it needs for its purposes.

Section 3.6 The Client agrees and undertakes so that:

(a) it will not (except to the extent that the Order Form provides otherwise, or Circus Street expressly agrees in writing) allow any username or password assigned to a User (including during Registration or for Enrollment) to be used by more than that one individual User or to be transferred or made available to any other User;
(b) the passwords for the Users are kept strictly confidential and shall not be disclosed to any third party, including other Client personnel, without Circus Street’s prior written consent;
(c) it will use commercially reasonable best efforts to prevent any access to or use of the Product by anyone other than the Learner;
(d) it shall be liable for any use of or access to the Product using a User’s username and password;
(e) the User is at all times an employee, officer, director, contractor (acting in a similar role to an employee) or authorized representative of the Client or of the Client’s Subsidiary;
(f) the Learner is someone for whom the Client has already Registered as a User with Circus Street and has agreed to pay the License Fee to Circus Street in accordance with the applicable Order Form for such Learner to have access to and use of the Product and Product Content;
(g) any person who is stated by or on behalf of the Client to be an Administrator, including an Authorized Requester, is authorized to act in that role and represent the Client and any Subsidiary of the Client in that capacity;
(h) it has obtained permission from the owners of any mobile telephone or handheld devices (if not owned by the Client or the Client’s Affiliate or Learner) that are being used to access the Product to download the App onto such devices; and
(i) it accepts responsibility in accordance with the terms of this Agreement for the use of the App or the Product on or in relation to any mobile telephone or handheld devices, whether or not they are owned by the Client or the Client’s Affiliate or Learner.

Section 3.7 The Client shall:

(a) inform Circus Street in writing immediately if it becomes aware or suspects that the Product or a password or username is being used or accessed by anyone other than the relevant User or by anyone who is no longer a User, in which case Circus Street shall be entitled to cancel that password or username and/or disable access to and use of the Product without notice to the Client or User in addition to any other rights and remedies it may have; and
(b) pay Circus Street for all losses, damages, costs and expenses reasonably suffered or incurred by Circus Street (including loss of revenue) as a result of any unauthorized use of or access to the Product or any username or password caused by the Client’s failure to comply with, or breach of Section 3.3 or Section 3.6 (a "Claim"). If Circus Street receives notice of any Claim or alleged Claim asserting the existence of any matter of a nature as to which Circus Street is entitled to be paid, indemnified or held harmless, Circus Street will promptly notify the Client in writing with respect thereto, but the failure to notify the Client will not relieve the Client of any liability that it may have to Circus Street, except to the extent that Client demonstrates that the defense of such Claim was prejudiced by Circus Street's failure to give such notice. The Client will have the right to defend against any such Claim provided (a) that the Client, within twenty (20) days after the giving of such notice by Circus Street, notifies Circus Street in writing that (i) the Client disputes such claim and gives reasons therefor, and (ii) the Client will, at its own cost and expense, defend the same, and (b) such defense is instituted and continuously maintained in good faith by the Client. In any event, the Client will keep Circus Street fully advised as to the status of such defense. If the Client assumes the defense of any action or proceeding (x) no compromise or settlement of such Claims may be effected by the Client without Circus Street's written consent unless (A) there is no finding or admission of any violation of any legal requirement or any violation of the rights of any person and no effect on any other Claim that may be made against Circus Street, and (B) the sole relief provided is monetary damages that are paid in full by the Client; and (y) Circus Street will have no liability with respect to any compromise or settlement of such Claims effected without its consent.

Section 3.8 Circus Street reserves the right to edit, amend or issue new usernames and passwords or require the Client or Users to change a username or password at any time.

ARTICLE IV

WARRANTIES AND DISCLAIMERS
Section 4.1 Circus Street warrants that it:

(a) shall, from the Launch Date, provide pre-assessments and access to the Lessons within the Lesson Licenses and Full Access Licenses ordered by the Client for the Learners through the provision of a log-in facility or, if the Learner already has a log-in, Circus Street's provision of the availability of a pre-assessment and access to the Lessons;
(b) shall use reasonable skill and care in the provision of the Services and performance of its obligations under this Agreement in accordance with Good Industry Practice;
(c) has all necessary rights, permissions, consents and licenses to enter into and perform its obligations and exercise its rights under this Agreement without breaching any agreement and without infringing any third party rights (including any Intellectual Property Rights in the Product and Product Content);
(d) shall (subject to any other provision in this Agreement) provide access to the relevant part of the Product and Hosted Service in accordance with the Product Specification to the Learners during the Access Term;
(e) shall use commercially reasonable best efforts in accordance with Good Industry Practice not to introduce into the Product or Hosted Service any Contaminants;
(f) shall use an industry-recognized security software program (to which latest recent patches and updates have been applied) in accordance with Good Industry Practice to detect the presence of any Contaminant and that, upon detection of any Contaminant, it shall be promptly eradicated or quarantined by Circus Street; and
(g) shall materially conform to the Policies.

Section 4.2 Except as set out in Section 4.1, Circus Street gives no warranty:

(a) as to the accuracy, completeness or suitability of the Product or Product Content or Lesson, or that the Product or Product Content or Lesson or the App or Website will meet any of the Client’s or its Subsidiary's or Learner's present or future specific individual needs or requirements (other than to meet any Consulting Services that Circus Street is required to provide);
(b) that the Product will be compatible with the Client Systems other than those meeting the Minimum Specification; or
(c) that access to the Hosted Service, Product, the App or Website will be delivered without interruption, fault or error. It may be necessary to suspend or restrict access to the Hosted Service, Product, App or Website at any time for any reason including for any urgent or planned maintenance.

Section 4.3 Circus Street shall provide the Services and Products in accordance with what is stipulated in the Order Form, but Circus Street does not otherwise warrant that the Services or Products will meet any individual requirements of the Client (other than any requirements specifically set out in this Agreement). Circus Street is not responsible for anything not expressly stipulated in the Order Form that Circus Street will provide. The Client is responsible for anything that it needs to obtain from someone other than Circus Street. Except for any matter upon which Circus Street specifically agrees in writing with the Client to advise or do, Circus Street shall not be responsible or have any Liability for advising on, or failing to advise on, or doing, or failing to do, anything else.

Section 4.4 Circus Street shall use its commercially reasonable best efforts to ensure that the information and ideas contained, suggested or referenced in the Product and Product Content are accurate and up-to-date. The Product and Product Content are for general guidance only. The Client agrees that it is its responsibility to obtain professional or specialist advice before taking, or refraining from, any action on the basis of the Product or any Product Content.

Section 4.5 Unless otherwise agreed in writing in the Order Form, Circus Street shall provide all Services and Products in the English language only. Circus Street shall not be responsible for any translations from English.

Section 4.6 Where Circus Street is providing any Consulting Services, it shall use commercially reasonable best efforts to perform its obligations within any timescales set out in the Order Form, but Circus Street shall not have any Liability for any delays or failure to accurately perform its obligations:

(a) if it has used those efforts; or
(b) to the extent caused by any failure or delay in anything that the Client or the Client's Affiliates or Users need to provide or by any breach by the Client of this Agreement.
If there is any slippage in time, Circus Street shall use commercially reasonable best efforts to reschedule delayed tasks to a mutually convenient time.

Section 4.7 The Service Level Schedule shall apply in relation to Circus Street's provision of the Hosted Service.

Section 4.8 Subject to the remedies under the Service Level Schedule, Circus Street 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 not within its control, including the internet, and the Client acknowledges that access to the Hosted Service, Product, App or Website may be subject to limitations, delays and other problems inherent in the use of such communications facilities, and accordingly Circus Street does not warrant that access to the Hosted Service, Product, App or Website will be uninterrupted or error-free or that it will be available at any particular speed.

Section 4.9 The Product, the App, the Website or email alerts may include links to third party websites which are beyond Circus Street’s control. Circus Street does not endorse such websites or their content and makes no representations as to the quality, suitability, functionality or legality of any such websites.

Section 4.10 Although Circus Street uses a firewall and takes steps against Contaminants and uses virus and content filtering software in accordance with Good Industry Practice, Circus Street cannot guarantee 100% security and shall not have any Liability for damage to, unauthorized access to, or Contaminants that may affect, the Product Content or any computer equipment, software, data or other property. Circus Street shall also not have any Liability for the actions of third parties in breaching any security measures.

Section 4.11 Except where expressly provided for within this Agreement, Circus Street excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Products and Services.

ARTICLE V

SUPPORT SERVICES
Section 5.1 During the Access Term, as part of the overall Hosted Service, Circus Street shall provide support Services to the Client (by email) during its regular support hours on Business Days as set out in the Service Level Schedule.

Section 5.2 The Client shall report any problems or errors using the method set out in the Service Level Schedule, giving full details of: (a) the Client’s information; (b) the relevant User; (c) a full description of the problem or error; and (d) any other relevant information reasonably requested by Circus Street.

Section 5.3 Circus Street shall not provide support Services where problems or errors result from: (a) use of the Product contrary to Circus Street's instructions or this Agreement; (b) the Client’s or User’s Negligence; or (c) a malfunction of hardware, Client Systems or any software (other than the Product itself and any other software which Circus Street may have provided to Users in connection with the Product).


ARTICLE VI

CLIENT RESPONSIBILITIES
Section 6.1 The Client shall not use or access the Product for any illegal or unlawful purpose, or any purpose which may bring Circus Street, or its business, products or the services provided by Circus Street under this Agreement, into disrepute.

Section 6.2 The Client shall comply with all reasonable instructions as to the use of and access to the Product which may be given by Circus Street from time to time in writing or posted on the Product, the App or on the Website from time to time.

Section 6.3 The Client shall be responsible for ensuring that the Client Systems meet the Minimum Specification indicated by Circus Street for the use thereof. Circus Street shall not be responsible for any failure of the Client or the Client’s Subsidiary or a User to access the Product to the extent caused by a failure of Client Systems or the Client to ensure that the Client Systems meet the Minimum Specification.

Section 6.4 The Client hereby grants to Circus Street a non-exclusive, non-transferable License to use the Client Content until the termination of the Access Term only for the purposes of providing the Services under this Agreement.

Section 6.5 The Client shall not knowingly or negligently upload, post, publish, transmit or transfer to the Product, the App or Website or Circus Street any Client Content or any software, files or other material, or use any Client Content, which: (a) is defamatory, illegal, obscene, threatening, abusive, or offensive (or is likely to be perceived as such); (b) is in breach of or infringes any Intellectual Property Rights; (c) is a Contaminant or otherwise likely to cause damage to, or adversely affect, data, software or the performance or availability of the Product, the App or Website; (d) is in breach of any applicable law, regulation, by-law, code of practice, license, permit, authorization or registration; (e) contains any unauthorized advertising, promotion or solicitation; or (f) materially misrepresents facts which may be damaging or injurious to Circus Street or its clients or users.

Section 6.6 Without prejudice to the other rights and remedies of Circus Street, Circus Street reserves the right to remove or amend any such software, files, Client Content or material which would be a breach of these prohibitions.

Section 6.7 The Client shall not:

(a) interfere with any other person’s use of a Product, the App or the Website or otherwise act in a way that negatively affects another client’s or user’s use of or access to the Product, the App or Website; or
(b) cause any of the Product, the App or Website to be interrupted, damaged, rendered less efficient or in any way impaired.
Section 6.8 Except as may be expressly stated otherwise, Circus Street does not monitor, approve, endorse or exercise editorial control over any Client Content, other subscribers or third parties, and, accordingly, Circus Street gives no warranty, representation or undertaking in respect of such information.
Section 6.9 From time to time Circus Street may issue updates to the App. Depending on the update, the Client and any Learner may not be able to access or use some or all of the Product until the Client and the Learner has downloaded the latest version of the App. All such updates to the App shall be subject to the Agreement as amended as provided in Section 16.9 or Section 16.10.

Section 16.10 The Client shall make its own copies of User Data when it needs, or shall request from Circus Street the delivery of User Data in a format reasonably required as part of Circus Street's provision of Consulting Services.

Section 16.11 The Client shall promptly provide to Circus Street Client Content, information and assistance (including anything identified in the Order Form to be provided to Circus Street or as reasonably required by Circus Street) that will enable Circus Street to carry out fully, accurately and promptly its obligations under this Agreement.

ARTICLE VII

FEES AND PAYMENTS
Section 7.1 Unless otherwise set out in the Order Form or expressly agreed in writing by Circus Street, Circus Street shall invoice the Client for the License Fee in advance of the Client’s and its Subsidiaries' and its Learners' ability to access or use any of the Lessons within the Lesson License or Full Access License for the Access Term.

Section 7.2 Unless otherwise set out in the Order Form or expressly agreed in writing by Circus Street, Circus Street shall invoice the Client for the Consulting Services Fee monthly in arrears for the Consulting Services supplied in that month (provided that Circus Street may require payment for any known Consulting Services Fees in advance of providing the Consulting Services).

Section 7.3 The Client shall pay Circus Street for the Fee within twenty eight (28) days of the date of Circus Street's invoice.

Section 7.4 All sums due to Circus Street are exclusive of tax (if applicable) which the Client shall pay to Circus Street in addition at the same time as payment of the Fee.

Section 7.5 No payment shall be considered to be paid until it is received by Circus Street in cleared funds. The Client and its Subsidiaries and its Learners shall not have a right to access or use a Lesson until the Client has paid the relevant Fee and taxes applicable in full.

Section 7.6 Payment shall be in the currency of Circus Street's invoice or in such other currency as is stipulated in the Order Form for the Fees.

Section 7.7 Each Party bears its own bank's costs for making or receiving payment.

Section 7.8 If and to the extent there is any dispute over the amount of Fees due, the Client shall pay all undisputed amounts and clearly and without any delay explain in writing its reasons for withholding any other payment (which the Client shall pay in full without delay as soon as the dispute is resolved). Other than that, payment of all sums due to Circus Street under the Order Form shall be made by the Client in full without any set-off, deduction or withholding whatsoever.

Section 7.9 If the laws of any part of the territory where the Client is based require the Client to withhold tax on any payment which the Client is obliged to make to Circus Street under this Agreement, the Parties shall use their respective commercially reasonable best efforts to conduct their accounting arrangements where legally possible to avoid the application of withholding tax (such as for the Client to contract and pay through a company in a jurisdiction where withholding tax would not apply). If withholding tax does apply, the Client shall:

(a) obtain a proper receipt and discharge for the tax so deducted and forward it without delay to Circus Street;
(b) do all such other things and take such other steps as may be reasonably required to enable Circus Street to obtain any tax credit which may be available to it in connection with any tax payment; and
(c) in the event that any taxes deducted cannot be reclaimed or used by Circus Street as a credit against any tax payable by Circus Street, at such time as Circus Street reasonably requires make up to Circus Street any shortfalls in payment attributable to such tax deductions.

Section 7.10 If the Client is late in paying any part of any monies due to Circus Street (under this Agreement or any other agreement between Circus Street and the Client), Circus Street may (without prejudice to any other right or remedy available to it whether under this Agreement or any other agreement between Circus Street and the Client or by any statute, regulation or by-law) do either or both of the following:

(a) charge interest at the rate of 8% per annum and other charges on the amount due but unpaid from time to time from the due date until payment (after as well as before any potential judgment), such interest to run from day to day and to be compounded monthly; or
(b) give the Client at least five (5) Business Days’ notice that it is suspending the Client’s and its Subsidiaries' and Users’ access to the Product with immediate effect until Circus Street receives the outstanding amounts in full.

ARTICLE VIII

INTELLECTUAL PROPERTY RIGHTS
Section 8.1 The Client hereby acknowledges that, as between it and Circus Street, all Intellectual Property Rights in the App, the Product and all Product Content are owned by or licensed to Circus Street. Except pursuant to the License, nothing in this Agreement shall operate to transfer or grant any rights in any Intellectual Property Rights in the App, the Product or Product Content to the Client, a User or any person.

Section 8.2 Circus Street shall own all Intellectual Property Rights in Product Developments, subject to it either replacing any Client Content with generic content or reproducing such Product Developments without Client Content. To the extent that Circus Street is not otherwise the owner, the Client hereby assigns to Circus Street (by way of present and future assignment of copyright) all such Intellectual Property Rights in Product Developments (without Client Content).

Section 8.3 Circus Street hereby acknowledges that, as between it and the Client, all Intellectual Property Rights in the Client Content are owned by or licensed to the Client. Except for the Client Content license in this Agreement, nothing in this Agreement shall operate to transfer or grant any rights in any Intellectual Property Rights in the Client Content to Circus Street or any person.

Section 8.4 Circus Street reserves the right to revise or amend the format and/or content of the Product and Product Content from time to time, provided that if it does so, it shall use commercially reasonable best efforts to ensure that there is no adverse change in the content, quality or performance of the Product or the Product Content.

Section 8.5 Except to the extent expressly permitted in this Agreement or at law, the Client shall not reproduce, copy, publish, post, broadcast, transmit, disseminate, sell, license, distribute, circulate, make available, alter, vary, modify, translate, disassemble, decompile, recompile or reverse engineer the Product or Product Content or infringe Circus Street’s Intellectual Property Rights, or enter into an arrangement, agreement or understanding which would or might allow or encourage a third party to do so. Circus Street shall make available any necessary interoperability information on request, subject to the Client first paying Circus Street’s reasonable fee for providing such information. Any reproduction of the Product or Product Content shall be the property of Circus Street.

Section 8.6 The Client shall promptly inform Circus Street in writing in the event that it becomes aware of any unauthorized use of or access to the Product or Product Content or any actual or suspected infringement of any of Circus Street’s Intellectual Property Rights, and the Client shall provide all further cooperation reasonably requested by Circus Street.

Section 8.7 Circus Street shall promptly inform the Client in writing in the event that it becomes aware of any unauthorized use of or access to the Client Content or any actual or suspected infringement of any of the Client's Intellectual Property Rights, and Circus Street shall provide all further cooperation reasonably requested by the Client.

Section 8.8 In the event of any claim being brought against the Client or the Client’s Subsidiary or a User that the normal use of the Product or Product Content in accordance with this Agreement infringes the Intellectual Property Rights of a third party (a “Claim”), Circus Street shall indemnify the Client against any damages that are awarded by a court of competent jurisdiction or agreed by way of settlement to be paid to any such third party in respect of such Claim provided that the Client and its Subsidiaries:

Section 8.9 The Client shall permit Circus Street and Circus Street’s representatives at all reasonable times and on reasonable prior written notice to enter such places and inspect such equipment under the Client’s and its Subsidiaries’ control and monitor the Client’s and its Subsidiaries’ and Users’ use of and access to the Product and Product Content (whether remotely or not) to verify that the Client and the Client’s Subsidiaries and Users are complying with the terms of this Agreement and the User Rules and not infringing Circus Street’s or its licensors’ Intellectual Property Rights.

Section 8.10 The Client acknowledges that it has no right to have access to the App in source code form.

Section 8.11 Client shall not, during the term of this Agreement or after termination regardless of the reasons for termination, (i) attack the title or any rights of Circus Street in or to the Product and the Intellectual Property Rights, or (ii) claim any right, title or interest in or to the Product and the Intellectual Property Rights, except to the extent of the rights granted under this Agreement.

ARTICLE IX

CONFIDENTIALITY
Section 9.1 Neither Party shall use or disclose the Confidential Information of the other Party except:

(a) for the purposes of the proper performance of its obligations or exercise of its rights under this Agreement;
(b) as otherwise permitted by this Agreement; or
(c) with the prior written consent of the other Party.

Section 9.2 A Party may disclose Confidential Information of the other Party to its User, Subsidiary, employee, officer, director, contractor, consultant, subcontractor, supplier, customer, agent, professional adviser, insurer or third party service provider, where necessary to exercise its rights or properly perform its obligations under this Agreement, provided that it shall do so subject to obligations equivalent to those set out in this Article IX. Each Party shall use all commercially reasonable best efforts to ensure that any such User, Subsidiary, employee, officer, director, contractor, consultant, subcontractor, supplier, customer, agent, professional adviser, insurer or third party service provider complies with such obligations.

Section 9.3 If either Party is required to disclose the Confidential Information of the other Party under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction, then the Party so required may disclose the Confidential Information to the extent required but shall, prior to any disclosure where practicable and legally permissible, give the other Party as much notice thereof as practicable and inform in writing and consult with the other Party and, at the other Party's request and expense, fully cooperate with the other Party and assist that other Party in opposing any such disclosure.

Section 9.4 The obligations of confidentiality in this Article IX shall not extend to any matter which either Party can show:

(a) is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or
(b) was in its written records prior to receipt; or
(c) was independently developed by it; or
(d) was independently disclosed to it by a third party entitled to disclose the same and not subject to a confidentiality obligation.

Section 9.5 Circus Street may identify the Client as its client and the type of Services provided by Circus Street to the Client, provided that in doing so Circus Street shall not (without the Client’s prior written consent) reveal any Confidential Information of the Client.

Section 9.6 The obligations of this Article IX shall continue after termination or expiration of this Agreement for whatever reason.

ARTICLE X

DATA PROTECTION
Section 10.1 The subsections of this Article X only apply to the extent necessary to fulfill the requirements of any applicable Data Protection Laws.

Section 10.2 In performing this Agreement, the Client and Circus Street shall:

(a) comply with all applicable Data Protection Laws; and
(b) ensure that its Users, employees, officers, directors, contractors, consultants, subcontractors and suppliers, comply with all applicable Data Protection Laws.

Section 10.3 The Parties agree that, to the extent possible, the Client shall ensure that any data is made anonymous and does not contain any Personal Data, or that Personal Data is minimized, before it is provided to Circus Street. The Parties agree and acknowledge that to the extent that the data provided by the Client or its Subsidiary or a User to Circus Street contains Personal Data (which may include User Data) and in respect of Circus Street's obligations under this Agreement as to any such "Personal Data", Circus Street is a "Processor" and the Client is the "Controller" (as those terms, together with the terms "processing" and “process” and "Data Subject" are defined in the Data Protection Laws), and the following provisions in this Article X apply in respect of such Personal Data.

Section 10.4 Circus Street shall process the Personal Data only to the extent, and in such a manner, as is necessary for the purposes of providing the Services under this Agreement and in accordance with the Data Protection Particulars, and in accordance with the Client's documented instructions from time to time and shall not process the Personal Data for any other purpose. This is unless required otherwise by applicable laws in the United Kingdom (of England, Wales, Scotland and Northern Ireland) or the European Economic Area; in such a case, Circus Street shall inform the Client of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

Section 10.5 Circus Street reserves the right to suspend provision of any part of the Services to a particular person at the Client or the Client’s Subsidiary (including any Individual Reports or Team Reports) until that person shows to Circus Street’s reasonable satisfaction that they are authorized to be receiving the relevant Personal Data or other User Data on behalf of the Client. Notwithstanding the foregoing, Circus Street shall be entitled to rely on the instruction of any person whom Circus Street reasonably believes to be authorized on behalf of the Client.

Section 10.6 In accordance with the Client's reasonable request, Circus Street shall provide sufficient guarantees to the Client as to Circus Street's processing of the Personal Data and in accordance with Data Protection Laws. As Data Controller, the Client shall take overall responsibility for ensuring that Circus Street’s processing complies with Data Protection Laws and the Client shall provide confirmation to Circus Street that Circus Street’s measures are sufficient to comply with Data Protection Laws. Where necessary, the Client shall engage its own experts to verify such compliance by Circus Street.

Section 10.7 Circus Street shall promptly comply with any reasonable request from Client requiring Circus Street to provide details of the Personal Data or amend, transfer or delete the Personal Data (whether or not at the Client's request, or in response to a Data Subject's rights under Data Protection Laws).

Section 10.8 Circus Street warrants that, where it processes Personal Data, it shall take appropriate security measures to conform to Data Protection Laws, including appropriate technical and organizational measures against the unauthorized or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to the risk in accordance with Data Protection Laws. Circus Street shall respond to reasonable requests from the Client to provide information as to Circus Street’s technical and organizational measures.

Section 10.9 Circus Street shall inform the Client immediately in writing if it becomes aware of any unauthorized or unlawful processing, loss of, damage to or destruction of, the Personal Data, and within a reasonable time shall provide supporting information with reasonable details as are reasonably requested by the Client.

Section 10.10 Circus Street shall assist the Client in ensuring compliance with obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to Circus Street. Circus Street’s assistance with the Client pursuant to Articles 32 to 34 of the GDPR shall be at Circus Street’s cost; the Client shall reimburse Circus Street upon demand for any reasonable costs incurred by Circus Street in providing assistance to the Client pursuant to Articles 35 and 36 of the GDPR.

Section 10.11 The Client shall take overall responsibility for any Personal Data breach obligations under Data Protection Laws. Circus Street shall conform to the reasonable requirements of the Client in respect of Personal Data breach notification requirements under Data Protection Laws, provided that the Client shall reimburse Circus Street for any reasonable costs and expenses incurred in doing so (unless Circus Street caused the breach).

Section 10.12 Circus Street shall not transfer the Personal Data outside the United States, United Kingdom (of England, Wales, Scotland and Northern Ireland), European Economic Area or outside any other jurisdiction where the Client is located or requires the Personal Data to be processed, without the express prior written consent of the Client, except to:

(a) Circus Street's sub-processor who assists with providing support services for Circus Street; or
(b) Circus Street's sub-processor who provides communications by email on behalf of Circus Street; or
(c) Circus Street's Affiliates in other countries, to assist Circus Street with an efficient provision of Circus Street's Services to the Client (including for provision of available assistance, information and Reports to the Client);
in each case solely for that purpose. Where any such transfer does take place, Circus Street shall do so on a basis which complies with Data Protection Laws.

Section 10.13 The Client shall ensure that its instructions and requirements under this Agreement conform with all Data Protection Laws.

Section 10.14 The Client shall be responsible as Controller with providing each Data Subject (including the relevant Users) at the appropriate time with a privacy, transparency or information notice (including describing the data, purpose, legal basis for processing, recipient, duration and the Data Subject's rights) to ensure fair and lawful processing of the Personal Data in accordance with Data Protection Laws. If Circus Street provides the Client with a sample privacy, transparency or information notice, this shall be solely as a matter of convenience; and the Client shall take overall responsibility as Controller for providing a privacy, transparency or information notice to Users.

Section 10.15 The Client agrees that Circus Street may authorize a third party (sub-processor) to process the Personal Data on behalf of Circus Street (for the provision of hosting services, support services, communications by email and the provision of assistance, information and Reports to the Client), provided that:

(a) Circus Street's contract with the sub-processor is on terms which fully reflect and do not contradict or override those set out in this Article X;
(b) the sub-processor's rights and obligations in relation to the processing of the Client's Personal Data terminate automatically on termination of this Agreement for any reason; and
(c) Circus Street informs the Client in writing of any intended changes concerning the addition or replacement of sub-processors, thereby giving the Client a reasonable opportunity to make known to Circus Street any objections that the Client may have. Circus Street shall reasonably consider any objections from the Client but shall not be bound to follow the Client’s objections.

Section 10.16 Circus Street shall allow the Client to conduct audits or otherwise demonstrate compliance at reasonable times and on reasonable prior written warning at the Client's cost, in order to ensure and demonstrate compliance with Data Protection Laws. The Client shall reimburse Circus Street for any reasonable Fees and costs associated with such assistance and cooperation.

Section 10.17 The terms defined in this Article X shall be construed in accordance with any change in definitions in Data Protection Laws from time to time.

Section 10.18 In the event of any change in a country’s status (including the UK’s departure from the European Union), the Parties shall agree to implement such additional measures to comply with Data Protection Laws (including, if necessary, GDPR clauses that reflect the model contractual clauses).

ARTICLE XI

LIABILITY
Section 11.1 This Article XI prevails over all other Articles and sets forth the entire Liability of each Party, and the sole and exclusive remedies of the other, in respect of:

(a) performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or of any goods, services, deliverables or software in connection with this Agreement; or
(b) otherwise in relation to this Agreement or entering into this Agreement.

Section 11.2 Neither Party excludes or limits its Liability for (a) its fraud or fraudulent misrepresentation; or (b) death or personal injury caused by its Negligence; or (c) any breach of the non-excludable obligations implied by law as to having title to supply goods; or (d) any infringement of the other Party’s or the other Party’s Affiliates’ Intellectual Property Rights; or (e) any other Liability which cannot be excluded or limited by applicable law.

Section 11.3 Subject to Section 11.2, neither Party hereby accepts, and each Party hereby excludes, any Liability for Negligence other than any Liability arising pursuant to the terms of this Agreement.

Section 11.4 Subject to Section 11.2, neither Party shall have any Liability in respect of any: (a) indirect or consequential losses, damages, costs or expenses; (b) loss of actual or anticipated profits; (c) loss of contracts; (d) loss of use of money; (e) loss of anticipated savings; (f) loss of revenue; (g) loss of goodwill; (h) loss of reputation; (i) ex gratia payments; (j) loss of business; (k) loss of operation time; (l) loss of opportunity; or (m) loss of, damage to or corruption of, data (except to the extent that that Party specifically has a responsibility to prevent loss of, damage to or corruption of, data under this Agreement or any other agreement between the Parties); whether or not such losses were reasonably foreseeable or the Party in default or its agents had been advised of the possibility of the other incurring such losses. The limitations set forth in Section 11.4 (b) to (m) shall apply whether such losses are direct, indirect, consequential or otherwise.

Section 11.5 Subject to Section 11.2, and subject to any specific right or remedy expressly set out in this Agreement or any other agreement between the Parties that explicitly provides that the following cap may be exceeded, the total aggregate Liability of each Party for all causes of action arising in each Year shall be limited as follows:

Section 11.6 The limitations of Liability under Section 11.5 have effect in relation both to any Liability expressly provided for under this Agreement and any other agreement between the Parties and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement and any other agreement between the Parties.

Section 11.7 For the avoidance of doubt, subject to Section 11.5, Section 11.4 does not prevent either Party from claiming for wasted resources and correction costs reasonably incurred as a result of the other Party’s breach of this Agreement or any other agreement between the Parties.

Section 11.8 The Client shall not limit its Liability for failure to pay the Fees.

ARTICLE XII

INSURANCE
Section 12.1 During the term of this Agreement, Circus Street shall obtain and maintain, at its sole cost and expense, with an independently regulated insurance company of good financial standing properly licensed to underwrite insurance risks of the type in question and on terms that are reasonably adequate and customary in the international insurance market with minimum cover per year (of Circus Street’s insurance) as follows:

(a) group professional indemnity and cyber policy (worldwide policy of $5,000,000 per insurance year, based on a conversion ratio of GBP to USD of 1.3);
(b) general liability (US policy of $5,000,000 per insurance year); and
(c) commercial umbrella (US policy $5,000,000 per insurance year).

Section 12.2 Circus Street shall provide to the Client, upon the Client’s reasonable request, a certificate evidencing such insurance. The certificate will provide that such insurance limits will not expire or be cancelled or modified during the term of this Agreement without the Client being informed in writing.

ARTICLE XIII

DURATION, TERMINATION AND SUSPENSION
Section 13.1 This Agreement shall have effect on and from the Commencement Date and, subject to earlier termination pursuant to this Agreement, will continue until the Launch Date and then for the Access Term and (unless the Order Form provides otherwise) it shall expire at the end of the Access Term.

Section 13.2 Either Party may terminate this Agreement, by notifying the other Party with immediate effect if:

(a) the other Party is in material breach of any of its obligations pursuant to this Agreement or any other agreement between the Parties which are incapable of remedy;
(b) the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations pursuant to this Agreement or any other agreement between the Parties after having been required in writing to remedy such breach within a period of no less than thirty (30) days;
(c) the other Party is in continuous breach of any of its obligations pursuant to this Agreement or any other agreement between the Parties; or
(d) the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts as they come due, or enters into any compromise or arrangement with any of its creditors (other than for the sole purpose of a scheme for a solvent merger or acquisition of the other Party with one or more other companies or the solvent reorganization of the other Party), or an order is made or a resolution is passed for the winding-up of the other Party or a petition or order in bankruptcy is made or a bankruptcy trustee is appointed to manage the affairs, business and property of the other Party or a receiver or manager or administrative receiver is appointed in respect of all or any of the other Party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a trustee, receiver, manager, administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.

Section 13.3 For the purposes of Section 13.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to time to the reasonable satisfaction of the other Party. Without prejudice to the status of any breach of any other provision of this Agreement or any other agreement between the Parties, the Parties agree that any breach or infringement of the other Party’s Intellectual Property Rights or Confidential Information shall be considered a material breach which is not capable of remedy.

Section 13.4 In addition to its rights to suspend under Section 7.10(b), Circus Street reserves the right to suspend or disable access to and use of the Product and Product Content by the Client and the Client's Subsidiaries and Users if:

(a) Circus Street reasonably suspects that the Client or any of the Client's Subsidiaries or any User is in breach of this Agreement (or any other agreement between Circus Street and the Client or a Subsidiary) or the User Rules; or
(b) Circus Street reasonably believes that there is likely to be or has been a breach of security, or misuse of any username or password of the Client or the Client's Subsidiaries or its Users or use of the Product by an individual or organization who is not (or no longer is) a User; or
(c) the Client or any of the Client's Subsidiaries or any User is misusing the Product or infringing Circus Street’s or Circus Street's Affiliates' Intellectual Property Rights. This suspension may be without notice and whether by use of a code, by disabling access on its servers, by remote access or by physical attendance at any place where the Product is being accessed from or otherwise.

If Circus Street suspends or disables access to and use of the Product and Product Content by the Client and the Client's Subsidiaries and Users pursuant to this Section 13.4, it shall promptly inform the Client following such suspension providing the Client with reasons for such suspension in order that the Client can address the concerns raised by Circus Street and/or remedy the same to Circus Street's reasonable satisfaction, at which point Circus Street shall lift the suspension.

Section 13.5 Circus Street may terminate this Agreement immediately by notice to the Client if the Client is at least twenty (20) Business Days late in paying any undisputed sums due under this Agreement or any other agreement between the Parties and Circus Street has then given to the Client at least an additional ten (10) Business Days' notice requiring the Client to pay in full such sums within such ten (10) Business Day (or, if Circus Street desires, longer) period failing which Circus Street may exercise its right to terminate under this Section 13.5.

Section 13.6 Within twenty (20) Business Days of the Client discovering that Circus Street has decided to proceed with the addition or replacement of a sub-processor in respect of which the Client has already made known its objection in writing to Circus Street, the Client may terminate this Agreement by notifying Circus Street with immediate effect.

ARTICLE XIV

CONSEQUENCES OF TERMINATION AND EXPIRATION
Section 14.1 Termination or expiration of this Agreement shall be without prejudice to any accrued rights or remedies of either Party and shall be without prejudice to any right to claim damages that would have existed but for termination or expiration.

Section 14.2 Termination or expiration of this Agreement will not affect the applicability of any provision which is expressly or by implication intended to become applicable on or after such termination or expiration.

Section 14.3 Upon termination or expiration of this Agreement, for any reason, each Party may at its option require the other Party to promptly delete the Confidential Information of the other Party from any computer disks, devices, tapes, memory, storage or other material in that other Party's possession or under that other Party's control or promptly return or destroy materials and tangible items in that other Party's possession or under that other Party's control which contain any Confidential Information of the Party requiring the action (and this includes the Client requiring that the Client's Subsidiaries and Users do likewise). Each Party may require an officer or authorized representative of the other Party to provide a written declaration, signed by such officer or other authorized representative of such Party, stating that there has been full compliance with this Section 14.3.

Section 14.4 Upon termination or expiration of this Agreement for any reason:

(a) except as set forth in Section 14.5, all outstanding Fees for Services provided or in the process of being created for delivery shall become immediately payable, whether invoiced or not;
(b) the Client shall, and shall require that all applicable Users shall, immediately cease accessing and using the Product and any Product Content and Hosted Service and cease using any username or password in relation to the Product and Hosted Service;
(c) the Client shall, and shall require that all applicable Learners shall, immediately delete or remove the App from all Client Systems and immediately destroy all copies of the App in their possession, custody or control;
(d) subject to the Client paying any applicable Consulting Services Fees in advance, promptly following the Client's written request, Circus Street shall provide or make available User Data in a form reasonably required by the Client;
(e) unless the Client requires Circus Street to remove the User Data beforehand, Circus Street may in any event delete or irreversibly anonymize any User Data between twelve (12) and twenty four (24) months after the termination or expiration of this Agreement; and
(f) Circus Street shall otherwise cease to perform its obligations under this Agreement.

Section 14.5 In the event of termination by the Client pursuant to Section 13.2 or Section 13.6, Circus Street shall pay to the Client an amount equivalent to the License Fee pro-rated to reflect the unused Access Term or unused Lesson Licenses as applicable.

Section 14.6 If the Client has ordered Lesson Licenses or Full Access Licenses but not Enrolled all Learners or not all Lesson Licenses covered within the order have been used or accessed within the Access Term, the rights for access to those Lesson Licenses and Full Access Licenses shall expire notwithstanding that they have been paid but remained unused by the Client or the Learner.

ARTICLE XV

FORCE MAJEURE
Section 15.1 Except for obligations regarding payment of the Fees, neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations or carrying on its business under or in connection with this Agreement which is caused by any act, event, omission or accident beyond its reasonable control, and regardless of whether the circumstance could have been foreseen, including any act of God, actions or omissions of third parties (other than of Affiliates of the relevant Party seeking to rely on this Section, or the Party's directors, officers, employees, consultants, contractors, agents, other representatives, customers or third party service providers) (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, actual or threatened or suspected terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, unusual travel restrictions, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, volcano, ash cloud, natural disaster, accident, collapse of building structures, mechanical breakdown, third party software or infrastructure or communications, cyber-attack, failure or problems with public utility supplies (including general: electrical, telecommunications, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation ("Event of Force Majeure"), regardless of whether the circumstances in question could have been foreseen.

Section 15.2 Each Party agrees to inform the other Party in writing upon becoming aware of an Event of Force Majeure, such written information to contain details of the circumstances giving rise to the Event of Force Majeure and its expected duration.

Section 15.3 The performance of each Party's obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.

Section 15.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.

Section 15.5 If performance of any obligations are delayed under this Article XV, each Party shall nevertheless accept performance as and when the other Party shall be able to perform.

Section 15.6 If the Event of Force Majeure continues without a break for more than sixty (60) days, either Party may terminate the affected Order Form upon giving no less than five (5) Business Days' notice to the other Party, in which event neither Party shall have any Liability to the other Party by reason of such termination.

Section 15.7 If Circus Street has contracted to provide identical or similar services or deliverables to more than one client and is prevented from fully meeting its obligations to the Client by reason of an Event of Force Majeure, Circus Street may decide at its absolute discretion which contracts it will perform and to what extent.

ARTICLE XVI

GENERAL
Section 16.1 This Agreement is personal to the Client, who shall not (and shall not purport to) assign, sub-license (other than to the Client’s Subsidiaries), transfer, novate, charge or otherwise encumber, create any trust over or deal in any manner with this Agreement or any of its rights, liabilities or obligations under this Agreement without the prior written consent of Circus Street. Circus Street may subcontract its obligations under this Agreement (including to a third party provider of hosting services, development services, assistance with support or communications) and may assign, transfer or novate its rights, liabilities or obligations under this Agreement either in whole or in part to any other person, firm or company. Circus Street shall promptly give notice to the Client of any such assignment, transfer or novation.

Section 16.2 Any notices, consents, waivers and other communications under this Agreement shall be in writing and made by one of the methods set forth in this Section 16.2. Such notices, consents, waivers and other communications will be deemed to have been duly given only when (a) delivered by hand (with written confirmation of receipt), (b) received by the addressee, if sent by certified mail, return receipt requested, (c) by email using an Electronic Signature Provider, or (d) received by the addressee, if sent by a nationally recognized overnight delivery service, in each case addressed to the relevant Party to the appropriate addresses set forth below (or to such other addresses as a Party may designate by notice to the other Party), or at such other address or email address as is notified by the relevant Party to the other Party for this purpose from time to time or at the address or email address of the relevant Party last known to the other Party:

If to Client:

[NAME OF CLIENT]
[Address]
[State, Zip Code]
Attn: [ ]

If to Circus Street:

Circus Street Inc.
450 Park Avenue South
New York, NY 10016
Attention: Jonny Townsend

Section 16.3 Unless a Party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either Party in exercising any power, right or remedy under this Agreement or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that Party’s other powers, rights or remedies under this Agreement or at law.

Section 16.4 If any provision of this Agreement shall be held to be unlawful, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be severed from this Agreement and rendered ineffective as far as possible without modifying or affecting the legality, validity or enforceability of the remaining provisions of this Agreement which will remain in full force and effect.

Section 16.5 This Agreement contains all the terms agreed between the Parties regarding its subject matter and supersedes, excludes and replaces any prior agreement, understanding or arrangement between the Parties, whether oral or in writing. No representation, warranty, statement, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to this Agreement except as expressly stated in this Agreement. Each Party confirms that it has not entered into this Agreement based on any representation, understanding, statement, promise or warranty not expressly incorporated into this Agreement. A Party shall not have any remedy in respect of any untrue statement made by the other Party upon which that Party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that Party’s only remedies shall be for breach of contract as provided in this Agreement.

Section 16.6 This Agreement constitutes the entire agreement and understanding of the Parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.

Section 16.7 The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Client or any Client’s Affiliates or any User whether such terms and conditions are contained in a purchase order, document or otherwise.

Section 16.8 In the event of any irreconcilable conflict between the provisions of any of the documents within this Agreement, then the provisions of the main body of these Terms and Conditions shall prevail over the Schedules; and in the event of any irreconcilable conflict between the provisions of an Order Form and these Terms and Conditions, then the provisions of the Order Form shall prevail over these Terms and Conditions to the extent that the Order Form expressly provides as such.

Section 16.9 Circus Street may make minor changes or amendments to this Agreement or the User Rules at any time without notice to the Client or User by posting changes online either through the Product, the Website or the App. The Client and Users are responsible for regularly reviewing information posted through the Product, the Website or the App in order to obtain timely warning of such changes. Continued access or use of the Product by the Client or User after such changes have been posted constitutes acceptance of such changes. At Circus Street's option, the Client or the User may be required to read and accept any changes to the User Rules in order to continue to use the Product.

Section 16.10 Subject to Section 16.9, no changes to this Agreement shall be effective unless made in writing and expressly agreed upon by the Parties..

Section 16.11 Nothing in this Agreement shall confer or purport to confer on any third party any benefit or any right to enforce any term of this Agreement or operate to give any third party the right to enforce any term of this Agreement.

Section 16.12 This Agreement shall not operate so as to create a partnership or joint venture of any kind between the Parties. Nothing contained in this Agreement shall be so construed as to constitute either Party to be the agent of the other. Neither Party shall have any authority to make any commitments on the other Party’s behalf.

Section 16.13 Within five (5) Business Days of receipt of a written notice of a dispute arising under this Agreement, a representative of Circus Street and a representative of the Client will arrange to discuss the dispute at a mutually satisfactory time. If Circus Street and the Client cannot agree on a mutually acceptable resolution of the dispute within thirty (30) days, the controversy will be submitted to final and binding arbitration. Except as provided in Section 16.14, the Parties agree that arbitration shall be the sole and exclusive forum for resolution of any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof.

(a) All disputes arising out of or in connection with this Agreement shall be submitted to arbitration conducted under the Rules of the American Arbitration Association (the “AAA Rules”) by one arbitrator qualified to practice law in the State of New York and who shall be experienced in commercial matters and shall be appointed in accordance with the AAA Rules. The place of arbitration shall be New York, New York and the arbitration shall be conducted in the English language.
(b) The Parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other Party in the proceedings not otherwise in the public domain, except and to the extent that disclosure may be required of a Party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority.
(c) Each award of the arbitrator shall be a “reasoned award”. The arbitrator is authorized to include in the award an allocation to any Party of such costs and expenses, including attorneys’ fees, as the arbitrator shall deem reasonable. Judgment upon any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any monetary award rendered by the arbitrators shall be paid in U.S. dollars.

Section 16.14 To the extent that a Section of this Agreement is of such a character that a breach thereof by either Party will result in irreparable damage and injury to the other for which there will be no adequate remedy at law, a Party shall have the right and remedy to have such Section specifically enforced by any court having equity jurisdiction, without the posting of a bond or other security, it being agreed that in any proceeding for an injunction, and upon any motion for a temporary or permanent injunction, the ability to answer in damages shall not be a bar or interposed as a defense to the granting of such injunction. The provisions of this Section 16.14 shall survive the termination of this Agreement.

Section 16.15 ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF SUCH STATE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN SUCH STATE.

Section 16.16 The Parties agree that the Supreme Court of the State of New York or the U.S District Court for the Southern District of New York shall have exclusive jurisdiction with respect to all aspects of the enforcement of the arbitration provisions of this Agreement; provided that judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, or application may be made to such court for judicial recognition of the award or an order of enforcement thereof, as the case may be. The Parties hereby waive all objection which they may have at any time to the laying of venue of any proceedings brought in such courts, waive claim that such proceedings have been brought in an inconvenient forum and further waive the right to object with respect to such proceedings that any such court does not have jurisdiction over such Party.

Section 16.17 Nothing contained in this Agreement shall be so construed as to constitute either Party to be the agent of the other. Neither Party shall have any authority to make any commitments on the other Party’s behalf.

These Terms and Conditions have been entered into on the date set forth above.
CIRCUS STREET INC. [NAME OF CLIENT]

By:___________________________ By:______________________________
Name: Name:
Title: Title:


Schedule 1 Data Protection Particulars

Subject Matter of Data Protection
To provide the Client's and its Affiliate's Learners with access to Lessons and content in an accessible online format or through an app, to analyze individual test dates and scores and provide or make available Reports to Authorized Requesters about use of the Hosted Service and Lesson performance and surveys and Lesson feedback by individual Learners and their teams (and compared to a benchmark), to message Learners to encourage their engagement in and additional use of the Hosted Service, and to deal with support queries. To work with Administrators in relation to Learners' access to Lessons and content and the Client's analysis of use through reporting.

Duration of Data Protection
Learner data is Processed during the Access Term and for up to two (2) years afterwards, unless the Client requires Circus Street to remove access to it beforehand. Circus Street's policy is to retain a User's data in Circus Street's Lesson system for no less than twelve (12) months but no more than twenty four (24) months after the end of their Lesson entitlement plan or from when they have left the Client (whichever is earlier). Any report files that are sent out from Circus Street are automatically erased after twenty four (24) hours.

Nature and Purpose of the Processing
To provide the Client's and its Affiliate's Learners with access to Lessons and content in an accessible online format or through an app, to analyze individual test dates and scores and provide or make available Reports to Authorized Requesters about use of the Hosted Service and Lesson performance and surveys and Lesson feedback by individual Learners and their teams (and compared to a benchmark), to message Learners to encourage their engagement in and additional use of the Hosted Service, and to deal with support queries. To work with Administrators in relation to Learners' access to Lessons and content and the Client's analysis of use through reporting.

Type of Personal Data
The Learner's name, username, password, address, email address, telephone number, title or position or role within the Client or the Client's Affiliate, line manager, division in the business (e.g. group, region or brand), Lessons subscribed/used (including any tests taken), completed surveys and Lesson feedback, performance and usage information compared to benchmarks (such as others at the Client or other users generally), IP address, cookie data (which enable Lessons to be resumed), login times and pre- and post-test scores for Lessons they have taken). Also, the name, password, address, email address, telephone number, title or position or role within the Client or the Client's Affiliate, of the Administrator, being an authorized person to administer the access on behalf of the Client.

Categories of Data Subjects
Learners, i.e. employees, officers, directors, contractors (acting in a similar role to employees) or authorized representatives of the Client who are Registered and Enrolled to receive the Hosted Service. Also, Administrators, i.e. employees, officers, directors, contractors (acting in a similar role to employees) or authorized representatives of the Client who are nominated and designated by the Client to deal with administrative functions relating to the Client's and the Client's Affiliates' and Learners' use of and access to the Lessons and Hosted Service, including for registration and support, and for receipt of Reports.

Obligations and rights of Data Controller
As set out in this Agreement.


Current List of Authorized Sub-Processors (including Circus Street's Affiliates) Involved in the Processing of Personal Data as of the MSA Commencement Date

List of Countries Currently Involved in the Processing of the Personal Data as of the MSA Commencement Date
USA, UK, Ireland, Spain, Singapore, Australia.

Schedule 2 Order Form Template
ORDER FORM

Circus Street Inc. Client Agreement

Order Form

BETWEEN:

CIRCUS STREET INC., a corporation organized under the laws of the State of New York whose principal office is at 79 Madison Avenue, 8^th Floor, New York, NY 10016 (“Circus Street”); and

[FULL LEGAL NAME], a [TYPE OF ENTITY] organized under the laws of [STATE OR COUNTRY] whose principal office is [ADDRESS] (the “Client”).

TERMS:

Circus Street agrees to license to the Client, and the Client shall pay for access to, the Product (as defined below) subject to the terms set out in this Order Form and the Terms and Conditions entered into between Circus Street and the Client (which are available at www.circusstreet.com).

This Order Form is made on the date above on which the Parties or their duly authorized representatives have signed.

Schedule 3 Service Level Schedule

Service Levels
Circus Street provides a UK central helpdesk service during "Support Hours", which are Business Days 9:00 am to 5:30 pm local time in London. Local account managers can provide service during local hours. Relevant contact details for local account managers will be made available to your account manager in the region.
Any system incidents will be given a priority according to the level of severity as follows:

Priority Description Target Response Time Target Resolution Time
P1 The Product returns no result, or multiple authorized Users from multiple locations cannot log-in to the Product after repeated attempts. 1 Support Hour 8 Support Hours
P2 Partial loss of access within the Product for the following:
(a) Access to Lessons;
(b) No Lesson being delivered; or
(c) Reporting data not being returned;
where this is not a P1. 4 Support Hours 5 Business Days
P3 A prominent feature within the Product that stops multiple Users from progressing with their training tasks where there is no workaround; where this is not a P1 or P2. 8 Support Hours 10 Business Days
P4 A feature within the Product that is frustrating but does not stop multiple Users from progressing with their training tasks where there is no workaround; where this is not a P1, P2 or P3. 2 Business Days 20 Business Days

Where there is interruption of access to the Service that lasts for fourteen (14) days or more during the Access Term, the Access Term shall be automatically extended by an amount equal to the interrupted access, at no additional cost to the Client.

Helpdesk Support
The Client must contact Circus Street's support via email at support@circusstreet.com.

Service Availability
Circus Street will use commercially reasonable efforts to meet the "Service Availability Level", which means to make the Hosted Service available to a User with an uptime service availability level of at least 99% during each calendar month except to the extent that the Circus Street is unable to make the Hosted Service available as a direct result of a "Service Exception", which are any of the following: