In these Terms and Conditions, unless the context requires otherwise, the following expressions shall have the following meanings:
2.1 In consideration of Client’s payment of the Licence Fee and Client’s compliance with this Agreement and all Users’ compliance with the User Rules, Circus Street hereby grants to Client a non-exclusive, non-transferable, non-sublicensable licence to access and use the Product and Product Content and to permit Users to access and use the Product and Product Content by way of the Hosted Service, in each case only during the relevant Access Term and in accordance with this Agreement.
2.2 Client shall use the Product and Product Content for Client’s ordinary internal business purposes and shall not make the Product or Product Content available for use or access by any third party, except to the extent that Circus Street expressly permits in writing.
2.3 Client may enable each User to print off extracts from the Product in hard copy but solely for their own use in accordance with this Clause 2 and provided that any and all copyright and proprietary notices are kept intact. 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, nor allow a User to do so.
2.4 Any rights in respect of the Product or Product Content not expressly granted in this Agreement by Circus Street are reserved.
3.1 Client shall procure that each User agrees to comply with, and does comply with, the User Rules. Client shall be liable for any failure by a User to comply with the User Rules.
3.2 Client shall Register its Users through its Administrator. Client undertakes that the maximum number of Users or Lesson Licences or Full Access Licences that it Registers and allows to Enrol, shall not exceed the number of Users or Lesson Licences or Full Access Licences permitted in the Order Form (or as otherwise expressly agreed in writing by Circus Street). If Client would like to make access to the Product available to any more Users or for any more Lesson Licences or Full Access Licences than is permitted within the parameters ordered, then it shall first contact Circus Street to discuss and pay for any additional Licence Fee with a new Agreement for new Lesson Licences or Full Access Licences (and Access Term for those additional Users or Lesson Licences and Full Access Licences), and Client shall pay any additional Licence Fee for the new Lesson Licences and Full Access Licences prior to such access. The amount for payment of the new Lesson Licences and Full Access Licences shall be as set out in the Order Form or agreed in writing between Client and Circus Street (or otherwise according to Circus Street’s standard rates from time to time for additional Users or Lesson Licences or Full Access Licences). Circus Street may provide data or information to help Client to monitor how much of the Lesson Licences or Full Access Licences have been used, but it is Client's responsibility to check that it has ordered sufficient Lesson Licences and Full Access Licences for its Users and obtain new Lesson Licences and Full Access Licences as it needs for its purposes.
3.3 Client undertakes 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 during Registration or for Enrolment to be used by more than that one individual User or to be transferred to any other User;
(b) the passwords for the Users and Administrators 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 all reasonable endeavours to prevent any access to or use of the Product by anyone other than the User;
(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 or contractor (acting in a similar role to an employee) or authorised representative of Client and for whom Client has already Registered as a User with Circus Street and has paid the Licence Fee or (in accordance with the terms of this Agreement) has agreed to pay the Licence Fee to Circus Street for such User to have access to and use of the Product and Product Content;
(f) it has obtained permission from the owners of any mobile telephone or handheld devices (if not owned by Client or User) that are being used to access the Product to download the App onto such devices; and
(g) 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 Client or User.
3.4 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 Administrator or by anyone who is no longer a User or an Administrator, 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 Client or User or Administrator 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 unauthorised use of or access to the Product or any username or password caused by the Client’s breach of Clauses 3.2 or 3.3.
3.5 Circus Street reserves the right to edit, amend or issue new usernames and passwords or require Client or Users or Administrators to change a username or password at any time.
4.1 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.
4.2 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.
4.3 Client shall be responsible for ensuring that the Client Systems meet the Minimum Specification. Circus Street shall not be responsible for any failure of Client or a User to access the Product to the extent caused by a failure of Client Systems or Client to ensure that the Client Systems meet the Minimum Specification.
4.4 Client hereby grants to Circus Street a non-exclusive, non-transferrable licence to use the Client Content until expiry of the relevant Access Term only for the purposes of providing the Services under this Agreement.
4.5 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, which:
(a) is, defamatory, illegal, obscene, threatening, abusive, or offensive (or is likely to be perceived as such);
(b) is in breach or infringement of 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; or
(d) is in breach of any applicable law, regulation, bye-law, code of practice, licence, permit, authorisation or registration.
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 contravene these prohibitions.
4.6 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 customer’s or user’s use of 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.
4.7 Save as may be expressly stated otherwise, Circus Street does not monitor, approve, endorse or exert 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.
4.8 From time to time, Circus Street may issue updates to the App. Depending on the update, Client and/or a User may not be able to access or use some or all of the Product until Client and/or User has downloaded the latest version of the App and accepted any new terms.
4.9 Client shall take 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 Consultancy Services.
5.1 During the Access Term, as part of the overall Hosted Service, Circus Street shall provide support services to the Client's Administrator (by email or telephone) during its regular support hours on Business Days.
5.2 Client shall, only through the Administrator, report any problems or errors to email support@circusstreet.com, giving full details of: (a) 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.
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) Client’s or User’s negligence; or (c) a malfunction of hardware, Client Systems or any software other than the Product itself.
6.1 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. Save for the Licence, 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 Client or User or any person.
6.2 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, 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).
6.3 Circus Street hereby acknowledges that, as between it and Client, all Intellectual Property Rights in the Client Content are owned by or licensed to Client. Save for the Client Content licence 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.
6.4 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 attempt to ensure that there is no adverse change in the content, quality or performance of the Product or the Product Content.
6.5 Except to the extent expressly permitted in this Agreement or at law, Client shall not reproduce, download, 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 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 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.
6.6 Client shall promptly inform Circus Street in writing in the event that it becomes aware of any unauthorised use of or access to the Product or any actual or suspected infringement of any of Circus Street’s Intellectual Property Rights, and Client shall provide all further co-operation reasonably requested by Circus Street.
6.7 Circus Street shall promptly inform Client in writing in the event that it becomes aware of any unauthorised use of or access to the Client Content or any actual or suspected infringement of any of Client's Intellectual Property Rights, and Circus Street shall provide all further co-operation reasonably requested by Client.
6.8 In the event of any claim being brought against Client or User that the normal use of the Product in accordance with this Agreement infringes the Intellectual Property Rights of a third party (a “Claim”), Circus Street shall indemnify 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 Client:
(a) as soon as reasonably practicable informs Circus Street in writing of any such Claim of which Client becomes aware;
(b) does not make any admission as to liability or compromise or agree any settlement of the Claim without Circus Street’s prior written consent of (such consent not to be unreasonably withheld or delayed), or otherwise prejudice Circus Street or any other third party’s defence of such Claim;
(c) gives Circus Street, or such person as Circus Street shall direct, immediate and complete control of the conduct or settlement of all negotiations and litigation arising from the Claim; and
(d) upon payment of its reasonable costs, gives Circus Street, and other third parties as Circus Street directs, all reasonable assistance with the conduct or settlement of any such negotiations or litigation.
The indemnity in this Clause 6.8 shall not apply to the extent that any Claim arises out of Circus Street's use of any Client Content, in which event Client shall instead indemnify Circus Street on like terms under this Clause 6.8. The indemnified party shall always act reasonably and use its reasonable endeavours to mitigate any Claims.
6.9 Client shall permit Circus Street and Circus Street’s representatives at all reasonable times and on reasonable prior written warning to enter such places and inspect such equipment under Client’s control and monitor Client’s and User’s use of and access to the Product (whether remotely or not) to verify that Client 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.
6.10 Client acknowledges that it has no right to have access to the App in source code form.
7.1 Except to the extent that the Order Form expressly provides to the contrary, this Agreement shall commence on the Commencement Date and (subject to earlier termination under this Agreement) shall continue until the Launch Date and then for the Initial Access Term and successive Renewal Access Terms.
7.2 Unless this Agreement is terminated earlier in accordance with its terms or unless the Order Form provides otherwise, this Agreement shall automatically continue for a renewal access term upon the expiry of the Initial Access Term or upon the expiry of a previous renewal access term, with each renewal access term being a 12 month period unless the Order Form provides otherwise (each, a “Renewal Access Term”). This Agreement may be terminated by either Circus Street or Client giving no less than one month’s notice to the other, such notice to expire on the last day of the Initial Access Term or of a Renewal Access Term.
7.3 If Client has ordered Lesson Licences or Full Access Licences but not Enrolled all Users or not all Lesson Licences covered within the order have been used or accessed within the relevant Access Term, the rights for access to those Lesson Licences and Full Access Licences shall expire notwithstanding that they have been paid but remained unused by Client.
8.1 Unless otherwise expressly agreed in writing by Circus Street, Client shall pay the Licence Fee in advance of Client’s and Users’ ability to access or use any of the Lessons within the Lesson Licence or Full Access Licence for the Initial Access Term on or before the Launch Date, and for each subsequent Renewal Access Term on or before the commencement of the relevant Renewal Access Term.
8.2 Circus Street may increase the Fee by no less than two months’ prior written warning to take effect at the start of a Renewal Access Term.
8.3 Unless otherwise expressly agreed in writing by Circus Street, Client shall pay the Consultancy Services Fee monthly in arrears for the Consultancy Services supplied in that month (provided that Circus Street may require payment for any known Consultancy Services Fees in advance of providing the Consultancy Services).
8.4 All sums due to Circus Street are exclusive of VAT and other duties or taxes (if applicable) which Client shall pay to Circus Street in addition at the same time as payment of the Fee.
8.5 Payment shall be in the currency of England from time to time.
8.6 Payment of all sums due under this Agreement shall be made by Client without any set-off, deduction or withholding whatsoever.
8.7 Circus Street shall issue an invoice to Client for the Fee.
8.8 Client shall pay Circus Street for the Fee in accordance with Clause 8.1 (and in any event within 28 days of the date of Circus Street’s invoice). Client shall pay Circus Street by any payment method reasonably stipulated by Circus Street or otherwise agreed in writing by the parties.
8.9 No payment shall be considered to be paid until it is received by Circus Street in cleared funds. Client and its Users shall not have a right to access or use a Lesson until Client has paid the relevant Fee and taxes applicable in full.
8.10 If the laws of any part of the territory where Client is based require Client to withhold tax on any payment which Client is obliged to make to Circus Street under this Agreement, the parties shall use their respective reasonable endeavours to conduct their accounting arrangements where legally possible to avoid the application of withholding tax (such as for Client to contract and pay through a company in a jurisdiction where withholding tax would not apply). If withholding tax does apply, 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; and
(c) in the event that any taxes deducted cannot be reclaimed, at such time as Circus Street reasonably requires make up to Circus Street any shortfalls in payment attributable to such tax deductions.
8.11 If 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 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 Client or by any statute, regulation or by-law) do either or both of the following:
(a) charge interest and other charges on the amount due but unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly; or
(b) give Client at least five Business Days’ notice that it is suspending Client’s and Users’ access to the Product with immediate effect until Circus Street receives the outstanding amounts in full.
9.1 In addition to its rights to suspend under Clause 8.11, Circus Street reserves the right to suspend or disable access to and use of the Product by Client and Users if:
(a) Circus Street reasonably suspects that Client or any User is in breach of this Agreement (or any other agreement between Circus Street and Client) 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 Client or its Users or use of the Product by an individual or organisation who is not (or no longer) a User; or
(c) Client or any User is misusing the Product or infringing Circus Street’s 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 by Client and Users pursuant to this Clause 9.1, it shall promptly inform Client following such suspension providing Client with reasons for such suspension in order that 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.
9.2 Either Circus Street or Client 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 under 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 under 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 30 days; or
(c) 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 amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party), or an order is made or a resolution is passed for the winding-up of the other party or an administration order is made or an administrator 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 receiver or manager or 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.
9.3 Upon termination or expiry of this Agreement:
(a) Client shall, and shall procure that all 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;
(b) 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 deliver up 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 Client procuring that Users do likewise). Each party may require an authorised representative of the other party to provide a written declaration, signed by an officer or other authorised individual, stating that there has been full compliance with this Clause 9.3(b);
(c) Client shall, and shall procure that all Users 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) in the event of termination by Client pursuant to Clause 9.2, Circus Street shall pay to Client an amount equivalent to the Licence Fee pro rated to reflect the unused Access Term;
(e) subject to Client paying any applicable Consultancy Services Fees in advance, promptly following Client's written request, Circus Street shall provide or make available User Data in a form reasonably required by Client; and
(f) unless Client requires Circus Street to remove the User Data beforehand, Circus Street may in any event delete any User Data between 12 and 24 months after the termination or expiry of this Agreement.
9.4 Termination or expiry of this Agreement will be without prejudice to any other rights or remedies which the parties may be entitled to under this Agreement or at law and will not affect any accrued rights or liabilities of either party nor the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination or expiry.
10.1 Circus Street warrants that it:
(a) shall, from the Launch Date, provide pre-assessments and access to the Lessons within the Lesson Licences and Full Access Licences ordered by Client for the Users through the provision of a log-in facility or, if the User 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 full capacity and authority to enter into this Agreement;
(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 Users during the Access Term;
(e) shall use its reasonable endeavours in accordance with Good Industry Practice not to introduce into the Hosted Service any Contaminants; and
(f) shall use an industry-recognised 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.
10.2 Save as set out in Clause 10.1 above, 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 Client’s or User’s present or future specific individual needs or requirements (other than to meet any Consultancy 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, the App or Website at any time for any reason including for any urgent or planned maintenance.
10.3 Circus Street shall use its reasonable endeavours to ensure that the information and ideas contained, suggested or referenced in the Product and Product Content are accurate and up-to-date, and the Product and Product Content are for general guidance only; 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.
10.4 Except as expressly set out in this Agreement, all warranties, conditions, undertakings or terms, express or implied, are hereby excluded to the fullest extent permissible by law.
10.5 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 Client acknowledges that access to the Hosted Service, Product, the 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, the App or Website will be uninterrupted or error-free or that it will be available at any particular speed.
10.6 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. Client hereby agrees to waive any claim they may have against Circus Street with respect to such websites.
10.7 Although Circus Street uses a firewall and takes steps against Contaminants in accordance with Good Industry Practice, Circus Street cannot guarantee 100% security and shall not have any Liability for damage to, unauthorised access to, or viruses or other code 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.
11.1 No party excludes or limits its Liability for: (a) its fraud; or (b) death or personal injury caused by its Negligence; or (c) any infringement of the other party’s Intellectual Property Rights; or (d) any Liability which cannot be excluded or limited by applicable law.
11.2 Subject to Clause 11.1, each party does not accept and it hereby excludes any Liability for Negligence other than any Liability arising pursuant to the terms of this Agreement.
11.3 Subject to Clause 11.1, no 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; 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. For the avoidance of doubt, Clauses 11.3 (b) to (m) apply whether such losses are direct, indirect, consequential or otherwise.
11.4 Subject to Clauses 11.1 and 11.3, the total aggregate Liability of each party for all causes of action arising in each Agreement Year shall be limited to the greater of: (a) £5,000; or (b) 110% of the total sums paid and total other sums payable, in aggregate, by Client to Circus Street under this Agreement, in that Agreement Year.
11.5 In this Agreement: (a) "Liability" means liability in or for breach of contract (including liability under any indemnity), Negligence, tort (whether deliberate or not), misrepresentation, restitution, breach of statutory duty or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to "this Agreement" shall be deemed to include any collateral contract); and (b) "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).
11.6 Force Majeure: Neither Circus Street nor Client shall have any Liability under or in connection with this Agreement if it is hindered or prevented from or delayed in performing any of its obligations under this Agreement, or from carrying on its business, by any act, event, omission or accident beyond its reasonable control, and regardless of whether the circumstance could have been foreseen (including, without limitation, any act of God, actions or omissions of third parties not in the same group as the party seeking to rely on this clause, insurrection, riot, civil war, civil commotion, war, armed conflict, sanctions, embargo, national emergencies, actual or threatened or suspected terrorism, strikes or combinations or lock-out of workmen, unusual travel restrictions, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, earthquake, volcano, ash cloud, natural disaster, accident, mechanical breakdown, third party software or infrastructure or communications, cyber-attack, collapse of building structures, failure of machinery or third party computers or third party hardware or vehicles (other than used by the relevant party), failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), or shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation). Each party shall inform the other party in writing of such an event and its expected duration.
12.1 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.
12.2 A party may disclose Confidential Information of the other party to its User, Administrator, 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 Clause 12. Each party shall use all reasonable endeavours to ensure that any such User, Administrator, employee, officer, director, contractor, consultant, subcontractor, supplier, customer, agent, professional adviser, insurer or third party service provider complies with such obligations..
12.3 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 warning thereof as practicable and inform in writing and consult with the other party and, at the other party's request and cost, fully co-operate with and assist that other party in opposing any such disclosure..
12.4 The obligations of confidentiality in this Clause 12 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..
12.5 Circus Street may identify Client as its client and the type of Services provided by Circus Street to Client, provided that in doing so Circus Street shall not (without Client’s prior written consent) reveal any Confidential Information of Client.
12.6 The obligations of this Clause 12 shall continue after termination or expiry of this Agreement for whatever reason.
13.1 In performing this Agreement, Client and Circus Street shall:
(a) comply with all applicable Data Protection Laws; and
(b) procure that its Users, Administrators, employees, officers, directors, contractors, consultants, subcontractors and suppliers, comply with all applicable Data Protection Laws.
13.2 The parties agree that, to the extent possible, Client shall ensure that any data is anonymised and does not contain any Personal Data, before it is provided to Circus Street. The parties agree and acknowledge that to the extent that the data provided by Client or a User or an Administrator to Circus Street contains Personal Data (which may include User Data and Personal Data about an Administrator) and in respect of Circus Street's obligations under this Agreement as to any such "Personal Data", Circus Street is merely a "Data Processor" and Client is the "Data 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 Clause 13 apply in respect of such Personal Data.
13.3 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 Client's documented instructions from time to time and shall not process the Personal Data for any other purpose.
13.4 In accordance with Client's reasonable request, Circus Street shall provide sufficient guarantees to Client as to Circus Street's processing of the Personal Data and in accordance with Data Protection Laws. As Data Controller, Client shall take overall responsibility for ensuring that Circus Street's processing complies with Data Protection Laws and Client shall provide confirmation to Circus Street that Circus Street's measures are sufficient to comply with Data Protection Laws. Where necessary, Client shall engage its own experts to verify this.
13.5 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 Client's request, or in response to a Data Subject's rights under Data Protection Laws), provided that Client shall reimburse Circus Street for any reasonable costs and expenses incurred in complying.
13.6 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 organisational measures against the unauthorised 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.
13.7 Circus Street shall inform Client immediately in writing if it becomes aware of any unauthorised or unlawful processing, loss of, damage to or destruction of, the Personal Data.
13.8 Client shall take overall responsibility for any Personal Data breach obligations under Data Protection Laws. Circus Street shall conform to the reasonable requirements of Client in respect of Personal Data breach notification requirements under Data Protection Laws, provided that Client shall reimburse Circus Street for any reasonable costs and expenses incurred in doing so.
13.9 Circus Street shall not transfer the Personal Data outside the United Kingdom (of England, Wales, Scotland and Northern Ireland) or European Economic Area without the express prior written consent of 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 Client (including for provision of available assistance, information and reporting to 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.
13.10 Client shall ensure that its instructions and requirements under this Agreement conform with all Data Protection Laws.
13.11 Client shall be responsible as Data Controller with providing each Data Subject (including the relevant Users and Administrators) at the appropriate time with a 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.
13.12 Client agrees that Circus Street may authorise 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 reporting to 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 Clause 13;
(b) the sub-processor's rights and obligations in relation to the processing of Client's Personal Data terminate automatically on termination of this Agreement for any reason; and
(c) Circus Street informs Client in writing of any intended changes concerning the addition or replacement of sub-processors, thereby giving Client a reasonable opportunity to make known to Circus Street any concerns that Client may have.
13.13 Circus Street shall provide all reasonable assistance and co-operation with Client at Client's cost and allow Client to conduct audits or otherwise demonstrate compliance at reasonable times and on reasonable prior written warning at Client's cost, in order to ensure and demonstrate compliance with Data Protection Laws.
13.14 The terms defined in this Clause 13 shall be construed in accordance with any change in definitions in Data Protection Laws from time to time. For example, a reference to "Data Controller" shall, once the GDPR applies, be construed as a reference to "controller" as that term is defined in the GDPR.
14.1 These Terms and Conditions are personal to Client, who shall not (and shall not purport to) assign, sub-license, 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 Client of any such assignment, transfer or novation.
14.2 Any notice required or authorised to be given under this Agreement shall be in writing and served by personal delivery or by recorded delivery (if sender and recipient are both in the same country) or overnight courier or by facsimile or by email using an Electronic Signature Provider addressed to the relevant party at its address stated in this Agreement or at such other address or facsimile number 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 facsimile number or email address of the relevant party last known to the other party. Any notice shall take place at the time that the sender can prove it was received.
14.3 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.
14.4 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.
14.5 This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, statement, warranty 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. 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.
14.6 This Agreement constitutes the whole 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.
14.7 The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Client or User whether such terms and conditions are contained in a purchase order, document or otherwise.
14.8 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement, and 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.
14.9 Circus Street may:
(a) make minor changes to this Agreement or any User Rules at any time without notice to Client or User by posting changes online either through the Product, the Website or the App. Client and User 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 Client or User after such changes have been posted constitutes acceptance of such changes. At Circus Street's option, Client or User may be required to read and accept any changes to this Agreement and the User Rules in order to continue to use the Product; and
(b) make material changes to this Agreement by no less than two months’ prior written warning to Client to take effect at the start of a Renewal Access Term.
Subject to the foregoing, no variation of this Agreement shall be effective unless made in writing and expressly agreed between the parties to be such a variation.
14.10 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.
14.11 In the event of any irreconcilable conflict between the provisions of any of the documents within this Agreement, then the Order Form shall prevail over these Terms and Conditions.
14.12 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 English law. All dealings, correspondence and contacts between the parties shall be made or conducted in the English language. If Client is domiciled:
(a) in the United Kingdom (of England, Wales, Scotland and Northern Ireland) or the European Union, the exclusive forum for settling any disputes which may arise out of or in connection with this Agreement shall be the English courts;
(b) outside the United Kingdom (of England, Wales, Scotland and Northern Ireland) and the European Union, any dispute which may arise out of or in connection with this Agreement shall be exclusively referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this Clause 14.12. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.
15.1 In this Agreement, unless the context otherwise requires:
(a) references to "Clauses" are to clauses of these Terms and Conditions;
(b) the headings are inserted for convenience only and shall not affect the interpretation or construction of this Agreement;
(c) words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;
(d) references to "written" or in "writing" (except in respect of sending a notice in accordance with Clause 14.2) includes in electronic form;
(e) references to "includes" or "including" or like words or expressions shall mean without limitation; and
(f) 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).
Version / Modified date: 8.8 / 2018 08 08
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 Access Term and any Renewal Access Term.
(b) “Administrator” means an employee, officer, director or contractor (acting in a similar role to an employee) or authorized representative nominated and designated by Client to deal with administrative functions relating to Client’s and Users’ use of and access to the Lessons and the Hosted Service including for Registration and support.
(c) “Affiliate” means a Person that directly or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with the person specified. For purposes of this definition, “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person whether through the ownership of voting securities, by contract or otherwise.
(d) “Agreement” means the Terms and Conditions, the Order Form and/or any details in the registration process involving Client or User and any changes or amendments thereto in accordance with Section 15.8 or 15.10.
(e) “Agreement Year” means either (i) a period commencing on the Commencement Date and continuing until termination of the Initial Access Term or (ii) the period of of a Renewal Access Term.
(f) “App” means the mobile and tablet application software, the data supplied with the software and the associated media provided by the Circus Street through which a User may access certain features of the App, the Product from time to time.
(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) “Circus Street” means Circus Street Inc., a New York corporation.
(i) “Client” means the client of Circus Street which agrees to obtain access to the Product through the Hosted Service in exchange for payment of the License Fee, and whose details are more particularly set out in the Order Form.
(j) “Client Content” means any Client specific content, including Client’s Confidential Information, for use in or to be uploaded to the Product or provided by Client to Circus Street.
(k) “Client Systems” means the computer systems operated by or for Client or a User and any mobile devices owned or provided to Users (whether provided to Users by Client or not) and used in conjunction with the Product.
(l) “Commencement Date” means the date on which Client agrees to the Order Form.
(m) “Confidential Information” means any information which is received by one Party from the other Party under or in connection with the Agreement 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 the Agreement together with any reproductions of such information or any part of such information, and this includes (i) where Circus Street is the discloser, the Product and Product Content and (ii) where Client or a User is the discloser, the Client Content.
(n) “Consultancy 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, provision of User Data and reports.
(o) “Consultancy Services Fee” means the fee charged by Circus Street for provision of Consultancy 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 Consultancy Services from time to time.
(p) “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.
(q) “Data Protection Laws” means (i) the European Union Data Protection Directive 95/46/EC, any national laws or regulations implementing that Directive, the General Data Protection Regulation EU 2016/679 (“GDPR”) (when applicable), any national laws or regulations constituting a replacement or successor data protection regime to that governed by GDPR, or any laws or regulations adopted in the United Kingdom or the European Economic Area (including the European Union) for a data protection regime (each constituting “UK and EEA Data Protection Laws”), and (ii) the laws and regulations in effect from time to time in other jurisdictions when applicable to the protection of Personal Data provided to a Party for purposes of the performance of Services pursuant to this Agreement (“Other Data Protection Laws”).
(r) “Enroll” means Client's request with Circus Street (using Circus Street's process) for a Lesson to be accessed by an individual user Registered by Client (and “Enrollment” shall be construed accordingly).
(s) “Fee” means the License Fee or the Consultancy Services Fee.
(t) “Full Access License” means the right for an individual User to have access to all Lessons in the Lesson Catalogue, as ordered by Client for its Users in accordance with the Order Form.
(u) “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.
(v) “Hosted Service” means the provision by Circus Street of access to Lesson Licences or Full Access Licences to Users pursuant to this Agreement, together with any support in accordance with Article V.
(w) “Initial Access Term” means the period of time during which the Lessons ordered may be accessed by Users, as may be set out in the Order Form, or (if not set forth therein) 12 months from the Launch Date.
(x) “Intellectual Property Rights” means all present and future copyright and related rights, trade marks 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.
(y) “Launch Date” means the date stipulated in the Order Form on which a User is to be first given access to a Lesson by Circus Street, which shall be the date that is three months after the Commencement Date (unless the Order Form stipulates another date).
(z) “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 Client or User from time to time.
(aa) “Lesson Catalogue” means the complete catalogue of Lessons made available by Circus Street for use or access by Client and Users from time to time.
(bb) “Lesson License” means an individual User’s access to an individual Lesson from the Lesson Catalogue, as ordered by Client for its Users in accordance with the Order Form.
(cc) “Liability” has the meaning given to it in Article XI.
(dd) “License” means the license granted under Article II.
(ee) “License Fee” means the fee set out in the Order Form (or otherwise expressly agreed in writing between Circus Street and Client) for Users’ access to the Lesson Licenses and Full Access Licenses.
(ff) “Minimum Specification” means any minimum technical specification for accessing the Product, provided by Circus Street in the App, on the Website or to Client or User from time to time.
(gg) “Order Form” means the order form, in the form stipulated or provided by Circus Street and attached as Exhibit A containing details of the specific products to be supplied by Circus Street to Client and of the fees to be paid to Circus Street by Client.
(hh) “Parties” means Circus Street and Client.
(ii) “Product” means the web-based training product specified in the Order Form, and any other related documentation or material supplied by Circus Street in conjunction with that product.
(jj) “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.
(kk) “Product Developments” means any modules. configurations or customizations to the Lessons or their delivery or provision that are developed by Circus Street for Client.
(ll) “Product Specification” means any specification for the Product, provided by Circus Street on the Websites, in the App or in writing to Client from time to time.
(mm) “Registration” means the uploading of individual user details by or on behalf of Client or User (or Circus Street on behalf of Client) onto the Product or Website or the App or otherwise as permitted by Circus Street, to create an account for the user in order for the user to access the Product (and “Registered” shall be construed accordingly).
(nn) “Renewal Access Term” has the meaning set out in Section 7.2.
(oo) “Services” means the Hosted Service or Consultancy Services.
(pp) “Terms and Conditions” means these Circus Street terms and conditions, together with any variations made in accordance with Section 15.8 or 15.10.
(qq) “User” means an employee, officer, director or contractor (acting in a similar role to an employee) or authorized representative of Client who is Registered and Enrolled pursuant to the Order Form
(rr) “User Data” means any data about Users obtained by Circus Street. including relating to the use of the Lessons by Users.
(ss) “User Rules” means the standard user rules in the form of Exhibit B which Circus Street requires Users to agree to from time to time in relation to their access to and use of the Lessons.
(tt) “Website” means the Circus Street websites, whose URLs are currently circusstreet.com or any relative subdomain, such as my.circusstreet.com or a Client specific subdomain, where “my” is substituted with a Client name, e.g. [clientname.circusstreet.com]
By execution of the Order Form, and these Terms and Conditions each Party acknowledges that the Terms and Conditions shall be applicable to any such Order Form.
In the event of any inconsistency between the provisions of the Order Form executed by the Client and these Terms and Conditions, the provisions of the Order Form shall control.
In consideration of Client’s payment of the Licenses Fees and Client’s compliance with this Agreement and all Users’ compliance with the User Rules, Circus Street hereby grants to Client a non-exclusive, non-transferrable, non-sublicensable license to access and use the Product and Product Content by way of Hosted Service, in each case only during the relevant Access Term and in accordance with the Agreement.
Client shall use the Product and Product Content for Client’s ordinary internal business purposes and shall not make the Product or Product Content available for use or access by any third party, except to the extent that Circus Street expressly permits in writing.
Client may enable each User 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. 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, nor allow a User to do so.
Any rights in respect of the Product or Product Content not expressly granted in the Agreement by Circus Street are reserved by Circus Street and Client shall have no rights therein or claims thereto.
Client shall cause each User to comply with the User Rules. Client shall be liable for any failure by a User to comply with the User Rules.
Client shall register its Users through its Administrator. Client undertakes that the maximum number of Users or Lesson Licenses or Full Access Licenses that it Registers and allows to Enroll shall not exceed the number of Users or Lesson Licenses or Full Access Licenses specified in the Order Form (or as otherwise expressly agreed in writing by Circus Street). If Client would like to make access to the Product available to any more Users or for any more Lesson Licenses or Full Access Licenses than is specified within the parameters ordered, then it shall first contact Circus Street to discuss and pay for any additional License Fee with a new agreement for new Lesson Licenses or Full Access Licenses (and Access Term for those additional Users or User Lesson Licenses or Full Access Licenses), and Client shall pay any additional Fee for the new Lesson Licenses or Full Access Licenses prior to such access. The amount for payment of the new Lesson Licenses or Full Access Licenses shall be as set out in the Order Form or agreed in writing between Client and Circus Street (or otherwise according to Circus Street’s standard rates from time to time for additional Users or Lesson Licenses or Full Access Licenses). Circus Street may provide data or information to help Client to monitor how many of its Lesson Licenses or Full Access Licenses have been used, but it is Client’s responsibility to check that it has ordered sufficient Lesson Licenses or Full Access Licenses for its Users and obtain Lesson Licenses or Full Access Licenses as it needs for its purposes.
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 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 and Administrators 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 or Product Content by anyone other than the User;
(d) it shall be liable for any use or access to the Product using a User’s username or password;
(e) User is at all times an employee, officer, director or contractor (acting in a similar role to an employee) or authorized representative of Client and for whom Client has already Registered as a User with Circus Street and has paid the License Fee or (in accordance with the terms of this Agreement) has agreed to pay the License Fee to Circus Street for such User to have access to and use of the Product and Product Content;
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 Administrator or by anyone who is no longer a User or Administrator, in which case Circus Street shall be entitled to cancel that password and/or disable access to and use of the Product without notice to Client or User or Administrator in addition to any other rights and remedies it may have; and
(b) pay and indemnify Circus Street against and hold Circus Street harmless from and against all losses, damages, costs and expenses suffered or incurred by Circus Street (including loss of revenue) resulting from any unauthorized use of or access to the Product or any username or password caused by the Client’s breach of Section 3.2 or 3.3 (a “Use Claim”). If Circus Street receives notice of any Use Claim or alleged Use 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. The Client will have the right to defend against any such Use Claim provided that Client, within twenty (20) days after the giving of such notice by Circus Street, notifies Circus Street in writing that Client disputes such claim and gives reasons therefor.
Circus Street reserves the right to edit, amend or issue new usernames and passwords or require Client, Users or Administrators to change a username or password at any time.
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 the Agreement, into disrepute.
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.
Client shall be responsible for ensuring that the Client Systems meet the Minimum Specification. Circus Street shall not be responsible for any failure of the Client or a User to access the Product to the extent caused by a failure of Client Systems or Client to ensure that the Client Systems meet the Minimum Specification.
Client hereby grants to Circus Street a non-exclusive, non-transferrable License to use the Client Content until the termination of the relevant Access Term only for the purposes of providing the Services under this Agreement.
Client shall not knowingly or negligently upload, post, publish, transmit or transfer to the Product, the App or Website or Circus Street 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 is likely to cause damage to, or adversely affect, data, software or the performance or availability of the Product, the App or Website; or (d) is in breach of any applicable law, regulation, code of practice, license, permit, authorization or registration. 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.
Client shall not:
(a) interfere with any other person’s use of a Product, the App or Website or otherwise act in a way that negatively affects another Client’s or user’s use of 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.
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 and shall have no liability or obligation in connection therewith.
From time to time Circus Street may issue updates to the App. Depending on the update, Client and/or a User may not be able to access or use some or all of the Product until the Client and/or User has downloaded the latest version of the App and accepted any new terms. All such updates to the App shall be subject to the Agreement as amended as provided in Sections 15.8 or 15.10.
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 provisions of Consultancy Services.
During the Access Term, as part of the overall Hosted Service, Circus Street shall provide support services to the Client’s Administrator (by email or telephone) during its regular support hours on Business Days.
Client shall, only through the Administrator, report any problems or errors by email, 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.
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) 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 Client or Users in connection with the Product.
Client and User 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 the Agreement shall operate to transfer or grant any rights in any Intellectual Property Rights in the App, the Product or Product Content to any person (including Client or any User).
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, Client hereby assign to Circus Street (by way of present and future assignment of copyright) all such Intellectual Property Rights in Product Developments (without Client Content).
Circus Street hereby acknowledges that, as between it and Client, all Intellectual Property Rights in the Client Content are owned by or licensed to 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 other person.
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 reasonable efforts to ensure that there is no material adverse change in the content, quality or performance of the Product or the Product Content.
Except to the extent expressly permitted in this Agreement or at law, Client shall not reproduce, download, 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 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 Client first paying Circus Street’s reasonable fee for providing such information. Any reproduction of the Product or Product Content shall be the property solely of Circus Street.
Client and User shall promptly notify Circus Street in writing in the event that it becomes aware of any unauthorized use of or access to the Product or any actual or suspected infringement of any of Circus Street’s Intellectual Property Rights, and Client and User shall provide all further cooperation reasonably requested by Circus Street.
Circus Street shall promptly notify 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 Client’s Intellectual Property Rights, and Circus Street shall provide all further cooperation reasonably requested by Client.
In the event of any claim being brought against Client that the normal use of the Product in accordance with the Agreement infringes the Intellectual Property Rights of a third party (a “Claim”), Circus Street shall indemnify 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 Client: (a) as soon as reasonably practicable notifies Circus Street in writing of any such Claim of which Client becomes aware; (b) does not make any admission as to liability or compromise or agree to any settlement of the Claim without Circus Street’s prior written consent thereto (such consent not to be unreasonably withheld or delayed), or otherwise prejudice Circus Street or any other third party’s defense of such Claim; (c) give Circus Street, or such person as Circus Street shall direct, immediate and complete control of the conduct or settlement of all negotiations and litigation arising from the Claim; and (d) upon payment of its reasonable costs, give Circus Street, and other third parties as Circus Street directs, all reasonable assistance with the conduct or settlement of any such negotiations or litigation. The indemnity in this Section 6.8 shall not apply to the extent that any Claim arises out of Circus Street’s use of any Client Content, in which event Client shall instead indemnify Circus Street on similar terms as set forth in this Section 6.8. The indemnified party shall always act reasonably and use its reasonable efforts to mitigate any Claims.
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 Client’s control and monitor the Client’s use of and access to the Product (whether remotely or not) to verify that Client are complying with the terms of the Agreement and the User Rules and not infringing Circus Street’s or its licensors’ Intellectual Property Rights.
Client acknowledges that it has no right to have access to the App in source code form.
Client shall not, during the term of the License granted under the 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.
Except to the extent that the Order Form expressly provides to the contrary, this Agreement shall commence on the Commencement Date and (subject to earlier termination under this Agreement) shall continue until the Launch Date and then for the initial Access Term and successive Renewal Access Terms.
Each Access Term for a User shall commence at the beginning of the Initial Access Term. Unless this Agreement is terminated earlier in accordance with its terms or unless the Order Form provides otherwise, this Agreement shall automatically continue for a renewal access term upon the expiry of the Initial Access Term or upon the expiry of a previous renewal access term with each renewal access term being a 12 month period unless the Order Form provides otherwise (each, a “ Renewal Access Term”). This Agreement may be terminated by either Circus Street or Client by giving to the other not less than one month's prior written notice, such notice to expire upon the last day of the Initial Access Term or of a Renewal Access Term.
If Client has ordered Lesson Licenses or Full Access Licenses but not Enrolled all Users or not all Lesson Licenses covered in the order have been used or accessed within the relevant 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 Client.
Unless otherwise expressly agreed in writing by Circus Street, Client shall pay the License Fee in advance of Client’s and Users’ ability to access or use any of the Lessons within the Lesson License or Full Access License for the Initial Access Term on or before the Launch Date, and for each subsequent Renewal Access Term on or before the commencement of the relevant Renewal Access Term.
Circus Street may increase the Fee by no less than two months’ prior notice to take effect at the commencement of a Renewal Access Term.
Unless otherwise expressly agreed in writing by Circus Street, Client shall pay the Consultancy Services Fee monthly in arrears for the Consultancy Services supplied in that month (provided that Circus Street may require payment for any known Consultancy Services Fees in advance of providing the Consultancy Services).
All sums due to Circus Street are exclusive of taxes (if applicable) which Client shall pay to Circus Street in addition at the same time as payment of the Fee.
Payment of all sums due under the Agreement shall be made by Client without any set-off, deduction or withholding whatsoever.
Payments under this Agreement shall be made in US dollars.
Circus Street may issue an invoice to Client for the Fee.
Client shall pay Circus Street the Fee in accordance with Sections 8.1 (and in any event, within 28 days of the date of Circus Street’s invoice). Client shall pay Circus Street by any payment method reasonably stipulated by Circus Street or otherwise agreed in writing by the Parties.
No payment shall be considered to be paid until it is received by Circus Street in cleared funds. Client and its Users shall not have a right to access a Lesson until Client has paid the relevant Fee and applicable taxes in full.
If the laws of any jurisdiction where Client is located require Client to withhold tax on any payment which Client is obliged to make to Circus Street under this Agreement, the Parties shall use their respective reasonable efforts to conduct their accounting arrangements where legally possible to avoid the application of withholding tax (such as for Client to contract and pay through a company in a jurisdiction where withholding tax would not apply). If withholding tax does apply, 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 such tax payment; and
(c) in the event that any taxes deducted cannot be used by Circus Street as a credit against any tax payable by Circus Street, Client at such time or times as Circus Street reasonably requires shall pay to Circus Street any deficiency in the amount payable to Circus Street attributable to such tax deductions.
If Client is late in paying any amount of monies due to Circus Street (under the Agreement or under any other agreement between Circus Street and Client), Circus Street may (without prejudice to any other right or remedy available to it whether under the Agreement or any other agreement between Circus Street and Client or by any statute, regulation or otherwise) do either or both of the following:
(a) charge interest and other charges on the amount due but unpaid at the rate of 2% per month calculated on the basis of a year of 12 months of 30 days each or such lesser rate as shall be the maximum amount permitted by law from time to time from the due date until payment, such interest to be determined on a day to day basis and to be compounded monthly; or
(b) give Client at least five Business Days’ notice that it is suspending Client’s and Users’ access to the Product with immediate effect until Circus Street receives the outstanding amounts in full.
In addition to its rights of suspension under Section 8.11, Circus Street reserves the right to suspend or disables access to and use of the Product by Client and Users if: (a) Circus Street reasonably suspects that Client or any User is in breach of this Agreement (or any agreement between Circus Street and Client) 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 Client or its Users or use of the Product by an individual or organization who is not (or no longer is) a User; or (c) Client or any User is misusing the Product or infringing Circus Street’s Intellectual Property Rights. This suspension may be upon one (1) Business Day 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 by Client and Users pursuant to this Section 9.1, it shall promptly inform Client following such suspension providing Client with reasons for such suspension in order that 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.
Either Circus Street or Client may terminate the Agreement by notifying the other Party in writing with immediate effect if:
(a) the other Party is in material breach of any of its obligations under the Agreement or any other agreement between the Parties which are incapable of remedy; or
(b) the other Party fails to remedy, if capable of remedy, any material breach of any of its obligations under the Agreement or any other agreement between the Parties after having been notified in writing to remedy such breach within a period of no more than 30 days.
If Client files a petition in bankruptcy or is adjudicated bankrupt or if a petition in bankruptcy is filed against Client or if Client becomes insolvent, or makes an assignment for the benefit of its creditors or an arrangement pursuant to any bankruptcy law is made affecting Client, or if Client discontinues its business or if a receiver is appointed for Client or Client’s business, the rights and license hereby granted to Client shall automatically terminate forthwith without any notice being necessary.
Upon termination of the Agreement:
(a) Client shall and shall cause all Users to, 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;
(b) 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 the other Party’s possession or under that other Party’s control or promptly deliver or destroy materials and tangible items in the other Party’s possession or under the other Party’s control which contain any Confidential Information of the Party requiring the action (including Client causing Users to do likewise). Each Party may require an officer or authorized representative of the other Party to provide a written certification, signed by such officer or other authorized representative of such Party, certifying that there has been full compliance with this Section 9.4(b);
(c) Client shall, and shall procure that all Users 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) in the event of termination by Client pursuant to Section 9.2, Circus Street shall pay to Client an amount equivalent to the License Fee pro rated to reflect the unused Access Term;
(e) subject to Client payment of any applicable Consultancy Services Fees in advance, promptly following Client’s written request, Circus Street shall provide or make available User Data in a form reasonably required by Client;
(f) Circus Street may in any event delete any User Data 12 months or more after the termination of this Agreement; and
(g) The Parties hereto shall have all rights and remedies set forth in the Agreement and all rights and remedies available under difficult applicable law. The Parties acknowledge that a breach of the covenants contained in this Article IX may cause irreparable damage, the exact amount of which will be difficult to ascertain and that remedies at law for any such breach will be inadequate. Accordingly, the Parties agree that, in addition to all other available remedies (including without limitation seeking such damages as can be shown to have been sustained by reason of such breach) the non-defaulting Party shall be entitled to (i) specific performance, injunctive relief and other equitable relief without being required to post bond or other security and without having to prove the inadequacy of the remedies available at law and (ii) the reimbursement of any and all reasonable attorneys fees and costs incurred by the non-breaching Party in seeking such relief and exercising its rights and remedies hereunder.
Termination of the Agreement shall be without prejudice to any other rights or remedies which the Parties may be entitled to under the Agreement or at law or in equity and will not affect any rights or liabilities of either Party nor there becoming effective or continuing in force and effect any provision which is expressly or otherwise intended to become effective or continue in force and effect as of or after such termination.
Circus Street represents and 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 Client for the Users through the provision of a log-in facility or, if the User 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 full capacity and authority to enter into his Agreement; and (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 Users during the Access Term; (e) shall use its reasonable commercial efforts in accordance with Good Industry Practice not to introduce into the Hosted Service any Contaminants; and (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 Containment, it shall be promptly eradicated or quarantined by Circus Street.
EXCEPT AS SET OUT IN SECTION 10.1 ABOVE, 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 USER’S PRESENT OR FUTURE SPECIFIC INDIVIDUAL NEEDS OR REQUIREMENTS (OTHER THAN TO MEET ANY CONSULTANCY SERVICES THAT CIRCUS STREET IS REQUIRED TO PROVIDE), AND CLIENT AGREES TO USE THE PRODUCT EXCLUSIVELY AT ITS OWN RISK;
(b) THAT THE PRODUCT WILL BE COMPATIBLE WITH CLIENT SYSTEMS OTHER THAN THOSE MEETING THE MINIMUM SPECIFICATION; OR
(c) THAT ACCESS TO THE HOSTED SERVICE, THE PRODUCT, THE APP OR WEBSITE WILL BE DELIVERED WITHOUT INTERRUPTION, FAULT OR ERROR, EXCEPT IF 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.
Circus Street shall use its reasonable commercial 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. 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.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS, UNDERTAKINGS OR TERMS, EXPRESS OR IMPLIED, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE BY LAW.
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 Client acknowledges that access to the Hosted Service, the Product, the 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 Services, the Product, the App or Website will be uninterrupted or error-free or that it will be available at any particular speed.
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. Client hereby agrees to waive any claim they may have against Circus Street with respect to such websites.
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 viruses or other code 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.
No Party excludes or limits its Liability for: (a) its fraud; or (b) death or personal injury caused by its Negligence; or (c) any infringement of the other Party’s Intellectual Property Rights or Confidential Information; or (d) any Liability which cannot be excluded or limited by applicable law.
Subject to Section 11.1, each Party does not accept and it hereby excludes any Liability for Negligence other than any Liability arising pursuant to the terms of the Agreement.
Subject to Section 11.1, no 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; 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 11.3(b) to (m) shall apply whether such losses are direct, indirect, consequential or otherwise.
Subject to Sections 11.1 and 11.3, the total aggregate Liability of each Party for all causes of action arising in each Agreement Year shall be limited to the greater of (a) US$7,000 or (b) 110% of the total amount paid and total additional amount payable, in the aggregate, by Client to Circus Street under the Agreement in such Agreement Year.
In the Agreement: (a) ”Liability” means liability in or for breach of contract (including liability under any indemnity), Negligence, tort (whether intentional or not), misrepresentation, restitution, breach of duty under any applicable statute or regulation thereunder or any other cause of action whatsoever relating to or arising under or in connection with this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to “this Agreement” shall be deemed to include any collateral contract); and (b) ”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) other legal duty to take reasonable care or exercise reasonable skill (but not any stricter duty).
Force Majeure: Neither Circus Street nor Client shall have any Liability under or in connection with the Agreement if it is hindered or prevented from or delayed in performing as a result of a force majeure event, any of its obligations under this Agreement, or from carrying on its business, by any act, event, omission or accident beyond its reasonable control and regardless of whether the circumstance could have been foreseen (including, without limitation, any act of God, actions or omissions of third parties not in the same group as the Party seeking to rely on this Section 11.6, insurrection, riot, civil war, civil commotion, war, armed conflict, sanctions, embargo, national emergencies, actual or threatened or suspected terrorism, strikes or combinations or lock-out of workmen, unusual travel restrictions, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, earthquake, volcano, ash cloud, natural disaster, accident, mechanical breakdown, third-party software or infrastructure or communications, cyberattack, collapse of building structures, failure of machinery or third-party computers or third-party hardware or vehicles (other than used by the relevant Party), failure or problems with the public utility supplies (including general, electrical, telecoms, water, gas, postal, courier, communications or internet disruption or failure), or shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation). The Party unable to perform shall inform the other Party in writing of such an event and its expected duration as soon as reasonably possible. If any force majeure event prevents a Party from performing its obligations hereunder in any material respect for more than sixty (60) consecutive days, the other Party shall have the right to terminate the Agreement upon five (5) Business Days prior written notice to the Party subject to such a force majeure event.
Neither Party shall use or disclose the Confidential Information of the other Party except:
(a) for the purposes of the proper performance of its obligation 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.
A Party may disclose Confidential Information of the other Party to its User, Administrator, 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 XII. Each Party shall use all reasonable efforts to ensure that any such User, Administrator, employee, officer, director, contractor, consultant, subcontractor, supplier, customer, agent, professional adviser, insurer or third-party service provider complies with such obligations.
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 the other Party in opposing any such disclosure.
The obligations of confidentiality in this Article XII 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;
(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.
Circus Street may identify Client as its client and the type of Services provided by Circus Street to Client, provided that in doing so Circus Street shall not (without Client’s prior written consent) reveal any Confidential Information of Client.
The obligations under this Article XII shall survive and continue after termination of this Agreement for whatever reason.
The provisions of this Article XIII will be applicable to and are agreed to by Client and Circus Street. All references to Data Protection Laws in this Article XIII are intended to and shall include UK and EEA Data Protection Laws, as currently in effect or may be in effect in the future.
In performing this Agreement, Client and Circus Street shall:
(a) comply with all applicable Data Protection Laws; and
(b) procure that its Users, Administrators, employees, officers, directors, contractors, consultants, subcontractors and suppliers, comply with all applicable Data Protection Laws.
The Parties agree that, to the extent possible, Client shall ensure that any data is provided to Circus Street upon an anonymous basis and does not contain any Personal Data, before it is provided to Circus Street. The Parties agree and acknowledge that to the extent that the data provided by Client or a User or an Administrator to Circus Street contains Personal Data (which may include User Data and Personal Data about an Administrator) and in respect of Circus Street’s obligations under this Agreement as to any such “Personal Data”, Circus Street is merely a “Data Processor” and Client is the “Data 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 XIII apply in respect of such Personal Data.
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 Client’s documented instructions from time to time and shall not process the Personal Data for any other purpose.
In accordance with Client’s reasonable request, Circus Street shall provide sufficient guarantees to Client as to Circus Street’s processing of the Personal Data in accordance with Data Protection Laws. As Data Controller, Client shall take overall responsibility for ensuring that Circus Street’s processing complies with Data Protection Laws and Client shall provide confirmation to Circus Street that Circus Street’s measures are sufficient to comply with Data Protection Laws. Where necessary, Client shall engage its own experts to verify such compliance by Circus Street.
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 Client’s request, or in response to a Data Subject’s rights under Data Protection Laws), provided that Client shall reimburse Circus Street for any reasonable costs and expenses incurred in so complying.
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 inform Client immediately in writing if it becomes aware of any unauthorized or unlawful processing, loss of, damage to or destruction of, Personal Data.
Client shall take overall responsibility for any Personal Data breach obligations under Data Protection Laws. Circus Street shall conform to the reasonable requirements of Client in respect of Personal Data breach notification requirements under Data Protection Laws, provided that Client shall reimburse Circus Street for any reasonable costs and expenses incurred in doing so.
Circus Street shall not transfer the Personal Data outside the United Kingdom (of England, Wales, Scotland and Northern Ireland) or European Economic Area or any other jurisdiction where the Client is located or requires the Personal Data to be processed, without the express prior written consent of 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 Client (including for provision of available assistance, information and reporting to 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.
Client shall ensure that its instructions and requirements under this Agreement conform with applicable Data Protection Laws.
Client shall be responsible as Data Controller with providing each Data Subject (including the relevant Users and Administrators) at the appropriate time with a 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.
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 reporting to 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 XIII;
(b) the sub-processor’s rights and obligations in relation to the processing of Client’s Personal Data terminate automatically on termination of this Agreement for any reason; and
(c) Circus Street informs Client in writing of any intended changes concerning the addition or replacement of sub-processors, thereby giving Client a reasonable opportunity to make known to Circus Street any concerns that Client may have.
Circus Street shall provide all reasonable assistance and co-operation with Client at Client’s cost and allow Client to conduct audits or otherwise demonstrate compliance at reasonable times and on reasonable prior written warning at Client’s cost, in order to ensure and demonstrate compliance with Data Protection Laws.
The terms defined in this Article XIII shall be construed in accordance with any change in definitions in Data Protection Laws from time to time. For example, a reference to “Data Controller” shall, once the GDPR applies, be construed as a reference to “controller” as that term is defined in the GDPR.
In connection with Personal Data subject to Other Data Protection Laws in jurisdictions in circumstances in which UK or EEA Data Protection Laws are not applicable, the provisions of this Article XIV will be applicable to Client and Circus Street.
To the extent Circus Street processes any Personal Data on behalf of Client or a User, it shall only process such Personal Data for the purposes of providing Services under this Agreement in accordance with Client’s instructions and shall take 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. Client acknowledges that Circus Street may process certain Personal Data about individuals (including Users) in order to provide access to the Product and Website; and that data may include name, Client address, email address, telephone number, position or role at Client, username and password.
These Terms and Conditions are personal to Client, who shall not (and shall not purport to) assign, sub-license, 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. 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 the Agreement either in whole or in part to any other person, firm or company; Circus Street shall promptly give notice to Client of any such assignment, transfer or novation.
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 15.2. 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) sent by facsimile with confirmation of transmission by the transmitting equipment, (c) received by the addressee, if sent by certified mail, return receipt requested, or (d) received by the addressee, if sent by a nationally recognized overnight delivery service, in each case to the appropriate addresses or facsimile numbers set forth below (or to such other addresses or facsimile numbers as a Party may designate by notice to the other Party):
If to Client:
If to Circus Street:
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.
If any provision of this Agreement shall be held to be unlawful, invalid or unenforceable, in whole or in part, under any enactment, rule of law or judicial determination, such provision or part shall to that extent be severed from the Agreement and rendered ineffective as far as possible without modifying or affecting the legality, validity or enforceability of the remaining provisions of the Agreement which will remain in full force and effect.
The Agreement contains all the terms agreed between the Parties regarding its subject matter and supersedes and excludes 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 the Agreement except as expressly stated in the 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 the Agreement (unless such untrue statement was made fraudulently) and that Party’s only remedies shall be for breach of contract as provided in the Agreement.
The 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.
The terms of the Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Circus Street, Client or User whether such terms and conditions are contained in a document or otherwise.
Circus Street may: (a) make minor changes or amendments to this Agreement or the User Rules at any time without notice to Client or User by posting changes online either through the Product, the Website or the App. Client and Users are responsible for regularly reviewing information posted through the Product, the Website or the App in order to obtain timely notice of such changes. Continued access or use of the Product by Client or User after such changes have been posted constitutes acceptance of such changes. At Circus Street’s option, Client or User may be required to read and accept any changes to this Agreement and the User Rules in order to continue to use the Product; and (b) make material changes to this Agreement by no less than two months’ prior written notice to Client to take effect at the start of a Renewal Access Term. Subject to the foregoing, no variation of this Agreement shall be effective unless made in writing and expressly agreed between the Parties to be such a variation.
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.
Except as provided in Section 15.8, the Parties may amend this Agreement by written amendment executed by both Parties and no amendment or change of this Agreement shall be effective unless in writing and expressly agreed between the Parties to be such amendment or change.
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.
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 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 pursuant to the terms of Section 15.13. Except as provided in Section 15.14, the Parties agree that arbitration pursuant to Section 15.13 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.
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 15.14 shall survive the termination of the Agreement.
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.
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.
In this Agreement, unless the context otherwise requires:
(a) references to “Sections” are to Sections of these Terms and Conditions;
(b) the headings are inserted for convenience only and shall not affect the interpretation or construction of this Agreement;
(c) words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;
(d) references to “written” or in “writing” (except in respect of sending a notice in accordance with Section 15.2) includes in electronic form;
(e) references to “includes” or “including” or like words or expressions shall mean without limitation; and
(f) 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).
FORM OF ORDER FORM
ORDER FORM
Circus Street Inc. and Client Agreement
Order Form
PO Ref: Date:
BETWEEN:
CIRCUS STREET INC., corporation organized under the laws of the State of New York whose principal office is at 135 Madison Avenue, 5th Floor, New York, NY 10016 (“Circus Street”); and
[Insert Name], a [__________] organized under the laws of [jurisdiction] (“Client”).
LICENSE TERMS:
Circus Street agrees to license to Client, and Client shall pay for access to, the Product (as defined below), subject to the terms set out in this Order Form and the Circus Street Terms and Conditions to which this Order Form is attached.
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Product: |
[Define the Lessons that are available (e.g. all Lessons from the Lesson Catalogue) or specified Lessons] |
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Which type of License is being ordered - Full Access Licenses or Lesson Licenses, or both)? |
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If Full Access Licenses apply – No. of Users receiving a Full Access License: |
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If Lesson Licenses apply – No. of Lesson Licenses ordered: |
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Commencement Date: |
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Launch Date: |
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License Fees (insert, which depends on the License type): |
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License Fees (insert, which depends on the License type): |
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Consultancy Services (insert description, if any): |
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Consultancy Services Fees |
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Payment profile |
Client shall pay in accordance with Article VIII of the Terms and Conditions within 28 days of Circus Street’s invoice, and in any event in advance of the Launch Date (in respect of the Initial Access Term) or of any Renewal Access Term. |
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Client principal contact: |
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Circus Street principal contact: |
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In respect of any Personal Data processed by Circus Street for the Client, set out: (a) subject matter of data protection (b) duration of processing (c) nature and purpose of processing (d) Type of personal data (e) Categories of data subject (f) Obligations and rights of the controller |
To provide Client’s users with access to Lessons and content in an accessible online format or through an app, and to deal with support questions. During the Access Term and for two years afterwards, unless the Client requires Circus Street to remove access to it beforehand. To provide Client’s users with access to lessons and content in an accessible online format or through an app, and to deal with support questions. The User’s name, username, password, address, email address, telephone number, title or position or role with Client, line manager, division in the business e.g., group, region or brand), Lessons subscribed/used (including any tests taken). Also, the name, password, address, email address, telephone number, title or position or role within Client of an authorized person to administer the access on behalf of Client. Users, i.e. employees, officers, directors or contactors (acting in a similar role to employees) or authorized representatives of Client who are registered and enrolled to receive the Hosted Service. Also, Administrators, i.e., employees, officers, directors or contractors (acting in a similar role to employees) or authorized representatives of Client who are nominated and designated by Client to deal with administrative functions relating to Client’s and User’s use of and access to the Lessons and Hosted Service, including for registration and support. As set out in this Agreement including the Circus Street Terms and Conditions. |
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This Agreement is made on the date above on which the parties or their duly authorized representatives have signed. |
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For and on behalf of Circus Street |
For and on behalf of Client |
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Signed: |
Signed: |
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Name (Print): |
Name (Print) |
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Position: |
Position: |
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Date: |
Date: |
Welcome to Circus Street Lessons. We hope that you find them interesting and a rewarding experience.
Your employer or other organisation you work with is our ‘Client’, also known as your ‘Sponsor’ in our service and we refer to you as a ‘Learner’ or ‘User’. We, ‘Circus Street’, are the ‘Service Provider’. Depending on which entity your Sponsor has contracted with, ‘Circus Street’ for you will be either (a) Circus Street Inc, USA (The Americas) or (b) Circus Street (SG) Pte., Singapore (Asia Pacific) or (c) Circus Street London Limited (Rest of the World including Europe). The Circus Street group of companies work interchangeable to provide our service.
Our Lessons contain proprietary content, so these are a few basic rules that apply to your use of them (our ‘Service’). If you do not wish to abide by these rules, then you should not proceed to take the Lesson and advise your Sponsor of the reasons so that they can re-assign your licence. For any questions about how we support your Sponsor in providing you with the Service, please ask your Sponsor.
You will have a Learner Account that is individual to you and so you can access the particular Lessons that have been obtained for you by your Sponsor. We have agreed with your Sponsor for us to provide you with the Service, but provided that you first agree to these User Rules.
1. If your Sponsor has asked us to enable our Service to be accessible through their Single-Sign-On authentication process, then you will gain access to your Lessons automatically by signing on using their system. If no Single-Sign-On has been set up, then you will be provided with a user name and initial password when you agree to these User Rules. You will be required to change the password to one of your own choice. You must choose a sufficiently strong password that meets the complexity rules shown on the login screen and your Sponsor's password rules and keep it confidential and not share it with anyone else.
2. If you forget your password, or have other difficulties in getting access to your Lessons, you should contact your Sponsor's Administrator. If they cannot resolve your issue, they will ask you to contact Circus Street Learner Support for assistance.
3. If you suspect someone else knows your password or has been using it to access Lessons, please tell your Sponsor's Administrator immediately.
4. If you email Circus Street Learner Support (support@circusstreet.com), we may reset your password in order that we can reproduce the problem. When we have resolved your issue, you should change your password promptly to again make sure it is known only by you.
5. Your licence to use our Service is specific to you. You must therefore not allow your learner credentials to be used by any other person.
6. Do not try to use someone else's user name or password and do not interfere with anyone else's use of the Lessons, and do not do anything that could adversely affect us, our Service or the Lessons we provide.
7. We have invested in our Lesson materials to give a high quality learning experience. Anything you see on screen and its soundtrack are our intellectual property and protected by copyright law. You must not attempt to record them, or display them for more than your personal use. Doing so would constitute copyright infringement, and we may take action against anyone who infringes our copyright. You must not (yourself or with others) reproduce, download, copy, publish, post, broadcast, transmit, sell, license, distribute, circulate, make available, alter, modify, translate, decompile, recompile or reverse engineer any of the Lessons. We reserve all our rights in the Lessons. If you have any questions, please ask your Sponsor's Administrator.
8. You agree to reasonably co-operate with us and your Sponsor regarding your use of the Lessons.
9. When you put into use anything you have seen, heard or learnt from the Lessons, you need to consider whether it is appropriate for your own use, for your circumstances and in the place where you are located. Any decisions based on the Lessons are the Sponsor's and User's responsibility.
10. Our agreement is with your Sponsor. We have no liability to individual Users (except as the law requires otherwise).
11. We may suspend or terminate your Learner Account and advise your Sponsor of this, if we have sufficient reason to believe that you have not followed these User Rules or if our agreement with your Sponsor ends or is suspended. Access may also be suspended temporarily due to events beyond our reasonable control or when there is maintenance. Where possible, we try to give your Sponsor's Administrator reasonable prior warning of planned downtime.
12. If your Learner Account is suspended or terminated, do not try to access the Lessons unless we have agreed that you can.
13. We may change these User Rules periodically. Accessing the Lessons after you have been informed of a change of these User Rules would amount to accepting the updated User Rules.
Copyright ©2010-2018 Circus Street London Ltd. All Rights Reserved.