1.AGREEMENT
This Agreement sets out the terms under which iSales Academy Limited has agreed it will provide services to you.
1.1 The Contract in respect of the services will incorporate the following and the expression “this Agreement” shall mean:
a. Any regulatory and/or government-funded programme terms;
b. the terms of this Agreement;
c. the proposal and/or statement of work;
d. any contract change note; addendum; or notice served by iSales Academy Limited under Clause 7 of this Agreement.
1.2 In the event of a conflict between the terms contained in the following applicable documents, then the terms that shall prevail shall be in the following descending order of priority:
a. any regulatory and/or government-funded programme terms;
b. Contract change note; addendum; or notice served by ISales Academy Limited under Clause 7;
c. these General Terms & Conditions.
2.INTERPRETATION
2.1 Any reference to (a) the plural includes the singular and vice versa, (b) any party includes its successors in title and permitted assigns, and (c) a “person” includes any individual, firm, body corporate, association or partnership, government or state (whether or not having a separate personality).
2.2 Any reference to a statutory or regulatory requirement will (a) include any relevant Act of Parliament, subordinate legislation or other enforceable right and (b) be construed as a reference to that requirement as may be amended, replaced extended or consolidated from time to time.
2.3 General words will not be given a restrictive meaning where they follow one or more specific terms indicating a particular category of act, matter or thing or where they are followed by examples. The words “including” and “in particular” (or similar) will not limit the generality of any preceding words.
2.4 Headings are inserted for convenience only and shall not affect the interpretation of these iSales Academy Limited General Terms and Conditions.
2.5 References to a “party” or to the “parties” should be taken as being to the parties to these iSales Academy Limited General Terms and Conditions.
3.COMMENCEMENT & TERM
3.1 This Agreement shall commence on the Commencement Date (unless terminated at an earlier date under Clause 9 – Termination) until terminated by either party giving to the other party not less than 3 (three) months advanced written notice of termination.
4.STAFF AND GOVERNANCE
4.1 The parties shall each appoint an Appointed Representative and continue to deploy the same to act as a point of contact for the other in respect of issues arising under this Agreement for the duration of this Agreement. Should an Appointed Representative’s employment with a party be terminated, or should they be unable to perform the role of an appointed representative the party which engages them shall promptly replace such Authorised Representative with a suitably skilled and knowledgeable replacement and shall notify the other of that individual’s name, job title and full contact details. Each party shall, with reasonable cause, be entitled to request that the other party replaces its Authorised Representative following the requirements of this clause.
4.2 We shall appoint a person to act as your Account Manager who will be responsible for the overall provision of the Services under this Agreement and who will be the principal point of contact between you and us. We may need to change your Account Manager from time to time, but will use reasonable endeavours to maintain the same personnel where reasonably practicable
5.CUSTOMER GROUP
5.1 Subject to Clause 5.2, you may permit other members of your Group as notified to us from time to time to place orders under this Agreement and use the Services supplied by us under this Agreement, provided that any act or omission of such members of your Group shall for the purposes of this Agreement be deemed to be the act or omission of you.
5.2 You shall procure that such Group members fully comply with the terms of this Agreement. The relevant member of your Group may, on request, be billed separately for the Charges incurred by that member, provided that you shall ultimately remain liable to pay all the Charges in respect of the Services by other members of your Group.
6.DISPUTES
6.1 Any disputes, controversies or claims arising out of this Agreement shall first be referred to the respective parties’ Appointed Representatives. The Appointed Representatives will review the nature of the dispute together within thirty (30) days of the dispute arising and if they cannot reach agreement on the dispute within such thirty (30) day period, the matter shall be referred to the Chief Executive Officer or Managing Director of that part of the relevant Party’s business which is responsible for performing the obligations of that Party under this Agreement. If the Chief Executive Officer or Managing Director are themselves unable to resolve the matter within thirty (30) days of the first request for them to do so, the Parties shall be free to pursue the matter in accordance with Clause 6.2.
6.2 Any dispute, controversy or claim which remains unresolved following escalation in accordance with Clause 6.1 shall be resolved in accordance with a mediation service as the Parties may agree.
6.3 Nothing in this Agreement prevents either party from seeking an interim legal remedy (such as an injunction) through the Courts at any time where that party’s interests would be irretrievably prejudiced by the delay involved in satisfying the requirements of Clauses 6.1 and 6.2. Subject to the provisions of this Clause 6.3, however, no claim for monetary compensation shall be issued in respect of any matter to which Clauses 6.1 and 6.2 apply until the mechanisms in those Clauses have been exhausted, unless both parties agree.
7.VARIATIONS
7.1 We may by issue of a notice to you (sent by post or e-mail) vary the provisions of this Agreement where such variation is required as a result of:
a. written request from you that has been approved in writing by an authorised representative of iSales Academy Limited;
b. any legislation, statutory instrument, government regulation, regulatory requirement or licence;
c. changes imposed by third party suppliers; or
d. a change to iSales Academy Limited’s operations provided such change is also implemented in relation to the majority of iSales Academy Limited’s business customers.
7.2 Where any variation by iSales Academy Limited to this Agreement is likely to be of material detriment to the Customer, iSales Academy Limited will give the Customer at least one month’s written notice of the variation (save where this is not practicable due to a change imposed by a legal or regulatory body) and the Customer will have the right to terminate the relevant Service in accordance with Clause 9 (Termination).
8.SUSPENSION
8.1 We may, without liability to you, suspend or restrict use of any of our Services if:
a. the emergency services tell us to, or a law or regulation is passed which means we need to do so;
b. we believe you are using the Services in an illegal or fraudulent way;
c. you become subject to an Insolvency Event; or
d. during any technical failure, modification or maintenance of any supporting network infrastructure
8.2 We shall use our reasonable endeavours to keep any suspensions under Clause 8.1 to a minimum, to provide prior notice where possible and to restore the services as soon as reasonably practical.
8.3 Without prejudice to our other rights under this Agreement, we may additionally suspend or restrict use of any or all of our Services where we have not received payment of outstanding Charges (including any accrued interest) where those charges are not being disputed in good faith.
9.TERMINATION
9.1 Subject to the remainder of this clause 9, you may terminate this Agreement in whole or in part and may terminate any individual Order at any time by giving us 90 days written notice.
9.2 Without prejudice to Clause 7 (Variations), we may terminate this Agreement whole or in part by giving you 90 days written notice.
9.3 Either Party may terminate this Agreement in whole or in part at any time by notice in writing if the other Party:
a. is in material or persistent breach of any of the terms of this Agreement , by giving written notice specifying the breach and (if capable of remedy) requiring it to be remedied. If the breach is not remedied within 90 days of the date of this notice, this Agreement shall end on expiry of the 90 day notice period. If the breach is not remediable, termination will take effect immediately; or
b. becomes subject to an Insolvency Event
9.4 Termination Charges will be payable where an project is terminated mid-term. You acknowledge that the Termination Charges specified by iSales Academy Limited represent a genuine pre-estimate of the loss suffered by us due to early termination, having regard to the overall commercial deal between the Parties, and that the Termination Charges do not represent a penalty.
10.CONSEQUENCES OF TERMINATION
10.1 On termination of this Agreement the following shall apply:
a. you shall pay all undisputed outstanding Charges;
b. we shall no longer provide supply and you shall immediately cease to use the Services;
c. we will provide reasonable assistance to you in relation to transfer of Services to another provider;
d. you and we must promptly at the other’s request return or destroy all Confidential Information (except as required for regulatory purposes) and also return any property belonging to the other (and where requested provide written confirmation of this).
10.2 Termination or expiry of this Agreement (or any part of it) will not affect either Party’s accrued rights or liabilities and provisions of this Agreement which are intended by their nature to survive termination shall continue in force (including Termination, Consequences of Termination, Liability, Intellectual Property, Software Licence, Data Protection, Confidentiality and General Terms) together with any other provisions necessary for their enforcement or interpretation.
11.LIABILITY
11.1 Nothing in this agreement limits or excludes:
a. either party’s liability for death or personal injury caused by the negligence of its employees, agents or sub-contractors, for fraud or fraudulent misrepresentation or for any other matter in respect of which liability cannot lawfully be limited or excluded; or
b. your obligation to pay the Charges, Termination Charges, refund any Credits.
11.2 If you incur any liability as a result of a breach by us of the provisions of Clause 14 (Data Protection), we shall indemnify you for any and all such liability up to a maximum of £5,000,000.
11.3 Subject to Clauses 11.1 and 11.2:
a. the total liability of each party under or arising in connection with this Agreement in contract, tort (including negligence), breach of statutory duty or otherwise will be limited to 50% of the charges paid or payable by you in the first 12 months of this Agreement;
b. neither party will be liable to the other in contract or tort (including negligence) or otherwise for: (i) any loss (whether direct or indirect) of profit, business, contract, use, anticipated saving or revenue, goodwill, production, business interruption, wasted expenditure; or (ii) for any indirect or consequential loss or damage whatsoever arising under or in connection with this Agreement.
12.CHARGES AND PAYMENT
12.1 You must pay all Charges by BACS.
12.2 If you owe us undisputed money beyond the due date we may charge you interest daily at the rate of 4% over the prevailing base rate of Barclays Bank Limited. We may also charge you reasonable administration costs as a result of you failing to pay when due.
13.CONFIDENTIALITY
13.1 Each party undertakes that it shall not at any time during this Agreement, and for a period of 3 years after termination of this Agreement, disclose to any person the terms of this Agreement or any Confidential Information, except as permitted in Clause 14.2. Disclosure of Confidential Information is (subject at all times, where applicable, to the provisions of the Data Protection Legislation) permitted:
a. by each party to its employees, officers, representatives, advisors, contractors and suppliers for the purposes of service implementation and performance management of this Agreement;
b. as may be required by law, court order or any governmental or regulatory authority;
c. with the consent of the disclosing party;
d. to the extent that information has come into the public domain through no fault of the receiving party; and,
e. by you to other members of your Group to the extent required in connection with Clause 5 – Customer Group.
14.DATA PROTECTION
14.1 Each party shall comply with its obligations under Data Protection Legislation.
14.2 You agree that your details and those of your people may be used and disclosed by us from time to time for the purposes of this Agreement.
14.3 We may monitor or record calls and emails for our business purposes such as to improve customer service, carry out quality control exercises, train our staff and to make sure we have effective systems in place to prevent or detect unauthorised use, fraud or crime.
14.4 Without prejudice to the generality of the provisions at Clause 14.1, each party confirms to the other that:
a. On becoming aware of a data breach or other incident affecting the integrity or security of personal data of which the other party is a controller, they will promptly notify the other party of all essential particulars of that breach or incident, and co-operate with the other party to address any issues arising from that; and
b. On receipt of a request from a data subject to exercise their rights under the Data Protection Legislation in respect of personal data of which the other party is a controller, they will promptly pass that request to the other party and will not communicate with the data subject in connection with the same without the permission of the other party.
14.5 We aim to never collect or store any information that is not required for the delivery of the services to which you subscribe. Any information that we do collect is and will always be explicitly accounted for in our Privacy Policy published at https://isalesacademy.co.uk/privacy-policy/ . We will take reasonable steps to destroy personal information we hold if you require us to do so, or if the personal information is no longer needed for the purposes of delivering those services in accordance with EU General Data Protection (GDPR) regulation and the ePrivacy regulation.
15.INTELLECTUAL PROPERTY
15.1 All Intellectual Property Rights used by or subsisting in the Services shall remain the sole property of iSales Academy Limited or (as the case may be) the relevant third-party rights owner.
15.2 Where Intellectual Property Rights are created as a result of or otherwise in connection with the supply of the Services to the Customer, these Intellectual Property Rights shall be owned by iSales Academy Limited or the third-party rights owner as applicable.
15.3 All Intellectual Property Rights in the information provided by you in connection with the Services shall remain your property.
15.4 You must not:
a. do anything or allow anything to be done which might jeopardise iSales Academy Limited’s or its licensors’ Intellectual Property Rights;
b. dispute or challenge the rights of iSales Academy Limited or the relevant third party rights owner; or,
c. apply for, or obtain, registration in any country of any trade or service mark or any other Intellectual Property Rights which consists of, or comprises of, or are confusingly similar to, the trade marks of Intellectual Property Rights of iSales Academy Limited or its licensors.
16.GENERAL TERMS
Notices
16.1 Notices served in accordance with the Agreement shall be in writing and shall be delivered by hand or first class post or other next day delivery service to the address given in the Agreement, or sent by email to the Appointed Representatives as set out in this Agreement.
16.2 All notices will be deemed served 48 hours after they are sent, or on earlier proof of delivery. Notices sent by email will be deemed served at time of transmission.
16.3 The provisions of Clauses 16.1 and 16.2 shall not apply to the service of any proceedings or to the service of any other documents in any legal action.
Waiver
16.4 The failure or delay by either party to exercise a right or remedy under this Agreement does not constitute a waiver of the right or remedy or of any other rights or remedies. No single or partial exercise or waiver of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy.
Force Majeure
16.5 If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question. Neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations, excluding Payment, under this agreement, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.
Assignment
16.6 Neither party shall be entitled to assign or subcontract this Agreement, nor all of its rights and obligations hereunder, without the prior written consent of the other, such consent not to be unreasonably withheld.
Entire Agreement
16.7 This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between them whether oral or in writing. You shall have no remedy in respect of any untrue statement made to you upon which you relied in entering into this Agreement (unless such untrue statement was made knowing that it was untrue) other than any remedy it may have for breach of the express terms of this Agreement.
Severability
16.8 If any term or provision hereof is held by any court of competent jurisdiction to be void or invalid, this shall not affect the validity or enforceability of any other term or provision.
No third-party rights
16.9 Pursuant to the Contracts (Rights of Third Parties) Act 1999, a person who is not party to this Agreement shall not have any rights under or in connection with it. No member of your Group shall have any right to directly enforce any provision of this Agreement.
No legal partnership
16.10 Nothing in this Agreement creates, is intended to create, or shall be deemed to have created a legal partnership or joint venture of any kind between the parties, nor constitute any party as agent or distributor of the other for any purpose and no party shall have authority to act as agent for, nor to bind, the other party in any way.
Non-solicitation of staff
16.11 All Parties agree not to offer employment to any person employed by the other during this agreement and for six months after the termination of this Agreement, unless:
a. the prior written consent of the other party has been given; or,
b. it can be clearly demonstrated the person in question independently approached the other party seeking employment.
Requirement to act reasonably
16.12 Where we both are required under this Agreement to exercise discretion, we both agree to act reasonably and without delay.
Law and Jurisdiction
16.13 This Agreement is governed by and construed and interpreted in accordance with English Law and we hereby submit to the exclusive Jurisdiction of the English Courts.
DEFINITIONS
In these ISales Academy Limited General Terms and Conditions, unless the context otherwise requires, the following definitions apply:
“Account Manager”means a person nominated by ISales Academy Limited to act as your Account Manager who will be responsible for the overall provision of the Services under this Agreement.
“Appointed Representatives” means in respect of each party the individuals on the front of the Order signed by you accepting the terms of these ISales Academy Limited General Terms and Conditions (as may be replaced pursuant to Clause 8.1 (Staff and Governance).
“iSales Academy Limited” means ISales Academy Limited (registered in England & Wales, Company number 10704878) whose registered office is at Egale 1, 80 St Albans Road, Watford, Hertfordshire. WD17 1DL (or any organisation that may succeed it as the assignee of this Agreement).
“Charges” means all monies payable by you to us under this Agreement as set out in any proposal, statement of work and these iSales Academy Limited General Terms and Conditions.
“Commencement Date” means the date as set out in any service agreement, proposal and/or statement of work.
“Confidential Information” means any commercial or technical information in whatever form which is disclosed by one party to the other party and which would be regarded as confidential by a reasonable business person including, without limitation, all business, statistical, financial, marketing and personnel information, customer or supplier details, know- how, designs, trade secrets or training materials of the disclosing party or any member of its Group.
“Contract change note” the communication issued by iSales Academy Limited by email or other suitable notice permitted by this Agreement detailing the Customer’s requested change to this Agreement.
“Customer” the person or entity whose name is set out in any proposal, statement of work and these iSales Academy Limited General Terms and Conditions.
“Data Protection Legislation” means the UK General Data Protection Regulation, the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (s/2000/2699), any amendments or replacements to them and all other applicable laws and regulations relating to the processing of personal data and privacy.
“Force Majeure” means circumstances beyond the reasonable control of a party including, without limitation, strikes, lock-outs or other industrial disputes (excluding our workforce), failure of a utility service or transport network, act of God, war, terrorism, riot, civil commotion, malicious damage, epidemic, pandemic, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. Provided that Force Majeure shall not, under any circumstances, include any unauthorised access to, any cyber-attack on or any security breach of your or any of your Group’s IT systems or electronic records or any loss or corruption of your or any of your Group’s data, records or IT systems resulting from or arising due to us accessing or having access to your or any of your Group’s data, records or IT systems (such access being as permitted for the purposes of performing our obligations under any Order) or otherwise arising or resulting from our provision of the Services to you or any of your Group.
“Group” means any entity or person controlled by, controlling or under common control with iSales Academy Limited or the Customer (as applicable), from time to time. For the purpose of this definition the term “control” means ownership, directly or indirectly, of: (i) equity securities entitling it to exercise, in aggregate, 50% or more of the voting power in such corporation or other entity; (ii) 50% or more of the interest in the profit or income in the case of a business entity other than a corporation; or (iii) in the case of a partnership, any other comparable interest in the general partnership.
“Insolvency Event” means an event where either party:
a) ceases, threatens to cease or suspends trading or carrying on business (other than temporarily by reason of a strike); or,
b) suspends payment of its debts or is or becomes unable to pay its debts (within the meaning of section 123 of the Insolvency act 1986) or commits any act of insolvency, or enters into a composition or voluntary arrangement with its creditors, or has a receiver or administrator appointed over the whole or any part of its business or assets, or has a creditor’s winding up petition advertised against it in the appropriate Gazette, or passes a resolution to wind up (other than for the purposes of a solvent amalgamation or reconstruction), or is subject of any action or procedure commenced in any jurisdiction which is similar to or analogous with any above mentioned action or procedure.
“Service(s)” means the service(s) set out in the Order and any other Services that may be agreed between the parties from time to time, which may include support services and/or equipment that may contain or use Software.
“Termination Charges” means the lump sum termination charges set out for a particular Service payable on termination of a Service before completion of this Agreement.