ECADEMY LICENCE AGREEMENT
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement the following words have the following meanings:
Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Confidential Information: information that is proprietary or confidential (however recorded or preserved) disclosed by a party to the other party or to which the other party has access pursuant to this Agreement including but not limited to:
- the terms of this Agreement;
- any information that would be regarded as confidential by a reasonable business person relating to:
- the business, affairs, customers, client, suppliers, plans of the disclosing party;
- any analysis, conclusions or other information or data generated by the use of the Ecademy Services or any such derivative information or data; and
- the operation, processes, product information, know-how, designs, trade secrets or software of the disclosing party.
Data Protection Laws: all applicable laws from time to time in force in the United Kingdom relating to the protection of personal information, including the Data Protection Act 2018, the Privacy and Electronic Communications (EC) Directive Regulations 2003 and (for so long as it is directly applicable) the General Data Protection Regulation (EU 2016/679) and any laws substituting, re-enacting or replacing any of the foregoing, as amended or updated from time to time and in force in the United Kingdom.
Documentation: the documents made available to the Customer by Thatcham from time to time as part of the Ecademy Services.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Normal Business Hours: 8:30 am to 4.30 pm on a Business Day.
Renewal Period: the period described in clause 10.1.
Subscription Term: the Initial Subscription together with any Renewal Periods.
Thatcham: Thatcham Research incorporated in England and Wales with registered number 00967763, whose registered office is at Colthrop Way, Thatcham, Berkshire, RG19 4NR.
1.2. In this Agreement unless the context otherwise requires:
- clause headings are included for convenience only and will not affect the construction or interpretation of this Agreement;
- references to numbered clauses are references to the relevant clause in to this Agreement;
- use of the singular includes the plural and vice versa;
- a reference to writing includes email;
- all references to the parties include their permitted successors and assigns; and
- any reference to a statute or statutory provision includes references to that statute or statutory provision as the same may from time to time be amended, extended, re-enacted or replaced (whether before or after this Agreement) and including all subordinate legislation made under it from time to time.
1.3. Any words that follow include, includes, including, in particular or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.
2. THE ECADEMY SERVICES
2.2. The Customer and the Users may download and print the Documentation as required in a manner consistent with the use of the Ecademy Services. The Customer acknowledges that the Documentation is licensed and not sold and the Customer receives no rights other than those specifically granted to it under this Agreement.
2.3. The Customer acknowledges that any third party content, which shall be deemed incorporated within the Ecademy Services for the purpose of this Agreement (except where expressly provided to the contrary), shall be subject to further licence restrictions, in addition to the ones set out in clause 2.1, as notified by Thatcham from time to time.
2.5. The right granted by Thatcham to the Customer under this clause 2 is subject to the Customer and its Users not, except as may be allowed by any applicable law which is in incapable of exclusion by agreement between the parties and except to the extent expressly permitted by this Agreement:
(a) copying, reproducing, publishing, distributing, redistributing, broadcasting, transmitting, modifying, adapting, editing, abstracting, storing, archiving, displaying publicly or to third parties, selling, licensing, leasing, renting, assigning, transferring, disclosing (in each case whether or not for charge) or in any way commercially exploiting any part of the Ecademy Services or Documentation;
(b) permitting any use of the Ecademy Services or Documentation in any manner by any third party (including permitting use in connection with any timesharing or service bureau, outsourced or similar service to third parties or making the Ecademy Services or Documentation (or any part) available to any third party or allowing or permitting a third party to do any of the activities described in clause 2.5(b));
(c) combining, merging or otherwise permitting the Ecademy Services to become incorporated in any other program or service, or arranging or creating derivative works based on it (in whole or in part); or
(d) attempting to reverse engineer, observe, study or test the functioning of or decompile the Ecademy Services (or any part).
3. ACCESS TO THE ECADEMY SERVICES
3.1. Within 5 Business Days after receipt of a list of Users and payment of the Subscription Fees for the Initial Subscription Term, Thatcham will deliver access details and passwords in line with the number of Users set out in the Agreement Details for the purpose of allowing such Users to use the Ecademy Services.
3.2. The Customer acknowledges and agrees that the Users who shall be given access to the Ecademy Services pursuant to clause 3.1 have individual access to the Ecademy Services. The Customer shall, and shall ensure that Users shall, keep confidential and not under any circumstances share their passwords or access details provided to facilitate access to the Ecademy Services with any third party (including, in the case of the Users, the Customer’s other employees, officers, agents and independent contractors).
3.3. The Customer shall contact Thatcham if there is any change in Customer personnel who are Users (including when Users cease to be employed or engaged by the Customer) and Thatcham will on reasonable notice provide new Ecademy Services access details and passwords for new Customer personnel replacing existing personnel’s access to the Ecademy Services.
3.5. The Customer shall be liable at all times to Thatcham for all acts and omissions of the Users and anyone accessing the Ecademy Services using user logons provided for use by Users.
4. AVAILABILITY OF THE ECADEMY SERVICES
4.1. Thatcham shall, during the Subscription Term, provide the Ecademy Services to the Customer on and subject to the terms of this Agreement.
4.2. Thatcham shall use commercially reasonable endeavours to make the Ecademy Services available 24 hours a day, seven days a week, except for:
(a) scheduled maintenance for which Thatcham will give the Customer at least 1 weeks’ notice in advance;
(b) unscheduled maintenance performed outside of Normal Business Hours, for which Thatcham will use reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance; and
(c) emergency maintenance in respect of which Thatcham will use reasonable endeavours to notify the Customer as soon as possible.
4.3. Thatcham will use reasonable endeavours to notify the Customer in advance of scheduled maintenance but the Customer acknowledges that it may receive no advance notification for emergency maintenance or downtime caused by an event outside Thatcham’s reasonable control.
4.4. The Customer acknowledges that Thatcham is entitled to modify the features and functionality of the Ecademy Services as part of its ongoing development of the Ecademy Services. Thatcham shall use reasonable endeavours to ensure that any such modification does not adversely affect the Customer’s use of the Ecademy Services.
5. SUBSCRIPTION FEES AND PAYMENT
5.1. The Customer shall pay the Subscription Fees to Thatcham for the Ecademy Services in accordance with this clause 5 and the Agreement Details.
5.2. All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Thatcham at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
5.3. Thatcham shall submit invoices for the Subscription Fees plus VAT if applicable to the Customer in accordance with the Agreement Details. Each invoice shall include all reasonable supporting information required by the Customer.
5.4. The Customer shall pay each invoice due and submitted to it by Thatcham, within 30 days of receipt, to a bank account nominated in writing by Thatcham.
5.5. If the Customer fails to make any payment due to Thatcham under this Agreement by the due date for payment, then, without limiting Thatcham’s remedies under clause 10:
(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
(b) Thatcham may suspend all Ecademy Services until payment has been made in full.
5.6. All amounts due under this Agreement from the Customer to Thatcham shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.7. Thatcham shall be entitled to increase the Subscription Fees annually taking effect automatically on the relevant anniversary of the Effective Date upon 60 days’ prior written notice to the Customer. If the Customer does not wish to accept such increase to the Subscription Fees, it shall give Thatcham not less than 30 days’ prior written notice to expire on the relevant anniversary of the Effective Date to terminate this Agreement.
6. INTELLECTUAL PROPERTY
6.1. The Customer acknowledges and agrees that Thatcham and/or its licensors own all Intellectual Property Rights in the Ecademy Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights, or any other rights or licences in respect of the Ecademy Services or the Documentation.
6.2. Thatcham confirms that it has all the rights in relation to the Ecademy Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
7.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
7.2. Subject to clause 7.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
7.3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
7.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 7.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
7.5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
7.6. No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
7.7. The above provisions of this clause 7 shall survive termination of this Agreement, however arising.
8. DATA PROTECTION
8.1. Both parties will comply with all applicable requirements of the Data Protection Laws. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Laws.
8.2. Without limitation to the generality of clause 8.1:
(a) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Thatcham so that Thatcham may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf;
(b) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by the Data Protection Laws and all other applicable data protection legislation;
(c) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(d) each party shall assist the other party, at the other party’s cost, in respect to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
(e) each party shall notify the other party without undue delay on becoming aware of a personal data breach.
8.3. In this clause 8 and clause 11, personal data, data controller and data subject shall have the meanings given to them in the Data Protection Laws.
9. SUSPENSION OF SERVICES
9.1. Without prejudice to its rights under clause 10.2, Thatcham may suspend access to the Ecademy Services to all or some of the Users if:
(a) Thatcham suspects that there has been any misuse of the Ecademy Services or breach of this Agreement;
(b) the Customer fails to pay any sums due to Thatcham by the due date for payment.
9.2. Thatcham will notify the Customer or the affected User as soon as possible after suspending the Ecademy Services.
9.3. Where the reason for the suspension is suspected misuse of the Ecademy Services or breach of this Agreement, without prejudice to its rights under clause 10.2, Thatcham will take steps to investigate the issue and may restore or permanently suspend access at its discretion. If Thatcham considers it appropriate to permanently suspend access to all Users, it will notify the Customer in writing and this Agreement will terminate immediately on service of such notice.
9.4. In relation to suspensions under clause 9.1(b), access to the Ecademy Services will be restored promptly after Thatcham receives payment in full and cleared funds.
9.5. Subscription Fees shall remain payable during any period of suspension notwithstanding that the Customer or some of the Users may not have access to the Ecademy Services.
10. TERM AND TERMINATION
10.1. This Agreement shall, unless otherwise terminated as provided in this clause 10, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, unless otherwise agreed in writing, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this Agreement,
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
10.2. Without affecting any other right or remedy available to it, either party to this Agreement may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(d) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(e) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy.
10.3. On termination or expiry of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Ecademy Services; and
(b) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
10.4. Any provision of this Agreement expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
11.1. The Customer shall defend, indemnify and hold harmless Thatcham against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s breach of this Agreement.
11.2. Thatcham shall defend the Customer against any claim that the Ecademy Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Thatcham is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to Thatcham in the defence and settlement of such claim, at Thatcham’s expense; and
(c) Thatcham is given sole authority to defend or settle the claim.
11.3. In the defence or settlement of any claim, Thatcham may procure the right for the Customer to continue using the Ecademy Services, replace or modify the Ecademy Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.4. In no event shall Thatcham, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Ecademy Services or Documentation by anyone other than Thatcham;
(b) the Customer’s use of the Ecademy Services or Documentation in a manner contrary to the instructions given to the Customer by Thatcham; or
(c) the Customer’s use of the Ecademy Services or Documentation after notice of the alleged or actual infringement from Thatcham or any appropriate authority.
11.5. The foregoing and clause 12.2(b) state the Customer’s sole and exclusive rights and remedies, and Thatcham’s (including Thatcham’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights or right of confidentiality.
12. LIMITATION OF LIABILITY
12.1. Nothing in this Agreement excludes the liability of Thatcham:
(a) for death or personal injury caused by Thatcham’s negligence
(b) for fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be excluded or limited by law.
12.2. Subject to clause 12.1:
(a) Thatcham shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution, through indemnification or otherwise for any loss of profits or anticipated savings, loss of revenue or income, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Thatcham’s total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution, through indemnification or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the Ecademy Services during the 12 months immediately preceding the date on which the claim arose.
12.3. Subject at all times to clause 12.4, Thatcham Research shall:
(a) use reasonable care and skill in providing the content on the Ecademy Services;
(b) make reasonable efforts to update the content on the Ecademy Services.
12.4. In relation to the Ecademy Services, the Customer acknowledges and agrees that:
(a) the content on the Ecademy Services is provided for training purposes and is only intended to be used by trained professionals in the motor repair and insurance industries. It is not intended to be substitute for professional or specialist experience, and needs to be considered in the context in which it is being used. Customer will (and will ensure that its Users shall) exercise professional judgment and its / their own care and skill before taking, or refraining from, any action on the basis of the content on the Ecademy Services;
(b) Thatcham Research makes no representations, warranties or guarantees, whether express or implied, that the content on the Ecademy Services is accurate, complete or up to date;
(c) Thatcham Research excludes all implied conditions, warranties, representations or other terms (statutory or otherwise) that may apply to the Ecademy Services or any content on it; and
(d) Thatcham Research will not be liable in any way in relation to reliance by the Customer or any Users on any content on the Ecademy Services.
13.1. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
Compliance with law
13.2. Each party shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to them and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform their obligations under or in connection with this agreement.
13.3. This Agreement, constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior arrangements and understandings between the parties relating to that subject matter.
13.4. Each party acknowledges that in entering into this Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
13.5. Any notice or other communication given in connection with this Agreement shall be in writing in English and shall be:
(a) delivered by hand, courier or by pre-paid first class post or other next working day delivery service at the address set out in the Agreement Details;
(b) sent by email to the email address specified in the Agreement Details.
13.6. Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(c) if sent by email, at 9.00am to 5.00pm on the next Business Day after transmission.
13.7. This clause does not apply to notices given in in legal proceedings, arbitration or other dispute resolution proceedings.
Assignment and sub-contracting
13.8. The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without Thatcham’s prior written consent.
13.9. Thatcham may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
No partnership or agency
13.10. Nothing in this Agreement constitutes, or will be deemed to constitute, a partnership or joint venture between the parties nor make any party the agent of another party. Neither party has any authority to make any representation or commitment, or to incur any liability, on behalf of the other.
13.11. No variation or amendment of this Agreement will be effective unless it is made in writing and signed by each party’s representative.
13.12. If any provision of this Agreement is held to be void, illegal or otherwise unenforceable by a court of competent jurisdiction then the relevant provision will be deemed deleted and the remaining provisions of this Agreement will remain in full force and effect.
13.13. Failure or delay by a party to exercise any right, power or remedy provided by law or under this Agreement will not be deemed to be a waiver of that right or remedy or prevent that party from exercising that or any other right, power or remedy on a future occasion.
Third party rights
13.14. Any party who is not a party to this Agreement will not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement.
Governing law and jurisdiction
13.15. English law governs the validity, construction and performance of this Agreement. The parties submit to the exclusive jurisdiction of the English courts to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation save that nothing in this Agreement will restrict a party from seeking injunctive relief in any jurisdiction.