E-Learning Content Licence Terms
1.1 In this Licence Agreement, the following definitions apply:
Licence Agreement means the agreement between the Client and ICAEW for access to and use of the Content pursuant to the terms set out below, as amended from time to time;
Booking Form means the booking form for access to the Content, signed by the parties;
Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Content means the content provided by ICAEW to the Licensee solely for use on the LMS as detailed in the Booking Form;
Effective Date means the date on which the Booking Form is signed by the parties;
Fees means the fees payable in respect of the licence of the Content as set out in the Booking Form;
ICAEW means Institute of Chartered Accountants in England and Wales, incorporated by Royal Charter, with number RC000246 and having its principal office at Chartered Accountants' Hall, 1 Moorgate Place, London EC2R 6EA;
Intellectual Property Rights means 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, and Intellectual Property Rights include, without limitation, any Marks.
Licensee means the Client set out in the Booking Form.
LMS means the Licensee’s learning management system, the URL for which is set out in the Booking Form.
Marks means any and all trade marks, trade names, service marks, trade dress, logos, URLs or identifying slogans, whether or not registered.
Permitted Purpose means the purpose detailed in the Booking Form.
Term means the period for which we grant the licence of the Content, as set out in the Booking Form.
Territory means the Territory set out in the Booking Form, if any.
User Limit means the total number of LMS users, who will have access to the Content as set out in the Booking Form, as amended by written agreement of the parties from time to time.
1.2 Construction. In this Licence Agreement, the following rules apply:
(a) Clause headings do not affect the interpretation of this Licence Agreement and references to clauses are (unless otherwise provided) references to the clauses of this Licence Agreement;
(b) Unless the context otherwise requires, words in the singular shall include the plural and those in the plural include the singular;
(c) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision;
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms;
(e) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); and
(f) Writing or written includes email but not fax.
2 Grant of licence
2.1 Subject to clause 2.2, during the Term of this Licence Agreement, ICAEW grants to the Licensee a non-exclusive licence to distribute the Content “as-is” in the Territory solely via the LMS for the Permitted Purpose in return for the payment by the Licensee of the Fees.
2.2 The rights granted under clause 2.1:
(a) shall not entitle the Licensee to decompile or in any way edit the Content;
(b) shall not entitle the Licensee to copy, reproduce, incorporate, adapt, store, distribute, email or otherwise communicate to the public the Content for any other product or service nor use the same otherwise than for the Permitted Purpose; and
(c) shall not entitle the Licensee to resell the Content in any way;
(d) are subject to any guidelines that may from time to time be established by ICAEW with respect to the Content by verbal or written notification to the Licensee.
2.3 ICAEW may request, based on reasonable objections, the removal of, or editorial revisions to, any of the Content that is published on the LMS. The Licensee agrees to take appropriate remedial action with respect to any such request within 72 hours of receipt of such request.
2.4 Nothing in this Licence Agreement shall prevent or limit ICAEW or any person authorised by ICAEW from using the Content or its Marks in any manner and in relation to any goods or services.
2.5 All references to the Licensee in this clause 2 shall apply by extension to the users to whom the Licensee grants access to the Content. The Licensee shall be liable for any breach of the terms of this Licence Agreement by such users as if it had caused the breach itself.
3 Parties' responsibilities
3.1 ICAEW shall use commercially reasonable endeavours to deliver the Content to the Licensee on or before any delivery dates agreed between the parties in writing.
3.2 The Licensee shall not include all or any part of the Content on the LMS without proper attribution to ICAEW, or without including ICAEW's copyright notice or any other notices ICAEW may require, as notified by ICAEW to the Licensee from time to time.
3.3 If requested by ICAEW, the Licensee shall send to ICAEW a monthly report summarising the use of the Content in the previous month. The Licensee shall immediately inform ICAEW if it exceeds the User Limit, providing all details necessary for ICAEW to issue an invoice for the use over and above the User Limit. The parties shall then discuss and agree the necessary changes to the User Limit as a result.
4.1 The Licensee acknowledges and agrees for all purposes that the Marks associated with ICAEW or ICAEW’s services, products, literature, promotional materials or otherwise, whether or not registered, constitute ICAEW’s exclusive property.
4.2 All goodwill arising from the Licensee’s use of Content containing ICAEW’s Marks shall accrue solely for the benefit of ICAEW.
4.3 The Licensee shall not use, register or attempt to register in any jurisdiction, or otherwise appropriate or adopt, any name, mark or logo that is confusingly similar to ICAEW’s Marks.
4.4 At no time during the term of this Licence Agreement or thereafter shall the Licensee attack, challenge or file any application with respect to any of ICAEW’s Marks.
5 Fees and payment
5.1 The Licensee shall pay to ICAEW the Fees set out in ICAEW's invoice within 30 days of the date of ICAEW's invoice.
5.2 All Fees are exclusive of VAT.
5.3 If the Licensee fails to make any payment due to ICAEW under this Licence Agreement by the due date for payment, then, without limiting ICAEW's remedies under clause 9, the Licensee shall pay interest on the overdue amount at the rate of 5% a year above the Bank of England's base rate from time to time but at 5% a year for any period when that base rate is below 0%. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Licensee shall pay the interest together with the overdue amount.
5.4 The Licensee shall keep proper and accurate records of traffic statistics for the LMS and payments which relate to this Licence Agreement, and ICAEW has the right to audit those records on giving seven days written notice to the Licensee. At ICAEW's option, this audit may cover documents only or may include onsite audit, subject to ICAEW notifying the Licensee of the identity of any onsite auditors and giving confirmation that any external auditors have entered into appropriate confidentiality agreements.
6.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this Licence Agreement.
6.2 ICAEW warrants to the Licensee that, to the best of ICAEW’s knowledge, the Content:
(a) does not infringe in the UK any third party's Intellectual Property Rights, other proprietary rights or rights of privacy; and
(b) does not violate any law, statute, ordinance or regulation in the UK.
6.3 This Licence Agreement sets out the full extent of ICAEW's obligations and liabilities in respect of the supply of the Content. All conditions, warranties or other terms concerning the supply, purported supply or non-supply of the Content which might otherwise be implied into this Licence Agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
7 Limitation of remedies and liability
7.1 Nothing in this Licence Agreement shall operate to exclude or limit ICAEW's liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
7.2 ICAEW shall not be liable under or in connection with this Licence Agreement or any collateral contract for any, loss of revenue, loss of actual or anticipated profits, loss of contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data or any indirect or consequential loss, in each case howsoever arising, whether such loss or damage was direct or indirect, foreseeable or in the contemplation of the parties and whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise.
7.3 Subject to clause 7.1, ICAEW's aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this Licence Agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 100% of the total Fees payable by the Licensee to ICAEW under this Licence Agreement in that calendar year.
8 Intellectual property rights
8.1 Title to and ownership of all Intellectual Property Rights embodied by or otherwise incorporated into the Content shall remain with ICAEW. Except as expressly provided in this Licence Agreement, nothing shall be construed to grant to the Licensee any right, title or interest in or to the Content.
8.2 The Licensee shall indemnify ICAEW against all costs, claims, damages, losses and expenses arising out of or connected with:
(a) the Licensee’s use of the Content not in accordance with the terms of this Licence Agreement; or
(b) from the Licensee’s failure to comply with any applicable laws and regulations.
8.3 Upon becoming aware of an infringement claim relating to ICAEW’s Marks or the Content, or suspecting that such an infringement claim is likely, the Licensee shall give ICAEW prompt written notice of the same and:
(a) the Licensee shall grant ICAEW, in writing, exclusive control over the defence and settlement of the claim;
(b) the Licensee shall mitigate its losses; and
(c) the Licensee shall give ICAEW all reasonable assistance in the defence and/or settlement of the claim to the extent requested by ICAEW.
9 Term and termination
9.1 This Licence Agreement shall commence on the Effective Date. Unless terminated earlier in accordance with this clause 9, this Licence Agreement shall continue for the Term.
9.2 Without affecting any other right or remedy available to it, either party may terminate this Licence Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Licence Agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Licence Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) if the other party has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver, administrator or manager appointed over any of its assets, or a court or arbiter with authority to so determine, determines that the debtor is unable to pay its debts or any other similar process in any relevant jurisdiction which has a similar or analogous effect; or
(d) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
9.3 ICAEW shall have the right to terminate this Licence Agreement with immediate effect if it believes, in its sole discretion, that the use of the Content by the Licensee or any other act or omission of the Licensee has or is likely to cause reputational damaged to ICAEW.
9.4 If the Licensee is, or if ICAEW has reasonable grounds to believe that the Licensee is, in breach of its obligations pursuant to this Licence Agreement, ICAEW may, notwithstanding any rights to claim damages or to terminate or otherwise, suspend immediately the rights granted to the Licensee in relation to any or all of the Marks and/or the Content.
9.5 On expiry or termination of this Licence Agreement:
(a) the licence granted in clause 2 shall immediately cease;
(b) any Fees or other amounts due to ICAEW shall immediately become payable;
(c) any provision of this Licence Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Licence Agreement shall remain in full force and effect; and
(d) the Licensee shall promptly cease using and return to ICAEW the Content or certify the erasure of the same from all of the Licensee's computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable).
10 Force majeure
Neither party shall be in breach of this Licence Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Licence Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 calendar months, the party not affected may terminate this Licence Agreement by giving 30 days' written notice to the affected party.
11.1 Each party to this Licence Agreement undertakes that it shall not at any time during this Licence Agreement, and for a period of five years after termination of this Licence Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 11.2.
11.2 Each party to this Licence Agreement may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Licence Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Licence Agreement.
12.1 Any notice or other communication given to a party under or in connection with this Licence Agreement shall be in writing and shall be delivered by pre-paid first-class post or other next working day delivery service at its registered office.
12.2 Any notice or communication shall be deemed to have been received at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
12.3 This clause 12 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
No party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of this Licence Agreement, the wider transactions contemplated by it, or the relationship between the parties, 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.
The Licensee may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights or obligations under this Licence Agreement without the prior written consent of ICAEW. ICAEW may assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with its rights under this Licence Agreement without consent, provided that it gives advance notice to the Licensee.
15.1 This Licence Agreement together with the Booking Form constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, licences, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The Client acknowledges that they have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of ICAEW which is not set out in the Licence Agreement.
15.2 Each party to this Licence Agreement acknowledges that it 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 Licence Agreement.
15.3 Each party to this Licence Agreement agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Licence Agreement.
15.4 Unless it expressly states otherwise, this Licence Agreement does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Licence Agreement.
15.5 The rights of the parties to rescind or vary this Licence Agreement are not subject to the consent of any other person.
15.6 Any variation to this Licence Agreement shall have no effect unless expressly agreed in writing and signed by a duly authorised representative of ICAEW.
15.7 No failure or delay by ICAEW to exercise any right or remedy provided under this Licence Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy by ICAEW.
15.8 Except as expressly provided in this Licence Agreement, the rights and remedies provided under this Licence Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
15.9 If any provision or part-provision of this Licence Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Licence Agreement.
15.10 If any provision or part-provision of this Licence Agreement is deemed deleted under clause 15.9, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
16 Governing law
This Licence Agreement and any disputes or claims (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation are governed by and construed in accordance with the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) that arises out of or in connection with this Licence Agreement or its subject matter or formation.
Last updated: 20 February 2019