Licence Terms and Conditions
1.1 In this Agreement (including the recitals and appendices) unless the context otherwise requires or except as expressly provided, the words set out in bold in the Commercial Terms have
|“Agreement”||this Agreement, the recitals and the appendices including the Commercial Terms;|
|"Certificate in Sustainability"||a certificate awarded by the ICAEW to a Registrant who meets the ICAEW's Online Assessment for such certificate (as updated by ICAEW from time to time);|
|"Commercial Terms"||the terms and definitions described as the commercial terms at the front of this document.|
|"Confidential Information"||all and any information of whatever nature which is communicated in writing, orally or electronically from one party (the “Discloser”) to the other party (the “Recipient”) disclosed under or in relation to this Agreement including but not limited to any term of this Agreement, ICAEW’s membership, sensitive business information of either party and the names and addresses of customers or Registrants s;
|"Data Protection Legislation"||
1. means any Applicable Law relating to the processing, privacy, and use of Personal Data, as applicable to ICAEW, the Supplier and/or the Services, including:
1.1 in the United Kingdom:
1.2 in member states of the European Union: the Data Protection Directive or the GDPR, once applicable, and the ePrivacy Directive, and all relevant member state laws or regulations giving effect to or corresponding with any of them; and
any judicial or administrative interpretation of any of the above, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority;Where "Data Controller", "Data Subject", "Personal Data", "Data Processor", “Data Protection Officer” and "Processing" are referred to in this Agreement, they shall have the meaning specified in the GDPR or any successor legislation in the UK.
|"Data Sharing Schedule"||As attached at Schedule 2 to this Agreement;|
|"Force Majeure Event"||shall include but not be limited to acts of God, war, riot, civil commotion, malicious damage, compliance with any governmental order, rule, regulation or direction, pandemic or epidemic, accident, fire, flood or storm. For the avoidance of doubt any fault or delay in deliveries from sub-suppliers or any fault or delay by a party’s sub-contractors shall not be a Force Majeure Event;|
|''Materials''||ICAEW's on-line learning materials relating to the Certificate in Sustainability;|
|'Online Assessment''||n online assessment using a bank of questions relating to Sustainability for Registrants to be assessed for the granting to them of an award by ICAEW;|
|"Registrant"||Means an individual who is employed by or registered with the Licensee to complete the Programme|
|''Sale''||a making available to an individual of access to the Online Assessment;|
|''Trade Marks''||the word 'ICAEW' and the ICAEW 'Economia' logo;|
|''Website"||the website designated by ICAEW containing the platform which operates and, where applicable, marks the Online Assessment;|
1.2 In this Agreement, unless the context otherwise requires, the singular shall include the plural and vice versa.
1.3 Words denoting any gender shall include all and vice versa.
1.4 Any reference to any Appendix, clauses or sub-clauses is to an Appendix, clause or sub-clause of this Agreement. The Appendices are incorporated as part of this Agreement.
1.5 Any reference to a person includes an individual, firm, company, corporation, unincorporated body of people or any agency of the above.
1.6 Any reference to a party or parties shall mean the parties to this Agreement.
1.7 Any reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.
1.8 The Clause and any appendix headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
2. Appointment and rights granted
2.1 ICAEW hereby grants the Licensee a non-exclusive licence to access the Materials and the Online Assessment, for a period of 12 months from the date of such grant of access (the Term), :
subject to the terms and conditions of this Agreement ("the Licence").
2.2 The Licence is:
2.2.2 personal to the Licensee;
2.2.3 non-transferable; and
2.2.4 with no right to sub-licence.
2.3 This Agreement does not confer on the Licensee any rights to use the Materials for any other purpose outside the limited provisions of the Licence.
3.1 This Agreement shall be deemed to have commenced on the Commencement Date and shall continue in full force and effect for the Term, subject to: earlier termination in accordance with this Clause 3 or Clause 9 below.
3.2 Prior to the expiry of the Term, the parties may (but are not obliged to) mutually agree in writing to renew this Licence for a further period on the same or on other terms and conditions as may be agreed.
4. Supply of the materials
4.1 The ICAEW shall supply the Materials to the Licensee via the Online Platform.
5. Fees & payment
5.1 The Licensee shall pay the Licence Fee on all Sales to the ICAEW in accordance with the Payment Terms.
5.2 The Licence Fee does not include local taxes or VAT which, if applicable, shall be payable by the Licensee on or in relation to the Licence Fee.5.3 The parties agree that a Sale is made:
For Online Assessment: at the earlier of:
5.3.1 the time that any person accesses the Website and logs in for an Online Assessment using an access code or other detail supplied by the Licensee to permit such access; and
5.3.2 ICAEW registering, in advance, a group of Registrants following the receipt of a list of Registrants, or request for multiple registration from the Licensee;
5.4 In the event of late payment of the Licence Fee, or any other costs or expenses as may be due by the Licensee to ICAEW during this Agreement, ICAEW reserves the right to charge interest on any late payment at a rate of 4% per annum (calculated daily) above the base rate of Barclays Bank from time to time from the relevant payment date until payment is received in full.
5.5 In the event that the Licence Fee (or any outstanding balance of the Licence Fee) has not been within the agreed Payment Terms ICAEW reserves the right to withdraw its provision of the Programme. The Licensee shall be given no less than 2 Business Days’ notice of ICAEW’s intention to withdraw its provision of the Programme in accordance with this clause 5.5.
6. Licensees responsibilities
6.1 The Licensee represents, warrants, undertakes and agrees with the ICAEW that:
6.1.1 it is free to enter into this Agreement and this Agreement constitutes its legal, valid, binding and enforceable obligation and it is not under any disability, restriction or prohibition which might prevent it from performing or observing any of its obligations under this Agreement;
6.1.2 all information supplied to the ICAEW concerning the Licensee, and the intended use of the Materials by it, is true, accurate and complete in all material respects, and that it acknowledges the ICAEW’s reliance on such information in entering into this Agreement with the Licensee;
6.1.3 it will not (and will not permit others to) alter, mark or amend in any way any of the Materials, including the Names, Trade Marks or the ICAEW ogos, without prior written consent of the ICAEW,
6.1.4 it will comply with the terms of the appendices to this Agreement and;
6.1.5 it will only permit Registrants to access the Online Assessment and will not release, distribute, market or make available any access codes, username/passwords, admin access or other means which may allow third parties to access the Online Assessment or download, copy or make available the Materials or the Translations;
7. Copyright and trademarks
7.1 All copyright, know-how, logos and all other intellectual property rights in and to the Materials and On-Line Assessment (and any copies thereof made by the Licensee) are and shall remain the exclusive property of the ICAEW.
8. Data protection
8.1 The parties agree that, in performing their respective obligations under this Agreement, they shall comply with all applicable Data Protection Legislation to the extent it applies to them
8.2 The parties acknowledge that, during the Term, each party may, from time to time, share and otherwise Process the Personal Data of the Registrants. Each Party accordingly undertakes to adhere to the terms of the Data Sharing Schedule.
9.1 Either party may, without prejudice to any of its other rights and remedies, terminate this Agreement by written notice to the other party upon occurrence of any one or more of the following events:
9.1.1 that other party is in breach of any of the provisions hereof, and fails to remedy such breach (where capable of remedy) within twenty one days after the receipt of a written notice from the non-defaulting party giving particulars of the breach and requiring it to be remedied;
9.1.2 that other party becomes bankrupt, insolvent, compounds with its creditors or shall have distress or execution levied upon its properties or is wound up or goes into liquidation (except for the purpose of a bona fide reconstruction) or shall have a receiver, administrative receiver or administrator appointed over the whole or any part of its property, assets and undertaking or shall suffer the appointment of any similar person or the occurrence of an equivalent or similar insolvency event under the laws of its place of incorporation, or domicile or principal place of business;
9.1.3(exercisable by the ICAEW only): that any payment due hereunder from the Licensee to the ICAEW shall become overdue by twenty days or more;
9.1.4 that this Agreement and the transactions contemplated thereby, or any part or parts thereof, are or become illegal;
9.1.5 (exercisable by the ICAEW only): that the Licensee at any time brings into disrepute the brand, reputation and/or integrity of the ICAEW either directly or indirectly;
9.1.6 that other party ceases to carry on business;
9.1.7 (exercisable by ICAEW only): that there is at any time a material change in the management, ownership or control of the Licensee; or
9.1.8 (exercisable by ICAEW only): that the Licensee at any time challenges the validity of any intellectual property of the ICAEW in connection with the Materials or the Trade Marks;.
9.2 For the purpose of Clause 9.1.1, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance provided that time of performance is not of the essence.
10. Effects of termination
10.1 On termination of this Agreement, whether pursuant to Clause 9 above or on expiry:
10.1.1 the Licence shall cease;
10.1.2 the Licensee shall no longer promote the Materials or the Programme to any person, SAVE for the purpose of performing its existing obligations to them; and
10.1.3 individual Registrants who have been granted access to the Online Assessment prior to the date of termination may continue to access this for a period of 12 months from the earlier of the date of first access by them of the Website or the date notified to them by the Licensee as the date from which they are permitted such access;
10.2 If the Term is not extended or renewed upon expiry or if this Agreement is terminated pursuant to Clause 9 above, then neither the ICAEW nor any of its employees shall, in any circumstances, have any liability to the Licensee or any Registrant or to any third party for any losses, damages, liabilities, costs or expenses or other amounts of any nature whatsoever, direct or indirect, actual or contingent, as a result thereof or arising therefrom (including for detrimental reliance, expenditure, loss of profit or future business expectation and/or loss of ability to fulfil contracts).
11.1 Any variation, cancellation or waiver of any provision of this Agreement - and any waiver of any default under this Agreement - shall only be effective if expressly agreed in writing by the parties.
12.1 If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect, the legality, validity and enforceability of the remaining provisions of this Agreement shall in no way be affected or impaired thereby and shall continue in full force and effect.
13.1 This Agreement shall be binding on and inure for the benefit of each party's successors and assigns, and no party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
14. Materials and records
14.1 Nothing in this Agreement shall prevent the ICAEW or any other person authorised by it from using or licensing its copyright in the Materials (or any part of them) or the Online Assessment, in any manner whether on its own account or by or with any other third party.
14.2 ICAEW may at its discretion, on written notice to the Licensee (or by forwarding new or amended materials to the Licensee for its use in accordance with this Agreement) alter the Materials and the Online Assessment, or add or delete items or specifications in relation to the use of any of the Materials or the Online Assessment. Any such modifications shall be applied within the period as stipulated by ICAEW.
14.3 Where the ICAEW notifies the Licensee that any materials (or any element of the Materials) are replaced or superseded, the Licensee shall cease their use, reproduction or dissemination at the expiry of the period stipulated by the ICAEW.
14.4 The Licensee shall prepare, maintain and keep safe all records necessary for determination of (a) Sales and (b) the resulting Licence Fees due to the ICAEW.
14.5 The Licensee shall permit the duly authorised independent auditor or financial manager representing the ICAEW, upon reasonable notice and at the ICAEW's cost and during normal business hours, to inspect all records necessary to verify that the persons accessing the Website for the Online Assessment are Registrants and have correctly been given permission to access the same by the Licensee, that individual registrations have not been shared between individuals, that Sales reported are correct, and that the Licence Fees have been declared and paid in accordance with this Agreement. The Licensee shall provide reasonable access and assistance to the ICAEW or its duly authorised representative in this matter.
15.1 Subject to Clause 15.2, each party shall keep confidential (and not at any time either during the Term of this Agreement or at any time thereafter use or disclose without the permission of the other) any Confidential Information of the other, either in whole or in part, or use it for any purposes other than those in accordance with its obligations under this Agreement.
15.2 The provisions of Clause 15.1 do not apply to information already in the public domain, information which comes into the public domain other than as a result of a breach of this Agreement, information received from a third party who is free to disclose it, information which is independently developed without breaching this Agreement, or information which is disclosed pursuant to any statute, regulation or order of any court or regulatory authority.
16.1 The Licensee shall, indemnify ICAEW against costs, claims, demands, liabilities, expenses damages or losses:
16.1.1 arising from any breaches of the terms of this Agreement;
16.1.2 by or from Registrants as to the Online Assessment, any marking either by ICAEW or by or though the Website, or the grant, or refusal to grant, of any Certificate in Sustainability or other award by the ICAEW; and/or
16.1.3 by or from Registrants by reason of any representations or promises made to them by the Licensee which have not been authorised by ICAEW.
17. Limitation of warranties and liabilities
17.1 Nothing in these Terms is intended to exclude or limit our liability for death, personal injury or fraudulent misrepresentation caused by our negligence.
17.2 Save for as provided under this Agreement, ICAEW excludes to the fullest extent permitted by applicable law all express and implied warranties made by, or imposed on, it (and any liability therefor) relating to the subject matter of this Agreement.
17.3 ICAEWs total aggregate liability for any losses, damages or claims (including any legal costs) shall be limited to the total of the Licence Fees paid in the preceding 12 months of when the claim arose.
18.1 Any notice required or permitted to be given under this Agreement shall be in writing in English, and shall be sent or delivered by hand to the address of the recipient as set out in the Commercial Terms - or to such other address as the recipient may designate by notice to the other party in accordance with this clause. Any such notice shall be delivered personally, sent by first-class or by pre-paid signed-for delivery service.
18.2 Any notice shall be deemed to have been given at the earliest of the following:
18.2.1 if delivered personally or by courier, on the day on which it is physically delivered;
18.2.2 if sent by first class post, 9am on the third business day following the day on which the envelope containing the same was posted.
19.1 This Agreement may be executed in counterparts, all of which taken together shall constitute one and the same instrument, and any one or more of the parties may enter into this Agreement by executing a counterpart which should be initialled on each page and signed in full where specified.
19.2 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that, in entering into this Agreement, it does not rely on, and it shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
19.3 No waiver by any party of any breaches of this Agreement by the other party shall be construed as a waiver of any subsequent breach of the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or power that it has or may have hereunder operate as a waiver of any breach or default.
19.4 If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected, and the parties shall immediately enter into good faith negotiations to amend such provision in such a way that as amended it is valid and legal and (to the maximum extent possible) carries out the original intent of the parties as to the point or points in question.
19.5 The relationship established by this Agreement shall not create or imply the existence of any partnership or agency between the parties, nor any arrangement which would impose liability on one party for acts or omissions of the other.
19.6 The obligations of each party under this Agreement shall be suspended during the period and to the extent that any party is prevented or hindered from complying with the Agreement by reason of a Force Majeure Event.
19.7 No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.
This Agreement shall be governed and construed in accordance with the laws of England and any dispute arising under it shall be submitted to the exclusive jurisdiction of the English courts.
Separate controller data sharing schedule
This Schedule forms part of the Agreement entered into between the Licensee and ICAEW, effective from the Commencement Date (the “Agreement”). Pursuant to the terms of the Agreement each Party wishes to share certain Personal Data (as hereafter defined). Each party wishes to ensure that the other party complies with its legal obligations in connection with such Personal Data and otherwise agrees the responsibilities set out in this Schedule. Accordingly, in consideration of the benefits of the parties of the sharing of Personal Data, the parties agree to comply with the following terms.
1. Definitions and interpretation
1.1. Any words defined in the Agreement and used in this Schedule shall have the meaning given in the Agreement. Otherwise, in this Schedule, unless the context otherwise requires, the following words and expressions shall have the following meanings:
|Applicable Laws||means the laws of England and Wales, the laws of the European Union so long as these apply in England and Wales, and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to data processing carried out in connection with this Agreement.|
|"Controller"||means the natural or legal person which, alone or jointly with others, determines the purposes and means of processing of Personal Data.|
|"Data Subject"||means a natural person to whom Personal Data relates.|
|"Data Protection Legislation"||means any Applicable Law relating to the processing, privacy, and use of Personal Data, as applicable to ICAEW, the Supplier and/or the Services, including:
|"Disclosing Party"||means a Party to this Agreement which discloses or makes available directly or indirectly Personal Data.|
|"Effective Date"||means the Commencement Date.|
|"Party"||means a Party to the Agreement and “Parties” shall be construed accordingly.|
|"Personal Data"||means any information relating to an identified or identifiable natural person.|
|"Personnel"||means any employee, officer or director, or an individual working as a consultant, independent contractor or agent, and/or temporary worker of a Party.|
|"Processing"||means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, including (without limitation) collecting, recording, organising, structuring, storing, adapting, altering, retrieving, consulting, using, disclosing, combining, restricting, erasing or destroying (and related terms such as process have corresponding meanings).|
|"Regulator"||means the UK Information Commissioner’s Office and the European Data Protection Board or any successor body to either regulator from time to time and any other supervisory authority with jurisdiction over either Party.|
|"Security"||means a Party’s technological, physical, administrative, organizational and procedural safeguards, including, without limitation, policies, procedures, guidelines, practices, standards, controls, hardware, software, firmware and physical security measures, the function or purpose of which is, in whole or part, to: (a) protect the confidentiality, integrity or availability of Shared Data; (b) prevent the unauthorized use of or unauthorized access to Shared Data; (c) prevent the loss, theft or damage of Shared Data; or (d) comply with Data Protection Legislation.|
|"Security breach"||means any actual, threatened, or reasonably suspected: (a) unauthorized use of, or unauthorized access to Shared Data, damage to, or inability to access, Shared Data due to a malicious use, attack or exploit of such Shared Data; (b) unauthorized access to, theft of or loss of Shared Data; (c) unauthorized use of Shared Data for purposes of actual, reasonably suspected or attempted theft, fraud, identity theft or other misuse; (d) unauthorized disclosure of Shared Data.|
|"Shared Data"||means Personal Data held by one Party as a Controller, which is provided to the other Party as a Controller under this Agreement.|
1.2. Clause headings shall not affect the interpretation of this Schedule.
1.3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.5. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment, and includes any subordinate legislation for the time being in force made under it.
1.6. 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.
1.7. Any obligation in this Schedule on a person not to do something includes an obligation not to agree or allow that thing to be done.
2. Data sharing
2.1. The parties shall each comply with their respective obligations under the Data Protection Legislation when Processing Shared Data pursuant to the terms of this Schedule.
2.2. Annex 1 of this Schedule sets out a description of Shared Data for illustrative purposes and is set out without limitation to the generality of Shared Data that may be Processed pursuant to the terms of this Schedule.
2.3. For the purposes of this Clause 2, the parties acknowledge that in respect of Shared Data Processed pursuant to the terms of this Schedule and the Agreement the parties are separate Data Controllers. Depending on circumstances of a specific transfer of Personal Data, one party will be the Recipient and the other the Disclosing Party.
2.4. Both parties shall at all times remain responsible for the acts and omissions pursuant to this Schedule of their respective Personnel and suppliers.
2.5. The parties shall only Process Shared Data for the purpose or purposes set out in their respective privacy notices, copies of which shall be provided to the other party upon request.
2.6. Each party shall comply with its own obligations under this Clause at its own cost.
3.1. The Disclosing Party represents, warrants and covenants during the term of the Agreement that, in relation to the Shared Data:
3.1.1. the Shared Data has been obtained by the Disclosing Party in accordance with the Data Protection Legislation;
3.1.2. privacy notices provided to Data Subjects are compliant with, and have been provided to the Data Subject in a manner which is compliant with, the Data Protection Legislation;
3.1.3. there are no circumstances of which the Disclosing Party is aware which are likely to give rise to breach of the Data Protection Legislation in the future (including any unauthorised disclosure) or any notice, complaint, claim or notification from a Data Subject or Regulator; and
3.1.4. transferring the Shared Data to the Recipient in accordance with this Schedule will not constitute a breach of the Data Protection Legislation.
4.1. Both parties shall implement appropriate technical and organisational measures to ensure a level of Security appropriate to the risk involved under this Schedule to:
4.1.1. protect all Shared Data from unauthorized use, alteration, access or disclosure, and loss, theft, and damage, and to protect and ensure the confidentiality, integrity and availability of Shared Data; and
4.1.2. prevent a Security Breach.
4.2. Both parties shall keep accurate records of the Security measures which they have in place and shall make such records available to the other party upon request.
4.3. Security measures shall be regularly tested by each party to assess the effectiveness of the measures in ensuring the security, confidentiality, integrity, availability and resilience of Shared Data, and the party's compliance with this Schedule and the party's obligations under the Data Protection Legislation. Both parties shall maintain records of the testing.
4.4. In the event of a Security Breach, the Recipient shall notify the Disclosing Party’s Representative without undue delay and in any event within twenty four (24) hours after the Recipient or its suppliers, contractors and or agents discovered such Security Breach.
4.5. Following the notification referred to in Clause 4.4 of this Schedule above, each party shall provide assistance and co-operation to the other party to mitigate the Security Breach, including to:
4.5.1. immediately conduct a reasonable investigation of the reasons for and circumstances of such Security Breach;
4.5.2. take all necessary actions to prevent, contain, and mitigate the impact of, such Security Breach, and remediate such Security Breach, without delay;
4.5.3. remediate the effects of a Security Breach;
4.5.4. promptly produce a written report setting out all relevant details concerning such Security Breach, including without limitation any security, risk or compliance assessment and security control audit reports; and
4.5.5. provide regular updates to the other party following a Security Breach.
5. Records, notification and assistance
5.1. Both parties shall at their own cost:
5.1.1. keep a record of any Processing of Shared Data it carries out;
5.1.2. notify the other party promptly (but in any event within 24 hours) should it receive any Data Subject access request or complaint or any information notice, enforcement notice or other correspondence from a Regulator, individual or third party in respect of Shared Data; or become aware of any circumstance which may cause either party to breach this Schedule or which may cause either party to breach the Data Protection Legislation; and
5.1.3. reasonably cooperate and coordinate with the other party concerning the other party's compliance with Data Protection Legislation.
6. Reservation of rights and acknowledgements
6.1. All Shared Data shall remain the property of the relevant Disclosing Party where such proprietary rights arise at law. Each party reserves all rights in its Shared Data. No rights, including intellectual property rights, in respect of a party's Shared Data are granted to the other party and no obligations are imposed on the Disclosing Party other than those expressly stated in this Schedule.
6.2. Except as expressly stated in this Schedule, no party makes any express or implied warranty or representations concerning its Shared Data, or the accuracy or completeness of the Shared Data.
The details of the Processing taking place under this Agreement is set out below.
Registrants of Licensee
Employees of Licensee
Categories of data
Basic contact details including first name, last name & email address
Categories of sensitive personal data
Administering the Sustainability Certificate Programme
Nature of processing
Collection, retrieval, storage, transmission and processing of the Personal Data for the Processing purposes
Duration of the processing
The Term of the licence (12 months)
Report any data breach to the ICAEW Data Protection Office on;
+44 (0)1908 248 250