Terms and Conditions of Service
These Terms and Conditions of Service (“Terms”) govern access to and use of the Data Literacy Academy web-based learning platform (the “Platform”), including the OnDemand self-paced e-learning product and any other Subscription Services, provided by Data Literacy Academy Limited (“Data Literacy Academy”, “we”, “us”, “our”).
By executing an Order Form or accessing the Platform, the customer (“Client”) agrees to be bound by these Terms.
1. Definitions and Interpretation
1.1 Definitions
The following definitions apply throughout this Agreement:
Affiliate: Any entity that directly or indirectly controls, is controlled by or is under common control with another entity. As used herein, control means the power to direct the management or affairs of an entity or the beneficial ownership of more than 50% of the voting equity shares or other equivalent voting interests of an entity.
Agreement: The agreement between Data Literacy Academy and Client for the supply of the Subscription Services comprised of the Order Form and these Terms and Conditions of Service.
Applicable Laws: All laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any court or competent authority or tribunal, all codes of practice having force of law, statutory guidance, regulatory policy or guidance and industry codes of practice.
Authorised Users: Those individual natural persons authorised by Client to access and use the Subscription Services pursuant to this Agreement.
Business Day: A day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Client Materials: All documents, drawings, specifications, information, items, data and materials in any form, whether owned by Client or a third party, that are provided by Client to Data Literacy Academy in connection with the Subscription Services.
Confidential Information: All confidential information disclosed by a party (Disclosing Party) to the other party (Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include information that: (i) is or becomes generally known to the public without breach of any obligation of confidentiality by the Receiving Party; (ii) was known to the Receiving Party prior to disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party and who has a legal right to disclose such information; or (iv) was independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information.
Data Literacy Academy Platform: The Data Literacy Academy web-based learning platform, including the OnDemand product, developed, operated and maintained by Data Literacy Academy, accessible via https://dl-academy.com/ or another designated URL notified to Client from time to time.
Data Protection Legislation: All applicable data protection and privacy legislation in force from time to time in the UK, including the UK GDPR, the Data Protection Act 2018, the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data.
Derived Data: Any data derived from Client's or an Authorised User's use of the Subscription Services or the processing of User Data, including: (i) data processed and stored as mathematical constructs; (ii) statistical or aggregated data; and (iii) analytical data such as number and duration of user sessions, page visits, and technical performance reports. Derived Data shall not include Personal Data, except where such Personal Data has been anonymised.
Documentation: Printed or online learning support materials, instructions, manuals or other materials provided by Data Literacy Academy for use as part of the Subscription Services or pertaining to the Platform.
Effective Date: The date this Agreement is signed by both parties, or the date on which Client first accesses the Subscription Services if earlier.
Intellectual Property Rights: Without limitation: patents, rights to inventions, copyright and neighbouring rights, trade marks and service marks, business names and domain names, goodwill, rights in designs, database rights, rights to use and protect the confidentiality of Confidential Information (including know-how and trade secrets) and all other intellectual property rights, 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.
Order Form: The Data Literacy Academy Subscription Services Order Form executed between the parties, specifying the subscription term, Subscription Fees, Authorised User quantities and scope of Subscription Services.
Personal Data: Has the meaning given under the Data Protection Act 2018 and UK GDPR.
Privacy Policy: The Data Literacy Academy Privacy Policy located at www.dl-academy.com/privacy-policy/, as updated from time to time.
Service Credits: Credits issued by Data Literacy Academy to Client in accordance with clause 3.5 where SLA Uptime Targets are not met.
Services Start Date: The date specified in the Order Form from which access to the Subscription Services commences.
SLA Uptime Target: The availability target for the Platform as set out in clause 3.5.
Subscription Fees: The fees set out in the Order Form payable by Client to Data Literacy Academy for use of the Subscription Services.
Subscription Services: Access to and use of the Data Literacy Academy Platform (including the OnDemand product) and any related services provided to Client by Data Literacy Academy on a subscription basis, as further described in the Order Form.
Subprocessors: Third-party organisations engaged by Data Literacy Academy to process Personal Data in connection with the provision of the Subscription Services.
Term: The subscription term specified in the Order Form, including any Renewal Terms.
Terms of Use: The Data Literacy Academy Platform terms of use applicable to Authorised Users, as published at [INSERT LINK] and updated from time to time.
UK GDPR: Has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
User Data: Information collected during an Authorised User's interactions with the Platform and Subscription Services, in accordance with the terms of this Agreement and the Privacy Policy. User Data does not include Derived Data.
Virus: Any thing or device (including software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Interpretation
In this Agreement: (i) clause and paragraph headings shall not affect the interpretation of this Agreement; (ii) unless the context otherwise requires, words in the singular shall include the plural and vice versa; (iii) a reference to writing or written includes e-mail; (iv) 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 preceding those terms; and (v) a reference to a statute or statutory provision is a reference to it as in force as at the date of this Agreement, including all subordinate legislation made under it as at that date.
2. Subscription Services, Authorised Users and Restrictions
2.1 Provision of Services
Data Literacy Academy shall supply the Subscription Services substantially in accordance with the Documentation and with reasonable skill and care.
2.2 Authorised Users
Each Authorised User will be provided a unique username and password. Usernames and passwords must not be shared and must not under any circumstances be used by anyone who is not an Authorised User. In the event Client exceeds the contractual Authorised User limit set out in the Order Form, Client and Data Literacy Academy will promptly execute a new Order Form for the additional Authorised Users. Client is responsible for any and all actions taken by Authorised Users or by anyone using Client's accounts and passwords. Client acknowledges that Authorised Users must provide Data Literacy Academy with identifying information, including their name and a business email address, and that Authorised Users may be required to accept an end-user licence agreement and agree to the Privacy Policy and Terms of Use.
2.3 Eligibility of Authorised Users
Client shall not designate any person as an Authorised User unless such person is: (1) a natural person and (2) an employee of Client. Client may designate a non-employee (i.e. an independent contractor) as an Authorised User only with Data Literacy Academy's prior written permission, provided Client takes reasonable steps to ensure such non-employee uses the Subscription Services only as permitted under this Agreement. If the employment of any Authorised User terminates, Client shall promptly notify Data Literacy Academy and take all reasonable steps to ensure that such person ceases accessing the Subscription Services. Client may be permitted to reassign Authorised User designations in good faith, subject to the foregoing qualification requirements and Data Literacy Academy's prior written approval.
2.4 Affiliates
Unless specified otherwise in the Order Form, the rights provided under this clause 2 are granted to Client only and shall not be considered granted to any Affiliate. If Client is permitted to make the Subscription Services available to its Affiliates in the relevant Order Form, Client shall: (i) be responsible for the Subscription Fees and all acts and omissions of its Affiliates (and their users); (ii) be liable for ensuring that its Affiliates (and their users) comply with the terms of this Agreement; and (iii) ensure that any rights or remedies arising in connection with this Agreement will be actionable against Data Literacy Academy solely by Client and not by any Affiliate. Any limitations or exclusions of liability shall be deemed to apply to Client and its Affiliates in aggregate.
2.5 Acceptable Use Restrictions
Client shall not use the Subscription Services in a manner that violates any Applicable Laws and further agrees that it shall not:
(a)attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Subscription Services or Documentation in any form or by any means, other than as permitted by Applicable Law incapable of exclusion by agreement or as expressly permitted under this Agreement;
(b)use any aspect of the Subscription Services to create, market or distribute a product or service which competes with the Subscription Services;
(c)use the Subscription Services to provide services to third parties;
(d)subject to clause 13.4, licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services available to any third party except the Authorised Users;
(e)attempt to obtain, or assist third parties in obtaining, access to the Subscription Services except as set out in this Agreement;
(f)access or attempt to access any of Data Literacy Academy's systems, programs or data that are not made available for public use, or attempt to bypass any security or traffic management devices of the Subscription Services;
(g)decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, object code or underlying ideas, algorithms, file formats or programming or interoperability interfaces relevant to the Subscription Services by any means; or
(h)knowingly introduce, or permit the introduction of, any Virus into Data Literacy Academy's network and information systems or access, store, distribute or transmit any Viruses during the course of its use of the Subscription Services.
2.6 Suspension Rights
Without prejudice to any other rights or remedies available to it, Data Literacy Academy may suspend Client's or any Authorised User's access to the Subscription Services immediately by written notice if: (i) Client fails to pay any undisputed Subscription Fees when due and has not remedied such failure within ten (10) Business Days of written notice; (ii) Data Literacy Academy reasonably suspects misuse of the Subscription Services, a security threat, or introduction of a Virus; (iii) Data Literacy Academy is required to do so by Applicable Law or regulatory authority; or (iv) continued access poses a risk to the integrity or security of the Platform or other clients' data. Data Literacy Academy shall use commercially reasonable efforts to notify Client prior to suspension (except where immediate action is required for security reasons) and shall lift any suspension promptly once the relevant issue is remedied.
2.7 Audit Rights
Client shall permit Data Literacy Academy or Data Literacy Academy's designated auditor to audit the Subscription Services in order to establish the name and password of each Authorised User and Client's data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per calendar quarter, at Data Literacy Academy's expense, and this right shall be exercised with reasonable prior written notice of at least five (5) Business Days, in such a manner as not to substantially interfere with Client's normal conduct of business.
If any audit referred to in clause 2.7 reveals that any password has been provided to any individual who is not an Authorised User, then without prejudice to Data Literacy Academy's other rights, Client shall promptly disable such passwords and Data Literacy Academy shall not issue any new passwords to any such individual.
If any audit referred to in clause 2.7 reveals that Client has underpaid Subscription Fees to Data Literacy Academy, then without prejudice to Data Literacy Academy's other rights, Client shall pay to Data Literacy Academy an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Form within ten (10) Business Days of the date of the relevant audit.
2.8 Security Obligations
Client shall and shall procure that each Authorised User comply with the Terms of Use and shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services. In the event of any such unauthorised access or use, Client shall promptly notify Data Literacy Academy. Client shall be solely responsible for all activities occurring under Client's account credentials. If Client becomes aware of any breach of security, such as the theft or unauthorised use of account credentials, Client will notify Data Literacy Academy immediately.
2.9 Technical Requirements
It is Client's responsibility to ensure it has appropriate hardware, browser, and internet connection for Authorised Users to access the Subscription Services. Technical requirements and advice on accessibility issues are available on request from Data Literacy Academy.
3. Service Performance, Availability and SLA
3.1 Service Standard
Data Literacy Academy shall supply the Subscription Services with reasonable skill and care, substantially in accordance with the Documentation.
3.2 Exclusions and Service Limitations
Data Literacy Academy's obligations under clause 3.1 shall not apply to the extent of any non-conformance caused by: (i) use of the Subscription Services contrary to Data Literacy Academy's instructions or Documentation; (ii) modification or alteration of the Subscription Services by any party other than Data Literacy Academy or its duly authorised contractors; (iii) misuse, negligence or wilful act of Client or any Authorised User; or (iv) third-party systems, general internet problems, or force majeure events.
Data Literacy Academy does not warrant that: (i) Client's or Authorised Users' use of the Subscription Services will be uninterrupted or error-free; (ii) the Subscription Services, Documentation and/or the information obtained by Client through the Subscription Services will meet Client's requirements; or (iii) the Subscription Services and any platform used to provide them will be free from Viruses. Data Literacy Academy is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over the internet, and Client acknowledges that the Subscription Services and Documentation may be subject to limitations, delays and other problems inherent in the use of the internet.
3.3 Remedy for Non-Conformance
If the Subscription Services do not conform with clause 3.1, Data Literacy Academy will, at its expense, use commercially reasonable endeavours to correct any such non-conformance promptly. Such correction constitutes Client's sole and exclusive remedy for any breach of the undertaking set out in clause 3.1, subject to Client's termination rights at clause 7.
3.4 Availability and Maintenance
Data Literacy Academy will use commercially reasonable efforts to maintain the Platform in a manner which minimises errors and interruptions. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance. Data Literacy Academy shall: (i) use commercially reasonable efforts to schedule planned maintenance outside of normal business hours (08:00–18:00 GMT/BST Monday to Friday); and (ii) give Client at least 24 hours' advance written notice of any scheduled service disruption. Data Literacy Academy shall use reasonable endeavours to complete maintenance within the notified window.
3.5 Service Level - Uptime Target and Service Credits
Data Literacy Academy targets a Platform availability of 99.5% in any given calendar month, excluding scheduled maintenance windows, force majeure events, and outages caused by Client, Authorised Users, or third-party internet infrastructure outside Data Literacy Academy's reasonable control (201cSLA Uptime Target201d).
Where the Platform fails to meet the SLA Uptime Target in any calendar month, Client shall be entitled to Service Credits calculated as follows:
(a)Availability between 99.0% and 99.5%: Service Credit equal to 5% of the monthly pro-rata Subscription Fee for the affected month.
(b)Availability between 95.0% and 99.0%: Service Credit equal to 10% of the monthly pro-rata Subscription Fee for the affected month.
(c)Availability below 95.0%: Service Credit equal to 20% of the monthly pro-rata Subscription Fee for the affected month.
Service Credits shall be applied against the next invoice due and shall constitute Client's sole and exclusive remedy in respect of any failure to meet the SLA Uptime Target. Service Credits are not redeemable for cash. Client must submit a written claim for Service Credits within thirty (30) days of the end of the relevant month, providing reasonable evidence of the relevant unavailability. Data Literacy Academy's reasonable records shall be the primary source of availability measurement.
3.6 Business Continuity and Disaster Recovery
Data Literacy Academy will maintain reasonable disaster recovery and business continuity arrangements, including regular backups of Client User Data. In the event of a significant incident affecting the availability of the Platform, Data Literacy Academy will use commercially reasonable efforts to restore service and will notify Client of the incident, its anticipated impact, and expected resolution timeline as soon as reasonably practicable.
3.7 Client Obligations
Client shall:
(a)provide Data Literacy Academy with all necessary co-operation and access to information as may be required to provide the Subscription Services;
(b)carry out all Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in Client's provision of such assistance as agreed by the parties, Data Literacy Academy may adjust any agreed timetable or delivery schedule as reasonably necessary;
(c)ensure that Authorised Users use the Subscription Services and Documentation in accordance with this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
(d)obtain and maintain all necessary licences, consents and permissions necessary for Data Literacy Academy and its contractors and agents to perform their obligations under this Agreement;
(e)ensure that its network and systems comply with the relevant specifications provided by Data Literacy Academy from time to time; and
(f)be solely responsible, to the extent permitted by law and except as otherwise expressly provided in this Agreement, for procuring, maintaining and securing its network connections and telecommunications links from its systems to Data Literacy Academy's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Client's network connections or telecommunications links or caused by the internet.
4. Fees and Payment Terms
4.1 Basis of Fees
Subscription Fees are based on access rights acquired and the number of Authorised Users, not actual usage. Except as expressly stated in these Terms: (i) payment obligations are non-cancellable and non-refundable; and (ii) access rights purchased for the number of Authorised Users cannot be decreased during the relevant Term.
4.2 Invoicing and Payment
Unless otherwise stated in the applicable Order Form, all invoices are due and payable within thirty (30) days of the invoice date. Client will provide Data Literacy Academy with complete and accurate billing and contact information including a valid email address. Fees subject to good faith written dispute submitted to Data Literacy Academy within fifteen (15) days of the invoice date shall not be subject to late payment interest pending resolution of the dispute.
4.3 Late Payment
Data Literacy Academy reserves the right to charge interest on any late payments. Interest on late payments will accrue at the rate of 1.5% above the then current Bank of England base rate per month (but at a minimum of 1.5% per month for any period when the base rate is below 0%), or the highest rate permitted by Applicable Law, whichever is higher, from the date the amount is due until the date finally paid in full. Data Literacy Academy may suspend performance for Client's breach of its payment obligations upon ten (10) days' prior written notice in accordance with clause 2.6.
4.4 Taxes
All Subscription Fees are stated exclusive of VAT or applicable sales taxes, which shall be added to Data Literacy Academy's invoice(s) at the appropriate rate. All amounts due shall be paid by Client in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by Applicable Law).
4.5 Fee Increases
Data Literacy Academy shall be entitled to increase the Subscription Fees at the start of each Renewal Term upon not less than forty-five (45) days' prior written notice to Client. Any increase shall take effect from the commencement of the next Renewal Term unless Client exercises its right not to renew in accordance with clause 7.2.
5. Ownership and Licence
5.1 Data Literacy Academy IP
Client acknowledges and agrees that all Intellectual Property Rights in and to the Data Literacy Academy Platform, the Subscription Services, the Derived Data, and the Documentation shall belong to and remain vested in Data Literacy Academy (or, where applicable, any relevant licensor) at all times. No rights are granted to Client other than as expressly set forth in this Agreement. All other trademarks, registered trademarks, product names, and company names or logos mentioned in or on the Data Literacy Academy Platform are the property of their respective owners. Data Literacy Academy reserves all rights to the Subscription Services not expressly granted herein.
5.2 Licence Grant
Subject to payment of Subscription Fees in accordance with this Agreement, Data Literacy Academy grants Client a non-exclusive, non-transferable, non-sublicensable, royalty-free licence to access and use the Subscription Services set forth in the Order Form during the Term in accordance with this Agreement and solely for Client's internal business operations.
5.3 Client Materials
Client and its licensors shall retain all rights, title and interest in Client Materials. Client hereby grants to Data Literacy Academy a royalty-free, worldwide, non-exclusive licence to use and modify Client Materials during the Term solely for the purpose of providing the Subscription Services to Client. Client further grants Data Literacy Academy a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual licence to use or incorporate into the Subscription Services any suggestions, enhancement requests, recommendations or other feedback provided by Client or Authorised Users relating to the operation of the Subscription Services, provided such information does not include any Client Confidential Information.
5.4 Client IP Warranty
Client warrants that the receipt and use of Client Materials in the performance of this Agreement by Data Literacy Academy shall not infringe the rights, including any Intellectual Property Rights, of any third party. Client shall indemnify Data Literacy Academy in full against all liabilities, costs, expenses, damages and losses (including legal costs on a full indemnity basis) suffered or incurred by Data Literacy Academy arising out of or in connection with any claim for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the use of Client Materials.
6. Confidential Information
6.1 Obligation of Confidentiality
During the Term and for three (3) years thereafter, the Receiving Party will keep confidential and will not publish or otherwise disclose or use for any purpose other than as provided for in this Agreement the Confidential Information of the Disclosing Party.
6.2 Standard of Care
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care). The Receiving Party: (i) will not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) except as otherwise authorised by the Disclosing Party in writing, will limit access to Confidential Information to those employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound by confidentiality obligations consistent with this Agreement.
6.3 Compelled Disclosure
The Receiving Party may disclose Confidential Information if compelled by law or regulatory process to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted and practicable) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.4 Return or Destruction
Upon written request, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information received from the Disclosing Party, except digital backup copies created through automated system processes which shall be protected as Confidential Information by the Receiving Party for as long as retained.
6.5 Acknowledgment
The Receiving Party acknowledges that: (a) the Disclosing Party is the exclusive owner of and has all rights to its Confidential Information; and (b) no right, title, interest or licence to the Receiving Party is either granted or implied under any Intellectual Property Rights by the disclosure of Confidential Information hereunder.
7. Term, Termination and Effects of Termination
7.1 Initial Term
This Agreement shall commence on the Effective Date and, unless terminated sooner in accordance with these Terms, shall continue for the Term specified in the Order Form.
7.2 Automatic Renewal
Upon expiry of the initial Term, this Agreement shall automatically renew for successive renewal periods equal in length to the initial Term (each a “Renewal Term”) unless either party provides the other with written notice of its intention not to renew at least ninety (90) days prior to the end of the then-current Term. Subscription Fees for each Renewal Term shall be notified by Data Literacy Academy in accordance with clause 4.5. Except for updated Fees and any other agreed amendments, each Renewal Term shall be on the same terms and conditions as this Agreement.
7.3 Termination for Cause
Without affecting any other right or remedy available to it, either party may terminate this 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 Agreement on the due date for payment and remains in default not less than ten (10) Business 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 remediable) fails to remedy that breach within thirty (30) days after being notified in writing to do so; or
(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 any analogous procedure in a relevant jurisdiction.
7.4 Termination by Data Literacy Academy - Fee Acceleration
If this Agreement is terminated by Data Literacy Academy under clause 7.3, all Subscription Fees payable to Data Literacy Academy for the remainder of the then-current Term shall become immediately due and payable, and Client shall promptly remit all such fees to Data Literacy Academy.
7.5 Termination by Client - Refund
If this Agreement is terminated by Client under clause 7.3, Data Literacy Academy shall promptly refund the pro-rata amount of any pre-paid Subscription Fees for the remainder of the then-current Term in respect of Subscription Services that Client will not receive.
7.6 Data Return and Deletion on Termination
Upon expiration or termination of this Agreement for any reason, Data Literacy Academy shall, upon Client's written request made within thirty (30) days of the date of termination or expiry:
(a)provide Client with a complete export of Client's User Data in a commonly used, machine-readable format (such as CSV or JSON) within thirty (30) days of such request; and
(b)thereafter securely delete or destroy all User Data held by Data Literacy Academy in relation to Client, except to the extent that retention is required by Applicable Law or Data Literacy Academy's legitimate backup and archival processes.
If Client does not make a written request for data export within thirty (30) days of termination or expiry, Data Literacy Academy may delete Client's User Data after such period without further obligation.
7.7 Effect of Termination
Upon expiration or termination of this Agreement for any reason: (i) all licences granted under this Agreement shall immediately terminate; (ii) each party shall return or destroy and make no further use of any Confidential Information, equipment, property and other items (and all copies of them) belonging to the other party (subject to clause 7.6 in respect of User Data); and (iii) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination shall not be affected or prejudiced. Clauses 2, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13, and if applicable the Privacy Policy, survive any termination or expiration of this Agreement.
8. Representations and Warranties
8.1 Mutual Warranties
Each party represents and warrants that: (a) the person signing this Agreement on its behalf has been duly authorised and empowered to enter into this Agreement; (b) this Agreement is valid, binding and enforceable against it in accordance with its terms; and (c) it will fulfil its obligations under this Agreement in accordance with all Applicable Laws.
8.2 Client Warranty
Client represents and warrants that it will not, in connection with this Agreement, including its use of or access to the Subscription Services, engage in, encourage, or permit conduct that violates or would violate any Applicable Law, rule or regulation or any right of any third party.
8.3 Data Literacy Academy Warranty
Data Literacy Academy represents and warrants that: (a) it possesses all necessary authority and permissions to provide Client with access to the Subscription Services and the Platform; and (b) it has and will maintain all necessary licences, consents and permissions necessary for the performance of its obligations under this Agreement.
9. Indemnification
9.1 Data Literacy Academy Indemnity
Subject to clause 11, Data Literacy Academy will indemnify, defend and hold harmless Client and its officers, directors and employees against all liabilities, costs, expenses, damages and losses (including reasonable legal costs) suffered or incurred by Client arising out of or in connection with any claim that Client's use of the Subscription Services or Documentation in accordance with this Agreement infringes a third party's Intellectual Property Rights. If the Subscription Services become, or in Data Literacy Academy's opinion are likely to become, the subject of any infringement claim, Data Literacy Academy may at its sole option: (a) obtain for Client the right to continue using the Subscription Services; (b) replace or modify the affected Subscription Services so as to be non-infringing while providing substantially equivalent functionality; or (c) if neither (a) nor (b) is available on commercially reasonable terms, terminate the licence to use the affected portion of the Subscription Services and promptly issue a pro-rata refund of any pre-paid Subscription Fees for that portion.
Data Literacy Academy will have no liability under this clause 9.1 if the alleged infringement arises from: (i) combination or use of the Subscription Services with software or materials not provided or approved by Data Literacy Academy; (ii) modification of the Subscription Services by anyone other than Data Literacy Academy or at its direction; (iii) use of the Subscription Services not in accordance with the Documentation or this Agreement; or (iv) Client's negligence or wilful misconduct. The remedies in this clause 9.1 are Client's exclusive remedy for infringement claims.
9.2 Client Indemnity
Client will indemnify, defend and hold harmless Data Literacy Academy and its officers, directors, employees and Affiliates against all liabilities, costs, expenses, damages and losses (including reasonable legal costs) suffered or incurred by Data Literacy Academy arising out of or in connection with: (1) Client's access or use of the Subscription Services in violation of any Applicable Law; (2) Client's violation of any provision of this Agreement, the Privacy Policy or the Terms of Use; or (3) the use of the Subscription Services by any third party to whom Client has granted access (including access obtained through use of Client's or Authorised Users' credentials).
9.3 Indemnification Procedure
Any party entitled to indemnification under this clause 9 (Indemnified Party) shall: (a) give prompt written notice to the indemnifying party (Indemnifying Party) of any matters giving rise to a claim for indemnification; (b) cede sole control over the defence of any such claim to the Indemnifying Party, provided the Indemnifying Party retains counsel reasonably satisfactory to the Indemnified Party; and (c) cooperate fully with the Indemnifying Party in connection with any negotiation or defence of such action or claim.
9.4 Settlement
The Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of any defence or settlement negotiations. The Indemnifying Party will not settle any such claim without the Indemnified Party's prior written consent (not to be unreasonably withheld), unless such settlement does not impose any obligations, admissions or liabilities upon the Indemnified Party.
10. Disclaimer
EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDED FROM THIS AGREEMENT. THE DATA LITERACY ACADEMY PLATFORM, THE SUBSCRIPTION SERVICES AND ANY INFORMATION PROVIDED BY OR ON BEHALF OF DATA LITERACY ACADEMY ARE PROVIDED TO CLIENT ON AN "AS IS" BASIS, SUBJECT TO THE SLA UPTIME TARGET SET OUT IN CLAUSE 3.5. CLIENT AGREES AND ACKNOWLEDGES THAT IT HAS NOT RELIED ON THE FUTURE AVAILABILITY OF ANY FEATURE, FUNCTIONALITY, OR PRODUCT.
11. Limitation of Liability
11.1 Uncapped Liabilities
Nothing in this Agreement excludes or limits either party's liability for: (i) death or personal injury caused by its negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liabilities that cannot be excluded or limited under Applicable Law.
11.2 Cap on Liability
Subject to clauses 11.1 and 11.3, Data Literacy Academy's total aggregate liability to Client arising under or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the total Subscription Fees paid by Client to Data Literacy Academy during the twelve (12) months immediately preceding the event first giving rise to the claim.
11.3 Excluded Loss Types
Subject to clause 11.1, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for any:
(a)loss of profits;
(b)loss of sales or business;
(c)loss of agreements or contracts;
(d)loss of anticipated savings;
(e)loss of use or corruption of software, data or information;
(f)loss of or damage to goodwill; or
(g)indirect or consequential loss.
12. Data Privacy and Security
12.1 Independent Controllers
Client and Data Literacy Academy acknowledge that each party is an independent controller of business-to-business contact personal data exchanged in the context of the commercial relationship. Each party shall comply with its obligations under the Data Protection Legislation. In the event that either party becomes a processor instructed by the other as a controller of any Personal Data, the parties shall enter into a data processing agreement in accordance with Article 28 of the UK GDPR.
12.2 Privacy Policy
Data Literacy Academy will operate in accordance with its published Privacy Policy, which is incorporated into this Agreement by reference. Data Literacy Academy may track and analyse Client's and Authorised Users' use of the Subscription Services for the purposes of security and to help improve the Subscription Services and the Platform.
12.3 User Data and Derived Data
Data Literacy Academy may use User Data to provide the Subscription Services and to improve the performance and functionality of the Platform, including for developing improvements, updates, upgrades, modifications and derivative works thereof. Data Literacy Academy shall own all rights, title and interest in and to all Derived Data. Any Personal Data contained in any User Data shall be processed by Data Literacy Academy in accordance with the Data Protection Legislation and this Agreement.
12.4 Security Measures
Data Literacy Academy will use all reasonable endeavours to implement appropriate technical and organisational security measures to secure Client's User Data against accidental loss, theft, or unauthorised access or disclosure, including encryption and regular backups. In the event of a personal data breach affecting Client's User Data, Data Literacy Academy will notify Client without undue delay and in any event within seventy-two (72) hours of becoming aware of the breach, to the extent required by the Data Protection Legislation.
12.5 Client Compliance
Client shall comply with its obligations under the Data Protection Legislation in connection with its access to and use of the Subscription Services, including as applicable the requirements of proper notice and consent to enable the lawful transfer of Personal Data to Data Literacy Academy for the purposes and duration of this Agreement.
12.6 No Sale of Data
Data Literacy Academy does not sell, lease, rent or otherwise share for consideration any User Data or Derived Data. Data Literacy Academy will share User Data only as described in its Privacy Policy and only as necessary to perform a business purpose pursuant to Applicable Law.
12.7 Subprocessors
Data Literacy Academy may engage Subprocessors to assist in providing the Subscription Services. Data Literacy Academy shall ensure that any Subprocessors are subject to data protection obligations equivalent to those in this Agreement. Upon Client's written request, Data Literacy Academy shall provide a list of its current Subprocessors. Data Literacy Academy shall give Client reasonable prior notice of any intended changes to its Subprocessors (additions or replacements) and Client may object to such changes in writing within thirty (30) days of notification. Where a Client raises a reasonable objection, the parties shall work in good faith to resolve the concern.
13. General
13.1 Order of Priority
This Agreement is made up of: (1) the Order Form (save for any non-binding commitments detailed in any Additional Comments section of the Order Form); and (2) these Terms and Conditions of Service. To the extent that there is any conflict or ambiguity between these documents, the order of priority shall be: (1) the Order Form; and (2) these Terms and Conditions of Service.
13.2 Governing Law and Venue
This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, will be governed by and construed in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English courts.
13.3 Publicity
Client hereby consents to Data Literacy Academy's use of Client's name in its marketing materials and on its website identifying Client as a client of Data Literacy Academy.
13.4 Force Majeure
Any delay or failure in performance will be excused to the extent caused by an extraordinary event or occurrence beyond the reasonable control of the non-performing party, including without limitation fires, floods, windstorms, explosions, strikes, walk outs, riots, natural disasters, mechanical breakdowns, power outages, interruptions in telecommunications, material shortages, acts of terrorism, wars and changes in law, policy or inflationary pressure that render performance of Subscription Services commercially impracticable. The affected party will give the other party prompt notice of the delay or failure and the reason therefore and will use commercially reasonable efforts to remove the cause or circumstances of non-performance. Nothing in this clause 13.4 shall relieve Client of its obligations under clause 4 (Fees and Payment Terms).
13.5 Assignment
Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated, by operation of law or otherwise, without the prior written consent of the non-assigning party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the above, either party may freely assign this Agreement without consent to an Affiliate, as part of a change of control, or to a successor in interest to all or substantially all of its business or assets. This Agreement will be binding upon and will insure to the benefit of the parties and their respective successors and permitted assigns.
13.6 Entire Agreement
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. 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 that is not set out in this Agreement.
13.7 No Partnership or Agency; Third Party Rights
The relationship between the parties is solely that of independent contractors. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. Nothing in this Agreement is intended to establish any partnership or joint venture between the parties, or constitute either party the agent of the other.
13.8 Notices
All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Client shall provide an email address for notices under this Agreement. Notices to Data Literacy Academy shall be sent to hello@dl-academy.com or such other address as may be notified to Client from time to time.
13.9 Waiver and Severability
A party's delay or failure to exercise a right or remedy will not result in a waiver of that right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. If a court of competent jurisdiction holds any provision or part-provision of this Agreement to be illegal, invalid or unenforceable, the remaining provisions shall be deemed modified to the minimum extent necessary to make them valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any such modification or deletion shall not affect the validity and enforceability of the rest of this Agreement.
13.10 Variation
Data Literacy Academy may modify these Terms at any time in its sole discretion. Changes to these Terms will be notified to Client in writing at least sixty (60) days in advance of the proposed change taking effect. Such proposed amendments shall be deemed accepted and shall become part of this Agreement thirty (30) days after the date such notice is given unless Client informs Data Literacy Academy in writing that it does not accept such amendments. In the event Client does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect.