Juice Talent Development Limited: Full User Agreement Terms.

Last Updated: 10.04.2012

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these Terms:
Additional User means any new User added to the System after the start of the Agreement which is above and beyond the number of Users listed in the Key Terms.
Agreement means the agreement between the Company and the Customer governed by these terms and conditions and the Key Terms in respect of the provision of access to the System for the Purpose.
Business Day means any day which is not a Saturday, Sunday or public holiday in the UK.
Change of Control means the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.
Company means Juice Talent Development Limited, a company incorporated and registered in England and Wales with company number 07703868 and whose registered office is at Third Floor, 111 Charterhouse Street, London EC1M 6AW.
Content means all and any content including text, information, data, images, audio or video material in any medium or form owned, licensed, produced or created by The Company and provided to the Customer by the Company.
Customer means the person, firm or corporate body together with any subsidiary or associated company as defined by the Companies Act 2006 (as amended) that the Company provides the services to.
Fee means the subscription fee payable by the Customer to the Company as set out in the Key Terms and payable under clause 5.
Force Majeure means fire, storm, tempest, inclement weather, war, hostilities, rebellion, insurrection, military or usurped power, civil war, labour lock-outs, strikes and other industrial disputes, riots, commotion, disorder, decree of Government, materials or equipment, power outages, unforeseen or hidden physical features within or upon the premises or investigations by archaeologists or any other cause or circumstance which adversely affects the performance of the terms and provisions of this Contract and which is outside the control of the Company and the Customer.
Intellectual Property Rights means all or any copyright and related rights, moral rights, trade marks, patents, rights to inventions, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in design, rights in computer software, database rights, rights to use and protect the confidentiality of, confidential information (including know-how) 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.
Key Terms means the specific terms agreed between the Company and the Customer which are set out in the Key Terms Agreement.
Normal Business Hours means 0900 to 1700 local UK time, each Business Day.
Purpose means the provision of online recruitment training materials via the System for educational purposes.
Subscription Period means the period for which the Customer subscribes to the System, being the time from the effective date of the Agreement until the Agreement is terminated in accordance with clause 7.
System means the Talent Development Platform (“TDP”) (as modified from time to time) provided by or on behalf of the Company to the Customer for the Purpose. The TDP includes video, audio and text content; testing and exercises; analytics and is available exclusively via the internet.
Unscheduled Maintenance means any maintenance performed by the Company or under the Company’s instructions which has not been planned in advance but is performed outside of Normal Business Hours in circumstances where the Company has given the Customer at least two hours advance notice.
User means an individual employed by the Customer who is registered by the Customer as a person authorised to use the System.
User Licence means the licence granted to each individual User to access the System.
1.2  Clause headings shall not affect the interpretation of this Agreement.

1.3  Unless the context requires otherwise, words in the singular shall include the plural and vice versa, a reference to one gender shall include a reference to other genders and vice versa and a reference to a person shall include natural persons, corporate bodies and unincorporated bodies.
The System
The Company will provide the Customer and its registered Users with access to the System via a personal User name and password as agreed and detailed in Key Terms.
The Company will provide the Customer with access to relevant analytics detailing usage of the System via a management reporting function (provided that the Customer has provided details of which User should be designated as a ‘manager’ to access the reporting function).
The Company will provide telephone and email support relating to the System during Normal Working Hours on Business Days.
The Company will use commercially reasonable endeavours to ensure the System is available 24 hours a day, seven days a week subject to clause 2.5.
The System will not be available when planned maintenance or Unscheduled Maintenance are being carried out.
The Company grants the Customer a non-transferable non-exclusive licence to use the System during the Subscription Period by the Customer’s Users for the Purpose.
The Customer and the Users may access, view, download and print any Content for their personal use in relation to the Purpose only. None of the Content may be provided to any other person or on any other medium or reproduced, distributed or republished in any form or by any means other than as expressly provided for in the Agreement. Any breach of this clause 2.7 will constitute a material breach of the Agreement pursuant to clause 7.1.
The Customer shall not without the express prior written permission of the Company:
license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the System or any Content and/or associated data or documentation other than as stated under the terms of this Agreement;
modify or make derivative works based upon the System or the Content;
frame or mirror any the System or the Content on any other server or wireless or Internet-based device; or
reverse engineer or access the System or the Content in order to build a competitive product or service, build a product using similar ideas, features, functions or graphics of the System or copy any ideas, features, functions or graphics of the Content.
Any breach of this clause 2.8 will constitute a material breach of the Agreement pursuant to clause 7.1.
Customer Obligations

The Customer will ensure Users are their employees and that each User has a unique login. Login details will be provided by the Company. The Customer acknowledges that each User Licence is personal to the User for the Subscription Period and that personal accounts may not be shared. Furthermore the Customer acknowledges that sharing User Licences will be deemed as a material breach of this Agreement. The Customer shall be responsible for any and all acts or omissions of its Users whether the Users are acting in the course of their employment or otherwise in relation to the Customer’s obligations under the Agreement.
The Customer agrees that if it becomes aware of any misuse of the Content or the System or any breach of the Agreement, it shall promptly notify the Company and fully co-operate with the Company to remedy the problem as soon as reasonably practicable. The Company may suspend the Customer’s and/or the Users’ rights under the Agreement until the misuse is remedied.
The Customer agrees to inform the Company immediately upon a User leaving the Customer’s business. The Company will replace the departing User with an Additional User provided that the Additional User shall not access the System until the Company has been notified and the Additional User has been registered as a new User under the Agreement.
The Customer accepts that by using the System it agrees to these obligations.

User Experience and Functionality
The User experience (including look and feel and navigation), Content and functionality of the System are liable to change at the absolute discretion of the Company and the Customer accepts that these changes may be made without any warning or notification being given to the Customer.

Fee & Payment Terms
The Fee must be paid in full without set-off or deduction in accordance with the payment terms in the Key Terms.
The Fee must be paid in advance of the start date stated on the Key Terms Agreement unless otherwise stated on the Key Terms Agreement or invoice.
If payments have not been received within 10 days of the due date the Company may, without prejudice to any other rights and remedies available to the Company and without liability to the Customer, suspend the Customer’s access to all or part of the System and the Company will be under no obligation to provide access to the System or any other agreed services while the invoice(s) concerned remain unpaid. Furthermore interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees payable under the Agreement:
shall be payable in pounds sterling unless otherwise invoiced;
are non-cancellable and non-refundable;
are exclusive of value added tax, which shall be added to the invoice(s) at the appropriate rate.
5.5 The Customer accepts that its terms and conditions of purchase are excluded and overridden by this Agreement.
Obligations & Proprietary Rights
6.1 To the extent that the System does not reasonably conform with the Purpose and such non-conformance is not caused by use of the System that is contrary to the Company’s instructions or modification or alteration of the System by any party other than the Company or its duly authorised contractors or agents, the Company will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any such non-conformance. Notwithstanding the foregoing, the Company:

i) does not warrant that the Customer’s use of the System will be uninterrupted or error-free; and

ii) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the System may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.2 The Company warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
6.3 The Customer acknowledges and agrees that the Company and/or its licensors own all Intellectual Property Rights in the System. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, the Intellectual Property Rights in respect of the System other than the right to use the System in accordance with the terms of this Agreement.

Duration and Termination
The minimum duration of the Agreement is set out in the Key Terms. Subject to earlier termination in accordance with clause 7.2 or 7.3, the Agreement shall continue for the minimum duration and then for each successive year until such time as either party shall serve at least four weeks written notice on the other to expire on the anniversary of the effective date of the Agreement. The Company reserves the right to increase the Fee on each anniversary of the effective date of the Agreement by giving the Customer not less than two months written notice to expire on the anniversary of the effective date of the Agreement.

Without prejudice to any rights that have accrued under this Agreement or any rights or remedies, either party may terminate the Agreement with immediate effect if:
i) the other (or in the case of the Customer, the Users) is in material breach of any of the provisions of the Agreement and if such breach is remediable, the wrongdoing party fails to remedy the breach within 14 days of receiving written notice to do so;

ii) the other party suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due;

iii) the other party suspends or ceases or threatens to suspend or cease to carry its business;

vi) an administrator is appointed over the other party (being a company); or

v) a petition is filed, a resolution is passed or an order is made for the winding up of the other party (being a company) or the other party is the subject of a bankruptcy petition or order (being an individual).
In addition to the circumstances provided for in clause 7.2, the Company may terminate the Agreement with immediate effect if:
i) the Customer or the Users do not use unique logins for accessing the System;

ii) the Customer otherwise provides incorrect information relating to the number of Users; or

iii) there is a Change of Control of the Customer.

The Company reserves the right to temporarily suspend the services provided without notice if the Customer does not use unique logins for each individual User accessing the System or the Company reasonably suspects that the Customer has provided incorrect information relating to the number of Users.
On termination of the Agreement for any reason, all rights granted to the Customer in relation to the System shall cease, the Customer and its Users shall cease all activities relating to the System and the Customer shall immediately pay to the Company any sums due to the Company under the Agreement.
Confidentiality
Each party agrees and undertakes that during the term of this Agreement and thereafter it shall keep confidential and shall not use for its own purposes, nor without the prior written consent of the other party disclose to any third party, any information of a confidential nature (including, without limitation, information relating to a party’s products, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets and information of commercial value) which may become known to that party from the other party (Confidential Information), unless the information is public knowledge or already known to that party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Agreement or subsequently comes lawfully into the possession of that party from a third party.

To the extent necessary to implement the provisions of this Agreement, each party may disclose Confidential Information to those of its employees as may be reasonably necessary or desirable, provided that before any such disclosure each party shall make those employees aware of its obligations of confidentiality under this Agreement and shall at all times procure compliance by those employees with them.

Limitation of Liability
9.1 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

i) any breach of  contract;

ii) any use made by the Customer of the System; and

iii) any representation, statement or tortuous act or omission (including negligence) arising under or in connection with this Agreement.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

Nothing in the Agreement excludes the liability of the Company for:
i) death or personal injury caused by its  negligence;

ii) fraud or fraudulent misrepresentation;

iii) any other liability which cannot be excluded or limited under the applicable law.
9.4  Except as expressly provided in clause 9.3:

i) the Company shall not be liable in any circumstances for any losses or damages which may be suffered by the Customer whether suffered directly or indirectly or are immediate or consequential and whether arising in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

a) loss of profits;

b) loss of business or business opportunity;

c) depletion of goodwill;

d) loss or corruption of data or equipment,

provided that this clause 9.4(i) shall not prevent claims for direct financial loss that are not excluded by any of categories a) to d) of this clause 9.4(i);

ii) the Company’s total liability whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the Agreement shall not exceed a sum equal to the total Fee paid during the 12 months immediately preceding the date on which the claim arose.
Force Majeure
If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.

Notwithstanding any other provision of the Agreement neither party shall be deemed to be in breach of the Agreement or otherwise be liable to the other party for the delay in performance or non-performance of any of its obligations under the Agreement to the extent that the delay or non-performance is caused by a Force Majeure Event of which it has notified the other party.

10.3 If the Force Majeure in question prevails for a continuous period in excess of one month the parties shall enter into a good faith discussion with a view to alleviating its effects or to agreeing upon such alternative arrangements as may be fair and reasonable.
Amendments
11.1 Other than as expressly provided in this Agreement, no amendment or variation of this Agreement shall be effective unless in writing and signed by a duly authorised representative of each of the parties to it.

Assignment
12.1 The Customer shall not, without the prior written consent of the Company assign, transfer, charge or deal in any other manner with this Agreement or any of its rights and obligations under it, or purport to do any of the same. The Customer shall not sub-contract any or all of its obligations under this Agreement.
Freedom to Contract
Both parties warrant that they each have the right, power and authority and have taken all action necessary to execute and deliver and to exercise their rights and perform their obligations under this Agreement.

Waiver
14.1 The failure or delay of a party to exercise or enforce any right or remedy under this Agreement shall not be deemed to be a waiver of that right or remedy, nor operate to bar or restrict the further exercise or enforcement of that right or remedy at any time or times thereafter. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Severability
15.1 If any provision or part of any provision of this Agreement is found by any court or other authority to be invalid, illegal or unenforceable, that provision or part provision shall to the extent required be deemed to be and the other provisions shall remain in force.

15.2 If any invalid, illegal or unenforceable provision would be valid, legal and enforceable if some part of it were deleted, the parties shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the invalid, illegal or unenforceable provision which as nearly as possible validly gives effect to their original commercial intentions as expressed in this Agreement.
Notices
16.1 Any notice required to be given pursuant to this Agreement shall be in writing and shall be delivered personally or by first class post or recorded delivery to the address of the relevant party as set out in the Agreement or such other address as either party notifies to the other from time to time. Any notice given according to the above procedure shall be deemed to have been given if delivered personally, at the time of delivery and if sent by first class post or recorded delivery at 9.00 am on the second Business Day after posting.
Rights of Third Parties
17.1.1 A person who is not a party to this Agreement shall have no rights in connection with it under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
18.   Entire Agreement

18.1 These terms and conditions and the Key Terms constitute the entire agreement between the parties and supersede all prior agreements, arrangements and understandings between the parties.

18.2 Each party acknowledges that in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether made negligently or innocently) of any person other than as expressly set out in this Agreement provided that nothing in this clause shall limit or exclude any liability for fraud.
19.   Data Protection

19.1  Unless otherwise notified in writing by the Customer, the Company may use personal data about the Customer for the purposes of customer administration, marketing, public relations, research and statistical analysis and data may be disclosed to agents, intermediaries and other third parties.
20.   No Partnership or Agency

20.1 Nothing in this Agreement is intended to or shall be deemed to establish any partnership or joint venture between any of the parties, constitute any party the agent of another party nor authorise any party to make or enter into any commitments for or on behalf of any other party.
21. Governing Law

21.1  This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English Courts to settle any claim or matter arising in relation to this Agreement or its subject matter or formation (including non-contractual disputes or claims).