Terms and Conditions

These are the terms and conditions referred to, and which apply to, Exhibit A (as defined below), which we have provided to you (being the Licensee, as defined below).

WHEREAS COMPLIFY UK SOFTWARE AND TECHNOLOGY LTD (company number 16787088) whose registered address is at Sovereign Chambers, 46 Park Place, Leeds LS1 2RY (‘Complify’, ‘us’, ‘we’) owns or has the right to license certain computer courseware and related software and is willing to allow Licensee to use such computer courseware and related software referred to in these terms and conditions.

In consideration of the mutual promises contained in these terms and conditions (this “Agreement”), Complify and Licensee agree as follows:

1. Definitions

An “Affiliate” shall mean any corporation which, directly or indirectly, controls or is controlled by or is under common control with Licensee. For this purpose, “control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such corporation, whether through the ownership of voting securities or by contract or otherwise, but such corporation, company or other entity shall be deemed to be an Affiliate only as long as such ownership or control exists.
“Courseware” shall mean programmed instructional presentations, including any quizzes, remedial feedback and downloadable documents created or provided by Complify as described more fully in Exhibit A included with these terms and conditions. Complify reserves the right (i) to develop and market new modules and add-on modules to the Courseware which perform substantially different functions in substantially different ways and which in Complify’s reasonable commercial judgment contain such added functionality that an additional fee for such modules is warranted; and (ii) to exclude such new and add-on modules from the Courseware.
“Exhibit A” shall mean Exhibit A to this Agreement and if no Exhibit A is included, shall mean the applicable quote, sales order, invoice or order form provided by Complify and agreed to by Complify from time to time in writing (the “Quote”).
“Licensee” shall mean the individual, company, organization or entity listed on the Quote or otherwise authorised to use the Courseware.
“Licensee Material” shall mean any trademarks, courseware, audio files, video files, data, graphics or other materials or resources created by Licensee and installed to the Learning Management System Software (being the system operated by Complify from time to time and which the Licensee has been provided access to) or Courseware for transmission to Licensee in order to provide any of the services under this Agreement together with any data on Licensee’s users’ access of the Courseware.
“Licensed Documentation” shall mean the user manuals, training materials, guides, listings, specifications, and other materials available from Complify for use in conjunction with the Courseware and Learning Management System Software.
“Error Corrections” shall mean corrections, modifications or revisions to the Courseware, Software or Licensed Documentation that corrects defects, errors, malfunctions, or non-conformities therein, of which Complify learns from any source, so that the Courseware or Software shall conform to the express warranties set forth in Section 7 of this Agreement. Except as provided in Section 7.4 below, Error Corrections will not mean that Complify is required to provide Licensee with updates or enhancements to the Courseware or Licensed Documentation for any reason.
“Software” shall mean the software or program(s) provided by Complify to the Licensee under this Agreement and listed in Exhibit A, if any.
“Subscription” shall mean that period specified in Exhibit A (including any renewals) during which Licensee will have permission to use the Courseware and/or Software for the fixed number of Users specified.
“Updates” shall mean any revisions, updates, upgrades, releases, or corrections of the Courseware, Software, Licensed Documentation or any component thereof, made by Complify or its designee, which shall be made on a when and if available basis to Licensee by Complify under the terms and conditions of this Agreement.
“Users” shall mean individuals, authorised by Licensee and for which Licensee has purchased a subscription to utilize Courseware and Software, who access any materials or products provided by Complify hereunder.

2. Grant Of License

If the Licensee is hosting Courseware on its system, then Complify grants to Licensee a non-transferable, non-exclusive term license, which commences from the date of execution of this Agreement to use, perform, execute and copy (solely to the extent necessary to effect its rights under this Agreement) the Courseware and Licensed Documentation, subject to the usage limits acquired during a Subscription term as described in Exhibit A attached hereto. Complify-hosted Courseware is accessed online and its use is purchased as a Subscription. Courseware may not be accessed by more users than described in Exhibit A. This Agreement and the Subscription will automatically renew unless cancelled in writing by the Licensee in writing at least thirty (30) days prior to the end of the then current Subscription term. Renewal prices are subject to change which will be notified to the Licensee, but the renewal shall not be subject to such a condition. Renewal of services by the Licensee indicates agreement to any contract revisions and price changes. Renewal fees for the following term will be automatically invoiced to the Licensee’s account.
Except as otherwise provided in these terms and condition, the benefits and obligations of this Agreement shall extend to Affiliates of the Licensee, as defined herein, provided that the Courseware is used in connection with the businesses of such Affiliates and subject to the usage limits described in Exhibit A hereto.

3. License Fee

In consideration for the License granted under 2.1 of this Agreement and for the other undertakings by Complify, the Licensee shall pay the Subscription license fees set out in Exhibit A to Complify. Except as otherwise specified in this Agreement or in Exhibit A (i) fees are based on the services and Courseware for which a Subscription has been purchased and not actual usage, (ii) payment obligations are non-cancellable and fees paid are non-refundable, and (iii) User quantities purchased cannot be decreased during the relevant Subscription term.
Payment terms are net fourteen (14) days from the date of the invoice. If any invoiced amount is not received by Complify by the due date then, in addition to any other rights that may be available to Complify, a late payment charge of 1.5% per month or the maximum rate permitted by law, whichever is the lesser will be applied to the outstanding balance.
If any amount owing by the Licensee under this Agreement or any other agreement for the provision of Complify services, content or software is overdue then Complify may, in addition to any other remedies which may be available, accelerate all unpaid Subscription, license or services fees and all such obligations become immediately due and payable. In addition, Complify shall have the right to suspend all services under any agreements between it and the Licensee until all such amounts are paid in full.
The Licensee shall pay all applicable value added tax (‘VAT’) and sales taxes which may be levied in connection with this Agreement and the Licensee’s use of the Courseware.

4. Notices

The Licensee shall appoint and retain one or more Contract Administrator(s) at all times. “Contract Administrator” means the individuals responsible for monitoring actively the obligations (including payment obligations) of the Licensee.
Except as otherwise stated in this Agreement, any notice or demand shall be in writing and shall be sent by email, postage prepaid or sent by a recognised express courier service to Complify at the address or email address provided below or to the Contract Administrator(s) at the addresses or email addresses provided by the Licensee or to such other addresses or email addresses as the parties may designate in writing and shall be effective upon receipt.

If to Complify:
COMPLIFY UK SOFTWARE AND TECHNOLOGY LIMITED
Sovereign Chambers
46 Park Place
Leeds
LS1 2RY

Attention: Legal Department
Email: info@complifyglobal.com

5. Training/Documentation/Customisation

Complify shall provide the Licensee with the equivalent of a total of 1 hour of implementation services by Complify’s support personnel (as applicable) without additional charge to the Licensee.
Complify shall provide the Licensee with the number of hours and billable rates as further described in Exhibit A to coordinate the implementation and customisation work, if any. This time will primarily include coordinating communication between all parties, including the resolution of potential customisation and implementing the content customisation work. The Licensee shall have access to customised work only during the Subscription term and subject to the other provisions in this Agreement.

6. Title To Materials

All right, title and interest in and to the Courseware, Software, source code, documentation and Error Corrections, including all the originals and all copies and the media on which the same are furnished to the Licensee, are and shall remain with the property of Complify. The Licensee acknowledges that, except for the licenses granted under clause 2.1, no right, title, or interest in or to the Courseware, Software, source code, documentation or Error Corrections is granted under this Agreement, and no such assertion shall be made by the Licensee.
The Licensee grants Complify and its Affiliates a worldwide, limited term license to host, copy, transmit and display Licensee Material as necessary to fulfil the obligations of this Agreement. Subject to the limited licenses granted in this Agreement, Complify shall acquire no right, title, or interest in the Licensee Material.
Complify will, upon written request by the Licensee made within thirty (30) days after the effective date of termination or expiration of this Agreement or any renewal thereof, make trainee record data available for export or for download provided the Licensee is not in breach of any term of this Agreement. After such 30-day period, Complify shall have no obligation to maintain or provide trainee record data and shall accept no liability for its deletion. All trainee record data in Complify’s possession after said thirty (30) day period shall be deleted.

7. Warranties

Complify warrants that the Courseware will conform in all material respects to the published course outline(s) referenced in Exhibit A to this Agreement.
Comply warrants that it will use its best endeavours to ensure the Coursework is occurrence and not misleading in any material respect.
Complify warrants that the Courseware and Software (if applicable) do not infringe any third party’s copyright or other property or intellectual property rights.
Complify takes ordinary and customary security measures in protecting customer information passing through software, web sites, e-mail, and the portions of non-public network within Complify’s control. Complify accepts no responsibility beyond ordinary and customary responsibilities.
During the Subscription term Complify will furnish to the Licensee any and all reasonably necessary Error Corrections to the Courseware or Software (if applicable) at no cost to the Licensee promptly upon notification by the Licensee (which the Licensee agrees to implement) and, at Complify’s option, reasonable telephone support or on-site assistance, if reasonably required, to correct any deficiency(s). If the problem is solely due to the Licensee’s modifications or alterations to the Courseware or Software (if applicable) or failure to comply with the terms of this Section 7, then time and expenses associated with such on-site support shall be billed by Complify at its then current applicable rates, and paid by the Licensee.
DISCLAIMER OF WARRANTY IN THE EVENT OF CODE MODIFICATIONS. In the event that the Licensee modifies the Courseware or Software (if applicable) in a manner that is not authorised in writing by Complify, then, upon such unauthorised modification, Complify shall be released and discharged from all warranty obligations herein.
Complify Service Level Agreement for Hosted Content.

“Network Uptime”is the total time in a calendar month that the COMPLIFY online learning management system is available through the Internet to deliver online training, provided that the Licensee has established connectivity. COMPLIFY takes responsibility for website availability within its network, however, Complify cannot be held liable for upstream problems, outside of Complify’s network.

“Network Outages or Unscheduled Downtime” is any unplanned or unscheduled interruption in Service availability during which Licensee is unable to access the services as described in the section titled “Network Uptime” above. A Network Outage is defined as a period in which 100% packet loss to Complify website is experienced, which is determined to have been caused by a problem in Complify’s Network as confirmed by Complify. Downtime or outages are measured as the total length of time of the unplanned interruption in service availability in a calendar month.

“Scheduled Downtime” is any Complify-scheduled interruption of services, for the purpose of network upgrades, or replacement of any equipment in order to provide better service. Scheduled Downtime occurs during notified downtime periods, with advance warning via e-mail with a minimum of 24 hours’ notice.
Scheduled Downtime also occurs every Saturday and Sunday from 10pm to 3am Greenwich Mean Time (GMT).

“Web Service Uptime” is the total time in a calendar month that an Complify Web Service is available through the Internet, provided that the Licensee has established connectivity.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, Complify MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY APPLICABLE OR CREATED BY OPERATION OF LAW, CUSTOM, TRADE USAGE OR COURSE OF DEALINGS. Further, Complify will not be responsible for any damages that may be suffered by the Licensee, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or due to errors or omissions of the Licensee or due to causes beyond Complify’s direct control.

8. Indemnifications

Complify agrees to indemnify, and hold harmless the Licensee from and against any action, claim, demand, loss, or expense involving a claim that the Courseware or Software (if applicable) infringe any third-party rights in respect to trademark, patent or copyright. Complify shall conduct the defence of any such third-party action arising as described within this Agreement and the Licensee agrees to cooperate with Complify in the defence of any such claim. Complify shall have the right to select its counsel to control the defence of and, at its option, to settle any such suit, proceeding or claim.
If the use of the Courseware or Software (if applicable) by the Licensee is held to constitute an infringement and such use is enjoined temporarily or permanently, Complify shall, at Complify’s option and at Complify’s expense:
1. modify the Courseware or Software (if applicable) so it becomes non-infringing without materially altering its capacity or performance; or
2. replace the Courseware or Software (if applicable) with other courseware or software which is substantially equal in capacity and performance but is non-infringing; or
3. reimburse the Licensee for the remaining pro-rated Subscription term license fee paid as described in Exhibit A.
These provisions are limited to the Courseware and Software (if applicable) provided to the Licensee.
The Licensee shall and does hereby agree to indemnify, defend, and hold harmless Complify from liability against any action, claim, demand, loss, or expense (including attorneys’ fees) related to a claim that the Licensee’s modification of the Courseware, source code, Licensed Documentation or Error Corrections infringe any third-party rights in respect to trademark, patent, copyright, trade secret, or other intellectual property rights.

9. Licensee Responsibilities

The Licensee will:
1. be responsible for Users’ compliance with this Agreement,
2. be responsible for the accuracy, quality and legality of the Licensee Materials,
3. use commercially reasonable efforts to prevent unauthorised access to or use of Courseware and Software (if applicable) provided by Complify and to provide immediate written notice to Complify of any unauthorised use thereof,
4. use Courseware and Software (if applicable) provided by Complify only in accordance with this Agreement and applicable laws and government regulations.
The Licensee will not:
1. make any Courseware or Software (if applicable) available to anyone other than Users (this includes use beyond the number of total Subscriptions acquired); or
2. sell, resell, license, sublicense, distribute, rent or lease any Courseware or Software (if applicable); or
3. attempt to reverse engineer, copy or imitate any element of the Courseware or Software (if applicable); or
4. utilise any Courseware or Software (if applicable) or service provided hereunder for any malicious, libelous or illegal purpose.
If the Licensee is hosting Courseware locally on a SCORM LMS, then the Licensee acknowledges that the Courseware and enabling software will auto disable upon the termination or expiration of the Subscription. The Licensee further agrees to permanently remove and delete all copies of Courseware from production, test, and backup systems within thirty (30) days of termination or expiration of any Subscription period and provide written confirmation of such removal signed by an authorised representative of the Licensee. The Licensee further grants Complify a right to audit the compliance with this section during normal working hours without advance notice.

10. Limitation Of Liability

UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR TORT DAMAGES, INCLUDING WITHOUT LIMITATION, PUNITIVE DAMAGES, DAMAGES RESULTING FROM LOSS DUE TO DELAY, LOST PROFITS, BUSINESS OR GOODWILL, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF Complify FOR CLAIMS ARISING OUT OF THIS AGREEMENT OR THE DELIVERY OR USE OF THE COURSEWARE SHALL NOT EXCEED SIX MONTHS FEES PAID TO Complify PRIOR TO SUCH CLAIMS; SUCH LIMITATION SHALL APPLY WHETHER SUCH ACTION IS IN CONTRACT, TORT OR OTHERWISE.

11. Confidentiality

The Licensee acknowledges that the Courseware, Software, source code, the Licensed Documentation and Error Corrections are confidential and proprietary property of Complify, the development of which required the expenditure of considerable time and money by Complify. The Licensee shall treat the said property in confidence and shall not use, copy, or disclose, nor permit any of its personnel to use, copy, or disclose the same for any purpose that is not specifically authorised under this Agreement.
The Licensee shall not permit any personnel of the Licensee to remove any proprietary or other legend or restrictive notice contained or included in any material provided by Complify.
The Licensee shall ensure that use of and access to the Courseware, Software, Licensed Documentation and Error Corrections shall be limited to such personnel of the Licensee, and of the Licensee’s Affiliates, who have a need to know as required in the performance of their duties for the Licensee or such Affiliate. The Licensee may disclose the Courseware, Licensed Documentation and Error Corrections to contractors and/or outsourcers engaged by the Licensee to provide technical support services in connection with the Courseware. The Licensee shall ensure that such contractors and/or outsourcers understand the confidential and proprietary nature of the Courseware, the Licensed Documentation and Error Corrections and Licensee shall be liable for any breach of confidentiality by its employees (including employees of its affiliates), contractors and outsourcers.
The Licensee shall limit use of and access to the Courseware and Software to such employees or contractors and/or outsourcers of the Licensee who have a need to use said Courseware as required in the performance of their duties for the Licensee.
The Licensee agrees to use the same care and discretion to avoid disclosure, publication or dissemination of the Courseware, Software, source code, the Licensed Documentation and Error Corrections as Licensee uses with similar property of its own which it does not desire to disclose, publish or disseminate, but at a minimum the Licensee shall not use less than reasonable care and discretion.
The Licensee recognises and acknowledges that any use or disclosure of the Courseware, Software, source code, the Licensed Documentation or Error Corrections by the Licensee in a manner inconsistent with the provisions of this Agreement may cause Complify irreparable damage for which injunctive and equitable relief shall be available. The Licensee consents to the entry of preliminary or permanent injunctive relief before any court of competent jurisdiction.
The provisions of this Section 11 will not apply to information which the receiving party can establish: (i) was already in the public domain at the time of disclosure or afterwards becomes part of the public domain or otherwise through no fault of the receiving party; or (ii) was in the receiving party’s possession before disclosure (whether under this Agreement or otherwise) by the disclosing party.
The provisions of this Section 11 shall remain in perpetuity and shall survive termination of this Agreement for any reason.

12. Employees

Each party shall remain responsible for its employees and agents utilised in the fulfilment of this Agreement.

13. Independent Contractor

Complify and the Licensee agree that at all times that its personnel engaged in the performance of this Agreement shall not be considered to be the agents or employees of the other party and nothing in this Agreement shall be construed to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

14. Transparency Of Collaboration

During the Term, Complify may include the Licensee’s name and logo in Complify’s standard customer listings and on online properties, provided that no such use will imply a direct endorsement by the Licensee. Any other use of the Licensee’s name will be only upon express prior approval by the Licensee.

15. Miscellaneous

Modifications. Complify reserves the right to change the terms and conditions of this Agreement at any time. Complify may give the Licensee notice of a change by posting the change on the website or by other permitted communication. Such notice will be considered given and effective on the date posted. These changes will become binding on the Licensee on the date they are posted, and we are not required to give you further notice in order for you to continue using the Courseware. By continuing to use the Courseware after revisions are in effect, you accept and agree to all revisions. If you do not agree to the changes, you must terminate your service immediately. If you want to withdraw your consent to receive notices electronically, you must discontinue your use the Courseware. If you continue to use the Courseware, we will consider this your acceptance of any changes. We reserve the right to update this Agreement.
Choice of Law. This Agreement shall be deemed to be entered into and shall be construed in accordance with the laws of England (including non-contractual claims or disputes). Any dispute or claim arising out of or related to this Agreement shall be resolved exclusively in a court located in England (including non-contractual claims or disputes), and each party hereby submits to the jurisdiction and venue of the foregoing courts.
Assignment. Each party agrees that it shall not assign any part of its rights or obligations hereunder. Any attempt by one party to assign or subcontract this Agreement without the written consent of the other party shall be null and void and of no force or effect.
Waiver. No delay or omission on the part of any party hereto in exercising any right hereunder shall operate as a waiver of such right or any other right under this Agreement.
Paragraph Headings. The paragraph headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.
Exhibits. All exhibits referred to, in, or attached to this Agreement are incorporated into and made part of this Agreement as if fully set forth herein. In the event of a conflict between the provisions of these terms and conditions and the terms set out in Exhibit A, the terms of Exhibit A shall prevail.
Third Party. this Agreement does not confer any rights on any person or party (other than the parties to this Agreement) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
Termination. If either party materially breaches any provision of this Agreement and fails to rectify such breach within thirty (30) days after receipt of notice of such failure, then the non-breaching party shall have the right to terminate this Agreement immediately by giving notice thereof. Notwithstanding the foregoing, if such breach is not capable of being cured within such 30-day period, this Agreement shall not be terminable so long as the party committing such breach shall have established to the reasonable satisfaction of the other party that it is using all diligent efforts to effect such cure and subsequently effects such cure. The foregoing rights of termination are in addition to all other rights and remedies of the parties provided in this Agreement or by law.
Force Majeure. Except for the obligation to make payments, non-performance of either party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party.
Entire Agreement. This Agreement, including any Exhibits, constitutes the entire contract between the parties hereto pertaining to the subject matter hereof and supersedes all prior proposals, agreements, understandings, negotiations, and discussions, whether written or oral, of the parties in connection with the subject matter hereof.
Consent. All consents required under this Agreement will not be unreasonably withheld.
Good Faith. The parties will deal with each other fairly and in good faith in carrying out and interpreting this Agreement.
Survival of Provisions. The terms and provisions of this Agreement that by their sense and context are intended to survive performance by either or both parties shall so survive the performance and termination of this Agreement, including without limitation Sections 6 (Title to Materials), 7 (Warranties), 8 (Indemnifications), 10 (Limitation of Liability), 11 (Confidentiality), 15.2 (Choice of Law), and 15.14 (Survival of Provisions).