Licence Agreement

For Access to ILM Level 2 Award In Leadership & Teams Skills E-Learning

between

(1) the individual or organisation approved as a Centre by ILM to offer ILM qualifications (as named in the Order Form and referred to as “you” or “your” in this LA); and

(2) The City and Guilds of London Institute, a body incorporated by Royal Charter and registered as a charity in England and Wales (Reg. No. 312832) and in Scotland (Reg. No. SC039576) whose registered office is at Giltspur House, 5-6 Giltspur Street, London EC1A 9DE (and trading as ILM and referred to as “ILM” in this LA).

Whereas

(a) ILM is the owner of the ILM Leadership & Teams Skills Award L2 e-learning, hosted on the Kineo Learn Force Platform owned by City & Guilds Kineo Limited (company number 07150983), another member of the City & Guilds Group of companies, whose registered office is at Sovereign House, Church Street, Brighton, East Sussex, BN1 1SS (“Kineo”), which ILM makes available to ILM Centres, together with an ancillary support service, under licence, to support the delivery and assessment of the ILM Level 2 Award in Leadership & Teams Skill qualification (the “Service”);

(b) this LA (as defined in clause 1 of the General Terms) sets out the terms and conditions upon which ILM will provide, and you will receive, the Service;

(d) by submitting the Order Form, you acknowledge, and agree to be bound by, this LA (including the General Terms).

General Terms

1. Definitions

Administrator: means your staff member, as specified in the Order Form, [authorised to operate your Centre’s service account for the Service], and to allocate the Licences to Authorised Users [via the service account], on behalf of you;

Authorised Users: meansthose individuals (including learners and any of your staff) allocated, or to be allocated, Licences from time to time [via your Centre’s service account for the Service] and the Administrator;

Fees: means the fees for the Licences, as specified in the Order Form;

Intellectual Property Rights: means all rights in, and to, inventions (whether patentable or not), patents, designs (both registered or unregistered), copyright, database rights, rights in computer software, trade and service marks (both registered and unregistered) and any other intellectual property right or sui generis rights, together with all rights to the grant of and applications for the same and the right to issue proceedings for passing off, and including all similar or analogous rights throughout the world and all future rights of such nature;

LA: means this licence agreement, consisting of the Order Form and the General Terms;

Licences: the licences specified in the Order Form and to be granted under, and subject to, the terms and conditions of this LA;

Order Form: means the order form submitted by you for purchase of the Licences;

Service Level Agreement: means the terms and conditions set out in clause 3 of the General Terms; and

Terms of Use: means the terms and conditions set out in clause 5 of the General Terms.

2. Service

2.1: In consideration of the Fees, ILM grants to you, subject to the terms and conditions of this LA, the Licences, on a non-exclusive, revocable, non-transferable and non-sublicensable basis, for use strictly by the Authorised Users.

2.2: If the number of users of the Service at any time exceeds the maximum number of Authorised Users, then without prejudice to ILM’s other rights and remedies, ILM may:

(i) charge, and you will pay, an additional amount equal to such underpayment as calculated in accordance with the then current fees for the Service which allow for that number of Authorised Users (“Additional Fees”); and

(ii) restrict access to the Service until such Additional Fees are received.

2.3: ILM will review the Service every 12 months, first commencing from [creation of your Centre’s service account for the Service], to review allocation of the Licences and your, and Authorised Users’, use of the Services during the preceding 12 months.

2.4: In providing the Service:

(i) ILM will permit, and will procure that Kineo permits, access to the Service at all times, subject to the Service Level Agreement;

(ii) ILM will implement, or will procure that Kineo implements, upgrades, patches and other enhancements that, in ILM’s or Kineo’s sole opinion, are appropriate to hosting the Service;

(iii) ILM will store, or will procure that Kineo stores, the backup copies Kineo creates at least until a more recent backup copy of the Service is created; and

(iv) ILM (with the support of Kineo) will provide a support desk during the business hours specified in the Service Level Agreement to handle any queries you may have arising from the Service.

3. Service Level Agreement

3.1: In providing the Service:

(i) ILM will make, and will procure that Kineo makes, the Service available to you for 99.5% of the time, excluding scheduled downtime and the Non-qualifying Service Breaks (as defined in clause 3.3 of the General Terms);

(ii) ILM’s support staff will respond to any issues logged during the business hours of 09:00-17:30hrs Monday-Friday UK time, excluding UK Bank Holidays and Public Holidays;

(iii) ILM will use, or will procure that Kineo uses, reasonable endeavours to give you at least 2 working days’ notice of any times at which the Service is expected to be unavailable as a result of routine maintenance work. Whilst ILM will endeavour, and will procure that Kineo endeavours, to undertake such work outside of business hours, you acknowledge that there may be situations when critical changes are required and 2 working days’ notice cannot be given, or changes are necessary during business hours; and

(iv) ILM will actively monitor, or will procure that Kineo actively monitors, the Service and has in place, or procure that Kineo has in place, standby power and internet connections for the purpose of maintaining the availability of access to the Service.

3.2: Any issues concerning your use of the Service, or that of any Authorised Users, from time to time should be logged by raising a ticket via ILM’s Digital Sales Team.

3.3: Neither ILM, or (for the avoidance of doubt only) Kineo, will have any obligation at any time to provide, or any responsibility for, the Service where faults, defects, interruption, unavailability, or problems arise from any:

(i) misuse, incorrect use of, or damage to, the Service by you or Authorised Users; or

(ii) input of incompatible or corrupted data or information by you or Authorised Users; or

(iii) fault in equipment or software provided or used by you or Authorised Users; or

(iv) physical damage or destruction occurring at any data centre, or to any internet infrastructure, not directly under ILM’s or Kineo’s control, unless caused by the negligence of ILM or Kineo,

(“Non-qualifying Service Breaks”).

4. Fees

4.1: In consideration of ILM performing its obligations under this LA, you will pay ILM the Fees (and any Additional Fees).

4.2: The Fees (and any Additional Fees) are unless otherwise stated exclusive of value added tax (or any other similar tax levied by reference to added value or sales from time to time) which will be added to invoices at the applicable rate and paid by you.

4.3: You will settle all invoices within 30 days of invoice date. If ILM has not received payment of Fees (or any Additional Fees) or other amounts due under this LA from time to time by their due date, then without prejudice to ILM’s other rights and remedies, interest will accrue on such due amounts at an annual rate equal to 2% over the then current base lending rate of the Bank of Scotland at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

5. Terms Of Use

5.1: You will:

(i) use the Service only in accordance with these Terms of Use;

(ii) not permit any third party to use, or have access to, the Service (with or without charge) in any way whatsoever at any time, other than Authorised Users;

(iii) make available free of charge to ILM, or Kineo on its behalf, all information, facilities and services reasonably required by ILM, or Kineo on its behalf, at any time to provide the Service;

(iv) not:

(a) copy, make derivative works from, make any alteration to, or modification of, the whole or any part of the Service, its content (including, without limitation, any copyright notices or logos displayed), or any underlying software; or

(b) permit the Service, its content, any underlying software or any part thereof to be combined with, or become incorporated into, any other materials or programs; or

(d) attempt to do any of the above;

(v) be responsible for configuring your information technology, computer programmes and platform to access the Service, and for using appropriate anti-virus protection software (and you acknowledge that neither ILM, or (for the avoidance of doubt only) Kineo, will be liable to you for loss or damage of any kind arising from transmission of material which is malicious, technologically harmful or intrusive via the Service);

(vi) notify ILM’s Digital Sales Team in writing at digitalsales@cityandguilds.com, immediately, on becoming aware of a fault in the Service at any time;

(vii) notify ILM’s Digital Sales Team in writing at digitalsales@cityandguilds.com, immediately, on becoming aware of any use of the Service by, or the making available of the Service to, any third party (with or without charge) in any way whatsoever at any time, other than Authorised Users; and

(viii) comply with all relevant laws and regulations that may apply to your access to and use of the Service.

5.2: In relation to Authorised Users, you will procure that:

(i) only the Administrator shall [operate your Centre’s service account for the Service] and allocate the Licences to Authorised Users from time to time, except where ILM has given its written consent to any other individual administering the service account and/or allocating the Licences;

(ii) the number of Authorised Users shall not exceed the maximum number specified in the Order Form;

(iii) each Authorised User shall keep a secure password for the use of the Service;

(iv) each Authorised User shall keep their username and password confidential and not permit any third party to use, or have access to, the Service (with or without charge) in any way whatsoever at any time;

(v) all Authorised Users shall use the Service only in accordance with these Terms of Use; and

(vi) no Authorised User shall:

(b) permit the Service, its content, any underlying software or any part thereof to be combined with, or become incorporated into, any other materials or programs; or

(d) attempt to do any of the above;

(vii) each Authorised User shall use appropriate anti-virus protection software (and you acknowledge that neither ILM, or (for the avoidance of doubt only) Kineo, will be liable to Authorised Users for loss or damage of any kind arising from transmission of material which is malicious, technologically harmful or intrusive via the Service; and

(viii) all Authorised Users shall comply with all relevant laws and regulations that may apply to their use of the Service.

6. Intellectual Property Rights

6.1: All Intellectual Property Rights in, and to, the Service are owned, and shall remain owned at all times, by ILM and/or Kineo (or their licensors). Neither you, or Authorised Users, are granted, or shall acquire, any rights in, or to, the Service, except the right to access and use the Service under the Licences in accordance with this LA.

7. Data Protection

7.1:The parties each agree to comply with the UK GDPR (as defined in the UK Data Protection Act 2018), the UK Data Protection Act 2018, and all other applicable data protection or privacy laws and regulations that may exist in the territory where the Service is being provided to the extent that they collect and/or processes any personal data (as defined in the UK GDPR) under, or in connection with, this LA.

7.2: Without prejudice to the generality of clause 7.1 of the General Terms, you acknowledge and agree that you have, or will have prior to allocation of Licences to Authorised Users:

(i) the permission of such Authorised Users; and

(ii) notified Authorised Users of the sharing of their personal data with ILM for the purposes of its processing of, or its procuring of Kineo to process, such personal data to perform and/or review the Services from time to time (including, without limitation, [names, email addresses, enrolment numbers and IP addresses]).

8. Confidentiality

8.1: The parties each agree:

(i) that the Service, together with any related information supplied to you in connection with this LA, is the confidential information of ILM; and

(ii) not to disclose to any third party any confidential information disclosed to it by the other party, except that ILM may disclose confidential information to Kineo or any other subcontractor where necessary to provide the Service,

provided that this clause of the General Terms shall not apply in cases where any such information is:

(i) in the public domain through no fault of the recipient party; or

(ii) lawfully possessed by the recipient party before disclosure by the disclosing party; or

(iii) independently developed by the recipient party; or

(iv) is required by applicable law, court, or government order to be disclosed.

9. Limitation Of Liability and No Warranties

9.1: The Service is provided "as is" without warranty of any kind, whether express or implied. To the maximum extent permitted by applicable law, ILM excludes any and all warranties, terms, conditions and representations not expressly set out in this LA, including (without limitation) any warranty, term, condition or representation as to:

(i) information or data; or

(ii) the Service being fit for any particular purpose; or

(iii) the use of, or access to, the Service being uninterrupted or available; or

(iv) the Service (or its content) being accurate or complete; or

(v) the Service being error-free; or

(vi) the Service being fee of bugs, viruses, trojans, worms, time-bombs, logic-bombs, spyware, adware, ransomware or other material which is malicious, technologically harmful or intrusive; or

(vii) merchantability or non-infringement.

9.2: Nothing in this LA shall limit or exclude ILM’s liability for fraud or fraudulent misrepresentation, or for death or personal injury caused by its negligence or the negligence of its agents, subcontractors (including, without limitation, Kineo), or employees, or for any other liability that cannot be limited or excluded under applicable law.

9.3: Subject to clause 9.2 of the General Terms, in no event will ILM be liable, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise in respect of any:

(i) incidental, special, indirect or consequential loss or damage; or

(ii) loss of profits; or

(iii) loss of anticipated savings; or

(iv) loss of business opportunity or contract; or

(v) loss of, or damage to, goodwill; or

(vi) loss or corruption of data; or

(vii) business interruption,

in each case whether arising out of, or in connection with, the Service, your or any Authorised Users’ use of (or inability to use) the Service, or the provision of any support services in relation to the Service.

9.4: Subject to clauses 9.2 and 9.3 of the General Terms, the aggregate liability of ILM, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise arising out of, or in connection with, this LA shall not exceed the Fees.

9.5: You agree to indemnify, and keep ILM and Kineo (and their licensors) fully indemnified, from, and against, any and all claims, demands, actions, proceedings, damages, compensation, costs, expenses and all other liabilities that ILM or Kineo (or their licensors) incur as a result of any third party claim in relation to breach of Intellectual Property Rights caused by your, or Authorised Users’, use of the Service in breach of this LA.

10. Suspension and Termination

10.1: ILM may suspend provision of the Service (and with it any Licences), whether in whole or in part, at any time with immediate effect by providing written notice to you if:

(i) ILM, or Kineo on its behalf, has reason to believe that you and/or any Authorised Users are in breach of any of the terms and conditions of this LA, including (without limitation) the Terms of Use; or

(ii) ILM has not received payment of any Fees (or any Additional Fees) or other amounts due under the terms and conditions of this LA by their due date; or

(iii) ILM otherwise has reason to believe that suspension is necessary in the circumstances.

Suspension of the Service, whether in whole or in part, shall be without prejudice to any other rights and remedies which ILM may have in the circumstances.

10.2: ILM may terminate this LA (and with it the Licences), whether in whole or in part, at any time with immediate effect by providing written notice to you if:

(ii) ILM has not received payment of any Fees (or any Additional Fees) or other amounts due under the terms and conditions of this LA by their due date.

10.3: ILM may terminate this LA (and with it the Licences), whether in whole or in part, at any time, for any reason whatsoever, by providing 1 month’s written notice to you. Without limiting, and without prejudice to, the generality of this clause 10.3 of the General Terms, you acknowledge (for the avoidance of doubt only) that ILM may choose to exercise this right following any review of the Service pursuant to clause 2.3 of the General Terms, which identifies that no Licences have been allocated, or that the Service hasn’t been used, during the preceding 12 months.

10.4: Without prejudice to clauses 10.2 and 10.3, this LA (and with it the Licences) will terminate automatically on your Centre ceasing to be an ILM Centre at any time or (if earlier) being approved to offer the ILM Leadership & Teams Skills Award L2 qualification, in accordance with any applicable centre contract, handbook or terms and conditions governing your approval as an ILM Centre and qualification approval (as amended from time to time).

10.5: On termination of this LA, you will cease, and will procure that Authorised Users cease, using the Service immediately and securely destroy any usernames and passwords. For the avoidance of doubt, the Licences granted pursuant to this LA shall not survive its termination.

10.6: Termination of this LA (for whatever reason) shall be without prejudice to the rights and liabilities of either party which may have accrued on, or at any time up to, the date of termination.

11. General

11.1: Neither party shall be liable to the other party for any delay or non-performance of its obligations under this LA which is caused by anything beyond its reasonable control.

11.2: No waiver of any term or condition of this LA by ILM shall be effective unless made in writing and signed by an authorised signatory of ILM. The waiver of any breach of any term or any condition of this LA by ILM shall not be construed as a waiver of any subsequent breach of a term or condition of the same or of a different nature.

11.3: You are not permitted to assign, sublicence, subcontract, charge or otherwise transfer this LA, the Licences or any of your rights and/or obligations under, or in connection with, them to any third party without ILM's prior written consent. ILM may assign or subcontract this LA or any of its rights and/or obligations to any member of the City & Guilds Group, and you acknowledge (for the avoidance of doubt) that ILM engages Kineo as a subcontractor to provide the Service.

11.4: All notices that are required to be given under this LA shall be in writing and sent (in the case of ILM) to the address set out in this LA or to digitalsales@cityandguilds.com and (in the case of you) [to the address specified in the Order Form or to the Administrator using the details specified in the Order Form] or such other address as has been notified to the other party in accordance with this clause of the General Terms. Hand delivered notices shall be deemed to have been delivered immediately upon receipt. Notices sent by first class post shall be deemed to have been delivered 48 hours after posting. Notices sent by email shall be deemed to have been delivered upon actual transmission, provided that the sender does not receive any indication that the email has not been successfully transmitted to, and received by, the intended recipient.

11.5: If any part of this LA is found by any court to be invalid, unlawful or unenforceable, then such part shall e severed from the remainder of this LA, which shall continue to be valid and enforceable to the fullest extent permitted by applicable law, and each of the parties shall use reasonable endeavours to replace any such severed provision with a valid, lawful and enforceable substitute provision, the effect of which is as close as possible to the intended effect of the severed provision.

11.6: Except where expressly provided for under this LA to the benefit of Kineo and/or ILM and Kineo’s licensors, a person who is not strictly a party to this LA shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms and conditions of this LA.

11.7: This LA constitutes the entire agreement between the parties with respect to its subject matter. No amendment to this, whether oral or written, shall be binding on either you or ILM unless in writing and signed by an authorised signatory of each of the parties. The relationship between the parties will be subject to separate terms, including those set out in the applicable centre contract, handbook and/or terms and conditions, governing your approval as an ILM Centre and qualification approval (as amended from time to time) in respect of offering the ILM Level 2 Award in Leadership & Teams Skills qualification. In the event of any conflict or inconsistency between this LA and any other such separate terms in relation to your use of the Service, this LA shall apply strictly to the extent of such conflict or inconsistency as it relates to your use of the Service.

11.8: This LA will be governed by, and construed in accordance with, the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English courts.