TERMS AND CONDITIONS FOR THEPROVISION OF SHOWTECH BY SKILL APPRAISER

1. INTRODUCTION

1.1. These are the Conditions of Skill Appraiser Limited, a company registered in England and Wales (CRN: 15616543) with a registered address at 3rd Floor, 86-90 Paul Street, London, United Kingdom, EC2A 4NE (“we”, “us”, “our”).

1.2. These Conditions are provided to you, our customer (“you”), and detail how we will supply the Services to you.

1.3. The Order constitutes an offer by you to use our Services, in accordance with these Conditions.

1.4. The Order shall only be deemed to be accepted when we:

       1.4.1. Issue written acceptance of an Offline Order; (Commencement Date).

1.5. Any samples, drawings, descriptive matter or advertising we may issue are issued or published for the sole purpose of giving an approximate idea of the Software and the Services described in them. They shall not form part of our Agreement or have any contractual force.

1.6. These Conditions apply to our Agreement to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

1.7. Any quotation given by us shall not constitute an offer and is only valid for the time period we advise at its date of issue.

2. SUPPLY OF SERVICES

2.1. During the Term and subject to your payment of the Charges, we shall supply the Services and the Documentation to you and grant a license for you to use the Software in accordance with these Conditions.

2.2. We shall use commercially reasonable endeavors to make the Services available twenty-four (24) hours a day, seven (7) days a week, except for:

  • 2.2.1. planned maintenance carried out during any maintenance windows which we shall prior notify you of from time to time;
  • 2.2.2. longer occasional outages during major updates and/or deployments; and
  • 2.2.3. any outage caused by any of our third-party service providers (including, but not limited to, any maintenance undertaken, or issues experienced by, our cloud infrastructure provider), (collectively and individually referred to as a “Service Outage”).

2.3. Should a Service Outage occur during an Authorised Candidate’s completion of a Test, we will ensure that the Authorised Candidate can restart its Test at a later date when the Services are available again. We will have no responsibility or liability where the Service Outage means that the Test will be restarted outside of any deadline set by you. We can however confirm the Service Outage to you following our investigation, at your or the Authorised Candidate’s request.

2.4. We will, as part of the Services, provide you with email support in relation to the Software during Normal Business Hours, as described on the Website and/or in the Order. This will include email support relating to any Authorised Candidate issue, query or concern that has been notified to you.

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3. SOFTWARE LICENCE AND SOFTWARE PLANS

3.1. With effect from the Commencement Date, we grant to you a fully paid-up, royalty-free, non-exclusive, non-transferable license for the Term to use the Software:

  1. 3.1.1. as part of your Software Plan;
  2. 3.1.2. for use solely by you and your Authorised Users for your internal business operations; and
  3. 3.1.3. only on the Customer Platform.

3.2. The license granted at clause 3.1 is subject to the following restrictions:

  1. 3.2.1. you shall not copy or reproduce in any way the whole or a part of the Software or our Content (Tests or otherwise);
  2. 3.2.2. save to the extent expressly permitted by law, you shall not modify, alter, adapt or in any way interfere with the Software or merge it with or incorporate it into other data, programs or systems or decompile, reverse engineer, decode or disassemble it or translate it into any other computer language or attempt to do any of these things;
  3. 3.2.3. you shall not, without our prior written consent, use the Software for a purpose other than the purpose specified in clause 3.1; and
  4. 3.2.4. you shall not assign, novate, sub-license, rent, lease, sell, pledge, charge, transfer or otherwise dispose of or grant rights over or out of the license granted at clause 3.1 and shall not attempt to do any of those things.

3.3. You acknowledge and agree that your only right to use the Software is as set out in clause 3.1 and 3.2 and that, title to and all Intellectual Property Rights in or relating to the Software, Content (Tests or otherwise) and the Documentation are and shall remain our exclusive property at all times during the Term and thereafter.

3.4. Depending upon the Software Plan that you choose, you will be permitted to invite a specific number of Authorised Users to access the platform during the Term (Permitted Number). Should the number of Authorised Users needing to use the platform increase then you will be required to upgrade your plan with us (which may result in an increased charge). You will be able to change users in the following examples:

  1. 3.4.1. a user has left the business and their access is no longer needed; or
  2. 3.4.2. a user has changed roles and will no longer need access to the platform (they will not be allowed access back again for a cooling off period of at least 6 months unless agreed directly with us).

3.5. The Website shall set out how you can contact and invite Authorised Candidates to undertake Tests.

3.6. Depending upon your Software Plan, you may access our preprepared Tests or create your own bespoke Content and Tests for Authorised Candidates to complete.

3.7. We use our reasonable endeavors to ensure that our Content (which, for the avoidance of doubt, shall include our pre-prepared Tests) are accurate and fit for purpose, but do not guarantee that such Content will be free from errors, omissions or other inaccuracies. If you identify any issue with our Content (or are notified of an issue by an Authorised Candidate or Authorised User), please inform us as soon as possible.

3.8. The results of any completed Tests may be accessed through our Software. Where any provision is made for you to download any reports or data relating to the Services, you are solely responsible for the storage and processing of any such download and we shall have no liability for any loss, accidental destruction or other security, storage or processing issue relating to that download.

3.9. You acknowledge that Authorised Candidates may have access to their overall Test score, but not to any detailed results. It is at your discretion as to whether you wish to provide the Authorised Candidates with any of this further information.

3.10. As set out in our privacy policy, we may collect technical information about Authorised Candidates whilst they undertake Tests (including whether they open a new browser tab, a new window or start using other software). If we have any reason to believe that an Authorised Candidate may be using offline or online resources whilst completing a Test (as determined at our sole discretion), we may:

  1. 3.10.1. notify you;
  2. 3.10.2. void the associated Test results; and/or
  3. 3.10.3. suspend or terminate the Authorised Candidate’s access to the Services (with notice to the Authorised Candidate).

Once notified, it is at your sole discretion as to whether you raise this with the Authorised Candidate or form any conclusion from the information provided. We shall have no responsibility or liability in regard to such conclusions formed by you.

3.11. Should you wish to upgrade your Software Plan during the Term, please contact us and we will be happy to assist. Once approved, you will be required to pay any increased Charges to us in accordance with our payment terms, prior notification, and acceptance by you and subject to these Conditions. Should you wish to downgrade your Software Plan for any reason, we will only be able to approve this on the expiry of your Annual Period or, if we provide monthly Services to you, at the expiry of the following calendar month. You are therefore advised to contact us in advance of such expiry dates, as we will be unable to accommodate any such changes after your Annual Period has automatically renewed or a new calendar month has begun.

3.12. The rights provided under our Agreement are granted to you only and shall not be considered granted to any of your subsidiary or holding companies.

4. YOUR OBLIGATIONS

4.1. In respect of the Authorised Users, you shall ensure that:

  1. 4.1.1. you will not allow any other person to use an Authorised User’s account;
  2. 4.1.2. each Authorised User shall keep a secure password for his use of the Software, and that each Authorised User shall keep his password confidential;
  3. 4.1.3. the Authorised Users' use of the Services and the Documentation is in accordance with these Conditions and you shall be responsible for any Authorised User’s breach of our agreement; and
  4. 4.1.4. you shall only allow the permitted number of Authorised Users to use the Software, as set out in the Order and dependent upon your Software Plan. Any additional Authorised Users shall only be permitted if you upgrade your Software Plan (which may result in increased Charges).

4.2. You shall:

  1. 4.2.1. cooperate with us in all matters relating to the Services;
  2. 4.2.2. provide all necessary access to such information as may be required by us in order to provide the Services;
  3. 4.2.3. ensure that the Customer Platform complies with the relevant specifications provided by us from time to time;
  4. 4.2.4. be responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet;
  5. 4.2.5. comply with all applicable laws governing your activities under our Agreement;
  6. 4.2.6. without prejudice to your obligation under clause 4.1.2, comply with all security requirements in respect of the Services as notified by us to you; and
  7. 4.2.7. use all reasonable endeavors to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us.

4.3. You shall not:

  1. 4.3.1. access, store, distribute or transmit any viruses, or any material during the Term that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, or facilitates illegal activity. We reserve the right, without liability or prejudice to our other rights, to disable your access to the Services (and any material on the Software) that breaches the provisions of our Agreement;
  2. 4.3.2. access all or any part of the Services and/or the Documentation in order to build a product or service which competes with the Services;
  3. 4.3.3. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users and the Authorised Candidates; or
  4. 4.3.4. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under our Agreement.

4.4. If performing our obligations under our Agreement is prevented or delayed by your act or omission (or that of your Authorised Users) or failure by you to perform any relevant obligation (Default):

  1. 4.4.1. without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Services until you remedy the Default, and to rely on the Default to relieve us from the performance of any of our obligations in each case to the extent the Default prevents or delays our performance of any of our obligations;
  2. 4.4.2.we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations; and
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4.5. You shall defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your (or your Authorised User’s) use of the Services and/or Documentation, provided that:

  1. 4.5.1. you are given prompt notice of any such claim;
  2. 4.5.2. we provide reasonable co-operation to you in the defense and settlement of such claim, at your expense; and
  3. 4.5.3. you defend or settle that claim after consultation with us.

5. PRICE AND PAYMENT

5.1. You shall pay the Charges to us in accordance with this clause 5 and the payment terms as set out on the Order or, to the extent that we may from time to time allow online payment, as set out on our Website.

5.2. Unless otherwise stated:

  1. 5.2.1. to the extent that you are to pay for our Services annually, we shall invoice you:
      1. (a) on the Commencement Date for the Charges payable in respect of the first Annual Period; and
      2. (b) on each anniversary of the Commencement Date for the Charges payable in respect of each subsequent Annual Period; or
  1. 5.2.2. to the extent that you are to pay for our Services monthly or quarterly, you shall make payments to us by standing order.

5.3. If required, it is your responsibility to provide us with any valid, up-to-date and approved purchase order information on (or as soon as possible after) the Commencement Date.

5.4. Unless otherwise agreed by us in writing, you shall pay each invoice within seven (7) days after the date of such invoice in full and cleared funds, provided that said invoice is in compliance with all applicable laws and regulations.

5.5. If any sum payable under our Agreement is not paid on orbefore the due date for payment, we shall be entitled to:

  1. 5.5.1. without any liability to you, disable your password, account and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the payment concerned remains unpaid; and/or
  2. 5.5.2. terminate our Agreement with immediate effect; and/or
  3. 5.5.3. without limiting our remedies under clause 6, you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.5.3 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

5.6. Any sum payable under our Agreement is exclusive of VAT (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which shall be payable in addition to that sum in the manner and at the rate prescribed by law from time to time.

5.7. All amounts due under our Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

5.8. All sums payable under our Agreement shall be non-cancellable.

5.9. We shall be entitled to vary the Charges on an annual basis at our discretion by giving you at least forty-five (45) days’ prior written notice and acceptance by you. The variation shall be effective from the date following expiry of the notice (or, if later, the date specified in the notice).

6. TERM AND TERMINATION

6.1. Our Agreement shall commence on the date hereof and shall continue in full force and effect until terminated in accordance with these Conditions.

6.2. Without affecting any other right or remedy available to it, either party may terminate our Agreement:

  1. 6.2.1. if the Software Plan is renewed annually, by giving the other party sixty (60) days’ written notice; or
  2. 6.2.2. if the Software Plan is renewed monthly, by giving the other party thirty (30) days’ written notice, to expire on the expiry of the following calendar month.

6.3. Any renewal, whether annually or monthly (as applicable), shall be in writing executed by parties' legal representatives, with any Charges also being payable.

6.4. Without affecting any other right or remedy available to it, if a party (the “first party”):

  1. 6.4.1. commits a material breach of our Agreement which cannot be remedied; or
  2. 6.4.2. commits a material breach of our Agreement which can be remedied but fails to remedy that breach within thirty (30) days of a written notice being given by the other party, which sets out the breach and requires it to be remedied, the other party may terminate our Agreement immediately by giving written notice to that effect to the first party.

6.5. Either party may terminate their Agreement immediately by giving the other party written notice to that effect if they suffer an Insolvency Event.

6.6. Without affecting any other right or remedy available to us, we may suspend the supply of Services under our Agreement or any other contract between you and us if you fail to pay any amount due under our Agreement on the due date for payment, you become subject to any of the events referred to in clauses 6.4 and 6.5 or we reasonably believe that you are about to become subject to any of them.

7. CONSEQUENCES OF TERMINATION

7.1. Following the termination of our Agreement:

  1. 7.1.1. any provisions which expressly or impliedly continue to have effect shall continue after termination of our Agreement;
  2. 7.1.2. all other rights and obligations shall immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of termination;
  3. 7.1.3. you shall immediately pay to us all of our outstanding unpaid invoices (or other due payments) and interest, if applicable, and, in respect of Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
  4. 7.1.4. your license to use the Software shall terminate, and all access to the Software and Customer Data on the Software by you and the Authorised Users, shall be removed on the date of termination; and
  5. 7.1.5. we may, at our sole discretion, delete your Content, unless you advise us in writing prior to termination that you require a copy.

7.2. Each party shall, within thirty (30) Business Days of the date of termination and subject to clause 7.3 (if applicable):

  1. 7.2.1. return to the other party all Confidential Information (including all copies and extracts) and all other property (whether tangible or intangible) of the other party in its possession or control, which, in our case, may include the return of the Customer Data, and, in your case, include the return of the Documentation; and
  2. 7.2.2. destroy or permanently erase (if technically feasible) all documents and records (in any media) created by it or on its behalf that use, concern or are based on any Confidential Information of the other party (“Records”), which in our case may include the deletion of the Customer Data from the Software; and
  3. 7.2.3. cease to use the Confidential Information of the other party.

7.3. Each party may retain any Confidential Information of the other party which it has to keep to comply with any applicable law. Clause 12 shall continue to apply to retained Confidential Information, which may only be used for the purpose for which they have been retained.

7.4. Each party shall, upon request, confirm to the other party in writing that it has complied with this clause 7.

8. REPRESENTATIONS, WARRANTIES AND COVENANTS

8.1. Except as expressly provided in our Agreement, we:

  1. 8.1.1. provide the Software, Services, and the Documentation on an “as is” basis;
  2. 8.1.2. do not warrant that your use of the Software will be uninterrupted or error-free, or that the Software, Documentation, and/or any information obtained by you through the Services will meet your requirements;
  3. 8.1.3. are 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. You acknowledge that the Software and Documentation may be subject to limitations, delays, and other problems inherent in the use of such communications facilities; and
  4. 8.1.4. you assume sole responsibility for results obtained from the Tests (or your other use of the Services and the Documentation) and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or Tests provided to us by you in connection with the Services, or any actions taken by us at your direction.

8.2. Save as expressly set out in our Agreement, neither party gives any representation or warranty (express or implied) in respect of the subject matter of our Agreement, and warranties and representations which may be implied (by statute or otherwise) are hereby excluded to the maximum extent permitted by law.

9. EXCLUSIONS AND LIMITATIONS OF LIABILITY

9.1. Subject to clause 9.3, our maximum aggregate liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence), misrepresentation, under statute or otherwise howsoever caused, shall be limited to the Charges paid by you to us in the twelve-month period immediately preceding the date of the claim.

9.2. Parties shall have no liability (whether in contract, tort (including negligence), statute or otherwise) for indirect or consequential loss, loss of profits, business, anticipated saving or damage to goodwill for any wasted management, operational or other time, arising out of or in connection with our Agreement.

9.3. Nothing in our Agreement excludes the liability of either party to the other for death or personal injury, for the other party’s fraud or for any other liability to the extent it may not be excluded or limited by law.

9.4. This clause 9 shall survive termination of our Agreement.

10. INTELLECTUAL PROPERTY RIGHTS AND INFRINGEMENT

10.1. You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights in the Services (which, for the avoidance of any doubt, shall include the Software, the Documentation and Content). Our Agreement does not grant you any such Intellectual Property Rights, save for the license granted in accordance with clause 3.

10.2. We confirm and warrant that we have all the rights in relation to the Services and the Documentation that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of our Agreement.

10.3. Should you receive notice of any third-party claim or action that your use of the Services in accordance with the terms and conditions of our Agreement infringes the Intellectual Property Rights of that third party, you shall:

  1. 10.3.1. provide us prompt notice of such claim;
  2. 10.3.2. provide reasonable co-operation to us in the defense and settlement of such claim, at our expense; and
  3. 10.3.3. provide us sole authority to defend or settle the claim.

10.4. In no event shall we be liable to you to the extent that the alleged infringement is based on:

  1. 10.4.1. a modification of the Services or Documentation by anyone other than us; or
  2. 10.4.2. your use of the Services or Documentation in a manner contrary to the instructions given to you by us; or
  3. 10.4.3. your use of the Services or Documentation after notice of the alleged or actual infringement from us or any appropriate authority.

10.5. Where there is a claim under clause 10.3, we shall, at our option and expense:

  1. 10.5.1. obtain the right for you to continue using the Services in accordance with our Agreement free from any liability for such infringement;
  2. 10.5.2. modify, substitute, or replace the Services or any part of it so as to avoid the infringement, without adversely affecting or limiting the specification or functionality of the Services; or
  3. 10.5.3. refund to you the part of the Charges that relates to the Services (or the part of it) which you are unable to use as a result of the claim or action.

10.6. This clause 10 states our entire obligations and liability arising from an infringement (or alleged infringement) of any Intellectual Property Rights of a third party.

11.DATA PROTECTION

11.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove, or replace, a party's obligations under the Data Protection Legislation. In this clause 11, Applicable Laws means (for so long as and to the extent that they apply to us) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.

11.2. The parties acknowledge that for the purposes of the Data Protection Legislation, you are the data controller and we are the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

11.3. Without prejudice to the generality of clause 11.1, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation), if applicable, to us for the duration and purposes of our Agreement.

11.4. Without prejudice to the generality of clause 11.1, we shall, in relation to any Personal Data processed in connection with the performance by us of our obligations under our Agreement:

  1. 11.4.1. process that Personal Data only on your written instructions unless we are required by Applicable Laws to otherwise process that Personal Data. Where we are relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you;
  2. 11.4.2. ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted); 
  3. 11.4.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
  4. 11.4.4. not transfer any Personal Data outside of the European Economic Area unless your prior written consent has been obtained and the following conditions are fulfilled:
    • (a) we or you have provided appropriate safeguards in relation to the transfer;
    • (b) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
    • (c) we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
    • (d) we comply with reasonable instructions notified to us in advance by you with respect to the processing of the Personal Data;
  1. 11.4.5. assist you, at your cost, in responding to any request from a Data Subject relating to our Agreement;
  2. 11.4.6. notify you without undue delay on becoming aware of a Personal Data breach;
  3. 11.4.7. at your written direction, delete or return Personal Data and copies thereof to you on termination of our Agreement unless required by Applicable Law to store the Personal Data; and
  4. 11.4.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 11 and allow for audits by you or your designated auditor.

11.5. We shall not appoint a third-party processor of Personal Data under our Agreement without your consent.

11.6. For further information about how we collect, process and store Personal Data, please see our privacy policy as set out on our Website [www.skillappraiser.com]. If you have any queries regarding this clause 11 or our privacy policy, please contact us.

12.CONFIDENTIALITY

12.1. Each party undertakes to the other in relation to the Confidential Information of the other:

  1. 12.1.1. to keep confidential all Confidential Information;
  2. 12.1.2. not to disclose Confidential Information without the other’s prior written consent to any other person except those of its employees who have a need to know the Confidential Information;
  3. 12.1.3. not to use Confidential Information except for the purposes of performing its obligations under this Agreement (and in particular not use Confidential Information to obtain a commercial, trading or any other advantage); and
  4. 12.1.4. to keep separate from all other information all Confidential Information in its possession or control.

12.2. The provisions of clause 12.1 shall not apply to Confidential Information to the extent that it is or was: already in the possession of the free of any duty of confidentiality on the date of its disclosure;

  1. 12.2.1. in the public domain other than as a result of a breach of clause 12.1;
  2. 12.2.2. required to be disclosed:
  3. (a) pursuant to regulations, or the rules of any recognised exchange on which the securities of a party are or are to be listed; or
  4. (b) in connection with proceedings before a court of competent jurisdiction or under any court order or for the purpose of receiving legal advice, but only to the extent and for the purpose of that disclosure.

12.3. Each party acknowledges and agrees that damages alone might not be an adequate remedy for breach of this clause 12 and accordingly a party will be entitled, without proof of special damage, to the remedies of injunction and other equitable relief for any actual or threatened breach of this clause 12.

13. GENERAL

13.1. Variation: We may vary these Conditions from time to time. In the event that we do, we shall notify you in advance of your annual or monthly Software Plan renewal (as applicable) and upload our new Conditions to the Website at our discretion.

13.2. Severance: If any term of these Conditions is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term shall be deemed to be severed from these Conditions and this shall not affect the remainder of these Conditions which shall continue in full force and effect.

13.3. Assignment and Subcontracting: Parties shall be entitled to assign, transfer, charge, hold on trust for any person, subcontract and/or deal in any other manner with any of its rights under our Agreement.

13.4. Waiver: A delay in exercising or failure to exercise a right or remedy under or in connection with our Agreement shall not constitute a waiver of, or prevent or restrict future exercise of that or any other right or remedy, nor shall the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default shall only be valid if it is in writing and only in the circumstances and for the purpose for which it was given and shall not constitute a waiver of any other right, remedy, breach or default.

13.5. Notice: Any notice required to be given under our Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as set out in the Order.

13.6. Entire Agreement: The Conditions and the Order constitute the entire agreement between the parties and supersede any prior agreement or arrangement in respect of its subject matter. Each of the parties acknowledges that it has not entered into our Agreement in reliance upon a representation or statement (whether made by the other party or any other person) which is not expressly set out in our Agreement. The only remedies available for breach of a representation or statement which was made prior to entry into our Agreement and which is expressly set out in this Agreement shall be for breach of contract. Nothing in this clause 13.6 shall be interpreted or construed as limiting or excluding the liability of either party for fraud or fraudulent misrepresentation.

13.7. Status of the Parties: Nothing in our Agreement and no action taken by the parties in connection with it shall create a partnership or joint venture or relationship of employer and employee between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so. Each party agrees that it is an independent contractor and is entering into our Agreement as principal and not as agent for or for the benefit of any other person.

13.8. Rights Cumulative: Our rights and remedies set out in our Agreement are in addition to and not exclusive of any rights and remedies provided by law.

13.9. Force Majeure: A party shall not be in breach of our Agreement or otherwise liable to the other party for any failure to perform or delay in performing its obligations under our Agreement to the extent that such failure or delay is due to any event or circumstance to the extent it is beyond the reasonable control of the relevant party.

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14. LAW AND JURISDICTION

14.1. Our Agreement and any non-contractual obligations arising out of or in connection with it will be governed by the laws of England and Wales, and each of the parties submit to the exclusive jurisdiction of the courts of England and Wales.

15.THIRD PARTY RIGHTS

15.1. Our Agreement does not create, confer or purport to confer any benefit or rights under the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.

16.DEFINITIONS AND INTERPRETATION

16.1. In these Conditions the following expressions have the following meaning: -

  1. “Agreement” the agreement between you and us for the supply of Services in accordance with these Conditions and the Order;
  2. “Annual Period” the period of 12 months from the Commencement and from each anniversary thereafter;
  3. “Authorised Candidates” your candidates (whether your employment candidates, existing employees or otherwise) who may complete a Test using our Software. The number of Authorised Candidates who may complete a Test each calendar month of the Term shall be set out in the Order and shall depend upon which Software Plan we are supplying to you;
  4. “Authorised Users” those persons who are authorised by you to use the Software and receive the Services and the Documentation (usually your employees and workers). The number of Authorised Users at the Commencement Date is set out in the Order and is dependent upon your Software Plan;
  5. “Business Day” a day that is not a Saturday, Sunday or public or bank holiday in England;
  6. “Charges” the subscription charges for the Services, as described on the Website and set out in the Order;
  7. “Conditions” these terms and conditions;
  8. “Confidential Information” in relation to a party the fact of and the terms of the Agreement, and all other information and trade secrets relating to that party’s business or customers which come into the possession of the other party pursuant to the Agreement, whether orally, or in documentary, electronic or other form, including all (if any) such information held by the other as of the Commencement Date;
  9. “Content” all content on our Website and in our Software whether created by you or us, including but not limited to Test questions, Test answers (including any typed and video responses), Test results, Test reference materials and any other textual or graphical representation displayed as part of the Services or Documentation;
  10. “Customer Platform” your hardware and software operating system upon which the Software will be used, and the Services received;
  11. “Data Protection Legislation” the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the GDPR and any other directly applicable European Union regulation relating to privacy;
  12. “Documentation” the operating manuals, instruction manuals and technical literature which relate to the use and operation of the Services (if any);
  13. “Insolvency Event” each and any of the following in relation to you:
  14. (a) any action (corporate or otherwise), legal proceedings or other procedure or step is taken by any person in any jurisdiction in relation to or with a view to:
  15. (i)  the winding up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of you (except that no right to terminate will arise in respect of any procedure commenced for the purpose of a solvent amalgamation or reconstruction);
  16. (ii) the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator, nominee, supervisor, or similar officer in respect of a party or any of your assets;
  17. (iii) the enforcement of any security over any of your assets; or
  18. (iv) the expropriation, attachment, sequestration, distress, or execution over or affecting any of your material assets;
  19. (b) you are unable to pay your debts as they fall due or are insolvent; or
  20. (c)  you enter into a composition or arrangement with its creditors or any class of them;
  21. “Intellectual Property Rights” patents and applications for patents, trademarks, service marks and domain names and applications for the same, unregistered trademarks and rights in trade names and business names, copyright and moral rights (including copyright in computer software), know how, database rights, rights in designs and rights in inventions, and rights of the same or similar effect or nature as any of those in this definition in each case in any part of the world;
  22. “Normal Business Hours” means 9.00am to 5.00pm GMT Monday to Friday, excluding any UK public bank holidays;
  23. “Offline Order” your order for the Services, which, if you are accepting these Conditions offline, shall be set out in a separate order document (either electronic or hard copy);
  24. “Online Order” your order for the Services, which, if you are accepting these Conditions on our Website, shall be set out on screen (on a self-service e-commerce basis);
  25. “Order” either an Offline Order or an Online Order depending upon how you are accepting these Conditions;
  26. “Services” the provision of the Software as a subscription service via the Website, which we are to supply to you under the Agreement;
  27. “Software” our proprietary software which we license to you as part of the Services;
  28. “Software Plan” the software plans as further described on our Website;
  29. “Term” the term of our Agreement from the Commencement date until the date of termination;
  30. “Test” the tests and assessments that can be accessed and completed by your Authorised Candidates from an existing list on our Software (that we may update from time to time) or as specifically created by you using the Software, depending upon your Software Plan. The Tests shall not be limited to information technology and may cover a wide variety of question types (such as knowledge, skills or otherwise) or other profiling assessments (such as behavioural profiling);
  31. “UK Data Protection Legislation” any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation;
  32. “Website” our websites at https://www.skillappraiser.com, and any subdomain where the Services may be provided.
  33. ‍

16.2. Clause headings shall not affect the interpretation of these Conditions.

16.3. A person includes an individual, corporate, or unincorporated body (whether or not having separate legal personality).

16.4. A reference to a company shall include any company, corporation, or other body corporate, wherever and however incorporated or established.

16.5. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.

16.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

16.7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of our Agreement.

16.8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of our Agreement under that statute or statutory provision.

16.9. A reference to writing or written includes e-mail.

16.10. References to clauses are to the clauses of these Conditions.