Master Service Level Agreement - Online Content
Introduction
These Conditions set out Ology Learning Ltd (Ology Learning) standard terms and conditions of business for Customers and Subscribers and shall govern the provision of Products (of whatever nature) and Services by Ology Learning Ltd to Customers.
The headings in these Conditions are for convenience only and shall not affect their interpretation. Please note, the language of these Conditions is English. English is the definitive and binding version and the only language used in the interpretation of these Conditions.
These Conditions and the Agreement shall form the agreement between You and Ology Learning to the exclusion of all other terms and conditions (including any terms and conditions which You purport to apply as specified in any PO, purchase order, written instructions, letter of engagement, order confirmation, brief or other specification) and supersede any earlier agreement or agreements between You and Ology Learning.
We also draw your attention to our Privacy Policy, Cookie Policy and Data Processing Addendum each of which are incorporated by reference into any Agreement (defined below) we enter into with you or any communications we have with you.
1. Definitions
1.1 In this Agreement:
“Agreement” means these terms of business (including the Schedules) and any amendments to them as agreed from time to time;
“Content or Aggregated Materials or Materials” means any document in writing, plan, design, drawing, picture, idea or concept whether printed or provided on any other medium (including, but not limited to, USB sticks, DVDs, videos, CD‐ROMs, online web applications, SCORM files, apps or other software programs) that have been provided, translated by or adapted by Ology Learning for the Customer;
“Customer” means You;
“Customer Group” means Customer and any entity which directly or indirectly Controls, is Controlled by or is under common Control with Customer (“Control” having the meaning in section 1124 Corporation Tax Act 2010);
“Data Controller” means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of Personal Data. For the purpose of this DPA, Data Controller is the Company and/or the other Data Controllers on whose behalf Company acts;
“Data Processor” means any natural or legal person, public authority, agency or any other body which processes Personal Data on behalf of a Controller or on the instruction of another Processor acting on behalf of a Controller;
“Data Protection Legislation/Laws” means all applicable laws and regulations relating to the processing of Personal Data and privacy that may exist in the relevant jurisdictions;
“Documentation” means the user documentation and any other operating, training and reference manuals relating to use of the Software as supplied by Ology Learning to the Customer;
“Effective Date” means the date of initial purchase as defined in any Order Form;
“End User” means any employee, officer, contractor or other worker of the Customer Group who is authorised to access the Products or Services for internal training purposes as covered by this Agreement;
“Fees” means the amount/s payable to Ology Learning by a Customer as set out for the provision of the Products or Services whether in writing, electronic or otherwise, which states the pricing and any payment schedule, as well as the Products or Services to be provided;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Initial Term” means twenty-four (24) months from the Effective Date;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade-marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs) including know‐how and trade secrets and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply for) and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection which may, now or in the future, subsist in any part of the world relating to the Products, Services, Bespoke Services, Materials, Aggregated Materials, the System and the Website, owned by Ology Learning or Partners, and acquired by Ology Learning or Partners from time to time;
“Licence Period” means the Initial Term together with each Renewal Term;
“Ology Learning Systems” means the website that is used to access or use any part of the Products or Service covered in this Agreement;
“Permitted Purpose” means the use of any Products or Services in accordance with the Terms of this Agreement;
“Personal Data” means data which relates to a living individual who can be identified from that data;
“Product and/or Service” means any products or services that Ology Learning has agreed to provide You with, including, but not limited to, provision of access to the online courses and/or resources, access to the online Learning Management System;
“Renewal Term” has the meaning in clause 11.2;
“Trial Period” has the meaning in clause 2.8;
“Website” means the website which is used to access the Software;
“You/Your” means the Customer.
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
i. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
ii. any subordinate legislation made under that statute or statutory provision.
1.3 The clause headings do not affect the interpretation of this Agreement;
2. Services
2.1 Under the terms of this Agreement, Ology Learning grants to the Customer a non-exclusive, non-transferable, non-sublicensable licence, for the Licence Period. Any changes or additions to the Service or these Terms must be agreed in writing by Ology Learning;
2.2 The Services provided by Ology Learning to the Customer under clause 2.1 is subject to the Services only be used by the authorised End Users;
2.3 The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Services. Only permitted End Users within the Customer Group can access, download, install and display the Content. This must be provided by the Customer on the Customer’s internal learning platforms or other secure internal systems;
2.4 Ology Learning may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Service without any liability to the Customer;
2.5 Ology Learning may at any time without notifying the Customer make any changes to the Service which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Service;
2.6 This Clause 2.6 relates to all Products and Services provided by Ology Learning for and on behalf of the Customer:
2.6.1 Ology Learning accepts bookings for Products and Services by e-mail and will confirm all such bookings to the e-mail address provided by the Customer;
2.7 Neither Ology Learning nor its presenters, consultants or agents will be liable by reason of breach of contract, negligence or otherwise for any loss or consequential loss occasioned to any person acting, omitting to act or refraining from acting in reliance upon any Material or presentation of the Material or arising from or connected with any error or omission in the Material or presentation of the Material. For the purposes of this Clause “consequential loss” shall include but not be limited to any loss of profits or anticipated profits, damage to reputation or goodwill, loss of business or anticipated business, damages, costs, expenses incurred or payable to any third party or any other indirect or consequential losses;
2.8 On request, Ology will provide the Customer with a single ‘trial’ SCORM package and access to review other Content for a period of seven (7) days (“Trial Period”) solely to verify technical import into Customer’s systems and assess the Content’s suitability for the Customer;
2.9 The trial SCORM package is licensed on the same basis as clause 2 save that it may not be used for live training;
2.10 If Customer does not enter into an Order Form, the licence granted for the Trial Period will automatically terminate and Customer must delete the trial file immediately;
3. Your Obligations
3.1 The Customer must have the required equipment, software, and internet access to be able to use the Services. Ology Learning neither represents nor warrants that the Services will be accessible through all web browser releases or all versions of tablets, smartphones, or compatible with any application, program, software or computing devices;
3.2 Ology Learning will provide the Customer with an account to use the Services. The Customer and End Users are fully responsible for all activities performed on or through their account;
3.3 The Customer agrees to use the provided content in its original form without alteration;
3.4 The Customer will notify Ology Learning immediately of any unauthorised use of the Services or any other breach of security that is known or suspected by the Customer, provided the Customer is legally able to give such notice. Ology Learning may suspend the access to the Services in the event of any breach of clause 2 and 3.2 by the Customer or any End User until such violation ceases and Ology Learning receives reasonable assurances that such breach will not continue;
4. Ownership of the Software and Services
4.1 Title and ownership of all rights in the Services, including Intellectual Property Rights are and will remain owned by Ology Learning or its third-party suppliers. The Customer acknowledges that the Services in source code form remains proprietary information of Ology Learning or its third-party suppliers and that the source code is not licensed to the Customer by this Agreement and will not be provided;
4.2 Customer shall not (and shall procure that End Users do not):
i. distribute, disclose, sell, rent, lease, sub‑licence, assign or otherwise make the Content available to any person outside the Customer Group;
ii. store the Content on removable media or local devices except for temporary caching strictly required for system performance;
iii. remove, obscure or alter any proprietary notice on or in the Content;
iv. alter, adapt, merge, translate or create derivative works from the Content, save only for adding Customer branding in a manner that does not remove Ology’s copyright notice;
v. use the Content to build a competing product or service;
vi. attempt to reverse‑engineer, decompile or disassemble any object code supplied by Ology except to the limited extent such restriction is prohibited by law; or
vii. publicly display or perform the Content.
4.3 The Customer acknowledges that the core content provided by Ology Learning, including Intellectual Property Rights, remains the proprietary information of Ology Learning or its third-party suppliers. The Customer is prohibited from copying, decompiling, reverse-engineering, or modifying the core content. However, the Customer may add supplementary materials for the purpose of personalisation within their existing Learning Management Systems or equivalent software or services, provided such additions do not modify the core content;
5. Fees
5.1 The Fees payable under this Agreement shall be in the amounts and payable on the terms set out at the point of sale;
5.2 All Fees are exclusive of VAT, unless the context requires otherwise. VAT will be payable by the Customer to Ology Learning in addition to the principal amounts;
5.3 If the Customer does not pay any amount properly due to Ology Learning under or in connection with this Agreement, Ology Learning may charge the Customer interest on the overdue amount at the rate of 8% per year above the base rate of the Bank of England from time to time (which interest will accrue daily and be compounded quarterly);
5.4 Ology Learning may suspend access to the Services if any amounts due to be paid by the Customer to Ology Learning under this Agreement are overdue;
5.5 You will pay all Fees due to Ology Learning without any set‐off, deduction, counterclaim or withholding of monies, including but not limited to bank charges and exchange rate effects;
5.6 Ology Learning shall be entitled to invoice the Customer prior to the Service being provided, or at other times agreed by Ology Learning in writing with the Customer;
5.7 If You are dissatisfied with Ology Learning, its Agents or Partners delivery of its Products or Services, You must inform Ology Learning in writing within 7 days of the Effective Date. After this period no refunds or cancelations will be granted;
6. Warranties
6.1 The Customer warrants and represents to Ology Learning that it has the legal right and authority to enter into and perform its obligations under this Agreement;
6.2 Ology Learning warrants to the Customer that it has the legal right and authority to enter into and perform its obligations under this Agreement;
6.3 Ology Learning warrants to the Customer that the Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with this Agreement and at the intervals and within the times referred to. Where Ology Learning supplies in connection with the provision of the Services any goods (including Output Material) supplied by a third party, Ology Learning does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to Ology Learning;
6.4 The Customer further acknowledges that:
6.4.1 Ology Learning will not and does not purport to provide any legal, taxation or accountancy advice under this Agreement;
6.4.2 complex software and online services are never wholly free from defects, errors and bugs, and Ology Learning gives no warranty or representation that the Services will be wholly free from such defects, errors and bugs;
6.5 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement;
7. Indemnities
7.1 The Customer will indemnify, defend, and hold harmless Ology Learning against all claims, actions or proceedings, (including legal expenses and amounts paid in settlement of any disputes) arising out of any claim that:
7.1.1 the Customer’s unauthorised use or reproduction of the Services; or
7.1.2 Customer’s breach of clause 10 of this Agreement.
8. Limitations and exclusions of liability
8.1 Nothing in the Agreement will limit or exclude liability of a party:
8.1.1 for death or personal injury resulting from its (or its employees’ or agents) negligence;
8.1.2 for fraud or fraudulent misrepresentation by that party;
8.1.3 for any liability that is not permitted to be limited or excluded under applicable law.
8.2 Subject to clause 8.1, Ology Learning will in no event be liable to the Customer for any indirect, special, incidental, exemplary or consequential damages or loss of goodwill in any way relating to this Agreement or resulting from the use of or inability to use the deliverables or the performance or non-performance of any Products or Services, even if Ology Learning has been notified of the possibility or likelihood of such damages or loss occurring, and whether such liability is based on contract, tort, negligence, strict liability, product liability or otherwise;
8.3 Subject to clause 8.1, Ology Learning shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any Customer Materials or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Customer;
8.4 Subject to clause 8.1, in no event shall Ology Learning’ liability to the Customer whether based on contract, tort, negligence, strict liability, product liability or otherwise, exceed one tenth of Fees received by Ology Learning from the Customer;
8.5 The Customer shall not rely on the abilities or discernment of Ology Learning, its Agents or Partners to establish the suitability of the Products and Services for any particular purpose and the Customer must use their own abilities and discernment to satisfy themselves that the Products and Services are of merchantable quality and suitable for their intended purposes, even if an Agent or Partner of Ology Learning, has given written or verbal opinions concerning the suitability of the Products and Services for a particular purpose. This clause shall survive termination of this Agreement;
8.6 Ology Learning, its Agents or Partners shall not be liable and gives no warranties to the Customer or any third party as to the suitability of the Products and Services for any particular purpose, including but not limited to the accuracy of its Project Files, Learning Modules, Workbooks, Materials and other Resources. This clause shall survive termination of this Agreement;
8.7 The Customer agrees that the Project Files, Learning Modules, Workbooks, Materials and other Resources Ology Learning, its Agents or Partners provides access to for the Customer represent Ology Learning, its Agents or Partners’ professional opinions based on research and analysis and must not be relied upon as statements of fact. For the avoidance of doubt, Ology Learning, its Agents or Partners’ are not an employment or recruitment agency and does not recruit individuals to undertake certain jobs, roles or functions;
8.8 Ology Learning, its Agents or Partners are committed to helping organisations value diversity in the workplace and care has been taken to ensure the Products and Services do not unlawfully discriminate or label or stereotype individuals. Ology Learning, its Agents or Partners shall not be liable if the Customer or the End User(s) or agents through their acts or omissions, make decisions based on, or interpretations of, the Project Files, Learning Modules, Workbooks, Materials and other Resources that result in claims of unlawful discrimination or labelling or stereotyping of individuals;
9. Data Protection
9.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Ology Learning under or in connection with this Agreement;
9.2 Ology Learning warrants that:
9.2.1 it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Ology Learning on behalf of the Customer; and
9.2.2 it will use commercially reasonable efforts in accordance with customary industry standards to implement administrative, physical and technical safeguards necessary to ensure the security, confidentiality and integrity of Personal Data and against loss or corruption of Personal Data processed by Ology Learning on behalf of the Customer.
10. Non-Disclosure & Confidentiality
10.1 Confidential Information
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is of value to its owner and is treated as confidential (including all information which is subject to treatment as a ‘trade secret’ under applicable law) or should otherwise be reasonably understood to be confidential, in light of the context in which it is disclosed. Software, Documentation, and the terms and conditions of these Terms and Conditions (including pricing) shall expressly be considered as Confidential Information.
For purposes of these Terms and Conditions, Confidential Information does not include any information that:
i. the Receiving Party establishes was publicly known at the time of the Receiving Party’s receipt or has become publicly known other than by a breach of these Terms and Conditions;
ii. prior to disclosure hereunder, it was already in the Receiving Party’s possession without restriction as evidenced by appropriate documentation;
iii. subsequent to any disclosure hereunder, the information is obtained by the Receiving Party on a non-confidential basis from a third-party who has the right to disclose such information; or (iv) was developed by the Receiving Party without any use of any of the Confidential Information as evidenced by appropriate documentation.
10.2 Disclosure
The Parties agree that, during the Term of these Terms and Conditions, each Party may disclose to the other Party certain Confidential Information of such Party or of such Party’s associated companies, distributors, licensors, suppliers, or customers.
10.3 Requirement of Confidentiality
i. Each Receiving Party agrees to hold all Confidential Information disclosed to such Receiving Party by the Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information disclosed by the Disclosing Party to any third party, or utilise the Confidential Information disclosed by the Disclosing Party for any purpose whatsoever other than as expressly contemplated by the Agreement.
ii. The Customer acknowledges that the Software and Documentation issued in connection with these Terms and Conditions, are the Confidential Information of Ology Learning.
iii. With regard to all Confidential Information, the obligations in this Section shall continue for the Term of the Agreement and for a period of three (3) years thereafter; provided, however, that, with respect to any Confidential
Information which is a trade secret under applicable law, the obligations shall continue in perpetuity for so long as such information is considered a trade secret.
iv. Notwithstanding anything to the contrary herein, if the Receiving Party is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Confidential Information, then the Receiving Party may disclose the requested Confidential Information; provided however, that, the Receiving Party shall first notify the Disclosing Party prior to disclosure, if allowed by law, in order to give the Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of these Terms and Conditions and shall disclose only that part of the Confidential Information which the Receiving Party is required to disclose.
10.4 Return of Materials
Upon the request of the Disclosing Party or upon the expiration or termination of the Agreement, the Receiving Party shall promptly destroy or deliver to the Disclosing Party all of the Disclosing Party’s Confidential Information and any notes, extracts or other reproductions in whole or in part relating thereto, without retaining any copy thereof. Notwithstanding the foregoing, the Receiving Party shall be permitted to retain such copies of Confidential Information as may be reasonably necessary for legal or recordkeeping purposes, including such copies as are embedded in the automated backup of electronic data processing systems.
10.5 You will not seek to copy, decompile or reverse‐engineer any Materials provided to You by Ology Learning, its Agents or Partners or third-parties in connection with the provision of the Products and Service covered in this Agreement.
11. Term & Termination
11.1 These Terms commence on the Effective Date and continue for the Initial Term unless terminated earlier in accordance with this clause;
11.2 The Agreement will automatically renew for successive periods equal to the Initial Term (each a “Renewal Term”) unless either party gives the other not less than sixty (60) days’ written notice of non‑renewal prior to the end of the Initial Term or then‑current Renewal Term.
11.3 Without prejudice to any other remedies and in addition to any other termination rights herein, the parties shall have the right to terminate this Agreement as provided below;
i. By either party if the other party commits a material or consistent breach of this Agreement and such breach remains uncured 30 days after written notice of such breach is delivered to such other party;
ii. By Ology Learning if any amounts owed remain unpaid for more than fifteen (15) days following written notice of such unpaid amounts being delivered to the Customer.
12. Effects of Termination
12.1 Upon termination of this Agreement, all the provisions of this Agreement will cease to have effect, save that any provisions expressed or implied to survive and continue shall continue to have effect in accordance with their terms or otherwise indefinitely;
12.2 Termination of this Agreement or any Order will not affect the provisions regarding Ology Learning’s or the Customer’s treatment of Confidential Information and Trade Secrets, provisions relating to the payments of amounts due, indemnification provisions, the provisions of Section 11, and provisions limiting or disclaiming Ology Learning’s liability, which will survive such termination.
12.3 Upon expiry or termination of the Licence Period for any reason, Customer shall within fourteen (14) days:
i. permanently delete all copies of the Content from its systems (including backups) and those of the Customer Group; and
ii. certify in writing to Ology that it has done so.
12.4 Ology may, on at least five (5) Business Days’ notice, audit Customer’s compliance with clause 12.3 (including by remote technical verification or on‑site inspection during normal business hours);
12.5 If Customer fails to provide the certification required by clause 12.3 or if an audit reveals un‑deleted Content, the Agreement shall automatically renew for a further twelve (12) months at Ology’s then‑current full list price, and the Customer shall pay the corresponding Fees within thirty (30) days of invoice;
13. Notice
13.1 Any notice required to be given under this Agreement shall via email, via the address provided by either party for such purposes;
14. Force Majeure Event
14.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event;
14.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:
14.2.1 forthwith notify the other; and
14.2.2 will inform the other of the period for which it is estimated that such failure or delay will continue.
14.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
15. General
15.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach;
15.2 If a clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant clause will be deemed to be deleted);
15.3 Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties;
15.4 Ology Learning may assign, transfer or sub-contract any of its rights, benefits or obligations under this Agreement but the Customer may not assign, transfer or sub-contract any of its rights, benefits or obligations under this Agreement without the prior written consent of Ology Learning;
15.5 This Agreement is made for the benefit of the parties to this Agreement and is not intended to benefit any third party or be enforceable by any third party;
15.6 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover;