End User Licence Agreement (EULA)

 

Please read this EULA carefully, as it sets out the basis upon which the Course Materials are licensed for use.

By accessing the Platform from which Empower Development Ltd (The Licensor) provides access to the Course Materials, you are agreeing to be bound by the provisions of this EULA, the Platform’s Terms of Use, and all applicable laws and regulations. If you do not agree, you are prohibited from using or accessing the Platform. The Course Materials are protected by applicable copyright, trade secrets and trademark law.


The following are terms of use of the Course Materials.

1.          Definitions

1.1        In this EULA, except to the extent expressly provided otherwise:

"Charges" means those amounts that the parties have agreed in writing shall be payable by the User to the Licensor in respect of this EULA;

Course Materials” means an on-demand online study support programme developed by the Licensor comprising certain video, audio and/or slide presentations, animation videos, webinars, course syllabus, learning checklists, printable posters/revision cards, mind maps, practice questions, and multiple-choice tests;

"Effective Date" means the date upon which the User gives the User's express consent to this EULA, following the issue of this EULA by the Licensor;

"EULA" means this end user licence agreement, including any amendments thereto from time to time;

"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 the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" 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);

"Licensor" means Empower Development Ltd a company incorporated in England and Wales (registration number 11074441) having its registered office at 146 Langley way, West Wickham, England, BR4 0DS;

"Licensor Indemnity Event" has the meaning given to it in Clause 11.1;

Platform” means any third-party internet-based service that the Licensor uses from time to time to deliver the Course Materials and includes the website, desktop or mobile applications owned, managed and operated by said third-party.

Platform Provider” means the person responsible for operating and maintaining a Platform.

Platform Terms of Use” (alternatively “Platform’s Terms of Use”) means the standard terms governing the use of a Platform stipulated by the Platform Provider as a condition of accessing the Platform.

"Term" means the term of this EULA, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;

"User" means the person to whom the Licensor grants a right to use the Course Materials under this EULA; and

"User Indemnity Event" has the meaning given to it in Clause 11.3.

2.          Term

2.1        This EULA shall come into force upon acceptance by the User.

2.2        Unless terminated early in accordance with Clause 13 or any other provision of this EULA, this EULA shall expire upon the agreed termination date as stipulated within the Course Material purchased, or if no date is so specified, 12 months after coming into force.

3.          Licence

3.1        Permission is granted to temporarily access any Course Materials for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:

 a.   Modify or copy the Course Materials;

 b.   Alter, edit, adapt or develop derivate works of the Course Materials;

 c.   Sell, loan, re-sell, publish, re-publish or otherwise use the Course Materials for any commercial purpose, or for any public display (commercial or non-commercial);

 d.   Attempt to decompile or reverse engineer any software contained on the Licensor’s website and/or Platform;

 e.   Remove any copyright or other proprietary notations from the Course Materials; or

 f.    Share, distribute or transfer the Course Materials to another person or 'mirror' the materials on any other server.

 3.2        This licence shall automatically terminate if the User:

 a.   violates any of these restrictions and may be terminated by the Licensor at any time.

 b.   violates the Platform Term’s of Use.

 3.3        Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded Course Materials in your possession whether in electronic or printed format.

4.          Revisions to Course Materials

The Licensor may make changes to the materials contained on its web site at any time without notice. The Licensor does not, however, make any commitment to update the materials.

5.          Links

The Licensor has not reviewed all of the sites linked to its website and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by The Licensor of the site. Use of any such linked website is at the user's own risk.

6.          Consumer Rights

If you are an individual acting for purposes which are wholly or mainly outside your trade, business craft or profession, you may be deemed to have consumer status under the Consumer Rights Act 2015.

This is a summary of your Legal Rights in connection with the Course Materials if you have Consumer status. These are subject to certain exceptions. For detailed information please visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06.

 

If the Course Materials are supplied in digital form, the Consumer Rights Act 2015 says they must be supplied as described, fit for purpose and of satisfactory quality. During the term of the EULA your legal rights entitle you to the following:

 (a) Up to 30 days: if the Course Materials are faulty, then you can get a refund. 

 (b) Up to six months: if the Course Materials can't be repaired or replaced, then you are entitled to a full refund, in most cases.

 You have a legal right to change your mind within 14 days and receive a refund. This is called a “Cancellation Period”. Any refund will be made no later than 14 days after the day on which the Licensor is informed about your decision to cancel.

 7.          Intellectual Property Rights and Confidentiality

7.1        The User acknowledges the Licensor’s Intellectual Property Rights in and to the Course Materials including confidential information and trade secrets. The User agrees not to use, disclose, alter, adapt or modify any of the trade secrets including, without limitation, revision cards, mind maps or practice questions for any purpose and agrees that their disclosure could cause irreparable harm to the Licensor, its directors, officer and employees.

7.2        Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.

8.           Charges

8.1        The User agrees to pay the Charges as set by The Licensor on the website in consideration for access and licence to the Course Materials.

8.2        All amounts stated in or in relation to this EULA are subject to UK VAT at the prevailing rate from time to time, which will be added unless the transaction is exempt from VAT in accordance with VAT laws and regulations.

8.3        The Licensor shall not be obliged to issue invoices without VAT unless the User i) is established outside the UK but within the EU, ii) is registered for VAT in the relevant jurisdiction(s) and iii) provides its VAT registration number(s) to the Licensor. In all other cases, the Licensor shall in its sole and absolute discretion determine whether VAT is chargeable.

8.4        The User’s entitlement to VAT recovery is subject to normal VAT rules and, in particular, that the Course Materials are used or to be used for the purpose of any business carried on or to be carried on by it.

9.           Payments

9.1        The User must pay the Charges by debit card, credit card, direct debit, bank transfer (using such payment details as are notified by the Licensor to the User from time to time).

9.2        The Licensor shall issue a receipt for the Charges to the User upon payment of the Charges in accordance with Clause 8.1.

9.3        The User must pay the Charges to the Licensor in advance.

9.4        If the User does not pay any amount properly due to the Licensor under this EULA, the Licensor may charge the User interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).

10.        Warranties

10.1     The Licensor warrants to the User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

10.2     The Course Materials on the Platform are provided 'as is'. The Licensor does not warrant or make any representations concerning the accuracy, completeness, currency, likely results, or reliability of the use of the Course Materials or on any sites linked to this site.

10.3     The Licensor warrants to the User that the Course Materials, when used by the User in accordance with this EULA, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

10.4     If the Licensor reasonably determines, or any third party alleges, that the use of the Course Materials by the User in accordance with this EULA infringes any person's Intellectual Property Rights, the Licensor may acting reasonably at its own cost and expense and in its sole discretion:

(a)     modify the Course Materials in such a way that it no longer infringes the relevant Intellectual Property Rights;

(b)     procure for the User the right to use the Course Materials in accordance with this EULA; or

(c)      terminate this agreement without liability to the User.

10.5     The User warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

10.6     All of the parties' warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose.

11.        Indemnities

11.1     The Licensor shall indemnify and shall keep indemnified the User against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the User and arising directly or indirectly as a result of any breach by the Licensor of Clause 10.3 (a "Licensor Indemnity Event").

11.2     The User must:

(a)      upon becoming aware of an actual or potential Licensor Indemnity Event, notify the Licensor;

(b)      provide to the Licensor all such assistance as may be reasonably requested by the Licensor in relation to the Licensor Indemnity Event;

(c)      allow the Licensor the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Licensor Indemnity Event; and

(d)      not admit liability to any third party in connection with the Licensor Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Licensor Indemnity Event without the prior written consent of the Licensor, and the Licensor's obligation to indemnify the User under Clause 11.1 shall not apply unless the User complies with the requirements of this Clause 11.2.

11.3     The User shall indemnify and shall keep indemnified the Licensor against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Licensor and arising directly or indirectly as a result of any breach by the User of Clause 3.1 or 7.1 (a "User Indemnity Event").

11.4     The indemnity protection set out in this Clause 11 shall be subject to the limitations and exclusions of liability set out in Clause 12 of this EULA.

12.        Limitations and exclusions of liability

12.1     Nothing in this EULA will:

(a)      limit or exclude any liability for death or personal injury resulting from negligence;

(b)      limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)      limit any liabilities in any way that is not permitted under applicable law; or

(d)      exclude any liabilities that may not be excluded under applicable law, and, if a party is a consumer, that party's statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.

12.2     The limitations and exclusions of liability set out in this Clause 12 and elsewhere in this EULA:

(a)     are subject to Clause 12.1; and

(b)     govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.

12.3     The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.

12.4     The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.

12.5     The Licensor will not be liable to the User in respect of any loss of revenue or income.

12.6     The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.

12.7     The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.

12.8     The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.

12.9     The liability of the Licensor to the User under this EULA in respect of any event or series of related events shall not exceed the total amount paid and payable by the User to the Licensor under this EULA.

12.10  The liability of the User under Clause 11.3 shall be unlimited. The User acknowledges that damages may be insufficient to compensate The Licensor for a breach of the Clause 3.1 or 7.1.and therefore that injunctive relief would be appropriate in addition to any other remedy available to The Licensor.

13.        Termination

13.1     The Licensor may terminate this EULA by giving to the User not less than 30 days' written notice of termination, expiring at the end of any calendar month.

13.2     Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a)     the other party commits any material breach of this EULA, and the breach is not remediable;

(b)     the other party commits a material breach of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(c)      the other party persistently breaches this EULA (irrespective of whether such breaches collectively constitute a material breach).

13.3     Subject to applicable law, the Licensor may terminate this EULA immediately if

(a)     the User dies;

(b)     as a result of illness or incapacity, the User becomes incapable of managing his or her own affairs; or

(c)      that User is the subject of a bankruptcy petition or order.

13.4     The Licensor may terminate this EULA immediately by giving written notice to the User if:

(a)     any amount due to be paid by the User to the Licensor under this EULA is unpaid by the due date and remains unpaid upon the date that written notice of termination is given; and

(b)     the Licensor has given to the User at least 30 days' written notice, following the failure to pay, of its intention to terminate this EULA in accordance with this Clause 13.4.

14.        Effects of termination

14.1     Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 9.1, 9.4, 11, 12, 14, 15 and 16.

14.2     Except to the extent expressly provided otherwise in this EULA, the termination of this EULA shall not affect the accrued rights of either party.

14.3     Within 30 days following the termination of this EULA for any reason the User must pay to the Licensor any Charges in respect of licences in effect before the termination of this EULA.

14.4     For the avoidance of doubt, the licence of the Course Materials in Clause 3 shall terminate upon the termination of this EULA; and, accordingly, the User must immediately cease to use the Course Materials upon the termination of this EULA.

14.5     Within 10 Business Days following the termination of this EULA, the User must irrevocably delete from all computer systems in its possession or control all copies of the Course Materials.

15.        General

15.1     No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.

15.2     If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

15.3     This EULA may not be varied except by a written document signed by or on behalf of each of the parties.

15.4     The User hereby agrees that the Licensor may assign the Licensor's contractual rights and obligations under this EULA to any successor to all or a substantial part of the business of the Licensor from time to time. Save to the extent expressly permitted by applicable law, the User must not without the prior written consent of the Licensor assign, transfer or otherwise deal with any of the User's contractual rights or obligations under this EULA.

15.5     This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.

15.6     Subject to Clause 12. (Limitation of Liability), this EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

15.7     This EULA shall be governed by and construed in accordance with English law (excluding any conflicts of laws rules).

15.8     The Courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA. The User irrevocably submits to the jurisdiction of the Courts of England for the resolution of any contractual or non-contractual dispute.

16.        Interpretation

16.1     In this EULA, a reference to a statute or statutory provision includes a reference to:

(a)     that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)     any subordinate legislation made under that statute or statutory provision.

16.2     The Clause headings do not affect the interpretation of this EULA.

16.3     References in this EULA to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

16.4     In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.