General Terms

Version: 2.2

Last update: December 2021

Document classification: Public

These General Terms are the terms and conditions on which iTrain Legal Limited of 5th Floor, 167-169 Great Portland Street, London, W1W 5PF registered in England and Wales with Company No. 11042887 (“iTrain”) contracts with the Client defined in a Schedule.

Part A - All Supplies by iTrain

1. Definitions

In this Agreement, unless the context otherwise requires, the following expressions, when capitalised, shall have the following meanings.

1.1. “Agreement” means the agreement between the parties comprising these terms and conditions and each Schedule.

1.2. “Authorised Users” means those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services and the Documentation.

1.3. “Business Day” means from 9:00am to 5:00pm on any day (other than Saturday and Sunday) on which banks are open for business in the UK.

1.4. “Client” means the client specified in a Schedule or Schedules.

1.5. “Client Infrastructure” means all computer hardware and software owned by the Client.

1.6. “Client Materials” means all Client policies, Client data and Client documentation supplied to iTrain in relation to the delivery of the Services.

1.7. “Confidential Information” means, in relation to either party, any and all information disclosed to the other party pursuant to, or in connection with, this Agreement (whether orally or in writing or any other medium, and whether or not it is expressly stated to be confidential or marked as such). iTrain’s confidential information shall include, but not be limited to, information contained in this Agreement, Documentation, Schedules and the Services.

1.8. “Daily Rate” means the standard daily charge for the provision of Services agreed between iTrain and the Client in the applicable Schedule (as may be varied by them in writing from time to time).

1.9. “Data Protection Legislation” means any applicable law relating to the processing of personal information and/or privacy including but not limited to the Data Protection Act 2018.

1.10. “Documentation” means all information, including statement(s) of work, instructions and technical requirements, provided to the Client by iTrain as part of the delivery of any Services.

1.11. “Fees” means all sums due under this Agreement from the Client to iTrain as specified in a Schedule.

1.12. “Intellectual Property” means:

a) any and all rights in any patents, trademarks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and email addresses, unregistered trademarks and service marks, copyrights, database rights, knowhow, rights in designs and inventions;

b) rights under licences, consents, orders, statutes or otherwise in relation to a right in Sub-Clause 1.12a;

c) rights of the same or similar effect or nature as or to those in Sub-Clause 1.12a and Sub-Clause 1.12b which now or in the future may subsist; and

d) the right to sue for past infringements of any of the foregoing rights.

1.13. “Project Phase” means a separate project phase as identified in a Schedule.

1.14. “Reimbursable Expenses” means reasonable incidental expenses for travel, subsistence incurred, materials used and for third party goods and services supplied in the provision of the Services that iTrain is entitled to recover, as detailed in a Schedule. All expenses will be reasonable and at cost and preapproved by the Client in writing, such approval not to be unreasonably withheld.

1.15. “Schedule” means each schedule to this Agreement agreed by the parties in writing in respect of Software or Services provided by iTrain.

1.16. “Services” means the services to be provided by iTrain to the Client in accordance with this Agreement and the relevant Schedule(s). This includes, but is not limited to, the provision of software as a service (“SaaS”), all project management, scoping, analysis, training services, documentation, administration and any other information or services provided by iTrain.

1.17. “Software” means the software applications provided by iTrain as part of the Services either online as a SaaS product or developed by iTrain on behalf of the Client as part of the Services and includes all software, versions, upgrades, updates, fixes, enhancements, maintenance releases and any associated Documentation.

1.18. “Support Services Policy” means iTrain's policy for providing support in relation to the Services as made available on the Support Services Policy page or such other website address as may be notified to the Client from time to time.

1.19. “User Subscriptions” means the user subscriptions detailed in a Schedule which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.

1.20. “Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.21. “Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

2. Context

2.1. Unless the context otherwise requires, each reference in this Agreement to:

a) "in writing", and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;

b) a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

c) "this Agreement" is a reference to this Agreement as amended or supplemented at the relevant time;

d) a Clause is a reference to a clause of this Agreement, being iTrain and the Client.

e) a "party" or the "parties" refers to the parties to this Agreement, being iTrain and the Client.

2.2. The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.

2.3. Words imparting the singular number shall include the plural and vice versa.

2.4. References to any gender shall include the other gender.

2.5. References to persons shall include corporations.

2.6. In this Agreement references to a party include references to a person:

a) who for the time being is entitled (by assignment, novation or otherwise) to that party's rights under this Agreement (or any interest in those rights); or

b) who, as administrator, liquidator or otherwise, is entitled to exercise those rights; or

c) to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that party.

3. Fees & Payments

3.1. The Client shall pay to iTrain:

a) all Fees (which shall not be reduced if the actual number of Authorised Users is fewer than the number specified in the Schedule);

b) where the number of Authorised Users of Services and/or Documentation at any renewal date exceeds the number specified in the Schedule, an amount equal to such part of those Fees as is pro-rata to the excess; and

c) any amount due for any additional Services provided by iTrain not included in any Schedule at the amount agreed by the parties in writing or, if not so agreed, at the Daily Rate on a time and materials basis in minimum full day increments.

Fees for additional Services shall be invoiced separately from any Fees due under any Schedule and will be agreed in writing with the Client in advance.

3.2. All amounts shall be paid in accordance with payment instructions provided by iTrain and on the dates agreed in the relevant Schedule and neither party shall be entitled to set-off any sums, withholding or deduction, in any manner from payments due or sums received in respect of any claim under this Agreement or any other agreement at any time. No amounts are refundable.

3.3. If the Client cancels, terminates or postpones any Services, the cancellation fees in the relevant Schedule will apply.

3.4. All Reimbursable Expenses and cancellation fees will be invoiced in arrears at the end of the month in which they are incurred by iTrain or the Client notifies iTrain of any cancellation, termination or postponement.

3.5. If the Client fails to make any payment on the due date in respect of any sum due under this Agreement, then iTrain shall have the right to charge the Client interest on the sum outstanding at the rate of 8% above the base rate of the Bank of England from the due date for payment until the date on which the payment is received.

3.6. Should Fee payments not be made in accordance with this Clause 3, iTrain shall be entitled to withdraw any discounts offered to the Client and/or to suspend provision of the Services until such time that payment has been made in full.

3.7. All Fees are in GBP and exclusive of any VAT or other taxes which shall be payable in addition by the Client.

4. Provision of Services

4.1. Subject to payment in accordance with Clause 3, iTrain shall provide the Services for the term specified in the applicable Schedule:

a) materially in accordance with the terms and conditions of this Agreement;

b) in accordance with good industry practice and in a professional manner;

c) in compliance with all applicable laws and regulations;

d) with all due skill, care and diligence;

e) by iTrain representatives who have reasonable experience in providing services the same as or similar to the Services; and

f) subject to timely compliance by the Client with its obligations to provide support and assistance, in accordance with the timetable agreed in writing by both parties and on the dates and locations set out in the relevant Schedule.

4.2. iTrain will cooperate with the Client in all matters relating to the Services and shall act in accordance with all reasonable instructions given to it by the Client.

4.3. iTrain will comply with all relevant and reasonable Client policies, rules and procedures pertinent to the provision of the Services both on the Client’s premises or remotely provided that iTrain has received written copies of these policies, rules and procedures.

4.4. iTrain confirms that:

a) any software provided by iTrain required for the purposes of Services is legally licensed and its use is permitted in the provision of the Services; and

b) the receipt and use of the Software, Services and Documentation for the purposes agreed by the parties in writing shall not infringe the intellectual property rights of any third party.

4.5. This Agreement shall not prevent iTrain from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

5. Client Obligations

5.1. At no charge to iTrain, and in the timeframes agreed, the Client will:

a) provide iTrain with full access, both onsite or remote, to the relevant Client Infrastructure necessary for the provision of the Software or Services and, if delivered onsite, to the facilities in which the Software or Services are to be delivered;

b) if the Services are provided onsite, provide the facilities necessary for the provision of the Software or Services, including internet access, data projector, flipchart or whiteboard as required by iTrain;

c) if the Services are provided onsite, provide fit for purpose and safe working spaces and facilities for iTrain staff;

d) ensure that any software which iTrain requires to provide the Services which is detailed in a Schedule is either the Client's property or is licensed to the Client and that iTrain is permitted to use such software;

e) ensure that all information supplied by the Client is correct and update iTrain in advance in writing of any change to Client information including notifying iTrain of any excess in the number of Authorised Users over the number specified in the Schedule;

f) provide all information to iTrain that is necessary for iTrain’s provision of the Software or Services;

g) promptly provide any decision, approval or consent necessary to the provision of the Software or Services or any part of them;

h) not make any changes to the Client Infrastructure which would affect the provision of the Software or Services;

i) ensure that all Client delegates co-operate in a timely manner with iTrain in relation to the provision of the Software or Services; and

j) comply with all applicable laws and obtain any consents, permits, licences or other permissions needed from any third parties in advance of the provision of the Software or Services (or the relevant part thereof), necessary for iTrain to deliver the Software or Services.

6. Subscriptions

6.1. Subject to the terms and conditions of this Agreement, iTrain hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the term specified in the applicable Schedule solely for the Client's internal business operations.

6.2. In relation to the Authorised Users, the Client undertakes that:

a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions set out in the Schedule;

b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;

c) each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed in accordance with the Client’s password policy and that each Authorised User shall keep his password confidential;

d) it shall maintain a written, up to date list of current Authorised Users and provide such list to iTrain within 5 Business Days of iTrain's written request at any time or times;

e) it shall permit iTrain or iTrain's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Client’s systems to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at iTrain's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client’s normal conduct of business;

f) if any of the audits referred to in Sub-Clause 6.2e reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to iTrain's other rights, the Client shall promptly disable such passwords and iTrain shall not issue any new passwords to any such individual; and

g) if any of the audits referred to in Sub-Clause 6.2e reveal that the Client has underpaid iTrain, then without prejudice to iTrain's other rights, the Client shall pay to iTrain an amount equal to such underpayment as calculated in accordance with the prices set out in the Schedule within 10 Business Days of the date of the relevant audit.

6.3. The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

b) facilitates illegal activity;

c) depicts sexually explicit images;

d) promotes unlawful violence;

e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

f) is otherwise illegal or causes damage or injury to any person or property;

6.4. The Client shall not:

a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:

b) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

c) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

d) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

e) use the Services and/or Documentation to provide services to third parties; or

f) 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, or

g) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 6; or

h) introduce or permit the introduction of, any Virus or Vulnerability into iTrain's network and information systems.

6.5. The Client shall use all reasonable endeavours 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 iTrain.

6.6. The rights provided under this Clause 6 are granted to the Client only and shall not be considered granted to any subsidiary or holding company of the Client.

7. Variations and Amendments

7.1. In the event that the Client wishes to change any part of the Software or Services then it shall provide details of these changes to iTrain in writing. iTrain will use reasonable endeavours to accommodate the required changes, subject to appropriate adjustment of the Fees, but shall only be bound by changes which are agreed by the parties in writing.

7.2. If the parties are not able to agree any change requested by the Client, the Client may cancel the Software or Services (other than any provision of SaaS) and any cancellation or other Fees specified in the Schedule may apply.

8. Limitation of Liability

8.1. Except as expressly and specifically provided in this Agreement or any Schedule:

a) the Client assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. iTrain shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to iTrain by the Client in connection with the Services, or any actions taken by iTrain at the Client's direction;

b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

c) the Services and the Documentation are provided to the Client on an "as is" basis.

8.2. Nothing in this Agreement excludes the liability of iTrain:

a) for death or personal injury caused by iTrain's negligence; or

b) for fraud or fraudulent misrepresentation.

8.3. Subject to Clause 8.1 and Clause 8.2:

a) iTrain shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and

b) iTrain's liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with any Services shall be limited to the total amounts paid under the applicable Schedule in respect of those Services during the 12 months immediately preceding the date on which the claim arose; and

c) iTrain's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total amounts paid under this Agreement during the 12 months immediately preceding the date on which the claim arose.

8.4. The Client acknowledges and agrees that it shall have no rights or remedies against any employee, agent or sub-contractor of iTrain.

9. Term and Termination

9.1. This Agreement shall commence on the date of signature of the first Schedule and shall continue, unless and until terminated by either party pursuant to this Clause 9.

9.2. Either party may terminate this Agreement on providing not less than 30 days' written notice to the other party. Each existing Schedule shall survive termination of this Agreement under this Clause and shall remain in full force and effect.

9.3. Either party may terminate this Agreement forthwith if:

a) any sum owing to that party by the other party under any of the provisions of this Agreement is not paid within fifteen (15) Business Days of the due date for payment;

b) the other party commits any other breach of any of the provisions of this Agreement and, if such breach is capable of remedy, fails to remedy it within fifteen (15) Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;

c) an encumbrancer takes possession, or where the other party is a company, a receiver is appointed, of any of the property or assets of that other party;

d) the other party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);

e) the other party, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or reconstruction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this Agreement);

f) anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other party;

g) the other party ceases, or threatens to cease, to carry on business.

9.4. Where a Client right to terminate arises under Clause 9.3a or Clause 9.3b in respect of one or more Schedules then those Schedule shall be terminated and any remaining Schedules and this Agreement shall remain in full force and effect; in respect of any other right to terminate under Clause 9.3, this Agreement and all Schedules shall be terminated by notice given under Clause 9.3.

9.5. For the purposes of Sub-Clause 9.3b, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to time of performance.

10. Effects of Termination

10.1. iTrain is not in material breach of this Agreement, where the Client terminates, the Client shall pay iTrain all cancellation fees for the relevant Project Phase(s) and/or the Fees payable in respect of the unexpired portion of any fixed term, as well as all Reimbursable Expenses payable as if the termination had not occurred and any unrecoverable costs and expenses incurred by iTrain from the termination.

10.2. Upon the termination of this Agreement for any reason:

a) all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of this Agreement shall remain in full force and effect;

b) all rights granted by iTrain to the Client in respect of software and other materials shall terminate and, at iTrain’s request, the Client shall destroy or return to iTrain all copies of such materials;

c) termination shall not affect or prejudice any right to damages or other remedy which the terminating party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any party may have in respect of any breach of this Agreement which existed at or before the date of termination;

d) subject as provided in this Clause 10 and except in respect of any accrued rights neither party shall be under any further obligation to the other; and

e) each party shall (except to the extent referred to in Clause 11 immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other party any documents in its possession or control which contain or record any Confidential Information.

10.3. Any sum owing to iTrain under any of the provisions of this Agreement shall become immediately due and payable.

11. Confidentiality

11.1. During the term of this Agreement, and for a period of two (2) years after termination, the following obligations shall apply to the party receiving Confidential Information (“the Receiving Party”) from the other Party (”the Disclosing Party”).

11.2. Subject to Clause 11.3, the Receiving Party:

a) may not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement;

b) may not disclose any Confidential Information to any person except with the prior written consent of the Disclosing Party; and

c) shall make every effort to prevent the use or disclosure of the Confidential Information.

11.3. The obligations of confidence referred to in the provisions of this Clause shall not apply to any Confidential Information that:

a) is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain before its receipt by the Receiving Party; or

b) is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party; or

c) is required to be disclosed by any applicable law or regulation; or

d) is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other Party in respect of it and who imposes no obligations of confidence upon the Receiving Party.

11.4. Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of a breach of this Clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this Clause in addition to any damages or other remedies to which that party may be entitled.

12. Intellectual Property

12.1. Subject to Clause 12.2, iTrain shall retain the ownership of any and all Intellectual Property Rights in all materials of any nature produced by iTrain in the course of providing the Software, Services and Documentation (including any data inputted by the Customer or Authorised Users, or generated by iTrain on the Client's behalf) and the Client shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so.

12.2. The Client shall retain the ownership of any and all Intellectual Property Rights in all Client Materials.

12.3. iTrain grants to the Client an exclusive, royalty-free licence to use but not amend or update each deliverable identified as being specific to the Client in a Schedule for the term specified in that Schedule or, where no term is specified, a perpetual licence.

12.4. iTrain shall assert all moral rights arising out of Chapter IV of the Copyright, Designs and Patents Act 1988.

13. Data Protection

13.1. All personal information that iTrain may use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and the Client’s rights under the GDPR.

13.2. iTrain shall collect, process, store, and retain personal data in accordance with its Privacy Policy.

14. Data Processing

14.1. Each party shall comply with all applicable data protection requirements set out in the Data Protection Legislation. Neither this Clause 14 nor this Agreement shall relieve either party of any obligations set out in the Data Protection Legislation and shall not remove or replace any of those obligations.

14.2. For the purposes of the Data Protection Legislation and for this Clause 14 and this Agreement, iTrain is the “Data Processor” and the Client is the “Data Controller”.

14.3. The Client shall ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to iTrain for the purposes described in the relevant Schedule.

14.4. iTrain shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under this Agreement:

a) process the personal data only on the written instructions of the Client unless iTrain is otherwise required to process such personal data by law. iTrain shall promptly notify the Client of such processing unless prohibited from doing so by law.

b) ensure that it has in place suitable technical and organisational measures (as approved by the Client) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures.

c) ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential;

d) not transfer any personal data outside the UK/European Economic Area without the prior written consent of the Client and only if the following conditions are satisfied:

i. the parties have provided suitable safeguards for the transfer of personal data;

ii. affected data subjects have enforceable rights and effective legal remedies;

iii. iTrain complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and

iv. iTrain complies with all reasonable instructions given in advance by the Client with respect to the processing of the personal data.

e) assist the Client at the Client’s cost, in responding to any and all requests from data subjects in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators including, but not limited to, the Information Commissioner’s Office;

f) notify the Client without undue delay of a personal data breach;

g) on the Client’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Client on termination of this Agreement unless it is required to retain any of the personal data by law; and

h) maintain complete and accurate records of all processing activities and technical and organisational measures implemented that are necessary to demonstrate compliance with this Clause 14 and to allow for audits by the Client and/or any party designated by the Client.

14.5. iTrain shall not sub-contract any of its obligations to a sub-processor with respect to the processing of personal data under this Clause 14 without the prior written consent of the Client (such consent not to be unreasonably withheld and given in respect of Mobile Coach LLC, TalentLMS). In the event that iTrain appoints a sub-processor, iTrain shall:

a) enter into a written agreement with the sub-processor, which shall impose upon the sub-processor at least the same obligations as are imposed upon iTrain by this Clause 14 and which shall permit both iTrain and the Client to enforce those obligations; and

b) ensure that the sub-processor complies fully with its obligations under that agreement and the Data Protection Legislation.

15. Force Majeure

15.1. Neither party shall be liable for any failure or delay in performing its obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to, power failure, Internet Service Provider failure, industrial action, epidemic, pandemic, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war and governmental action.

15.2. If iTrain is delayed in performing or fails to perform any of iTrain’s obligations due to any cause beyond iTrain’s reasonable control and iTrain reasonably considers, having proper regard to the nature and extent of the actual or likely future disruption to the Services due to that cause, it cannot effectively provide, or any longer provide, the Services it shall be entitled to terminate this Agreement on written notice to the Client.

16. Dispute Resolution

16.1. The parties shall attempt to resolve any dispute arising out of or relating to this Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.

16.2. If negotiations under Clause 16.1 do not resolve the matter within thirty (30) days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.

16.3. If the ADR procedure referenced in Clause 16.2 does not resolve the matter within thirty (30) days of the initiation of that procedure, or if either party will not participate in the ADR procedure, the dispute may be referred to the courts for resolution.

16.4. Nothing in this Clause 16 shall prohibit either party or its affiliates from applying to a court for interim injunctive relief.

16.5. The decision and outcome of the final method of dispute resolution under this Clause 16 shall be final and binding on both parties.

17. Notices

17.1. All notices under this Agreement shall be in writing and be deemed duly given:

a) if signed by or on behalf of, a duly authorised officer of the party given the notice; or

b) when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or

c) when sent, if transmitted by facsimile or email and a successful transmission report or return receipt is generated; or

d) on the fifth Business Day following mailing, if mailed by national ordinary mail, postage prepaid; or

e) on the tenth Business Day following mailing, if mailed by airmail, postage prepaid.

17.2. In each case notices shall be addressed to the most recent address, email address, or facsimile number notified to the other party.

18. Severance

18.1. The parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that/those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.

19. Successors and Assignees

19.1. This Agreement shall be personal to the parties. Subject to Clause 19.2, neither party may assign, or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other party, such consent not to be unreasonably withheld.

19.2. iTrain shall be entitled to perform any of the obligations undertaken by it through any member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such member or sub-contractor shall, for the purposes of this Agreement, be deemed to be an act or omission by iTrain.

20. Relationship

20.1. Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.

21. Further Assurance

21.1. Each party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of this Agreement into full force and effect.

22. No Waiver

22.1. No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

23. Third Party Rights

23.1. No part of this Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and no third-party consent is required to amend this Agreement.

23.2. Subject to Clause 19, this Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.

24. Non-Solicitation

24.1. The Client shall not, for the term of this Agreement and for a period of 12 (twelve) months after its termination or expiry, solicit, entice, employ or contract the services of any person who is or was involved in the provision of the Services without the express written consent of iTrain.

25. Anti-Slavery/Living Wage

25.1. iTrain complies with the requirements of the Living Wage Foundation and Modern Anti-Slavery Act.

26. Marketing Assistance

The Client agrees to provide iTrain with reasonable marketing assistance to promote and sell iTrain Services. This shall include, and is not limited to, the use of Client logos in iTrain documentation, case studies and event assistance by Client representatives. All documented out-of-pocket costs related to these marketing activities will be borne by iTrain.

27. Entire Agreement

27.1. This Agreement contains the entire agreement between the parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties. In the event of conflict between these terms and a Schedule, the Schedule shall prevail.

27.2. Each party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

28. Law and Jurisdiction

28.1. This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts and be governed by, and construed in accordance with, the laws of England and Wales.

28.2. Subject to the provisions of Clause 16, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the exclusive jurisdiction of the courts of England and Wales provided that either party may enforce any judgement of the court of England and Wales in the courts of any jurisdiction.

Part B - Chatbot and Learning Management System Only

29. Availability

29.1. iTrain shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

a) planned maintenance performed outside the hours of a normal Business Day, and

b) unscheduled maintenance provided that iTrain has used reasonable endeavours to give the Client at least 6 Business Day hours' notice in advance.

29.2. iTrain will, as part of the Services and at no additional cost to the Client, provide the Client with iTrain's standard customer support services during each Business Day in accordance with the Support Services Policy in effect at the time that the Services are provided. iTrain may amend the Support Services Policy in its sole and absolute discretion from time to time. The Client may purchase enhanced support services separately at iTrain's then current rates.

30. Third party providers

30.1. The Client acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. iTrain makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not iTrain. iTrain recommends that the Client refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. iTrain does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

31. iTrain's obligations

31.1. iTrain undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

31.2. The undertaking at Clause 31.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to iTrain's instructions, or modification or alteration of the Services by any party other than iTrain or iTrain's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, iTrain will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client's sole and exclusive remedy for any breach of the undertaking set out in Clause 31.1.

31.3. iTrain:

a) does not warrant that:

i) the Client's use of the Services will be uninterrupted or error-free; or

ii) the Software or the Services will be free from Vulnerabilities or Viruses.

b) is 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, and the Client acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

31.4. iTrain warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the provision of the Services.

31.5. iTrain shall follow its standard archiving procedures for Client Materials as may be amended by iTrain in its sole discretion from time to time. In the event of any loss or damage to Client Materials, the Client's sole and exclusive remedy against iTrain shall be for iTrain to use reasonable commercial endeavours to restore the lost or damaged Client Materials from the latest back-up of such Client Materials maintained by iTrain in accordance with its standard archiving procedure. iTrain shall not be responsible for any loss, destruction, alteration or disclosure of Client Materials caused by any third party (except those third parties sub-contracted by iTrain to perform services related to Client Materials maintenance and back-up for which it shall remain fully liable.

32. Client's obligations

32.1. The Client shall:

a) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;

b) obtain and shall maintain all necessary licences, consents, and permissions necessary for iTrain, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;

c) ensure that the Client Infrastructure complies with the relevant specifications provided by iTrain from time to time; and

d) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to iTrain's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.

32.2. The Client shall own all right, title and interest in and to all of the Client Materials and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Materials.

33. Indemnity

33.1. The Client shall defend, indemnify and hold harmless iTrain 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 the Client's use of the Services and/or Documentation, provided that:

a) the Client is given prompt notice of any such claim;

b) iTrain provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client's expense; and

c) the Client is given sole authority to defend or settle the claim.

33.2. iTrain shall defend the Client, its officers, directors and employees against any claim that the Client's use of the Services or Documentation in accordance with this Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:

a) iTrain is given prompt notice of any such claim;

b) the Client provides reasonable co-operation to iTrain in the defence and settlement of such claim, at iTrain's expense; and

c) iTrain is given sole authority to defend or settle the claim.

33.3. In the defence or settlement of any claim, iTrain may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.

33.4. In no event shall iTrain, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:

a) a modification of the Services or Documentation by anyone other than iTrain; or

b) the Client's use of the Services or Documentation in a manner contrary to the instructions given to the Client by iTrain; or

c) the Client's use of the Services or Documentation after notice of the alleged or actual infringement from iTrain or any appropriate authority.

33.5. The foregoing states the Client's sole and exclusive rights and remedies, and iTrain's (including iTrain's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database rights, or right of confidentiality.