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Terms and Conditions

On your acceptance of the terms of this Licence, THE SKILLS DEVELOPMENT SCOTLAND CO LIMITED, a company incorporated in Scotland (Registered Number SC202659) and having its registered office at Alhambra House, 45 Waterloo Street, Glasgow G2 6HS and its successors from time to time ("SDS" and also referred to as "we", "us" or "our") grants you a non-exclusive, non-transferrable licence for the accompanying software product, PROMT, including (if applicable) any accompanying electronic user manual and other material and any Upgrades (as hereinafter defined) (the "Software"). This Licence permits you to "Use" (as hereinafter defined) the Software on an unrestricted number of computer systems or servers for access over a network (the "System") for use by an unrestricted number of users solely for the purposes of carrying out the business of your organisation upon the terms and subject to the conditions contained herein.

1. USE OF SOFTWARE

In this Licence "Use" shall mean:

(a) where the Software or part thereof is downloadable, utilisation of the Software or such part thereof by copying, transmitting or loading the same or such part thereof into the memory (e.g. hard disk, CD ROM or other storage device) of the System for the processing by the System of instructions or statements contained in such Software or such part thereof; and copying the Software or such part thereof which is in machine-readable form for use by you on the System for the purposes only of understanding the contents of such machine-readable material; and

(b) where the Software or part thereof is not downloadable, utilisation of the Software or such part thereof by accessing the Software on SDS's server from time to time;

to access and use such websites as SDS may notify to you in writing from time to time (the "Site") solely for the purposes of fulfilling your role as a learning provider under one or more programmes managed by SDS, including without limitation, supplying, posting, inputting or making available content on the Site and/or managing bookings for learning courses under a programme managed by SDS via the Site.

Copies of the Software or such part thereof may be made for back-up and for disaster recovery purposes to the extent permitted by applicable law and provided that they contain the same copyright information as the original.

2. LICENCE FEE

The Software is licensed to you free of charge.

3. LICENSEE'S UNDERTAKINGS

Upon accepting this Licence you undertake:

(a) not to copy the Software (other than for normal operation and as specified in Clause 1 above) nor (subject to any applicable legal rights) to disassemble, decompile or reverse engineer the Software;

(b) not to translate, modify, lease, rent, loan, redistribute, sub-lease, sub-license or create derivative works from the Software;

(d) to supervise and control use of the Software in accordance with the terms of this Licence;

(e) to ensure that your employees, agents and contractors who will use the Software are notified of this Licence and the terms hereof prior to such employee, agent or contractor using the same;

(f) not to provide or otherwise make available the Software to any person other than your employees, agents or contractors without prior written consent from SDS;

(g) to reproduce and include the copyright notice of SDS as it appears in or on the Software on all copies;

(h) not to remove or destroy any copyright notices, trade marks or other proprietary or confidential legends or markings placed by SDS or contained within the Software or on any other documentation or material related to the Software;

(i) not to use the Software for immoral, illegal or for any other purpose which may be determined threatening, abusive or harmful including but not limited to the creation or transmission of any virus, worms, trojan horse, cancelbot or any other destructive or contaminating program;

(j) not to attempt to obtain access to, use or interfere with any part of the Software or any data of any other customer of SDS; and

(k) that your data will not contain anything obscene, offensive or defamatory.

You agree to indemnify SDS fully on demand against any and all actions, proceedings, claims, demands, damages, losses, expenses and costs (including without limitation legal costs on a full indemnity basis) suffered or incurred by SDS as a result of any breach of the undertakings in this Clause 3.

4. CONTENT

(a) By supplying, posting, inputting or making any content available using the Software and/or via the Site, you grant us a worldwide, perpetual, irrevocable, non-exclusive, royalty free licence to use and to make such content available on the Site to other users authorised to access such content. You also consent to us processing your data or any third party data (including but not limited to any personal data) as may be reasonably required for the purposes of our providing any programme delivered by SDS from time to time to our authorised users (and you will procure for us the right to process such data for those purposes).

(b) To the extent that you supply, post, input, or make available any content on the Site, you shall ensure that such content shall be lawful and shall not be defamatory, offensive, obscene, objectionable or in breach of any obligations of privacy or confidence.

(c) We do not screen, edit, or review content prior to its appearance on the Site (although we reserve the right to monitor content on the Site). We reserve the right at any time at our sole discretion to remove any content provided by you. You hereby undertake, represent and warrant to us that you have all necessary rights in and to all content that you supply, submit or provide and that such content is and will remain complete, materially accurate and up to date and does not infringe any proprietary or other rights of third parties.

(d) In using the Site you will act lawfully and not abuse, threaten, harass or stalk other users or act in any way likely to cause offence or annoyance; and you will not act in any way that interrupts or disrupts provision of any programme delivered by SDS from time to time on our Site or which in our reasonable opinion is likely to have an adverse affect on any of our business or the Site.

(e) You shall indemnify SDS fully on demand against any and all actions, proceedings, claims, demands, damages, losses, expenses and costs (including without limitation legal costs on a full indemnity basis) suffered or incurred by SDS howsoever arising a result of any breach by you of this Clause 4.

5. WARRANTIES

(a) You acknowledge that the Software and the Site in general are not error-free and agree that the existence of any errors shall not constitute a breach of this Licence. SDS does not warrant that your use of the Software and or the Site will be uninterrupted or error-free.

(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW SDS DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE AND THE SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

6. LIABILITY

(a) SDS DOES NOT EXCLUDE OR LIMIT ITS LIABILITY TO YOU FOR DEATH OR PERSONAL INJURY ARISING FROM THE BREACH OF DUTY OF SDS, ITS EMPLOYEES, AGENTS, CONTRACTORS OR AUTHORISED REPRESENTATIVES.

(b) SUBJECT ALWAYS TO CLAUSE 6(a) ABOVE, SDS SHALL NOT BE LIABLE IN CONTRACT, DELICT (INCLUDING BUT NOT LIMTED TO NEGLIGENCE) OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS LICENCE (INCLUDING WITHOUT LIMITATION BY WAY OF INDEMNITY) FOR ANY ECONOMIC LOSS (INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS OR ANTICIPATED SAVINGS), OR ANY LOSS OF GOODWILL OR REPUTATION, OR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGE (IN ANY CASE, WHETHER OR NOT SUCH LOSSES WERE WITHIN THE CONTEMPLATION OF THE PARTIES) SUFFERED OR INCURRED BY YOU ARISING OUT OF OR IN CONNECTION WITH THE PROVISIONS OF THIS LICENCE OR THE USE OR OTHERWISE OF THE SOFTWARE OR THE SITE.

(c) SUBJECT ALWAYS TO CLAUSE 6(a) AND (b) ABOVE THE AGGREGATE LIABILITY OF SDS ARISING FROM ANY BREACH OF THE TERMS OF THIS LICENCE AND/OR NEGLIGENCE ON THE PART OF SDS OR ANY EMPLOYEE, AGENT, CONTRACTOR OR AUTHORISED REPRESENTATIVE OF SDS SHALL IN NO EVENT EXCEED £1,000 WHICH YOU AND SDS ACKNOWLEDGE IS REASONABLE IN ALL CIRCUMSTANCES INCLUDING, WITHOUT LIMITATION, THAT THE SOFTWARE IS LICENSED TO YOU FREE OF CHARGE.

(d) YOU AND SDS EXPRESSLY AGREE THAT SHOULD ANY LIMITATION OR PROVISION CONTAINED IN THIS CLAUSE 6 BE HELD TO BE INVALID UNDER APPLICABLE LAW IT SHALL TO THAT EXTENT BE DEEMED OMITTED BUT IF YOU OR SDS THEREBY BECOMES LIABLE FOR LOSS OR DAMAGE WHICH WOULD OTHERWISE HAVE BEEN EXCLUDED SUCH LIABILITY SHALL BE SUBJECT TO THE OTHER LIMITATIONS AND PROVISIONS SET OUT HEREIN.

7. INTELLECTUAL PROPERTY RIGHTS

(a) You acknowledge and agree that all copyright, trade marks and other intellectual property rights subsisting in or used in connection with the Software and/or the Site are and remain the sole property of SDS or its licensors.

(b) You shall indemnify SDS fully on demand against any and all actions, proceedings, claims, demands, damages, losses, expenses and costs (including without limitation legal costs on a full indemnity basis) suffered or incurred by SDS howsoever arising a result of any alleged or actual infringement of any third party rights which arises as a result of the storage or processing of any of your data.

8. DATA PROTECTION

(a) Where your data contains personal data as defined in the Data Protection Act 1998 ("Personal Data") you hereby warrant to SDS that you have notified under the said Act in respect of any Personal Data.

(b) You warrant and undertake to SDS that:

(i) all Personal Data has been obtained and processed lawfully;

(ii) the services to be provided by SDS under this Licence will be entirely consistent with and appropriate to the specified and lawful purposes for which you have notified under the said Act in respect of any Personal Data ("the Notified Purposes");

(iii) you have not hitherto and will not during the continuance of this Licence use or disclose any Personal Data or any part thereof in a manner incompatible with the Notified Purposes;

(iv) all Personal Data is adequate, relevant and not excessive in relation to the Notified Purposes; and

(v) all Personal Data is accurate and you shall keep all Personal Data fully up to date at all times during the continuance of this Licence.

(c) You shall indemnify SDS fully on demand against any and all actions, proceedings, claims, demands, damages, losses, expenses and costs (including without limitation legal costs on a full indemnity basis) occasioned to SDS as a result of any alleged or actual breach by you of the provisions of this Clause 8.

9. TERMINATION

(a) You may terminate your right to Use the Software and/or Site at any time by giving notice to SDS in writing and by destroying the Software and any Upgrades and all copies.

(b) Without prejudice to its other rights and remedies under this Licence or applicable law SDS may terminate this Licence at any time if you are in breach of any of the terms of this Licence. If you are notified of such termination, you must within 14 days after the date of termination of this Licence for whatever reason, destroy the Software together with (if applicable) any accompanying user manual and other material and any Upgrades, and all copies thereof.

(c) Either party may terminate this Licence by giving written notice to the other if an administration order is made in respect of the other or a voluntary arrangement is proposed in respect of the other or a resolution or an order is made for the winding up of the other or a receiver or administrative receiver is appointed over the whole or any part of the other’s undertaking or assets or the other is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986); or if the other ceases or threatens to cease to carry on its business or shall make or seek to make any composition or arrangement with its creditors; or if any distress, execution, sequestration or other similar process is levied upon or enforced against the property of the other and is not paid out within 21 days.

(d) On termination of this Licence you shall immediately destroy the Software and any Upgrades and all copies and erase the Software and any Upgrades from any System onto which you have loaded the same.

10. FORCE MAJEURE

SDS shall be under no liability to you in respect of anything which may constitute breach of this Licence arising by reason of force majeure, namely, circumstances beyond the control of SDS which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including without limitation acts of local government and parliamentary authority, inability to supply the Software, materials, breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including without limitation work to rule, overtime bars, strikes and lockouts and whether between either you or SDS and any or all of your or SDS's employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either you or SDS or any other employer).

11. ENTIRE AGREEMENT

This Licence constitutes the entire understanding between you and SDS with respect to the subject matter hereof and supersedes any previous understandings, arrangements, representations, negotiations or agreements previously entered into between you and SDS. Provided that nothing in this Clause shall have effect to exclude the liability of either you or SDS for fraud or fraudulent misrepresentation.

12. WAIVER

Failure, delay or neglect by you or SDS to enforce at any time any provision of this Licence shall not be construed nor shall be deemed to be a waiver of you or SDS's rights hereunder nor in any way affect the validity of the whole or any part of this Licence nor prejudice you and SDS's rights to take subsequent action.

13. SEVERABILITY

If any provision of this Licence is declared to be void or unenforceable by any judicial or administrative authority in any jurisdiction in which this Licence is effective, such provision will be deemed to be severable and you and SDS shall each use their reasonable endeavours in good faith to modify this Licence so that the intent of this Licence can be legally carried out.

14. NOTICES

Any notice, consent, confirmation or other information required or authorised by this Licence to be given by either you or SDS may be given by hand or sent by first class recorded delivery post to the other party at the address specified in this Licence or the Registration Form or such other address as may from time to time be notified in writing to the party giving such notice. Notices shall be deemed given on delivery when given by hand and, in the case of notice given by first class recorded delivery post, two business days after the date of posting.

15. ASSIGNATION

You shall not assign, transfer or sub-contract any of your rights or obligations under this Licence without the prior written consent of SDS.

16. VARIATION

This Licence shall not be amended and no variation to its terms shall be effective unless such amendment or variation is in writing and is signed by or on behalf of each of the parties.

17. APPLICABLE LAW

This Licence shall be governed by and construed in accordance with the law of Scotland and you and SDS hereby submit to the exclusive jurisdiction of the Scottish courts.