Standard Terms for Services Agreement
These Standard Terms apply to the Programme Services and any Additional Services provided by COA to the Client in accordance with the Services Details, Invoice Details and Contact Details to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- “Assessment Data” means the Student Data and any automated and/or bespoke reports, analysis and/or recommendations produced by COA in respect of that Student Data during the Subscription Term (whether through the provision of the Programme Services or any Additional Services);
- “Confidential Information” means information that is expressly designated as, or ought reasonably to be considered, confidential including but not limited to (i) the Programme and details of the Programme Services and Additional Services (which shall be COA’s Confidential Information) and (ii) the Assessment Data;
- “Data Protection Legislation” means the Data Protection Act 1998 and/or, from the date it comes into force in the UK, the General Data Protection Regulation (EU) 2016/679 (and any associated national implementing laws) plus any other laws relating to the protection of personal data and the privacy of individuals (all as amended, updated or re-enacted from time to time);
- “Programme Services” means use of the Programme by the Authorised Users (including any user guides) and the accompanying hosting, maintenance and support services provided by COA to the Client;
- “Renewal Period” has the meaning set out in clause 12.1;
- “Student” means a student of the Client to whom the Programme Services and/or any Additional Services are provided by COA; and
- “Student Data” means all information provided by the Student to COA in respect of the Programme Services and/or any Additional Services; and
- “Subscription Term” means the Initial Fixed Period and any Renewal Periods.
- In this Agreement, the defined terms set out in the Services Details, Invoice Details and Contact Details on the front sheet shall have the meanings set out therein and the following defined terms shall have the meaning set out:
Use of the Programme Services
- COA hereby grants to the Client a non-exclusive, non-transferable right to permit the Authorised Users to use the Programme Services as part of the Client’s careers curriculum during the Subscription Term, subject to the terms of this Agreement.
- The Client agrees to ensure that each Authorised User keeps a secure password for his/her individual use of the Programme Services and that he/she keeps that password confidential.
- The Client may, at any time during the Subscription Term, purchase access to the Programme Services for additional Authorised Users at an additional fee. COA shall grant any additional access agreed in writing between the parties, subject to the terms of this Agreement and the payment of an increased Programme Services Fee (such increase to be pro-rated if applicable).
Restrictions on Use
- The Client shall use all reasonable endeavours to prevent any access or use of the Programme Services other than by the Authorised Users and, in the event of any such access, shall promptly notify COA.
The Client shall not (and agrees to ensure that the Authorised Users shall not):
- access all or any part of the Programme Services in order to build a product or service which competes with the Programme Services;
- access, store, distribute or transmit any virus, worm, Trojan horse or other harmful or disruptive component during the course of its use of the Programme Services; or
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Programme in any form or media or by any means or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Programme, except to the extent expressly permitted under this Agreement and/or as may be allowed by any applicable law which is incapable of exclusion.
Provision of the Programme Services
- COA shall, during the Subscription Term, provide the Programme Services to the Client with reasonable skill and care, on and subject to the terms of this Agreement.
- COA shall use commercially reasonable endeavours to make the Programme Services available to the Client in accordance with the Programme Availability, however, the Client acknowledges and accepts that COA is not responsible for any non-availability or interruption to the Programme Services caused by any general internet connectivity issues or anything else outside of COA’s reasonable control, including any unavailability caused by the Client.
- COA shall, on request, provide the Client with reasonable support assistance in respect of the Programme during COA Office Hours and such assistance shall form part of the Programme Services and be at no additional cost to the Client.
- The Client agrees to allow COA to access its Programmes to the extent necessary for COA to provide the Programme Services.
Delivery of Services
- The Client agrees to provide COA with online questionnaire testing dates and to ensure that there is a minimum of 5 working days from the request to set up a programme and the testing date.
- The Client is advised to return any completed paper questionnaires to COA via a recorded delivery service. COA shall not be responsible for any paper questionnaires lost in transit where there is no confirmation of receipt by COA.
- COA will confidentially destroy any paper questionnaires once the results have been scanned. Any errors not brought to the attention of COA prior to scanning will require the Client to arrange for the student to redo the test.
- The Client shall notify COA as and when the Client requires completed reports to be processed.
- The standard turnaround times for the processing and despatch of electronic and paper reports shall always apply unless a prior agreement has been made with COA in writing.
- COA shall notify the Client when processing of reports has begun, and will provide a despatch date to the Client.
- Where handover interviews have been scheduled, the Client agrees that these dates will be scheduled in-line with the standard turnaround times for the processing and despatch of electronic and paper reports.
- If the Client requires additional time to review the reports prior to the scheduled interview dates then the Client agrees to factor in this additional time when scheduling handover interview dates, and requesting reports to be processed.
- If the Client requires paper reports to be printed in interview order, the Client will provide completed interview timetables at least 14 working days prior to the scheduled interview dates.
- COA shall not be held responsible for any failure by 3rd parties in the delivery of despatched paper reports and/or books.
- COA shall, during the Subscription Term, provide the Additional Services to the Client with reasonable skill and care, on and subject to the terms of this Agreement.
- The Client may, at any time during the Subscription Term, purchase other services offered by COA at an additional fee. The parties shall discuss and agree in writing any further services to be provided by COA to the Client and all such services shall be subject to the terms of this Agreement and any fees agreed in writing by the parties.
Charges and Payment
- COA will invoice the Client (such invoices to be paid by the Client within 30 days of receipt) for the Programme Services Fees and the Additional Services Fees in accordance with the Payment Model.
- If a party fails to make any payment due to the other party under this Agreement by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 4% a year above Barclay’s Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement.
- If the Client fails to make any payment due to COA under this Agreement by the due date for payment, COA reserves the right to suspend the Client’s right to access and use the Programme Services and Additional Services.
- COA confirms, and the Client acknowledges and agrees, that COA and/or its licensors own all copyright and other intellectual property rights in the Assessment Data (excluding the Student Data), the Programme Services and any Additional Services. Except as expressly stated in this Agreement, COA does not grant the Client any other rights or licences in respect of the Programme Services, Additional Services or Assessment Data (excluding the Student Data).
- To the extent that the Client owns any intellectual property rights in the Student Data, the Client hereby grants to COA a licence to retain and use the Student Data in the manner anticipated by this Agreement.
COA warrants that the provision and use of the Programme Services, any Additional Services and the Assessment Data (excluding the Student Data) in accordance with this Agreement does not and will not infringe the copyright of any third party in the United Kingdom and, subject to clauses 7.4 and 7.5, in the event of any claim being brought against the Client that the normal use of the Programme Services, any Additional Services and/or the Assessment Data (excluding the Student Data) in accordance with this Agreement infringes the copyright of a third party in the United Kingdom (a "Claim"), COA shall indemnify the Client against any damages that are awarded to be paid to any such third party in respect of such Claim and any losses, costs (including all legal fees) and expenses incurred by or on behalf of the Client arising from such Claim, provided that the Client:
- as soon as reasonably practicable notifies COA in writing of any such Claim of which it becomes aware;
- does not make any admission as to liability or compromise or agree any settlement of the Claim without the prior written consent of COA (not to be unreasonably withheld or delayed), or otherwise prejudice COA's or any other third party's defence of such Claim;
- on request, gives COA (or such person as COA shall direct) immediate and complete control of the conduct or settlement of all negotiations and litigation arising from the Claim; and
- upon payment of its reasonable costs, gives COA, and other third parties as COA directs, all reasonable assistance with the conduct or settlement of any such negotiations or litigation.
If a Claim is brought, COA shall have the right in its absolute discretion and at its own expense:
- to procure the right for COA to continue using the Programme Services, Additional Services and/or the Assessment Data in accordance with the terms of this Agreement;
- to make any necessary alterations, modifications or adjustments to the Programme Services, Additional Services and/or the Assessment Data so that they become non-infringing; or
- to replace the Programme Services, Additional Services and/or the Assessment Data with non-infringing software, services and/or documentation.
- If COA is unable to resolve a Claim by taking one of the actions under clause 7.4 COA shall have the right to terminate this Agreement upon repayment to the Client of the Programme Services Fees on a pro rata basis and such right shall be the Client's sole and exclusive remedy under this Agreement in respect of any such Claim.
- In the event of any claim attributable to the use by the Programme Services, Additional Services and/or the Assessment Data other than in accordance with this Agreement, the provisions of clauses 7.3 to 7.5 shall not apply and the Client shall indemnify COA against all liabilities, costs and expenses which COA may incur as a result of such claim.
To the extent that COA owns the Assessment Data, COA hereby grants:
- to each Student, a right to use any Assessment Data generated in respect of that Student; and
- to the Client, a right to use all Assessment Data as it sees fit, subject to compliance with data protection and any other relevant laws.
COA shall be entitled to:
- disclose the Assessment Data of a Student to the parent or guardian of that Student on request (unless the Student objects to such disclosure in writing to COA); and
- compile and use the Assessment Data in an anonymised form, subject to compliance with data protection laws.
- COA shall take reasonable steps to keep the Assessment Data secure and to guard against that data being lost, damaged, altered or disclosed unlawfully and/or without the necessary authorisation.
- To the extent that COA owns the Assessment Data, COA hereby grants:
- Each party acknowledges and agrees that, for the purposes of its rights and obligations under this Agreement, it is a data controller within the meaning of the Data Protection Legislation and shall be responsible for the storage, processing, transmission and protection of any personal data that it collects and/or acquires in connection with this Agreement.
- Each party undertakes to comply with the Data Protection Legislation in respect of its storage, processing, transmission and protection of any personal data that it collects and/or acquires in connection with this Agreement.
- Where the Client discloses personal data about Students to COA, it shall provide all necessary notices to and obtain all necessary consents from the Students to enable the Client to disclose, and COA to use, that data in accordance with the Data Protection Legislation.
- For the purposes of this clause 9, “data subject” and “personal data” shall have the meaning specified in the Data Protection Legislation in relation to data processed by a party under this Agreement.
- Except to the extent set out in this clause 10, or where any use or disclosure is expressly permitted elsewhere in this Agreement, each party shall treat the Confidential Information of the other party or any Authorised User as confidential.
The parties acknowledge that the Confidential Information may be disclosed:
- to any employees, officers, representatives or advisers of that party who need to know the information; and
- as may be required by law, by any court of competent jurisdiction or by any regulatory or administrative body.
The parties acknowledge that the Confidential Information shall not include any information which:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party's lawful possession before the disclosure or is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party and such independent development can be shown by written evidence.
Limitation of Liability
- Nothing in this Agreement shall exclude or restrict the liability of COA to the Client for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.
- Subject to clause 11.1, in no circumstances shall COA be liable to the Client whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any indirect, special or consequential loss, costs, damages, charges or expenses, 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, however arising under this Agreement.
- Subject to clauses 11.1 and 11.2, the liability of COA to the Client for direct loss in tort, contract or otherwise arising under or in connection with this Agreement shall be limited, for any one claim or series of connected claims, to the amount of any Programme Services Fees and Additional Services Fees paid or payable to COA by the Client in the 12 months preceding the event giving rise to the relevant claim (or, in the case of liability arising after termination or expiry of this Agreement, to the amount paid or payable by the Business Partner in the 12 months preceding such expiry or termination).
Term and Termination
- This Agreement shall commence on the Commencement Date and, unless terminated earlier in accordance with this clause 12, shall continue for the Initial Fixed Period and thereafter be automatically renewed for successive periods of 12 months (each a “Renewal Period”).
- Either party may terminate this Agreement by giving written notice of termination to the other party at least 60 days before the end of the Initial Fixed Period or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the Initial Fixed Period or Renewal Period as applicable.
Either party may terminate this Agreement with immediate effect (or following such notice period as it sees fit) without prejudice to any of its rights or remedies, by giving written notice to the other party if:
- the other party commits any material breach (which may, without limitation, consist of a series of minor breaches) of the terms of this Agreement which (if capable of remedy) it fails to remedy within thirty (30) days of a notice in writing from the first party specifying the breach and requiring such breach to be remedied; or
- is unable to pay its debts; or becomes insolvent; or is subject to an order or a resolution for its liquidation, administration, winding up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction); or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets; or enters into or proposes any composition or arrangement with its creditors generally; or ceases or threatens to cease business; or is subject to any analogous event or proceeding.
Consequences of Termination
On expiry or termination of this Agreement for any reason:
- the Client shall immediately pay to COA the full amount of all sums due together with any interest payable in accordance with clause 6.2;
- the licence granted pursuant to clause 2.1 shall terminate immediately and the Client shall cease, and shall ensure that all Authorised Users cease, to access and use the Programme Services; and
- Clauses 7 to 13 and clause 15 shall survive and continue in full force and effect.
- On expiry or termination of this Agreement for any reason:
- Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party in accordance with the relevant Contact Details set out at the beginning of this Agreement.
- A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in normal business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
- This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous discussions, agreements, arrangements and understandings between the parties with respect thereof.
- The Client shall not have the right to assign, transfer, sub-contract, charge or deal in any other manner with any of its rights and/or obligations under this Agreement, or any right arising under it, without the prior written consent of COA.
- No variation of this Agreement shall be effective, unless it is in writing and signed by the parties (or their authorised representatives).
- No person who is not a party to this Agreement shall have any rights under the Contracts (Rights of Third Parties) Act 1999.
- This Agreement and any dispute or claim (including any non-contractual dispute or claim) arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the laws of England and Wales and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including any non-contractual dispute or claim) that arises out of or in connection with this Agreement or its subject matter.
COA Services agreement May 2018 v0.5