Terms and Conditions

Circus Street London Limited Client Terms and Conditions

Version: 8.5

1. Definitions

In these Terms and Conditions, unless the context requires otherwise, the following expressions shall have the following meanings:

Access Term:
means the Initial Access Term and any Renewal Access Term.
Administrator:
means an employee, officer, director or contractor (acting in a similar role to an employee) or authorised representative nominated and designated by Client to deal with administrative functions relating to Client's and Users' use of and access to the Lessons and the Hosted Service, including for Registration and support.
Agreement:
means these Terms and Conditions, the Order Form and/or any details in the registration process involving Client or User, and any variations in accordance with Clause 14.9.
Agreement Year
means either: (a) a period commencing on the Commencement Date and continuing until expiry of the Initial Access Term; or (b) the period of a Renewal Access Term.
App:
means the mobile and tablet application software, the data supplied with the software, and the associated media provided by Circus Street through which a User may access certain features of the Product from time to time.
Business Day:
means any day other than (a) a Saturday, (b) a Sunday, or (c) a day which is a bank holiday in England (as set out on www.gov.uk/bank-holidays for bank holidays in England.
Bundle:
means a bundle of a number of Unique User Lessons ordered by Customer for its Users, as set out in the Order Form, and which may be access to: (a) an individual Lesson for a certain number of Users ("Bundle A"); or (b) a Package for a certain number of Users ("Bundle B"); or (c) a certain number of Unique User Lessons for a certain number of Users ("Bundle C"); or (d) a certain number of Unique User Lessons across any Users ("Bundle D").
Business Day:
means any day other than (a) a Saturday, (b) a Sunday, or (c) a day when the clearing banks are not physically open for business in the City of London, United Kingdom.
Circus Street:
means Circus Street London Limited, a company registered in England under number 6958392 whose registered office is at 3rd floor, Oxford House, 76 Oxford Street, London, W1D 1BS.
Client:
means the client of Circus Street who agrees to obtain access to the Product through the Hosted Service in exchange for payment of the Licence Fee, and whose details are more particularly set out in the Order Form.
Client Content:
means any Client specific content, including Client’s Confidential Information, for use in or to be uploaded to the Product or provided by Client to Circus Street.
Client System:
means the computer systems operated by or for Client or a User and any mobile devices owned or provided to Users (whether provided to Users by Client or not) and used in conjunction with the Product.
Commencement Date:
means the date on which Client agrees to the Order Form.
Confidential Information:
means any information which is received by one party from the other party under or in connection with this Agreement and which is either marked as, or which a reasonable person would reasonably consider to be, confidential, whether disclosed or obtained before, on or after the date of this Agreement together with any reproductions of such information or any part of this information, and this includes: (a) where Circus Street is the discloser, the Product and Product Content; and (b) where Client or a User is the discloser, the Client Content.
Consultancy Services:
means services provided or to be provided by Circus Street under this Agreement other than the Hosted Service, including anything described as these services in the Order Form, creation of Product Developments, provision of User Data and reports.
Consultancy Services Fee:
means the fee charged by Circus Street for provision of Consultancy Services, which shall be at the rate set out in the Order Form or if not there then at Circus Street's standard rates for provision of those Consultancy Services from time to time.
Contaminants:
means any computer software routine intended or designed to disable, damage, erase, disrupt or impair the normal operation of, or provide unauthorised access to, or modification or monitoring of, any computer system or any software or information stored on any computer system, including viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors or trap door devices.
Data Protection Laws:
means the European Union Data Protection Directive 95/46/EC, any national laws or regulations implementing that Directive; the General Data Protection Regulation EU 2016/679 ("GDPR") (when applicable) and any national laws or regulations constituting a replacement or successor data protection regime to that governed by GDPR.
Electronic Signature Provider:
means a trusted third party electronic signature provider that is able to verify that an electronic signature has come from the relevant party.
Enrol:
means Client's request with Circus Street (using Circus Street's process) for a Lesson to be accessed by an individual user Registered by Client (and "Enrolment" shall be construed accordingly).
Fee:
means the Licence Fee or the Consultancy Services Fee.
Full Access Licence:
means the right for an individual User to have access to all Lessons in the Lesson Catalogue, as ordered by Client for its Users in accordance with the Order Form.
Good Industry Practice:
means in relation to any undertaking and any circumstances, the exercise of that degree of professionalism, skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of activity under the same or similar circumstances.
Hosted Service:
means the provision by Circus Street of access to Lesson Licences or Full Access Licences to Users pursuant to this Agreement, together with any support in accordance with Clause 5.
Initial Access Term:
means the period of time during which the Lessons ordered may be accessed by Users, as may be set out in the Order Form or (if not set out there) it shall be 12 months from the Launch Date.
Intellectual Property Rights:
means all present and future copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Launch Date:
means the date stipulated in the Order Form at which a User is to be first given access to a Lesson by Circus Street, which shall be the date that is three months after the Commencement Date (unless the Order Form stipulates another date).
Lesson:
means the part of the Product which is a distinct web-based or app-based training lesson identified as such by Circus Street and made available for access to Client or User from time to time.
Lesson Catalogue:
means the complete catalogue of Lessons made available by Circus Street for use or access by Client and Users from time to time.
Lesson Licence:
means an individual User's access to an individual Lesson from the Lesson Library, as ordered by Client for its Users in accordance with the Order Form.
Liability:
has the meaning given to it in Clause 11.
Licence:
means the licence granted under Clause 2.
Licence Fee:
means the fee set out in the Order Form (or otherwise expressly agreed in writing between Circus Street and Client) for Users' access to the Lesson Licences and Full Access Licences.
Minimum Specification:
means any minimum technical specification for accessing the Product, provided by Circus Street in the App, on the Website or to Client or User from time to time.
Order Form:
means the order form in the form stipulated or provided by Circus Street, containing details of the specific products or services to be supplied by Circus Street to Client and of the fees to be paid to Circus Street by Client.
Product:
means the web-based and/or app-based training product specified in the Order Form and supplied by Circus Street, and any other related documentation or material supplied by Circus Street in conjunction with that product.
Product Content:
means any information and materials (including works of authorship, files, processes, systems, ideas, know-how, concepts, methodologies, flowcharts, manuals, data, databases, digital content, database structures, content, descriptions, documents, notes, records, results, reports, text, research, lists, diagrams, artwork, designs, sketches, models, photographs, drawings, plans, specifications, images, logos, styles and graphics (in whatever form and on whatever media)) provided by Circus Street from time to time as part of the Product.
Product Developments:
means any modules, configurations or customisations to the Lessons or their delivery or provision that are developed by Circus Street for Client.
Product Specification:
means any specification for the Product, provided by Circus Street on the Website, in the App or in writing to Client from time to time.
Registration:
means the uploading of individual user details by or on behalf of Client or User (or Circus Street on behalf of Client) onto the Product, Website or the App or otherwise as permitted by Circus Street, to create an account for a user in order for the user to access the Product (and "Registered" shall be construed accordingly).
Renewal Access Term:
has the meaning set out in Clause 7.2.
Services:
means the Hosted Service or Consultancy Services.
Terms and Conditions:
means these Circus Street London Limited client terms and conditions, together with any variations made in accordance with Clause 14.9.
Terms of Service:
means the standard terms of service which Circus Street requires users to agree to from time to time in relation to their access to and use of the Lessons.
User:
means an employee, officer, director or contractor (acting in a similar role to an employee) or authorised representative of Client who is Registered and Enrolled pursuant to the Order Form.
User Data:
means any data about Users obtained by Circus Street, including relating to the use of the Lessons by Users.
Websites:
means the Circus Street websites, whose URLs are currently circusstreet.com or any relevant sub domain, such as my.circusstreet.com or a Client specific sub domains, where "my" is substituted with a Client name e.g. [customername.circusstreet.com].

2. Grant of Licence

2.1 In consideration of Client’s payment of the Licence Fee and Client’s compliance with this Agreement and all Users’ compliance with the Terms of Service, Circus Street hereby grants to Client a non-exclusive, non-transferable, non-sublicensable licence to access and use the Product and Product Content and to permit Users to access and use the Product and Product Content by way of the Hosted Service, in each case only during the relevant Access Term and in accordance with this Agreement.

2.2 Client shall use the Product and Product Content for Client’s ordinary internal business purposes and shall not make the Product or Product Content available for use or access by any third party, except to the extent that Circus Street expressly permits in writing.

2.3 Client may enable each User to print off extracts from the Product in hard copy but solely for their own use in accordance with this Clause 2 and provided that any and all copyright and proprietary notices are kept intact. Client shall not otherwise copy, reproduce, alter, vary or modify the Product or Product Content or use the Product or Product Content or transfer the Product or Product Content to any third party, nor allow a User to do so.

2.4 Any rights in respect of the Product or Product Content not expressly granted in this Agreement by Circus Street are reserved.

3. Users and Administrators

3.1 Client shall procure that each User agrees to comply with, and does comply with, the Terms of Service. Client shall be liable for any failure by a User to comply with the Terms of Service.

3.2 Client shall Register its Users through its Administrator. Client undertakes that the maximum number of Users or Lesson Licences or Full Access Licences that it Registers and allows to Enrol, shall not exceed the number of Users or Lesson Licences or Full Access Licences permitted in the Order Form (or as otherwise expressly agreed in writing by Circus Street). If Client would like to make access to the Product available to any more Users or for any more Lesson Licences or Full Access Licences than is permitted within the parameters ordered, then it shall first contact Circus Street to discuss and pay for any additional Licence Fee with a new Agreement for new Lesson Licences or Full Access Licences (and Access Term for those additional Users or Lesson Licences and Full Access Licences), and Client shall pay any additional Licence Fee for the new Lesson Licences and Full Access Licences prior to such access. The amount for payment of the new Lesson Licences and Full Access Licences shall be as set out in the Order Form or agreed in writing between Client and Circus Street (or otherwise according to Circus Street’s standard rates from time to time for additional Users or Lesson Licences or Full Access Licences). Circus Street may provide data or information to help Client to monitor how much of the Lesson Licences or Full Access Licences have been used, but it is Client's responsibility to check that it has ordered sufficient Lesson Licences and Full Access Licences for its Users and obtain new Lesson Licences and Full Access Licences as it needs for its purposes.

3.3 Client undertakes that:

(a) it will not (except to the extent that the Order Form provides otherwise or Circus Street expressly agrees in writing) allow any username or password assigned to a User during Registration or for Enrolment to be used by more than that one individual User or to be transferred to any other User;

(b) the passwords for the Users and Administrators are kept strictly confidential and shall not be disclosed to any third party, including other Client personnel, without Circus Street’s prior written consent;

(c) it will use all reasonable endeavours to prevent any access to or use of the Product by anyone other than the User;

(d) it shall be liable for any use of or access to the Product using a User’s username and password;

(e) the User is at all times an employee, officer, director or contractor (acting in a similar role to an employee) or authorised representative of Client and for whom Client has already Registered as a User with Circus Street and has paid the Licence Fee or (in accordance with the terms of this Agreement) has agreed to pay the Licence Fee to Circus Street for such User to have access to and use of the Product and Product Content;

(f) it has obtained permission from the owners of any mobile telephone or handheld devices (if not owned by Client or User) that are being used to access the Product to download the App onto such devices; and

(g) it accepts responsibility in accordance with the terms of this Agreement for the use of the App or the Product on or in relation to any mobile telephone or handheld devices, whether or not they are owned by Client or User.

3.4 Client shall:

(a) inform Circus Street in writing immediately if it becomes aware or suspects that the Product or a password or username is being used or accessed by anyone other than the relevant User or Administrator or by anyone who is no longer a User or an Administrator, in which case Circus Street shall be entitled to cancel that password or username and/or disable access to and use of the Product without notice to Client or User or Administrator in addition to any other rights and remedies it may have; and

(b) pay Circus Street for all losses, damages, costs and expenses reasonably suffered or incurred by Circus Street (including loss of revenue) as a result of any unauthorised use of or access to the Product or any username or password caused by the Client’s breach of Clauses 3.2 or 3.3.

3.5 Circus Street reserves the right to edit, amend or issue new usernames and passwords or require Client or Users or Administrators to change a username or password at any time.

4. Client Responsibilities

4.1 Client shall not use or access the Product for any illegal or unlawful purpose, or any purpose which may bring Circus Street, or its business, products or the services provided by Circus Street under this Agreement, into disrepute.

4.2 Client shall comply with all reasonable instructions as to the use of and access to the Product which may be given by Circus Street from time to time in writing or posted on the Product, the App or on the Website from time to time.

4.3 Client shall be responsible for ensuring that the Client Systems meet the Minimum Specification. Circus Street shall not be responsible for any failure of Client or a User to access the Product to the extent caused by a failure of Client Systems or Client to ensure that the Client Systems meet the Minimum Specification.

4.4 Client hereby grants to Circus Street a non-exclusive, non-transferrable licence to use the Client Content until expiry of the relevant Access Term only for the purposes of providing the Services under this Agreement.

4.5 Client shall not knowingly or negligently upload, post, publish, transmit or transfer to the Product, the App or Website or Circus Street any Client Content or any software, files or other material, which:

(a) is, defamatory, illegal, obscene, threatening, abusive, or offensive (or is likely to be perceived as such);

(b) is in breach or infringement of any Intellectual Property Rights;

(c) is a Contaminant or otherwise likely to cause damage to, or adversely affect, data, software or the performance or availability of the Product, the App or Website; or

(d) is in breach of any applicable law, regulation, bye-law, code of practice, licence, permit, authorisation or registration.

Without prejudice to the other rights and remedies of Circus Street, Circus Street reserves the right to remove or amend any such software, files, Client Content or material which would contravene these prohibitions.

4.6 Client shall not:

(a) interfere with any other person’s use of a Product, the App or the Website or otherwise act in a way that negatively affects another customer’s or user’s use of the Product, the App or Website; or

(b) cause any of the Product, the App or Website to be interrupted, damaged, rendered less efficient or in any way impaired.

4.7 Save as may be expressly stated otherwise, Circus Street does not monitor, approve, endorse or exert editorial control over any Client Content, other subscribers or third parties, and, accordingly, Circus Street gives no warranty, representation or undertaking in respect of such information.

4.8 From time to time, Circus Street may issue updates to the App. Depending on the update, Client and/or a User may not be able to access or use some or all of the Product until Client and/or User has downloaded the latest version of the App and accepted any new terms.

4.9 Client shall take its own copies of User Data when it needs, or shall request from Circus Street the delivery of User Data in a format reasonably required as part of Circus Street's provision of Consultancy Services.

5. Support

5.1 During the Access Term, as part of the overall Hosted Service, Circus Street shall provide support services to the Client's Administrator (by email or telephone) during its regular support hours on Business Days.

5.2 Client shall, only through the Administrator, report any problems or errors to email support@circusstreet.com, giving full details of: (a) Client’s information; (b) the relevant User; (c) a full description of the problem or error; and (d) any other relevant information reasonably requested by Circus Street.

5.3 Circus Street shall not provide support services where problems or errors result from: (a) use of the Product contrary to Circus Street's instructions or this Agreement; (b) Client’s or User’s negligence; or (c) a malfunction of hardware, Client Systems or any software other than the Product itself.

6. Intellectual Property Rights

6.1 Client hereby acknowledges that, as between it and Circus Street, all Intellectual Property Rights in the App, the Product and all Product Content are owned by or licensed to Circus Street. Save for the Licence, nothing in this Agreement shall operate to transfer or grant any rights in any Intellectual Property Rights in the App, the Product or Product Content to Client or User or any person.

6.2 Circus Street shall own all Intellectual Property Rights in Product Developments, subject to it either replacing any Client Content with generic content or reproducing such Product Developments without Client Content. To the extent that Circus Street is not otherwise the owner, Client hereby assigns to Circus Street (by way of present and future assignment of copyright) all such Intellectual Property Rights in Product Developments (without Client Content).

6.3 Circus Street hereby acknowledges that, as between it and Client, all Intellectual Property Rights in the Client Content are owned by or licensed to Client. Save for the Client Content licence in this Agreement, nothing in this Agreement shall operate to transfer or grant any rights in any Intellectual Property Rights in the Client Content to Circus Street or any person.

6.4 Circus Street reserves the right to revise or amend the format and/or content of the Product and Product Content from time to time, provided that if it does so, it shall attempt to ensure that there is no adverse change in the content, quality or performance of the Product or the Product Content.

6.5 Except to the extent expressly permitted in this Agreement or at law, Client shall not reproduce, download, copy, publish, post, broadcast, transmit, disseminate, sell, license, distribute, circulate, make available, alter, vary, modify, translate, disassemble, decompile, recompile or reverse engineer the Product or infringe Circus Street’s Intellectual Property Rights, or enter into an arrangement, agreement or understanding which would or might allow or encourage a third party to do so. Circus Street shall make available any necessary interoperability information on request, subject to Client first paying Circus Street’s reasonable fee for providing such information. Any reproduction of the Product or Product Content shall be the property of Circus Street.

6.6 Client shall promptly inform Circus Street in writing in the event that it becomes aware of any unauthorised use of or access to the Product or any actual or suspected infringement of any of Circus Street’s Intellectual Property Rights, and Client shall provide all further co-operation reasonably requested by Circus Street.

6.7 Circus Street shall promptly inform Client in writing in the event that it becomes aware of any unauthorised use of or access to the Client Content or any actual or suspected infringement of any of Client's Intellectual Property Rights, and Circus Street shall provide all further co-operation reasonably requested by Client.

6.8 In the event of any claim being brought against Client or User that the normal use of the Product in accordance with this Agreement infringes the Intellectual Property Rights of a third party (a “Claim”), Circus Street shall indemnify Client against any damages that are awarded by a court of competent jurisdiction or agreed by way of settlement to be paid to any such third party in respect of such Claim provided that Client:

(a) as soon as reasonably practicable informs Circus Street in writing of any such Claim of which Client becomes aware;

(b) does not make any admission as to liability or compromise or agree any settlement of the Claim without Circus Street’s prior written consent of (such consent not to be unreasonably withheld or delayed), or otherwise prejudice Circus Street or any other third party’s defence of such Claim;

(c) gives Circus Street, or such person as Circus Street shall direct, immediate and complete control of the conduct or settlement of all negotiations and litigation arising from the Claim; and

(d) upon payment of its reasonable costs, gives Circus Street, and other third parties as Circus Street directs, all reasonable assistance with the conduct or settlement of any such negotiations or litigation.

The indemnity in this Clause 6.8 shall not apply to the extent that any Claim arises out of Circus Street's use of any Client Content, in which event Client shall instead indemnify Circus Street on like terms under this Clause 6.8. The indemnified party shall always act reasonably and use its reasonable endeavours to mitigate any Claims.

6.9 Client shall permit Circus Street and Circus Street’s representatives at all reasonable times and on reasonable prior written warning to enter such places and inspect such equipment under Client’s control and monitor Client’s and User’s use of and access to the Product (whether remotely or not) to verify that Client and Users are complying with the terms of this Agreement and the Terms of Service and not infringing Circus Street’s or its licensors' Intellectual Property Rights.

6.10 Client acknowledges that it has no right to have access to the App in source code form.

7. Term

7.1 Except to the extent that the Order Form expressly provides to the contrary, this Agreement shall commence on the Commencement Date and (subject to earlier termination under this Agreement) shall continue until the Launch Date and then for the Initial Access Term and successive Renewal Access Terms.

7.2 Unless this Agreement is terminated earlier in accordance with its terms or unless the Order Form provides otherwise, this Agreement shall automatically continue for a renewal access term upon the expiry of the Initial Access Term or upon the expiry of a previous renewal access term, with each renewal access term being a 12 month period unless the Order Form provides otherwise (each, a “Renewal Access Term”). This Agreement may be terminated by either Circus Street or Client giving no less than one month’s notice to the other, such notice to expire on the last day of the Initial Access Term or of a Renewal Access Term.

7.3 If Client has ordered Lesson Licences or Full Access Licences but not Enrolled all Users or not all Lesson Licences covered within the order have been used or accessed within the relevant Access Term, the rights for access to those Lesson Licences and Full Access Licences shall expire notwithstanding that they have been paid but remained unused by Client.

8. Fees and Payments

8.1 Unless otherwise expressly agreed in writing by Circus Street, Client shall pay the Licence Fee in advance of Client’s and Users’ ability to access or use any of the Lessons within the Lesson Licence or Full Access Licence for the Initial Access Term on or before the Launch Date, and for each subsequent Renewal Access Term on or before the commencement of the relevant Renewal Access Term.

8.2 Circus Street may increase the Fee by no less than two months’ prior written warning to take effect at the start of a Renewal Access Term.

8.3 Unless otherwise expressly agreed in writing by Circus Street, Client shall pay the Consultancy Services Fee monthly in arrears for the Consultancy Services supplied in that month (provided that Circus Street may require payment for any known Consultancy Services Fees in advance of providing the Consultancy Services).

8.4 All sums due to Circus Street are exclusive of VAT and other duties or taxes (if applicable) which Client shall pay to Circus Street in addition at the same time as payment of the Fee.

8.5 Payment shall be in the currency of England from time to time.

8.6 Payment of all sums due under this Agreement shall be made by Client without any set-off, deduction or withholding whatsoever.

8.7 Circus Street shall issue an invoice to Client for the Fee.

8.8 Client shall pay Circus Street for the Fee in accordance with Clause 8.1 (and in any event within 28 days of the date of Circus Street’s invoice). Client shall pay Circus Street by any payment method reasonably stipulated by Circus Street or otherwise agreed in writing by the parties.

8.9 No payment shall be considered to be paid until it is received by Circus Street in cleared funds. Client and its Users shall not have a right to access or use a Lesson until Client has paid the relevant Fee and taxes applicable in full.

8.10 If the laws of any part of the territory where Client is based require Client to withhold tax on any payment which Client is obliged to make to Circus Street under this Agreement, the parties shall use their respective reasonable endeavours to conduct their accounting arrangements where legally possible to avoid the application of withholding tax (such as for Client to contract and pay through a company in a jurisdiction where withholding tax would not apply). If withholding tax does apply, Client shall:

(a) obtain a proper receipt and discharge for the tax so deducted and forward it without delay to Circus Street;

(b) do all such other things and take such other steps as may be reasonably required to enable Circus Street to obtain any tax credit which may be available to it; and

(c) in the event that any taxes deducted cannot be reclaimed, at such time as Circus Street reasonably requires make up to Circus Street any shortfalls in payment attributable to such tax deductions.

8.11 If Client is late in paying any part of any monies due to Circus Street (under this Agreement or any other agreement between Circus Street and Client), Circus Street may (without prejudice to any other right or remedy available to it whether under this Agreement or any other agreement between Circus Street and Client or by any statute, regulation or by-law) do either or both of the following:

(a) charge interest and other charges on the amount due but unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly; or

(b) give Client at least five Business Days’ notice that it is suspending Client’s and Users’ access to the Product with immediate effect until Circus Street receives the outstanding amounts in full.

9. Suspension and Termination

9.1 In addition to its rights to suspend under Clause 8.11, Circus Street reserves the right to suspend or disable access to and use of the Product by Client and Users if:

(a) Circus Street reasonably suspects that Client or any User is in breach of this Agreement (or any other agreement between Circus Street and Client) or the Terms of Service; or

(b) Circus Street reasonably believes that there is likely to be or has been a breach of security, or misuse of any username or password of Client or its Users or use of the Product by an individual or organisation who is not (or no longer) a User; or

(c) Client or any User is misusing the Product or infringing Circus Street’s Intellectual Property Rights. This suspension may be without notice and whether by use of a code, by disabling access on its servers, by remote access or by physical attendance at any place where the Product is being accessed from or otherwise.

If Circus Street suspends or disables access to and use of the Product by Client and Users pursuant to this Clause 9.1, it shall promptly inform Client following such suspension providing Client with reasons for such suspension in order that Client can address the concerns raised by Circus Street and/or remedy the same to Circus Street's reasonable satisfaction, at which point Circus Street shall lift the suspension.

9.2 Either Circus Street or Client may terminate this Agreement by notifying the other party with immediate effect if:

(a) the other party is in material breach of any of its obligations under this Agreement or any other agreement between the parties which are incapable of remedy;

(b) the other party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Agreement or any other agreement between the parties after having been required in writing to remedy such breach within a period of no less than 30 days; or

(c) the other party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts as they come due, or enters into any compromise or arrangement with any of its creditors (other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party), or an order is made or a resolution is passed for the winding-up of the other party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other party or a receiver or manager or administrative receiver is appointed in respect of all or any of the other party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.

9.3 Upon termination or expiry of this Agreement:

(a) Client shall, and shall procure that all Users shall, immediately cease accessing and using the Product and any Product Content and Hosted Service and cease using any username or password in relation to the Product and Hosted Service;

(b) each party may at its option require the other party to promptly delete the Confidential Information of the other party from any computer disks, devices, tapes, memory, storage or other material in that other party's possession or under that other party's control or promptly deliver up or destroy materials and tangible items in that other party's possession or under that other party's control which contain any Confidential Information of the party requiring the action (and this includes Client procuring that Users do likewise). Each party may require an authorised representative of the other party to provide a written declaration, signed by an officer or other authorised individual, stating that there has been full compliance with this Clause 9.3(b);

(c) Client shall, and shall procure that all Users shall, immediately delete or remove the App from all Client Systems and immediately destroy all copies of the App in their possession, custody or control;

(d) in the event of termination by Client pursuant to Clause 9.2, Circus Street shall pay to Client an amount equivalent to the Licence Fee pro rated to reflect the unused Access Term;

(e) subject to Client paying any applicable Consultancy Services Fees in advance, promptly following Client's written request, Circus Street shall provide or make available User Data in a form reasonably required by Client; and

(f) unless Client requires Circus Street to remove the User Data beforehand, Circus Street may in any event delete any User Data between 12 and 24 months after the termination or expiry of this Agreement.

9.4 Termination or expiry of this Agreement will be without prejudice to any other rights or remedies which the parties may be entitled to under this Agreement or at law and will not affect any accrued rights or liabilities of either party nor the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination or expiry.

10. Warranties and Disclaimers

10.1 Circus Street warrants that it:

(a) shall, from the Launch Date, provide pre-assessments and access to the Lessons within the Lesson Licences and Full Access Licences ordered by Client for the Users through the provision of a log-in facility or, if the User already has a log-in, Circus Street's provision of the availability of a pre-assessment and access to the Lessons;

(b) shall use reasonable skill and care in the provision of the Services and performance of its obligations under this Agreement in accordance with Good Industry Practice;

(c) has full capacity and authority to enter into this Agreement;

(d) shall (subject to any other provision in this Agreement) provide access to the relevant part of the Product and Hosted Service in accordance with the Product Specification to the Users during the Access Term;

(e) shall use its reasonable endeavours in accordance with Good Industry Practice not to introduce into the Hosted Service any Contaminants; and

(f) shall use an industry-recognised security software program (to which latest recent patches and updates have been applied) in accordance with Good Industry Practice to detect the presence of any Contaminant and that, upon detection of any Contaminant, it shall be promptly eradicated or quarantined by Circus Street.

10.2 Save as set out in Clause 10.1 above, Circus Street gives no warranty:

(a) as to the accuracy, completeness or suitability of the Product or Product Content or Lesson, or that the Product or Product Content or Lesson or the App or Website will meet Client’s or User’s present or future specific individual needs or requirements (other than to meet any Consultancy Services that Circus Street is required to provide);

(b) that the Product will be compatible with the Client Systems other than those meeting the Minimum Specification; or

(c) that access to the Hosted Service, Product, the App or Website will be delivered without interruption, fault or error. It may be necessary to suspend or restrict access to the Hosted service, Product, the App or Website at any time for any reason including for any urgent or planned maintenance.

10.3 Circus Street shall use its reasonable endeavours to ensure that the information and ideas contained, suggested or referenced in the Product and Product Content are accurate and up-to-date, and the Product and Product Content are for general guidance only; Client agrees that it is its responsibility to obtain professional or specialist advice before taking, or refraining from, any action on the basis of the Product or any Product Content.

10.4 Except as expressly set out in this Agreement, all warranties, conditions, undertakings or terms, express or implied, are hereby excluded to the fullest extent permissible by law.

10.5 Circus Street 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 not within its control, including the internet, and Client acknowledges that access to the Hosted Service, Product, the App or Website may be subject to limitations, delays and other problems inherent in the use of such communications facilities, and accordingly Circus Street does not warrant that access to the Hosted Service, Product, the App or Website will be uninterrupted or error-free or that it will be available at any particular speed.

10.6 The Product, the App, the Website or email alerts may include links to third party websites which are beyond Circus Street’s control. Circus Street does not endorse such websites or their content and makes no representations as to the quality, suitability, functionality or legality of any such websites. Client hereby agrees to waive any claim they may have against Circus Street with respect to such websites.

10.7 Although Circus Street uses a firewall and takes steps against Contaminants in accordance with Good Industry Practice, Circus Street cannot guarantee 100% security and shall not have any Liability for damage to, unauthorised access to, or viruses or other code that may affect, the Product Content or any computer equipment, software, data or other property. Circus Street shall also not have any Liability for the actions of third parties in breaching any security measures.

11. Liability

11.1 No party excludes or limits its Liability for: (a) its fraud; or (b) death or personal injury caused by its Negligence; or (c) any infringement of the other party’s Intellectual Property Rights; or (d) any Liability which cannot be excluded or limited by applicable law.

11.2 Subject to Clause 11.1, each party does not accept and it hereby excludes any Liability for Negligence other than any Liability arising pursuant to the terms of this Agreement.

11.3 Subject to Clause 11.1, no party shall have any Liability in respect of any: (a) indirect or consequential losses, damages, costs or expenses; (b) loss of actual or anticipated profits; (c) loss of contracts; (d) loss of use of money; (e) loss of anticipated savings; (f) loss of revenue; (g) loss of goodwill; (h) loss of reputation; (i) ex gratia payments; (j) loss of business; (k) loss of operation time; (l) loss of opportunity; or (m) loss of, damage to or corruption of, data; whether or not such losses were reasonably foreseeable or the party in default or its agents had been advised of the possibility of the other incurring such losses. For the avoidance of doubt, Clauses 11.3 (b) to (m) apply whether such losses are direct, indirect, consequential or otherwise.

11.4 Subject to Clauses 11.1 and 11.3, the total aggregate Liability of each party for all causes of action arising in each Agreement Year shall be limited to the greater of: (a) £5,000; or (b) 110% of the total sums paid and total other sums payable, in aggregate, by Client to Circus Street under this Agreement, in that Agreement Year.

11.5 In this Agreement: (a) "Liability" means liability in or for breach of contract (including liability under any indemnity), Negligence, tort (whether deliberate or not), misrepresentation, restitution, breach of statutory duty or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to "this Agreement" shall be deemed to include any collateral contract); and (b) "Negligence" means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).

11.6 Force Majeure: Neither Circus Street nor Client shall have any Liability under or in connection with this Agreement if it is hindered or prevented from or delayed in performing any of its obligations under this Agreement, or from carrying on its business, by any act, event, omission or accident beyond its reasonable control, and regardless of whether the circumstance could have been foreseen (including, without limitation, any act of God, actions or omissions of third parties not in the same group as the party seeking to rely on this clause, insurrection, riot, civil war, civil commotion, war, armed conflict, sanctions, embargo, national emergencies, actual or threatened or suspected terrorism, strikes or combinations or lock-out of workmen, unusual travel restrictions, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, earthquake, volcano, ash cloud, natural disaster, accident, mechanical breakdown, third party software or infrastructure or communications, cyber-attack, collapse of building structures, failure of machinery or third party computers or third party hardware or vehicles (other than used by the relevant party), failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), or shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation). Each party shall inform the other party in writing of such an event and its expected duration.

12. Confidentiality

12.1 Neither party shall use or disclose the Confidential Information of the other party except:

(a) for the purposes of the proper performance of its obligations or exercise of its rights under this Agreement; (b) as otherwise permitted by this Agreement; or

(c) with the prior written consent of the other party.

12.2 A party may disclose Confidential Information of the other party to its User, Administrator, employee, officer, director, contractor, consultant, subcontractor, supplier, customer, agent, professional adviser, insurer or third party service provider, where necessary to exercise its rights or properly perform its obligations under this Agreement, provided that it shall do so subject to obligations equivalent to those set out in this Clause 12. Each party shall use all reasonable endeavours to ensure that any such User, Administrator, employee, officer, director, contractor, consultant, subcontractor, supplier, customer, agent, professional adviser, insurer or third party service provider complies with such obligations..

12.3 If either party is required to disclose the Confidential Information of the other party under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction, then the party so required may disclose the Confidential Information to the extent required but shall, prior to any disclosure where practicable and legally permissible, give the other party as much warning thereof as practicable and inform in writing and consult with the other party and, at the other party's request and cost, fully co-operate with and assist that other party in opposing any such disclosure..

12.4 The obligations of confidentiality in this Clause 12 shall not extend to any matter which either party can show:

(a) is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or

(b) was in its written records prior to receipt; or

(c) was independently developed by it; or

(d) was independently disclosed to it by a third party entitled to disclose the same and not subject to a confidentiality obligation..

12.5 Circus Street may identify Client as its client and the type of Services provided by Circus Street to Client, provided that in doing so Circus Street shall not (without Client’s prior written consent) reveal any Confidential Information of Client.

12.6 The obligations of this Clause 12 shall continue after termination or expiry of this Agreement for whatever reason.

13. Data Protection

13.1 In performing this Agreement, Client and Circus Street shall:

(a) comply with all applicable Data Protection Laws; and

(b) procure that its Users, Administrators, employees, officers, directors, contractors, consultants, subcontractors and suppliers, comply with all applicable Data Protection Laws.

13.2 The parties agree that, to the extent possible, Client shall ensure that any data is anonymised and does not contain any Personal Data, before it is provided to Circus Street. The parties agree and acknowledge that to the extent that the data provided by Client or a User or an Administrator to Circus Street contains Personal Data (which may include User Data and Personal Data about an Administrator) and in respect of Circus Street's obligations under this Agreement as to any such "Personal Data", Circus Street is merely a "Data Processor" and Client is the "Data Controller" (as those terms, together with the terms "processing" and “process” and "Data Subject" are defined in the Data Protection Laws), and the following provisions in this Clause 13 apply in respect of such Personal Data.

13.3 Circus Street shall process the Personal Data only to the extent, and in such a manner, as is necessary for the purposes of providing the Services under this Agreement and in accordance with Client's documented instructions from time to time and shall not process the Personal Data for any other purpose.

13.4 In accordance with Client's reasonable request, Circus Street shall provide sufficient guarantees to Client as to Circus Street's processing of the Personal Data and in accordance with Data Protection Laws. As Data Controller, Client shall take overall responsibility for ensuring that Circus Street's processing complies with Data Protection Laws and Client shall provide confirmation to Circus Street that Circus Street's measures are sufficient to comply with Data Protection Laws. Where necessary, Client shall engage its own experts to verify this.

13.5 Circus Street shall promptly comply with any reasonable request from Client requiring Circus Street to provide details of the Personal Data or amend, transfer or delete the Personal Data (whether or not at Client's request, or in response to a Data Subject's rights under Data Protection Laws), provided that Client shall reimburse Circus Street for any reasonable costs and expenses incurred in complying.

13.6 Circus Street warrants that, where it processes Personal Data, it shall take appropriate security measures to conform to Data Protection Laws, including appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to the risk in accordance with Data Protection Laws.

13.7 Circus Street shall inform Client immediately in writing if it becomes aware of any unauthorised or unlawful processing, loss of, damage to or destruction of, the Personal Data.

13.8 Client shall take overall responsibility for any Personal Data breach obligations under Data Protection Laws. Circus Street shall conform to the reasonable requirements of Client in respect of Personal Data breach notification requirements under Data Protection Laws, provided that Client shall reimburse Circus Street for any reasonable costs and expenses incurred in doing so.

13.9 Circus Street shall not transfer the Personal Data outside the United Kingdom (of England, Wales, Scotland and Northern Ireland) or European Economic Area without the express prior written consent of Client, except to:

(a) Circus Street's sub-processor who assists with providing support services for Circus Street; or

(b) Circus Street's sub-processor who provides communications by email on behalf of Circus Street; or

(c) Circus Street's affiliates in other countries, to assist Circus Street with an efficient provision of Circus Street's services to Client (including for provision of available assistance, information and reporting to Client);

in each case solely for that purpose. Where any such transfer does take place, Circus Street shall do so on a basis which complies with Data Protection Laws.

13.10 Client shall ensure that its instructions and requirements under this Agreement conform with all Data Protection Laws.

13.11 Client shall be responsible as Data Controller with providing each Data Subject (including the relevant Users and Administrators) at the appropriate time with a transparency or information notice (including describing the data, purpose, legal basis for processing, recipient, duration and the Data Subject's rights) to ensure fair and lawful processing of the Personal Data in accordance with Data Protection Laws.

13.12 Client agrees that Circus Street may authorise a third party (sub-processor) to process the Personal Data on behalf of Circus Street (for the provision of hosting services, support services, communications by email and the provision of assistance, information and reporting to Client), provided that:

(a) Circus Street's contract with the sub-processor is on terms which fully reflect and do not contradict or override those set out in this Clause 13;

(b) the sub-processor's rights and obligations in relation to the processing of Client's Personal Data terminate automatically on termination of this Agreement for any reason; and

(c) Circus Street informs Client in writing of any intended changes concerning the addition or replacement of sub-processors, thereby giving Client a reasonable opportunity to make known to Circus Street any concerns that Client may have.

13.13 Circus Street shall provide all reasonable assistance and co-operation with Client at Client's cost and allow Client to conduct audits or otherwise demonstrate compliance at reasonable times and on reasonable prior written warning at Client's cost, in order to ensure and demonstrate compliance with Data Protection Laws.

13.14 The terms defined in this Clause 13 shall be construed in accordance with any change in definitions in Data Protection Laws from time to time. For example, a reference to "Data Controller" shall, once the GDPR applies, be construed as a reference to "controller" as that term is defined in the GDPR.

14. General

14.1 These Terms and Conditions are personal to Client, who shall not (and shall not purport to) assign, sub-license, transfer, novate, charge or otherwise encumber, create any trust over or deal in any manner with this Agreement or any of its rights, liabilities or obligations under this Agreement without the prior written consent of Circus Street. Circus Street may subcontract its obligations under this Agreement (including to a third party provider of hosting services, development services, assistance with support or communications) and may assign, transfer or novate its rights, liabilities or obligations under this Agreement either in whole or in part to any other person, firm or company; Circus Street shall promptly give notice to Client of any such assignment, transfer or novation.

14.2 Any notice required or authorised to be given under this Agreement shall be in writing and served by personal delivery or by recorded delivery (if sender and recipient are both in the same country) or overnight courier or by facsimile or by email using an Electronic Signature Provider addressed to the relevant party at its address stated in this Agreement or at such other address or facsimile number or email address as is notified by the relevant party to the other party for this purpose from time to time or at the address or facsimile number or email address of the relevant party last known to the other party. Any notice shall take place at the time that the sender can prove it was received.

14.3 Unless a party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either party in exercising any power, right or remedy under this Agreement or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that party's other powers, rights or remedies under this Agreement or at law.

14.4 If any provision of this Agreement shall be held to be unlawful, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be severed from this Agreement and rendered ineffective as far as possible without modifying or affecting the legality, validity or enforceability of the remaining provisions of this Agreement which will remain in full force and effect.

14.5 This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, statement, warranty or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. A party shall not have any remedy in respect of any untrue statement made by the other party upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party's only remedies shall be for breach of contract as provided in this Agreement.

14.6 This Agreement constitutes the whole agreement and understanding of the parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.

14.7 The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Client or User whether such terms and conditions are contained in a purchase order, document or otherwise.

14.8 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement, and nothing in this Agreement shall confer or purport to confer on any third party any benefit or any right to enforce any term of this Agreement or operate to give any third party the right to enforce any term of this Agreement.

14.9 Circus Street may:

(a) make minor changes to this Agreement or any Terms of Service at any time without notice to Client or User by posting changes online either through the Product, the Website or the App. Client and User are responsible for regularly reviewing information posted through the Product, the Website or the App in order to obtain timely warning of such changes. Continued access or use of the Product by Client or User after such changes have been posted constitutes acceptance of such changes. At Circus Street's option, Client or User may be required to read and accept any changes to this Agreement and the Terms of Service in order to continue to use the Product; and

(b) make material changes to this Agreement by no less than two months’ prior written warning to Client to take effect at the start of a Renewal Access Term.

Subject to the foregoing, no variation of this Agreement shall be effective unless made in writing and expressly agreed between the parties to be such a variation.

14.10 This Agreement shall not operate so as to create a partnership or joint venture of any kind between the parties. Nothing contained in this Agreement shall be so construed as to constitute either party to be the agent of the other. Neither party shall have any authority to make any commitments on the other party’s behalf.

14.11 In the event of any irreconcilable conflict between the provisions of any of the documents within this Agreement, then the Order Form shall prevail over these Terms and Conditions.

14.12 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. All dealings, correspondence and contacts between the parties shall be made or conducted in the English language. If Client is domiciled:

(a) in the United Kingdom (of England, Wales, Scotland and Northern Ireland) or the European Union, the exclusive forum for settling any disputes which may arise out of or in connection with this Agreement shall be the English courts;

(b) outside the United Kingdom (of England, Wales, Scotland and Northern Ireland) and the European Union, any dispute which may arise out of or in connection with this Agreement shall be exclusively referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this Clause 14.12. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.

15. Interpretation

15.1 In this Agreement, unless the context otherwise requires:

(a) references to "Clauses" are to clauses of these Terms and Conditions;

(b) the headings are inserted for convenience only and shall not affect the interpretation or construction of this Agreement;

(c) words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;

(d) references to "written" or in "writing" (except in respect of sending a notice in accordance with Clause 14.2) includes in electronic form;

(e) references to "includes" or "including" or like words or expressions shall mean without limitation; and

(f) references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification).

Terms and Conditions

Version 1

Article I

Defined Terms And Order Form Provisions

Section I.1

Unless the context shall otherwise require, the following terms shall have the following meanings:

(a) “Access Term” means the Initial Access Term and any Renewal Access Term.

(b) “Affiliate” means a Person that directly or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with the person specified. For purposes of this definition, “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person whether through the ownership of voting securities, by contract or otherwise.

(c) “Agreement” includes the Order Form, any details in the registration process involving Customer or User and the Terms and Conditions, and any changes or amendments thereto in accordance with Section 13.9.

(d) “Agreement Year” means a period of 12 months commencing on the Commencement Date or on an anniversary of the Commencement Date.

(e) “App” means the mobile and tablet application software, the data supplied with the software and the associated media provided by the Licensor through which a User may access certain features of the Product from time to time.

(f) “Bundle” means a bundle of a number of Unique User Lessons ordered by Customer for its Users, as set out in the Order Form, and which may be access to: (a) an individual Lesson for a certain number of Users (“Bundle A”); (b) a Package for a certain number of Users (“Bundle B”); (c) a certain number of Unique User Lessons for a certain number of Users (“Bundle C”); or (d) a certain number of Unique User Lessons across any Users (“Bundle D”).

(g) “Business Day” means any day other than a (a) Saturday, (b) Sunday, or (c) day when banks are not open for business in The City of New York.

(h) “Commencement Date” means the date on which Customer agrees to the Order Form.

(i) “Confidential Information” means any information which is received by one Party from the other Party under or in connection with the Agreement and which is either marked as, or which a reasonable person would reasonably consider to be, confidential, whether disclosed or obtained before, on or after the date of the Agreement together with any reproductions of such information or any part of such information, and this includes (where Licensor is the discloser) the Product Content.

(j) “Customer” means the customer of Licensor who agrees to obtain access to the Product in exchange for payment of the Fee, and the information relating to which is more particularly set out in the Order Form.

(k) “Customer Content” means any Customer specific content, including Customer’s Confidential Information, used in or uploaded to the Product.

(l) “Customer Systems” means the computer systems operated by or for Customer and any mobile devices owned or provided to Users (whether or not provided to Users by Customer) and used in conjunction with the Product.

(m) “Enroll” means Customer's request with Licensor (using Licensor's process) for a Lesson to be accessed by an individual user Registered by Customer (and “Enrollment” shall be construed accordingly).

(n) “Fee” means the fee set out in the Order Form (or otherwise expressly agreed in writing between Licensor and Customer) for a User's access to the Lesson or the Bundle.

(o) “Initial Access Point” means the point (following Customer's Enrollment for that User) at which a User is given access to a Lesson by Licensor, being the time from which Licensor first provides a log-in for the User to access that Lesson or Package (or, if the User already has a log-in, Licensor's provision of the availability of a pre-assessment and access to any of the Lessons or Package).

(p) “Initial Access Term” means the period of time during which the Lessons ordered may be accessed by a User, as may be set out in the Order Form, or (if not set forth therein) for a Bundle it shall in any event be for (i) a period of 12 months commencing on the Initial Access Point for that User for Bundle A, Bundle B or Bundle C; provided that the last date on which the “Initial Access Term” can start is the anniversary date that is 12 months after the Commencement Date; or (ii) a period of 12 months commencing on the Initial Access Point for the first Lesson for the first User for Bundle D (i.e., the 12 months being based across all Users of Customer instead of on an individual User basis).

(q) “Intellectual Property Rights” means all present and future rights in patents, trademarks, designs, trade or business names, domain names, copyright, database rights, topography rights, rights in know-how, trade secrets, rights of confidence and any other intellectual property right or right of a similar nature anywhere in the world, whether registered or unregistered, whether now known or hereafter invented and including applications for such rights and all extensions, renewals and reversions of such rights.

(r) “Lesson” means the part of the Product which is a distinct web-based training lesson identified as such by Licensor and made available for access to Customer or User from time to time.

(s) “Lesson Library” means the library of Lessons made available by Licensor for use or access by Customer and Users from time to time.

(t) “Liability” has the meaning given to it in Section 11.

(u) “License” means the License granted under Article II.

(v) “Licensor” means the party specified in or as contemplated as such in the Order Form.

(w) “Minimum Specification” means any minimum technical specification for accessing the Product, provided by Licensor on the Website or to Customer from time to time.

(x) “New Developments” means any modules, configurations or customizations developed specifically by Licensor for Customer.

(y) “Order Form” means the “offline” order form or the “online” sign-up process through the Website (which includes the process for adding a new Bundle of Lessons), in the form provided by Licensor and signed by Customer containing details of the specific products to be supplied by Licensor to Customer and of the Fees to be paid to Licensor by Customer.

(z) “Package” means a package for access to a group of Lessons, as stipulated by Licensor, being a set of particular Lessons from within the Lesson Library within a price plan (and which may be full access rights to the entire Lesson Library).

(aa) “Parties” means the Licensor and the Customer.

(bb) “Product” means the web-based training product specified in the Order Form, and any other related documentation or material supplied by Licensor in conjunction with that product.

(cc) “Product Content” means any information and materials (including works of authorship, files, processes, systems, ideas, know-how, concepts, methodologies, flowcharts, manuals, data, databases, database structures, content, descriptions, documents, notes, records, results, reports, text, research, lists, diagrams, artwork, designs, sketches, models, photographs, drawings, plans, specifications, images, logos, styles and graphics (in whatever form and on whatever media)) provided by Licensor from time to time as part of the Product.

(dd) “Product Specification” means any specification for the Product, provided by Licensor on the Website or in writing to Customer from time to time.

(ee) “Registration” means the uploading of individual user details by Customer (or Licensor on behalf of the Customer) onto the Product or Website or otherwise as permitted by Licensor, to create an account for a User in order for the User to access the Product (and “Registered” shall be construed accordingly).

(ff) “Renewal Access Term” has the meaning set out in Section 7.2.

(gg) “Subsidiary” means, with respect to any person or entity, any corporation, partnership, association or other business entity of which securities or other ownership interests representing more than 50% of the ordinary voting powers are at the time of determination, directly or indirectly, owned, controlled or held by another person or entity.

(hh) “Support Services” means the services set forth in an exhibit to the Order Form.

(ii) “Terms” means the License terms, together with any variations made in accordance with Section 13.9.

(jj) “Terms and Conditions” means the terms and conditions constituting part of the Agreement between the Licensor and the Customer.

(kk) “User” means an employee or authorized representative of Customer (or, if Customer is an individual, this shall be Customer) who is Registered and Enrolled.

(ll) “Unique User Lesson” means an individual User's access to an individual Lesson from the Lesson Library.

(mm) “Website” means the Licensor website, whose url is currently circusstreet.com.

Section I.2

By execution of the Order Form, Customer acknowledges that the Terms and Conditions shall be applicable to any such Order Form signed by the Customer. The Terms and Conditions are available to Customer at Licensor's Website.

Section I.3

In the event of any inconsistency between the provisions of the Order Form executed by the Customer and the Terms and Conditions, the provisions of the Order Form shall control.

Article II

Grant Of License

Section II.1

In consideration of Customer’s payment of the Fees and Customer’s and all Users’ compliance with the terms of the Agreement, Licensor hereby grants to Customer a non-exclusive, non-transferrable, non-sublicensable License to access and use the Product and Product Content and to permit Users to access and use the Product and Product Content, in each case only during the relevant Access Term and in accordance with the Agreement.

Section II.2

Customer and User shall use the Product and Product Content for Customer’s ordinary internal business purposes and shall not make the Product or Product Content available for use or access by any third party, except to the extent that Licensor expressly permits in writing.

Section II.3

Each User may print off extracts from the Product in hard copy solely for their own use in accordance with this Article II, provided that any and all copyright and proprietary notices are kept intact. Customer and User shall not otherwise copy, reproduce, alter, vary or modify the Product or Product Content or use the Product or Product Content or transfer the Product or Product Content to any third party.

Section II.4

Any rights in respect of the Product or Product Content not expressly granted in the Agreement by Licensor are reserved by Licensor and Customer shall have no rights therein or claims thereto.

Article III

Users

Section III.1

Customer shall cause each User to comply with any obligation or agreement to be performed or observed by a User in accordance with the Agreement, and Customer agrees with Licensor to cause each of its Users to do so.

Section III.2

In relation to Users, the Customer undertakes that the maximum number of Users or Unique User Lessons that it Registers and allows to Enroll shall not exceed the number of Users or Unique User Lessons permitted within the Bundle as specified in the Order Form (or as otherwise expressly agreed in writing by Licensor). If Customer would like to make access to the Product available to any more Users or for any more Unique User Lessons than is permitted within the parameters ordered, then Customer shall first contact Licensor to discuss and pay for any additional Fee with a new agreement for a new Bundle (and Access Term for those additional Users or Unique User Lessons), and Customer shall pay any additional Fee for the new Bundle (of such additional Users or Unique User Lessons) prior to such access. The amount for payment of the new Bundle (of such additional Users or Unique User Lessons) shall be as set out in the Order Form or agreed in writing between Customer and Licensor (or otherwise according to Licensor’s standard rates from time to time for additional Users or Unique User Lessons). Licensor may provide data or information to help Customer to monitor how much of its Bundle has been used, but it is Customer's responsibility to check that it has ordered sufficient Unique User Lessons for its Users and obtain a new Bundle as it needs for its purposes.

Section III.3

Customer agrees and shall cause each User so that:

(a) it will not allow any password or username assigned to a User during Registration or for Enrollment to be used by more than that one individual User or to be transferred or made available to any other User;

(b) the password for the User shall be kept strictly confidential and shall not be disclosed to any third party, including other Customer personnel, without Licensor’s prior written consent;

(c) User will use best efforts to prevent any access to or use of the Product by anyone other than the User;

(d) User shall be liable for any failure by the User to comply with the Agreement and for any use of the Product using a User’s username and password;

(e) User shall be at all times an employee, director or contractor (acting in a similar role to an employee) of Customer and which Customer has already Registered as a User with Licensor and has paid the Fee to Licensor for such User to have access to the Product and Product Content;

(f) it has obtained permission from the owners of any mobile telephone or handheld devices (if not owned by Customer or User) that are being used to access the Product to download the App onto such devices; and

(g) it accepts responsibility in accordance with the terms of the Agreement for the use of the App or the Product on or in relation to any mobile telephone or handheld devices, whether or not they are owned by Customer or User.

Section III.4

The Customer agrees and shall cause each User to:

(a) inform Licensor in writing immediately if it becomes aware or suspects that a password or username has become known by anyone other than the relevant User or by anyone not entitled to the use thereof, in which case Licensor shall be entitled to cancel that password or username in addition to any other rights and remedies such User may have; and

(b) indemnify Licensor for all losses, damages, costs and expenses suffered or incurred by Licensor (including loss of revenue) as a result of any unauthorized use of or access to the Product or any password or username caused by the Customer’s or the User’s breach of Section 3.2 or 3.3

Section III.5

Licensor reserves the right to edit, amend or issue new usernames and passwords or require Customer or Users to change a username or password at any time.

Article IV

Customer And User Responsibilities

Section IV.1

Customer and User shall not use the Product for any illegal or unlawful purpose, or any purpose which may bring Licensor, or its business, products or the services provided by Licensor under the Agreement, into disrepute or shall cause harm to the reputation of Licensor or adversely affect Licensor.

Section IV.2

Customer and User shall comply with all reasonable instructions as to the use of and access to the Product which may be given by Licensor from time to time in writing or posted on the Product or on the Website from time to time.

Section IV.3

Customer shall be responsible for ensuring that the Customer Systems meet the Minimum Specification. Licensor shall not be responsible for any failure of the Customer or a User to access the Product to the extent caused by a failure of Customer Systems or Customer to ensure that the Customer Systems meet the Minimum Specification.

Section IV.4

Customer hereby grants to Licensor a non-exclusive, non-transferrable License to use the Customer Content until the termination of the relevant Access Term only for the purposes of providing the services under the Agreement.

Section IV.5

Customer shall not knowingly or negligently upload, post, publish, transmit or transfer to the Product or Website or Licensor any software, files or other material, or use any Customer Content, which (a) is, defamatory, illegal, obscene, threatening, abusive, or offensive (or is likely to be perceived as such); (b) is in breach of any Intellectual Property Rights; (c) is likely to cause damage to, or adversely affect, data, software or the performance or availability of the Product or Website; (d) is in breach of any applicable law, regulation or code of practice; (e) contains any unauthorized advertising, promotion or solicitation; or (f) materially misrepresents facts which may be damaging or injurious to Licensor or its customers or users. Without prejudice to the other rights and remedies of Licensor, Licensor reserves the right to remove or amend any such software, files, Customer Content or material which would be a breach of these prohibitions.

Section IV.6

Customer shall not and shall cause Users to not:

(a) interfere with any other person’s use of a Product, the App or Website or otherwise act in a way that negatively affects another customer’s or user’s use of the Product or Website;

(b) cause any of the Product or Website to be interrupted, damaged, rendered less efficient or in any way impaired; or

(c) do anything which adversely affects Licensor’s interests.

Section IV.7

Except as may be expressly stated otherwise, Licensor does not monitor, approve, endorse or exercise editorial control over information posted by Customer or any User (including Customer Content), other subscribers or third parties, and, accordingly, Licensor gives no warranty, representation or undertaking in respect of such information and shall have no liability or obligation in connection therewith.

Section IV.8

From time to time Licensor may issue updates to the App. Depending on the update, Customer and/or a User may not be able to access or use some or all of the Product until the Customer and/or User has downloaded the latest version of the App and accepted any new terms.

Article V

Support

Section V.1

During the Access Term, Licensor shall provide support services to the Customer (by email or telephone) during the hours from 9:00 a.m. to 5:00 p.m. local time in New York on Business Days as provided in Exhibit A to the Order Form.

Section V.2

Customer and User shall report any problems or errors by email to support@circustreet.com, giving full details of: (a) the Customer’s information; (b) the relevant User; (c) a full description of the problem or error; and (d) any other relevant information reasonably requested by Licensor.

Section V.3

Licensor shall not provide support services where problems or errors result from: (a) use of the Product contrary to Licensor’s instructions or the Agreement; (b) Customer’s or User’s negligence; or (c) a malfunction of hardware, Customer Systems or any software other than the Product itself.

Article VI

Intellectual Property Rights

Section VI.1

Customer and User hereby acknowledge that, as between them and Licensor, all Intellectual Property Rights in the Product and all Product Content are owned by or licensed to Licensor. Except pursuant to the License, nothing in the Agreement shall operate to transfer or grant any rights in any Intellectual Property Rights in the Product or Product Content to any person (including Customer or any User).

Section VI.2

Licensor shall own all Intellectual Property Rights in New Developments, subject to it either replacing any Customer Content with generic content or reproducing such New Developments without Customer Content. To the extent that Licensor is not otherwise the owner, Customer and User hereby assign to Licensor (by way of present and future assignment of copyright) all such Intellectual Property Rights in New Developments without Customer Content.

Section VI.3

Licensor reserves the right to revise or amend the format and/or content of the Product and Product Content from time to time, provided that if it does so, it shall use reasonable efforts to ensure that there is no adverse change in the content, quality or performance of the Product or the Product Content.

Section VI.4

Except to the extent expressly permitted in the Agreement or at law, Customer and User shall not knowingly reproduce, copy, publish, post, broadcast, transmit, disseminate, sell, license, distribute, circulate, make available, alter, vary, modify, translate, disassemble, decompile, recompile or reverse engineer the Product or infringe Licensor’s Intellectual Property Rights, or enter into an arrangement, agreement or understanding which would or might allow or encourage a third Party to do so. Interoperability information is available from Licensor on request, subject to Customer first paying Licensor’s reasonable fee for providing such information. Any such action affecting the Product or Product Content shall be the property solely of Licensor.

Section VI.5

Customer and User shall promptly inform Licensor in writing in the event that it becomes aware of any unauthorized use of or access to the Product or any actual or suspected infringement of any of Licensor’s Intellectual Property Rights, and Customer and User shall provide all further co-operation reasonably requested by Licensor.

Section VI.6

In the event of any claim being brought against Customer or User that the normal use of the Product in accordance with the Agreement infringes the Intellectual Property Rights of a third party (a “Claim”), Licensor shall indemnify Customer and User against any damages that are awarded by a court of competent jurisdiction or agreed by way of settlement to be paid to any such third party in respect of such Claim provided that Customer and User: (a) as soon as reasonably practicable notifies Licensor in writing of any such Claim of which Customer or User becomes aware; (b) do not make any admission as to liability or compromise or agree to any settlement of the Claim without Licensor’s prior written consent thereto (such consent not to be unreasonably withheld or delayed), or otherwise prejudice Licensor or any other third party’s defense of such Claim; (c) give Licensor, or such person as Licensor shall direct, immediate and complete control of the conduct or settlement of all negotiations and litigation arising from the Claim; and (d) upon payment of their reasonable costs, give Licensor, and other third parties as Licensor directs, all reasonable assistance with the conduct or settlement of any such negotiations or litigation.

Section VI.7

Customer and User shall permit Licensor and Licensor’s representatives at all reasonable times and on reasonable prior written notice to enter such places and inspect such equipment under Customer’s and User’s control and monitor the Customer’s and User’s use of and access to the Product (whether remotely or not) to verify that Customer and Users are complying with the terms of the Agreement and not infringing Licensor’s or its licensors’ Intellectual Property Rights.

Section VI.8

Customer recognizes that the Product and the Intellectual Property Rights are the sole and exclusive property of Licensor, and all use thereof by Licensor or a User shall inure solely to the benefit of Licensor.

Section VI.9

Customer shall not, during the term of the License granted under the Agreement or after termination regardless of the reasons for termination, (i) attack the title or any rights of Licensor in or to the Product and the Intellectual Property Rights, or (ii) claim any right, title or interest in or to the Product and the Intellectual Property Rights, except to the extent of the rights granted under the License.

Article VII

Term

Section VII.1

Except to the extent that the Order Form expressly provides to the contrary, the Agreement shall commence on the Commencement Date and (subject to earlier termination under the Agreement) shall continue until the expiration of the last Access Term in effect pursuant to the Agreement.

Section VII.2

Each Access Term for a User shall commence at the beginning of the Initial Access Term and shall thereafter renew for successive 12 month periods (each, a “Renewal Access Term”) unless terminated by either Licensor or Customer giving no less than one month’s notice to the other, such notice to expire on the last day of the Initial Access Term or of a Renewal Access Term.

Section VII.3

If Customer has ordered a Bundle but not Enrolled all Users or Unique User Lessons covered within the Bundle within the appropriate time so that the Initial Access Term has not started for all Users or Unique User Lessons within the timeframe permitted by the Agreement, or if Customer has ordered Bundle D and not all Unique User Lessons have been used or accessed within the Access Term, the rights for access to those Users or Unique User Lessons shall expire notwithstanding that they have been paid but remained unused by Customer.

Article VIII

Fee And Payment

Section VIII.1

Unless otherwise expressly agreed in writing by Licensor, Customer shall pay the Fee in advance of Customer’s and Users’ access for the Initial Access Term on or before the Commencement Date, and for each subsequent Renewal Access Term on or before the anniversary of the Commencement Date.

Section VIII.2

Licensor may increase the Fee by no less than two months’ prior notice to take effect at the commencement of a Renewal Access Term.

Section VIII.3

If the Agreement is entered into by the Customer via the online sign-up process through the Website, all sums due to Licensor are inclusive of any applicable State or local taxes. If the Agreement is entered into by Customer other than via the online sign-up process through the Website, all sums due to Licensor are exclusive of taxes (if applicable) which Customer shall pay to Licensor in addition at the same time as payment of the Fee.

Section VIII.4

Payment of all sums due under the Agreement shall be made by Customer without any set-off, deduction or withholding whatsoever.

Section VIII.5

Licensor may issue an invoice to Customer for the Fee.

Section VIII.6

Customer shall pay Licensor the Fee in accordance with Sections 8.1, 8.2 and 8.3 (and in any event, if Licensor provides an invoice, within 28 days of the date of Licensor’s invoice). Customer may pay Licensor by credit card or debit card online for payments which are due monthly, or by any other payment method agreed to by Licensor.

Section VIII.7

No payment shall be considered to be paid until it is received by Licensor in cleared funds. Customer and its Users shall not have a right to access or use the Package until Customer has paid the relevant Fee and applicable taxes in full.

Section VIII.8

If the laws of any jurisdiction where Customer is located require Customer to withhold tax on any payment which Customer is obliged to make to Licensor under the Agreement, Customer shall:

(a) obtain a proper receipt and discharge for the tax so deducted and forward it without delay to Licensor;

(b) do all such other things and take such other steps as may be reasonably required to enable Licensor to obtain any tax credit which may be available to it in connection with any such tax payment; and

(c) in the event that any taxes deducted cannot be used by Licensor as a credit against any tax payable by Licensor, Customer shall pay to Licensor any deficiency in the amount payable to Licensor attributable to such tax deductions.

Section VIII.9

If Customer is late in paying any amount due to Licensor (under the Agreement or under any other agreement between Licensor and Customer), Licensor may (without prejudice to any other right or remedy available to it whether under the Agreement or any other agreement between Licensor and Customer or by any statute, regulation or otherwise) do either or both of the following:

(a) charge interest and other charges on the amount due but unpaid at the rate of 2% per month calculated on the basis of a year of 12 months of 30 days each or such lesser rate as shall be the maximum amount permitted by law from time to time from the due date until payment, such interest to be determined on a day to day basis and to be compounded monthly; or

(b) give Customer at least five Business Days’ notice that it is suspending Customer’s and Users’ access to the Product with immediate effect until Licensor receives the outstanding amounts in full.

Article IX

Suspension And Termination

Section IX.1

In addition to its rights of suspension under Section 8.9, Licensor reserves the right to suspend or disable access to and use of the Product by Customer and Users if: (a) Licensor reasonably suspects that Customer or any User is in breach of the Agreement (or any agreement between Licensor and Customer); or (b) Licensor reasonably believes that there is likely to be a breach of security, or misuse of any password or username of Customer or its Users; or (c) Customer or any User is misusing the Product or Licensor’s Intellectual Property Rights. This suspension may be without notice and whether by use of a code, by disabling access on its servers, by remote access or by physical attendance at any place where the Product is being accessed from or otherwise.

Section IX.2

Either Licensor or Customer may terminate the Agreement by notifying the other Party in writing with immediate effect if:

(a) the other Party is in material breach of any of its obligations under the Agreement or any other agreement between the Parties which are incapable of remedy;

(b) the other Party fails to remedy, if capable of remedy, any material breach of any of its obligations under the Agreement or any other agreement between the Parties after having been notified in writing to remedy such breach within a period of no more than 30 days; or

(c) if Customer files a petition in bankruptcy or is adjudicated bankrupt or if a petition in bankruptcy is filed against Customer or if Customer becomes insolvent, or makes an assignment for the benefit of Customer creditors or an arrangement pursuant to any bankruptcy law, or if Customer discontinues its business or if a receiver is appointed for Customer or Customer’s business, the rights and License hereby granted to Customer shall automatically terminate forthwith without any notice being necessary.

In this Section 9.2 and in Section 9.3, where Licensor is giving notice, the “other Party” shall include either Customer or any User.

Section IX.3

Upon termination of the Agreement:

(a) Customer and Users shall immediately cease accessing and using the Product and cease using any username or password in relation to the Product; and

(b) each Party may at its option require the other Party to promptly delete the Confidential Information of the Party exercising such option from any computer disks, tapes, memory, storage or other material in its possession or under its control or promptly deliver or destroy materials and tangible items in its possession or under its control which contain any materials allowing access to the Product or the Product Content and an officer of such Party shall provide a written certification, signed by such officer or other authorized individual of such Party, certifying that there has been full compliance with this Section 9.3(b).

(c) The Parties hereto shall have all rights and remedies set forth in the Agreement and all rights and remedies available under difficult applicable law. The Parties acknowledge that a breach of the covenants contained in Article IX may cause irreparable damage, the exact amount of which will be difficult to ascertain and that remedies at law for any such breach will be inadequate. Accordingly, the Parties agree that, in addition to all other available remedies (including without limitation seeking such damages as can be shown to have been sustained by reason of such breach) the non-defaulting Party shall be entitled to (i) specific performance, injunctive relief and other equitable relief without being required to post bond or other security and without having to prove the inadequacy of the remedies available at law and (ii) the reimbursement of any and all reasonable attorneys fees and costs incurred by the non-breaching party in seeking such relief and exercising its rights and remedies hereunder.

Section IX.4

Termination of the Agreement shall be without prejudice to any other rights or remedies which the Parties may be entitled to under the Agreement or at law or in equity and will not affect any rights or liabilities of either Party nor there becoming effective or continuing in force and effect any provision which is expressly or otherwise intended to become effective or continue in force and effect as of or after such termination.

Article X

Warranties And Disclaimers

Section X.1

Licensor represents and warrants that it (a) shall use reasonable skill and care in the performance of its obligations under the Agreement, (b) has full right and authority to enter into the Agreement, (c) shall use its reasonable commercial efforts to provide access to the relevant part of the Product in accordance with the Product Specification for 90 days from the time agreed by the Parties for the Product to be available to Customer and User.

Section X.2

EXCEPT AS SET OUT IN SECTION 10.1 ABOVE, LICENSOR GIVES NO WARRANTY:

(a) AS TO THE ACCURACY, COMPLETENESS OR SUITABILITY OF THE PRODUCT, OR PRODUCT CONTENT OR PACKAGE OR BUNDLE, OR THAT THE PRODUCT OR PRODUCT CONTENT OR PACKAGE OR BUNDLE OR THE APP OR WEBSITE WILL MEET ANY OF THE CUSTOMER’S OR USER’S PRESENT OR FUTURE SPECIFIC NEEDS OR REQUIREMENTS, AND CUSTOMER AND EACH USER AGREES TO USE THE PRODUCT EXCLUSIVELY AT ITS OWN RISK;

(b) THAT THE PRODUCT WILL BE COMPATIBLE WITH THE CUSTOMER SYSTEMS OTHER THAN THOSE MEETING THE MINIMUM SPECIFICATION; OR

(c) THAT ACCESS TO THE PRODUCT OR WEBSITE WILL BE DELIVERED WITHOUT INTERRUPTION, FAULT OR ERROR. IT MAY BE NECESSARY TO SUSPEND OR RESTRICT ACCESS TO THE PRODUCT OR WEBSITE AT ANY TIME FOR ANY REASON INCLUDING FOR ANY URGENT OR PLANNED MAINTENANCE.

Section X.3

Licensor shall use its reasonable commercial efforts to ensure that the information and ideas contained, suggested or referenced in the Product and Product Content are accurate and up-to-date. The Product and Product Content are for general guidance only. Customer and Users agree that it is their responsibility to obtain professional or specialist advice before taking, or refraining from, any action on the basis of the Product or any Product Content.

Section X.4

EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, ALL WARRANTIES, CONDITIONS, UNDERTAKINGS OR TERMS, EXPRESS OR IMPLIED, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE BY LAW. HOWEVER, NOTHING EXCLUDES OR LIMITS A CONSUMER’S STATUTORY RIGHTS.

Section X.5

Licensor 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 Customer and Users acknowledge that access to the Product or Website may be subject to limitations, delays and other problems inherent in the use of such communications facilities, and accordingly Licensor does not warrant that access to the Product or Website will be uninterrupted or error-free or that it will be available at any particular speed.

Section X.6

The Product, the Website or email alerts may include links to third party websites which are beyond Licensor’s control. Licensor does not endorse such websites or their content and makes no representations as to the quality, suitability, functionality or legality of any such websites. Customer and Users hereby agree to waive any claim they may have against Licensor with respect to such websites.

Section X.7

Although Licensor uses firewall, virus and content filtering software, Licensor cannot guarantee absolute security and shall not have any Liability for damage to, unauthorized access to, or viruses or other code that may affect, the Product Content or any computer equipment, software, data or other property. Licensor shall also not have any Liability for the actions of third parties in breaching any security measures.

Article XI

Liability

Section XI.1

No Party excludes or limits its Liability for: (a) its fraud; or (b) death or personal injury caused by its Negligence; or (c) any infringement of the other Party’s Intellectual Property Rights or Confidential Information; or (d) any Liability which cannot be excluded or limited by applicable law.

Section XI.2

Subject to Section 11.1, each Party does not accept and it hereby excludes any Liability for Negligence other than any Liability arising pursuant to the terms of the Agreement.

Section XI.3

Subject to Section 11.1, no Party shall have any Liability in respect of any: (a) indirect or consequential losses, damages, costs or expenses; (b) loss of actual or anticipated profits; (c) loss of contracts; (d) loss of use of money; (e) loss of anticipated savings; (f) loss of revenue; (g) loss of goodwill; (h) loss of reputation; (i) ex gratia payments; (j) loss of business; (k) loss of operation time; (l) loss of opportunity; or (m) loss of, damage to or corruption of, data; whether or not such losses were reasonably foreseeable or the Party in default or its agents had been advised of the possibility of the other incurring such losses. The limitations set forth in Section 11 shall apply whether such losses are direct, indirect, consequential or otherwise.

Section XI.4

Subject to Sections 11.1 and 11.3, the total aggregate Liability of each Party for all causes of action arising in each Agreement Year shall be limited to 110% of the total amount paid and total additional amount payable, in the aggregate, by Customer to Licensor under the Agreement in such Agreement Year.

Section XI.5

In the Agreement: (a) ”Liability” means liability in or for breach of contract (including liability under any indemnity), Negligence, tort (whether intentional or not), misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with the Agreement, including liability expressly provided for under the Agreement or arising by reason of the invalidity or unenforceability of any term of the Agreement (and for the purposes of this definition, all references to “the Agreement” shall be deemed to include any collateral contract); and (b) ”Negligence” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) other legal duty to take reasonable care or exercise reasonable skill (but not any stricter duty).

Section XI.6

Force Majeure: Licensor shall have no Liability under or in connection with the Agreement if it is hindered or prevented from or delayed in performing any of its obligations under the Agreement, or from carrying on its business, by any act, event, omission or accident beyond its reasonable control and regardless of whether the circumstance could have been foreseen (including, without limitation, any act of God, actions or omissions of third parties not in the same group as the Party seeking to rely on this Section (including hackers, suppliers or governments), insurrection, riot, civil war, civil commotion, war, armed conflict, sanctions, embargo, national emergencies, actual or threatened or suspected terrorism, strikes or combinations or lock-out of workmen, unusual travel restrictions, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, earthquake, volcano, ash cloud, natural disaster, accident, mechanical breakdown, third party software or infrastructure or communications, collapse of building structures, failure of machinery (other than used by the relevant party) or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure). Licensor shall inform Customer in writing of such an event and its expected duration.

Article XII

Confidentiality And Data Protection

Section XII.1

Each Party shall use Confidential Information received from the other Party only for the purposes of the proper performance of its obligations and exercise of its rights under the Agreement.

Section XII.2

Subject to Section 12.3, neither Party shall disclose the other Party’s Confidential Information to any third party without prior written consent of the other Party, provided that this Section 12 shall not prevent Users to access the Product in accordance with the Agreement. Each of the Licensor and Customer shall use best efforts to prevent its employees, consultants and agents from doing anything which, if done by the Licensor or Customer, would be a breach of this Article XII. This restriction shall continue to apply indefinitely after the termination of the Agreement.

Section XII.3

Each Party may disclose Confidential Information of the other: (a) to its respective insurers or professional advisors; (b) to the extent required, to any court of competent jurisdiction or governmental or regulatory authority; provided that in the case of subsection 12.3 (b), where reasonably practicable (and without breaching any legal or regulatory requirement) not less than two Business Days’ prior notice is given to the other Party of the proposed disclosure.

Section XII.4

Confidential Information shall not include any information which: (a) is or becomes generally available to the public other than as a result of a breach of an obligation under this Section 12; (b) is acquired from a third party who owes no obligation of confidence in respect of the information; or (c) is or has been independently developed by the recipient.

Section XII.5

Licensor may identify Customer as its customer and the type of services provided by Licensor to Customer, provided that in doing so Licensor shall not (without Customer’s prior written consent) reveal any Confidential Information of Customer.

Section XII.6

To the extent Licensor processes any personal data on behalf of Customer or a User, it shall only process such personal data for the purposes of providing services under the Agreement in accordance with Customer’s instructions and shall take appropriate technical and organizational measures against the unauthorized or unlawful processing of personal data and against the accidental loss or destruction of, or damage to, personal data. Customer and Users acknowledge that Licensor may process certain personal data about individuals (including Users) in order to provide access to the Product and Website; and that data may include name, Customer address, email address, telephone number, position or role at Customer, username and password; each User agrees, before that User is Registered or Enrolls, to Licensor processing the personal data for that purpose.

Article XIII

General

Section XIII.1

Customer and User shall not (and shall not purport to) assign, sub-license, transfer, novate, charge or otherwise encumber, create any trust over or deal in any manner with the Agreement or any of its rights, liabilities or obligations under the Agreement without the prior written consent of Licensor. Licensor may assign, transfer, novate or subcontract its rights, liabilities or obligations under the Agreement either in whole or in part to any other person, firm or company; Licensor shall promptly give notice to Customer and inform User in writing of any such assignment, transfer or novation.

Section XIII.2

Any notices, consents, waivers and other communications under the Agreement must be in writing and transmitted by one of the methods set forth in this Section 13.2. Such notices, consents, waivers and other communications will be deemed to have been duly given only when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile with confirmation of transmission by the transmitting equipment, (c) received by the addressee, if sent by certified mail, return receipt requested, or (d) received by the addressee, if sent by a nationally recognized overnight delivery service, in each case to the appropriate addresses or facsimile numbers set forth below (or to such other addresses or facsimile numbers as a Party may designate by notice to the other Party):

Section XIII.3

Unless a Party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either Party in exercising any power, right or remedy under the Agreement or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that Party’s other powers, rights or remedies under the Agreement or at law.

Section XIII.4

If any provision of the Agreement shall be held to be unlawful, invalid or unenforceable, in whole or in part, under any enactment, rule of law or judicial determination, such provision or part shall to that extent be severed from the Agreement and rendered ineffective as far as possible without modifying or affecting the legality, validity or enforceability of the remaining provisions of the Agreement which will remain in full force and effect.

Section XIII.5

The Agreement contains all the terms agreed between the Parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the Parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to the Agreement except as expressly stated in the Agreement. A Party shall not have any remedy in respect of any untrue statement made by the other Party upon which that Party relied in entering into the Agreement (unless such untrue statement was made fraudulently) and that Party’s only remedies shall be for breach of contract as provided in the Agreement.

Section XIII.6

The Agreement constitutes the entire agreement and understanding of the Parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.

Section XIII.7

The terms of the Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Customer or User whether such terms and conditions are contained in a document or otherwise.

Section XIII.8

Nothing in the Agreement shall confer or purport to confer on any third party any benefit or any right to enforce any term of the Agreement or operate to give any third party the right to enforce any term of the Agreement.

Section XIII.9

Licensor may amend the Agreement upon no less than two months’ prior written notice to the Customer to take effect at the commencement of a Renewal Access Term. Subject to the foregoing, no amendment or change of the Agreement shall be effective unless in writing and expressly agreed between the Parties to be such amendment or change.

Section XIII.10

The Agreement shall not operate so as to create a partnership or joint venture of any kind between the Parties. Nothing contained in the Agreement shall be so construed as to constitute either Party to be the agent of the other. Neither Party shall have any authority to make any commitments on the other Party’s behalf.

Section XIII.11

Within five business days of receipt of a written notice of a dispute arising under the Agreement, a representative of Licensor and a representative of Customer will arrange to discuss the dispute at a mutually satisfactory time. If Licensor and the Customer cannot agree on a mutually acceptable resolution of the dispute within thirty (30) days, the controversy will be submitted to final and binding arbitration pursuant to the terms of Section 13.13. Except as provided in Section 13.4, the Parties agree that arbitration pursuant to Section 13.13 shall be the sole and exclusive forum for resolution of any dispute, controversy or claim arising out of or relating to the Agreement or the breach, termination or validity thereof.

Section XIII.12

(a) All disputes arising out of or in connection with the Agreement shall be submitted to arbitration conducted under the Rules of the American Arbitration Association (the “AAA Rules”) by one arbitrator qualified to practice law in the State of New York and who shall be experienced in commercial matters and shall be appointed in accordance with the AAA Rules. The place of arbitration shall be New York, New York and the arbitration shall be conducted in the English language.

(b) The Parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other Party in the proceedings not otherwise in the public domain, except and to the extent that disclosure may be required of a Party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority.

(c) Each award of the arbitrator shall be a “reasoned award”. The arbitrator is authorized to include in the award an allocation to any Party of such costs and expenses, including attorneys’ fees, as the arbitrator shall deem reasonable. Judgment upon any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any monetary award rendered by the arbitrators shall be paid in U.S. dollars.

Section XIII.13

To the extent that a Section of the Agreement is of such a character that a breach thereof by either Party will result in irreparable damage and injury to the other for which there will be no adequate remedy at law, a Party shall have the right and remedy to have such Section specifically enforced by any court having equity jurisdiction, without the posting of a bond or other security, it being agreed that in any proceeding for an injunction, and upon any motion for a temporary or permanent injunction, the ability to answer in damages shall not be a bar or interposed as a defense to the granting of such injunction. The provisions of this Section 13.13 shall survive the termination of the Agreement.

Section XIII.14

ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF SUCH STATE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN SUCH STATE.

Section XIII.15

The Parties agree that the Supreme Court of the State of New York or the U.S District Court for the Southern District of New York shall have exclusive jurisdiction with respect to all aspects of the enforcement of the arbitration provisions of the Agreement; provided that judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, or application may be made to such court for judicial recognition of the award or an order of enforcement thereof, as the case may be. The Parties hereby waive all objection which they may have at any time to the laying of venue of any proceedings brought in such courts, waive claim that such proceedings have been brought in an inconvenient forum and further waive the right to object with respect to such proceedings that any such court does not have jurisdiction over such Party.

Article XIV

Interpretation

Section XIV.1

In the Agreement, unless the context otherwise requires:

(a) references to “Sections” are to Sections of the Terms and Conditions;

(b) the headings are inserted for convenience only and shall not affect the interpretation or construction of the Agreement;

(c) words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;

(d) references to “written” or in “writing” (except in respect of sending a notice in accordance with Sections 13.2 and 13.3) includes in electronic form;

(e) references to “includes” or “including” or like words or expressions shall mean without limitation; and

(f) references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification).