Circus Street London Limited eLearning Terms and Conditions
In these Terms, unless the context requires otherwise, the following expressions shall have the following meanings:
- Access Term:
- means the Initial Access Term and any Renewal Period.
- 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.
- means these Terms, the Order Form and/or any details in the registration process involving Customer or User, and any variations in accordance with Clause 13.10.
- 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.
- Commencement Date:
- means the start date of the Initial Access Term set out in the Order Form, or if none is set out there, the date on which Customer 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 (where Circus Street is the discloser) the Product Content.
- means the customer of Circus Street who agrees to obtain access to the Product in exchange for payment of the Fee, and whose details are more particularly set out in the Order Form.
- Customer Content:
- means any Customer specific content, including Customer's Confidential Information, used in or uploaded to the Product.
- Customer Systems:
- means the computer systems operated by or for Customer and any mobile devices owned or provided to Users (whether provided to Users by Customer or not) and used in conjunction with the Product.
- means register for and access to a Lesson by an individual user Registered by Customer (and "Enrolment" shall be construed accordingly).
- means the fee set out in the Order Form (or otherwise expressly agreed in writing between Circus Street and Customer) for access to the Product.
- Initial Access Term:
- means the period of time during which the Product may be accessed by a User, as set out in the Order Form or (if not set out there) it shall in any event be 12 months from when a Package is first made available by Circus Street for access by that User (by provision of log-ins).
- Intellectual Property Rights:
- means all present and future rights in patents, trade marks, 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.
- 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 Customer or User from time to time.
- has the meaning given to it in Clause 11.
- means the licence granted under Clause 2.
- Minimum Specification:
- means any minimum technical specification for accessing the Product, provided by Circus Street in the App, on the Website or to Customer or User from time to time.
- New Developments:
- means any modules, configurations or customisations developed specifically by Circus Street for Customer.
- Order Form:
- means the "offline" order form or the "online" sign-up process through the Website (which includes the process for adding a Package), in the form stipulated or provided by Circus Street, containing details of the specific products to be supplied by Circus Street to Customer and of the fees to be paid to Circus Street by Customer.
- means a package for access to a group of Lessons, as stipulated by Circus Street, being a set of particular Lessons within a price plan.
- means the web-based and/or app-based training product specified in the Order Form, 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 Specification:
- means any specification for the Product, provided by Circus Street on the Website, in the App or in writing to Customer from time to time.
- means the uploading of individual user details by Customer or User (or Circus Street on behalf of the Customer) 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 Period:
- has the meaning set out in Clause 7.1.
- means these Circus Street London Limited eLearning terms and conditions, together with any variations made in accordance with Clause 13.10.
- means an employee or authorised representative of Customer (or, if Customer is an individual man or woman, this shall be Customer) who is Registered and Enrolled pursuant to the Order Form.
- means the Circus Street websites, whose URLs are currently circusstreet.com or any relevant sub domain, such as my.circusstreet.com or a Customer specific sub domains, where "my" is substituted with a Customer name e.g. [customername.circusstreet.com].
2. Grant of Licence
2.1 In consideration of payment of Customer's payment of the Fees and Customer's and all Users' compliance with the terms of this Agreement, Circus Street hereby grants to Customer a non-exclusive, non-transferrable, non-transferable licence to access and use the Product and to permit Users to access and use the Product, in each case only during the Access Term and in accordance with this Agreement.
2.2 Customer and User shall use the Product for Customer's ordinary internal business purposes and shall not make the Product available for use or access by any third party, except to the extent that Circus Street expressly permits in writing.
2.3 Each User may print off extracts from the Product in hard copy solely for their own use in accordance with this Clause 2, 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 use of the Product or transfer the Product to any third party.
2.4 Any rights in respect of the Product or Product Content not expressly granted in this Agreement by Circus Street are reserved.
3.1 Each User agrees with Circus Street to comply with any obligation to be performed or observed by a User in accordance with this Agreement, and Customer agrees with Circus Street to procure that its Users do likewise.
3.2 In relation to Users, the Customer undertakes that the maximum number of Users that it Registers and allows to Enrol, shall not exceed the number of Users specified in the Order Form (or as otherwise expressly agreed in writing by Circus Street). If Customer would like to make access to the Product available to any more Users, then it shall first contact Circus Street to discuss and pay for any additional Fee with a new Agreement and Access Term for those Users, and Customer shall pay any additional Fee for such Users prior to such access. The amount for payment of the additional User shall be as set out in the Order Form or agreed in writing between Customer and Circus Street (or otherwise according to Circus Street's standard rates for additional Users).
3.3 Customer and each User undertakes that:
(a) it will not allow any password or username 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 password for the User is kept strictly confidential and shall not be disclosed to any third party, including other Customer personnel, without Circus Street's prior written consent;
(c) it will use best endeavours to prevent any access to or use of the Product by anyone other than the User;
(d) it shall be liable for any failure by the User to comply with this Agreement and for any use of the Product using a User's username and password;
(e) the User is at all times an employee, director or contractor (acting in a similar role to an employee) of Customer and for whom Customer has already Registered as a User with Circus Street and has paid the Fee to Circus Street for such User to have access to the Product and Product Content;
(f) it has obtained permission from the owners of the mobile telephone or handheld devices that are being used to access the Product if not owned by Customer or User 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 Customer or User.
3.4 The Customer and each User 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 by anyone other than the relevant User or anyone who is no longer a User, 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 Customer or User in addition to any other rights and remedies it may have; and
(b) indemnify Circus Street for all losses, damages, costs and expenses 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 password or username caused by the Customer's or the User's breach of Clause 3.2.
3.5 Circus Street 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.
4. Customer and User Responsibilities
4.1 Customer and User shall not use 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 Customer and User 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 Customer shall be responsible for ensuring that the Customer Systems meet the Minimum Specification. Circus Street 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.
4.4 Customer hereby grants to Circus Street a non-exclusive, non-transferrable licence to use the Customer Content until expiry of the Access Term only for the purposes of providing the services under this Agreement.
4.5 Customer shall not knowingly or negligently upload, post, publish, transmit or transfer to the Product, the App or Website or Circus Street 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, the App or Website; (d) is in breach of any applicable law, regulation or code of practice; (e) contains any unauthorised advertising, promotion or solicitation; or (f) materially misrepresents facts which may be damaging or injurious to Circus Street or its customers or users. Without prejudice to the other rights and remedies of Circus Street, Circus Street reserves the right to remove or amend any such software, files, Customer Content or material which would contravene these prohibitions.
4.6 Customer and Users shall not:
(a) interfere with any other person's use of a Product or otherwise act in a way that negatively affects another customer's or user's use of the Product, the App or Website;
(b) cause any of the Product, the App or Website to be interrupted, damaged, rendered less efficient or in any way impaired; or
(c) do anything contrary to Circus Street's interests.
4.7 Save as may be expressly stated otherwise, Circus Street does not monitor, approve, endorse or exert editorial control over information posted by Customer or any User (including Customer 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, updates may be issued 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.
5.1 During the Access Term, Circus Street shall provide support services to the Customer (by email or telephone) during the hours from 9.00am to 5.00pm local time in London, United Kingdom on Business Days.
5.2 Customer and User shall report any problems or errors to email email@example.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 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) Customer' or User's negligence; or (c) a malfunction of hardware, Customer Systems or any software other than the Product itself.
6. Intellectual Property Rights
6.1 Customer and User hereby acknowledge that, as between them 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 any person (including Customer or any User).
6.2 Circus Street 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 Circus Street is not otherwise the owner, Customer and User hereby assign to Circus Street (by way of present and future assignment of copyright) all such Intellectual Property Rights in New Developments (without Customer Content).
6.3 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.
6.4 Except to the extent expressly permitted in this Agreement or at law, Customer and User shall not knowingly 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. Interoperability information is available from Circus Street on request, subject to Customer 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.
6.5 Customer and User 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 Customer and User shall provide all further co-operation reasonably requested by Circus Street.
6.6 In the event of any claim being brought against Customer 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 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 Circus Street 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 any settlement of the Claim without Circus Street's prior written consent of (not to be unreasonably withheld or delayed), or otherwise prejudice Circus Street or any other third party's defence of such Claim; (c) give 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 their reasonable costs, give Circus Street, and other third parties as Circus Street directs, all reasonable assistance with the conduct or settlement of any such negotiations or litigation.
6.7 Customer and User 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 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 this Agreement and not infringing Circus Street's or its licensors' Intellectual Property Rights.
6.8 Customer and User acknowledge that they have no right to have access to the App in source code form.
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 for the Initial Access Term and thereafter shall renew for successive 12 month periods (each, a "Renewal Period") unless terminated by either Circus Street 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 Period.
8. Fee and Payment
8.1 Unless otherwise expressly agreed in writing by Circus Street, Customer shall pay the Fee:
(a) if this Agreement is entered into by the Customer other than via the online sign-up process through the Website, in advance of Customer's and Users' access for the Initial Access Term on or before the Commencement Date, and for each subsequent Renewal Period in advance of that Renewal Period;
(b) if this Agreement entered into by the Customer via the online sign-up process through the Website, monthly in advance of Customer's and Users' access.
8.2 Circus Street may increase the Fee by no less than two months' notice to take effect at the start of a Renewal Period.
8.3 If this Agreement is entered into by the Customer via the online sign-up process through the Website, all sums due to Circus Street are inclusive of VAT and other duties or taxes (if applicable). If this Agreement is entered into by the Customer other than via the online sign-up process through the Website, all sums due to Circus Street are exclusive of VAT and other duties or taxes (if applicable) which Customer shall pay to Circus Street in addition at the same time as payment of the Fee.
8.4 Payment shall be in the currency of England from time to time.
8.5 Payment of all sums due under this Agreement shall be made by Customer without any set-off, deduction or withholding whatsoever.
8.6 Circus Street may issue an invoice to Customer for the Fee.
8.7 Customer shall pay Circus Street for the Fee in accordance with Clause 8.1 (and in any event, where Circus Street provides an invoice, within 28 days of the date of Circus Street's invoice). Customer shall pay Circus Street by credit card or debit card online for payments which are due monthly, or by any payment method reasonably stipulated by Circus Street.
8.8 No payment shall be considered to be paid until it is received by Circus Street 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 taxes applicable in full.
8.9 If the laws of any part of the territory where Customer is based require Customer to withhold tax on any payment which Customer is obliged to make to Circus Street under this Agreement, Customer 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, make up to Circus Street any shortfalls in payment attributable to such tax deductions.
8.10 If Customer is late in paying any part of any monies due to Circus Street, Circus Street may (without prejudice to any other right or remedy available to it whether under this Agreement 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 Customer at least five Business Days' notice that it is suspending Customer'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 8.10, Circus Street reserves the right to suspend or disable access to and use of the Product by Customer and Users if: (a) Circus Street reasonably suspects that Customer or any User is in breach of this Agreement (or any other agreement between Circus Street and Customer); or (b) Circus Street reasonably believes that there is likely to be or has been a breach of security, or misuse of any password or username of Customer or its Users or use of the Product by an individual or organisation who is not (or no longer) a User; or (c) Customer or any User is misusing the Product or 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.
9.2 Either Circus Street or Customer 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 within the meaning of Section 123 of the Insolvency Act 1986, 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.
In this Clause 9.2 and in Clause 9.3, where Circus Street is giving notice, the "other party" means either Customer or any User.
9.3 Upon termination or expiry of this 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;
(b) each party may at its option require another party to promptly delete the Confidential Information of the party from any computer disks, tapes, memory, storage or other material in its possession or under its control or promptly deliver up or destroy materials and tangible items in its possession or under its control which contain any materials allowing access to the Product. Each party may require an authorised representative of another 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); and
(c) Customer and Users must immediately delete or remove the App from all Customer Systems and immediately destroy all copies of the App in their possession, custody or control.
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 use reasonable skill and care in the performance of its obligations under this Agreement; and (b) has full capacity and authority to enter into this Agreement; and (c) shall use its reasonable endeavours to provide access to the Product in accordance with the Product Specification, for 90 days from the intended time for making the Product available to Customer and User.
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 Package, or that the Product or Product Content or Package or the App or Website will meet the Customer's or User's present or future specific individual needs or requirements, and Customer and each User agrees to use the Product 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, the App or Website will be delivered without interruption, fault or error. It may be necessary to suspend or restrict access to the 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; 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.
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. However, nothing excludes or limits a consumer's statutory rights.
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, including the internet, and Customer and Users acknowledge that access to the 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 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. Customer and Users hereby agree to waive any claim they may have against Circus Street with respect to such websites.
10.7 Although Circus Street uses firewall, virus and content filtering software, 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.
11.1 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.
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 calendar 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 Customer to Circus Street under this Agreement, in that calendar 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 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: Circus Street shall have no 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 (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, cyber-attack, 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 general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation). Circus Street shall inform the Customer in writing of such an event and its expected duration.
12. Confidentiality and data protection
12.1 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 this Agreement.
12.2 Subject to Clause 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 Clause 12 shall not prevent Customer from allowing Users access to the Product.
12.3 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 sub-Clause 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.
12.4 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 Clause 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.
12.5 Circus Street may identify Customer as its customer and the type of services provided by Circus Street to Customer, provided that in doing so Circus Street shall not (without Customer's prior written consent) reveal any Confidential Information of Customer.
12.6 For the purposes of this Clause 12.6, all terms shall be as defined in the Data Protection Act 1998. To the extent Circus Street 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 this Agreement in accordance with Customer's instructions and shall take 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. Customer and Users acknowledge that Circus Street may process certain personal data about individuals (including Users) in order to provide access to the Product, the App 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 Enrols, to Circus Street processing the personal data for that purpose. Customer shall at all times comply with its obligations as a data controller under the Data Protection Act 1998.
13.1 These Terms are personal to Customer and User, 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 assign, transfer, novate or subcontract 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 Customer and inform User in writing of any such assignment, transfer or novation.
13.2 Any notice required or authorised to be given under this Agreement shall be in writing and served by personal delivery or by recorded delivery or overnight courier or by facsimile addressed to the relevant party at its address stated in this Agreement or at such other address or facsimile number 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 of the relevant party last known to the other party.
13.3 Any notice so given by recorded delivery or overnight courier shall be deemed to have been served two Business Days after the same shall have been despatched and any notice so given by facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, despatched or an answerback signal received.
13.4 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.
13.5 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.
13.6 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, 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 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.
13.7 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.
13.8 The terms of this 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 purchase order, document or otherwise.
13.9 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.
13.10 Circus Street may:
(a) make minor changes to this Agreement or the Product at any time without notice to Customer/User by posting changes online either through the Product, the Website or the App. Customer 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 use of the Product by Customer/User after such changes have been posted constitutes acceptance by Customer/User of such changes. At Circus Street's option, Customer/User may be required to read and accept any changes to this Agreement in order to continue to use the Product; and
(b) make material changes to this Agreement or the Product by no less than two months' prior written warning to the other party to take effect at the start of a Renewal Period. 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.
13.11 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.
13.12 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.
13.13 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 Customer is domiciled:
(a) in 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 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 13.13. 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.
14.1 In this Agreement, unless the context otherwise requires:
(a) references to "Clauses" are to clauses of these Terms;
(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 Clauses 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).