Please read these Licence Terms carefully
THIS AGREEMENT is dated 1st OCTOBER 2021
PARTIES
(1) AJB SPORTS IN EDUCATION LIMITED incorporated and registered in England and Wales with company number 10743549 whose registered office is 23 Upland Grove, Bromsgrove, Worcestershire B61 0EL (Henceforth known as the Licensor) ( Us)
(2) Purchaser of the Active Minds program (Hence forth known as the Licensee)
This is a contract between AJB Sports in Education and the purchaser (licensee) for the purchase and subsequent use of the Active Minds program.(You )
Background
The Licensor has developed the Programme (Active Minds) being a unique physically active learning Programme that helps increase children’s confidence and understanding of diabetes, mental health and nutrition.
The Licensor is the owner of Intellectual Property rights in the Programme and has built up a reputation and goodwill in the Programme which is associated with the highest standards of service.
This agreement looks to set out the terms and conditions which the Licensee wishes to enter into with the Licensor in order to operate the Programme in accordance with this agreement.
We license the use of the software and Documentation to you on the basis of this Licence.
AGREED TERMS
COMMENCEMENT AND DURATION
For the duration of the Term, and in consideration of you agreeing to abide by the terms of this License, the Licensor hereby grants to you a non exclusive, non transferable licence to use the software and the Documentation on the terms of this License. The Licensee shall have the right to deliver the Programme in the individual setting within the purchase or subscription.
On expiry of the Initial Term and/or any Additional Terms, provided that the conditions set out in this agreement have been satisfied, this Licence will be renewed upon a subsequent agreement being reached between the Licensor and the Licensee.
The conditions referred to in this clause are that:
(a) at the end of the Term, there are no outstanding material breaches by the Licensee of this agreement and there are no grounds on which the Licensor has a right to terminate this agreement.
(b) the Licensee has at all times performed their obligations under this agreement to the reasonable satisfaction of the Licensor
In the event that the Licence is renewed in accordance with the above clauses, then the Licensee agrees and accepts that such renewal is on the same terms and conditions of this Licence.
Initial and Renewal Fees
Initial Fee
All fees are paid in advance of purchasing the program and no access will be granted to the online learning resources until the initial fee and programme is purchased.
Renewal Fee
The renewal fees, as set out in accordance with the subscription and terms and conditions set above will be automatically taken out as long as there have been no breaches of the terms and conditions.
Failure to pay the relevant renewal fees as per the agreement will result in access to the Online Platform being suspended until all fees are brought up to date.
All fees payable under this Agreement by the Licensee shall be paid no later than 7 days after the date the invoice is issued by the Licensor, unless otherwise agreed.
LICENSOR’S OBLIGATIONS
The Licensor shall at all times during the Term:
(a) Look to provide the Licensee with such know-how, advice and guidance relating to the Programme as it thinks fit and operate an Online Platform that will allow the Licensor to access teaching and learning resources and upload analysis data as required.
(b) Update or upgrade the Programme from time to time to reflect the Changes of the Operating system
(c) Offer support and help to the Licensee regarding the delivery of the program and provide online support
(d) Take reasonable measures and ensure that the online platform and resources are available at all times. In situations where this is not possible due to a technical error then the Licensor can work with the Licensee to provide such materials in other ways.
LICENSEE'S OBLIGATIONS
The Licensee shall at all times during the Term, in relation to the Programme:
(a) Install and use the Software on one central processing unit (CPU). If the Licence is a single user licence or the Software is for single use or
(b) If the Licence is multi user or network licence, for the number of concurrent users agreed between you and us
(c) operate the Programme at approved Venues strictly in accordance with the highest standards and in accordance with AJB Sports in Education’s values and not do anything that could or might in the sole opinion of the Licensor bring the Programme into disrepute or damage the reputation of the Licensor.
(b) comply with the terms and obligations within this document.
(c) Keep all username and password information (pertaining to the online platform) private and will not share this information with businesses or persons outside of your own organisation.
(d) use their best endeavours to promote and extend the Licensed Business where possible, including social media, email and physical marketing platforms.
(e) ensure that all Programmes are registered with the Licensor prior to their start date.
(f) use their best endeavours to protect and promote the goodwill in the Programme.
(g) not license or share any content, including but not limited to session plans, worksheets and videos to any other persons or businesses which may be used to operate the Programme without the Licensor’s knowledge.
(h) provide quality assurance of the delivery of the Programme and provide feedback to the Licensor when requested.
(i) provide the Licensor with programme impact data and customer feedback through the Online Platform when requested.
(j) Use any Documentation in support of the use permitted and make copies of the Documentation as are reasonably necessary for its lawful use
SUPPLIERS WARRANTIES
1.1 The Supplier warrants that the Software will conform in all material respects to the Specification for a period of 90 days from the date of this licence (Warranty Period). If, within the Warranty Period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment, the Supplier shall, at the Supplier's option, do one of the following:
i) repair the Software;
ii) replace the Software; or
iii) terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof,
provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.
1.2 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free [or that it will meet any Heightened Cybersecurity Requirements].
1.3 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
1.4 The Customer acknowledges that any Open-Source Software provided by the Supplier is provided "as is" and expressly subject to the disclaimer in clause 9.5.
1.5 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
2. Our responsibility for loss or damage suffered by you
2.1 We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this Licence or our failing to use reasonable care and skill , but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time this Licence was made, both we and you knew it might happen.
2.2 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
2.3 You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
INSURANCE
The Licensee shall take out and maintain an all-risk insurance policy with a reputable insurance company (or companies).
The Licensee will not hold Active Minds or AJB Sports in Education responsible for any injuries caused in sessions. The responsibility of the welfare of the children participating lies with the educator and licensee delivering the sessions. All consideration has gone into the planning of the games and sessions to participate safely.
INTELLECTUAL PROPERTY
The Licensee acknowledges that:
it does not have any right, title or interest in the Intellectual Property, the Trade Name, the Programme, the Online Platform or the Products or in any updates or improvements to them; and You acknowledge that all intellectual property rights in the Software and the Documentation throughout the world belong to us, that rights in the Software are licensed (not sold) to you, and that you have no intellectual property rights in, or to, the Software or the Documentation other than the right to use the Software and the Documentation in accordance with the terms of this Licence.
(a)
(b) The Licensor warrants that it is not aware of any reason why it might not be entitled to licence the Intellectual Property to the Licensee in accordance with the terms of this agreement.
(c) If the Licensee learns of any threatened or actual infringement of the Intellectual Property or of any circumstance which suggests that the use of the Intellectual Property may infringe the intellectual property of a third party, it shall immediately inform the Licensor, giving all such details as the Licensor requests.
(d) The Licensor shall have conduct of any proceedings relating to the Intellectual Property and may take whatever action it, in its sole discretion, decides in respect of any infringement or alleged infringement of it, or arising from its use. Any rights that the Licensee has under section 30 of the Trade Marks Act 1994 are excluded. The Licensee shall cooperate with the Licensor in taking such action and the Licensor shall meet any reasonable expenses of the Licensee in doing so.
The Licensee shall:
(a) not apply for registration of any of the Intellectual Property or Trade Name (or any intellectual property that is confusingly similar to the Intellectual Property) in its own name, in any part of the world;
(b) comply with all requests by the Licensor as to the use of the Intellectual Property or Trade Name and the TM, © and ® symbols in relation to the Intellectual Property and the Trade Name;
(c) not license (or purport to license) any other person to use any of the Intellectual Property or Trade Name;
(d) not use the Intellectual Property or Trade Name other than as specifically permitted by this agreement;
(e) not use any intellectual property that is confusingly similar to the Intellectual Property or Trade Name;
(f) not do anything that may adversely affect the Intellectual Property or Trade Name or the Licensor's right or title to them; and
(g) immediately stop using any advertising or promotional material or packaging on receipt of a request by the Licensor to do so.
h) not to copy the Software or Documentation, except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;
i) not to rent, lease, sub-license, loan, translate, merge, adapt, vary, alter or modify, the whole or any part of the Software or Documentation nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
j not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things, except to the extent that (by virtue of sections 50B and 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are necessary to decompile the Software to obtain the information necessary to create an independent program that can be operated with the Software or with another program (Permitted Objective), and provided that the information obtained by you during such activities:
(i) is used only for the Permitted Objective;
(ii) is not disclosed or communicated without the Licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it in order to achieve the Permitted Objective; and
(iii) is not used to create any software that is substantially similar in its expression to the Software;
k) to include our copyright notice on all entire and partial copies of the Software in any form;
l) not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person without prior written consent from us;
TERMINATION
The Licensor may terminate this agreement with immediate effect (or following such notice period as it sees fit) at any time without prejudice to any of its rights or remedies, by giving written notice to the Licensee if:
(a) the Licensee fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) the Licensee commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so; or
(c) the Licensee repeatedly breaches any of the terms of this agreement; or
(d) persistent, valid complaints continue to be made to the Licensor about the quality of the service provided by the Licensee and the Licensee, having received notice of such complaints, fails to improve such service to the reasonable satisfaction of the Licensor; or
(e) the Licensee purports to assign any of the rights or licences granted under this agreement other than in accordance with the terms of this agreement;
Either party may terminate this agreement with immediate effect without prejudice to any of its rights or remedies, by giving written notice to the other party if:
(a) the other party suspends, or threatens to suspend, payment of its debts or is, or is deemed to be, insolvent, unable to pay its debts as they fall due for payment, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(b) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or enters into any composition or arrangement with its creditors generally; or
(c) an order is made, a resolution is passed, or a notice is issued convening a meeting for the purpose of passing a resolution, or any analogous proceedings are taken, for the winding-up, administration or dissolution of the other party; or
(d) any liquidator, trustee in bankruptcy, receiver, administrative receiver, administrator or similar officer is appointed over, or in respect of, the other party or any part of its business or assets; or
(e) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(f) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of the its business.
CONSEQUENCES OF TERMINATION
Any termination or expiry of this agreement shall not affect any rights or liabilities that have accrued prior to such termination.
On termination or expiry of this agreement for any reason, the Licensee shall:
(a) immediately pay the Licensor the full amount of all sums due from the Licensee to the Licensor together with any interest payable.
(b) cease to operate the Programme other than to honour Sessions for which the Licensee’s customers have already paid and which, at the date of termination, the Licensee had contracted to provide to them;
(c) immediately stop using the Intellectual Property.
POST TERMINATION RESTRICTIONS
The Licensee must not for a period of one year following the termination of this agreement directly or indirectly be engaged concerned or interested in a programme similar to the Licensed
Business save for a financial interest that does not allow you to influence the economic conduct of such a business.
The Licensee must not for the period of one year following the termination of this agreement, either on your own behalf or on behalf of any other person, firm or company seek to sell or obtain orders in respect a business similar to the Licensed business for any Restricted Customer or represent yourself as being in any way connected or having been formerly connected with or interested in the Licensed Business or the Trade Name Marks.
While the above restrictions are considered by both of us to be reasonable in all the circumstances, it is agreed that if, taken together, they are judged to go beyond what is reasonable in all the circumstances for our protection but would be judged reasonable if part or parts of the wording of them were deleted, they shall apply with such words deleted.
ENTIRE AGREEMENT
This agreement and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.
If there is an inconsistency between the terms of this agreement or any other documents referred to in it the terms of this agreement shall prevail.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
Nothing in this clause shall limit or exclude any liability for fraud.
DATA PROTECTION AND YOUR PERSONAL DATA
Your personal data and information is extremely important to us and we as the licensor will take all reasonable and necessary steps legally required and under the Data Protection Act 2018 to ensure that this information is protected.
As the licensee, by accepting the terms and conditions of this agreement, you also accept that Active Minds and AJB Sports in Education have taken all necessary steps to protect your personal data, but that in the event of an unforeseen cyber attack, the licensor will not be liable to legal action permitting that all legally required actions were taken in advance.
As the licensor, AJB Sports in Education agrees not to share any personal information or sensitive data of the licensee to any other customers, businesses or persons without express written consent from the licensee.
Each party acknowledges their responsibilities under The Data Protection Act 2018 and confirms that they will comply with the provisions of all applicable Data Protection Laws relating to the processing of personal data in relation to or in connection with this Agreement.
(a) ensure proper and diligent physical and technical security systems are used to keep Personal Data safe and secure and not in any way to expose Personal Data to any undue security risks, including implementing appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure;
(b) ensure that any personnel given access to Personal Data is done so only for the purposes of performing the Licensees obligations and is reliable and is subject to customary confidentiality provisions.
(c) provide the Licensor with any information required on the methods employed by the Licensee or on its behalf for processing Personal Data, its security systems in place and the manner in which it is complying with this Clause and to otherwise give any assistance to the Licensor as they may reasonably request to assist the Licensor in complying with its own obligations under Data Protection Laws
(d) provide the Licensor with full co-operation and assistance in relation to:
I. any complaint, request or exercise of data subject rights made in respect of any Personal Data
II. any privacy impact assessment
III. any investigation, inquiry or request made by a supervisory authority
The Licensee shall:
(a) to the extent required by Legal Requirement, and permitted under Data Protection Laws, give written notice to the Licensor of any requirement to disclose Personal Data promptly after becoming aware of that requirement;
(b) notify the other party if it receives a written request from the subject of any Personal Data for access to any relevant Personal Data, and respond to that request in accordance with the other party's instructions;
(c) provide details of the Personal Data held by it in relation to any individual promptly after its receipt of the other party's request;
(d) bring into effect and maintain appropriate technical and organisational measures to maintain security and prevent unauthorised or unlawful access to or processing of personal data and accidental loss or destruction of, or damage to, personal data, and shall supply a detailed written description of such measures immediately on request, which must contain sufficient detail to enable the other party to determine whether or not any applicable Personal Data is being or has been processed in compliance with all relevant Legal Requirement relating to the Processing of Personal Data;
FORCE MAJEURE
For the purposes of this Agreement "Force Majeure" means, in relation to either party, any circumstances beyond the reasonable control of that party including, without limitation, any strike, lock-out or other form of industrial action termination, civil disturbance, war, risk, fire, explosion, storms, flood, earthquake, epidemic or other natural physical disaster.
If any Force Majeure occurs in relation to either party which affects or may affect the performance of any of its obligations under this Agreement, it shall forthwith notify the other party as to the nature and extent of the circumstances in question.
Neither party shall be deemed to be in breach of this Agreement, or shall otherwise be liable to the other, by reason of any delay in performance, or the non-performance, of any of its obligations under, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.
If the performance by either party of any of its obligations under this Agreement is prevented or delayed by Force Majeure for a continuous period in excess of six months, the parties shall enter into bona fide discussions with a view to alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable.
VARIATION
The Licensor (acting reasonably) reserves the right to make variations to the terms of this Agreement and the Licensee shall be bound by such variations Provided Always that the Licensor shall as soon as reasonably practicable provide the Licensee with written notice of any such variations.
UPDATES AND INTERRUPTIONS
The Licensor reserves the right to change, modify, or remove the contents of the Programme at any time and for any reason at the Licensor's discretion without prior notice being given. This extends to any modifications or updates to the content which is seen fit by the Licensor.
The Licensor is not liable to the Licensee or any other third party for any modification, price change, suspension or discontinuation of the site.
The Licensor cannot guarantee that the online platform will be available at all times. This may be due to the event of hardware or software interruptions, or the need to perform essential maintenance or updates on the platform which may result in interruptions, delays or errors. We reserve the right to change, modify, revise, update, suspend or otherwise modify the site and its content. In these instances, the Licensee agrees that the Licensor is not liable in the entirety for any loss, damage or inconvenience caused by the inability to access the online platform during any downtime or work being completed on the site and its related content.
Notices
Any notice given to a party under or in connection with this contract shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
sent by email to >?????? Add in.
Any notice shall be deemed to have been received:
if delivered by hand, at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at [9.00 am] on the [second] Business Day after posting;
if sent by email when this is delivered to the email address
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
GOVERNING LAW
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 the law of England and Wales.
JURISDICTION
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of the purchase.
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