PERITUS MASTER SERVICE LEVEL AGREEMENT – CONTENT LIBRARY

Introduction

These conditions set out Peritus Learning & Development (Peritus) standard terms and conditions of business for Customers and Subscribers and shall govern the provision of Products (of whatever nature) and Services by Peritus Learning & Development to Customers.

The headings in these conditions are for convenience only and shall not affect their interpretation. Please note, the language of this Agreement is English. English is the definitive and binding version and the only language used in the interpretation of this Agreement.

These conditions and the Agreement shall form the Agreement between You and Peritus to the exclusion of all other terms and conditions (including any terms and conditions which You purport to apply as specified in any PO, purchase order, written instructions, letter of engagement, order confirmation, brief or other specification) and supersede any earlier agreement or agreements between You and Peritus.

We also draw your attention to our Privacy Policy, and Data Processing Addendum each of which are incorporated by reference into any Agreement (defined below) we enter into with you or any communications we have with you.

1. Definitions

1.1 In this Agreement:

“Aggregated Materials or Materials” means any Materials whether printed or provided on any other medium (including, but not limited to, USB sticks, DVDs, videos, CD‐ROMs, online web applications, SCORM files, apps or other software programs) that have been provided to, translated by or adapted by and Partners of Peritus or the Customer;

“Agreement” means the Front Sheet and these terms of business (including the Schedules) and any amendments to them as agreed from time to time;

“Business Day” means any week day, other than a bank or public holiday in England when banks in London are open for business;

“Business Hours” means between 09:00 and 17:00 London time on a Business Day;

“Conditions” means these terms and conditions;

“Confidential Information” means;

i. proprietary or confidential information that is clearly labelled or otherwise identified as such by the party to whom it belongs (the “Disclosing Party”) or that reasonably ought to be regarded as confidential, including, but not limited to, financial, business, or technical information, commercial know-how, inventions, or processes, and all other information (written, oral, digital, or in any media not contemplated hereunder) that has been disclosed to or otherwise obtained by the other party (the “Receiving Party”).

ii. Importantly, Confidential Information does not include information that;

(a) is publicly known through no act or omission of the Receiving Party;

(b) was in the Receiving Party’s lawful possession prior to disclosure by the Disclosing Party;

(c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure;

(d) is independently developed by the Receiving Party without any reference to or use of the Disclosing Party’s Confidential Information and such development is shown by written record; or

(e) is required to be disclosed by law or by any legal or administrative body of competent jurisdiction. Confidential Information shall not be deemed to be publicly known if it is known to merely a few parties for whom it may be of commercial interest or where disparate parts of Confidential Information are separately otherwise deemed to be publicly known; and

iii. the financial terms and conditions of this Agreement.

“Customer” means You (as defined within the Front Sheet as included in this Agreement);

“Data Controller” means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of Personal Data. For the purpose of this Agreement the Data Controller is the Customer and/or the other Data Controllers on whose behalf the Customer acts;

“Data Processor”means any natural or legal person, public authority, agency or any other body which processes Personal Data on behalf of a Controller or on the instruction of another Processor acting on behalf of a Controller. For the purpose of this Agreement Peritus is the Data Processor;

“Data Protection Legislation/Laws” means all applicable laws and regulations relating to the processing of Personal Data and privacy that may exist in the relevant jurisdictions.;

"Documentation" means the user documentation and any other operating, training and reference manuals relating to use of the Software or Services as supplied by Peritus to the Customer; 

“Effective Date” means the date payment is received for the Products or Services or the Customer is provided with access to the Products or Services, whichever is sooner;

“End User” means all of the Customer’s employees and individual third parties who are authorised by the Customer to use the Services;

“End User Data” means any data concerning the End User (including but not limited to Personal Data) that is gathered as a result of use of the System by the End User;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars) delays or restrictions by governmental bodies, inability to obtain or use necessary materials, or any cause beyond the reasonable control of Peritus;

“Fees” means the amount/s payable to Peritus by a Customer as set out for the provision of the Products/Services whether in writing, electronic or otherwise, which states the pricing and any payment schedule, as well as the Products/Services to be provided.

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade-marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs) 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 may, now or in the future, subsist in any part of the world relating to the Products, Services, Bespoke Services, Materials, Aggregated Materials, the System and the Website, owned by Peritus or Partners, and acquired by Peritus or Partners from time to time;

“Minimum Term” means 24-months following the Effective Date;

“Order” means an order placed by You with Peritus for the provision of Services;

"Permitted Purpose" means the use of the Software or Services covered by the terms of this Agreement;

“Personal Data” means data which relates to a living individual who can be identified from that data as described in the Data Protection Act 2018;

“Services” means any products or services that Peritus has agreed to provide You with, including, but not limited to, provision of access to the online library of resources, access to the online Learning Management System, use of content as a service in the subscription;

“Software” means the software, Products or Services that are made available by Peritus, as a service via the internet under this Agreement;

"Support Services" means support and maintenance services provided by Peritus or third-parties to the Customer; 

“Term” means the term of this Agreement;

“Upgrades” means new versions of, and updates to, the Software or Services, whether for the purpose of fixing an error, bug or other issue or enhancing the functionality of it; and

“Website” means the website which is used to access the Software or Services.

“You/Your” means a Customer

1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and 

(b) any subordinate legislation made under that statute or statutory provision.

1.3 The clause headings do not affect the interpretation of this Agreement.

1.4 No Agreement will come into existence until Peritus, its Agents or Partners provides You with confirmation Peritus has accepted the Order.

2. Order

2.1 Peritus will provide You with the Services subject to the conditions of the Agreement;

2.2 Each of Your Orders placed with Peritus shall be deemed to be an offer by You to purchase the Services subject to this Agreement;

2.3 No Agreement will come into existence until Peritus Learning & Development, its Agents or Partners provides You with confirmation Peritus Learning & Development has accepted the Order;

2.4 Peritus, its Agents, Affiliates or Partners sales and advertising literature in print and on the Website and any quotation provided by Peritus, its Agents, Affiliates or Partners are provided to indicate the nature of the Services but do not form part of this Agreement, unless agreed to in writing by Peritus;

3. The Services

3.1 Subject to the terms of this Agreement, Peritus hereby grants to the Customer a non-exclusive, non-assignable licence to allow the End Users to use the Services for the Permitted Purpose in accordance with this Agreement during the Term.

3.2 The licence granted by Peritus to the Customer under clause 3.1 is subject to the following limitations:

3.2.1 the Software and Services may only be used by the authorised End Users;

3.2.2 End Users must agree to and comply with any applicable end user licence agreement(s);

3.2.3 You shall maintain a written, up to date list of current End Users and provide this to Peritus within 5 Business Days of Peritus’ written request at any time.

3.3 The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Software or Services using the Customer's account.

3.4 The Customer must not use the Software or Services in any way that causes, or may cause, damage to them or impairment of the availability or accessibility of the Software, or any of the areas of, or services on, the Software.

3.5 The Customer acknowledges that certain maintenance activities regarding the Software and the Services may be necessary or appropriate from time to time, including bug fixes, software updates, feature updates, and the addition of new applications and new modules. Where such maintenance activities are not reasonably anticipated to materially impact the Customer’s use of the Software and/or any Services, Peritus will have no obligation to provide notice to the Customer regarding such maintenance activities. If Peritus reasonably determines that maintenance activities will require an unavailability or outage of the Software and/or the Services in excess of ten consecutive minutes, Peritus will use its reasonable endeavours to give the Customer advance notice. Peritus will use commercially reasonable efforts to perform routine scheduled maintenance during non-Business Hours.

4. Support Services and Upgrades

4.1 During the Term Peritus will provide the Support Services to the Customer, and may apply Upgrades to the Software or Services, in accordance with this Agreement.

5. Your Obligations

5.1 The Customer must have the required equipment, software, and internet access to be able to use the Software and Services. Acquiring, installing, maintaining and operating equipment, any Software, and internet access is solely the Customer's responsibility. Peritus neither represents nor warrants that the Software or Services will be accessible through all web browser releases or all versions of tablets, smartphones, or other computing devices.

5.2 Peritus will provide the Customer with an account to use the Software. The Customer and End Users are fully responsible for all activities performed on or through their account. The Customer agrees that it and each End User will:

5.2.1 provide true, accurate, current and complete information as prompted by any registration form;

5.2.2 maintain and promptly update such registration data to ensure the information is always true, accurate, current and complete;

5.2.3 immediately inform Peritus of any unauthorised use of an account or any other breach of security; and

5.2.4 exit from the account at the end of each work session. Peritus shall have no obligation to verify the data provided by the Customer or its End Users. However, if Peritus finds or suspects that the provided information is untrue, inaccurate, not current or incomplete, Peritus may suspend or terminate the Customer’s and/or the End User’s account and refuse any and all current or future use of the Software and/or Services (or any part of them).

5.3 The Customer will be assigned a password or passwords for access to and use of the Software. The Customer acknowledges that once the initial password provided to the Customer is changed, Peritus does not retain the technical ability to retrieve such passwords. The Customer is fully responsible for all activities that occur using Customer and End User passwords. The Customer acknowledges and agrees that Peritus will not be liable for any loss that the Customer or any End User may incur as a result of someone else using a password that has been assigned to or obtained by the Customer or its End Users, either with or without the knowledge of the Customer or the applicable End User. Nor will Peritus be liable or responsible for any unauthorised access or misuse of the Software by the Customer or any of its End Users.

5.4 The Customer will notify Peritus immediately of any unauthorised use of the Software and/or Services or any other breach of security that is known or suspected by the Customer, provided the Customer is legally able to give such notice. Peritus may suspend the access to the Software and/or Services in the event of any breach of clause 3, 5.2, to 5.4 by the Customer or any End User until such violation ceases and Peritus receives reasonable assurances that such breach will not continue. If Peritus believes, in its sole discretion, that the software, computing equipment or network systems owned or licensed by Peritus (collectively, “Peritus Systems”) are being currently used for criminal activity, in a manner that violates the legal rights of Peritus, Peritus’ customers (including the Customer), any user or other third party, or is experiencing an actual data loss or data misappropriation, or that the continued operation of the Peritus Systems places the Peritus Systems in potential danger of data loss, data breach, or catastrophic failure, then such suspension may occur prior to the giving of such notice to the Customer.

6. Ownership of the Software and Services

6.1 Title and ownership of all rights in the Software, Services, including Intellectual Property Rights are and will remain owned by Peritus or its third-party suppliers. The Customer acknowledges that the Software in source code form remains proprietary information of Peritus or its third-party suppliers and that the source code is not licensed to the Customer by this Agreement and will not be provided. The Software and/or Services may only be used by the Customer and its End Users.

6.2 You will not seek to copy, decompile or reverse‐engineer the Software and/or Services provided to You by Peritus

7. Fees

7.1 The Fees payable under this Agreement shall be in the amounts and payable on the terms set out at the point of sale.

7.2 All Fees are exclusive of VAT, unless the context requires otherwise. VAT will be payable by the Customer to Peritus in addition to the principal amounts.

7.3 If the Customer does not pay any amount properly due to Peritus under or in connection with this Agreement, Peritus may:

7.3.1 charge the Customer interest on the overdue amount at the rate of 8% per year above the base rate of the Bank of England from time to time (which interest will accrue daily and be compounded quarterly); or

7.3.2 claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

7.4 Peritus may suspend access to the Software and the provision of the Services if any amounts due to be paid by the Customer to Peritus under this Agreement are overdue.

7.5 You will pay all Fees due to Peritus without any set‐off, deduction, counterclaim or withholding of monies, including but not limited to bank charges and exchange rate effects.

7.6 Where a monthly payment structure has been agreed, the Fee shall be paid in advance and via a repeating charge to a Credit or Debit card of the Customer.

7.7 If You are dissatisfied with Peritus, its Agents or Partners delivery of its Products or Services, You must inform Peritus in writing within 14 days of the Effective Date. After this period no refunds or cancelations will be granted. 

8. Warranties

8.1 The Customer warrants and represents to Peritus that it has the legal right and authority to enter into and perform its obligations under this Agreement.

8.2 Peritus warrants to the Customer: 

8.2.1 that it has the legal right and authority to enter into and perform its obligations under this Agreement;

8.2.2 subject to clause 8.3, that it will provide the Software and Services in a manner consistent with general industry standards for this type of software and that the Software and Services will perform in accordance with this Agreement;

8.3 The Customer acknowledges that where the Software and Documentation, are provided or owned by third parties (“Third Party Content”). The Customer acknowledges and agrees that Peritus does not control, and is not responsible for, the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided, any Documentation, services, or products (including Software) that the Customer or an End User accesses, downloads, receives or purchase through or relating to Third Party Content. To the extent that the benefit of any warranties made by the third-party owner of the Software and/or Documentation can be assigned to the Customer, Peritus shall assign to the Customer the benefit of such warranty.

8.4 The Customer further acknowledges that:

8.4.1 complex software is never wholly free from defects, errors and bugs, and Peritus gives no warranty or representation that the Software will be wholly free from such defects, errors and bugs;

8.4.2 Peritus does not warrant or represent that the Software or Services will be compatible with any application, program or software

8.4.3 Peritus will not and does not purport to provide any legal, taxation or accountancy advice under this Agreement or in relation to the Software and (except to the extent expressly provided otherwise) Peritus does not warrant or represent that the Software will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.

8.5 All the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement.

9. Indemnities

9.1 The Customer will indemnify, defend, and hold harmless Peritus against all claims, actions or proceedings, (including legal expenses and amounts paid in settlement of any disputes) arising out of any claim that:

(i) any software used by the Customer to access the Software, Intellectual Property Rights, or Customer Materials provided by the Customer or its End Users or inputted into the Software, or the permitted use of the same by Peritus, infringes or violates any third-party patent, copyright or trade secret right;

(ii) the Customer’s unauthorised use or reproduction of the Software, the Services; or

(iii) Customer’s breach of clause 12.2 of this Agreement.

10. Limitations and exclusions of liability

10.1 Nothing in the Agreement will limit or exclude liability of a party:

10.1.1 for death or personal injury resulting from negligence;

10.1.2 for fraud or fraudulent misrepresentation by that party;

10.1.3 any liability that is not permitted to be limited or excluded under applicable law.

10.2 Subject to clause 10.1, Peritus will in no event be liable to the Customer for any indirect, special, incidental, exemplary or consequential damages or loss of goodwill in any way relating to this Agreement or resulting from the use of or inability to use the deliverables or the performance or non-performance of the Software or any Services, even if Peritus has been notified of the possibility or likelihood of such damages or loss occurring, and whether such liability is based on contract, tort, negligence, strict liability, product liability or otherwise.

10.3 Subject to clause 10.1, in no event shall Peritus’ liability to the Customer whether based on contract, tort, negligence, strict liability, product liability or otherwise, exceed the pro-rata portion of Charges received by Peritus from the Customer during the three (3) month period immediately preceding the events giving rise to such action.

10.4 The Customer shall not rely on the abilities or discernment of Peritus, its Agents or Partners to establish the suitability of the Products and Services for any particular purpose and the Customer must use their own abilities and discernment to satisfy themselves that the Products and Services are of merchantable quality and suitable for their intended purposes, even if an Agent or Partner of Peritus, has given written or verbal opinions concerning the suitability of the Products and Services for a particular purpose. This clause shall survive termination of this Agreement.

10.5 Peritus, its Agents or Partners shall not be liable and gives no warranties to the Customer or any third party as to the suitability of the Products and Services for any particular purpose, including but not limited to the accuracy of its Project Files, Learning Modules, Workbooks, Materials and other Resources. This clause shall survive termination of this Agreement.

10.6 The Customer agrees that the Project Files, Learning Modules, Workbooks, Materials and other Resources Peritus, its Agents or Partners provides access to for the Customer represent Peritus, its Agents or Partners’ professional opinions based on research and analysis and must not be relied upon as statements of fact. For the avoidance of doubt, Peritus, its Agents or Partners’ are not an employment or recruitment agency and does not recruit individuals to undertake certain jobs, roles or functions.

10.7 Peritus, its Agents or Partners are committed to helping organisations value diversity in the workplace and care has been taken to ensure the Products and Services do not unlawfully discriminate or label or stereotype individuals. Peritus, its Agents or Partners shall not be liable if the Customer or the End User(s) or agents through their acts or omissions, make decisions based on, or interpretations of, the Project Files, Learning Modules, Workbooks, Materials and other Resources that result in claims of unlawful discrimination or labelling or stereotyping of individuals.

11. Data protection

11.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Peritus under or in connection with this Agreement.

11.2 Peritus warrants that: 

11.2.1 it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Peritus on behalf of the Customer; and 

11.2.2 it will use commercially reasonable efforts in accordance with customary industry standards to implement administrative, physical and technical safeguards necessary to ensure the security, confidentiality and integrity of Personal Data and against loss or corruption of Personal Data processed by Peritus on behalf of the Customer.

12. Non-Disclosure & Confidentiality

12.1 Confidential Information

“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is of value to its owner and is treated as confidential (including all information which is subject to treatment as a ‘trade secret’ under applicable law) or should otherwise be reasonably understood to be confidential, in light of the context in which it is disclosed. Customer Data and Statistical Information shall expressly be considered as Confidential Information hereunder. Software, Documentation, and the terms and conditions of these Terms and Conditions (including pricing) shall expressly be considered as Confidential Information. For purposes of these Terms and Conditions, Confidential Information does not include any information that: (i) the Receiving Party establishes was publicly known at the time of the Receiving Party’s receipt or has become publicly known other than by a breach of these Terms and Conditions; (ii) prior to disclosure hereunder, it was already in the Receiving Party’s possession without restriction as evidenced by appropriate documentation; (iii) subsequent to any disclosure hereunder, the information is obtained by the Receiving Party on a non-confidential basis from a third-party who has the right to disclose such information; or (iv) was developed by the Receiving Party without any use of any of the Confidential Information as evidenced by appropriate documentation.

12.2 Disclosure

The Parties agree that, during the Term of these Terms and Conditions, each Party may disclose to the other Party certain Confidential Information of such Party or of such Party’s associated companies, distributors, licensors, suppliers, or customers.

12.3 Requirement of Confidentiality

(a) Each Receiving Party agrees to hold all Confidential Information disclosed to such Receiving Party by the Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information disclosed by the Disclosing Party to any third party, or utilize the Confidential Information disclosed by the Disclosing Party for any purpose whatsoever other than as expressly contemplated by the Agreement. 

(b) The Customer acknowledges that the Software and Documentation issued in connection with these Terms and Conditions, are the Confidential Information of Peritus. 

(c) With regard to all Confidential Information, the obligations in this Section 7 shall continue for the Term of the Agreement and for a period of three (3) years thereafter; provided, however, that, with respect to any Confidential 

Information which is a trade secret under applicable law, the obligations shall continue in perpetuity for so long as such information is considered a trade secret. 

(d) Notwithstanding anything to the contrary herein, if the Receiving Party is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Confidential Information, then the Receiving Party may disclose the requested Confidential Information; provided however, that, the Receiving Party shall first notify the Disclosing Party prior to disclosure, if allowed by law, in order to give the Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of these Terms and Conditions and shall disclose only that part of the Confidential Information which the Receiving Party is required to disclose.

12.4 Return of Materials

Upon the request of the Disclosing Party or upon the expiration or termination of the Agreement, the Receiving Party shall promptly destroy or deliver to the Disclosing Party all of the Disclosing Party’s Confidential Information and any notes, extracts or other reproductions in whole or in part relating thereto, without retaining any copy thereof. Notwithstanding the foregoing, the Receiving Party shall be permitted to retain such copies of Confidential Information as may be reasonably necessary for legal or recordkeeping purposes, including such copies as are embedded in the automated backup of electronic data processing systems.

12.5 Data Use

The Customer agrees that data derived by Peritus from Peritus’s performance of the Services or input by the Customer may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules, except that such analysis shall be performed only in conjunction with data derived by Peritus from Peritus’s performance of services for other customers, input by other Peritus customers or obtained from party data sources. The results of such analysis (“De-identified Data”) may be used by Peritus for any lawful purpose, including determining future hardware and communications needs for Peritus systems and determining trends associated with warehouse use, operation, and efficacy. Notwithstanding anything contained in this Agreement, De-identified Data shall not contain;

i. any Proprietary Information of the Customer;

ii. any information that identifies or can be reasonably used to identify an individual person;

iii. any information that identifies or can be reasonably used to identify the Customer or its affiliates, suppliers, or End Users; or

iv. any information that identifies or can be reasonably used to identify any activities or behaviours of the Customer. Except as otherwise provided herein, Peritus shall only use Customer’s Proprietary Information to the extent required for the proper delivery of the Services, including as necessary or appropriate to prevent technical problems (e.g. to resolve issues related to technical support).

12.6 Processing of Personal Data

To the extent that Peritus processes personal data (as that term is defined in Peritus’s Data Processing Addendum), of the Customer in the course of providing the Services, it shall do so in accordance with the Data Processing Addendum provided herewith.

12.7 You will not seek to copy, decompile or reverse‐engineer any Materials provided to You by Peritus, its Agents or Partners or third-parties in connection with the provision of the Products and Service covered in this Agreement.

13. Term & Termination

13.1 Initial Term

This Agreement shall commence on the Effective Date and for the Minimum Term as set out in this Agreement. Except as otherwise specified in any Order or the Front Sheet. This Agreement will automatically renew for additional periods equal to the expiring Term, unless either party gives notice of non-renewal at least ninety (90) days before the end of the expiring term. Unless earlier terminated as provided herein, this Agreement shall continue in full force and effect until the termination or expiration of the Initial Term or last Renewal Term in effect (the “Agreement Term”). To ensure continuation of service any renewal will need to be agreed by both parties at least ninety (90) days prior to expiry date of the Agreement.

13.2 Termination

Without prejudice to any other remedies and in addition to any other termination rights herein, the parties shall have the right to terminate this Agreement as provided below;

i. By either party if the other party commits a material or consistent breach of this Agreement and such breach remains uncured 30 days after written notice of such breach is delivered to such other party;

ii. By either party with immediate effect from the date of service on the other party of written notice if:

a. such other party becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (as amended);

b. such other party ceases or threatens to cease to carry on the whole or a substantial part of its business; any distress or execution shall be levied upon such other party’s property or assets, or any of its property is subject to the exercise of commercial rent arrears recovery;

c. such other party shall make or offer to make any voluntary arrangement or composition with its creditors; any resolution to wind up such other party (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency) shall be passed, any petition to wind up such other party shall be presented and not withdrawn or dismissed within seven days] or an order is made for the winding up of such other party;

d. such other Party is the subject of a notice of intention to appoint an administrator, is the subject of a notice of appointment of an administrator, is the subject of an administration application, becomes subject to an administration order, or has an administrator appointed over it;

e. a receiver or administrative receiver is appointed over all or any of such other party’s undertaking property or assets;

f. there is a change of control of either Party (within the meaning of section 1124 of the Corporation Tax Act 2010);

g. any bankruptcy petition is presented or a bankruptcy order is made against such other party; an application is made for a debt relief order, or a debt relief order is made in relation to the other party; and

h. such other party is dissolved or otherwise ceases to exist;

iii. By Peritus if any amounts owed remain unpaid for more than fifteen (15) days following written notice of such unpaid amounts being delivered to the Customer.

14. Effects of Termination

14.1 Upon termination of this Agreement, all the provisions of this Agreement will cease to have effect, save that any provisions expressed or implied to survive and continue shall continue to have effect in accordance with their terms or otherwise indefinitely.

14.2 Peritus will require Customer to sign a declaration confirming that all Peritus Files, Learning Modules, Workbooks, Materials and other Resources provided as part of the Services have been permanently removed from all Customer devices, servers or storage devices. Failure to provide this signed declaration 30 days post the End Date of the Agreement will result in the Customer being invoiced for an additional 12-month Term on the current Peritus pricing.

14.3 Termination of this Agreement or any Order will not affect the provisions regarding Peritus’s or the Customer’s treatment of Confidential Information and Trade Secrets, provisions relating to the payments of amounts due, indemnification provisions, the provisions of Section 12, and provisions limiting or disclaiming Peritus’s liability, which will survive such termination.

15. Notice

15.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement or such other address as may have been notified by that party for such purposes.

15.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

16. Force Majeure Event

16.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event.

16.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:

16.2.1 forthwith notify the other; and

16.2.2 will inform the other of the period for which it is estimated that such failure or delay will continue.

16.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

17. General

17.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

17.2 If a clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant clause will be deemed to be deleted).

17.3 Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.

17.4 Where the parties agree to Special Terms, in the event of conflict the Special Terms shall take precedence over these terms of business. Subject to this, the Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

17.5 Peritus may assign, transfer or sub-contract any of its rights, benefits or obligations under this Agreement but the Customer may not assign, transfer or sub-contract any of its rights, benefits or obligations under this Agreement without the prior written consent of Peritus.

17.6 This Agreement is made for the benefit of the parties to this Agreement and is not intended to benefit any third party or be enforceable by any third party. 

17.7 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 they cover.

17.8 This Agreement will be governed by and construed in accordance with the laws of England and Wales and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement (including non-contractual disputes or claims).