Platform and Solutions: Terms & Conditions

These Terms & Conditions set out the agreement (“the Agreement”) between Growth Engineering Ltd. and you for the provision of the (Software as a Service) SaaS Hosting Service. Your access to and use of the Service constitutes your acceptance and agreement to be bound by the Growth Engineering Ltd. Terms & Conditions.

DEFINITIONS IN THIS AGREEMENT

1. “Charges” or “charges” means any or all charges to you, whether for access to hosted applications and/or for Customer Support and any other Services or goods that you purchase from Growth Engineering Ltd. from time to time as set out in the prevailing Growth Engineering Ltd. SaaS Hosting Price List.
2. “the Internet” means the global data network comprising interconnected networks using Transmission Control Protocol/Internet Protocol.
3. “Service” means one or more of the SaaS hosting services provided by Growth Engineering Ltd. whereby you and your users gain access to and use a hosted service.
4. “Growth Engineering Ltd.”, “we” and “us” means Growth Engineering Limited (company number 5051892), whose registered office is Growth Engineering, Parkside House, 33-39 Sheet Street, Windsor, Berkshire, SL4 1BY, and the owners of this service.
5. “you” and “your organisation”means you, the person entering into this agreement with Growth Engineering Ltd. on behalf of the organisation that you belong to and you hereby represent and warrant to us that you are duly authorised to execute and deliver this Agreement on behalf of your organisation.
6. “your users” means all users that are registered within the communities provided as part of the Service.

RESPONSIBILITIES

(i) We will:

1. Provide you with access to the Service via website addresses that are specific to your users’ use of the Service;
2. Provide the Service as defined in the site specification above;
3. Invoice you periodically as laid out in our charges contained within this document;
4. Regularly update the Service
5. Handle any personal information you might supply to us when you use the Service in accordance with the Growth Engineering Ltd. Privacy Policy, which is published separately and which you should read.

(ii) You and your Organisation will:

1. Pay on demand the Charges by direct payment to our nominated bank account;
2. Comply with our payment terms as set out in our commercial agreement;
3. Comply with and be bound by the terms and conditions of this Agreement;

(iii) Your users will:

1. 1. Be responsible for interoperability between your users’ equipment and the Service;
   2. Adhere to the terms of your agreement with them.

INTELLECTUAL PROPERTY RIGHTS

1. Intellectual property rights in all software supplied to you as part of the Service remains the property of Growth Engineering Ltd or its licensor or other content owner. You will comply with the terms of any agreement required by the owner of intellectual property rights in all software supplied to you as notified to you.
2. Intellectual property rights in all content supplied by Growth Engineering as part of the Service including, but not limited to, the ISMM eLearning library, ISMM support materials including manager’s workbooks, ILM eLearning and ILM support packs including the manager’s workbook, remains the property of Growth Engineering Ltd or its licensor. You will comply with the terms of any agreement required by the owner of intellectual property rights in all software and content supplied to you as notified to you.
3. Intellectual property rights in all software supplied by you remains the property of your organisation or its licensor or other content owner.
4. Intellectual property rights in all content supplied by you as part of the Service remains the property of your organisation or its licensor.
5. For any content covered by intellectual property rights, including that referred to in 2 above, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any such content for the duration of the provision of the Service. When any content supplied by you is deleted, you agree that Growth Engineering may retain a copy for a reasonable time and only for the purpose of providing the Service. The use of such content remains subject to our data protection principles.
6. Where either party provides the other party with content, designs, storyboard ideas, software or other intellectual property, the providing party indemnifies the other party against any and all liabilities, costs, charges, expenses, damages, proceedings and actions resulting from claims by third parties over the usage of such intellectual property.
7. Where either party provides the other party with content, designs, storyboard ideas, software or other intellectual property that is subject to third party restrictions over its use, the other party agrees to comply with such usage restrictions or conditions when using such intellectual property and will procure that its agents, customers and contractors will similarly comply.

CONFIDENTIALITY & SECURITY

1. You agree that neither Growth Engineering Ltd nor its Service partners shall, under any circumstances, be held responsible or liable for situations where the data stored or communicated through the Service are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Growth Engineering Ltd at the time) which may exist in the Service. Electronic communications as provided within the Service are private, and only under situations where explicitly required or allowed by law will such communications be accessed, intercepted, disclosed, or used without the consent of at least one of the parties to the communication.
2. Although we will not systematically monitor the content that is submitted to, stored on or disseminated via the Service, we reserve the right, at our sole discretion, to edit or delete any information or other content that we believe violates the standards for content laid out in your agreement with your users as defined in Clause C(3) above
3. None of the Service data is accessible by any client directly, only through the Service itself. There is therefore no sharing, access or entering of any partner data. Our platform is hosted by Rackspace, with their firewall security described in full under the following link: http://www.rackspace.com/managed_hosting/services/…
4. All of the data will be stored in accordance with the server architecture documents supplied to you separately.

PRIVACY & CONTENT

1. All information and material submitted by your organisation and accepted by us via the Service by way of any contribution to the Service (the “Information”) shall be dealt with in accordance with our internal policies and relevant data protection legislation.
2. We will not share the “Information” with any third parties. The Information will only be used by us for the purposes of providing the Service and to remedy any errors or issues with the platform or any other aspects of the Service.
3. Upon termination of the Agreement, the Information will be returned to you upon written request and provided all outstanding payments of the fees due under this Agreement have been paid. In the absence of any such request within 30 days of the last date on which the Service was provided, we reserve the right to permanently delete the Information.
4. You agree the following with respect to the privacy and confidentiality obligations herein:
   • to notify us as soon as reasonably practicable of you becoming aware of any breach of security or unauthorised access with respect to the Information;
   • to provide us with any information or assistance which we may reasonably require to enable us to meet the obligations under any relevant legislation;
   • not to share any of the Information with any individual or entity who an authorised representative of Growth Engineering has not expressly named as being authorised to access the Information.
5. For the purposes of the relevant data protection legislation, the Data Controller and the Data Processor will be Growth Engineering Limited.

DISCLAIMER

1. We do not warrant that the Service provided will be uninterrupted or error free, nor do we make any warranty as to the results to be obtained from your use of the Service except as set out in the Growth Engineering Ltd Service Level Objectives.
2. You agree that your access to and use of the Service is performed on an “as is” basis without warranties of any kind, either express or implied, including but not limited to warranties of title or implied warranties of merchantability or fitness for a particular purpose.

OUR LIABILITY TO YOU

1. Nothing in this Agreement excludes or limits our liability for any death or personal injury caused by our negligence or the consequences of any fraud by us or any other liability the exclusion of which is prohibited by law.
2. Except as set out in Clause G(1) above, we are not liable to you (whether as a result of breach of the Agreement, negligence or other tort or otherwise) for any direct, indirect, incidental, special or consequential damages or losses arising out of access to or use of the Service or inability to access or use the Service or out of any breach of any warranty including, without limitation, damages or losses resulting from acts of god or events of similar case or the consequences of viruses received by you via the Service, even if we are advised of the possibility of such damages or losses.
3. Except as set out in Clause G(1) above, any liability we may have to you (whether as a result of breach of the Agreement, negligence or other tort or otherwise) is limited to the Charges payable for the applicable rental period.

INDEMNITY

1. You will indemnify and hold harmless Growth Engineering Ltd and its Service partners from and against any and all losses, liabilities, damages, costs, expenses, actions and claims of whatever nature or kind arising out of or in connection with your access to and use of the Service.

VARIATION OF THE TERMS OF THIS AGREEMENT

1. We reserve the right at our absolute discretion at any time and without notice to remove, amend or vary any of the software or content supplied in connection with the Service provided such alteration or amendment does not require any material change to this Agreement.
2. We reserve the right at our absolute discretion at any time to alter and/or amend this Agreement upon giving you 21 days’ notice in advance of any such amendment taking effect.
3. If, upon receiving any such notice, you do not wish to continue with the Service, you may terminate the Agreement as defined in Clause K below.
4. You will be deemed to have accepted any alteration and/or amendment to the Agreement and/or the Service if you continue to use the Service after the relevant period of notice has expired.

PAYMENT

1. You agree that the use of any of the Service by anyone from your organisation or any of your users, in any way, will be chargeable to and payable by you in accordance with these terms.
2. You agree to pay the fees as set out in your commercial agreement with Growth Engineering. All invoiced fees shall be paid in accordance with the terms stated on the relevant invoice.
3. To the extent that Growth Engineering have provided the Service or any other goods or services prior to the date of this Agreement, you shall pay the agreed fees for such goods or services in accordance with the terms of the relevant invoice.
4. You agree to refund to us the cost of collecting outstanding payments owed or charges incurred due to failed or referred transaction(s).
5. In the event that we do not receive payment of the Charges due on the due date, as specified in the commercial agreement, we reserve the right, at our sole discretion, and without notice to you, to suspend our performance under this agreement until payment is received.
6. The cost of your contract will increase by a minimum of 3% annually to cover inflation and salary increases. Details of such changes will be communicated to you by post or email. We will notify you of price changes 90 days in advance of the change taking effect. You shall be deemed to have accepted these changes if no written communication is received within this notice period.

TERMINATION

1. This Agreement will run from the first date on which your Service is operational (the “Start Date”) and will continue thereafter unless and until terminated by either of us as set out in this Clause.
2. The term of the Agreement is 3 years from the Start Date (the “Initial Term”) . The Agreement shall terminate at the end of the Initial Term upon either party giving the other not less than 90 days’ notice in writing of such termination, such notice to be effective on the expiry of the Initial Term.
3. Following the expiry of the Initial term and unless terminated in accordance with sub-clause 2 above, this Agreement will automatically renew for additional periods of 3 years (each an “Additional Term”) unless written notice is given to terminate this Agreement not less than 90 days prior to the end of the relevant Additional Term.
4. Either party may terminate this Agreement following the expiry of the period which is 2 years from the Start Date or, where relevant, the start of an Additional Term, provided such party gives the other notice in writing not less than 1 year prior to the date on which such proposed termination is to be effective.
5. We may also terminate the Agreement or suspend the performance of the Service to you, at our sole discretion, immediately and without notice if:
   • i) you breach this Agreement; or
   • ii) bankruptcy or other insolvency proceedings are brought against you; or
   • iii) you are no longer able lawfully to receive the Service; or
   • iv) we do not receive payment of the Charges due within 10 days of the due date.
6. You may also terminate the Agreement at your sole discretion, immediately and without notice if:
   • i) we breach this Agreement
   • ii) bankruptcy or other insolvency proceedings are brought against us; or
   • iii) we are no longer able lawfully to provide the Service.
7. If we suspend the Service, either pursuant to Clause J(3) above, or under this Clause, you must continue paying the Charges (if applicable) unless and until the Service is terminated.
8. In the event of termination of this Agreement you will remain responsible for all Charges you have incurred to the date of termination.
9. In the event of termination of this Agreement we will remain responsible for providing the Service to you and your users up to the date of termination.
10. We reserve the right after the termination date to delete any email and application data that has been created through the use of the Service.
11. Termination of this agreement does not affect any obligations that have arisen on either party prior to termination.

NOTICES AND COMMUNICATIONS

1. Unless otherwise provided in this Agreement, any notices shall be sent by recorded post.
2. In the case of communications sent by email, such communications shall be deemed to be received when capable of being accessed by the recipient. In the case of notices sent to us by post, such notices shall be deemed to be received on being signed for at the delivery address.
3. In the case of notices to you, we will use the postal or email address you have given us in your registration details or to any other address provided to us subsequently.
4. In the case of notices to us, the following address details are to be used: Growth Engineering Ltd, Parkside House, 33 – 39 Sheet Street, Windsor, Berkshire, SL4 1BY United Kingdom (in writing sent by recorded delivery). Other communications can be sent by email to: info@growthengineering.co.uk
5. Neither party shall issue any publicly disseminated statement using the name of the other party as a customer or provider without the other party’s consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, Growth Engineering may mention your company by name during Growth Engineering investor-related communications and list your name and logo alongside Growth Engineering’s other clients on the Growth Engineering website and in marketing materials, unless and until you revoke such permission.

SETTLEMENT OF DISPUTES

1. If any dispute arises out of this Agreement the parties will attempt to settle it by negotiation.
2. If the parties are unable to settle any dispute by negotiation within 21 days the parties will attempt to settle it by mediation in accordance with the UK Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. The courts of England shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of, or in connection with, the mediation.
3. If the parties have not settled the dispute by the mediation within 21 days from when the mediation was instituted, the dispute shall be referred to, and finally resolved by, arbitration under the Rules of the Chartered Institute of Arbitrators, which Rules are deemed to be incorporated by reference to this clause. The arbitration will take place in England and the language of the arbitration will be English.
4. The award of the Arbitrator will be final and binding upon the Parties concerned.
5. Both parties will share the cost of mediation and/or arbitration equally.

GENERAL

1. If any part of this Agreement is deemed unenforceable (including any provision in which we exclude our liability to you) the enforceability of any other part of these conditions will not be affected.
2. This Agreement shall be governed by and interpreted in accordance with English law.
3. These terms and conditions set out the whole of our agreement relating to our supply of the Service. They cannot be varied except in writing by a director of Growth Engineering Ltd. In particular, nothing said by any employee on behalf of Growth Engineering Ltd should be understood as a variation of these terms and conditions or an authorised representation about the Service or the nature and quality of items displayed thereon. We shall have no liability for any such representation being untrue or misleading.