Terms & Conditions
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 7.
Data Controller, Data Processor and Data Subject: shall have the meaning given to the terms “controller”, “processor”, “processing”, and “data subject” respectively in Article 4 of the GDPR.
Fee: fee for the Services to be provided under this Agreement, as specified in the Order.
Initial Term: the initial term for which the Services are to be provided, as specified in the Order.
ICO: the UK’s supervisory authority, the Information Commissioner’s Office..
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
Order: the order for the Services attached hereto.
Personal Data: all such “personal data”, as defined in Article 4 of the GDPR, to be processed by the Data Processor on behalf of the Data Controller.
Services: the provision of e-learning training module(s) via DeltaNet’s proprietary electronic training platform or via the Customer’s platform or system including the Software, hosting setup and ongoing services, as described in the Order and in DeltaNet’s relevant literature from time to time.
Software: the software provided by DeltaNet enabling the use of the Services.
Term: period consisting of the Initial Term and any successive renewal periods thereafter as further described under clause 6.1.
2.1 DeltaNet authorises the Authorised Users to use the Services for which the Customer agrees to pay DeltaNet the Fee.
2.2 The licence for the Services granted under this Agreement commences on the date of this Agreement and terminates:
2.2.1 At the end of the Term; or
2.2.2 if this Agreement is terminated pursuant to clause 6.
2.3 DeltaNet hereby grants each Authorised User, subject to the Terms and Conditions of this Agreement, a non-exclusive, non-transferable licence to use the Services solely for the Customer’s internal business purposes. For the avoidance of doubt nothing in this Agreement grants the Customer any rights whatsoever in or relating to the source code of the Software used to access the Services.
2.4 The Customer shall not have the right to sell, sub-licence, broadcast, transmit or copy the Services or otherwise grant any rights in the Services to any person or entity.
2.5 The Customer will ensure that: (i) the Authorised Users will not share their username and password allocated to them by DeltaNet for the provision of the Services and (ii) the Services are only used by Authorised Users.
2.6 The Customer acknowledges and agrees that DeltaNet and its licensors own all Intellectual Property Rights in the Services. Except as expressly stated in this Agreement. DeltaNet does not grant the Customer any rights to its Intellectual Property Rights, or any other rights or licences in respect of the Services or any related services or documentation.
3.2 DeltaNet will be entitled to claim statutory interest from the Customer for late payments. DeltaNet will also be entitled to reclaim reasonable costs incurred during the recovery of unpaid Fees.
3.3 DeltaNet reserve the right to suspend the Services to the Customer where any undisputed amounts owed by the Customer remain overdue for 60 days so long as DeltaNet has provided the Customer with written notification (which may be by email) of such default, until all such undisputed amounts have been paid in full (together with any accrued interest).
3.4 Any reasonable out of pocket expenses, such as travel costs, hotel accommodation and subsistence incurred by DeltaNet during the execution of the contract will be recharged to the Customer at cost.
4.2 DeltaNet will use reasonable endeavours to ensure the Services are accurate and up to date on an ongoing basis.
5. LIMITATION OF LIABILITY
5.1 This clause sets out DeltaNet’s entire financial liability to the Customer in respect of:
5.1.1 Any breach of this Agreement;
5.1.2 Any use made by the Customer of the Services or any part of them; and
5.1.3 Any representation, statement or tortious act or omission (whether negligent or otherwise) arising under or in connection with this Agreement.
5.2 Nothing in this Agreement shall be construed as an attempt by DeltaNet to exclude or limit its liability to the Customer in respect of:
5.2.1 Death or personal injury to the extent caused by negligence; or
5.2.2 Any fraudulent pre-contractual misrepresentations made by DeltaNet on which the Customer can show to have relied.
5.3 Subject to clause 5.2 above, in no event shall DeltaNet be liable in contract, tort (including negligence) or otherwise however to the Customer (including its officers, employees, agents, affiliates or sub-contractors) for any of the following loss or damage:
5.3.1 loss of sales;
5.3.2 loss of profit;
5.3.3 loss of business;
5.3.4 loss of revenue;
5.3.5 third party claims; or
5.3.6 indirect or consequential loss
even if such loss was in the reasonable contemplation of the parties at the commencement date or reasonably foreseeable or either party had been advised of the possibility of such damages.
5.4 Subject to clauses 5.1, 5.2, 5.3, 5.10, 5.11 and 5.12 DeltaNet’s total aggregate liability to the Customer under or in connection with or in relation to this Agreement whether arising from negligence, breach of contract or otherwise, shall not exceed the value of the Fee paid by the Customer.
5.5 DeltaNet shall have no liability whatsoever for any defects in the Services or its breach of this Agreement arising out of or in connection with:
5.5.1 An event of force majeure, including acts, events, omissions or accidents beyond Deltanet’s reasonable control, including without limitation default of sub-contractors, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or communications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.
5.5.2 The negligence, wilful damage or fault of any person (other than DeltaNet or its authorised sub-contractors or agents);
5.5.3 The failure by any person (other than DeltaNet or its employees, authorised sub-contractors or agents) to use the Services in accordance with DeltaNet’s reasonable requirements;
5.5.4 Any repair, alteration, amendment, modification or addition to the Services by any person other than one of DeltaNet’s employee, or authorised sub-contractor or agent without DeltaNet’s prior written consent;
5.5.5 The Customer’s failure to comply with any of its obligations under this Agreement;
5.5.6 Any fault or defect arising from accidental damage, wear and tear or any fault or defect arising from use of the Services otherwise than in accordance with this Agreement, or other of DeltaNet’s reasonable requirements;
5.5.7 Any fault or defect in the Services arising other than as a direct and sole result of a fault or defect in the specification.
5.6 DeltaNet shall have no liability whatsoever for any bespoke modification conducted upon the Customer’s request.
5.7 The Customer shall be liable for, and shall indemnify (and keep indemnified) DeltaNet in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by DeltaNet arising directly or in connection with:
5.7.1 any non-compliance by the Customer with the GDPR or other applicable legislation;
5.7.2 any Personal Data processing carried out by DeltaNet in accordance with instructions given by the Customer that infringe the GDPR or other applicable legislation; or
5.7.3 any breach by the Customer of its obligations under this Agreement,
except to the extent that DeltaNet is liable under sub-Clause 5.8.
5.8 DeltaNet shall be liable for, and shall indemnify (and keep indemnified) the Customer in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by the Customer arising directly or in connection with DeltaNet’s Personal Data processing activities that are subject to this Agreement:
5.8.1 only to the extent that the same results from DeltaNet’s breach of this Agreement; and
5.8.2 not to the extent that the same is or are contributed to by any breach of this Agreement by the Customer.
5.9 The Customer shall not be entitled to claim back from DeltaNet any sums paid in compensation by the Customer in respect of any damage to the extent that the Customer is liable to indemnify DeltaNet under sub-Clause 5.7.
5.10 Nothing in this Agreement (and in particular, Clauses 5.7, 5.8 and 5.9) shall relieve either Party of, or otherwise affect, the liability of either Party to any data subject, or for any other breach of that Party’s direct obligations under the GDPR. Furthermore, the Customer hereby acknowledges that it shall remain subject to the authority of the ICO and shall co-operate fully therewith, as required, and that failure to comply with its obligations as a data processor under the GDPR may render it subject to the fines, penalties, and compensation requirements set out in the GDPR.
5.11 The Customer acknowledges that the Services are not intended to constitute legal advice for any specific situation.
5.12 The parties agree that the limitations of liability in this Agreement are reasonable, and that the limitations of liability are taken into account in the value of the Fee and the Customer’s ability to insure against any liabilities and claims arising pursuant to this Agreement.
6. TERM – TERMINATION
6.1 This Agreement shall commence on the date hereof and continue for the Initial Term. It shall automatically renew for successive twelve (12) month periods, each a renewal term, unless terminated in accordance with clause 6.4.
6.2 DeltaNet reserves the right to terminate this Agreement and the access to the Services if, for any reason, the Customer is in material breach of any of its terms and such breach is not remedied within twenty (20) days after DeltaNet has given the Customer written notice.
6.3 The Customer and all Authorised Users’ access to the Services shall immediately cease upon termination of this Agreement.
6.4 Either party may terminate this Agreement upon not less than three (3) months prior notice. Providing notice will not prevent the agreement entering a renewal term, as outlined in clause 6.1, where insufficient notice has been provided.
6.5 The Customer shall not be entitled to a refund for any unused proportion of the Initial Term or any subsequent renewal term.
6.6 The provisions of clauses 2, 5, 7, and 10 hereof shall survive any termination of this Agreement.
7.1 “Confidential Information” means any and all confidential information and knowledge of either party, including, but not limited to, the Services, the Software, proprietary methods and methodology, technical data, trade secrets, know-how, research and development information, product plans, products, services, suppliers, markets, computer software, inventions, processes, formulae, technology, designs, drawings, page schematics, data schematics, screen designs, technical information, engineering information, hardware configuration information, and matters of a business nature such as information regarding marketing, costs, pricing, finances, financial models and projections, billings or other similar business information.
7.2 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
7.2.1 Is or becomes publicly known other than through any act or omission of the receiving party; or
7.2.2 Was in the other party’s lawful possession before the disclosure; or
7.2.3 Is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
7.2.4 Is independently developed by the receiving party which independent development can be shown by written evidence; or
7.2.5 Is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body
7.3 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
7.4 Each party shall use its best endeavours to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed in violation of the terms of this Agreement.
7.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
7.6 The Customer acknowledges that the Software is DeltaNet’s Confidential Information.
7.7 This paragraph shall survive termination of this Agreement, however arising.
8. DATA PROCESSING
8.1 Where there is a requirement to process Personal Data under this Agreement DeltaNet will perform the role of Data Processor on behalf of the Customer (“Data Controller”).
8.2 DeltaNet will only carry out the Services, and only process the Personal Data received from the Data Controller:
8.2.1 for the purposes of those Services and not for any other purpose;
8.2.2 to the extent and in such a manner as is necessary for those purposes; and
8.2.3 strictly in accordance with the express written authorisation and instructions of the Customer (which may be specific instructions or instructions of a general nature or as otherwise notified by the Customer to DeltaNet).
8.3 All instructions given by the Customer to DeltaNet shall be made in writing and shall at all times be in compliance with the GDPR and other applicable laws. DeltaNet shall act only on such written instructions from the Customer unless DeltaNet is required by law to do otherwise (as per Article 29 of the GDPR).
8.4 DeltaNet shall promptly comply with any request from the Customer requiring DeltaNet to amend, transfer, delete, or otherwise dispose of the Personal Data.
8.5 DeltaNet shall transfer all Personal Data to the Customer on the Customer’s request in a reasonable format, at the times, and in compliance with the Customer’s written instructions.
8.6 Both Parties shall comply at all times with the GDPR and other applicable laws and shall not perform their obligations under this Agreement or any other agreement or arrangement between themselves in such way as to cause either Party to breach any of its applicable obligations under the GDPR.
8.7 The Customer hereby warrants, represents, and undertakes that the Personal Data shall comply with the GDPR in all respects including, but not limited to, its collection, holding, and processing.
8.8 DeltaNet agrees to comply with any reasonable measures required by the Customer to ensure that its obligations under this Agreement are satisfactorily performed in accordance with any and all applicable legislation from time to time in force (including, but not limited to, the GDPR) and any best practice guidance issued by the ICO.
8.9 DeltaNet shall provide all reasonable assistance (at the Customer’s cost) to the Customer in complying with its obligations under the GDPR with respect to the security of processing, the notification of Personal Data breaches, the conduct of data protection impact assessments, and in dealings with the ICO.
8.10 When processing the Personal Data on behalf of the Customer, DeltaNet shall:
8.10.1 not process the Personal Data outside the European Economic Area (all EU member states, plus Iceland, Liechtenstein, and Norway) (“EEA”) without the prior written consent of the Customer and, where the Customer consents to such a transfer to a country that is outside of the EEA, to comply with the obligations of DeltaNet under the provisions applicable to transfers of Personal Data to third countries set out in Chapter 5 of the GDPR by providing an adequate level of protection to any Personal Data that is transferred.
8.10.2 not transfer any of the Personal Data to any third party without the written consent of the Customer.
8.10.3 process the Personal Data only to the extent, and in such manner, as is necessary in order to comply with its obligations to the Customer or as may be required by law (in which case, DeltaNet shall inform the Customer of the legal requirement in question before processing the Personal Data for that purpose unless prohibited from doing so by law).
8.10.4 implement appropriate technical and organisational measures and take all steps necessary to protect the Personal Data against unauthorised or unlawful processing, accidental loss, destruction, damage, alteration, or disclosure.
8.10.5 if so requested by the Customer supply further details, within reasonable timescales, of the technical and organisational systems in place to safeguard the security of the Personal Data held and to prevent unauthorised access.
8.10.6 keep detailed records of all processing activities carried out on the Personal Data in accordance with the requirements of Article 30(2) of the GDPR;]
8.10.7 make available to the Customer any and all such information as is reasonably required and necessary to demonstrate DeltaNet’s compliance with the GDPR;
8.10.8 On reasonable prior notice, submit to audits and inspections and provide the Customer with any information reasonably required in order to assess and verify compliance with the provisions of this Agreement and both Parties’ compliance with the requirements of the GDPR. The requirement to give notice will not apply if the Customer has reasonable grounds to believe that DeltaNet is in breach of any of its obligations under this Agreement or under the law; and
8.10.9 inform the Customer immediately if it is asked to do anything that infringes the GDPR or any other applicable data protection legislation.
8.11 DeltaNet shall maintain the Personal Data in confidence, and in particular, unless the Customer has given written consent for DeltaNet to do so, DeltaNet shall not disclose any Personal Data supplied to DeltaNet by, for, or on behalf of, the Customer to any third party. DeltaNet shall not process or make any use of any Personal Data supplied to it by the Customer otherwise than in connection with the provision of the Services to the Customer.
8.12 DeltaNet shall ensure that all personnel who are to access and/or process any of the Personal Data are contractually obliged to keep the Personal Data confidential.
8.13 The obligations set out in in Clauses 8.11 and 8.12 shall continue for a period of 12 months after the cessation of the provision of Services by DeltaNet to the Customer.
8.14 Nothing in this Agreement shall prevent either Party from complying with any requirement to disclose Personal Data where such disclosure is required by law. In such cases, the Party required to disclose shall notify the other Party of the disclosure requirements prior to disclosure, unless such notification is prohibited by law.
8.15 DeltaNet shall, at the written request of the Customer, delete (or otherwise dispose of) the Personal Data or return it to the Customer in the format(s) reasonably requested by the Customer within a reasonable time after the earlier of the following:
8.15.1 the end of the provision of the Services under this Agreement; or
8.15.2 the processing of that Personal Data by DeltaNet is no longer required for the performance of the DeltaNet’s obligations under this Agreement.
8.16 Following the deletion, disposal, or return of the Personal Data under Clause 8.15, DeltaNet shall delete (or otherwise dispose of) all further copies of the Personal Data that it holds, unless retention of such copies is required by law, in which case DeltaNet shall inform the Customer of such requirement(s) in writing.
9. DATA SUBJECT ACCESS, COMPLAINTS, AND BREACHES
9.1 DeltaNet shall assist the Customer in complying with its obligations under the GDPR. In particular, the following shall apply to data subject access requests, complaints, and data breaches.
9.2 DeltaNet shall notify the Customer without undue delay if it receives:
9.2.1 a subject access request from a data subject; or
9.2.2 any other complaint or request relating to the processing of the Personal Data.
9.3 DeltaNet shall cooperate fully with the Customer and assist as required in relation to any subject access request, complaint, or other request, including by:
9.3.1 providing the Data Controller with full details of the complaint or request;
9.3.2 providing the necessary information and assistance in order to comply with a subject access request;
9.3.3 providing the Customer with any Personal Data it holds in relation to a data subject (within the reasonable timescales required by the Customer); and
9.3.4 providing the Customer with any other information requested by the Customer.
9.4 DeltaNet shall notify the Customer immediately if it becomes aware of any form of Personal Data breach, including any unauthorised or unlawful processing, loss of, damage to, or destruction of any of the Personal Data.
All notices required or permitted to be given by one party to the other under this Agreement shall be in writing and shall be sufficient if: (i) personally delivered, (ii) sent by certified mail, return receipt requested, or (iii) sent by an internationally-recognised courier service with signed acknowledgement of delivery to the parties at their respective addresses set forth on the Order or to such other address as the party to receive the notice has designated by notice to the other party. All notices and requests shall be deemed as given as of the business day of receipt by the respective party.
11. NO ASSIGNMENT OR SUBLICENSING
The Customer shall not assign, sublicence or transfer this Agreement to any third party without DeltaNet’s prior, written consent in each instance.
12.1 The Customer and DeltaNet are independent contractors, and nothing herein shall be construed to create a partnership, joint venture, agency or employment relationship between the parties.
12.2 In consideration of the rights granted under this Agreement, DeltaNet shall have the right to include the Customer’s name and logo in its client lists and to otherwise disclose to third parties that the Customer is a purchaser and user of the Services for the purpose of marketing DeltaNet and/or the Services.
12.3 This Agreement applies to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
12.4 If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
12.5 The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any right hereunder.
12.6 This Agreement and the Order attached hereto contain the complete and exclusive statement of the Agreement between the parties, and supersede and merge all prior proposals, understandings and all other agreements, oral and written between the parties relating to the subject matter of this Agreement. This Agreement may not be amended or modified except by a written instrument duly executed by both parties.
12.7 English law governs this Agreement and the parties submit to the non-exclusive jurisdiction of the English courts.
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