Bespoke Terms & Conditions – US

GENERAL TERMS

1. INTERPRETATION

In these Terms the following words have the following meanings:

“Agreement” the agreement between the Client and the Company incorporating the Project Terms, these General Terms and the Project Specification;

“Budget” the amount set out in the Project Terms or where no fixed amount is provided for in the Project Terms the Company shall charge a fee based on the time and work involved in accordance with the Company’s rate card as amended from time to time

 “Change” any proposed amendment, alteration, or addition to the Project;

 “Client” the client set out in the Project Terms;

“Company” Learning Pool Inc, whose registered office is situated at 77 Sleeper Street, One Seaport Square, Boston, MA 02210;

“Delivery Date” the date the Project is delivered to the Client ;

“Deliverables”  the deliverables as set out in the Project Terms;

 “Existing Material” any material, (including but not limited to software, documentation or data), which is existing at the date of this Agreement or produced after the date of this Agreement independently of this Agreement whether or not same forms part of a Deliverable under the Agreement;

“Input Material” means any and all documents, information and materials (including without limitation software, content, pictures or other images, media files, data, maps, plans, designs, drawings, photographs, source code, artwork, computer graphics,  video, film rushes, scripts, master copies) provided by the Client;

“Intellectual Property Rights” means any patent, copyright, registered or unregistered design right, database right ,registered or unregistered trade mark, rights in relation to confidential information or any other intellectual property rights in any part of the world;

“New Material” any material (including but not limited to documentation or data) created written or otherwise brought into existence by or on behalf of the Company in the course of performing the Agreement and which forms part of a Deliverable, and in which subsists newly created Intellectual Property Rights but specifically excludes, Other Material ,software and Existing Material;

“Other Material” software, software tools, software sub-routines or modules which can be re-used to configure or build software applications, and methodologies created or enhanced by the Company during the performance of this Agreement

“Payment Schedule” the schedule set out in the Project Terms setting out the milestones or events at which invoices will be raised;

“Payment Terms” the number of days set out in the  Project Terms within which an invoice is due for payment;

“Project” the project identified and specified in the Project Terms and Project Specification;

 “Project Specification” any and all documents, information and materials issued by the Company to the Client setting out the details of the Project and including without limitation the design specification and scripts as updated from time to time;

“Project Terms” the document produced by the Company setting out details of the parties to this Agreement, the specifics of the Project and any special conditions;

“Schedule” the anticipated schedule for the Project

 “Third Party Materials” any and all documents, information and materials (including without limitation software, content, pictures or other images, media files, data, maps, plans, designs, drawings, photographs, and source code) provided by the Company for incorporation in the Project to which the Company does not own the rights;

“Warranty Period” a period of days from the Delivery Date as set out in the Project Terms.

2. CONTRACT

2.1 Subject to clause 3.3 below, the Company agrees to produce the Project and provide the Deliverables to the Client subject to and in accordance with the terms of this Agreement.

2.2 This Agreement constitutes the entire agreement between the Client and the Company in respect of the Project. No terms proposed by the Client or other terms not expressed in this Agreement shall apply unless the Company expressly agrees in writing to their incorporation in the Agreement.

2.3 In the absence of a further agreement, these General Terms will apply to all future bespoke commissioning projects produced by the Company for the Client.

3. THE SERVICES

3.1 The Company shall use reasonable skill and care to produce the Project and the Deliverables in accordance with this Agreement.

3.2 The Company and the Client shall each nominate a Project representative who will be responsible for liaising with each other in respect of the Project. Each of the Company and the Client shall provide the other with contact details for the relevant representative.

3.3 The Client shall at its own expense provide all assistance, co-operation, and Input Materials requested by the Company in relation to the Project in a timely manner.

3.4 Any request by the Client for a Change must be agreed in writing by the Company. Such request should be notified in writing to the Company and the Company shall notify the Client of its decision in this regard and of the relevant revisions/changes required (including any changes/revisions to the Budget and/or Schedule). Such revisions/changes shall only take effect once the Client notifies the Company in writing of agreement in respect of same. Where the Company requests a Change, it should notify the Client in writing and such Change   shall only take effect once the Client notifies the Company in writing of agreement in respect of same. This Agreement shall be deemed to be amended to reflect any Change implemented pursuant to this clause.

4. DELAYS

4.1 The Budget has been prepared on the basis of project continuity being maintained, including timely review and/or testing of the Deliverables by the Client. Any delays requested or caused directly or indirectly by the Client may result in additional costs and expenses, including without limitation additional staffing, equipment or material charges. The Client shall be liable for such additional costs and expenses and the Budget shall be increased accordingly.

5. DELIVERY 

5.1 Subject to the terms of this Agreement, and to payment in full of all sums payable in accordance with this Agreement or any other agreement with the Client, upon completion of the Project the Company shall deliver the Deliverables to the Client.

5.2 Any dates in the Schedule, including without limitation in respect of Project milestones and delivery are approximate only and the Company shall not be liable for any delays however caused and the Client shall not be entitled to refuse to accept late delivery or to treat late delivery as a breach of contract. Timing (other than in respect of payment) shall not be of the essence.

5.3 The Company will not be responsible for installing the Deliverables unless specifically agreed in the Project Specification.

6. WARRANTY 

6.1 The Company warrants that, for the Warranty Period of 60 days, the Deliverables will perform substantially in accordance with the specifications set out in the Project Specification. In the event of a failure to do so, Company agrees to remedy the defect as soon as reasonably practicable having regard to the impact of the defect, without charge.  This shall be the Client’s exclusive remedy for a breach of this warranty.

6.2 The warranty set out at clause 6.1 above does not cover:

6.2.1 any failure of the Deliverables to be fit for the Client’s purpose – it is the Client’s responsibility to ensure that its purposes are encapsulated in the Project Specification;

6.2.2 any failure of the Deliverables caused by the Client’s use of them other than in accordance with this Agreement or reasonable instructions for use issued by the Company; or

6.2.3 any failure of the Deliverables arising from  use in conjunction with any equipment or software not detailed in the Project Specification.

6.2.4 Corrections to the completed Deliverables resulting from the Client’s failure to carry out adequate review and/or testing of Deliverables in their environment during development.

6.2.5 any failure of the Deliverables arising from any modification, variation, or addition to same not performed by the Company

The Company may, in its sole discretion, agree to remedy any such problems during the Warranty Period, at its normal charge rates.

7. ACCEPTANCE TESTING 

7.1 Within 7 Business Days of the date of delivery of each Deliverable to the Client, the Client shall carry out Acceptance Tests in respect of the relevant Deliverable(s). The Acceptance Tests and the relevant criteria for acceptance shall be as set out in the Project Specification. The Client must notify the Company of the results of the Acceptance Tests within 10 Business Days of the date of delivery or the Deliverables shall be deemed to be accepted. If the Deliverables fail the Acceptance Testing the Client shall notify the Company in writing and provide full and complete reasons and details of such failure. The Company shall provide amended Deliverables in respect of any Deliverables properly rejected as soon as reasonably practicable.

8. INTELLECTUAL PROPERTY

8.1 All Intellectual Property Rights in and to all Input Materials shall remain with the Client or its licensors. The Client, by providing such Input Materials to the Company confirms that the Company has the right to use, modify, adapt, and edit such materials for use in relation to the Project. The Client agrees that, where appropriate, the Company may incorporate “screen grabs” of its software (including third party software) for incorporation in the Project and/or the Deliverables. The Client warrants and undertakes that any Input Material and its use by the Company will not infringe the copyright or other rights of any third party and the Client shall indemnify the Company against any loss, damages, costs, expenses or other claims arising from any third party claims relating to the Input Materials.

8.2 All Intellectual Property Rights in New Material shall belong to the Client and the Company agrees to assign to the Client all Intellectual Property Rights in New Material. This Agreement does not affect the Intellectual Property Rights in Existing Material or Other Material. For any Intellectual Property Rights in Existing Material or Other Material which the Client reasonably requires to take the benefit of this Agreement  the Company agrees to grant a royalty-free, irrevocable and non-exclusive licence (with a right to sub–licence) to use such Intellectual Property Rights but only as part of the Project.

8.3 The Company will obtain or procure for the Client all necessary permissions, consents and releases from authors, artists, photographers, models and any other persons commissioned by the Company in connection with this Agreement.

8.4 In the event that Third Party Materials are incorporated into the Project and/or the Deliverables the Company shall to the extent possible and where applicable either:

8.4.1 grant the client a limited royalty free non-exclusive non-transferable licence to use; or

8.4.2 redistribute to the Client Third Party Materials for the purpose for which it is intended.

The Client shall only use such Third-Party Materials in accordance with the terms of any accompanying licence.

Save as expressly permitted by such licence or by applicable law, the Client shall not;

1. copy the Third-Party Materials save for the purpose of making one back-up copy;
2. adapt, translate, reverse engineer, decompile or disassemble the Third-Party Materials; or
3. create any work derived from the Third-Party Materials or merge the Third-Party Materials with any other software/assets.

and the Client shall indemnify and keep indemnified the Company against all claims, demands, actions, expenses arising directly or indirectly from any breach or non-observance by the Client of any of the Third-Party Materials licence terms. The Company shall be under no liability in respect of Third Party Materials and gives no warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, in respect of which the Client shall only be entitled to the benefit of any such warranty or guarantee as is given by the relevant third party (if any).

9. MATERIALS AND RIGHTS OF USE

9.1 Title in and to the Deliverables shall not pass to the Client until the Company has received  cleared funds payment in full in accordance with this Agreement or any other agreement with the Client

9.2 Input Materials may be kept by the Company for a limited period of time after completion of the work commissioned under this Agreement.  The Company reserves the right to dispose of the Input Materials unless it has specifically otherwise agreed in writing.

9.3 The Company reserves the right to use all or part of the Deliverables for demonstrating its expertise to potential clients, subject always to the provisions of clause 14.  Unless otherwise agreed, the Company may publicise the fact that it has worked on the Project and for the Client.

10. CHARGES AND PAYMENT

10.1 The Client shall pay the Company all sums due under this Agreement in accordance with the Payment Schedule and Payment Terms set out in the Project Terms in cleared funds into a bank account nominated by the Company from time to time in writing. All payments shall be made in full without any set-off, deduction or withholding. In the event of failure by the Client to do so, the Company reserves the right (without prejudice to its other rights and remedies) to temporarily cease work on the Project with the possible resulting delay in its completion or delivery, and/or terminate the Agreement, and/or exercise it’s statutory right to interest and fixed sums under the Late Payment of Commercial Debts (Interest) Act 1998.  The Company also reserves the right to require sums on account of future payments prior to resuming work on the Project.

10.2 The figures given exclude tax which, where applicable, will be charged by the Company and paid by the Client.

10.3 All Company invoices must be paid within the Payment Terms. Invoices will be sent to the Client’s nominated project representative, unless agreed otherwise.

10.4 Expenses incurred by the Company (such as, but not limited to, materials, reasonable travel, accommodation, subsistence and courier services) will be charged as extra should they be required unless otherwise stated in the Project Terms.

10.5 Time for payment shall be of the essence and no payment shall be deemed to have been received until the Company has received cleared funds.

10.6 All payments payable to the Company under this Agreement shall become due immediately upon termination of the Agreement despite any other provision.

10.7 The Company may exercise a lien over any Input Materials in its possession until payment in full plus tax together with any interest outlays and expenses in accordance with this Agreement and any other agreement with the Client.

10.8 The Company may appropriate any payment made by the Client to such agreement between the Client and the Company as the Company may think fit (notwithstanding any purported appropriation by the Client).

11. TERMINATION

11.1 This Agreement will remain in force for the duration of the Project unless terminated by clause 11.2 below.

11.2 Either party in its discretion may elect to terminate this Agreement if any of the following events of default are committed by the other party:

11.2.1 if the other party commits any material breach of this Agreement and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, excluding  failure to pay any amount(s) due hereunder;

11.2.2 failure to pay any amount(s) due hereunder;

11.2.3 if the other party compounds or makes arrangements with its creditors or becomes insolvent or is unable to pay its debts or if any petition or order is made or resolution passed for its liquidation, bankruptcy, winding up or dissolution (other than a voluntary liquidation for the purpose of amalgamation or reconstruction) or if a receiver or manager or administrative receiver or administrator is appointed over any of its assets.

11.3 The rights and remedies provided in this Clause shall not be exclusive and are in addition to any other rights and remedies provided by law or this Agreement.  If the non defaulting party in its discretion elects not to terminate this Agreement, such election shall not be a waiver of any and all claims of that party for such default(s).

11.4 If for any reason a matter does not proceed to completion the Company will charge the Client for work done and expenses incurred unless otherwise agreed.

11.5 The termination of the agreement shall not affect:-

11.5.1 any payment which is owing by either party to the other;

11.5.2 any other accrued rights of either party; or

11.5.3 any terms which are expressed to come into force or continue in force on or after termination.

12. EXCLUSIONS

12.1 The Company shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, , or arising from their late arrival or non-arrival, or any other fault of the Client.

12.2 The Company shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Project, if the delay or failure was due to any cause beyond the Company’s reasonable control.

13. LIMITATION OF LIABILITY

13.1 The Company warrants that it has all rights necessary to grant the Client the rights granted in this Agreement, and agrees to indemnify the Client against any claims that the Client’s use or possession in accordance with this Agreement of any item supplied by the Company in relation to the Project infringes the Intellectual Property Rights of any third party unless such infringement arises as a result of a specification required by the Client or Input Material. The Client must notify the Company promptly of any such claim or anticipated claim, will not settle or compromise any such claim without the Company’s prior written consent and give the Company sole conduct of any proceedings at the Company’s request.

13.2 The warranties set out in this Agreement are the only warranties made by the parties to each other and are in lieu of all other warranties, express or implied, or statutory, including but not limited to, implied warranties of quality and fitness for a particular purpose.

13.3 The Company shall not be liable to the Client in contract, tort (including negligence or breach of statutory duty) or otherwise for any indirect, consequential  or incidental loss or damage, loss of business, loss of profit, loss of goodwill, loss of anticipated savings, loss of data,  business interruption or similar loss or damage.

13.4 The Company’s liability in contract, tort (including negligence and breach of statutory duty) or otherwise by reason of or connected with this Agreement shall be limited to the total amount payable by the Client in respect of the Project and subject to that overall limit to the part of any loss suffered which is proportionate to its responsibility.

13.5 Nothing in this Agreement excludes liability for death or personal injury resulting from a party’s own negligence or for fraud.

14. CONFIDENTIALITY AND PROTECTION OF INTERESTS

14.1 Each party expressly undertakes to retain in confidence the terms of this Agreement, all information and knowhow transmitted to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and will make no use of such information and knowhow except under the terms and during the existence of this Agreement.  Either party may disclose the terms of this Agreement to its outside legal and financial advisers in the ordinary course of business.  Any press release or other announcement relating to this Agreement shall be subject to the prior approval of both parties (both as to timing and content).

14.2 Each party shall ensure that its employees, agents and subcontractors who have access to confidential information are bound by an undertaking in substantially the same terms as above.

14.3 Each party agrees not to solicit any consultant, employee, freelance sub-contractor or associate of the other, either during this Agreement or within a period of one year thereafter, without the other’s prior consent. This clause 14 survives expiry or termination of the Agreement.

 

15. INSURANCE 

During the term of this Agreement the Company shall maintain employer’s insurance of  (£10,000,000) and public liability and professional indemnity insurance each to a value of at least five million pounds (£5,000,000) with a reputable insurer.  Details will be provided on request.

16. GENERAL

16.1 Failure or delay by the Company in enforcing or partially enforcing any provision of this Agreement will not be construed as a waiver of any of its rights under this Agreement.

16.2 Any waiver by the Company of any breach of, or any default under, any provision of this Agreement by the Client will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Agreement.

16.3 If any provision of this Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of this Agreement and the remainder of such provision shall continue in full force and effect.

16.4 This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and replaces all prior and contemporaneous communications. It shall not be modified except by a written agreement signed on behalf of the Client and the Company by their respective duly authorised representatives or otherwise in accordance with clause 3.3.

16.5 The Company shall be entitled to sub-contract any of the services to a suitable third party.

16.6 Neither party may assign this Agreement or the rights granted under it to any other person without the other’s consent, which may not be unreasonably withheld.

16.7 This Agreement is enforceable by the original parties to it and by their successors in title only.  Any rights of any person to enforce the terms of this Agreement pursuant to the Contract (Rights of Third Parties) Act 1999 are excluded.

17. COMMUNICATIONS

17.1 All communications between the parties about this Agreement must be in writing and delivered by electronic  transmission to the party’s Project representative at the details provided in the Project Terms or such changed details as shall be notified to the other party.

17.2 Communications shall be deemed to have been received: at the time of transmission or sending.