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EULA – End User License Agreement

1. Definitions

In these Terms, unless the context requires otherwise, the following expressions shall have the following meanings:

Access Term: means the period of time during which the Product may be accessed by End User as set out in the Form.

Confidential Information: means any information which is received by one party from the other party under or in connection with these Terms and which is either marked as, or is manifestly, confidential.

Enrol: means the act of registering for and accessing a course by employees of the End User Registered by the Reseller or End User and “Enrolment” shall be construed accordingly.

GHGL means Chadwick House Group Limited,

EULA means the licence terms set out in Appendix A which governs the use of the Product.

Form: means the purchase order for the Product signed by the Reseller attached to the front of or accompanying these Terms.

Product: means the web-based training product purchased specified in the Form and any other related documentation or material, access to which shall be provided by CHGL to the Reseller pursuant to these Terms.

Intellectual Property Rights: means all present and future rights in patents, trade marks, designs, trade or business names, domain names, copyright, database rights, topography rights, rights in know-how, trade secrets, rights of confidence and any other intellectual property right or right of a similar nature anywhere in the world, whether registered or unregistered, whether now known or hereafter invented and including applications for such rights and all extensions, renewals and reversions of such rights.

Licence: means the licence granted pursuant to these Terms at Clause 2.1 by GHGL

Registration: means the uploading of individual user details by the End User onto the Product to create accounts for Users in order for the user to access the Product and “Registered” shall be construed accordingly.

Territory: means Europe

Terms: means these terms and conditions, the Form and any authorised amendments to any of the foregoing.

User: means an person who has been Registered and has Enrolled onto the Product.

2. Grant of Licence

2.1 “End User agrees to use the Product only in accordance with the EULA and agrees that CHGL will have the right to enforce the terms of the End User directly against the EULA despite not being a party to this contract”.

3. Intellectual Property Rights

3.1 All Intellectual Property Rights in the Product are owned by or licensed to CHGL, nothing in these Terms shall operate to transfer any Intellectual Property Rights in the Product to the End User.

3.2 CHGL reserves the right to revise or amend the format and/or content of the Product from time to time. If CHGL does amend the format and/or content of the Product, it shall attempt to ensure that there is no adverse change in the content, quality or performance of the Product.

3.3 Save as expressly permitted hereunder and to the extent permitted by law, the Reseller shall not knowingly copy, alter, vary or modify the Product or in any way affect or infringe CHGL’s Intellectual Property Rights, or enter into an arrangement, agreement or understanding which would or might allow or encourage a third party to do so.

3.4 The Reseller further agrees to notify CHGL immediately in writing of any actual or anticipated breach of the EULA or infringement of any proprietary right of CHGL by the End Users or of any other third party and to use its best efforts to cause such breach or infringement to cease.

4. CHGL Warranties and Disclaimers

4.1 CHGL shall use reasonable skill and care in the performance of its obligations under these Terms. CHGL further warrants and represents that it has full capacity and authority to enter into these Terms.

4.2 Save as set out in clause 8.1 above, CHGL gives no warranty:

(a) as to the accuracy, completeness or suitability of the Product, and the Reseller and each User uses the Product at its own risk;

(b) that the Product shall be compatible with the Reseller Systems other than those meeting the minimum technical specification.

4.3 To the fullest extent permissible by law all warranties, conditions or terms other than those expressly set out in these Terms are excluded, including but not limited to implied statutory conditions and warranties.

4.4 CHGL shall not be responsible for any loss or damage caused or alleged to have been caused, directly or indirectly, by the information or ideas contained, suggested or referenced or in the Product.

4.5 As a convenience to the Reseller, the CHGL websites may include links to sites on the open web and which are beyond its control. CHGL makes no representations as to the quality, suitability, functionality or legality of any sites to which the Product, CHGL websites or email alerts link, and the Reseller waives any claim it may have against CHGL with respect to such sites.

5. Intellectual Property Rights Indemnity

5.1 Save as provided in clause 9.3, CHGL will, at its own expense, defend the Reseller from and against any claims based on a claim that the Product infringes any copyright or issued patent in the European Union or incorporates any misappropriated trade secret and will pay any costs and damages finally awarded to the Reseller in any such action or agreed by CHGL in any settlement attributable to such claim.

5.2 Save as provided in Clause 9.3, in addition to CHGL’s indemnity obligations under Clause 9.1, should the Reseller’s use of the Product be determined to have infringed, or if, in CHGL’s reasonable judgement, be likely to infringe any Intellectual Property Rights, CHGL may at its option and expense:

(a) procure for the Reseller the right to continue using the Product or the relevant part thereof; or

(b) replace or modify the Product or the relevant part thereof to make the Reseller’s use non-infringing; or

(c) if neither option (a) nor (b) are or would be available on a basis that CHGL finds commercially reasonable, then CHGL may terminate these Terms and refund to the Reseller any Fees paid under these Terms which relate to employees of the Reseller who have not Enrolled.

5.3 The indemnity under Clause 9.1 shall not apply to any allegation of infringement to the extent that it is due to third party products or services or to the Reseller having used the Product (a) in a manner not contemplated by these Terms; or (b) in breach of these Terms.

5.4 The indemnity contained in Clause 9.1 is contingent upon: (a) the Reseller promptly notifying CHGL in writing of any claim that may give rise to a claim for indemnification under clause 9.1; (b) CHGL being allowed to control the defence and settlement of such claim; (c) the Reseller co-operating (at CHGL’s expense) with all reasonable requests by CHGL in defending or settling a claim, and (d) the Reseller not having made or making an admission or settlement with the third party without CHGL’s prior written consent.

6. Support

6.1 During the term of this Agreement, CHGL will support services to the Reseller on the email and telephone number listed below during the hours from [9.00am to 5.00pm] on any day which is not a weekend or a public or bank holiday in the United Kingdom:

(a) email [support@CIEH-elearning.com]; and

(b) telephone [020 7827 5872].

6.2 The Reseller must report any problems or errors in accordance with clause 10.1 above, giving full details of: (a) Reseller information; (b) details of the relevant End User and User; and (c) full description of the problem or error and any other relevant information requested by CHGL.

6.3 CHGL may, from time to time, release an update, improvement, correction or minor enhancement of the Product (“Update”). Updates will be provided to the Reseller at no additional costs and will be sent to the Reseller as soon as practical after an Update has been released. The Reseller shall promptly install all Updates received from CHGL and notify all End Users of the Update.

6.4 The support services provided by CHGL under these Terms do not apply to:

(a) use of the Product contrary to CHGL’s instructions or these Terms; or

(b) defects caused by Customers’ negligence, fault or resulting from hardware malfunction or malfunction of other software or the Reseller’s System or any cause other than the Product itself.

7. Confidentiality

7.1 Neither party shall disclose to any third party without the prior written consent of the other party any of the other party’s Confidential Information. A party shall use Confidential Information received from the other only for the purposes of the proper performance of its obligations and exercise of its rights under these Terms.

7.2 Confidential Information shall not include any information which: (a) is or becomes generally available to the public other than as a result of a breach of an obligation under this clause; (b) is acquired from a third party who owes no obligation of confidence in respect of the information; or (c) is or has been independently developed by the recipient or was known to it prior to receipt.

7.3 Notwithstanding clause 11.1 above, either party shall be entitled to disclose Confidential Information of the other: (a) to their respective insurers or legal advisors; (b) to a third party to the extent that this is required by any court of competent jurisdiction, or by a governmental or regulatory authority, provided that in the case of sub-clause (b) where reasonably practicable (and without breaching any legal or regulatory requirement) not less than 2 working days prior notice in writing is given to the other party

8. Liability

8.1 The Reseller shall indemnify and hold CHGL and its respective officers and employees harmless from and against all liabilities, losses, damages, costs and expenses in relation to any claims or actions brought against CHGL (including, without limitation, any claim in contract, tort or for defamation or breach of privacy) relating to or arising (in any manner) from a breach by the Reseller of this Agreement.

8.2 A party shall accept liability without limit for (a) death or personal injury caused by its own negligence or the negligence of its employees acting in the course of their employment; (b) any fraudulent pre-contractual misrepresentations on which the other party can be shown to have relied; and (c) any other liability which by law cannot be excluded or limited.

8.3 Subject to clauses 12.1 and clauses 12.3, CHGL’s total liability to the Reseller arising under or in connection with these Terms, whether in contract, tort (including, without limitation, negligence), statute or otherwise shall not exceed the Fees paid by the Reseller.

8.4 CHGL shall not be liable to the other party for any indirect or consequential loss or damage, nor for loss of profit, goodwill, or business.

9. Termination

9.1 If CHGL reasonably suspects that the Reseller or any User is in breach of the Terms, CHGL may suspend the provision of the Product either to that particular User or to the Reseller as a whole upon written notice to the Reseller.

9.2 The exercise by CHGL of any right to suspend its provision of the Product or by either party to terminate the Terms shall not limit any other rights or remedies that party may have, and shall not affect any accrued rights or obligations arising before the date of termination.

9.3 The Terms may be terminated forthwith by either party in writing if the other party:

(a) has a bankruptcy petition presented against it or goes into liquidation, other than for the purposes of a solvent amalgamation or re-construction, or makes any voluntary arrangement with its creditors or has a receiver, manager, administrator or like person and such appointment is not discharged within 30 days of being made, or where the Reseller is a partnership where the partnership is dissolved, or any analogous situation to any of the above arises; or

(b) commits a material breach of these Terms and either (a) the breach is not capable of remedy or (b) the breach is capable of remedy and the breaching party has been advised in writing of the material breach but has not rectified the breach within 30 days of receipt of such notification.

10. General

10.1 The Terms are personal to the Reseller and the Reseller may not assign or otherwise transfer any of its rights or obligations under the Terms to any third party without the prior written consent of CHGL.

10.2 All notices to be sent from one party to the other in connection with the Terms shall be delivered by hand, sent by post or faxed to the address of the relevant party set out on the Form or such other address as may be notified by either party to the other in writing from time to time.

10.3 Notices sent by post shall be deemed to have been received two days after posting, otherwise notices shall be deemed to have been received on the next working day following transmission and in the case of service by fax the party effecting service shall be required to prove that the notice has been served by the production of an appropriate facsimile transmission report.

10.4 Failure by either party to exercise any right or remedy under these Terms shall not signify acceptance of the event giving rise to such right or remedy nor shall it constitute a waiver of such right or remedy, nor of any other right or remedy.

10.5 No waiver of a breach of any terms of these Terms or of a default under these Terms shall be effective unless in writing, signed by or on behalf of the parties and expressed to be such a waiver.

10.6 Each provision of the Terms is severable from the rest of the Terms and, if one part should be found to be invalid, illegal or void for any reason, it shall not affect the validity or legality of any other part, and the remaining parts shall continue to have full force and effect.

10.7 These Terms form the entire agreement between the parties in respect of the subject matter of these Terms.

10.8 A person who is not a contracting party to these Terms shall have no right to enforce any term of these Terms under the Contracts (Rights of Third Parties) Act 1999 but this does not affect any right or remedy of a third party which exists or is available apart from that act.

10.9 No variation of these Terms shall be effective unless made in writing, signed by or on behalf of each of the parties and expressed to be such a variation.

10.10 These Terms shall not operate so as to create a partnership or joint venture of any kind between the parties. Nothing contained in these Terms shall be so construed as to constitute either party to be the agent of the other. Neither party shall have any authority to make any commitments on the other party’s behalf.

The Terms shall be construed in accordance with and governed by English Law and shall be subject to the non-exclusive jurisdiction of the English Courts.

Appendix A

Terms of Licence

IMPORTANT: CHGL IS PROVIDING THIS SOFTWARE FOR YOUR USE SUBJECT TO YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW (“EULA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU WILL NOT BE ABLE TO USE THE SOFTWARE. BY USING THE SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

1. Definitions

1.1 The following terms shall have the meanings set out below:

(a) Licensee: means the person using the Product.

(b) Users: means an employee of the Licensee who has been Registered and has Enrolled onto the Product.

(c) Enrol: means the act of registering for and accessing a course by employees Registered by the Licensee and “Enrolment” shall be construed accordingly.

(d) Product: means the web-based training product specified in the Form and any other related documentation or material, access to which shall be provided by CHGL pursuant to this EULA.

(e) Registration: means the uploading of individual user details by the Licensee (or CHGL on behalf of the Licensee) onto the Product to create accounts for Users in order for Users to access the Product and “Registered” shall be construed accordingly.

(f) GHCL means Chadwick House Group Limited

2. Users

2.1 Any password or User name assigned to a User by Enrolment shall be used solely by the User, is not transferable to any other User or any other third party and shall be kept strictly confidential by the User.

2.2 The Licensee agrees that:

(a) the Product may not be used by anyone who is not a User;

(b) its Users shall not disclose their personal password or identifier to anyone without CHGL’s prior consent;

(c) it shall notify CHGL immediately if it becomes aware that a password or identifier has become known by anyone not authorised by CHGL to use the Product, in which case CHGL shall be entitled to cancel that password or identifier in addition to any other rights and remedies it may have; and

(d) it shall indemnify CHGL for all losses, damages and costs suffered or incurred by CHGL (including loss of revenue) as a result of any unauthorised use of any password or identifier (or the Product) that is caused by the Licensee’s breach of clause 3.3(a) above.

2.3 Each User may print off extracts from the Product in hard copy solely for their own use in accordance with clause 2.2 provided any and all copyright and proprietary notices are kept intact. The Licensee may not otherwise copy, alter, vary or modify or transfer use of the Product to any third party.

2.4 The Licensee shall be liable for any failure by any User to comply with EULA.

3. Intellectual Property Rights

3.1 The Licensee hereby acknowledges that all intellectual property rights in the Product are owned by or licensed to CHGL. Save for the Licence granted to the Licensee under EULA, nothing in EULA shall operate to transfer any Intellectual Property Rights in the Product to the Licensee.

3.2 CHGL reserves the right to revise or amend the format and/or content of the Product from time to time. If CHGL does amend the format and/or content of the Product, it shall attempt to ensure that there is no adverse change in the content, quality or performance of the Product.

3.3 Save as expressly permitted hereunder and to the extent permitted by law, the Licensee shall not knowingly copy, alter, vary or modify the Product or in any way affect or infringe CHGL’s intellectual property rights, or enter into an arrangement, agreement or understanding which would or might allow or encourage a third party to do so.

3.4 The Licensee shall promptly notify CHGL in the event that it becomes aware of any unauthorised use of the Product or any actual or suspected infringement of any of CHGL’s intellectual property rights.

4. Licensee Responsibilities

4.1 Except as set out in EULA, the Licensee is not entitled to resell, rent, licence, distribute or otherwise transfer or deal with the Product. Nothing in this clause shall prevent or restrict the Licensee’s right to allow or arrange access to the Product by Users in accordance with EULA.

4.2 The Licensee must not use the Product except as permitted under EULA, and shall not use the same for any illegal or unlawful purpose so as to bring CHGL or its business, products or the services provided by CHGL under EULA into disrepute.

4.3 The Licensee shall be responsible for ensuring that its hardware and software systems are capable of accessing the Product. Accordingly, CHGL shall not be responsible for any failure of the Licensee to access the Product solely due to a failure of the Licensee systems. Further, CHGL shall not be liable for any failure by Users to access the Product as a result of a failure of a User’s equipment or events affecting access to the Internet generally (which prevent or delay the User accessing the Product).

4.4 The Licensee shall not knowingly or negligently upload, post, publish, transmit or transfer to the Product any software, files or other material which (a) is defamatory, illegal, obscene, threatening, abusive, or offensive (or is likely to be perceived as such); (b) is in breach of any of CHGL’s intellectual property rights, or damaging or adversely affecting data, software or the performance or availability of the Product; (c) is in breach of any applicable law or regulation; (d) contains any unauthorised advertising, promotion or solicitation; or (e) materially misrepresents facts which may be damaging or injurious to CHGL or its subscribers or users. CHGL reserves the right to remove any such software, files or material which would contravene these prohibitions.

4.5 Save as may be expressly stated otherwise, CHGL does not monitor, approve, endorse or exert editorial control over information posted by the Licensee, other subscribers or third parties, and, accordingly, CHGL gives no warranty, representation or undertaking in respect of such information.

4.6 The Licensee shall comply with all reasonable instructions as to the use of the Product which may be given by CHGL to the Licensee from time to time in writing or posted on the Product from time to time, and shall comply with all applicable laws in exercising its rights under EULA.

5. CHGL Warranties and Disclaimers

5.1 CHGL warrants for a period of ninety (90) days from delivery to Licensee (“Warranty Period”) the media on which Product is supplied is free from defects in materials or workmanship under normal use

5.2 Save as set out in clause 5.1 above, CHGL gives no warranty:

(a) as to the accuracy, completeness or suitability of the Product, and the Licensee and each User uses the Product at its own risk;

(b) that the Product shall be compatible with the Licensee systems other than those meeting the minimum technical specification.

5.3 To the fullest extent permissible by law all warranties, conditions or terms other than those expressly set out in EULA are excluded, including but not limited to implied statutory conditions and warranties.

5.4 CHGL shall not be responsible for any loss or damage caused or alleged to have been caused, directly or indirectly, by the information or ideas contained, suggested or referenced or in the Product.

6. Miscellaneous

6.1 CHGL may assign this EULA to any affiliate company or to a purchaser of the intellectual property rights in the Product, but otherwise neither this EULA nor any rights hereunder may be assigned (any change of control or merger of Licensee shall be included in the meaning of an assignment) nor duties delegated by either party, and any attempt to do so will be void. The laws of England govern this EULA and all matters arising in connection with it. This EULA shall be subject to the non-exclusive jurisdiction of the English Courts. No representation or statement not expressly contained in this EULA nor any supplement, modification, or amendment of this EULA will be binding on either party unless executed in writing by both CHGL and the Licensee.

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