“Client” means each and every person Access Your care supplies a particular product or service to.
“Copyright” means all copyright and rights in the nature of copyright subsisting in the Products in any part of the world to which Access Your Care is, or may become, entitled;
“Licence Fee” means the sum payable by the Licensee for use of the Products as set out in the Order Confirmation;
“Licensee” means the company, individual or organisation which purchases the Products from Access Your Care, as identified in the Order Confirmation;
“New Works” means any copyright works produced by the Licensee based on the Products, including altered or adapted versions of the Products produced in order to enable the Licensee to use the Products;
“Order Confirmation” means the document issued by Access Your Care whether in hard copy or electronic form (including by means of email or the internet) confirming the Products to be supplied by Access Your Care, the Licence Fee payable and any special terms applying to the supply or use of the Products;
“Products” means the products supplied by Access Your Care to the Licensee, including in particular those products described in the Order Confirmation and identified by a unique licence number.
“Services” means the services supplied by Access Your Care to the Licensee, including in particular those products described in the Order Confirmation and identified by a unique licence number.
3 Use of the Products and Services
3.1 Notwithstanding the fact that the Licensee may purchase the Products and Services from Access Your Care, Copyright in the Products and Services remains with Access Your Care.
3.2 Access Your Care here by grants NO exclusive licence under the Copyright to copy the Products or service supplied.
3.5 Unless the Order Confirmation explicitly states to the contrary, the Licensee may not:
3.5.1 grant sub-licences in the Products or Services, make the Products and Services available to third party contractors (including without limitation consultants or training providers); or
3.5.2 incorporate the Products or Services into any IT software solution, e-learning package, intranet, extranet, website or other online or digital resource.
3.6 The Licensee shall not, nor directly or indirectly assist any other person to, do or omit to do anything to diminish the rights of Access Your Care in the Copyright or the Products and Services.
3.7 Access Your Care, being the sole author of the Products and Services asserts Access you Care’s moral right under Chapter 4 of the Copyright, Designs and Patents Act 1988 to be identified as the author of the Products. The Licensee shall not remove or deface any copyright notice from the Products or Services and, when using extracts of the Products or Services, shall acknowledge Access Your Care’s ownership in the following form:
4 Protection of the Copyright
4.1 The Licensee shall immediately notify Access Your Care in writing giving full particulars if any of the following matters come to its attention:
4.1.1 any actual, suspected or threatened infringement of the Copyright;
4.1.2 any claim made or threatened that the Products infringe the rights of any third party; or
4.1.3 any other form of attack, charge or claim to which the Copyright may be subject.
4.2 In respect of any of the matters listed in clause 4.1:
4.2.1 Access Your Care shall, at its absolute discretion, decide what action to take, if any;
4.2.2 Access Your Care shall have exclusive control over, and conduct of, all claims and proceedings;
4.2.3 the Licensee shall not make any admissions other than to Access Your Care and shall provide Access Your Care with all assistance that it may reasonably require in the conduct of any claims or proceedings; and
4.2.4 Access Your Care shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for its own account.
5.1 The Licensee shall keep secret and confidential the terms of the Contract and any information of a confidential nature communicated to it by Access Your Care, either preparatory to, or as a result of, the provision of the Products to the Licensee and shall not use the same for any purpose except for the purpose of exercising or performing its rights and obligations under the Contract and shall not disclose the same to any person other than any of its officers or employees who need to know such information for the purposes of carrying out the Licensee’s obligations under the Contract.
6.1 To the fullest extent permitted by law (and subject to clauses 6.3 and 6.4 below), Access Your Care shall not be liable to the Licensee for any costs, expenses, loss or damage (whether direct, indirect or consequential and whether economic or other) arising from the Licensee’s exercise of the rights granted to it under the Contract.
6.2 The Products are supplied to the Licensee as training or compliance tools only. Use of the Products does not detract from the Licensee’s duty to exercise professional standards of care in performing its duties in the course of its business.
6.3 Subject to clause 6.4, Access Your care’s maximum liability to the Licensee whether in contract, tort (including negligence), breach of statutory duty or otherwise shall not exceed a sum equal to the Licence Fees paid by the Licensee in respect of the Products which give rise to the claim.
7.1 The Contract shall remain in effect for the duration of the Copyright or such shorter period as may be stated in the Order Confirmation.
7.2 Access Your Care may terminate the Contract and the Licensee’s use of the Products with immediate effect by giving written notice to the Licensee if any of the following circumstances arise:
7.2.1 the Licensee fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
7.2.2 the Licensee commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so.
7.3 On termination of the Contract for any reason the Licensee shall immediately stop using the Products and shall (at Access Your Care option) either return to Access Your Care or destroy any copies of the Products then in the Licensee’s possession. However, where the Products include forms, log books, records, reports or similar documents which are intended to be completed by the Licensee for training, compliance or record-keeping purposes, the Licensee shall have no obligation to return to Access Your Care or destroy any copies of such Products which have been completed by the Licensee.
8.1 The Licensee shall not assign, sub-license or sub-contract any of its rights or obligations under the Contract or subject any of its rights or obligations under the Contract to any mortgage, charge, pledge, lien, option or anything equivalent.
8.2 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
8.3 The Contract constitutes the entire agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
8.4 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
8.5 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
8.6 No person other than a party to the Contract shall have any rights to enforce any term of the Contract.
8.7 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of another party, nor authorise either party to make or enter into any commitments for or on behalf of the other party.
8.8 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control.
8.9 Without prejudice to any other rights or remedies that Access Your Care may have, the Licensee acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of the Contract by the Licensee. Accordingly, Access Your Care shall be entitled, without proof of special damages, to apply to the court for the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the Contract.
8.10 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
8.11 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
“© Access Your Care 2011. Reproduced under licence.”