1. Interpretation and Definitions
1.1. In this Agreement, unless the context requires otherwise, the following terms shall have the following meanings:
1.1.1. 'Printed Work' means printed copies of workbooks and tutor/student guides.;
1.1.2. 'Fees' means the fees payable by you to CMI for the Licensed Products as set out in the Schedule;
1.1.3. 'Licensed Products' means the Original Content Files and Customised Files of workbooks and tutor/student guides which are available in PDF format from a CD-ROM supplied by CMI, including any Updates, and all Printed Work derived from the Files;
1.1.4. 'Customised File' means that part of a Licensed Product which contains Original Content but which has been customised by CMI;
1.1.5. 'Original Content' means the content of the Licensed Product which is copyright of CMI prior to any customisation and Original Content Files means Files containing Original Content;
1.1.6. 'New Content' means that part of a Printed Work which does not form part of a Licensed Product [and which is copyright of You];
1.1.7. 'File' means any Original Content File, Customised File and Update to that File in PDF format that is set out in the Schedule;
1.1.8. 'Updates' means updates or revisions to the Files made by CMI
1.1.9. 'Schedule' means the schedule to this Agreement, which sets out the titles of the Files and the applicable Fees;
1.1.10. 'Licensed User' means an individual candidate registered with CMI on a qualification course or trainer/teacher who are licensed to read on screen and/or print content from a File or use a Printed Work, not exceeding 5 in the case of trainer/teachers;
1.1.11. 'You' means the training organisation, college, company or other entity which has agreed to accept the Licensed Product on the terms of this Agreement acting by its duly authorised signatory;
1.1.12. 'Letter of Acceptance' means the letter of acceptance issued by CMI following acceptance by You of this Agreement which is signed and returned by You and which confirms the number of Licensed Users prior to issue to You of the CD-ROM by CMI.
2.1. Provided that You have paid the applicable Fees, CMI grants You and You accept the non-transferable and non-exclusive right and licence to:
2.1.1. print out single or multiple copies of the Printed Work from CD-ROM supplied by CMI in accordance with this Agreement for use by the agreed number of Licensed Users;
2.1.2. (with the exception of the Pathways Plus Level 7 series) upload Files (including any Updates) or Customised Files in PDF format according to the terms of this Agreement, onto a Virtual Learning Environment (VLE), Local Area Network (LAN) or secure Intranet for use by the agreed number of Licensed Users;
3. Term of Licence
3.1. The term of this Agreement will be twelve months to run from the acceptance date specified in the Letter of Acceptance.
4. Licensee's Obligations
4.1. You shall supervise and control the use of the Licensed Products in accordance with the terms of this Agreement. You shall not:
4.1.1. alter or modify the Licensed Products or any part of them, or permit others to do so other than as provided in Clause 5.2;
4.1.2. copy, sell, sub-license, lease, hire out, or share use of the Licensed Products or transmit the Licensed Products to any third party other than those identified in 2.1.1 and 2.1.2;
4.1.3. permit someone other than a Licensed User to use the Licensed Products unless You have agreed such use with CMI beforehand and paid the applicable fee, if any, for such use;
4.1.4. use the Licensed Products to provide to any other party any form of consulting or training service for another awarding or professional body, or services of any other kind unless You have agreed such use with CMI beforehand and paid the applicable fee, if any, for such use;
4.1.5. convert the Files in PDF format into any other format or extract parts of the Files for uploading on to a VLE, LAN or secure intranet unless You have agreed such use with CMI beforehand and paid the applicable fee, if any, for such use.
5. Rights in a Printed Work
5.1. This Agreement restricts what You may do with the Licensed Products, but does not restrict what You may do with New Content unless used in conjunction with Licensed Products.
5.2. In respect of a Printed Work:
5.2.1. You shall not alter or remove any detail of ownership, copyright, trademark or other proprietary right connected with the Licensed Products and shall reproduce them exactly on any copies;
5.2.2. You may add New Content alongside the Original Content for educational purposes provided that the quality of the Licensed Product is maintained as to which CMI shall be the sole determinant;
5.2.3. You shall not sell the Printed Works other than to Licensed Users to re-cover the cost of printing or photocopying;
5.2.4. You shall not sub-license, lease, hire out, share use of with or rent the Printed Works to any person.
6.1. On receipt of the CD-ROM from CMI, You may make the necessary arrangements in order to produce the Printed Work. You shall maintain accurate and complete records of the number and location of the copies of the Licensed Products and supply copies of such records to CMI immediately upon request.
7. Maintenance and Additional Services
7.1. This Agreement does not require You to use the current Updates of the Licensed Products but CMI shall not be liable for your use of out of date Licensed Products.
7.2. CMI may, at its discretion make available Updates of the Licensed Products. If so, this Agreement shall apply to such Updates as amended by any additional terms and conditions and notified on CMI’s website from time to time and which will accompany the Update on release to You.
8.1. The Licensed Products, Original Content and all copies of them are and shall remain the exclusive property of CMI and You shall have no right, title or interest in them, except as expressly set out in this Agreement.
8.2. To assist CMI in the protection of its proprietary rights, You shall:
8.2.1. keep all such records and do all such acts and things as CMI may reasonably require for the purpose of preserving or protecting such rights; and
8.2.2. permit representatives of CMI to enter upon (at all reasonable times during normal working hours) [subject to reasonable notice] any premises in which the Licensed Products and/or Original Content are or are reasonably believed by CMI to be kept, stored or used and inspect your records of use of the Licensed Products and Original Content. CMI will use reasonable endeavours to minimise disruption to your business activities during such inspection.
9.1. You warrant that You will use your best endeavours to procure that Licensed Users shall comply with the terms of this Agreement and, in particular, the provisions of clauses 3 and 7 and undertake immediately to give notice to CMI of any actual or suspected breaches committed by any Licensed User or any other person.
9.2. You warrant that any New Content used in conjunction with the Licensed Products shall not infringe the copyright of any third party and shall indemnify CMI against any liability arising there from.
10. Limitation of Liability
10.1. CMI makes every effort to check the files of the Licensed Products for errors and to ensure that they are free from viruses, but does not warrant that the Files are free from viruses, and You should carry out your own virus check before making the Files available to Licensed Users.
10.2. Save in event of death or personal injury in respect of which CMI’s liability shall not be limited, CMI’s entire liability for any breach of this Agreement, whether in contract or tort or for any statutory breach, whether express or implied, shall be limited at CMI’s sole option, to one of the following:
10.2.1. replacing the Files to which the breach relates or the supply of equivalent products; or
10.2.2. refunding the relevant Fees.
10.3. Subject to 10.2, neither CMI, its agents, distributors or employees shall be liable for any special, indirect or consequential damages, damages or for loss of profits, interruption, loss of information, or other pecuniary loss) however arising.
10.4. CMI does not warranty that the Licensed Products are fit for any particular purpose.
11.1. An annual fee is payable for access to the Licensed Products as set out in the Schedule and on CMI’s website. You shall promptly pay any additional Fees (in relation to purchase of a "Top Up" licence which shall run for the duration of the existing licence) due to an increase in the number of Licensed Users as notified to and agreed by CMI which shall be calculated as set out in the Schedule and on CMI's website. If CMI discovers that You have not paid the additional Fees, CMI may, in addition to its other rights and remedies, charge You for its reasonable costs and expenses incurred in conducting any audit and recovering such fees.
11.2. The Fees are payable in Pounds Sterling and are exclusive of VAT at the appropriate rate.
11.3. The Fees are non-refundable.
12.1. CMI may, without prejudice to its other rights and remedies, terminate this Agreement forthwith by written notice to You without incurring liability for such termination if You commit a breach of any material obligation of this Agreement which cannot be remedied or commit a material breach which can be remedied and fail to remedy it within fifteen calendar days of receiving a written notice from CMI requiring it to be remedied.
13. Effect of Termination
13.1. Upon the expiry or termination (for whatever reason) of this Agreement You shall promptly delete all copies of all Licensed Products from all computers and return to CMI all other copies of the Licensed Products.
14.1. The Licensed Products contain know-how and other valuable confidential information (‘Confidential Information’) which is the property of CMI. You shall not disclose, whether directly or indirectly, the Confidential Information to any third party and shall procure that any Licensed User shall be bound by an equivalent confidentiality undertaking.
15. Force Majeure
15.1. Neither party shall be liable to the other if its performance of its obligations under this Agreement (other than on obligation to pay money) is prevented or hindered due to any circumstances outside its control.
16. Entire Agreement
16.1. This Agreement constitutes the complete and exclusive statement with respect to its subject matter and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between the parties relating thereto.
16.2. You have read and understood this Agreement and agree to be bound by its terms and agree to waive any right to damages or other remedy arising from any representation not contained in this Agreement unless such representation was made fraudulently.
17.1. In the event that any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications of the same are received by either of the parties from any relevant competent authority, the parties shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality, or failing this such provision may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
18.1. No delay or failure of either party in enforcing against the other party any right under this Agreement and no partial exercise by either party of any right hereunder shall be deemed to be a waiver of any right of that party under this Agreement.
19.1. No variation or amendment to this Agreement shall be effective unless in writing signed by authorised representatives of the parties.
20.1. The licence granted under this Agreement is personal to You and You shall not assign or part with any interest in it or grant any right under it to any third party. CMI may, on notice to You, assign its rights and obligations under this Agreement to any person.
20.2. This Agreement is binding upon and ensures for the benefit of the parties' permitted assigns and successors in title.
21.1. Any notice to be served on either of the parties by the other shall be sent by pre-paid recorded delivery or registered post or by fax or by electronic mail and shall be deemed to have been received by the addressee within 72 hours of posting or 24 hours if sent by facsimile transmission or by electronic mail to the correct facsimile number (with correct answerback) or correct electronic mail number of the addressee.
22. Law and Disputes
22.1. This Agreement is governed by and is to be interpreted in accordance with English law. You irrevocably submit to the exclusive jurisdiction of the English courts.