- Definitions and interpretation
Agreement: the contract between the Supplier (HolaCandela) and the Subscriber (the School or the Individual).
Commencement Date: the date on which the Subscriber pays the Supplier to use the Services and receive an invoice for it.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral 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 for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Learning Materials: the online learning and development materials as developed by the Supplier or its agents, sub-contractors and employees in relation to the provision of the Services in any form, including computer programs, data, reports and specifications (including drafts).
Personal Data: all information relating to the Subscriber (school, teachers, students or individuals) who have access to the Service which the Supplier shall hold for the purpose of providing the Service to the Subscriber.
Pilot Testing Period: the period set by HolaCandela to use the Services on a reduced-paying basis during a short period of time to test new materials. The amount payed will be discounted from the corresponding annual subscription payment.
Services: the provision to the Subscriber of the Learning Materials.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.2. Any obligation in the Agreement on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. Supplier’s obligations
HolaCandela shall supply the Services to the Subscriber (the School or the Individual) for the period of 12 months from the Commencement Date (or such other period as the parties may otherwise agree in writing) on these Terms and Conditions. In the case of the Pilot Testing Period, the duration of the contract will be as arranged in the Agreement.
2.1. HolaCandela shall provide the Services through the Website, which shall be accessible by the Subscriber through a standard internet web browser and a standard personal computer.
2.2. Details of how to access the Services through the Website will be provided by HolaCandela to the Subscriber by email at the Commencement Date of the Agreement.
2.3. HolaCandela shall use all reasonable endeavours to ensure that the Learning Materials are available 24 hours a day, 7 days a week, subject to routine maintenance and Website updates.
2.4. HolaCandela does not warrant that the Services shall be provided fault free, but we shall use all reasonable endeavours to rectify any defect or faults in the Services notified to it by the Subscriber.
2.5. HolaCandela shall use all reasonable endeavours to ensure that the Learning Material is accurate, so far as is possible. However, the Subscriber shall be ultimately responsible for verifying the accuracy of the vocabulary data comprised in the online Learning Materials.
2.6. If the Services are being provided to Schools, the Supplier will:
a) provide a unique identification code to the School, which will enable its teachers and students to access to the online Learning Materials and an administration login to enable the provision of individual logins;
b) use reasonable endeavours to ensure that the Service is a valuable educational aid in bringing real benefits to students. However, no warranty, express or implied, is given as to the effectiveness of the Service as an educational or revision aid, and the Supplier does not accept any liability for any errors, omissions or unsatisfactory examination results.
3. Subscriber’s obligations
The Schools or the Individual shall:
3.1. Notify us as soon as it experiences any difficulties in accessing the Website.
3.2. Cooperate with us in all matters relating to the Services.
3.3. Not transfer or share the Services (including Learning Materials) with any other schools or third parties.
3.4. Ensure that it shall not resell or offer in any manner to a third party the Services or use of or access to the Learning Materials.
3.5. Comply with and ensure that each of its users comply with all procedures and policies which HolaCandela may issue from time to time in relation to the use or operation of the Services.
In the case of Schools
3.6. Be responsible for ensuring the accuracy of any Personal Data and updating any accounts, details and information relating to students who access the Services.
3.7. Be responsible for training its students in the use of the Service, although HolaCandela shall provide all reasonable support in this regard to assist the Subscriber in doing so.
3.8. If a year group restriction is specified in relation to a subscription to the Learning Material, ensure that only students in the relevant year groups have access to that subscription.
4. Charges and payment
4.1. The Subscriber shall pay the subscription fees as detailed in the invoice. The Supplier shall not be required to provide the Services to the Subscriber until the Supplier has received the payments in full and in cleared funds.
4.2. Where we are obliged to charge VAT on our services and expenses, this will be payable in addition to the fees and expenses at the appropriate rate (currently 20%). VAT is therefore charged where applicable.
4.3. Without prejudice to any other right or remedy that it may have, if the Subscriber fails to pay us on the due date, HolaCandela may:
a) charge interest on such sum from the due date for payment at the annual rate of 2% above the base lending rate from time to time of Lloyds Bank, and
b) suspend all Services until payment has been made in full.
5. Intellectual Property Rights
5.1. The Learning Materials provided by the Supplier are original. The historical content images/videos including in the Learning Material are copyright free.
5.2. As between the Subscriber and the Supplier, all Intellectual Property Rights and all other rights in the Services shall be owned by the Supplier. Accordingly, the Subscriber shall not seek to assert any rights over or in respect of such Intellectual Property Rights, which shall remain the absolute property of the Supplier in all circumstances.
5.3. The Subscriber shall ensure the Services are used during the supply period as required for the solely purpose of teaching, training or studying. The Learning Materials may not be combined with or incorporated in any way with any other work or publication, including any learning platform.
6.1. The Subscriber shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Subscriber by the Supplier, its employees, agents, consultants or sub-contractors and any other confidential information concerning the Supplier’s business or its products which the Subscriber may obtain.
6.2. The Subscriber may disclose such information to its employees, students, officers, representatives, advisers, agents or sub-contractors who need to know such information for the purposes of carrying out the Subscriber’s obligations under the Agreement; and as may be required by law, court order or any governmental or regulatory authority.
6.3. The Subscriber shall ensure that its teachers, students, employees, officers, representatives, advisers, agents or sub-contractors to whom it discloses such information comply with this clause.
6.4. The Subscriber shall not use any such information for any purpose other than to perform its obligations under the Agreement.
7. Limitation of liability
7.1. This clause sets out the entire financial liability of HolaCandela (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Subscriber in respect of any breach of the Agreement, any use made by the Subscriber of the Services or any part of them and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
7.2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
7.3. Nothing in these Terms limits or excludes the liability of HolaCandela (a) for death or personal injury resulting from negligence; or (b) for any damage or liability incurred by the Subscriber as a result of fraud or fraudulent misrepresentation by us.
7.4. HolaCandela shall not be liable for any interruptions to, down time of or discontinuance or modification of the Services, loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods; loss of contract; or loss of use; or loss of corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
7.5. HolaCandela’s total liability to the Subscriber in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Agreement shall be limited to the price paid for the Services.
8. Data protection
8.1. In so far as applicable to the Service, each of the Supplier and Subscriber shall ensure that it complies with the Data Protection Act 1998 and any other applicable data protection legislation that may be in force or come into force during the continuance of the Agreement. In this clause, the terms “personal data”, “process” and “data subject” have the meanings given to them in the Data Protection Act 1998.
8.2. Where, in connection with the Services, the Supplier needs to process personal data on behalf of the Subscriber, the Supplier shall:
a) unless otherwise agreed in writing, only process the personal data to the extent and in such manner as is necessary for the provision of the Service or as is required by law or any regulatory body.
b) implement appropriate technical and organisational measures to protect personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. Such measures shall be appropriate to the harm that might result from unauthorized or unlawful processing or accidental loss, destruction or damage to personal data and to the nature of personal data to be protected
c) promptly notify the Subscriber if the Supplier receives a request from a data subject to have access to personal data or any other complaint or request relating to the Subscriber’s obligations under the Data Protection Act 1998.
9. Commencement and duration
9.1. The Services shall be provided by the Supplier to the Subscriber beginning on the Commencement Date.
9.2. The period of the Agreement is 12 months for the annual subscription. However, between the 08/06/19 and the 31/08/19 there is a Pilot Testing Period of HolaCandela. The subscribers for this Pilot Testing Period will benefit from 20% off in the first annual subscription.
9.2. The Services shall be supplied for the specified period, after which, the Agreement shall continue unless terminated by either party giving notice before the end of that period or any subsequent anniversary of that expiry.
10.1. By signing up with HolaCandela, the Subscriber agrees that the Agreement shall automatically extend for a period of 12 months, unless either party gives notice to the other party, not later than 7 days before the end of the annual subscription period.
10.2. Without prejudice to any rights which have accrued under these Terms and Conditions, the Supplier or the Subscriber may terminate these if the other party:
a) is in material breach of any of its obligation under these Terms and Conditions, and if such breach is remediable, fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
b) is made bankrupt, is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if the other party ceases or threatens to cease to trade, or if the other party makes an assignment for the benefit of, or a composition with its creditors or other arrangement of similar import or has a receiver, administrative receiver, administrator or a similar officer appointed over all or a substantial part of its assets, or if a petition is passed or an order is made by a court of competent jurisdiction or resolution is passed for the winding up of the other party (other than for the purpose of a bona fide solvent reconstruction or amalgamation) or any similar circumstances arise in any jurisdiction.
11.1. HolaCandela reserves the right to amend these Terms and Conditions at any time by posting the amended Terms on the Website. The amended Terms will be effective upon the effective date indicated in respect of Services agreed after that effective date.
11.2. A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise.
11.3. Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
11.4. If any provision of the Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
11.5. The Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
11.6. Each party acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of Agreement), as expressly provided in the Agreement.
11.7. The Subscriber shall not (but HolaCandela shall be entitled to), without the prior written consent of the other party, assign, transfer, charge, mortgage, subcontractor, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Agreement.
11.8. Each party that has rights under the Agreement is acting on its own behalf and not for the benefit of another person. A person who is not a party to the Agreement shall not have any rights under or in connection with it.
12. Force Majeure
HolaCandela shall have no liability to the Subscriber under the Agreement if it is prevented from, or delayed in performing, its obligations under the Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lockouts or other industrial disputes (whether involving the workforce of HolaCandela or any other party), failure of a utility service or transport 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, storm or default of suppliers or subcontractors.
13. Governing law
The Agreement, 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.