Last updated 25 January 2017
Please read these terms and conditions (Terms) carefully. By signing the Statement of Requirements for the use of the Services, or by using the any of the Services described on the standard Price List, the Customer agrees to be bound by the Terms set forth below. If the Customer does not wish to be bound by these Terms, the Customer may not use the Services. The Customer’s attention is specifically drawn to the provisions of clause 10.
means any information of a confidential nature relating in any way to:
means the contract between Willow Learning and the Customer for the sale and purchase of the Services, incorporating these Terms.
means the party identified as the Customer in the Statement of Requirements.
means Willow Learning Limited, also known as WillowDNA.
means Willow Learning and the Customer.
means the price list that Willow Learning issues from time to time describing its standard Services and their prices.
means the services described on the Price List and/or Statement of Requirements attached to these Terms.
Statement of Requirements
means the statement of requirements form to which these Terms are attached and Statement of Requirements shall be interpreted likewise which together forms the Contract.
1.1. In these Terms references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.2. In these Terms references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.3. In these Terms headings will not affect the construction of these Terms.
2.1. Subject to any variation under condition 2.3 the Contract will be on these Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2. No terms or conditions endorsed upon, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3. These Terms apply to all Willow Learning’s sales and any variation to these Terms and any representations about the Services shall have no effect unless expressly agreed in writing and signed by a Director of Willow Learning. Nothing in this condition will exclude or limit Willow Learning’s liability for fraudulent misrepresentation.
2.4. Each order for Services by the Customer from Willow Learning shall be deemed to be an offer by the Customer to purchase the Services subject to these Terms.
2.5. No order placed by the Customer shall be deemed to be accepted by Willow Learning until a written acknowledgement of order is issued by Willow Learning or (if earlier) Willow Learning performs the Services to the Customer.
2.6. The Customer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.7. Any quotation is given on the basis that no contract will come into existence until Willow Learning despatches an acknowledgement of order to the Customer. Any quotation is valid for a period of 30 days only from its date, provided that Willow Learning has not previously withdrawn it.
3.1. Willow Learning agrees (subject to the Customer complying with the Customer obligations under the Contract) to provide to the Service(s) on the terms of but subject to the conditions contained in the Contract. Willow Learning shall use its reasonable endeavours to perform the Services in accordance with the parameters set out in the Statement of Requirements but time shall not be of the essence in the performance of the Service(s).
3.2. The Customer may request a change in the type of Service(s) provided and Willow Learning shall not unreasonably refuse such request. In order to accept such a request Willow Learning shall notify the impact of the change, if any, on the provision of the Service(s) (including as to fees and payment) and the Customer shall agree to such changes by amending and signing the Statement of Requirements.
The Customer shall provide such co-operation and assistance to Willow Learning, as Willow Learning shall require when performing the Service(s). In particular, the Customer shall; i) respond to Willow Learning’s requests for information or other requirements in a timely fashion; and ii) provide access to such facilities and competent personnel as Willow Learning shall reasonably request and require in order to perform the Services.
Any materials supplied by the Customer to Willow Learning shall on expiry or earlier termination of the Services be returned to the Customer or destroyed at its option, together with any copies of such materials.
6.1. The Customer shall advise Willow Learning employees of all rules and regulations relating to the conduct of personnel whilst at the Customer premises. Willow Learning shall use its reasonable endeavours to ensure that its personnel comply with such rules and regulations whenever they are on the Customer premises. The Customer shall take reasonable precautions to ensure the health and safety of the Willow Learning personnel while they are on the Customer premises.
6.2. Neither Party shall solicit or entice any of the other Party’s employees during the period in which the Services are provided or for 12 months thereafter.
6.3. Unless expressly agreed in writing by the Customer, Willow Learning personnel shall not hold themselves out as agents of the Customer’s and shall not have any authority to create any obligations on behalf of Customer.
7.1. In consideration of Willow Learning providing the Service(s) the Customer shall pay the fees as set out on the Statement of Requirements and/or Price List as appropriate. The Customer shall pay Willow Learning’s invoices within 30 days of receipt of the invoice thereof. In addition to the fees set out in the Statement of Requirements and/or where applicable our standard Price List, Customer shall also pay Value Added Tax (where applicable) or other applicable sales tax where Willow Learning has provided an appropriate invoice for the same.
7.2. The prices of our standard services are as set out in our Price List from time to time, except in the case of error. All prices are calculated in English pounds sterling and will be confirmed to you in our Acceptance of your Order. The prices on our Price List are exclusive of VAT and expenses (where applicable). Subject to our obligation to supply the Services at the price stated in the Contract, we reserve the right at any time to increase the prices of the Services and to change the range of Services available. We will try to give you as much notice as we can of any increase in prices or of any changes to the range of Services.
7.3. Subject to the Customer’s prior written agreement, all reasonable out of pocket expenses incurred, except where otherwise provided in the Agreement, by Willow Learning or its employees, agents or subcontractors in the provision of the Services (including but not limited to train, air fares, mileage, accommodation and subsistence) will be charged at cost to the Customer in addition to the fees.
7.4. If payment due from the Customer or any part thereof is overdue then without prejudice to its other rights and remedies Willow Learning may at its option: i) suspend the provision of the Service(s) until such payment is made, in which case the Services provision shall be extended accordingly; or ii) treat such as a material breach and take steps to terminate this Agreement in accordance with clause 11.
7.5. Payment is due as detailed in the Statement of Requirements and/or the standard price list as amended from time to time.
7.6. Time for payment shall be of the essence.
7.7. No payment shall be deemed to have been received until Willow Learning has received cleared funds.
7.8. All payments payable to Willow Learning under the Contract shall become due immediately upon termination of the Contract despite any other provision.
7.9. The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Willow Learning to the Customer.
7.10. If the Customer fails to pay Willow Learning any sum due pursuant to the Contract the Customer will be liable to pay interest to Willow Learning on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of The Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment. Willow Learning reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 in addition to the aforementioned interest rates.
8.1. Willow Learning warrants that: (i) personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated will carry out the Services with commercially reasonable skill and care; (ii) it has full power and authority to enter into and perform the Services and it has all necessary licences, permission and authorisations to enable it to perform the Services; (iii) any design, documentation, data, software or any other material or information furnished or used by it or in performance of the Services or the delivery of the data will as far as Willow Learning is aware not infringe any intellectual property rights or moral rights or database right of any third party; and (iv) it shall carry and maintain comprehensive product liability, property damage and omissions and errors insurance covering its general business including the provision of the Services.
8.2. The Customer’s sole remedy for breach of the warranty set out above shall be that Willow Learning re-perform the relevant part of the Service(s) without charge to the Customer and if in Willow Learning’s reasonable opinion, it is unable to remedy such part of the Service(s) then Willow Learning shall at its absolute discretion refund that portion of the fees that corresponds to the non-conforming the Service(s).
Subject to condition 8.2, Willow Learning indemnifies the Customer against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by the Customer arising directly or indirectly out of Willow Learning’s breach of its undertakings or obligations or any misrepresentation, negligence, fraud or wilful misconduct by it.
10.1 The following provisions set out the entire financial liability of Willow Learning (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:
(a) any breach of these Terms; and
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these Terms excludes or limits the liability of Willow Learning for death or personal injury caused by Willow Learning’s negligence or fraudulent misrepresentation.
10.4 Subject to conditions 10.2 and 10.3:
(a) Willow Learning’s total liability 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 Contract shall be limited to the price paid to Willow Learning by the Customer under the Contract; and
(b) Willow Learning expressly excludes liability for consequential loss or damage and shall not be liable to the Customer for any indirect or consequential loss or damage (whether for loss of profit, loss of data, loss of use of data, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11.1 Subject to early termination in accordance with this condition 11, the Contract shall become effective on the date of signing the Statement of Requirements, or on the date of first using the services if earlier and shall terminate on the completion of the provision of the Service(s).
11.2 Either party (the Initiating Party) may forthwith terminate the Contract at any time: i) on giving written notice to the other party if that other party commits any material breach of the Contract and, in the case of a breach that is capable of being remedied shall have failed, within thirty (30) days of such notice from the Initiating Party, to so remedy the breach to the reasonable satisfaction of the Initiating Party (such notice to contain a request to remedy the breach and to contain a warning of the Initiating Party’s intention to terminate); or ii) if the other party shall have a receiver or administrative receiver appointed over it or any of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bone fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on its business or if any substantially similar event shall take place under the laws of another jurisdiction.
11.3 If Willow Learning terminates the Contract pursuant to the above then the Customer shall pay Willow Learning the fees for performance of the Service(s) through the date of such termination.
11.4 Notwithstanding any other provision of the Contract, either party may terminate the Contract upon 30 days written notice, and the parties shall be liable for their respective obligations only up to and including the date of termination, other than in respect of the provisions contained in the clause entitled Confidentiality which will continue to apply notwithstanding termination.
12.1. Neither this Agreement nor the supply of any information by either Party to the other grants the recipient any licence, interest or right in respect of any intellectual property rights of the discloser except as provided for below.
12.2. Where Willow Learning is providing consultancy or content development services, the provisions of this clause shall apply: Any intellectual property rights (including without limitation copyright, patents, and design rights) conferred under the laws of England and Wales in materials created by Willow Learning in the course of performing the Services, or exclusively for the purpose of the performing the Services, shall vest in the Customer upon creation.
12.3. Where, in connection with the provision of the Services, Willow Learning uses any materials in which the copyright is owned by Willow Learning, Willow Learning shall grant to the Customer a perpetual, non-exclusive, royalty-free licence to use, maintain and support such materials.
12.4. Willow Learning will use all reasonable endeavours to obtain all necessary licences and permits to use third party materials which it wishes to use or make available in the course of performing the Services and Willow Learning shall use all reasonable endeavours to procure that any licences for third party materials are perpetual and contain terms that will allow the Customer on termination of this Agreement to continue to use, maintain and support such third party materials on a royalty-free basis.
12.5. Willow Learning shall indemnify the Customer in respect of any loss or damage to the Customer arising from a failure by Willow Learning to obtain any requisite licence or permit in respect of third party material used or made available by Willow Learning in the course of performing the Services.
12.6. Unless otherwise agreed in writing by the Parties all other intellectual property rights to include all patents, copyrights, design rights, trade marks, trade secrets, knowhow, database rights, actual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world remain vested in their existing owner are not in any way conferred to the other party.
Both Parties understand that personal data (as defined in the Data Protection Act 1998 and as may be modified or amended in any re-enacted or consolidated form) (Act) may be included within information provided by one Party (Disclosing Party) to the other Party (Receiving Party) or acquired by the Receiving Party arising from the performance of the Contract and Receiving Party undertakes to comply with all relevant data protection legislation with respect to such personal data. For the avoidance of doubt “personal data” shall mean any information relating to an identified or identifiable natural person. Receiving Party shall indemnify Disclosing Party and keep Disclosing Party harmless from any cost, charge, damages, expense or loss arising from a breach of this condition by Receiving Party.
14.1. Each Party agrees and undertakes to use the other Party’s Confidential Information solely in the performance of its business obligations under the Contract, and to treat and safeguard such Confidential Information as private and confidential during the currency of the Contract and subsequent to its termination for whatever reason. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person other than to its directors, employees, temporary employees, contractors, agents, outsourcers, consultants, or advisers (Recipients) for the sole purpose of, and to the extent necessary to, enable the Recipients to perform, or to cause to be performed, or to enforce any of the receiving Party’s rights and obligations under the Contract. The receiving Party shall ensure that each Recipient is informed of the confidential nature of the Confidential Information and is subject to obligations of confidentiality sufficient to enable the receiving Party to comply with its obligations under this condition.
14.2. If a Party becomes compelled to disclose the other Party’s Confidential Information to any governmental or regulatory authorities, or as required by law or court order, the Party compelled to disclose shall inform the other Party, in writing, of such fact or obligation as soon as reasonably possible after it becomes aware of it and, if possible, before any Confidential Information is disclosed. The Party compelled to disclose shall ensure, insofar as it is able to procure the same, that any such disclosure will be limited to the minimum amount of Confidential Information required to satisfy that disclosure obligation. Each Party agrees to assist and co-operate in any appropriate action that the other Party may decide to take. On the termination of the Contract, each Party shall return to the other any Confidential Information within its possession or control as may belong to the other Party, except that each Party may retain but not utilise a copy of the Confidential Information solely for the purposes of record keeping and to ensure compliance with the obligations under this condition.
14.3. The provisions of this Confidentiality clause shall not apply to any information which: i) is or becomes public knowledge other than by breach of this condition; ii) is in the possession of the receiving Party without restriction in relation to disclosure before the date of receipt from the disclosing Party; iii) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or iv) is independently developed without access to the Confidential Information.
14.4. The conditions numbered 14.1 to 14.3 (inclusive) will survive termination of the Contract and continue to bind the parties irrespective of such termination.
The parties to the Contract do not intend that any term of this Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
Any notice to be given by either party to the other may be sent by recorded delivery to the address of the other party as appearing herein or such other address as such party may from time to time have communicated to the other in writing and if so sent shall be deemed to be served 5 days following the date of posting. Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party’s rights hereunder nor in any way affect the validity of the whole or any part of the Contract nor prejudice that party’s rights to take subsequent action.
The parties hereby agree that the Contract concluded between them and constituted on these terms and conditions shall be construed in accordance with the laws of England and Wales and shall be subject to the jurisdiction of the courts of England and Wales.
In the event that any of the terms, conditions or provisions contained in the Contract shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law. Neither party shall assign or otherwise transfer all or part of the Contract without the prior written consent of the other party.
Neither party shall be under any liability to the other in respect of anything that may constitute a breach of the Contract arising by reason of force majeure, namely, circumstances beyond the control of such Party which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; materials or support; the impossibility of the use of public or private telecommunications networks, web servers and/or any other technology required to deliver the Services; the breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer) provided, however, that a party seeking excuse for delay of an obligation shall have timely notified the other party of the circumstances and shall have taken reasonable steps to attenuate the impact of such circumstances upon its obligations to the other party.
No delay or failure by either party to exercise any of its powers, rights or remedies under the Contract will operate as a waiver of them nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver, to be effective, must be in writing.
Willow Learning Ltd, Terms and Conditions, Version 1.5.1 – replaces the prior version in its entirety.