Terms and Conditions
1. Overview
This Agreement and its associated Schedules set out the terms and conditions that will apply to the provision of the Services by Synergy Learning to the Customer.
The parties to these terms are “the Customer”
and
New Media Warehouse Limited trading as Synergy Learning a Company registered in Northern Ireland under number NI 055784, whose registered office is The Innovation Centre, Queen’s Road, Belfast, BT3 9DT
(“Synergy Learning”)
2. Definitions
“Agreement” means these terms and conditions and, where applicable, any document into which they are incorporated by reference.
“Applicable Laws” means all applicable laws, statutes and regulations from time to time in force relevant to the provision of the Services
“Business Day” means any day not being:
a. a Saturday or a Sunday; or
b. a statutory public holiday in the United Kingdom (including any regional public holiday applicable to the Synergy Learning office where the Services are provided)
“Business Hours” refers to the hours of operation, namely 9.00am to 5.00pm
“Commencement Date” means the date on which this Agreement comes into force between the parties being the date both parties have signed these Terms and Conditions unless elsewhere agreed in writing by both parties.
“Confidential Information” of a party means all information which is, or may be, proprietary to that party, or commercially sensitive, and includes, but is not limited to, computer data and personal data including names, addresses, personal, medical or business affairs of persons associated with that party and information relating to the organisation, methods, administration, operation, business affairs, services provided by or to third parties, or financial or commercial arrangements of that party, or persons associated with the party and information of any nature, technical or otherwise, relating to any product or process in which the party or persons associated with the Services on behalf of the party are involved.
It specifically excludes information which:
a. was rightfully in the possession of the other party prior to the commencement of negotiations leading to this Agreement;
b. is already public knowledge or becomes so at a future date (other than because of a breach of clause 6);
c. is trivial or obvious;
d. is contained within a release in the meaning of clause 18.8; or
e. is required to be disclosed at law or by a parliamentary, governmental or judicial process or convention.
“Controller” (or data controller), “Processor” (or data processor), “Data Subject”, “international organisation”, “Personal Data” and “processing” all have the meanings given to those terms in DP Laws (and related terms such as “process” shall have corresponding meanings);
“Data Subject” has the meaning given to it under DP Laws;
“Data Subject Request” means a request made by a Data Subject to exercise any rights of Data Subjects under DP Laws;
“Deliverables” means and includes all the work to be delivered by Synergy Learning as a result of providing the Services to the Customer in accordance with Requirements, subject to clause 21.6.
“DPIA” means a Data Protection Impact Assessment, as defined in DP Laws;
“DP Laws” means any Applicable Laws relating to the processing, privacy, and/or use of Personal Data, as applicable to the Customer, Synergy Learning and/ or the Services;
“GDPR”means the UK General Data Protection Legislation;
“Intellectual Property” means the following industrial and intellectual property rights, whether registered or unregistered, and includes:
a. trademarks, service marks, trade names, registered designs, design rights, copyright (including all copyright in any designs and computer software), source code, and applications for any of the foregoing;
b. the copyright in all drawings, plans, specifications, designs, policies, procedures or other documents relating to the Services including rights in computer software;
c. knowledge connected with the Services including data, specifications and drawings, technical information; and
d. rights under any agreement or contracts granted to third parties to use any of the above, but excludes patents registered in a jurisdiction other than the jurisdiction in which the Synergy Learning is incorporated.
“Maintenance Release” means an update to an existing version of the application containing error corrections or minor functionality enhancements. A Maintenance Release is designated as a numbered service pack for the current version, with no change in the version number.
“New Version Release” means a new version of the application containing new features or enhancements to functionality. A New Version Release is designated by an increase in the version number (e.g. from 1.5 to 1.6 or 2.0).
“Open Source License” means any software license identified by the Open Source Initiative as an open source license by meeting its open source definition; and “Open Source” shall have a corresponding meaning.
“Project” means, collectively, the products and service specified in the Statement of Work within Schedule 1 (Services);
“Process” has the meaning given to it under DP Laws (and Processing, Processed and Processes shall be construed accordingly);
“Processor” has the meaning given to it under DP Laws;
“Protected Data” means Personal Data received from or on behalf of the Customer, or otherwise obtained in connection with the performance of Synergy Learning’s obligations;
“Quotation” means a formal document issued by Synergy Learning that outlines the proposed products, services, effective date, Term and associated pricing offered to the Customer. Each Quotation is subject to acceptance and, upon being signed by both parties, becomes part of these binding Terms and Conditions.
“Regulatory Authority” means the UK Information Commissioner’s Office, or the equivalent national data protection regulatory authority in any relevant jurisdiction;
“Representative” means for the Customer, the nominated representative who has the authority to represent the Customer, and for Synergy Learning, the Chief Executive or any other representative as notified from time to time.
“Requirements” means the statement of business and technical requirements set out in the referenced documents of the relevant Statement of Work and any other requirements referred to in this Agreement or subsequently agreed between the parties.
“Services” means collectively the services to be provided by Synergy Learning to the Customer under this Agreement.
“SLA” means a Service Level Agreement, or commitment of like description that includes a credit for failing to meet a defined service level or response time.
“Statement of Work” or “SOW” means any document where the parties agree on Requirements to be delivered under this Agreement.
“Sub-Processor” means another Processor engaged by Synergy Learning for carrying out processing activities in respect of the Protected Data on behalf of the Customer, and authorised by the Customer in accordance with paragraph 19.3.
“Taxes” means any and all taxes (including VAT, income tax and withholding taxes), duties and levies imposed by any competent authority in any jurisdiction.
“Term” means the period referenced in all Quotations hereunder. Each Quotation will commence upon its effective date as set forth in the applicable Order Form and continue for the term set forth therein.
3. Interpretation
3.1 For the purposes of interpretation and construction of this Agreement:
3.1.1 headings are for convenience only and do not affect the interpretation of this Agreement;
3.1.2 the word “including” shall not imply restriction;
3.1.3 words importing the singular include the plural and vice versa;
3.1.4 a reference to a person includes that person’s successors and permitted assigns;
3.1.5 an item listed under a heading “Assumptions” or similar in a Schedule to this Agreement is a condition of this Agreement inserted for the sole benefit of Synergy Learning. Assumptions are the Customer’s responsibility to satisfy.
3.1.6 words importing any gender include any other gender
3.2 To the extent that a term of this Agreement requires the performance by a party of an obligation “in accordance with DP Laws” (or similar) this requires performance in accordance with such DP Laws as are in force and applicable at the time of performance and, if the relevant obligation is not then a requirement under applicable DP Laws, it shall not apply until such time as it is so required.
4. Obligations of the Parties
4.1 Each party agrees to co-operate and work with the other in good faith to enable the effective performance of the required Services by Synergy Learning. This includes the Customer making available information, decisions and processes as may reasonably be required to facilitate Synergy Learning to implement and deliver the Services in accordance with this Agreement.
5. Termination
5.1 This Agreement is terminated by any one or more of the following:
5.1.1 both parties agree in writing giving 90 days’ written notice to the other party;
5.1.2 once the Requirements of all Statements of Work have been completed;
5.1.3 if the Customer has not paid an invoice within 30 days of it becoming due, and Synergy Learning gives the Customer 14 days’ notice of its intention to cancel this Agreement, upon the notice period expiring without payment of the said invoice;
5.1.4 if either party is in breach of this Agreement and either:
a. the breach is not capable of being remedied, or
b. the party in breach does not remedy the breach within 40 working days of receiving a notice from the other party stating the details of the breach and what is required to remedy the breach;
5.1.5 if either other party becomes insolvent, goes into liquidation or bankruptcy, has a receiver appointed in relation to its business assets, or enters into any arrangements with its creditors; and
5.1.6 pursuant to clause 9.3 by reason of a Force Majeure Event.
5.2 If this Agreement is terminated, all existing claims and remedies at law remain extant and may be pursued by either party.
5.3 Upon termination of this Agreement, the Customer may require Synergy Learning to provide the Customer with copies of their data, usually comprising database, site data and code base. Synergy Learning will charge its standard hourly rates for providing this to the Customer.
6. Confidentiality
6.1 Both parties agree that, unless they have the prior written consent of the other, they will not use or disclose to any third party (other than for the purpose of performing their obligations under this Agreement) any information which is Confidential Information of the other party. The obligations of this clause shall survive termination or cancellation of this Agreement.
6.2 Synergy Learning undertakes to ensure that its employees, agents and sub-contractors who need to know the same are aware of and will be legally obliged to comply with the provisions of this clause in relation to the Confidential Information.
6.3 Synergy Learning shall ensure that all sub-contracts will contain confidentiality provisions consistent with this clause 6.
6.4 Synergy Learning shall, upon the termination of this Agreement or if and when otherwise requested by the Customer to do so, return to the Customer forthwith any Confidential Information of the Customer, computer programmes, information, data, books, records, papers, Intellectual Property or any other property belonging to the Customer, or any copies of the same in Synergy Learning’s possession or control. Where Confidential Information, information, data, computer programmes or Intellectual Property of the Customer is stored on any computer equipment belonging to Synergy Learning and it is not convenient to delete it, Synergy Learning may instead continue to maintain the confidentiality of that Confidential Information.
7. Indemnity and Liabilities
7.1 Neither party to this Agreement shall be liable to the other party for indirect or consequential loss or damages (including but not limited to loss of business profits, business interruption, loss of business information, data, goodwill or other non-pecuniary loss) arising out of or in connection with this Agreement or the provision of the Services, whether arising from negligence, breach of contract or otherwise.
7.2 The maximum liability of the Customer for any claim under this Agreement (whether arising from negligence, breach of contract or otherwise) shall be the total service costs payable by the Customer to Synergy Learning during the calendar year in which the claim is made.
7.3 The maximum aggregate liability of Synergy Learning for all claims under or relating to this Agreement (whether arising from negligence, breach of contract or otherwise) shall be the lesser of the annual cost and 1,000,000.00 British Pounds.
7.4 Each party agrees to defend, indemnify and save the other party, its affiliated and subsidiary corporations, its officers, directors, employees, agents, successors, shareholders and assigns harm from and against all liability, loss, expense, fines, penalties, or damages (including legal costs) to the extent that such claim arises out of or is in any way connected with the non-performance or breach of any obligation imposed on the indemnifying party by this Agreement or other general laws and obligations or by reason of and to the extent of the fraud, negligence or willful misconduct of the indemnifying party or any agent or employee of the indemnifying party.
7.5 For the avoidance of doubt, the limitations and exclusions of liability outlined in this Agreement shall apply to the indemnity obligations of the parties (if any).
7.6 Synergy shall defend, indemnify and save Customer, its Affiliates, its officers, directors, employees, agents, successors, shareholders and assigns (“Customer Indemnitees”) harm from and against all liability, loss, expense, fines, penalties or damages (including legal costs) to the extent that such claim arises out of or is in any way connected with the Services infringing the Intellectual Property of any third party. If such a claim may be, or has been, asserted, Synergy Learning shall, at Synergy Learning’s expense and Customer’s option, get the right for Customer to continue to use those Services, or replace or change those Services, to eliminate the infringement while providing functionally equivalent performance. If Synergy Learning cannot comply with those conditions, Synergy Learning shall refund to the Customer all payments made for those Services. The remedies set forth in this paragraph are in addition to, and not instead of, all other remedies that may be available to Customer under this Agreement or otherwise, including Customer’s right to be indemnified for the claim. Customer Indemnitees must promptly notify Synergy Learning of that claim and deliver to Synergy Learning a copy of any legal pleadings about the claim. To assume the defence of a claim, Synergy Learning must notify Customer Indemnitees that it is doing so. Promptly after notification, Synergy Learning shall retain independent legal counsel reasonably acceptable to Customer Indemnitees to represent Synergy Learning in the claim. Customer Indemnitees may participate in the defence of a claim assumed by Synergy Learning. Customer Indemnitees may defend a claim with counsel of its own choosing and without Synergy Learning participating if: (a) Synergy Learning notifies Customer Indemnitees that it does not want to defend the claim; (b) Synergy Learning fails to notify Customer Indemnitees that it wants to defend the claim by midnight at the end of the tenth day after Customer Indemnitees notifies Synergy Learning of the claim; or (c) representation of Synergy Learning and Customer Indemnitees by the same counsel would, in the opinion of Customer Indemnitees, constitute a conflict of interest. After Synergy Learning assumes defence of a claim, Synergy Learning may settle the claim without the consent of Customer Indemnitees only if that settlement: (a) does not entail any admission on the part of any of Customer Indemnitees of any wrongdoing, that it violated any law, or infringed the rights of any person or entity; (b) has no effect on any other claim against Customer Indemnitees; (c) provides, as the claimant’s sole relief, monetary damages that are paid in full by Synergy Learning; and (d) requires that the claimant release Customer Indemnitees from all liability alleged in the claim.
7.7 For the avoidance of doubt, the limitations of liability in clauses 7.1, 7.2, and 7.3 shall not apply to clause 7.6 or a party’s confidentiality and data protection obligations under this Agreement.
7.8 No action, regardless of form, arising out of any alleged breach of this Agreement or obligation hereunder may be brought by either party more than two (2) years after the cause of action has occurred.
8. Warranties and Disclaimers
8.1 It is in the nature of software development that bugs may occur. That is, from time to time use of the Deliverable may be interrupted, or the Deliverable might not fully perform in accordance with its specifications. Such interruption, bugs or non-conformance do not constitute a breach of this Agreement. Instead, they are dealt with through Synergy Learning’s software warranty set out in clause 8.2.
8.2 Synergy Learning’s software warranty is that Synergy Learning will remedy any non-compliance of a Deliverable with its Requirements, provided that the non-compliance is notified to Synergy Learning within sixty (60) days from the earliest of delivery to the Customer or release to a production environment. However, where the cost to Synergy Learning of remedying such non-compliance would be excessive and disproportionate to the charge associated with the Deliverable, Synergy Learning may choose to refund that charge instead of remedying the non-compliance. Synergy Learning further warrants that: (i) Synergy Learning has written cybersecurity policies and procedures in place that are designed to ensure the confidentiality, security, integrity and availability of Customer’s Information Systems and Non-public Information, that are accessible to, or held by, Synergy Learning; (ii) Synergy Learning and its Synergy Learning workers, Sub-Processors, and sub-contractors have proper skill, training, and background to perform Services in a competent and professional way; (iii) the Services will in all material respects conform to and perform in accordance with all requirements of this Agreement; (iv) the Services are and will remain free of any disabling mechanism or device, hidden program, time-out mechanism, virus or other computer programming routines that are intended to damage, disrupt, provide unauthorized access to, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Personal Information; and (v) Synergy Learning data centre is certified as compliant with the ISO 27001 standard and it shall remain certified during the term of the Agreement.
8.3 The warranty set out in clause 8.2 shall not apply where any non-compliance of a Deliverable with its requirements is attributable to the actions or omissions of the Customer or any third party who is not an agent, employee or sub-contractor of Synergy Learning.
8.4 Each representation, condition, indemnification or warranty alleged to be made by Synergy Learning but not expressly contained in this Agreement is excluded unless it is unlawful to do so.
8.5 The Services provided in this Agreement are provided for the purposes of use commercially. This means that laws designed to protect consumers acquiring goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, are expressly excluded from this Agreement, to the full extent permitted by law.
8.6 Synergy Learning makes no representations and gives no warranties, guarantees or undertakings concerning its performance of the Services, except as expressly set out in this Agreement. All other warranties, express or implied, by statute or otherwise (including but not limited to the warranties of merchantability, fitness for a particular purpose, and satisfactory quality) are excluded from this Agreement, to the fullest extent permitted by law.
9. Force Majeure
9.1 Neither party will be liable for any act, omission, or failure to fulfil its obligations under this Agreement to the extent that such act, omission or failure arises from any cause reasonably beyond its control including acts of God, strikes, lockouts, riots, acts of war, terrorism, loss of mains power or network connectivity, epidemics, localised disease outbreak, governmental action, fire, earthquake or other disasters (“Force Majeure Event”).
9.2 The party unable to fulfil its obligations under this clause 9 will immediately:
9.2.1 notify the other party in writing of the reasons for its failure to fulfil its obligations; and
9.2.2 use all reasonable endeavours to avoid or remove the cause of its failure to perform its obligations.
9.3 If a party is unable to perform any of its obligations under this Agreement due to a Force Majeure Event for a period of at least thirty (30) days, either party may terminate this Agreement by giving thirty (30) days’ written notice to the other provided that if the Customer terminates this Agreement it shall pay to Synergy Learning a fair and equitable charge for the work performed by Synergy Learning to the date of termination. Termination of this Agreement under this clause will not prejudice the rights of either party against the other in respect of any matter or thing occurring under this Agreement before its termination.
10. Information Security
10.1 Synergy Learning shall, and shall cause its Sub-Processors and sub-contractors who process, transmit, or store Customer Confidential Information to:
10.1.1 maintain administrative, physical, and technical controls (designed to ensure the confidentiality, security, integrity, and availability of Customer Confidential Information) associated with all Information Systems, including applications and networks used to collect, process, transmit, or store Customer Confidential Information.
10.1.2 implement appropriate controls to ensure that Customer Confidential Information and Synergy Learning’s Information Systems used to process, transmit, or store Customer Confidential Information are protected against viruses and malware;
10.1.3 give appropriate privacy and information security training to its employees;
10.1.4 implement an appropriate formal change management processes that documents and controls changes to Synergy Learning’s organisation, business processes, information processing facilities, and Information Systems;
10.1.5 implement appropriate physical controls to prevent unauthorised physical access, damage, or interference to the information processing facilities used by Synergy Learning and Subcontractors to process, transmit, or store Customer Confidential Information;
11. Non-Solicitation
11.1 During the Term of this Agreement and for an additional period of six months thereafter, each party agrees not to:
11.1.1 induce any employee of the other to terminate his or her employment relationship with the other party; or
11.1.2 offer employment to any employee of the other party who has performed any Services related to this Agreement without first obtaining the written consent of the other party, provided that nothing in this clause 10.1 shall prevent either party from employing any person who responds to a genuine advertisement placed by that party.
12. Variations
12.1 Subject to clause 16, any variation to this Agreement must be in writing and signed by each party’s Representative or other duly authorised signatory, provided that:
12.1.1 any facsimile or scanned copy of such signed document duly received from the other party through email or facsimile transmission shall, unless there is clear evidence showing otherwise, have the same effect as the original; and
12.1.2 any change in the technical details in a Statement of Work or the Schedules may be confirmed between the parties through email.
13. Non-Partnership
13.1 Synergy Learning does not have any power, right or authority to bind the Customer, or to assume or create any obligation or responsibility, expressed or implied, on behalf of the Customer. Nothing contained in this Agreement shall be construed as constituting Synergy Learning and the Customer as partners or joint ventures, or as creating the relationship of employer and employee, or principal and agent between them or otherwise create any other relationship than that of seller and a purchaser as set forth in this Agreement.
14. Disputes and Remedies
14.1 The parties agree to use reasonable efforts to resolve any dispute that may arise under this Agreement through good faith negotiations.
14.2 A party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute (notice of dispute). If within ten (10) days of receipt of a notice of dispute, the parties have not resolved the dispute, the dispute must be escalated to the chief executive or equivalent of the Customer and for Synergy Learning.
14.3 Any dispute arising under this Agreement that cannot be settled by negotiation between the parties or their respective representatives shall be submitted to mediation. Either party may initiate mediation by giving written notice to the other party.
14.4 If the parties cannot agree on a mediator within fourteen (14) Business Days of the notice, either party, upon giving written notice, may apply to the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators, for the appointment of a mediator.
14.5 Any dispute that cannot be settled by mediation, in whole or in part, either party may, upon giving written notice, and within twenty-eight (28) Business Days thereof, apply to the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators, for the appointment of a single arbitrator, for final resolution. The arbitrator shall have no connection with the mediator or the mediation proceedings, unless both parties have consented in writing. The arbitration shall be governed by both the Arbitration Act 1996 and the Controlled Cost Rules of the Chartered Institute of Arbitrators (2014 Edition), or any amendments thereof, which Rules are deemed to be incorporated by reference into this clause. The seat of the arbitration shall be the United Kingdom.
14.6 The parties shall continue to perform their obligations under the Agreement as far as possible as if no dispute had arisen pending the final settlement of any matter referred to mediation.
14.7 Nothing in this clause 13 shall preclude either party from taking immediate steps to seek urgent equitable relief before a court of competent jurisdiction.
15. No Waiver
15.1 No failure, delay or indulgence by either party in exercising any power or right conferred on that party by this Agreement will operate as a waiver of that power or right. Nor will a single exercise of any of those powers or rights preclude further exercises of those powers or rights or the exercise of any other powers or rights under this Agreement.
16. Notices and Variations
16.1 Any notice required to be given under this Agreement may be sent by email to the representative’s email address or posted via registered post or sent by facsimile to the address in each case, set out below, for each party in this Agreement.
16.2 Notices will only be deemed to be received:
16.2.1 in the case of personal delivery, when delivered;
16.2.2 if sent by email, upon receipt.
16.3 The contact details for Synergy Learning’s Representative are:
For: Synergy Learning
Name: Roy Kerley (CEO)
Address:
Unit 18
The Innovation Centre
Queen’s Road
Belfast
BT3 9DT
Email: [email protected]
16.4 Each party may from time to time change its Representative’s contact details by serving written notice on the other party pursuant to this clause.
16.5 In the event the Customer requests that Synergy Learning carry out work in addition to that contained in the Statement of Work, Synergy Learning will not carry that work out until the Customer has put through an additional change request, and further charges will apply at Synergy Learning’s usual rates for that type of work.
17. Entire Agreement
17.1 There are no conditions, warranties or other terms affecting the arrangements between the parties other than those referred to in this Agreement and this Agreement contains the whole of the contract between the parties and supersedes all prior agreements and understandings, if any, with respect to the transactions contemplated herein.
18. Survival
18.1 Any clause of this Agreement that contemplates performance or observance after this Agreement has been terminated, including clauses 2, 3, 5.2, 5.3, 6, 7, 8, 9, 10, 13, 17, 18, 19 and 20 shall remain in full force and effect following such termination.
19. Intellectual Property
19.1 The Customer owns and retains all rights, title and interest in and to all its pre-existing Intellectual Property which shall in no event be affected by this Agreement.
19.2 Synergy Learning will not deal with the Customer’s Intellectual Property in a manner which is contrary to the Customer’s interest and in particular, shall not use, copy, disclose or dispose of any such information, data or documentation except as necessary for the performance of obligations under this Agreement or with the Customer’s prior written consent and shall deliver all such items into the possession of the Customer upon request within a reasonable time.
19.3 The Customer will ensure that it has all necessary rights and licenses in relation to Intellectual Property subsisting in any matter, thing or process supplied by the Customer pursuant to this Agreement for use by Synergy Learning in providing the Services to the Customer under this Agreement.
19.4 Synergy Learning owns and retains all rights, title and interest in and to all Intellectual Property that may subsist in any materials, programs, documentation, data and information owned by Synergy Learning prior to the commencement of this Agreement.
19.5 Synergy Learning may incorporate its own or third-party Intellectual Property into a Deliverable where that Intellectual Property is Open Source and therefore the Customer has a perpetual right to use the Intellectual Property provided that the Customer respects the Open Source License terms.
19.6 Exclusive ownership and title to all Intellectual Property Rights relating to all the Deliverables will be vested in the Customer as and when they are being created or as those Intellectual Property rights arise.
19.7 Synergy Learning hereby warrants that, save and except any components which are as a matter of fact subject to the terms and conditions of an Open Source License, the Deliverables do not infringe the Intellectual Property rights of any third party.
19.8 In keeping with the underlying public benefit principles of Open Source, Intellectual Property created by Synergy Learning for the Customer may be released by Synergy Learning back to the Open Source software development community, unless otherwise directed by the Customer. Such release shall occur for the sole purpose of advancing the availability of better code, in a manner consistent with the prevailing software licences. This clause 18.8 applies only where the release does not contain or imply trade secrets or confidential business processes.
20. Data Protection
20.1 The provision of the Services may require Synergy Learning to Process Personal Information for and on behalf of the Customer. In respect of such Processing, the Parties acknowledge and agree that:
20.1.1. the Customer shall be the Data Controller and Synergy Learning shall be the Data Processor; and
20.1.2 the Customer shall be responsible for determining the purpose(s) for which and the manner in which the Personal Information will be Processed by Synergy Learning.
20.1.3 details of the Personal Information being Processed by Synergy Learning in the provision of the Services where required are set out in Schedule 6 to this Agreement.
20.2 When Processing Personal Information in the provision of the Services, Synergy Learning shall:
20.2.1 Process the Personal Information only on the documented instructions of the Customer, except to the extent that any Processing of Personal Information is required by Applicable Laws;
20.2.2 where Processing of Personal Information by Synergy Learning is required by Applicable Laws, Synergy Learning shall inform the Customer of the relevant legal requirement before Processing, unless such Applicable Law prohibits Synergy Learning from doing so;
20.2.3 notify the Customer where Synergy Learning reasonably believes any documented instructions from the Customer in respect of the Processing of Personal Information infringe any Data Protection Legislation or any other Applicable Laws;
20.2.4 ensure that its personnel who are authorised to Process the Personal Information have committed themselves to confidentiality;
20.2.5 implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of Processing, in accordance with paragraph 20.4 below;
20.2.6 only appoint a third party to Process Personal Information on its behalf in accordance with paragraph 20.3 below;
20.2.7 taking into account the nature of the Processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subject’s rights under Data Protection Legislation;
20.2.8 notify the Customer without undue delay after becoming aware of a Data Breach;
20.2.9 assist the Customer in its compliance with paragraphs 20.5 and 20.6 below, insofar as it is able taking into account the nature of the Processing and the information available to Synergy Learning;
20.2.10 at the Customer’s discretion, delete or return to the Customer all of the Personal Information Processed under the Agreement on completion of the Processing, and delete any copies of such Personal Information unless any Applicable Laws require that copies are kept; and
20.2.11 make available to the Customer all information necessary to demonstrate compliance with its obligations in this paragraph 20.2 and allow for and contribute to any audits, including inspections, conducted by the Customer or another auditor authorised by the Customer.
20.3 Synergy Learning shall not subcontract its Processing of Personal Information to a third party without the Customer’s prior specific or general written authorisation (not to be unreasonably withheld, conditioned or delayed). Where any sub-contracting of Processing of Personal Information is based on the Customer’s general written authorisation, Synergy Learning shall inform the Customer of any intended changes concerning the addition or replacement of any subcontractors and the Customer shall notify Synergy Learning of any objections it has to any such changes in writing within twenty (20) Business Days, after which any such changes which the Customer has not objected to in accordance with this paragraph 20.3 shall be deemed to be accepted.
20.3.1 Where Synergy Learning sub-contracts it, Processing of Personal Information to a third party in accordance with paragraph 20.3 above, Synergy Learning shall:
20.3.2 ensure that any such third party is subject to the same data protection obligations as set out in paragraph 20.2 above;
20.3.3 obtain sufficient guarantees from any such third party that they will implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of Processing, in accordance with paragraph 20.4 below, and in such a manner that to ensure that the Processing of Personal Information by such third party will meet the requirements of Data Protection Legislation; and
20.3.4 remain liable to the Customer for any Processing of Personal Information by any such third party.
20.4 The Parties shall each implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of Processing, including inter alia as appropriate;
20.4.1 the pseudonymisation and encryption of Personal Information;
20.4.2 the ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services;
20.4.3 the ability to restore the availability and access to Personal Information in a timely manner in the event of a physical or technical incident;
20.4.4 a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of Processing; and
20.4.5 taking steps to ensure that any of its personnel who have access to Personal Information do not process Personal Information except on instructions from the Customer, except to the extent that any Processing of Personal Information is required by Applicable Laws.
20.5 The Parties shall each maintain a record of the Processing activities under its responsibility in accordance with their respective obligations under Data Protection Legislation, which shall be made available to the Regulatory Authority on request.
20.5.1 The Parties shall cooperate with the Regulatory Authority on request in respect of the performance of its tasks under the Agreement.
20.5.2 Where required under Data Protection Legislation, the Customer shall be responsible for carrying out any privacy impact assessments in respect of the envisaged Processing by Synergy Learning under the Agreement and ensuring that any such privacy impact assessment is conducted in accordance with Data Protection Legislation.
20.5.3 Where any privacy impact assessment conducted by the Customer pursuant to paragraph 20.5.2 above concludes that the envisaged Processing by Synergy Learning under the Agreement would result in a high risk to the rights and freedoms of Data Subjects, the Customer shall be responsible for consulting with the Regulatory Authority and/or obtaining any prior authorisation from the Regulatory Authority in respect of such Processing in accordance with Data Protection Legislation.
20.6 In the event of a Data Breach, the Customer shall determine whether or not a Data Breach is likely to result in a risk or high risk to the rights and freedoms of Data Subjects. Where the Customer determines that a Data Breach is likely to result in a risk or high risk to the rights and freedoms of Data Subjects, the Customer shall be responsible for;
20.6.1 notifying the Data Breach to the Regulatory Authority within seventy-two (72) hours of becoming aware of the Data Breach;
20.6.2 ensuring that any notification made under paragraph 20.6 (a) complies with the requirements of Data Protection Legislation;
20.6.3 where required under Data Protection Legislation or by the Regulatory Authority, communicating the Data Breach to affected Data Subjects without undue delay; and
20.6.4 ensuring that any communication made under paragraph 20.6 (c) complies with the requirements of Data Protection Legislation.
20.7 The Customer shall maintain a record of any Data Breaches, including the facts relating to the Data Breach, its effects and the remedial action taken, which shall be made available to the Regulatory Authority on request.
20.8 Synergy Learning shall not transfer Personal Information to any country outside the EEA without the prior written consent of the Customer, such consent may be subject to and given on such terms as the Customer may in its absolute discretion prescribe.
20.9 In the event that the Customer consents to the transfer of Personal Information from Synergy Learning to a country outside of the EEA under paragraph 20.8, Synergy Learning shall comply with the following additional provisions:
Synergy Learning shall confirm in writing details of:
20.9.1 the Personal Information which will be transferred to and/or Processed in a country outside of the EEA;
20.9.2 any Sub-processors or other third parties who will be Processing and/or receiving the Personal Information outside of the EEA;
20.9.3 how Synergy Learning will ensure an adequate level of protection and adequate safeguards in respect of the Personal Information that will be Processed in and/or transferred to a country outside of the EEA, so as to ensure compliance with Data Protection Legislation.
21. Governing Law
21.1 This Agreement shall be governed by and construed in accordance with the laws of Northern Ireland. In relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement (“proceedings”) each of the parties irrevocably submits to the exclusive jurisdiction of the courts of Northern Ireland and waives any objection to proceedings in such courts on the grounds of venue or in the grounds that the proceedings have been brought in an inconvenient forum.
21.2 Clause 21.1 does not limit Synergy Learning’s right to seek orders in overseas courts for recovery of debts owed by the Customer.
22. Payment for Services
22.1 The agreed quotation will state whether Synergy Learning will charge on a time and expenses basis at its usual hourly rates, or whether a set price will apply for the project. The agreed quotation will also determine whether Synergy Learning will charge in instalments or at the completion of Services.
22.2 Invoices must be paid by their due date. The due date for an invoice is thirty (30) days from the date on which it is rendered, unless otherwise specified on the invoice.
22.3 In the event an invoice remains unpaid after the due date then;
22.3.1 Synergy Learning will be entitled to stop any work being carried out for the Customer; and
22.3.2 interest will become payable on the outstanding fees and any disbursements at the rate of 3% per month; and
22.3.3 Synergy Learning will be entitled to recover from the Customer all debt recovery costs, including any legal costs at the full solicitor-client rate and any disbursements including all costs incurred by Synergy Learning using a debt recovery agency; and
22.3.4 Synergy Learning will not be required to transfer any work or any Intellectual Property rights in work to the Customer until the full sum owing is paid.
22.4 Any quote or estimate provided by Synergy Learning will lapse 30 days from the date it is issued unless the quote or estimate states otherwise.
22.5 Where any fees or charges for Services include work that involves Synergy Learning interacting with or depending on a Customer-supplied or third-party component, any variance from the estimated or quoted effort required is at the Customer’s risk and is chargeable at Synergy Learning’s standard rates.
22.6 Unless otherwise specified, all prices, quotes and estimates are exclusive of Taxes. The Customer will pay Taxes in respect of all fees and charges payable by the Customer under this Agreement.
22.7 If the Customer is required by law to make any deductions or withholdings, the Customer must pay the required amount to the relevant authority, provide Synergy Learning with documentation evidencing the payment, and pay Synergy Learning any additional amounts necessary to ensure that the net amount Synergy Learning receives equals the full amount that Synergy Learning would have received, had no deduction or withholding been required.
22. Publicity
22.1 The Customer agrees that when making public announcements concerning the Services or Deliverables or their application, it will acknowledge that they were provided by Synergy Learning.
Schedules
Definitions
In the following Schedules, (where they apply to the services being procured), unless the context otherwise requires:
| Acceptance Date | means the date on which the Development Work is accepted (or deemed to be accepted) by the Customer pursuant to Schedule 5 below |
| Acceptance Tests | means the tests specified in Schedule 5 and/or such other tests as may be agreed in writing between the Customer and Synergy Learning |
| Account Manager | means the person for the time being duly appointed by Synergy Learning to act as their principal contact |
| Affected Components | means the Service(s) that have been affected by the failure to meet a Service Level Guarantee and include the initial Service that failed plus any Service(s) which become inaccessible or unable to perform their intended purpose under the Terms and Conditions as a result of the initial Service’s failure. |
| Airnotifier | means the software program downloadable at https://github.com/airnotifier/airnotifier which has been customised by Supplier and used for push notifications. |
| Application | means the Product as detailed in Schedule 1 |
| API Error | means; i. a HTTP 5xx server error response to a Valid API Request or ii. no response to a Valid API Request because the API is down. Network errors or downtime outside of the Synergy Learning Data Centre Network do not constitute an API error. |
| Change Request | means a request for a change to the Development Work made by the Customer or Synergy Learning |
| Customer Content | means the Content provided to Synergy Learning by the Customer for use in accordance with this Agreement |
| Configuration Guidance | means any recommended critical configuration changes or upgrades provided to you by Synergy Learning |
| Content | means all text, graphics, logos, photographs, images, moving images, sound, illustrations and other materials featured, displayed or used or to be featured, displayed or used in or in relation to the Development Work |
| Client Content | means the Content provided to Synergy Learning by the Customer for use in accordance with this Agreement. |
| Credit Percentage | means a credit amount calculated as a percentage of the Service Fees. |
| Database Instance | means your unique database instance and the availability of the storage volume provisioned for your instance, as well as the API used to administer the database service. |
| Data Centre Infrastructure Downtime | means any part of the Synergy Learning infrastructure contained within the data centre that experiences a service affecting failure. |
| Data Centre Network | means the portion of the Synergy Learning network extending from the network egress point of your Host Server, to the outbound port of the data centre border router. |
| Data Centre Network Downtime | means a Host Server is not reachable as a result of a failure in the Data Centre Network. |
| Designated Contacts | means the named individuals nominated by the Customer |
| Development Programme | means the timetable for the Project as set out in Schedule 1 – Specification |
| Development Work | means the work being developed, designed or customised by Synergy Learning for the Customer, including any enhancements and modifications made |
| Error | means any material defect, error, failure or deviation from proper function and/or specification which occurs in the Product or Application |
| Error Correction | means a fix, patch, change or other alteration made to the Product which successfully resolves an Error |
| Host Server | means the physical server which hosts your Server or database service, or the group of servers which host your cluster, as applicable. |
| Load Balancer | means your Synergy Learning load balancer instance |
| Monitoring Alert | means a device or service being monitored by Synergy Learning violates a predefined error condition, and some form of notification is generated. |
| Monthly Availability | means a monthly availability percentage calculated for a given monthly time period. |
| Payment Schedule | means the payment schedule set out in the agreed quotation – Fees |
| Power | includes uninterruptible power supplies, power distribution units and cabling but excludes Host Server power supplies. |
| Price | means the sums to be paid by the Customer to Synergy Learning as specified in the agreed quotation – Fees in consideration of the performance of the Project |
| Project Team | means the personnel of Synergy Learning to carry out the Project listed in the Statement of Work within Schedule 1 – Specification |
| Server Error Response | means an HTTP return status code between 500-599. |
| Specification | means that which is set out within Schedule 1 – Specification |
| Subscription Services | means the hosting services provided under this Schedule which have an up to date Subscription Term. |
| Subscription Term | means the length of the period for the services provided which can then be renewed. |
| Supported Environment | means the environment and infrastructure utilised to host the Application. |
| Valid API Request | means a well-formed request that complies with the published API specification. |
| Volume | means a logically identified container or dataspace provisioned within the storage service for your use |
| Warranty Period | means the period of 60 days after the Acceptance Date during which time the Customer may seek rectification for any work completed that does not meet Specification |
Capitalised terms not defined in this Schedule shall have the meaning ascribed to them elsewhere in the Agreement.
This Schedule forms part of the operative provisions of this Agreement and references to this Agreement shall, unless the context otherwise requires, include references to the Terms & Conditions and the Schedules.
Schedule – Payment terms
- In consideration of performance of Synergy Learning’s duties under this agreement, the Customer shall pay Synergy Learning the Price according to the Terms of the agreed quotation (Fees).
- The Price is inclusive of all labour and materials but excludes:
- value added tax (where applicable), and expenses as provided in clause 3.3.
- Synergy Learning shall be entitled to recover from the Customer reasonable incidental expenses for necessary travel, accommodation, subsistence where applicable as well as any materials used during the Project and for third party goods and services supplied to the Project, subject to the following provisions:
- The Price is inclusive of all labour and materials but excludes:
- Synergy Learning shall provide a summary of third party expenses incurred in connection with the Project and such expenses will be invoiced with reasonable supporting documentation;
- any third party expense that is reasonably expected to be more than £100 in relation to any particular matter shall require the prior approval of the Customer before it is incurred;
- any expense to be incurred by Synergy Learning as a consequence of any amendment agreed by the parties to the terms of the Project shall be agreed by the parties and for the avoidance of doubt shall be outside the scope of the provisions outlined immediately above.
Schedule – Hosting Services
This Service Level Agreement is part of your Terms and Conditions of Service with Synergy Learning.
1. Services
1.1 This schedule sets out Service Levels for the Hosting Services, the performance of which the parties have agreed to measure provision of the available services and the requirements set out in Schedule 1 (Services).
1.2 Synergy Learning shall monitor and report on its performance of each of the Services by reference to the Service Level(s) for that Service.
1.3 Synergy Learning shall, always, provide the Services in such a manner that the Service Level for each Service is achieved at “Green” level in accordance with the table below.
1.4 If the level of performance by Synergy Learning of any element of a Service during a Service Period:
1.4.1 achieves the Service Level in respect of each element of the Service, no Service Credits will accrue to Synergy Learning in respect of that element of the Service;
1.4.2 is below the Service Level the appropriate number of Service Credits will accrue to Synergy Learning in respect of that element of the Service;
1.5 Synergy Learning confirms that it has taken the Service Levels into account in setting the level of the Charges. Both parties agree that the Service Credits are a reasonable method of price adjustment to reflect poor performance.
1.6 Where Synergy Learning wishes to carry out any maintenance to the Services (other than Emergency), it shall ensure that the timing of the planned maintenance as otherwise agreed in writing with the Customer at least three (3) Business Days (or earlier by agreement) in advance. Once agreed with the Customer, the planned maintenance (which shall be known as “Permitted Maintenance”) shall proceed at the agreed date and time.
1.7 Synergy Learning shall carry out any necessary maintenance where it reasonably suspects that the Services or any part thereof has or may have developed a fault. Any such maintenance shall be carried out in such a manner and at such times to avoid (or where this is not possible to minimise) disruption to the Services.
1.8 For the avoidance of doubt, to the extent that Synergy Learning would have been able to achieve the Service Levels in accordance with this Schedule but has failed to do so as a direct result of a Customer cause or Force Majeure Event, Synergy Learning shall be relieved of such performance requirements as set out in this Schedule subject to always notifying the Customer.
2. Service credits
2.1 The Customer shall use the performance reports provided pursuant to, among other things, verify the calculation and accuracy of the Service Credits, if any, applicable to each relevant Service Period.
2.2 Service Credits are a reduction of the amounts payable in respect of the Services and do not include VAT. Synergy Learning shall set-off the aggregate value of any Service Credits at the end of any contract year against the invoice for the following contract year. If the Agreement is terminated and there are therefore no future invoices against which to apply a Service Credit, Synergy Learning shall pay to the Customer an amount representing the value of the Service Credit, in Pounds sterling, within 7 working days following the date of termination.
2.3. Notwithstanding anything to the contrary herein, the total amount credited to Customer shall not exceed the total hosting fee paid by Customer.
3. Service Levels
3.1 For the purposes of the table below:
3.1.1 Critical Priority shall be defined as a problem affecting all users and when the application is entirely unavailable. (eg. the server is unavailable)
3.1.2 High Priority shall be defined as a problem affecting at least 10% of users and impacting on their ability to use the courses as intended (e.g. the server is down; the course or parts of the course will not load; severe coding errors);
3.1.3 Medium Priority shall be defined as a problem affecting at least 10% of users but not preventing them from studying or using the courses substantially as intended (e.g. broken hyperlinks; dead ‘hotspots’; certificates not displaying correctly; less severe coding errors).
3.1.4 Low Priority shall be defined as any other problem.
3.1.5 Average Page Load Times shall be defined as the time it takes to successfully load a nominated user’s designated Course page of the Application service measured at Synergy Learning’s data centre over a rolling 24-hour period at a sampling frequency of at least every minute.
3.1.6 Service Uptime shall be defined as the core application being available to users via the internet at several agreed locations outside of the Synergy Learning’s data centres. This is monitored 24×7 with a sampling frequency of every 5 minutes
| Service Level Title | Service Level | Service Target | Service Credit Payable or Mitigation method |
| Service Uptime | Green | Greater than 99.9% monthly Network Uptime Guarantee | None |
| Amber | 96% to 99.9% monthly network uptime | 25% of the following month’s service fee, measured on 24 hours a day in a calendar month | |
| Red | Below 96% | 50% of the following month’s service fee, measured on 24 hours a day in a calendar month | |
| Below 95% | 100% of the following month’s service fee, measured on 24 hours a day in a calendar month | ||
| Average Page Load Times | Green | <2 seconds | None |
| Amber | <4 seconds | 25% of the following month’s service fee, measured on 24 hours a day in a calendar month | |
| Red | <7 seconds | 50% of the following month’s service fee, measured on 24 hours a day in a calendar month | |
| >7 seconds | 100% of the following month’s service fee, measured on 24 hours a day in a calendar month | ||
| Issue resolution: Issues Classified as High Priority | Green | Within 0 – 4 hours | None |
| Amber | Within 4 – 6 hours | 25% of the following month’s service fee, measured on 24 hours a day in a calendar month | |
| Red | Within 6 – 8 hours | 50% of the following month’s service fee, measured on 24 hours a day in a calendar month | |
| 8 hours or longer | 100% of the following month’s service fee, measured on 24 hours a day in a calendar month | ||
| Issue resolution: Issues Classified as Medium Priority | Green | Within 48 hours | None |
| Amber | Within 48 – 72 hours | 25% of the following month’s service fee, measured on 24 hours a day in a calendar month | |
| Red | Within 72 – 96 hours | 50% of the following month’s service fee, measured on 24 hours a day in a calendar month | |
| 96 hours or longer | 100% of the following month’s service fee, measured on 24 hours a day in a calendar month | ||
| Issue resolution: Issues Classified as Low Priority | Green | Within 5 Working Days | None |
| Amber | Within 5 – 10 Working Days | 25% of the following month’s service fee, measured on 24 hours a day in a calendar month | |
| Red | Within 10 – 15 Working Days | 50% of the following month’s service fee, measured on 24 hours a day in a calendar month | |
| 15 Working Days or longer | 100% of the following month’s service fee, measured on 24 hours a day in a calendar month |
3.2 If more than one Service Level is not achieved during the same calendar month period, the Service Credit payable shall be that which is greatest.
3.3 The parties hereby acknowledge and confirm that the Service Credits set out above represent compensation as a genuine pre-estimate of the Customer’s loss.
4. Availability
4.1 Synergy Learning shall measure the Availability of the Services on 24 hour/7 days a week basis and shall monitor it in accordance with the Performance Monitoring System (as defined in clause 5.1 below) and in accordance with the standard reports.
4.2 The Service shall be Available (and “Available” shall be interpreted accordingly) when any person authorised by the Customer to use the Services are able to access and utilise all the Services 24 hours a day, seven days a week, 365 days a year.
4.3 The Customer reserves the right to independently verify the Availability of the Services.
4.4 Availability shall be measured as a percentage of the total time in a Service Period, in accordance with the following formula:
Service Availability % =
Where:
| MP = Total number of minutes, excluding Permitted Maintenance, within the relevant Service Period; and |
| SD = Total number of minutes of Service Downtime, excluding Permitted Maintenance, in the relevant Service Period. |
4.5 Availability shall exclude any event which is due to a Force Majeure Event or Customer Cause, provided that the Supplier exercises its best endeavours to mitigate any loss, damage or degradation of the Services because of such event.
5. Performance Monitoring and Performance Review
5.1 This paragraph provides the methodology for monitoring the Services to ensure that Synergy Learning is complying with the Service Levels and for identifying any Service Failures in the performance of Synergy Learning and/or delivery of the Services
5.2 The Customer shall report all Service Failures to Synergy Learning’s help desk. The Supplier shall ensure that all Service Failures are logged immediately on receipt of notification, on the Service Failure Log. The Customer shall have verification rights in relation to the Service Failure Log.
5.3 The Customer shall determine the level which relates to each Service Failure as determined in accordance with this schedule. Synergy Learning shall be entitled to challenge the level which is allocated by the Customer. Any such challenge shall not affect the obligations of Synergy Learning to respond to the Service Failure in accordance with the level initially allocated by the Customer.
6. Acceptable Use Policy
6.1 The customer agrees not to deliberately or knowingly engage in the unacceptable use of any Services, which includes, without limitation, use of the Services to:
6.1.1 disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email;
6.1.2 disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious;
6.1.3 disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person;
6.1.4 create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;
6.1.5 interfere, disrupt or attempt to gain unauthorised access to any computer system, server, network or account for which the Customer does not have authorisation to access or at a level exceeding the Customers authorisation;
6.1.6 disseminate or transmit any virus, Trojan horse or other malicious, harmful or disabling data, work, code or program; or
6.1.7 engage in any other activity which would reasonably be seen to be in conflict with the spirit or intent of this Agreement.
7. Daily Backups
7.1 Synergy Learning will create daily backups of all critical data files (as agreed between the parties). It is Synergy Learning’s responsibility to ensure there is a backup of the customer’s data.
7.2 Synergy Learning cannot be held responsible for the integrity of the Customer’s user generated data.
7.3 The Customer will not hold Synergy Learning liable for any claim resulting from a failed backup and/or restore procedure, save where such a claim arises out of the negligence of Synergy Learning.
7.4 Should any of the Customer’s sites become unavailable; Synergy Learning will fully restore access to the site to its state at the point at which it became unavailable, within a maximum of 2 hours, upon specific request from the Customer.
Schedule – Support Services
This Service Level Schedule is part of your Terms and Conditions of Service with Synergy Learning.
1. Services
1.1 Services Provided: During each Subscription Term, Synergy Learning will provide the following support for a single Production Instance of the Application, subject to the terms and conditions of this Agreement:
1.1.1 clarifying and assisting in the operation of the features and functions of the Application;
1.1.2 assisting in identifying and verifying the causes of suspected Errors;
1.1.3 providing Error Corrections;
1.2 Supported Instances: Except with the prior written consent of Synergy Learning,the subscription Services for the Product (and any other Services under this Agreement) are provided to the Customer in respect of a single Production and UAT Instances of the Application. Where the Customer wishes to deploy multiple Production Instances of the Application, this will be detailed in Schedule 1 of this agreement.
1.3 Customer as end-user acknowledgment: The Customer acknowledges and agrees that Synergy Learning are providing the Services (and any other services under this Agreement) to the Customer as an end-user and the Customer will not provide any third party with those Services, or the benefit (whether direct or indirect) of those Services, and whether by way of resupply, resale, on-premise installation, multi-tenancy, or otherwise, and doing so will constitute a material breach of this Agreement and grounds for Synergy Learning to terminate this Agreement and the provision of support services. For the avoidance of doubt, use of the Product by clients of the Customer is expressly permitted, and such use is accepted by Synergy Learning and shall not constitute a material breach.
1.4 Self Help Support Resources: The Customer agrees that the users, (including clients of the Customer) of the Application under your control must first attempt to answer any questions or resolve any issues in relation to the operation of the Application by using the following self-help resources, where available:
1.4.1 the Help function of the Application;
1.4.2 the knowledge-base website; and
1.4.3 community forums and resources.
1.5 Contacting Customer Support: If the Customer is unable to resolve an issue or question in relation to the Application using the self-help resources, the Designated Contacts may contact one of Synergy Learning’s support representatives for Second-level Support to receive support in accordance with your Support subscription as detailed in Schedule 1.
1.5.1 Synergy Learning will provide support only in the English language and only to the Designated Contacts;
1.5.2 any communication between the Designated Contacts and a support representative must be in English; and
1.5.3 Synergy Learning will not provide support to end users of the Application or to any person other than the Designated Contacts.
1.6 Notification of Error: When the Customer reports an Error they must include a detailed description of the Error — in order for Synergy Learning to be able to replicate the Error — along with the severity level determined in accordance with clause 1.9. When Synergy Learning receives notice of an Error, they will assign a problem tracking number to be included in all correspondence and they will provide a response in accordance with the severity levels and response times identified in clause 1.9.
1.7 Error Correction: Synergy Learning will use commercially reasonable efforts to provide an Error Correction. The Error Correction may:
1.7.1 require that the Customer install the latest Maintenance Release for the supported version of the Application on which the Customer reported the Error;
1.7.2 require multiple contacts and offline research;
1.7.3 when completed, be provided in the form of a patch consisting of sufficient programming and operating instructions to implement the Error Correction, which will be provided to the Customer via email, download or other electronic means.
1.8 Response Times: Synergy Learning’s response to a support request depends on the severity of the issue and the level of support purchased by the Customer, as set out in Schedule 1. For each level of severity, our support representatives will use commercially reasonable efforts to respond, during the support hours, within the times set out in Table 1 below. The response time is calculated from the time We receive notice of the support request from the Customer until We contact the Designated Contact reporting the issue to begin resolution efforts, not the time to deliver an issue correction.
Table 1
| Severity | Description | Response Time |
| Severity 1: Critical | Critical production issue that severely impacts your use of the service. The situation halts your business operations and no procedural workaround exists. – Service is down or unavailable. – Data corrupted or lost and must restore from backup. – A critical documented feature / function is not available. Severity 1 issues require the customer to have dedicated resources available to work on the issue on an ongoing basis with Us. | Within 1 Hour |
| Severity 2: Major | Major functionality is impacted, or significant performance degradation is experienced. The situation is causing a high impact to portions of your business operations and no reasonable workaround exists. • Service is operational but highly degraded performance to the point of major impact on usage. • Important features of the Application are unavailable with no acceptable workaround; however, operations can continue in a restricted fashion. | Within 4 Hours |
| Severity 3: Minor | There is a partial, non-critical loss of use of the Application with a medium-to-low impact on your business, but not scalable. | Within 12 Hours |
| Severity: Cosmetic | There is a partial, non-critical loss of use of the Application with a medium-to-low impact on your business, but your business continues to function. Short-term workaround is available, but not scalable. | Within 24 Hours |
2. Exclusions from Support
2.1 Synergy Learning are not responsible or liable for providing support in connection with causes external to the Application, including:
2.1.1 Your failure to incorporate Maintenance Releases or New Version Releases;
2.1.2 installation of the Application or any New Version Releases by any party other than the Synergy Learning;
2.1.3 Your use of the Application with any software or hardware other than within the Supported Environment;
2.1.4 modifications, alterations, or additions to the Application by parties other than Synergy Learning (including modifications, alterations, or additions to the Application made by the Customer);
2.1.5 damage from any source other than us including water, humidity, fire, power surges, computer viruses, and accidents; and
2.1.6 Errors arising out of or related to a database management server or a web server or any other third-party component that is used in conjunction with the Application (unless Synergy Learning are hosting the Application at our data centre).
2.2 If Synergy Learning agrees to undertake any maintenance or services required to fix an issue which can reasonably be shown to have been caused by one or more of the causes specified in clause 2.1 these will be billed to the Customer on a time-and-materials basis in accordance with our then current rates as specified in the agreed quotation, provided that no such expenditure is incurred without the Customer’s prior consent in writing. Synergy Learning are under no obligation to agree to undertake such services at any time.
2.3 Support provided under this Agreement further excludes:
2.3.1 Application installation, configuration or services provided on-site at the Customer’s location;
2.3.2 problems or Errors in modifications to the Application provided by third parties.
3. Acceptable use policy
3.1 The Customer agrees not to deliberately or knowingly engage in the unacceptable use of any Services, which includes, without limitation, use of the Services to:
3.1.1 disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email;
3.1.2 disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious;
3.1.3 disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person;
3.1.4 create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;
3.1.5 interfere, disrupt or attempt to gain unauthorised access to any computer system, server, network or account for which the Customer does not have authorisation to access or at a level exceeding the Customers authorisation;
3.1.6 disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; or
3.1.7 engage in any other activity which would reasonably be seen to be in conflict with the spirit or intent of this Agreement.
Schedule – Design and Development Services
1. Service levels
1.1 In pursuance of the objectives set out in the Statement of Work within Schedule 1 Synergy Learning undertakes:
1.1.1 to advise the Client on all matters relating to the Project;
1.1.2 to develop and deliver the Development Work;
in each case on or before the dates set out in the Development Programme and on the terms and conditions set out in this agreement.
2. Personnel
Synergy Learning shall ensure that all of its personnel engaged in the Project:
2.1 have the necessary skills, expertise and diligence to undertake such work and will conform to the professional standards generally observed in the software development industry for similar services; and
2.2 comply with the provisions in this Agreement relating to Confidential Information and Non-Solicitation.
3. Project management
3.1 Synergy Learning shall appoint an Account Manager and make them available to the Project upon the terms of this clause. Synergy Learning shall ensure that the Account Manager acts promptly, reasonably and fairly at all times during the period of this agreement. In particular, and without prejudice to the generality of the foregoing, Synergy Learning shall ensure that the Account Manager:
3.1.1 makes available as many man days of effort as are from time to time required by the needs of the Development Programme;
3.1.2 gives equal priority to the Project over any and all the other business activities being undertaken by the Account Manager; and
3.1.3 keeps detailed records of all acts and things done by themselves and the Project Team in relation to the Project and at the Customer’s request either makes the records available for inspection on reasonable notice by the Customer or on request provides the Customer with copies of them. The Account Manager shall keep all the records confidential to Synergy Learning and the Customer.
3.2 The Customer shall appoint the Project Co-ordinator and make them available to co-ordinate with the Account Manager. The parties shall ensure that the Account Manager and the Project Co-ordinator:
3.2.1 organise meetings at not greater than weekly intervals at which they shall review the progress of the Project and;
3.2.2 provide all information and documentation required by Synergy Learning for proper performance of the Project and the Services.
3.3 If the Account Manager or the Project Coordinator is prevented by illness or injury from performing their duties under this agreement Synergy Learning or the Customer (as the case may be) shall report that fact and its expected duration to the other party. If the Account Manager’s absence through illness or injury continues for more than 3 consecutive business days Synergy Learning shall make available an alternative suitably qualified and experienced Account Manager acceptable to the Customer. If the Project Co-ordinator’s absence through illness or injury continues for more than 3 consecutive working days, the Customer shall make available an alternative suitably qualified and experienced Project Coordinator.
4. Principle duties of the Customer
The Customer shall;
4.1 deliver all content to Synergy Learning in the agreed format, use reasonable efforts to ensure that it is correct and update it when required to do so pursuant to this agreement.
4.2 ensure that its employees and other independent contractors co-operate reasonably with Synergy Learning and its employees in carrying out the Project;
5. Change requests
5.1 If either Party identifies a requirement for a change, a Change Request will be sent to the other Party detailing the change requirements. If sent by Synergy Learning, the Change Request shall state the effect such a change shall have on the Project, the implementation plan and the Price. If sent by the Customer, the receipt of the Change Request by Synergy Learning will constitute a request to Synergy Learning to state in writing the effect such a change shall have, the implementation plan and the Price. Synergy Learning shall use all reasonable endeavours to supply the necessary details within five (5) Business Days from receipt of the Change Request or such other period as may be agreed.
5.2 Where a change to the Price is required, the rates used as the basis for the additional cost for the Change Request shall be the Rates as detailed in the agreed quotation (Fees). The Parties will then decide whether or not to implement the change. If the change is implemented, the amended Project, implementation plan or Price shall then become the New Project, implementation plan and Price for the purpose of this Agreement.
5.3 Synergy Learning shall not implement any changes unless instructed to do so by the Customer.
6. Testing and acceptance
6.1 The Acceptance Tests shall be agreed by the Parties in accordance with the implementation plan.
6.2 Synergy Learning shall use its reasonable endeavours to ensure that the Development work is ready for acceptance testing by the Planned Acceptance Date. In any event, Synergy Learning shall give the Customer five (5) Business Days’ prior notice in writing of the date when it will be ready to commence the Acceptance Tests. Unless otherwise agreed, the Acceptance Tests shall take place on the sixth Business Day after such notice has been given.
6.3 The Customer shall accept the Development Work immediately after it has passed the Acceptance Tests.
6.4 If the Development Work fails to pass the Acceptance Tests, repeat tests shall be carried out until the earlier of the following occurs:
6.4.1 the Development Work passes the Acceptance Tests;
6.4.2 the Acceptance Tests have been repeated 3 times; or
6.4.3 a 30-day period from the Planned Acceptance Date has expired.
6.5 If at any time the Customer shall commence live running of the whole or any part of the Development Work (other than in the Acceptance Tests) then the Customer shall be deemed to have accepted the work.
6.6 If the Development Work has not been accepted by the Customer on or after the occurrence of the events specified in sub-Clauses 6.4.2 or 6.4.3, then the Customer shall be entitled, without prejudice to any other rights or remedies it may have under this Agreement or at law, to terminate this Agreement immediately by written notice upon Synergy Learning.
Schedule – Synergy Learning: Data Processing
This Service Level Agreement is part of your Terms and Conditions of Service with Synergy Learning.
Data Processing Details
Details of the Personal Information being Processed by Synergy Learning on behalf of the Customer are as follows:
1. Subject matter of processing:
Synergy Learning processes personal information of employees of the Customer and third parties in the delivery of the learning portal and related support services to the Customer.
2. Duration of the processing:
The duration of the processing shall be the term of the Agreement, or as otherwise agreed between the Parties.
3. Nature and purpose of the processing:
The processing is on an automated basis and is for the purpose of delivering the learning portal and related support services, to help the Company meet its obligations in respect of staff training and to ensure that accurate training records are kept.
4. Type of Personal Data:
The personal data processed may include information typically associated with learning platform user accounts, such as names, email addresses, job titles, departments, learning progress and other profile fields as defined and configured by the Customer within the platform.
5. Categories of Data Subjects:
Data subjects may include employees, contractors, learners, or other users granted access to the platform by the Customer, in accordance with their internal policies and user management processes.