Online Marketplace and LMS Licence Terms and Conditions
These are the terms and conditions (“Terms”) under which ART agree with licensees that wish to access the Applications described in these Terms and hosted by the ART (“Licensees”) under a non-exclusive licence, from a remote location, in return for the payment of fees and subject to these Terms.
Please read these Terms carefully and ensure that you, as a Licensee, understand them. You are required to read and accept these Terms when signing up for an account with ART or by requesting a Service and by the time you accept these Terms these will constitute a legally binding contract between you and ART.
1. Definitions and Interpretation
In these Terms, unless the context otherwise requires, the following expressions have the following meanings:
|Applications||means the LMS platform and/or the Website provided by ART which shall be available to the Licensee subject to these Terms;|
|ART||Art Providers Ltd (trading as ART) a company registered in England and Wales under number 11321679 whose registered office is at ART Providers Ltd, 23 Minster Road, Moston, Manchester, M9 4QE|
|ART Infrastructure||means the ART’s computer hardware, firmware, software and communications infrastructure which is used to facilitate access to the Applications by the Licensee;|
|Business Day||means any day other than Saturday or Sunday that is not a bank or public holiday;|
|Business Hour||means any time between 09:00 and 17:00 hours on a Business Day, during which the ART is open for business;|
|Commencement Date||means the date when the Licensee accepts these Terms;|
|Confidential Information||means all business, technical, financial or other information created or exchanged between the parties throughout the Term of the contract formed under these Terms;|
|Licensee Computer Systems||means the Licensee’s computer hardware, firmware, software and communications infrastructure through and on which the Applications are to be used;|
|Licensee Data||means any data belonging to the Licensee or to third parties and used by the Licensee under licence which is created using the Applications or otherwise stored in the ART Infrastructure;|
|Listing||means an offer for sale posted on ART’s Marketplace for Licensee’s training and educational courses available to be purchased by customers;|
|LMS||means the proprietary software of ART known as the Learning Management System;|
|Fees||means the sums payable by the Licensee in return for access to the Applications, the ART Infrastructure, support services and Listing services provided by ART in accordance with Clauses 5 and 11 and the PRICING AND SCHEDULE and incorporated by reference to these Terms;|
|Intellectual Property Rights||means all vested contingent and future intellectual property rights including but not limited to copyright, trade marks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up and database rights;|
|Non-Licensee User||means a non-employee of the Licensee who may not use the Service in the absence of written consent from ART as per Clause 10.4;|
|Marketplace||means the functionality of the Website that provides a platform for training providers to market and sell training and educational courses, training materials, events, and/or webinars to customers.|
|Service||means, collectively, the Applications, Marketplace, ART Infrastructure and/or support services provided by the ART to the Licensee. The Licensee will choose what is included in the Service via the PRICING AND SCHEDULE.|
|Website||means ART’s website at www.art-providers.com.|
1.1. Unless the context otherwise requires, each reference in these Terms to:
1.1.1. “writing”, and any cognate expression, includes a reference to any communication effected by electronic transmission or similar means;
1.1.2. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.1.3. “these Terms” is a reference to these Terms and each of the Schedules as amended or supplemented at the relevant time;
1.1.4. a Schedule is a schedule to these Terms; and
1.1.5. a Clause or paragraph is a reference to a Clause of these Terms (other than the Schedules) or a paragraph of the relevant Schedule.
1.2. The headings used in these Terms are for convenience only and shall have no effect upon the interpretation of these Terms.
1.3. Words imparting the singular number shall include the plural and vice versa.
1.4. References to any gender shall include the other gender.
2.1. ART shall, with effect from the Commencement Date, provide the Service to the Licensee on a non-exclusive basis for the duration of the Term and in accordance with these Terms.
2.2. To the extent applicable to the Service chosen by the Licensee, ART shall provide access to the Applications through the ART Infrastructure and provide access to the Marketplace and shall use its reasonable endeavours to ensure that such access is available, without interruption. Notwithstanding the foregoing, Licensee’s access to the Applications and use of the Marketplace is provided “as is” and on an “as available” basis. ART may alter, suspend or discontinue the Applications or Marketplace (or any part of them) at any time and without notice. ART will not be liable to the Licensee in any way if the Applications or the Marketplace (or any part of them) are unavailable at any time and for any period, not to exceed 5 Business Days.
2.4. To the extent legally permitted, ART expressly disclaim all warranties, representations and conditions, express or implied, including those of quality, merchantability, merchantable quality, durability, fitness for a particular purpose and those arising by statute.
The Service will be provided by the ART for the term of contract made under these Terms, which shall commence on the Commencement Date and will continue until the first anniversary of the Commencement Date, whereupon the referred contract shall automatically renew on a month to month basis unless otherwise terminated by 30 days written notice by either party, or until terminated in accordance with Clause 19 of these Terms (“Term“).
4. Authority to Market and Sell
4.1. Subject to clause 4.2, Licensee appoints ART as its agent to publish Licensee’s Listing on the Marketplace and preferred third-party platforms, and to promote and sell Licensee’s content to customers on Licensee’s behalf subject to these Terms.
4.2. Licensee hereby acknowledges and agrees that ART is only acting as a booking and payment agent and software provider, and responsibility and liability for the content of Licensee’s Listing rests with Licensee. Licensee will contract directly with the customer on Licensee’s terms and conditions, which must be provided in the Listing, making it clear to the customer that those terms apply to the Listing. Licensee’s terms and conditions must be available to customers before they purchase a Listing. Licensee shall ensure that its terms and conditions comply with all applicable laws and regulations.
4.3. Licensee understands that ART may be involved in the development, sale and promotion of training courses and materials which compete with, or are similar to, Licensee’s Listings. These Terms shall in no way prevent, hinder or inhibit ART from selling, distributing, marketing and/or promoting any products or services under ART’s own sales, distribution, promotion and/or marketing channels.
5.1. Licensee is required to set up an account via the Website in order to upload Listings. Licensee may either upload a Listing for publication or request ART to publish the Listing on Licensee’s behalf. If Licensee requests ART to publish a Listing, this may incur a fee. ART will advise Licensee of any applicable fees before publishing the Listing. In such event, Licensee must provide ART with all relevant details and associated information and promotional content, and Licensee’s terms and conditions that will apply between Licensee and the customer. Licensee’s Listing will appear in the relevant industry category ART determines is most applicable.
5.2. Unless agreed otherwise by the parties, ART does not guarantee that any Listing will appear or feature in any particular position or ranking in search results.
5.3. Licensee agrees that it is solely responsible for the Listing and its content including in the event that ART published the Listing. ART accepts no responsibility for Listings and does not verify the content or information contained in Listings (although ART reserves the right to monitor and edit Listings to comply with these Terms at ART’s sole discretion from time to time). Specifically, Licensee agrees, represents, and warrants that Licensee has the right to submit the Listing, that all the information in the Listing is accurate and truthful, that all such information will be kept accurate and up-to-date.
5.4. Licensee shall ensure that all Listings state any applicable dates of availability (and if applicable, an end date) and will not submit or otherwise do anything that:
5.4.1. is obscene, deliberately offensive, hateful, or otherwise inflammatory;
5.4.2. promotes violence;
5.4.3. promotes or assists in any form of unlawful activity;
5.4.4. discriminates against, or is in any way defamatory of, any person, group or class of persons, race, gender, religion, nationality, disability, sexual orientation, or age;
5.4.5. is intended or otherwise likely to threaten, harass, annoy, alarm, inconvenience, upset, or embarrass another person;
5.4.6. is calculated or is likely to deceive or misrepresent (including any unsubstantiated or unsupportable claims or comparisons concerning Licensee’s business, Listings or any other business or person, or any qualifications that may be gained);
5.4.7. is intended or otherwise likely to infringe (or threaten to infringe) another person’s right to privacy;
5.4.8. misleadingly impersonates any person or otherwise misrepresents Licensee’s identity or affiliation in a way that is calculated to deceive;
5.4.9. implies any form of affiliation with ART where none exists;
5.4.10. infringes, or assists in the infringement of, the intellectual property rights (including, but not limited to, copyrights, patents, trade marks, and database rights) of any other party; or
5.4.11. is in breach of any legal duty owed to a third party including, but not limited to, contractual duties and duties of confidence.
5.5. Licensee’s Listing must:
5.5.1. contain images of the required sizes and quality as may be specified to Licensee by ART from time to time;
5.5.2. contain video content that is within any upload limit ART may specify for time to time and be of good quality; and
5.5.3. any links included must not lead customers to any unlawful or harmful websites or applications.
5.6. ART reserve the right to disable the Listing if it breaches the provisions of this clause 5.3 to 5.5.
6. Applications Maintenance
6.1. ART shall be responsible for the maintenance and any upgrades to the ART Infrastructure which may from time to time be reasonably required.
6.2. Subject to the provisions of Clause 12, the Licensee shall be responsible for all maintenance and upgrades to the Licensee Computer Systems which may from time to time be required.
6.3. Whenever possible, the ART shall use its best and reasonable endeavours to undertake maintenance work outside of Business Hours.
6.4. Unless maintenance is corrective in nature, ART shall provide at least 2 Business Days’ notice of any maintenance which may affect the Licensee’s use of the Service. The ART shall use reasonable endeavours to provide as much notice as possible in the case of corrective maintenance, however advance notice may not always be possible.
7. Software Licences
7.1. The Licensee shall use all Applications under a non-exclusive, non-transferrable licence, as set out in these Terms.
7.2. All Applications provided by ART are the property of ART unless otherwise stated and shall be covered by the terms of the licence included in these Terms. Where Applications are the property of a third party, the relevant licences for those Applications shall be annexed to these Terms in Schedule 1.
7.3. Where Applications are the property of a third party, ART warrants that they have all requisite authority to sub-licence such applications to the Licensee for the purposes of these Terms and for use under them.
8.1. Licensee’s access to the Applications and the ART Infrastructure shall be controlled by means of a username and password.
8.2. Use by Non-Licensee Users is not permitted under these Terms in the absence of express written consent from ART, such consent not to be unreasonably withheld. ART may require such details as the reason that access to the Applications and ART Infrastructure is required by the Non-Licensee User, details of the Non-Licensee User and other information which may be specified from time to time.
8.3. The Licensee shall use the Service exclusively for the purposes of carrying on its business of a training and education provider.
8.4. ART may monitor the Licensee’s use of the Applications and ART Infrastructure from time to time to ensure compliance with the terms and conditions of these Terms. In the event that the Licensee’s use of the Service exceeds levels deemed reasonable by ART, ART reserves the right to increase Fees, in accordance with the PRICING AND SCHEDULE and incorporated by reference to these Terms, by providing 14 days’ written notice to the Licensee of such an increase.
8.5. Licensee is exclusively responsible for its use of the Service and must ensure that all use is in accordance with these Terms. The Licensee shall notify ART immediately of any breaches of these Terms by any Non-Licensee Users.
8.6. Access to the Applications is only permitted through www.art-providers.com, via the ART Infrastructure. Under no circumstances may the Licensee download, store, reproduce or redistribute the Applications or any other part of the ART Infrastructure, without first obtaining the express written permission of ART.
8.7. Licensee’s use of the Applications and ART Infrastructure may, from time to time, be governed by statutory or regulatory rules and requirements external to these Terms. It shall be the Licensee’s exclusive responsibility to ensure that their use of the Service is in compliance with any such laws.
8.8. Licensee’s use of the Service shall be subject to the following limitations, any of which may be waived by ART giving their express written consent:
8.8.1. Licensee may not use or redistribute the Applications or the ART Infrastructure;
8.8.2. Licensee may not redistribute or reproduce the Applications or the ART Infrastructure through any network; and
8.8.3. Licensee may not allow any unauthorised third party to access the Applications or the ART Infrastructure.
8.9. Neither the Licensee, nor anyone on their behalf may, in the absence of written consent from ART:
8.9.1. Make changes of any kind to the Applications or the ART Infrastructure; or
8.9.2. Attempt to correct any fault or perceived fault in the Applications or the ART Infrastructure.
9. Licensee Computer Systems
9.1. Prior to commencement of the Service the Licensee shall provide the specifications of Licensee Computer Systems to ensure compatibility with the Applications and ART Infrastructure. Where appropriate, ART may offer recommendations for upgrades and other alterations.
9.2. Where, in the opinion of ART, Licensee Computer Systems are likely to cause disruption to the ART Infrastructure, ART may request that the Licensee disconnects from the ART Infrastructure until advised that reconnection is possible. ART may require changes such as upgrades or equipment replacement to be made to the Licensee Computer Systems prior to reconnection.
9.3. In the event of any unauthorised access by the Licensee of Applications or the ART Infrastructure, in breach of Clause 10.3 or otherwise ART shall be entitled to terminate access indefinitely or temporarily as it deems appropriate and to terminate the contract made under these Terms in accordance with Clause 19 below.
9.4. The Licensee shall ensure that no Licensee Computer Systems are connected to a third party system or other service, communications system or network in such a way that the Service may be accessed by unauthorised third parties.
10.1. ART shall provide telephone, email and live online support services during Business Hours, such business hours to exclude public holidays. The support provided by ART shall relate only to the Applications and ART Infrastructure. Any problems which are related to Licensee Computer Systems must be resolved by the Licensee’s own support staff.
10.2. In addition to the standard support provided for in Clause 10.1, ART may also provide telephone, email and live online support services outside of Business Hours. Such additional support services shall be available at additional cost to the Licensee at the rates set out in PRICING AND SCHEDULE and incorporated by reference to these Terms.
10.3. When seeking support, the Licensee shall use its best and reasonable endeavours to provide the fullest information possible to aid ART in diagnosing any faults in either the Applications or the ART Infrastructure.
10.4. ART shall aim to resolve all support problems within 48 Business Hours or as soon as possible thereafter where resolution in that time is not possible.
10.5. Whenever possible, ART shall provide a workaround solution to the Licensee to enable the Licensee’s continued use of the Service or to enable use that is as close to normal as is possible under the prevailing circumstances.
11. Fees and Payment
11.1. The Fees due for the Service are specified in the PRICING AND SCHEDULE and incorporated by reference to these Terms.
11.2. The Licensee shall pay to ART all Fees due within 30 days of receipt of an invoice from ART for the same.
11.3. In the event that the Licensee does not pay all Fees due within the time period specified in Clause 11.2 above, ART may suspend the Licensee’s use of the Service by whatever means it deems appropriate.
11.4. In the event that the Licensee fails to pay under clause 11.3 then, without prejudice to Clause 11.3, that amount shall bear interest from the due date until payment is made in full, both before and after any judgment, at 1.5% per annum over the Bank of England base rate obtaining at the time.
11.5. ART reserves the right to vary the Fees from time to time as it may deem appropriate. The Licensee shall receive 30 days’ written notice of any such variation. Such variations shall take effect upon expiry of such notice.
12. Intellectual Property
12.1. Subject to Clause 12.2 all Intellectual Property Rights subsisting in the Marketplace, Applications and the ART Infrastructure, including any supporting software and documentation are the property of ART. For the purposes of this Clause 12, ‘Applications’ and ‘ART Infrastructure’ along with supporting software and documentation are taken to include the manner in which all such material is compiled and presented.
12.2. Where expressly indicated, the Intellectual Property Rights subsisting in certain Applications including any supporting software and documentation may be the property of named third parties.
12.3. The Licensee shall not either during the term or after the expiry of contract made under these Terms permit or cause to occur any infringement of any Intellectual Property Rights covered by this Clause 12. Use by the Licensee and its employees of the Service shall be only within these Terms.
12.4. The Licensee shall not, in the absence of ART’s written consent, reproduce, adapt, translate, reverse-engineer, or make available to any third party any of the Applications, any part of the ART Infrastructure, or any other material associated with these Terms where such activity goes beyond the scope of actions permitted by these Terms.
12.5. Where the Licensee either suspects or is aware of any breach of Intellectual Property Rights covered by this Clause 12 it shall be under a duty to inform ART of such breach immediately.
13. Licensee Data
13.1. Subject to Clause 13.2 all Intellectual Property Rights subsisting in Licensee Data are and shall remain the property of the Licensee.
13.2. Certain Licensee Data may belong to third parties. In such cases, the Licensee warrants that all such Licensee Data is used with the consent of relevant third parties.
13.3. ART shall have the right but not the obligation to archive and keep copies of Licensee Data. In the event of any loss or damage to Licensee Data, Licensee’s sole and exclusive remedy shall be for ART to use reasonable commercial endeavours to restore the lost or damaged data from any back-up of such data maintained by ART. ART shall not be responsible for any loss, destruction, alteration or disclosure of data caused.
14.1. During the Term of the contract made under these Terms and after its termination or expiration for any reason, ART shall use reasonable endeavours to ensure that all Licensee Data is kept secure and confidential. ART shall not, in the absence of express written consent from the Licensee, disclose Licensee Data to any third party unless such disclosure is required by law in which case the Licensee shall be notified in writing of the disclosure.
14.2. During the Term of the contract made under these Terms and after its termination or expiration for any reason for a period of 2 years, the following obligations shall apply to the Party receiving Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”).
14.2.1. Subject to Clause 14.4, the Receiving Party:
18.104.22.168. may not use any Confidential Information for any purpose other than the performance of their obligations under these Terms;
22.214.171.124. may not disclose any Confidential Information to any third party except with the prior written consent of the Disclosing Party; and
126.96.36.199. shall make every effort to prevent the unauthorised use or disclosure of the Confidential Information.
14.3. The obligations of confidence referred to in this Clause 14 (excluding Clause 14.1) shall not apply to any Confidential Information that:
14.3.1. is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to its receipt by the Receiving Party;
14.3.2. is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
14.3.3. is required to be disclosed by any applicable law or regulation; or
14.3.4. is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the Disclosing Party in respect thereof and who imposes no obligations of confidence upon the Receiving Party.
14.4. Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this Clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this Clause in addition to any damages or other remedies to which they may be entitled.
14.5. The obligations of the Parties under all provisions of this Clause shall survive the expiry or the termination of the contract made under these Terms irrespective of the reason for such expiry or termination.
15.1. ART shall not be liable to the Licensee for any indirect or consequential loss the Licensee may suffer even if such loss is reasonably foreseeable or if ART has been advised of the possibility of the Licensee incurring it.
15.2. ART’s entire liability to the Licensee in respect of any breach of its contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with these Terms shall be limited to £1000.
15.3. Notwithstanding any other provision in these Terms, ART’s liability to the Licensee for death or injury resulting from ART’s own negligence or that of their employees, agents or sub-contractors shall not be limited.
16.1. The Licensee will fully indemnify ART against all costs, expenses, liabilities, losses, damages and judgments that ART may incur or be subject to as a result of any of the following:
16.1.1. The Licensee’s misuse of the Applications, ART Infrastructure or any other element of the Service;
16.1.2. The Licensee’s breach of these Terms; or
16.1.3. The Licensee’s negligence or other act of default.
16.2. ART shall be under no obligation to indemnify the Licensee against any costs, expenses, liabilities, losses, damages and judgments that the Licensee may incur or be subject to arising out of any matter covered by these Terms.
17. Force Majeure
17.1. Neither ART nor the Licensee shall be liable for breaching these Terms where that breach results from Force Majeure.
17.2. Force Majeure refers to any event that is beyond the reasonable control of the parties and includes, but is not limited to: power failure, internet failure, industrial action, civil unrest, theft, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
18.1. ART reserves the right to terminate the contract made under these Terms or to suspend the Service in the following circumstances:
18.1.1. If the Licensee fails to pay Fees due under Clause 11 of these Terms;
18.1.2. If the Licensee is in breach of any of these Terms;
18.1.3. If the Licensee becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
18.1.4. If the Licensee is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
18.1.5. If the Licensee has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
18.2. The Licensee reserves the right to terminate the contract made under these Terms in the following circumstances:
18.2.1. If ART is in breach of any of these Terms;
18.2.2. If ART becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
18.2.3. If ART is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
18.2.4. If ART has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
18.2.5. Within 5 Business Days of the termination of contract made under these Terms in accordance with this Clause 18 or its expiry, the Licensee shall uninstall or otherwise remove any means of access to the Applications and ART Infrastructure. Immediately following taking such action, the Licensee shall inform ART in writing that such action has been taken.
19.1. All notices under these Terms shall be in writing.
19.2. Notices shall be deemed to have been duly given:
19.2.1. when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
19.2.2. when sent, if transmitted by email and a successful transmission report or return receipt is generated; or
19.2.3. on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
19.2.4. on the tenth business day following mailing, if mailed by airmail, postage prepaid.
19.3. In each case notices should be addressed to the most recent address or email address notified to the other Party.
20. Relationship of Parties
Nothing in these Terms shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between ART and the Licensee.
Neither Party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of these Terms without the prior written consent of the other, such consent not to be unreasonably withheld.
The Parties agree that, in the event that one or more of the provisions of these Terms is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms. The remainder of these Terms shall be valid and enforceable.
23. Entire Agreement
These Terms together with the Terms of Purchase embody and set forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of these Terms. Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in these Terms, save for any representation made fraudulently.
ART may revise these Terms from time to time, including in response to changes in relevant laws and other regulatory requirements. If ART changes these Terms as they relate to the Licensee’s rights and obligations, ART will give the Licensee reasonable advance notice of the changes and provide details of how to cancel if the Licensee if not happy with them.
25. No Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms shall constitute a waiver of the right to subsequently enforce that provision or any other provision of these Terms. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The relationship between the Parties under these Terms is and shall remain non-exclusive. Both parties are free to enter into similar relationships with other parties.
27. Law and Jurisdiction
These Terms shall be governed by the laws of England and Wales. Any dispute between the Parties relating to these Terms shall fall within the jurisdiction of the courts of England and Wales.