AO: Assessment Organisation
AAO: means the Apprenticeship Assessment Organisation also known as End Point Assessment Organisation.
Application Date: the date of the submission of the Application Form to the Assessors Guild to become a Member.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Confidential Information: has the meaning provided in clause 10.1.
Documentation: the documents and other materials made available to the Member by the Assessors Guild (including by online means) which sets out a description of the Member Service and instructions for making use of the Member Service.
DPA: means the Data Protection Act 1998, and related subordinate legislation, as may be amended, updated or re-enacted from time to time
Effective Date: the date of the acceptance of the Member’s application to join the Assessors Guild.
Fees: the fees payable by the Member to The Federation under the Agreement, as set out in the Application Form.
GDPR: General Data Protection Regulation (2016/679) of the European Union.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks and Member Service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Member: means an organisation (Corporate Member) or an individual (Fellow/Advanced Practitioner/Member/Associate) who successfully applies and is approved by the Assessors Guild to become a Member and is then entitled to call themselves such and use its Member Services.
Member Data: the data inputted by the Member for the purpose of using the Member Services.
Member Services: the Services available (free and discounted) provided to different Membership categories as set out on www.assessorsguild.co.uk.
Membership Term: means a period of 12 months commencing on the Effective Date.
Normal Business Hours: [9.00 am to 5.00 pm] local UK time, each Business Day.
Payment Date: this will be the same as the approval of the Membership application and, thereafter, on each anniversary of the Payment Date for the duration of the Membership Term.
Website means [www.assessorsguild.co.uk]
3. MEMBER SUBSCRIPTIONS
3.1. The Federation grants to the Member from the Effective Date a non-exclusive, non-transferable right to use all Membership Member Services for the relevant category of Membership as set out at www.assessorsguild.co.uk, solely for the Member’s internal business operations.
3.2. Where the Membership Service involves access via a password protected section of the Assessors Guild Website, or such other website notified to the Member for this purpose, then the Member undertakes that:
3.2.1. it will not allow or suffer access to be used by more than the Member;
3.2.2. each Member shall keep a secure password for their use of the Member Service and Documentation and that each Member shall keep any password provided to them confidential;
3.3. The Member shall not access, store, distribute or transmit any computer viruses, or any material during the course of its use of the Membership Service that:
3.3.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2. facilitates illegal activity; or
3.3.3. in a manner that is otherwise illegal or causes damage or injury to any person or property;
and The Federation reserves the right, without liability or prejudice to its other rights to the Member, to disable the Member’s access to any material that breaches the provisions of this clause.
3.4 The Member shall not (except to the extent expressly permitted under the Agreement), attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
3.4.1. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.4.2. access all or any part of the Member Service and Documentation in order to build a product or Member Service which competes with the Member Service and/or the Documentation; or
3.4.3. use the Member Service and/or Documentation to provide Member Services to third parties; or
3.4.4. subject to clause 5, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Member Services and/or Documentation available to any third party, or
3.4.5. attempt to obtain, or assist third parties in obtaining, access to the Member Service and/or Documentation, other than as provided under this clause 5.
3.5. The Member shall keep all password and log-in details used in the relation to the Member Service secure, and shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Member Service and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify The Federation
3.6. The rights provided under this clause 4 are granted to the Member only, and shall not be considered granted to any subsidiary or holding company of the Member.
4. MEMBERSHIP SERVICES
4.1. The Federation shall, during the Membership Term, provide the Member Service and make available the Membership benefits set out on www.assessorsguild.co.uk to the Member on and subject to the terms of the Agreement.
4.2. The Federation shall use commercially reasonable endeavours to make the Member Services available 24 hours a day, seven days a week, except for:
4.2.1. planned maintenance carried out during agreed maintenance windows; and
4.2.2. unscheduled maintenance performed outside Normal Business Hours, provided that The Federation has used reasonable endeavours to give the Member at least 6 Normal Business Hours’ notice in advance.
4.3 The Federation will provide the Member with The Federation’s standard Member support Member Services during Normal Business Hours in accordance with The Federation’s Support Member Services Policy in effect at the time that the Member Services are provided. The Federation may amend its Support Member Services Policy in its sole and absolute discretion from time to time.
4.4. Set-up and training Member Services can be provided on request under separate agreement.
5. MEMBER DATA AND RESULTS
5.1. The Member shall own all right, title and interest in and to all of the Member Data and all Results. The Member shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Member Data. Subject to clause 3, The Federation do not monitor any Member Data posted or provided by the Member as part of the Member Service.
5.2. The Member shall be solely responsible for archiving and back-up of all Member Data and Results at all times, including during the provision of the Member Service.
5.3. If the Member Data includes any personal data (as that term is defined in the GDPR and the DPA), then the parties acknowledge that for the purposes of the GDPR and the DPA, The Federation is the data processor and the Member is the data controller, and the provisions of clause 4 shall apply.
5.4. The Member warrants that it has procured all necessary consents from individuals to the processing of their personal data. The Federation shall process such personal data only to the extent, and in such a manner, as is necessary for the purposes of the Agreement, and in accordance with the Member’s instructions from time to time, and shall not process the personal data for any other purpose. The Federation shall ensure that appropriate security measures are used to protect against unauthorised use of, or access to, the personal data.
5.5. Notwithstanding Condition 1, The Federation shall have the right to perform statistical analysis of the Member Data and Results for the creation of anonymised statistical data. For the avoidance of doubt, such anonymised data shall belong to The Federation and may be licensed to third parties.
5.6. The Federation shall not be responsible for any loss, damage or disclosure of Member Data caused by any third party or as a result of the Member’s failure to comply with its obligations under the Agreement.
6. MEMBER OBLIGATIONS
6.1. The Member shall provide The Federation with all necessary co-operation in relation to the Agreement and all necessary access to such information as may be required by The Federation in order to provide the Member Service, including but not limited to Member Data, security access information and configuration Member Services.
6.2. The Member shall comply with all applicable laws and regulations with respect to its activities under the Agreement and shall carry out all other Member responsibilities set out in the Agreement in a timely and efficient manner.
6.3. The Member shall ensure that the Members use the Member Service and the Documentation in accordance with the terms of the Agreement and shall be responsible for any Member’s breach of the Agreement.
6.4. The Member shall obtain and shall maintain all necessary licences, consents, and permissions necessary to enable it to receive the Member Service from The Federation
6.5. The Member shall ensure that its network and systems comply with any relevant specifications provided by The Federation from time to time and be solely responsible for procuring and maintaining its network and internet connections.
7. THE FEDERATION OBLIGATIONS
7.1. The Federation undertakes that the Member Service will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2. The undertaking at clause 1 shall not apply to the extent of any non-conformance which is caused by use of the Member Service contrary to The Federation’s instructions, or modification or alteration of the Member Service by any party other than The Federation or The Federation’s duly authorised contractors or agents. If the Member Service does not conform with this undertaking, The Federation will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Member with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Member’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding this, The Federation:
7.2.1. does not warrant that the Member’s use of the Member Service will be uninterrupted or error-free; or that the Member Service, Documentation and/or the information obtained by the Member through use of the Member Service will meet the Member’s requirements; and
7.2.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Member acknowledges that the Member Service and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3. The Agreement shall not prevent The Federation from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or Member Services which are similar to those provided under the Agreement.
7.4. The Federation warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
8. RIGHTS IN THE MEMBERSHIP SERVICES
8.1. All Intellectual Property Rights in the Member Service are owned by or validly licensed to The Federation
8.2. Software and Documentation provided in relation to the Member Service are provided solely in relation to the Member’s use of the Member Services in accordance with the Agreement and are not provided, or to be used, for any other purpose.
9.1. The Member shall pay the Membership Fee to The Federation for the Member Subscription in accordance with this clause 9.
9.2. The Member shall provide to The Federation valid, up-to-date and complete debit or credit card details and any other relevant valid, up-to-date and complete contact and billing details.
9.3. The Member hereby authorises The Federation to bill such debit or credit card on the first day of the Initial Licence Term (Payment Date) and, thereafter, on each anniversary of the Payment Date for the duration of the Membership Term. Time for payment is of the essence.
9.4. If The Federation does not receive payment on the Payment Date (or applicable anniversary of the Payment Date), then without prejudice to any other rights and remedies of The Federation:
9.4.1. The Federation may, without liability to the Member, disable the Member’s password, account and access to all or part of the Membership Member Service; and
9.4.2. interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.5. All amounts and fees stated or referred to in the Agreement shall be payable in pounds sterling, are non-cancellable and non-refundable, and are exclusive of value added tax, which shall be added to The Federation’s invoice(s) at the appropriate rate.
9.6. If the Member disputes any payment, the Member shall notify The Federation in writing within 60 days. The parties shall negotiate in good faith to attempt to resolve the dispute promptly and The Federation shall provide all such evidence as may be reasonably necessary to verify the request for payment.
9.7. The Member Service is priced at different bands depending on the category of membership and, in the event that the Member’s band changes, The Federation shall be entitled to adjust the Fees accordingly.
9.8. The Federation shall also be entitled to increase the Fees upon 30 days’ prior notice to the Member (but not more than once during any 12 month period during the Agreement) or in the event that the Member opts to increase its number of Member Subscriptions.
10.1. Each party (Receiving Party) shall keep in strict confidence any information that is proprietary or confidential and is either clearly labelled as such or which ought reasonably to be treated as confidential, including all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its Member Services which the Receiving Party may obtain (“Confidential Information”).
10.2. The Receiving Party shall restrict disclosure of such Confidential Information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause “Confidentiality” shall survive termination of the Agreement.
10.3. Notwithstanding the terms of clause 1 and 11.2 above, The Federation shall be entitled to reference the Member as being a Member of The Assessors Guild in relation to its marketing activities.
11.1. The Member shall defend, indemnify and hold harmless The Federation against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Member’s use of the Member Service and/or Documentation, provided that:
11.1.1 the Member is given prompt notice of any such claim;
11.1.2 The Federation provides reasonable co-operation to the Member in the defence and settlement of such claim, at the Member’s expense; and
11.1.3. the Member is given sole authority to defend or settle the claim.
11.2 The Federation shall defend the Member, and if applicable, its officers, directors and employees against any claim that the Member Service or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Member for any amounts awarded against the Member in judgment or settlement of such claims, provided that:
11.2.1. The Federation is given prompt notice of any such claim;
11.2.2. the Member provides reasonable co-operation to The Federation in the defence and settlement of such claim, at The Federation’s expense; and
11.2.3. The Federation is given sole authority to defend or settle the claim.
11.3. In the defence or settlement of any claim, The Federation may procure the right for the Member to continue using the Member Service, replace or modify the Member Service so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days’ notice to the Member without any additional liability or obligation to pay liquidated damages or other additional costs to the Member.
11.4. In no event shall The Federation, its employees, agents and sub-contractors be liable to the Member to the extent that the alleged infringement is based on:
11.4.1. a modification of the Member Service or Documentation by anyone other than The Federation; or
11.4.2. the Member’s use of the Member Service or Documentation in a manner contrary to the instructions given to the Member by The Federation; or
11.4.3. the Member’s use of the Member Service or Documentation after notice of the alleged or actual infringement from The Federation or any appropriate authority.
11.5. The foregoing and clause 13 state the Member’s sole and exclusive rights and remedies, and The Federation’s entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. LIMITATION OF LIABILITY
12.1. This clause 13 sets out the entire financial liability of The Federation (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Member in respect of:
12.1.1. any breach of the Agreement however arising;
12.1.2. any use made by the Member of the Member Service; and
12.1.3. any representation, statement or delictual act or omission (including negligence) arising under or in connection with the Agreement.
12.2. Except as expressly and specifically provided in the Agreement:
12.2.1. the Member assumes sole responsibility for its use of all Results, and for conclusions drawn from such use. The Member acknowledges that The Federation has not undertaken any verification of Results and accepts no responsibility for, and makes no warranty or representation in respect of, the Results, their accuracy or completeness. Use of the Member Service does not guarantee the Member any improvement in its business efficiencies;
12.2.2 The Federation shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to The Federation by the Member in connection with the Member Service, or any actions taken by The Federation at the Member’s direction;
12.2.3. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and
12.2.4. the Member Service and Documentation are provided to the Member on an “as is” basis.
12.3. Subject to clause 4, in no event shall The Federation be liable for any loss of business, loss of profit, loss or corruption of data or for any indirect or consequential loss and The Federation’s total aggregate liability arising under the Agreement or otherwise relating to the Member Service shall be limited to the total Fees paid during the 12 month period preceding the date on which the claim arose.
12.4.1. death or personal injury caused by negligence;
12.4.2. fraud or fraudulent misrepresentation; or
12.4.3. any other liability that cannot be excluded or limited by law.
13. TERM AND TERMINATION
13.1. The Agreement shall, unless otherwise terminated under the remaining provisions of this clause 14, commence on the Effective Date and continue for the Initial Licence Term (12 months) and, thereafter, the Agreement shall be automatically renewed for successive Renewal Periods unless:
13.1.1. either party notifies the other party of termination, in writing, at least [30 days] before the end of the Initial Licence Term or a Renewal Period, in which case the Agreement shall terminate upon the expiry of the Initial Licence Term or applicable Renewal Period; or
13.1.2. otherwise terminated in accordance with the provisions of the Agreement.
13.2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other if:
13.2.1. the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
13.2.2. the other party is insolvent within the meaning of section 123 of the Insolvency Act 1986; or
13.2.3. the other party ceases, or threatens to cease, to trade.
13.3. Without limiting its other rights or remedies, The Federation may terminate the Agreement with immediate effect by giving written notice to the Member if:
13.3.1. the Member fails to pay any amount due under the Agreement on the due date for payment; or
13.3.2. the Member is, or is controlled directly or indirectly by, a direct competitor of The Federation
13.4. On termination of the Agreement for any reason:
13.4.1. the Member shall immediately pay The Federation all outstanding payments;
13.4.2. all licences granted under the Agreement shall immediately terminate;
13.4.3. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; and
13.4.4. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14. DISPUTE RESOLUTION
14.1. In the event the parties are unable to resolve a dispute between them arising out of or relating to the Agreement, and except for claims for interdict or other similar relief, the parties will attempt to settle it by mediation in accordance with the Faculty of Advocates Arbitration Service. Unless otherwise agreed between the Parties, the mediator will be nominated by the Faculty of Advocates Arbitration Service. The mediation agreement referred to in the Model Procedure shall be governed by law.
14.2. If the dispute is not settled by mediation within 10 days of commencement of the mediation or within such further period as the parties may agree in writing, the parties shall be free to seek to resolve the dispute by such other means subject always to clause 17.
15.1. The Federation reserves the right to amend the Agreement from time to time and will email any such changes to the Member or make such terms available on the HR Flow Website. The Member’s continued use of the Member Service will be deemed acceptance of any new terms.
15.2. If The Federation choose to waive any particular right it has under the Agreement on any particular occasion this does not prevent it from exercising that right on another occasion.
15.3. If any part of the Agreement is held by a court of law (or similar forum) to be invalid or unenforceable, this shall not affect the validity or enforceability of the rest of the Agreement.
15.4. The Federation shall have no liability to the Member under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control.
15.5. The Member is not entitled to transfer or assign its rights and obligations under the Agreement to anyone else without The Federation’s prior written permission.
15.6. Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
15.7. All notices required or permitted under the Agreement will be in writing which shall include email. Any notice shall be deemed to have been duly received:
15.7.1. if delivered personally, when left at the address;
15.7.2. if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting; or
15.7.3. if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed;
15.7.4. if sent by email or fax, at the time of transmission if no failed delivery message is received by the sender.
All notices shall be addressed to the parties at their respective addresses or email address to the primary corporate addresses set forth in the Agreement, or such other address, fax number of email address as advised subsequently by either party.
15.8. For the purposes of the Contracts (Rights of Third Parties) Act 1999, no person other than a party to the Agreement shall have any rights to enforce any term of the Agreement.
16. LAW AND JURISDICTION
16.2. If there are any disputes arising out of use of the Member Service or relating to the Agreement then these will be governed by the laws of England. If either party requires to raise court proceedings in relation to any such dispute then the courts of England shall have exclusive jurisdiction under the Agreement in relation to those proceedings.