SERVICES | TRAINING TERMS & CONDITIONS
Parties: (1) ABERDEEN DRILLING CONSULTANTS LIMITED, a company incorporated in Scotland with Company Number SC099049 and having a place of business at 56 Queens Road, Aberdeen, AB15 4YE (“ADC”) (2) Any legal person, firm (including an LLP), or corporation who accepts these terms and conditions (”Condition”) of ADC and places an order for the Services by signing the Proposal (“the Customer”)
1. Application of Terms and Conditions
These terms and conditions shall apply to all and any of the Services accessed and/or used by the Customer and/or the Permitted Users. Upon completion of the Proposal and payment of the Subscription Charge (in accordance with Condition 8.2), ADC agrees to provide and the Customer accepts the Services described more fully herein, all subject to the Conditions contained herein.
In these Conditions, where the context so admits, the following words and expressions shall have the following meanings:
“Associated Companies” in relation to either Party, any company which is its holding company or subsidiary of it or its holding company (“subsidiary” and “holding company” have the meanings given to them in s.1159 of the Companies Act 2006);
“Change of Control” in relation to either Party, either:
(i) 50% or more of the total votes attaching to the share capital as issued at that time of that Party or its holding company is acquired by or transferred, whether directly or indirectly, to a person, company or group or
(ii) where that Party becomes a subsidiary of another corporate body (which is not a subsidiary of the current holding company of that Party) (“subsidiary” and “holding company” have the meanings given to them in s.1159 of the Companies Act 2006);
“Confidential Information” in relation to either Party, information (whether in oral, written or electronic form) belonging or relating to that Party, its business, affairs, customers, products or services including, without limitation, information and facilities available through use of the Services including information contained in or derived from the Training Materials or the Modules or marketing thereof and any other information which the recipient knows or is notified or has some reason to believe is confidential to the disclosing Party;
“Effective Date” means the date on which both the Proposal has been signed and the Subscription Charge received (in accordance with Condition 8.2) by ADC from the Customer;
“Modules” IWCF Drilling Well Control Level 2 Introduction and IWCF Drilling Well Control Level 2 Workshops and any additional modules that may be added to the by ADC from time to time, at ADC’s sole discretion;
“Parties” means ADC and the Customer, each a “Party”;
“Permitted Users” means the users listed by the Customer in the Purchase Order and accepted by ADC or notified to ADC and approved by ADC from time to time (which ADC are entitled to refuse permission of any potential user at its absolute discretion); Once a Permitted User has been issued a username and password, which are then utilised to access the Training Materials, the licence is non-transferrable to a new Permitted User.
“Renewal Fee” means the renewal fee indicated on the Proposal which may be updated annually by ADC (at ADC’s sole discretion) in accordance with Condition 8.1, provided however that the aggregate increases in the Renewal Fee for any given 12 month period shall in no event exceed 3% of the Annual fee for that period;
“Services” means the e-learning modular training services provided by ADC consisting of the Training Materials and the Modules to be accessed via the Website;
“Proposal” means the Proposal these Conditions are attached to which the Customer must complete to place any order for the provision of Services, which form shall include full details of the Customer and each of its nominated users, the Subscription Charge, the period for which the Services will be available to use, the number of users permitted to access the Services and any special conditions;
“Subscription Charge” means the charge indicated on the Proposal payable by the Customer to ADC in accordance with Condition 8 in consideration of the provision of the Services;
“Training Materials” means the training materials comprising visual elements, voiceovers, interactive flash, photographs, descriptive text and all other material and information made available to the Customer and the Permitted Users via the Website by the Customer subscribing for the Services;
“Website” means ADC’s website located at http://elearning.adc-engineering.com
In these Conditions:- 1.2.1 Condition headings do not form part of or affect the interpretation.
1.2.2 References to any legislation shall include any statutory or other re-enactment or modification thereof (whether before or after Execution Date).
1.2.3 Where the context requires, words denoting the singular include the plural and vice versa and words denoting any gender include all genders.
1.2.4 References to Conditions are to Conditions in these Conditions so numbered.
1.2.5 References to parties include references to their respective successors in title, permitted assignees and novatees.
2.1 ADC authorises the Customer and the Permitted Users to access the Website and use the Training Materials for the purpose of completing the Modules on the condition that:
(a) the Customer complies with its obligations under these terms and conditions and ensures that the Permitted Users comply with the necessary terms and conditions; and
(b) the Subscription Charge and subsequent Renewal Fees (where applicable) are paid.
2.2 The authority in Condition 2.1 above starts when the Customer accepts these Conditions by completing the Proposal and the Subscription Charge is paid and ends [(a) if the Subscription Charge expires without being renewed;] or (b) if this agreement is terminated under Condition 8.
2.3 Access to the Services expires 1 year after the Subscription Charge is being paid, unless the Renewal Fee is paid in accordance with Condition 8.1.
3. Proposal and Acceptance
3.1 The Customer accepts these Conditions by signing the proposal.
3.2 The Customer shall be responsible to ADC for ensuring the accuracy of the terms of any information given on the proposal submitted by the Customer and the Customer warrants and represents to ADC that all of the information set out in the proposal is true and accurate in all respects.
3.3 The description of and any specification for the Services shall be as set out on the Website.
4. Access to the Website
4.1 On or no more than 5 working days after the Effective Date, ADC will issue the Customer and each of the Permitted Users with a username and password to log on to the Website order to access the Services. A username and password is specific to each individual Permitted User and must not been transferred to or used by any other individual.
5.1 The Customer and/or the Permitted Users may:
5.1.1 search, view and use the Training Materials for the purpose of completing the Modules; and
5.1.2 bookmark or link to any part of the Website.
5.2 ADC may make such amendments to these Conditions, the Website, the Training Materials and/or the Modules as, in its sole discretion, may be necessary or appropriate, and ADC shall notify the Customer in writing of such amendments within 10 working days of the changes.
6. Customer Obligations
6.1 The Customer may use the Training Materials for training the Permitted Users but may not use them for training others.
6.2 The Customer will inform ADC as soon as reasonably possible should a Permitted User leave the organisation responsible for paying the Subscription Charge in which case the said Permitted User shall cease to be a Permitted User and their use of the Website terminated with immediate effect.
6.3 The Customer and/or the Permitted Users may not:
6.3.1 disclose any part of the Services to anyone else;
6.3.2 disclose its/their username and/or password to anyone else or permit anyone to access the Website or Training Materials using its/their username and password;
6.3.3 alter any part of the Services;
6.3.4 assign or otherwise dispose of its rights under this agreement;
6.3.5 contest ADC’s intellectual property rights in the Services.
6.4 The Customer is responsible for configuring its information technology in order to access the Services.
6.5 The Customer is responsible for the Permitted Users completing the Modules to a satisfactory standard. Such standards are set in ADC’s absolute discretion.
6.6 The Customer shall not otherwise than with the prior written consent of ADC use, store, download, sell, redistribute or deal with the Services or such information derived therefrom in any manner, or for anything other than the intended purpose.
6.7 The Customer shall be liable, notwithstanding any other remedies ADC may have against the Customer including termination of this Agreement, to indemnify ADC for any loss ADC suffers and/or to reimburse ADC for the gain the Customer obtains in contravention of Condition 6.6 above.
6.8 Where ADC has given its prior written approval to the reproduction or redistribution of any part of the Services in accordance with Condition 6.6, the Customer shall faithfully reproduce or, if omitted, add the copyright symbol of ADC as follows: "© “Aberdeen Drilling Consultants Limited” ALL RIGHTS RESERVED" to all information obtained from the Training Materials or by use of the Training Materials, on all copies (authorised or otherwise) made whether in printed form, magnetic or any other media.
6.9 The Customer acknowledges that it is aware that use of the Website, whether by accessing, utilising, storing or otherwise dealing with the same may from time to time be subject to certain statutory or other external regulations, Conditions and restrictions. The Customer shall endeavour to comply with such regulations, Conditions or restrictions applicable to the Customer.
6.10 Other than with the prior written consent of ADC the Customer is expressly prohibited from using or redistributing the Training Materials or the Modules for the purposes of:
(i) compiling an internal training programme, other than as and to the extent permitted in these Conditions;
(ii) commercial information redistributing or reproduction of the same by the press or media or through any commercial network, cable or satellite system;
(iii) permitting or allowing the Training Materials to infringe or otherwise prejudice the proprietary rights of ADC or the Training Materials suppliers;
6.11 The Customer shall not modify or remove any copyright or proprietary notices on the Training Materials and shall reproduce such notices on any copies of the Training Materials or part thereof it may make in the form in which they appear on the original.
6.12 ADC may at any time require the Customer and/or the Permitted Users to disconnect its/their use of the Website or any part or parts thereof from accessing and using the Training Materials if in the reasonable opinion of ADC, such use of the Website is or has been the cause or is likely to be the cause of failures, interruptions, errors or defects in ADC’s computer system or the Training Materials. In the event that the Customer and/or the a Permitted User is so required to disconnect, ADC will as soon as possible thereafter, advise the Customer of such changes as must be made to such use of Website to enable the Customer and/or the Permitted Users to obtain the Training Materials.
6.13 Any breach of Condition 6.12 or unauthorised access to or use of the Website, will entitle ADC in addition to any other remedy it may have, to terminate supply of the Training Materials to the Customer immediately and/or the agreement for provision of the Services as a whole.
6.14 The Customer shall not without ADC's express prior written consent, and shall ensure that no other person shall:
(i) make any additions, modifications, adjustments or alterations to the Training Materials or any other materials provided by ADC in the course of providing the Services;
(ii) attempt to rectify or permit any persons other than ADC or their agents to rectify any fault or inaccuracy in the Training Materials;
(iii) otherwise tamper with the Training Materials;
(iv) use the Website, Training Materials and/or third party software (when dealing in any way with the Training Materials or the information or facilities obtained therefrom) in a manner which is in breach of these Conditions;
(v) allow any third party to access to any part of the Services unless expressly so permitted by ADC.
7. ADC Obligations
7.1 ADC will take reasonable steps to ensure that the Services are continuous and that access to the Website is not interrupted for more than 5 working days in any twelve month period by any event in ADC’s control.
7.2 ADC will reimburse the Subscription Charge or Renewal Fee pro-rata for any excessive interruption under Condition 7.1 above or if any significant part of the Services are withdrawn under Condition 9(c) below. Reimbursement will be made to the person or organisation paying the respective Subscription Charges or Renewal Fee.
7.3 If a Permitted User satisfactorily completes the Modules as set by ADC, ADC will issue the said Permitted User with a certificate of completion.
8. Subscription Charges
8.1 The customer shall pay to ADC the Subscription Charge specified in the Proposal for each Permitted User with a Renewal Fee (if applicable) and an additional charge for each additional training programme requested by the Customer. All such charges may be varied from time to time by ADC giving to the Customer not less than 30 days' prior written notice preceding the anniversary of the Effective Date. Such variation shall take effect upon the anniversary of the Effective Date unless the Customer elects to terminate this Agreement in accordance with the provisions of Condition 11.3.
8.2 The Subscription Charge shall be payable in equal monthly or annual instalments in advance (as agreed in the Proposal) by direct bank transfer, debit card or credit card payment, commencing on the acceptance of the Proposal and on the same day in each month/year following throughout the duration of the provision of the Services.
8.3 All sums payable under these Conditions are exclusive of VAT and any other sales or similar taxes, customs, duties or similar charges, for which the Customer shall be responsible.
8.4 If any sum due from the Customer to ADC under this Agreement is not paid within thirty (30) days of its due date then without prejudice to any other rights and remedies available to ADC, ADC reserves the right to charge, and the Customer agrees to pay, interest on such sum on a day to day basis at the rate of 4% above the original invoice amount from the date when the payment became due until the date on which the payment has been received together with any interest which has been accrued.
8.5 All amounts payable under these Conditions shall be paid in full without set-off deduction or other withholding of any amount which may be due to the Customer. Should the Customer be required by any law or regulation to make any deduction on account of tax or otherwise on any sum payable under these Conditions, the sum payable shall be increased by the amount of such tax to ensure that ADC receives a sum equal to amount to be paid under this Agreement.
8.6 The Customer shall have no right to any refund of the fees payable under these Conditions including, without limitation, on the termination of the provision of the Services.
9.1 ADC declares and the Customer acknowledges that all implied warranties are excluded to the maximum extent permitted by law. The Customer should note in particular:
(a) the Services are not intended to provide or constitute a definitive or complete statement on any subject;
(b) the Services and ADC’s means of delivering it may be incompatible with the Customer’s computer configuration. The Customer is offered trial access to the course to ensure that the courses are compatible with current computer configurations; and
(c) ADC may change or withdraw part or all of the Services or Training Materials at its discretion.
10.1 ADC’s liability to the Customer for any loss or damage is limited to damages of an amount equal to the Subscription Charge.
10.2 Under this Condition 10, ADC’s liability includes that of any Associated Companies and its respective agents, employees and subcontractors, the Customer includes any other party claiming through the Customer and loss or damage includes any losses, damages, costs or expenses whatsoever or howsoever arising in connection with the Services or Training Materials, whether under this agreement or other agreement or in consequence of any misrepresentation, misstatement or tortuous act or omission, including negligence.
10.3 This Condition 10 does not affect claims in respect of death or personal injury caused by negligence and does not limit or exclude any liability for fraudulent misrepresentation.
11. Term and Termination
11.1 This agreement will terminate if the Customer is in material breach of any of its terms and if the breach is not remedied within a period of five days after ADC has given written notice of such breach.
11.2 The provision of the Services shall commence on the Effective Date and shall continue unless or until terminated in accordance with this Condition 11.
11.3 Either Party may terminate at any time for any reason by giving not less than 30 days written notice prior to the anniversary of the Effective Date. In that event the provision of the Services shall terminate on the anniversary of the Effective Date.
11.4 ADC may terminate the provision of the Services at any time immediately upon notice to the Customer if the Customer:
(i) and /or any Permitted User, commits a material breach of these Conditions which the Customer fails to remedy within 21 days of receiving notice requiring it to do so;
(ii) commits a breach of Condition 16
(iii) undergoes a Change of Control;
(iv) sells all or substantially all of its assets, participates in a merger, or other reorganisation in which it is not the surviving entity; or
(v) ceases to do business, becomes unable to pay its debts within the meaning of the Insolvency Act 1986, becomes or is deemed insolvent, has a receiver, manager, administrator, administrator receiver or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction), enters into liquidation whether compulsorily or voluntarily.
11.5 ADC may immediately terminate a Permitted User’s access to the Website if that Permitted User is in breach or has breached any of these Conditions.
11.6 Termination shall be without prejudice to the rights of either Party which have accrued prior to termination and shall not affect obligations which are expressed not to be affected by expiry or termination hereof.
11.7 Upon termination for any reason;
(i) all rights granted to the Customer under these Conditions shall cease;
(ii) the Customer shall cease all activities authorised by these Conditions;
(iii) the Customer shall pay, within 30 days of receiving ADC’s invoice, to ADC any sums due to ADC for Services provided to the Customer under these Conditions for the term of the Agreement; which, for the avoidance of doubt, shall include the Subscription Charge in full if it was agreed between the Parties in the Proposal.
(iv) ADC shall refund to the Customer the Subscription Charge(s) for any licences that were paid for by the Customer but not utilized during the term of the Agreement. For the avoidance of doubt, a licence will only be deemed as unused when the permitted user has not accessed the Virtual Academy using the username and password provided by ADC;
(iv) within 7 days of such termination, the Customer shall purge/expunge from the Customer's system all Training Materials and the Modules not completed but transferred and/or stored and furnish ADC with a notice (in accordance with Condition 18), certifying that the principal and all copies of such Training Materials and Modules made (in whole or in part), in any form or media have been so purged/expunged, or permit ADC’s personnel so to do and shall further destroy or return (at ADC’s option) to ADC all copies of the Training Materials and Modules and ADC’s Confidential Information then in its possession, custody or control and, in the case of destruction, certify to ADC that it has done so.
12.1 Neither Party may not assign this agreement without the other Party’s prior written consent.
13. Entire Agreement
13.1 This agreement constitutes the entire agreement and understanding of the Parties and supersedes any previous agreement between the Parties relating to the subject matter of this agreement. Each of the Parties acknowledge and agree that in entering into this agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this agreement or not) other than as expressly set out in this agreement. The only remedy available to it for breach of the agreement shall be for breach of contract under the terms of this agreement.
14.1 The Customer undertakes fully and effectively to indemnify and keep indemnified at all times ADC against all actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever (including legal and other fees and disbursements) sustained, incurred or paid by ADC directly or indirectly in respect of:
(i) the unauthorised use of any part of the Services by the Customer, a Permitted User or any third party whether through the Customer’s or a Permitted User’s use of the Services, breach of these Conditions or any other negligent or wrongful act of the Customer;
(ii) any information or materials produced by the Customer obtained in whole or in part from use of the Services;
(iii) any breach by the Customer of any of the provisions of these Conditions;
(iv) claims from third parties for loss or damage arising out of or in connection with the use of the Services by the Customer or a Permitted User.
14.2 The Customer further undertakes that it will not seek to recover and shall not be entitled to recover from ADC or to be indemnified by ADC in respect of any direct, indirect or consequential loss or damage or against any claims, proceedings, costs, demands, liabilities and expenses whatsoever sustained, incurred or paid by the Customer to any party in respect of any of the matters specified in these Conditions other than as required by the applicable law.
14.3 Without limitation to Condition 14.1, in the event that the use or possession of the Services by the Customer (as contemplated by these Conditions) infringes or, in ADC’s opinion, is likely to be held to infringe any intellectual property right belonging to a third party, ADC may at its option and expense:-
(i) procure for the Customer the right to continue using the Services free from any liability for such infringement
(ii) modify or replace the Services so as to avoid the infringement but providing the Customer with substantially the same functionality; or
(iii) terminate the provision of the Services immediately on written notice.
Provided that ADC, for the duration of the Agreement, undertakes fully and effectively to indemnify and keep indemnified at all times Customer against all actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever (including legal and other fees and disbursements) sustained, incurred or paid by Customer directly or indirectly in respect of the infringement of third party copy right rights arising from the use or possession of the Services.
14.4 This Condition 14 states the entire obligation and liability of ADC and the sole remedy of the Customer in respect of any infringement or alleged infringement of any intellectual property rights arising from its acquisition, possession or use of the Services. All other obligations of ADC in relation to the infringement or alleged infringement of the intellectual property rights of any person which but for this Condition 14.4 would have effect are hereby excluded.
15. Copyright, Trade Marks and Other Intellectual Property Rights relating to the Services
15.1 The Customer acknowledges that ADC has spent, and continues to spend, considerable time and resources on the selection and arrangement of the Services as an original intellectual creation. The Customer acknowledges that the copyright and any and all of the copyright, trademarks, know-how and other intellectual property rights subsisting in or used in connection with the Services, including the manner in which it is presented or appears, the arrangement of the contents thereof and all information, documentation and manuals relating thereto are (unless another owner is specified therein or thereon hereinafter referred to as the "Owner") the property of ADC or Owner as the case may be and the Customer shall not during or at any time after the expiry or termination of the provision of the Services in any way question or dispute the ownership by ADC or Owner as the case may be of any such rights.
15.2 The Customer shall not during or after the expiry or termination of the provision of the Services, without the prior written consent of ADC or the Owner as the case may be or to the extent only permitted by the applicable law, abuse or permit the abuse of such copyright or use or adopt any trade mark, trade name, or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name or commercial designation used by ADC or the Owner as the case may be.
15.3 The Customer undertakes not to reproduce, adapt, translate, arrange or make available to any third party, either directly or indirectly, any part of the Services or its contents of which the Training Materials forms a part (including any electronic materials necessary for its operation) except to the extent that and for so long as the Customer is expressly permitted to do so in accordance with these Conditions, or as permitted by any mandatory provisions of law, and undertakes to take all necessary steps to prevent access to the Training Materials by any person except the Permitted Users who need to have access thereto for the purposes permitted by these Conditions.
15.4 The Customer acknowledges that civil and criminal penalties may be incurred in the event of any infringement of the copyright and/or other rights in relation to the Services or its contents, and that any such infringement by the Customer may result in incalculable damage and/or loss to ADC, and accordingly agrees that, in addition to any other right or remedy of ADC, ADC shall be entitled to immediate interdict relief to restrain any actual or apprehended infringement thereof. The Customer undertakes to indemnify ADC in full, against all loss, damage, costs and expenses (including loss of profit) which may be incurred by ADC by reason of any such infringement by the Customer.
16.1 Each Party shall maintain the confidentiality of the other Party’s Confidential Information and shall not, without the prior written consent of the other, use, disclose, copy or modify the other Party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under these Conditions.
16.2 Each Party undertakes to disclose the other Party’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under these Conditions and to procure that such persons are made aware of and agree in writing to observe the obligations in this Condition 16.
16.3 Each Party shall give notice to the other of any unauthorised misuse, disclosure, theft or other loss of the other Party’s Confidential Information immediately becoming aware of the same.
16.4 The provisions of this Condition 16 shall not apply to information which:
(i) is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
(ii) is lawfully received by the Customer from a third party free of any obligation of confidence at the time of its disclosure;
(iii) is independently developed by the recipient, its officers, employees, agents or contractors;
(iv) is required by law, by court or governmental order to be disclosed.
16.5 The existence and terms of these Conditions are confidential and may not be disclosed by either Party without the other Party’s prior written consent.
16.6 The obligations under this Condition 16 shall survive the variation, expiry or termination of this Agreement.
17. Force Majeure
17.1 Neither Party shall be liable to the other in any way whatsoever for failure, interruption, delay or any other matters of whatever nature whatsoever arising out of war, rebellion, civil commotion, strikes, lock outs and industrial disputes; fire, explosion, earthquake, acts of God, flood, drought or bad weather or liability to the other in any way whatsoever for any other circumstances or happenings (whether of the foregoing classes or not) beyond its control.
17.2 In the event of a failure of the ADC’s computer system, ADC shall, as soon as conditions return to normal, take all reasonable steps to rectify the failure at the earliest possible opportunity. In the event that any circumstances covered by this Condition cannot be rectified or remedied or continues for a period of twenty one (21) days or more either Party may at its option terminate forthwith and without liability for such termination.
17.3 For the avoidance of doubt, nothing in this Condition 17 shall excuse the Customer from any payment obligations under these Conditions.
18.1 Any notices and other communications required or permitted to be given under these Conditions shall be in writing and shall be delivered or transmitted to the intended recipient’s address as specified above or such other address as either Party may notify to the other from time to time in accordance with this Condition. Any notice shall be treated as having been served on delivery if delivered by hand, four Working Days after posting if sent by pre-paid first class post and on completion of transmission if sent by facsimile.
19.1 The failure of either Party to enforce or to exercise any term of these Conditions does not constitute a waiver of such term and shall in no way affect that Party’s right later to enforce or to exercise it.
20.1 The invalidity or unenforceability of any term of, or any right arising pursuant to, these Conditions shall not affect the validity or enforceability of the remaining terms of rights.
21.1 Terms of these Conditions which are either expressed so as to survive expiry, variation or termination of the provision of the Services or from their nature or context it is contemplated that they are to survive expiry, variation or termination, shall remain in full force and affect notwithstanding expiry, variation or termination.
22.1 No variation of, or amendment to, these Conditions shall bind either Party unless made in writing and signed by authorised representatives of both Parties
23. Independent Contractors
23.1 The relationship of the Parties is that of independent contractors dealing at arms’ length and except as expressly provided in these Conditions nothing in these Conditions shall be construed so as to constitute the Parties as partners, joint venturers or co-owners or empower either Party to act for, bind or otherwise create or assume any obligation on behalf of the other and neither Party shall hold itself out as entitled to do the same. Nothing in these Conditions shall create or be deemed to create the relationship of employer and employee.
24. Governing Law
24.1 The construction, validity and performance of these Conditions shall be governed by Scots law and the parties irrevocably submit to the non-exclusive jurisdiction of the Scottish court.