1.1 The definitions and rules of interpretation in this clause apply in these conditions.
the Customer's order and the Supplier's acceptance of it in accordance with condition 3.2.
the person, firm or company who purchases Services from the Supplier.
Intellectual Property Rights:
patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
the goods (or any part of them but not including any Service Products) set out in the Contract .
the minimum computer hardware and software requirements required to use any Service Products as notified to the Customer by the Supplier from time to time.
the services agreed in the Contract to be purchased by the Customer from the Supplier (including any part or parts of it).
those products and rights (including licensed rights) to be provided as part of the Services, including any license or access codes to any third party materials (such as texts, sample exams and/or actual exams) or any other products or rights which expire within a defined period or by a specified date.
Prodigy Learning Limited, a company registered in Ireland with company number 332599 and having its registered office at Q House Furze Road, Sandyford Dublin 18.
value added tax and any similar additional tax.
1.2 Condition headings do not affect the interpretation of these conditions.
1.3 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
2. Application Of Conditions
2.1 These conditions shall:
(a) apply to and be incorporated in the Contract; and
(b) prevail over any inconsistent terms or conditions contained in or referred to in the Customer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
3. Basis of Sale
3.1 Each order or acceptance of a quotation for Services and/or Goods by the Customer shall be deemed to be an offer by the Customer subject to these conditions. The Customer shall ensure that its order is complete and accurate.
3.2 A binding contract shall not come into existence between the Supplier and the Customer unless and until the Supplier issues a written order acknowledgement to the Customer, or the Supplier delivers the Services and/or the Goods to the Customer (whichever occurs earlier).
3.3 No order which has been acknowledged by the Supplier may be cancelled by the Customer, except with the agreement in writing of the Supplier and provided that the Customer indemnifies the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.
4.1 The description of the Services (including the quantity of any Service Products) and/or the Goods shall be as set out in the Supplier's acknowledgement of order or (if there is no acknowledgment of order) quotation.
4.2 All specifications and advertising issued by the Supplier, and any descriptions contained in the Supplier's catalogues or brochures are issued or published for illustrative purposes only and do not form part of the Contract.
4.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
4.4 The Supplier's employees, contractors and agents are not authorised to make any contractually binding representations concerning the Services or the Goods. In entering into the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which have not been confirmed in writing by an authorised officer of the Supplier. However, nothing in these conditions limits the Supplier's liability for fraudulent misrepresentation.
5.1 All prices shall be as stated in the Supplier's acknowledgement of order or (if there is no acknowledgment of order) quotation. All prices are exclusive
of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties.
6.1 Payment shall be made on commencement of delivery of the Services and/or the Goods, unless otherwise agreed in writing.
6.2 Time for payment of the price shall be of the essence of the Contract.
6.3 If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Services (including Service Products) and/or the Goods then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to the Supplier, the Supplier may:
(a) terminate the Contract or suspend any further deliveries of Services and/or Goods (whether ordered under the same contract or not) to the Customer;
(b) charge interest on the amount outstanding from the due date to the date of receipt by the Supplier (whether or not after judgment), at the annual rate of 1% above the base lending rate from time to time of HSBC, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and/or
(c) suspend all further delivery or service until payment has been made in full.
6.4 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This condition 6.4 is without prejudice to any right to claim for interest under the law, or any right under the Contract.
6.5 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
6.6 The Supplier reserves the right to write-off any amount of overpayment by a Customer to the Supplier when there has been no transaction on the Customer’s account for 12 months or more and the account balance is below €100 or equivalent.
7.1 The Supplier shall use its reasonable endeavours to deliver the Services (including any Service Products) and/or the Goods on the date or dates specified in the Supplier's acknowledgement of order, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the order. Time is not of the essence as to the delivery of the Services and/or the Goods and the Supplier is not liable for any delay in delivery, however caused.
7.2 Delivery shall be made during normal business hours (excluding bank or public holidays). The Supplier may levy additional charges for any deliveries made outside such hours at the Customer's request.
7.3 The Customer shall be responsible (at the Customer's cost) for the provision of all necessary facilities reasonably required to complete the delivery and/or installation of the Services (including any Service Products) and/or the Goods, including without limitation ensuring that its computer systems meet the Minimum Specifications.
8. Acceptance and Returns
8.1 The Customer shall be deemed to have accepted the Service (including any Service Products) and/or the Goods at the time of delivery.
8.2 The Customer acknowledges that the Service (together with any Service Products) are a service, and that performance of the service shall be deemed to have commenced immediately upon delivery of the Service (together with any Service Products) to the Customer. Without prejudice to the foregoing, to the extent that Service Product consisting of any licence to access or otherwise use or take any exams or sample exams (whether an annual basis or otherwise, and whether for an unlimited number or otherwise) may be deemed to be a product, such a product shall be deemed to be perishable.
8.3 The Customer shall not be entitled to cancel or return any Service, Service Products or Goods following delivery unless otherwise expressly agreed by the Supplier in the Contract.
9. Title and Risk
9.1 The risk in the Service Products and/or the Goods shall pass to the Customer on completion of delivery.
9.2 Title to the Service Products and Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a) the Service Products and Goods; and
(b) any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.
9.3 Until title to the Service Products and Goods has passed to the Customer, the Customer shall:
(a) hold the Service Products and Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Service Products and Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Service Products and Goods;
(d) maintain the Service Products and Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Service Products and Goods in the ordinary course of its business.
9.4 If, before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in condition 15.1, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
10. Service Product Licence
10.1 If the Customer is provided with any licence in respect of the Service Products or otherwise in respect of the delivery of any Service, the Customer shall accept the terms of any such licence.
11.1 The Supplier shall not be liable for any non-delivery of any Service (including any Service Products) or Goods (even if caused by the Supplier's negligence) unless the Customer notifies the Supplier in writing of the failure to deliver within seven days after the scheduled delivery date.
11.2 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event), the Customer shall be liable to pay to the Supplier all reasonable costs, charges or losses sustained by it as a result, subject to the Supplier notifying the Customer in writing of any such claim it might have against the Customer in this respect.
12. Limitation Of Liability
12.1 The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of any breach of the Contract and any representation, statement or tortious act or omission (including negligence) arising out of or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
12.3 Nothing in these conditions excludes or limits the liability of the Supplier for death or personal injury caused by the Supplier's negligence or fraud or fraudulent misrepresentation.
12.4 Subject to condition 12.2 and condition 12.3:
(a) the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for loss of profits; or loss of business; or depletion of goodwill or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price payable for the Services and/or Goods under condition 5.
13. Intellectual Property Rights
13.1 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Services (including the Service Products) and/or Goods are and shall remain the sole property of the Supplier or (as the case may be) third party rights owner.
13.2 The Supplier shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Supplier.
13.3 The Customer shall not at any time make any unauthorised use of the Intellectual Property Rights to which it has been provided access pursuant to the terms of this Contract, nor authorise or permit any of its agents or contractors or any other person to do so.
14. Confidentiality and Supplier's Property
14.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents, and any other confidential information concerning the Supplier's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer's obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
14.2 This condition 14 shall survive termination of the Contract, however arising.
15.1 Without prejudice to any other right or remedy available to the Supplier, the Supplier may terminate the Contract or suspend any further deliveries
under the Contract without liability to the Customer and, if the Services and/or Goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary if:
(a) an order is made or a resolution is passed for the winding up of the Customer, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the Customer; or
(b) an order is made for the appointment of an administrator to manage the affairs, business and property of the Customer, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Customer, or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder; or
(c) a receiver is appointed of any of the Customer's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Customer, or if any other person takes possession of or sells the Customer's assets; or
(d) the Customer makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
(e) the Customer ceases, or threatens to cease, to trade; or
(f) the Customer takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
15.2 Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive or implicitly surviving termination.
16.1 The Supplier reserves the right to defer the date of delivery, or to cancel the Contract if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (Force Majeure Event).
16.2 A waiver of any right under the Contract is only effective if it is in writing and signed by or on behalf of the waiving party, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
16.3 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
16.4 If any provision of this agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.5 Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in the Contract.
16.6 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.7 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.8 The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
16.9 Any notice required to be given pursuant to this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the address of the party as set out in these conditions, or such other address as may be notified by one party to the other. A notice delivered by hand is deemed to have been received when delivered (or, if delivery is not in business hours, 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
16.10 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of Ireland.
16.11 The parties irrevocably agree that the courts of Ireland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).