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PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY

This is a legally binding agreement (AGREEMENT) between the Numark Member (you) and Phoenix Healthcare Distribution Limited whose registered address is Rivington Road, Whitehouse Industrial Estate, Runcorn, Cheshire, England, WA7 3DJ , (the Supplier, we or us), granting you (the Member) the right to use and access the Numark Training Platform, including any Updates, Upgrades, patches, fixes or workarounds made available, and any data, media or documents associated with it provided by Titus.

BY CLICKING ‘ACCEPT’ AT THE END OF THIS AGREEMENT, YOU AGREE TO AND ACCEPT THE FOLLOWING TERMS WHICH WILL BE BINDING ON YOU AND ANY OF YOUR AUTHORISED USERS WHEN ACCESSING OR USING NUMARK TRAINING PLATFORM PLEASE NOTE, IN PARTICULAR, THE LIMITATIONS ON LIABILITY IMPOSED AT CLAUSE 13. THIS IS A BUSINESS TO BUSINESS AGREEMENT AND IS NOT TO BE ENTERED INTO BY CONSUMERS. YOU SHOULD ONLY CLICK ‘ACCEPT’ IF YOU ARE A BUSINESS.

WHERE YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, YOU SHALL CLICK ‘REJECT’. DOING SO MEANS THAT YOU ARE NOT ALLOWED TO ACCESS OR USE THE SERVICES [AND WILL PREVENT YOU FROM ACCESSING THE SERVICES].

1              Definitions and interpretation

1.1          In the Agreement:

Affiliates	means, in respect of any entity, any entity that directly or indirectly controls, is controlled by or is under common control with that entity within the meaning set out in s 1124 of the Corporation Tax Act 2010;
Agreement	means, together, the Moodle Specific Terms, this Agreement and any policies referred to in either this Agreement,
Authorised Users	Numark Members and their employees
Business Day	means a day other than a Saturday, Sunday or bank or public holiday in England;
Commencement Date	means the date on which you click to accept this Agreement;
Confidential Information	means as defined in clause 17.1
Data Protection Legislation.	means any applicable national laws, regulations and/or secondary legislation as amended or updated from time to time in relation to data privacy laws, including the Data Protection Act 2018 and the General Data Protection Regulation (EU) 2016/679).
	Data Controller, Data Processor, Processing, Process, Data Subject and Personal Data or similar expressions shall have the meaning given to them in applicable Data Protection Legislation
Force Majeure         Hosting Provider	means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Agreement (provided that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet; means the third party hosting provider engaged by Titus Learning from time to time, to deliver Hosting Services.
Intellectual Property Rights                     Moodle Software     Moodle Specific Terms	means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case: (a)           whether registered or not; (b)           including any applications to protect or register such rights; (c)           including all renewals and extensions of such rights or applications; (d)           whether vested, contingent or future; and (e)           wherever existing;   Software programs (which may include Open-Source Software) procured by Titus Learning from Moodle Pty Ltd provided to the Supplier in accordance with the Moodle Specific Terms. means the terms applicable to Moodle Software, in particular as applicable: (a) in respect of Moodle Workplace, the Moodle Workplace licence available from Titus Learning Ltd; and (b) for all other Moodle Software, the GNU General Public Licence (versions 2, 3 or any later version as applicable) set out at https://docs.moodle.org/dev/License (each as modified or updated from time to time).
New Versions   Open-Source Software	has the meaning given to it at clause 8.1;   means any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source definition from time to time (set out at www.opensource.org) or any libraries or code licensed from time to time under the GNU  General  Public  Licence  (as   set  out  atwww.gnu.org), or anything similar.
Permitted Purpose	access to the Numark Training Platform provided to Phoenix by Titus to undertake various learning modules;
Privacy Policy	means the Supplier’s privacy policy located at Numarknet.com/privacypolicy;
Receiving Party	has the meaning given to it in clause 17;
Relief Event	means any: (i) breach of the Agreement by the Numark Member; (ii) negligence of the Numark Member; (iii) other unlawful acts or omissions of the Numark Member; or (iv) any Force Majeure;
Numark Training Platform	means the training platform provided to Phoenix by Titus;
Territory	means the United Kingdom
Third Party Software   Titus Affiliate     Titus Learning   Titus Solution     Totara Software       Totara Specific Terms	means software programs which are procured by Titus Learning from third party licensors other than Moodle and Totara provided to Phoenix; means any existing or future individual or entity that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with Titus Learning. means Titus Learning Ltd. (company number 08799881) whose registered office is at Salts Mill, Victoria Road, Saltaire, England, BD18 3LA means the solution made available by Titus Learning comprising, as applicable, the Proprietary Materials,  Products  and Phoenix Theme. means software programs (which may include Open-Source Software) which are procured by Titus Learning from Totara Learning Solutions Limited and (where indicated in the Order Form) shall be provided to the Customer in accordance with the Totara Specific Terms.   means the Totara Product License and Subscription Agreement which Customer shall sign directly with Totara on the Effective Date, as provided by Titus Learning.

1.2          In this Agreement:

1.2.1   headings are included for convenience only and shall have no effect on interpretation;

1.2.2   a reference to a ‘party’ includes that party’s successors and permitted assigns;

1.2.3   a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

1.2.4   words in the singular include the plural and vice versa;

1.2.5   any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.2.6   a reference to any legislation or legislative provision is a reference to it as [in force at the date of the Agreement OR as amended, extended, re-enacted or consolidated from time to time [except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Agreement]].

2              Legal documents

2.1          If there is any inconsistency in the rights and obligations set out in the Agreement and/or the documents referred to in them the following order of priority shall prevail (in descending order of priority):

2.1.1   the Moodle Workplace Service Specific Terms;

2.1.2   any policies referred to in this Agreement,

2.1.3   this Agreement.

2.2          Subject to the order of precedence set out at clause 2.1, later versions of the documents listed at that clause will take priority over earlier versions if there is any conflict or inconsistency between them.

3              Rights of access and use

3.1          Subject to the terms of this Agreement we hereby grant to you a limited, non-exclusive, non-transferable right to access and use Numark Training Platform for the Permitted Purpose only in the Territory and for the duration of the users Membership or employment period.

3.2          Third Party Software supplied as part of, or in addition to, the Numark Training Platform shall be subject to any additional terms and conditions as otherwise notified to you. You agree to comply with any terms and conditions relating to such Third Party Software.

 

4              The Titus Solution

4.1          Titus Learning provides the Titus Solution to Phoenix in accordance with a Contract between Titus and Phoenix.

Titus Learning may amend, modify, or upgrade the functionality and the look and feel of the Titus Solution and / or any hardware or software which is used in relation to the Titus Solution from time to time. Any such amendment, modification or upgrade will be made in good faith by Titus Learning with the intent that it will not in its view materially degrade the functionality of the Titus Solution.

5              Limitations on use

5.2        Except as expressly permitted under this Agreement or by law, you shall not:

5.1.1   You shall not (and shall ensure that your users shall not) copy or reproduce in any way the whole or part of the Titus Solution or any information or other material relating to the Titus Solution;

5.1.2   You shall not attempt to ascertain or list the source programs or source code relating to the Titus Solution;

5.1.3   You shall not decompile, reverse engineer, dissemble or translate the Titus into any other computer language or attempt to do so, save to the extent permitted by law;

5.1.4   you shall not assign, licence, loan, rent, disclose, sell or otherwise transfer all or part of the Titus Solution to any other person (other than as permitted by this Contract);

5.1.5   You shall not use the Titus Solution as part of a computer bureau business or allow a party other than your employees to access the Titus Solution;

5.1.6   You shall not gain access or attempt to gain access to the Titus Solution or data contained on the Numark Training Platform except to the extent expressly permitted by this Agreement; or

5.1.7   You shall not modify, alter or in any way interfere with any element of the Titus Solution, data, or content or merge the same with any other data, programs, material, information or documents save to the extent permitted by law.

5.2          Access and use of the Numark Training Platform shall be limited to the authorised users only.

5.3          You shall access and use the Numark Training Platformat all times in accordance with any instructions or user guidance and all other terms of this Agreement.

5.4          You shall notify us in writing as soon as you become aware of any actual or suspected unauthorised use of the Numark Training Platform (including any use in excess of the Permitted Usage Rights).

6              Authorised Users

6.1          You shall ensure that only your employees use the Numark Training Platform, and that such use is at all times in accordance with the Agreement.

6.2          You shall ensure that your employees are, at all times while they have access to the Numark Training Platform are employed by you,

6.3          You shall manage your user access for employees via NumarkNet.

6.4          You shall ensure that you employee user accounts are not shared or used by more than one individual at the same time.

6.5          You shall:

6.5.1   be liable for the acts and omissions of your employees as if they were your own;

6.5.2   only provide your employees with access to the Numark Training Platform via the access method provided by us and shall not provide access to (or permit access by) anyone other than an employee; and

6.5.3   procure that each employee is aware of, and complies with, the obligations and restrictions imposed on you under this Agreement.

6.6          You shall (and shall ensure all employees shall) at all times comply with the provisions of this Agreement.

6.7          Clauses 6.4 to 6.6 (inclusive) shall survive termination or expiry of the Agreement.

7              Indemnity

7.1          YOU SHALL INDEMNIFY, KEEP INDEMNIFIED AND HOLD HARMLESS US FROM AND AGAINST ANY LOSSES, CLAIMS, DAMAGES, LIABILITY, DATA PROTECTION LOSSES, COSTS (INCLUDING LEGAL AND OTHER PROFESSIONAL FEES) AND EXPENSES INCURRED BY US, OUR AFFILIATES, RESPECTIVE OFFICERS, DIRECTORS AND/OR EMPLOYEES AS A RESULT OF YOUR BREACH OF THIS AGREEMENT.

7.2          THIS CLAUSE 7 SHALL SURVIVE TERMINATION OR EXPIRY OF THIS AGREEMENT.

8              Support

8.1          Day to day technical support shall be available via training.team@numark-central.co.uk.

8.2          We shall use reasonable endeavours to notify you in advance of scheduled maintenance but you acknowledge that you may receive no advance notification for downtime caused by Force Majeure or for other emergency maintenance.

8.3          You acknowledge that access to Numark Training Platform does not include any services, systems or equipment required to access the internet (and that you are solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications, data transmission and wireless or mobile charges incurred by it in connection with use of Numark Training Platform);

9              Changes to services and terms

9.1          Phoenix and third party providers may at our absolute discretion update versions of the documents referred to in clause 2.1 or other documents referred to in any part of this Agreement (New Versions) from time to time by notifying you of such update by e-mail (together with a copy of the update or a link to a copy of the update). New Versions will replace the preceding version of the same document(s) for the purposes of the Agreement from the date they are published.

9.2          You acknowledge that, subject to the provisions of this clause, the platform provider is entitled to modify the features and functionality of Numark Training Platform and may also establish new limitations Numark Training Platform, including but not limited to the volume of data which may be used, stored or transmitted in connection with Numark Training Platform, access to application programming interfaces and changes to data retention periods. Changes that we introduce under this clause shall be introduced via a New Version and any modification shall not materially adversely affect the use of the relevant Numark Training Platform

9.3          In the event that any New Version or change to the Numark Training Platform has a material adverse impact on you, you may elect to not access and use Numark Training Platform.

10           Warranty

10.1        You acknowledges that we do not give any term, warranty, condition or representation and do not accept any liability (howsoever arising whether under contract, tort, in negligence or otherwise) in relation to:

10.1.1 the Numark Training Platform meeting your individual needs or business requirements, whether or not such needs or requirements have been communicated to us;

10.1.2 the Numark Training Platform operating in a manner which is uninterrupted or free from minor errors or defects; or

10.1.3 the Numark Training Platform being compatible with any software other than the Third Party Software or with any particular hardware.

10.2        Other than as set out in this clause 10, and subject to clause 13.5, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose, reasonable care and skill or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.

11           Your responsibilities

11.1        You shall (and shall ensure all Authorised Users shall) at all times comply with all applicable laws relating to the use or receipt of the Numark Training Platform including but not limited to laws relating to privacy, data protection and use of systems and communication.

11.2        You shall not permit any unauthorised use of the Titus Solution and shall ensure that any user login details and passwords supplied to it are kept secure and are protected from unauthorised disclosure and / or use.

12           Intellectual Property Rights

12.1        You acknowledges that all Intellectual Property Rights in the Numark Training Platform are licensed to Titus, that the right to access and use the Numark Training Platform  is licensed (not sold) to you and that you shall have no other rights other than those granted under the terms of this Agreement. For the avoidance of doubt, you shall have no right to access the Subscribed Services in source code form.

12.2        To the extent Third Party Software is made available to, or used by or on behalf of you or any of your employees in connection with the use or provision of Numark Training Platform, such use of Third Party Software shall be subject to any additional third party terms

12.3        This clause 12 shall survive the termination or expiry of this Agreement.

13           Relief

To the maximum extent permitted by law, we shall not be liable (under any legal theory, including negligence) for any breach, delay or default in the performance of the Agreement to the extent the same (or the circumstances giving rise to the same) arises or was contributed to by any Relief Event.

14           Limitation of liability

14.1        THE EXTENT OF PHOENIX’S LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT (REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN TORT, CONTRACT OR IN ANY OTHER WAY AND WHETHER OR NOT CAUSED BY NEGLIGENCE OR MISREPRESENTATION) SHALL BE AS SET OUT IN THIS CLAUSE 13.

14.2        SUBJECT TO CLAUSES 13.3 AND 13.5, PHOENIX’S TOTAL AGGREGATE LIABILITY HOWSOEVER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED £500:

14.3        SUBJECT TO CLAUSE 13.5, PHOENIX SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT OR SPECIAL LOSSES.

14.4        SUBJECT TO CLAUSE 13.5, PHOENIX SHALL NOT BE LIABLE FOR ANY OF THE FOLLOWING (WHETHER DIRECT OR INDIRECT):

14.4.1 LOSS OF PROFIT;

14.4.2 LOSS OF REVENUE;

14.4.3 LOSS OR CORRUPTION OF DATA;

14.4.4 LOSS OR CORRUPTION OF SOFTWARE OR SYSTEMS;

14.4.5 LOSS OR DAMAGE TO EQUIPMENT;

14.4.6 LOSS OF USE;

14.4.7 LOSS OF PRODUCTION;

14.4.8 LOSS OF CONTRACT;

14.4.9 LOSS OF COMMERCIAL OPPORTUNITY;

14.4.10  HARM TO REPUTATION OR LOSS OF GOODWILL;

14.4.11  LOSS OF BUSINESS; AND

14.4.12  WASTED EXPENDITURE.

14.5        NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, PHOENIX’S LIABILITY SHALL NOT BE LIMITED IN ANY WAY IN RESPECT OF THE FOLLOWING:

14.5.1 DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE;

14.5.2 FRAUD OR FRAUDULENT MISREPRESENTATION; OR

14.5.3 ANY OTHER LOSSES WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.

14.6        THIS CLAUSE 13 SHALL SURVIVE THE TERMINATION OR EXPIRY OF THIS AGREEMENT.

15           Suspension

15.1        We may suspend or remove access to the Numark Training Platform (or any part) to all or some of the Authorised Users if:

15.1.1 we reasonably suspect that there has been any misuse of the Numark Training Platform  or material breach of this Agreement; or as

15.1.2 required by law, by court or governmental or regulatory order.

15.1.3 Termination of the Numark Membership.

15.1.4 If there has been no activity on the Numark Training Platform for a period of two years

15.2        Where the reason for the suspension is suspected misuse of the Numark Training Platform or material breach of this Agreement, without prejudice to our rights under clause 15, we will take steps to investigate the issue and within 5 Business Days notify you of the outcome of the investigation, and either restore access to Numark Training Platform or exercise our right to terminate the Agreement in accordance with 15

16           Term and termination

16.1        This Agreement shall come into force on the Commencement Date and, unless terminated earlier in accordance with its terms, shall continue until any of the events in 15.1 occur.

16.2        Phoenix may terminate the Agreement or access to the Numark Training Platform for convenience on not less than 30 days’ prior written notice to the other

16.3        We may terminate this Agreement at any time by giving you notice in writing if:

16.3.1 you commit a material breach of the Agreement and such breach is not remediable;

16.3.2 you commit a material breach of this Agreement which is not remedied within 10 Business Days of receiving written notice of such breach; or

16.3.3 we, determine, pursuant to the investigation carried out pursuant to clause 15.2 misuse of the Numark Training Platform or a material breach of the Agreement by you.

16.3.4 The Numark Training Platform is replaced by an alternative platform

16.3.5 Phoenix no longer provides access to Numark Training Platform or an alternative learning platform as part of the Numark Membership

16.4        Any breach by you of clauses 5 and 6 shall be deemed a material breach of this Agreement which is not remediable.

17           Consequences of termination

17.1        On termination or expiry of the Agreement (for any reason):

17.1.1 the licences and rights granted by us shall immediately terminate and you shall (and, if applicable, shall procure that each Authorised User shall) immediately stop accessing and using the Numark Training Platform;

17.1.2 we may delete or suspend access to any accounts that you hold with us;

17.2        Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of the Agreement that is expressly or by implication intended to continue beyond termination.

18           Confidential Information

18.1        Each party (the Receiving Party) shall:

18.1.1 keep confidential any information that is confidential in nature concerning the other party and/or its Affiliates (including (to the extent confidential) any details of its business, affairs, customers, clients, suppliers, plans or strategy) which is provided or made available by the other party to the Receiving Party under or in connection with this Agreement (Confidential Information); and

18.1.2 not use, or disclose to any person, the other party’s Confidential Information, except as permitted by clause 21.2;

18.2        The Receiving Party may:

18.2.1 subject to clause 21.4, disclose any Confidential Information to any of its employees, officers, representatives, subcontractors or advisers(Representatives) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, provided that the Receiving Party must ensure that each of its Representatives to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this clause 21 as if it were the Receiving Party

18.2.2 disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and

18.2.3 subject to clause 18.4, use Confidential Information only to the extent reasonably necessary to perform its obligations under this Agreement

18.3        Each party recognises that any breach or threatened breach of this clause 18 may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

18.4        To the extent that any Confidential Information is personal data, such Confidential Information may be disclosed or used only to the extent that such disclosure or use does not conflict with Data Protection Legislation

18.5        The obligations under this clause shall survive the variation, expiry or termination of this Agreement for a period of 5 years thereafter.

19           Entire agreement

19.1        This Agreement and any descriptions of Numark Training Platform made available , constitute the entire agreement between the parties and supersede all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.

19.2        Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.

19.3        Nothing in the Agreement shall limit or exclude any liability for fraud.

20           Notices

20.1        Any notice given by a party under the Agreement shall be:

20.1.1 in writing and in English;

20.1.2 signed by, or on behalf of, the party giving it except for notices sent by email; and

20.1.3 where sent to the Phoenix, sent to the registered address

20.1.4 where sent to the Numark Member, sent to the address provided to us upon membership registration.

20.2        Any notice or communication given in accordance  with  clause  19.1  shall  be deemed  to  have  been  served: 

20.2.1 if delivered  by  hand,  on  receipt  of  a signature at the time of delivery; and

20.2.2 if sent by pre-paid recorded delivery post, at 9.00 a.m. on the second Business Day after the date of posting.

20.3      This clause 20 does not apply to notice given in legal proceedings.

21           Variation

Except where provided for in clause 9, no variation of this Agreement shall be valid or effective unless it is in writing and is duly signed or executed by, or on behalf of, each party.

22           Assignment and sub-contracting

22.1        Phoenix may assign any or all of its rights under the Contract, provided that it gives the Numark Member prior written notice of the assignment including the identity of the assignee.

22.2        Except as expressly permitted by this Agreement, the Numark Member shall not assign, transfer, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of your rights or obligations under this Agreement (including the licence rights granted), in whole or in part, without the Supplier’s prior written consent.

23           No partnership or agency

The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.

24           Severance

24.1        If any provision of the Contract (in whole or in part) is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed from the Contract and the remaining provisions shall continue in full force and effect as if the Contract had been executed without the invalid, illegal, or unenforceable provision.

24.2        If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

25           Waiver

No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

26           Compliance with law

The parties shall comply with all applicable laws and shall maintain such authorisations and approvals as required from time to time to perform its obligations under or in connection with this Agreement.

27           Third party rights

A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.

28           Authority

Each party represents and warrants to the other that it has the right, power and authority to enter into this Agreement and grant to the other the rights (if any) contemplated in the Agreement and to perform its obligations under this Agreement.

29           Governing law and jurisdiction

29.1        This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

29.2        The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).

CUSTOMER HEREBY CONFIRMS FULL ACCEPTANCE OF THESE TERMS AND CONDITIONS