TERMS OF USE OF WEBSITE / PLATFORMS

1. Using the Website / platforms

1. 1. By using the Platforms you confirm that you accept the Legal Terms (and any other operating rules and policies that we publish from time to time) unconditionally. 
2. 2. If you are an Accredited Test Centre (“ATC”), the terms of the ATC Agreement will apply in addition to these terms and, if there is any overlap or ambiguity between the ATC Agreement and the Legal Terms the ATC Agreement will take precedence.
3. 3. By accepting the Legal Terms (when you first register to use the Platforms and also again each time you subsequently use the Platforms or submit a request for a Certification Resource), you confirm that:

1. 1. 1. you are authorised to act for and on behalf of the ATC in whose respect we have set up your ATC Account; and
      2. the person accepting the Legal Terms is the ATC’s authorised representative with the requisite authority to bind you in respect of the Legal Terms and submit any requests on your behalf; and
      3. you agree to be legally bound by the Legal Terms in all respects; and
      4. your ATC Agreement is valid and subsisting.

1. 4. If you do not agree to the Legal Terms, do not access or use the Platforms or submit a request to avail of the Certification Resources.

2. changes to the Legal Terms

1. 1. We may update the Legal Terms (including the Certification Resource Specifications and/or Supplemental Terms or any of our operating rules and policies or introduce new policies and rules that relates to the Legal Terms) at any time by publishing a revised version on or through the Platforms.  Your continued access and use of the Administration Platform and/or the Online Platform after the stated effective date (even if you originally availed of a Certification Resource before that effective date) constitutes your acceptance of the relevant revised document with respect to access and use of the Administration Platform and the Online Platform after that effective date;
2. 2. If you do not agree to any changes or updates we make to the Legal Terms in accordance with the Legal Terms, you should immediately, do not continue to:

1. 1. 1. access or use the Administration Platform and/or the Online Platform;
      2. access, use or avail of our Online Certification Resources; and/or
      3. submit requests for Offline Certification Resources;

as appropriate, after the effective date of any such change or update.  

3. Right to Use Platforms

1. 1. We grant you, subject to the Legal Terms, a non-exclusive, non-transferable, limited, revocable right to, as applicable, use the Administration Platform and/or the Online Platform only for so long as your ATC Agreement is subsisting and only for the purposes contemplated by the Legal Terms but only for use in connection with the Certification Programmes.
2. 2. The rights granted are granted to you only, and not to any of your subsidiaries, affiliates or parent companies or anyone else.  These rights are personal to you and cannot be assigned, delegated, transferred or novated.
3. 3. You acknowledge that, where we consider there to be a good reason to do so (including but not limited to, for reasons of inactivity), we may restrict (on a temporary or permanent basis) access to the Platforms to you and/or some or all of your Candidates.  We may require your cooperation from time to time to restrict specific Candidates’ access.
4. 4. We retain the right to disable or delete Candidate Accounts where we consider there to be good reason to do so. You shall, upon our request, immediately restrict specific Candidate access to Candidate Accounts.
5. 5. You are responsible for the way in which you, your employees, agents, contractors, representatives and your Candidates access and use the Platforms and Certification Resources

4. Your atc Account

1. 1. You are responsible for all use of your ATC Account and for maintaining the security of your ATC Account and the confidentiality and security of the password and username for your ATC Account.  You shall notify us immediately if you know or suspect your ATC Account has been accessed by an unauthorised third party.
2. 2. You are responsible for anything that is done through your ATC Account, even if it is done by someone else.  We can and do rely on your ATC Account settings, and instructions made through that ATC Account, as coming from you or being made on your behalf.
3. 3. We may terminate or suspend your ATC Account if, in our opinion, you have failed to comply with the Legal Terms or for periods of inactivity. Where we suspend your ATC Account, you must write to us to request the suspension to be lifted. Upon such request, we may request reasons for your failure to comply with these terms or for any periods of inactivity. If we are satisfied with the reasons provided by you, we may revoke the suspension.
4. 4. You, and in some cases, your Candidates, (but in all cases, not us) are responsible for ensuring that you or they (as appropriate) have sufficient equipment, Internet access and bandwidth to properly access and use the Platforms. The responsibility will be evident from the Certification Resource Specification and/or the Supplemental Terms.
5. 5. You acknowledge that we may from time to time change, suspend access to, replace or discontinue features or any other aspects of the Platforms.  We can also, at any time (i) change, replace, suspend or discontinue the Platforms (or any of their features) and/or (ii) cease making the Platforms (or some of their features) available for use by anyone at all or just in particular countries or territories and/or during particular times. 
6. 6. You must have access to the internet or other network in order to access, install and use the Platforms. It is your responsibility to select, obtain and pay for internet and network access (including excess charges if you exceed any data caps) and any equipment, internet access and/or services necessary for such internet access and to comply with the terms and conditions of the relevant service providers.
7. 7. You acknowledge that the quality and speed of access to the Platforms and Online Certification Resources will be impacted by the quality and bandwidth of your internet or network service. We are not responsible in any respect for the failure of such services.
8. 8. Our privacy policy, as set out in the ATC Manual, sets out how we collect, generate and handle personal data.  You agree to our privacy policy when you agree to the Legal Terms.
9. 9. If we process any personal data relating to your Candidates (“Candidate Data”) on your behalf and you are a data controller established in your jurisdiction:

1. 1. 1. you agree that you are the data controller and we are the data processor in respect of the Candidate Data:
      2. you shall ensure that you are entitled to, and have full consent to, transfer relevant Candidate Data to us, for the purpose for which it has been provided, and that we may store and process it in accordance with the Legal Terms and our privacy policy;
      3. you agree that the Legal Terms contain your final and exhaustive instructions in relation to the processing of the Candidate Data and we shall use reasonable commercial endeavours to comply with those instructions; and
      4. we shall, and you shall, take appropriate technical and organisational measures against unauthorised or unlawful processing, loss, destruction or damage of the Candidate Data; and
      5. you agree that the Candidate Data may be transferred and stored outside your jurisdiction but only for the purpose for which it has been provided.

1. 10. You agree that the processing of any Candidate Data in accordance with the Legal Terms and our privacy policy, as set out in the ATC Manual, is undertaken in accordance with your instructions.
2. 11. The terms “personal data”, “data processor”, “process” and “data controller” in this section have the meaning given to them in the European Union General Data Protection Regulation (EU “GDPR”) and the Data Protection Act 2018.

5. Acceptable Use OF WEBSITE / PLATFORMS

1. 1. You shall not, and you shall ensure that any Candidates do not:

1. 1. 1. infringe the terms of any applicable Online Certification Resource Licence;
      2. infringe any laws when accessing or using the Platforms or the Certification Resources;
      3. introduce viruses, worms, malware, spyware, Trojan horses or other harmful or malicious code to the Platforms or the Certification Resources;
      4. exceed any maximum storage, posting, uploading or usage data restrictions in respect of the Platforms or the Certification Resources;
      5. do anything which may negatively impact upon the Platforms or Certification Resources IT system or environment or availability of the Platforms or Certification Resources;
      6. attempt to duplicate, modify, sub-licence (except as permitted in section 3 above (Right to Use Platforms) and section 2 of Terms of Use of Certification Resources (sub-licence to a Candidate), copy, adapt, distribute, market, lease, create derivative works from or reallocate the Platforms or Certification Resources (or any part of them including any of the software in or accessible through them);
      7. access and use the Platforms or Certification Resources in order to build a Certification Resource or service which competes with the Platform, Certification Resources or Certification Programme;
      8. attempt to reverse compile, decompile, disassemble, reverse engineer or otherwise endeavour to reduce to human-perceivable form any of the Platforms or Certification Resources (including any of the software in or accessible through them) or to discover or disclose the source code, methods and  concepts embodied in the Platforms or Certification Resources (including any of the software in or accessible through them) except as may be allowed by any applicable law which is incapable of exclusion by agreement;
      9. alter, obscure, remove, conceal or otherwise interfere with any eye-readable or machine-readable marking on or in the Platforms or Certification Resources which refers to us or the Owner or includes any of our or the Owner’s trademarks or logos;
      10. use the Platforms or Certification Resources for the purposes of direct marketing or promotion aside from normal communications with Candidates in respect of the Certification Programme;
      11. suggest that we endorse or support any training or other course you are running, except this does not prevent you from identifying yourself as an ATC or that Certification Resources are approved by us;
      12. circumvent or manipulate any of the restrictions or security-related features within the Platforms or Certification Resources;
      13. engage in any deceptive, unfair or misleading practices;
      14. use the Platforms for unlawful purposes;
      15. use the Platforms or Certification Resources in a way that may lead to the encouragement or carrying out of any criminal activity;
      16. not access or attempt to access the accounts of other ATCs or any other users; and/or
      17. use the Platforms or Certification Resources in a way that breaches any applicable law.

1. 2. You shall use all reasonable endeavours to prevent any unauthorised access to or use of the Platforms and Certification Resources and, in the event of any such unauthorised access or use, shall promptly notify us.
2. 3. You shall comply with all applicable laws, regulations, rules and codes with respect to your activities connected in any way to your use or exploitation of the Platform or Certification Resources.

6. Liability

1. 1. We only make available the Platforms and Certification Resources to you solely for use in your capacity as an ATC and to the extent necessary to fulfil your role as such.
2. 2. The Certification Resources shall conform to their Certification Resource Specification in all material respects and we shall make available the Platforms with commercially reasonable skill and care.
3. 3. Nothing in this Agreement excludes or limits the liability of either party for:

1. 1. 1. fraud or fraudulent misrepresentation;
      2. death or personal injury caused by its negligence or that of its employees or agents;
      3. any other liability which cannot be subject to any limitation or exclusion by law.

1. 4. Subject to clause 13.3, 13.5 and 13.6, we are responsible for any direct losses you suffer as a result of our breach of the Legal Terms provided those direct losses were reasonably foreseeable to both you and us when you commenced using the Platforms or, as applicable, requested the relevant Certification Resources.  We have no other liability or responsibility to you or your Candidates.
2. 5. Despite clause 13.4, our total liability to you under or in connection with the Legal Terms, the Platforms, Certification Resources, and/or Licences shall in no case exceed:

1. 1. 1. in respect of a particular Certification Resource, the Fees paid by you to us in respect of that Certification Resource;
      2. in respect of any event or series of connected events, the Fees paid to us by you in the previous three (3) months;
      3. in aggregate in a calendar year (and all requests submitted through the Online Platform in that year), all Fees paid to you by us in that year.

1. 6. Despite clause 13.4, we are not liable or responsible to you or your Candidates for:

1. 1. 1. loss of profits or revenue;
      2. loss of business or business opportunity;
      3. loss of anticipated savings or wasted management time;
      4. depletion of goodwill or reputation;
      5. loss, theft or deletion of, or corruption or damage to, any data;
      6. liability under third party contracts (including any sub-licences you grant to Candidates); and/or
      7. any special, indirect or consequential loss or damage,

however arising, even if we have been advised of the possibility of them in advance.

1. 7. We generally use commercially reasonable efforts to check for the most commonly known viruses, but there is no guarantee that the Platforms or Certification Resources (including any software in them or accessible through them) are free from viruses or other harmful code and their presence does not constitute a breach of the Legal Terms.
2. 8. We use our reasonable endeavours to keep the Platforms and Certification Resources available. However, we don’t guarantee this.
3. 9. We do not guarantee that the Platforms or Certification Resources (including software in them) will be fault-free, bug-free, error-free, available 100% of the time, free of degradation or free of other problems.  If at any time any one or both of the Platforms or Certification Resources are adversely affected or unavailable, then unless that is caused due to our gross negligence, it will not be a breach of our agreement with you.  You agree that, subject to clause 13.2, the Platforms and Certification Resources are provided “as is” and “as available”.  We do not guarantee that we are able to rectify all errors, faults or bugs.
4. 10. To the fullest extent permitted by applicable law, all terms, conditions, warranties and representations that are not expressly set out in the Legal Terms are excluded by us (including any implied terms, whether by statute, equity, common law, course of trade or dealing or otherwise) including any as to merchantability, fitness for purpose, non-infringement, security, the level of skill and care to be applied by us and any others whatever. You acknowledge that you are dealing with us as a business and not as a consumer.
5. 11. You shall, indemnify, keep indemnified and hold harmless us and the Owner from and against any claims, demands, fines, damages, losses, liabilities, awards and/or expenses suffered and/or incurred or agreed to be paid out by us and/or the Owner arising out of or in connection with your use, or the use by your Candidates, of the Platforms or Certification Resources in breach of the Legal Terms.
6. 12. Subject to clauses 13.4 and 13.14, we shall indemnify you against any final award by a court of competent jurisdiction or any settlement we agree to in respect of a claim that the Platform or Certification Resources infringes any patent effective as of the initial date of your subscription, copyright, trade mark or database right (“IP Claim”), provided that:

1. 1. 1. you give us prompt notice of any such claim;
      2. you do not make any admission, settlement or compromise regarding the claim;
      3. you co-operate with, and assist, us in the defence and settlement of such claim; and
      4. you, upon request, give us sole authority to defend or settle the claim.

1. 13. In the defence or settlement of any IP Claim, we may procure the right for you to continue using the one or both of the Platforms or Certification Resources or replace or modify the one or both of the Platforms or Certification Resources so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement on 30 days' notice to you without any additional liability or obligation to pay damages or other additional costs to you.
2. 14. In no case are we liable to you under clause 13.12 or otherwise to the extent that an IP Claim or other claim is based on or arises from:

1. 1. 1. a modification of the one or both of the Platforms or Certification Resources (including software or documentation) by anyone other than us; or
      2. your or a Candidate’s use of one or both of the Platforms or Certification Resources (including software or documentation) in a manner contrary to the instructions given to you by us or in breach of the Legal Terms; or
      3. your or a Candidate’s use of one or both of the Platforms or Certification Resources (including software or documentation) after notice of the alleged or actual infringement from us or any appropriate authority.

1. 15. Clause 13.12 states your sole and exclusive rights and remedies, and our entire obligations, responsibility and liability, for infringement of any patent, copyright, trade mark or database right or other Intellectual Property right.
2. 16. This clause 13 survives the termination or expiration of the Legal Terms and any related agreement.
3. 17. We have no liability to you under this agreement if we are prevented, hindered or delayed in performing our obligations, or from carrying out our business, by acts, events, omissions or accidents beyond our reasonable control including strikes, lock-outs or other industrial disputes (including with respect to our staff), failure of a utility service, Internet access or transport or public or private electronic communications networks, act of God, war (whether declared or not) or threat or preparation for war, riot, civil commotion, invasion, terrorist attack, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of equipment, fire, flood storm, earthquake, subsidence, epidemic or other natural disaster or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport or default of suppliers or subcontractors.

End.