Service Terms
Below you will find the Thomas International terms of use. These include specific terms and conditions relating to the Solutions you've purchased, detailed on your Order.
Service Module 1: Platform Licence Terms
Service Module 2: Unit Purchases
Service Module 3: Subscriptions
Service Module 4: Training
Service Module 4
Version: 2.0
Version date: 30/08/2019
Thomas and the Account Holder have entered into master terms and conditions for the provision to the Account Holder of certain solutions (the "Master Agreement").
Pursuant to this Master Agreement, the Account Holder is entering into an Order for the purchase of specific Solutions, in respect of which these Service Module terms and conditions (the "Service Module Terms") shall apply.
These Service Module Terms shall apply to the provision by Thomas of Training Services (as defined below) to the Account Holder. These Service Module Terms amend the terms of the Master Agreement, except that in the event of any conflict, ambiguity or inconsistency between the Order and these Service Module Terms, the terms of the applicable Order shall take precedence accordingly.
1. DEFINITIONS
1.1 Any reference to capitalised terms in these Service Module Terms will have the meaning given to them in the Master Agreement unless otherwise defined below.
"Bespoke Training Course" has the meaning set out in clause 2.6.1;
"Complementary Training Services" means Training Services which are provided to the Account Holder on a complementary basis, at Thomas' sole discretion;
"Delegate Lists" has the meaning set out in clause 3.1;
"Delegates" means the individuals who are due to attend a Training Event, and "Delegate" shall be interpreted accordingly;
"In-House Training Course" has the meaning set out in clause 2.5;
"In-House Transfer Fee" has the meaning set out in clause 4.2.2;
"Licensed Training Services" means Training Services which are provided to the Account Holder as a part of a Platform Licence and in accordance with Service Module 1 (Platform Licence Terms);
"Log-In Details" has the meaning set out in clause 2.7.1.1;
"Online Training Course" has the meaning set out in clause 2.7.1;
"Public Training Course" has the meaning set out in clause 2.4.1;
"Public Transfer Fee" has the meaning set out in clause 4.1.2;
"Standalone Training Services" means Training Services which are provided to the Account Holder on a standalone basis and which are not:
(a) Complementary Training Services or
(b) provided as a part of any Licensed Training Services or any Subscription Training Services;
"Subscription Training Services" means Training Services which are provided to the Account Holder as a part of a Subscription and in accordance with Service Module 3 (Online Services - Subscription Terms);
"Training Course" means a course organised by Thomas to provide Training Services and which shall include In-House Training Courses, Public Training Courses, Bespoke Training Courses and Online Training Courses;
"Training Services" means any training provided by Thomas to the Account Holder in respect of any Solution(s) and which shall include the provision by Thomas of any Training Course;
"Training Services Documentation" has the meaning set out in clause 3.2; and
"Validity Period" has the meaning set out in clause 2.7.1.2.
2. TRAINING SERVICES
2.1 In addition to the disclaimers set out in clause 13.2 (Disclaimers) of the Master Agreement, and except to the extent prohibited by law, or to the extent any statutory rights apply and cannot be excluded, limited or waived, Thomas and its licensors disclaim all warranties:
2.1.1 that the Training Services Documentation are accurate and/or up to date;
2.1.2 that the Training Services will cover any or all of the specific points referred to in its advertising or promotional literature, or that such literature will always be accurate and/or up to date; and
2.1.3 in respect of any offers provided to the Account Holder.
2.2 Where Thomas names speakers for a particular Training Course, it will use reasonable endeavours to ensure that such speakers appear at such Training Course but Thomas reserves the right to make speaker substitutions from time to time with other speakers of comparable quality.
2.3 Where Thomas agrees with the Account Holder to arrange catering for a Training Course, the Account Holder must inform Thomas in writing if any Delegate(s) for the Training Course have any specific dietary requirements. If the Account Holder does not provide details of such dietary requirements, Thomas may be unable to provide catering for the affected Delegate(s).
2.4 Public Training Courses
2.4.1 As a part of the Training Services, Thomas may provide the Account Holder with training courses which are provided at a venue chosen by Thomas (and which may not be an Account Holder premises) (each, a "Public Training Course").
2.4.2 Public Training Courses are non-residential courses and do not include overnight accommodation, but will include a midday meal and hot drinks as appropriate.
2.4.3 In respect of Public Training Courses, Thomas:
2.4.3.1 shall use reasonable endeavours to ensure that any location chosen for a Public Training Course is suitably accessible, provided that the Account Holder shall provide Thomas with at least two (2) weeks' written notice of any special needs relating to accessibility for any Delegate(s) due to attend a Public Training Course, and provided that the Account Holder shall be liable to incur the cost of any resources required to cater for such special needs where these are not itemised in the applicable Order Form for such Public Training Course; and
2.4.3.2 may (at its sole discretion) change the location of a Public Training Course, provided that Thomas provides as much notice as is reasonably practicable and provided that Thomas uses reasonable endeavours to ensure that the new location is of a similar or better standard to the original location and which is within a reasonable distance of the original location.
2.5 In-House Training Courses
2.5.1 As a part of the Training Services, Thomas may provide the Account Holder with training services which are provided in-house at an Account Holder premises (each, an "In-House Training Course").
2.5.2 In respect of In-House Training Courses:
2.5.2.1 the Account Holder shall source a location for an In-House Training Course, which shall be notified to and agreed by Thomas at least fourteen (14) days prior to the applicable In-House Training Course. If the Account Holder wishes to change a previously agreed location, Thomas may at its option:
(a) cancel the In-House Training Course without any liability to the Account Holder; or
(b) charge additional expenses reasonably incurred as a result of such change.
Where Thomas exercises its right to cancel an In-House Training Course in accordance with clause 2.5.2.1(a) above, and without prejudice to any other rights or remedies that Thomas may have, the Account Holder is liable to pay any of Thomas' out-of-pocket expenses which it cannot recover as a result of such cancellation; and
2.5.2.2 unless otherwise agreed in writing, the Account Holder is responsible for ensuring that the location for the In-House Training Course is suitable (which shall, unless advised otherwise by Thomas be a u-shape or boardroom layout room), and will arrange:
(a) appropriate refreshments and meals for Delegates and speaker(s); and
(b) all required equipment to provide the Training Services, including (unless advised otherwise by Thomas) an LCD screen or a video data projector with a freestanding screen, a flipchart with stand and pens.
2.5.3 Unless agreed otherwise between the parties and subject to clause 2.5.4, at least fourteen (14) days prior to an In-House Training Course, the Account Holder shall provide to Thomas a list of Delegates who will be attending the In-House Training Course, including full name, role within the company, gender and email address.
2.5.4 Thomas may (at its sole discretion):
2.5.4.1 limit numbers of Delegates who are authorised to attend an In-House Training Course; and/or
2.5.4.2 permit additional Delegates to attend an In-House Training Course on the day of the In-House Training Course, in which case Thomas shall invoice the Account Holder for any such additional Delegates on a proportionate basis.
2.5.5 The Account Holder is permitted to make substitutions of Delegates at In-House Training Courses at any time without additional charge, provided that the Account Holder acknowledges and agrees that:
2.5.5.1 Thomas may not be able to cater for specific dietary requirements of such substituted Delegates if Thomas has been provided with less than two (2) weeks' prior notice of such substitution; and
2.5.5.2 some In-House Training Courses require attendance at previous Training Events and substitutions are not permitted where the substituted Delegate has not attended such previous Training Course.
2.6 Bespoke Training Courses
2.6.1 As part of the Training Services, Thomas may provide the Account Holder with bespoke training courses (each, a "Bespoke Training Course"), whereby Thomas (or third parties on Thomas' behalf) agree to tailor the training to the requirements of the Account Holder as further set out in the relevant Order).
2.7 Online Training Courses
2.7.1 Subject to clause 2.7.2, and provided the Account Holder has the benefit of a valid Platform Licence and access to the Thomas Platform pursuant to Service Module 1 (Platform Licence Terms), as a part of the Training Services, Thomas may provide the Account Holder with access to online training courses (each, an "Online Training Course"), and whereby:
2.7.1.1 Thomas will provide log-in details to the Account Holder’s nominated Platform User for access to the Online Training Course it has purchased ("Log-In Details");>
2.7.1.2 the Log-In Details will be valid for six (6) months from the date of order("Validity Period"), during which time the Account Holder’s nominated Platform User may have one attempt at completing the relevant Online Training Course;
2.7.1.3 unless otherwise agreed in the relevant Order, the Log-In Details shall expire at the end of the Validity Period whether or not the Online Training Course has been completed or not;
2.7.1.4 except as set out in clause 2.7.1.6, an Online Training Course has no monetary value, is not redeemable on non-use, is not refundable or exchangeable in whole or in part and is not transferable to third parties;
2.7.1.5 the Account Holder shall procure that the relevant Platform User shall not share the Log-In Details to any third party (including to other Platform Users) and shall keep the Log-In Details secure and confidential at all times;
2.7.1.6 the Account Holder may at any time during the Validity Period, nominate an alternative Platform User to access the Online Training Course provided always that:
(a) the Online Training Course has not previously been accessed or completed;
(b) as soon as the Online Training Course has been started, the Account Holder shall not be entitled to nominate any other Platform User to take that same Online Training Course; and
(c) the Account Holder informs Thomas that a new Platform User needs to be nominated to utilise the Online Training Course so that Thomas may arrange for alternative Log-In Details to be provided.
2.7.2 For the avoidance of doubt, any Account Holder without a current Platform Licence may not access any Online Training Course(s).
3. TRAINING MATERIALS
3.1 Without prejudice to clauses 10 (Intellectual Property Rights), 5 (Licence Grant) and 8 (Data Protection) of the Master Agreement, in respect of any Delegate lists that Thomas may provide to the Account Holder with regard to any Training Courses ("Delegate Lists"), the Account Holder:
3.1.1 shall not copy such Delegate Lists or use such Delegate Lists other than for the Permitted Purpose;
3.1.2 shall not enter the data comprised in such Delegate Lists onto a computer system; and
3.1.3 acknowledges that Thomas may not have Delegate consent to disclose Delegate details to the Account Holder for marketing purposes and so the Account Holder shall not use or store such Delegate details for this purpose or for any other purpose (other than for the Permitted Purpose as may be set out in the Order Form).
3.2 Without prejudice to clauses 10 (Intellectual Property Rights), 5 (Licence Grant) and 8 (Data Protection) of the Master Agreement, in respect of any books and all other materials supplied by Thomas in connection with the Training Services ("Training Services Documentation") the Account Holder shall not copy any such Training Services Documentation for any purpose without the express prior written permission from the copyright owner of such Training Services Documentation.
4. TRANSFERS AND CHANGES
4.1 Public Training Courses
4.1.1 The Account Holder can transfer a Delegate from one Public Training Course to another Public Training Course date without additional charge, provided that:
4.1.1.1 there is sufficient space on the replacement Public Training Course;
4.1.1.2 no previous similar requests have been made in respect of the particular Delegate; and
4.1.1.3 the request is made more than thirty (30) days prior to the date of both the originally booked Public Training Course and the replacement Public Training Course.
4.1.2 Where the Account Holder makes a request to transfer a Delegate from one Public Training Course to another Public Training Course which is not permitted by clause 4.1.1, the following transfer fee(s) shall apply:
4.1.2.1 transfer fee for one day course: £150 plus VAT per Delegate; and
4.1.2.2 transfer fee for two day course: £200 plus VAT per Delegate,
(each, a "Public Transfer Fee").
4.2 In House Training Courses
4.2.1 The Account Holder can change the date of an In-House Training Course without additional charge, provided that the request is made more than thirty (30) days prior to the date of both the originally booked In-House Training Course and the replacement In-House Training Course.
4.2.2 Where the Account Holder makes a request to change the date of an In-House Training Course which is not permitted by clause 4.2.1, the following transfer fee(s) shall apply:
4.2.2.1 transfer fee for one day course: £500 +VAT; and
4.2.2.2 transfer fee for two day course: £750 + VAT,
(each, an "In-House Transfer Fee").
4.3 For the avoidance of doubt, unless and to the extent permitted by this clause 4 or otherwise agreed by Thomas, if fewer than the agreed number of Delegates attend any Training Course:
4.3.1 relating to Standalone Training Services, there will be no reduction in the Fee payable by the Account Holder;
4.3.2 relating to any other Training Services (including Licensed Training Services, Subscription Training Services or Complementary Training Services), the Account Holder will be liable to pay to Thomas:
4.3.2.1 where the Training Course is a Public Training Course, the entire Fee per Delegate that fails to attend; or
4.3.2.2 where the Training Course is an In-House Training Course, the entire relevant Fee for such failure to attend.
5. TERMINATION AND CANCELLATION
5.1 Without prejudice to either party's rights under clause 18.2 (Termination) of the Master Agreement, Thomas may terminate these Service Module Terms and any Order for Training Services at any time (including any Training Course), provided that Thomas shall:
5.1.1 provide as much notice to the Account Holder as is reasonably possible in the circumstances;
5.1.2 refund any Fees paid in advance by the Account Holder in respect of such Training Services; and
5.1.3 use reasonable endeavours to provide details of similar training courses that Thomas is due to hold to the Account Holder.
5.2 For the avoidance of doubt, except as may be permitted under clause 16.2 (Termination) of the Master Agreement and clauses 5.3 and 5.4 of these Service Module Terms, the Account Holder is not permitted to terminate these Service Module Terms or any Order for Training Services, or to cancel any Order for Training Services (including any Training Course). In the event that any Delegate fails to attend a Training Course, the Account Holder will remain liable to pay the full Fee pertaining to such Training Course in respect of such Delegate.
5.3 If the Account Holder cancels an Order for Standalone Training Services (but excluding any Online Training Courses), the following cancellation fees shall apply, depending on the number of days prior to the applicable Training Course that Thomas receives notice of such cancellation, as set out in the table below.
| Days prior to the Training Course | Cancellation Fee |
| 14 days or less | 100% of the total Fee |
| More than 14 and less than or equal to 30 days | 50% of the total Fee |
For the avoidance of doubt, the Account Holder is permitted to cancel an Order for Standalone Training Services (but excluding any Online Training Courses) at no charge, where the cancellation is notified to Thomas more than thirty (30) days prior to the start date of the applicable Training Course.
5.4 The Account Holder can cancel an Order for Licensed Training Services, Subscription Training Services or Complementary Training Services (but excluding any Online Training Courses) upon at least thirty (30) days' notice prior to the date of the applicable Training Course. If the Account Holder cancels an Order for Licensed Training Services, Subscription Training Services or Complementary Training Services within thirty (30) days' of the date of the applicable Training Course, the Account Holder will be liable to pay to Thomas:
5.4.1 where the Training Course is a Public Training Course, the Public Transfer Fee for cancellation of each relevant Order for Licensed Training Services, Subscription Training Services and/or Complementary Training Services (as may be applicable); or
5.4.2 where the Training Course is an In-House Training Course, the In-House Transfer Fee for cancellation of each relevant Order for Licensed Training Services, Subscription Training Services and/or Complementary Training Services (as may be applicable).
5.5 For the avoidance of doubt, the Account Holder is not permitted under any circumstances to cancel an Order for Training Services relating to an Online Training Course.
6. FEES
6.1 Unless and to the extent otherwise set out in an Order, the Fees for the Training Services shall be calculated as follows:
6.1.1 the Fees for each Training Course provided as part of Licensed Training Services shall be included within the applicable Platform Licence Fee;
6.1.2 the Fees for each Training Course provided as part of Subscription Training Services shall be included within the applicable Subscription Fee; and
6.1.3 the Fees for each Training Course provided as part of Standalone Training Services shall be charged as a fixed fee per Training Course in accordance with Thomas' price list as at the date of the Order, except where any such Standalone Training Services are also Complementary Training Services, which will be provided to the Account Holder free of charge.
6.2 Clause 7.3 (Fees and Payment) of the Master Agreement shall not apply in respect of Standalone Training Services and invoiced Fees for any such Standalone Training Services shall be due at any time prior to the date of the relevant Training Course to which they apply (the "due date").
Service Module 5: Consultancy - Including CDC projects and workshops
Service Module 5
Version: 1.0
Version date: 2nd July 2019
Thomas and the Account Holder have entered into master terms and conditions for the provision to the Account Holder of certain solutions (the "Master Agreement").
Pursuant to this Master Agreement, the Account Holder is entering into an Order for the purchase of specific Solutions, in respect of which these Service Module terms and conditions (the "Service Module Terms") shall apply.
These Service Module Terms shall apply to the provision by Thomas of Consultancy Services (as defined below) to the Account Holder. These Service Module Terms amend the terms of the Master Agreement, except that in the event of any conflict, ambiguity or inconsistency between the Order and these Service Module Terms, the terms of the applicable Order shall take precedence accordingly.
1. DEFINITIONS
1.1 Any reference to capitalised terms in these Service Module Terms will have the meaning given to them in the Master Agreement unless otherwise defined below.
"Consultancy Services" means any consultancy services provided by Thomas to the Account Holder in respect of any Thomas Solution(s);
"Pre-Paid Consultancy Services" means Consultancy Services which are provided to the Account Holder as a part of: (i) a Platform Licence in accordance with Service Module 1 (Platform Licence Terms); or (ii) a Subscription in accordance with Service Module 3 (Online Services – Subscription Terms);
"Project" has the meaning set out in clause 2.1;
"Service Request" means a written request made by the Account Holder for Thomas to provide Consultancy Services in accordance with these Service Module Terms; and
"Standalone Consultancy Services" means Consultancy Services which are provided to the Account Holder on a standalone basis and not as a part of a Platform Licence or a Subscription.
2. CONSULTANCY SERVICES
2.1 Where the Account Holder issues Thomas with a Service Request, the parties shall, within a reasonable period of time and in any event within ten (10) days of receipt by Thomas of the Service Request, agree in writing and in reasonable detail, the scope of the Consultancy Services to be provided by Thomas to the Account Holder and which shall be further set out in the applicable Order (each, a "Project").
2.2 Thomas shall use reasonable endeavours to:
2.2.1 provide Consultancy Services in accordance with the Service Request and Project to which they relate; and
2.2.2 deliver a Project in accordance with any identified Project specifications and outcomes as set out in the Order, provided that time shall not be of the essence in respect of the delivery of any Project.
2.3 The Account Holder shall:
2.3.1 provide Thomas with all necessary co-operation;
2.3.2 provide Thomas with all necessary access to such information, documentation and other material as may be reasonably required by Thomas, including any Content and security access information; and
2.3.3 comply with all reasonable instructions (whether written or verbal) given by Thomas to the Account Holder and carry out all other Account Holder responsibilities set out in the Master Agreement, these Service Module Terms and/or any Order,
in relation to the provision of the Consultancy Services and the delivery of a Project.
2.4 Without prejudice to clause 15 (Limitation of Liability) of the Master Agreement, Thomas shall not be liable in any circumstances for any failure to provide the Consultancy Services or to deliver a Project (including any failure to meet a Project deadline) where such failure arises directly or indirectly out of the Account Holder's failure (whether by act or inaction) to comply with clause 2.3.
3. TERMINATION AND CANCELLATION
3.1 For the avoidance of doubt, except as may be permitted under clause 16.2 (Termination) of the Master Agreement and clauses 3.2 and 3.4 of these Service Module Terms, the Account Holder is not permitted to terminate these Service Module Terms or any Order for Consultancy Services (including any Project).
3.2 The Account Holder can cancel an Order for Consultancy Services, including any Project, (whether such Consultancy Services are Prepaid Consultancy Services or Standalone Consultancy Services) upon at least thirty (30) days' notice prior to the start date of the applicable Consultancy Services and/or Project.
3.3 If the Account Holder cancels an Order for Standalone Consultancy Services (including any Project):
3.3.1 within fourteen (14) days of the start date of the applicable Consultancy Services and/or Project, the Account Holder will remain liable to pay to Thomas the full Fees pertaining to the Order for such Consultancy Services and/or Project; and
3.3.2 more than fourteen (14) days and less than thirty (30) days prior to the start date of the applicable Consultancy Services and/or Project, the Account Holder will be liable to pay to Thomas fifty percent (50%) of the full Fees pertaining to the Order for such Consultancy Services and/or Project.
3.4 If the Account Holder cancels an Order for Pre-Paid Consultancy Services within thirty (30) days of the start date of the applicable Consultancy Services and/or Project, the Account Holder will be liable to pay to Thomas a four hundred pound (£400) cancellation fee for cancellation of each relevant Project which forms a part of the cancelled Pre-Paid Consultancy Services.
4. FEES
4.1 The Fees for the Consultancy Services shall be calculated on a per Project basis using a day or half day rate (as may be applicable in the circumstances), in accordance with Thomas' price list as at the date of the relevant Order and as further set out in the applicable Order.
4.2 In addition to the Fees set out in clause 4.1, and unless agreed otherwise in writing between the parties, the Account Holder shall pay all reasonable expenses properly and reasonably incurred by Thomas in the course of the provision of the Consultancy Services and/or the delivery of a Project (including but not limited to travel and accommodation), subject to the production of receipts or other appropriate evidence of payment.
Service Module 6: Managed Services - Including Bureau, Engage and 360 Elite
Service Module 6
Version: 1.0
Version date: 2nd July 2019
Thomas and the Account Holder have entered into master terms and conditions for the provision to the Account Holder of certain solutions (the "Master Agreement").
Pursuant to this Master Agreement, the Account Holder is entering into an Order for the purchase of specific Solutions, in respect of which these Service Module terms and conditions (the "Service Module Terms") shall apply.
These Service Module Terms shall apply to the provision by Thomas of Managed Services (as defined below) to the Account Holder. These Service Module Terms amend the terms of the Master Agreement, except that in the event of any conflict, ambiguity or inconsistency between the Order and these Service Module Terms, the terms of the applicable Order shall take precedence accordingly.
1. DEFINITIONS
1.1 Any reference to capitalised terms in these Service Module Terms will have the meaning given to them in the Master Agreement unless otherwise defined below.
"Bureau" has the meaning given to it in clause 2.1.1.3;
"Bureau Assessment" means an Assessment which is undertaken by a Candidate using the Bureau service;
"Bureau Validity" Period has the meaning set out in clause 3.2
"Bureau Voucher" has the meaning set out in clause 3.1;
"Managed Project" has the meaning set out in clause 2.2.1;
"Managed Services" has the meaning set out in clause 2.1.1; and
"Managed Services Request" means a written request made by the Account Holder for Thomas to provide Managed Services in accordance with these Service Module Terms.
2. MANAGED SERVICES
2.1 Service Description
2.1.1 Thomas shall provide managed services to the Account Holder in accordance with these Service Module Terms and in order to provide end-to-end management of other Solution(s) on the Account Holder's behalf and whereby such managed services include the Thomas services known as;
2.1.1.1 "360-Elite", a service which provides individual competency-based development assessments;
2.1.1.2 "Engage", a service which establishes organisational engagement levels and actions for improvement; and
2.1.1.3 "Bureau", a service which provides the Account Holder with individual end-to-end Assessment profiling for recruitment and development purposes,
(the "Managed Services").
2.2 Order Process
2.2.1 Where the Account Holder issues Thomas with a Managed Services Request, the parties shall, within a reasonable period of time and in any event within seven (7) days of receipt by Thomas of the Managed Services Request, agree in writing and in reasonable detail, the scope of the Managed Services, which shall be further set out in the relevant Order (each, a "Managed Project").
2.2.2 For the purposes of these Service Module Terms, the Order Commencement Date in respect of any Order for Managed Services shall be the earlier of:
2.2.2.1 the date on which the Account Holder notifies to Thomas (whether via an online click-through, a telephone order or any other channel used by Thomas) that it wishes to order Assessment(s) via the use of the Managed Services;
2.2.2.2 the date specified as such in any applicable Order Form relating to the Order;
2.2.2.3 the date of the second party's signature or acceptance of any applicable Order Form relating to the Order; or
2.2.2.4 where no Order Form applies to a particular Order, the date of the second party's acceptance of the terms relating to the applicable Order.
2.3 Thomas shall use reasonable endeavours to:
2.3.1 provide the Managed Services in accordance with the Managed Project to which they relate; and
2.3.2 successfully deliver the Managed Project in accordance with any identified timelines, provided that time shall not be of the essence.
2.4 The Account Holder shall:
2.4.1 provide Thomas with all necessary co-operation reasonably required;
2.4.2 provide Thomas with all necessary access to such information, documentation and other material as may be reasonably required by Thomas; and
2.4.3 comply with all reasonable instructions (whether written or verbal) given by Thomas to the Account Holder and carry out all other applicable Account Holder responsibilities set out in the Master Agreement, these Service Module Terms and/or any Order.
2.5 Without prejudice to clause 15 (Limitation of Liability) of the Master Agreement, Thomas shall not be liable in any circumstances for any failure to provide the Managed Services or to deliver a Managed Project (including any failure to meet a Managed Project deadline), where such failure arises directly or indirectly out of:
2.5.1 the Account Holder’s failure (whether by act or inaction) to comply with clause 2.3; and/or
2.5.2 any failure by a Candidate to respond to or complete an Assessment presented to them by Thomas as part of a Managed Project.
3. BUREAU SERVICE
3.1 In order to receive Bureau services, the Account Holder can purchase individual vouchers, whereby each such voucher will provide the Account Holder with Bureau services relating to a single Bureau Assessment to be taken by a single Candidate (each, a "Bureau Voucher")
3.2 Each Bureau Voucher will be valid for six (6) months from the Order Commencement Date (the "Bureau Validity Period").
3.3 Except as set out in clause 3.4, a Bureau Voucher has no monetary value, is not redeemable on non-use, is not refundable or exchangeable in whole or in part and is not transferable to third parties.
3.4 The Account Holder may at any time during the Bureau Validity Period, nominate an alternative Candidate to take a Bureau Assessment provided always that:
3.4.1 the Bureau Assessment has not previously been accessed or completed; and
3.4.2 as soon as the Bureau Assessment has been started, the Account Holder shall not be entitled to nominate any other Candidate.
4. TERMINATION AND CANCELLATION
4.1 Without prejudice to clause 16 (Term and Termination) of the Master Agreement, the Account Holder is not permitted to terminate or cancel these Service Module Terms and/or the relevant Order for Managed Services (including the Managed Services Project) at any point following the relevant Order Commencement Date.
5. FEES
5.1 The Fees for the Managed Services provided pursuant to these Service Module Terms shall be as set out in each Order. For the avoidance of doubt, the Account Holder may not dispute or withhold any such Fees to the extent such dispute or withholding relates to clause 2.5.
5.2 Without prejudice to clause 7 (Fees and Payment) of the Master Agreement, Thomas shall invoice the Account Holder for the Fees as soon as reasonably practicable on or after the applicable Order Commencement Date, but in any event prior to the receipt by the Account Holder of any of the Managed Services relevant to the particular Order. For the avoidance of doubt, and pursuant to clause 7.1.2 (Fees and Payment) of the Master agreement, payment obligations under these Service Module Terms are non-cancellable and Fees for the Managed Services are non-refundable at any time after the Order Commencement Date.
Service Module 7: Integrations
Service Module 7
Version: 1.0
Version date: 2nd July 2019
Thomas and the Account Holder have entered into master terms and conditions for the provision to the Account Holder of certain solutions (the "Master Agreement").
Pursuant to this Master Agreement, the Account Holder is entering into an Order for the purchase of specific Solutions, in respect of which these Service Module terms and conditions (the "Service Module Terms") shall apply.
These Service Module Terms shall apply to the provision by Thomas of Integration Services (as defined below) to the Account Holder. These Service Module Terms amend the terms of the Master Agreement, except that in the event of any conflict, ambiguity or inconsistency between the Order and these Service Module Terms, the terms of the applicable Order shall take precedence accordingly.
1. DEFINITIONS
1.1 Any reference to capitalised terms in these Service Module Terms will have the meaning given to them in the Master Agreement unless otherwise defined below.
"Acceptance Tests" means tests with respect to the useability of the Account Holder Environment after the Integration Services have been performed by Thomas;
"API" means any Application Programming Interfaces developed by Thomas for use by the Account Holder in accordance with any Integration Services;
"Bespoke Software" means software programs developed by the Account Holder (or by an authorised third party on the Account Holder’s behalf) to interact with any API;
"Integration Project" has the meaning set out in clause 2.1;
"Integration Service Notice" means a written notice (including by email) made by Thomas to the Account Holder that Integration Services and any Maintenance or Support are required by the Account Holder in order for the Account Holder to receive particular Solution(s);
"Integration Service Request" means a written request made by the Account Holder for Thomas to provide Integration Services and any Maintenance or Support in accordance with these Service Module Terms;
"Integration Services" means the integration of Integration Software into the Account Holder Environment and the provision of related services, in order to provide the Account Holder with access to certain Thomas Solution(s), as described in the Technical Annex;
"Integration Software" means any:
(a) API or software proprietary to Thomas;
(b) Third Party Software; and/or
(c) Bespoke Software,
which is to be used as part of the Integration Services for inclusion into the Account Holder Environment;
"Maintenance or Support" means the provision by Thomas of on-going maintenance or support services after completion of the relevant Integration Project;
"Technical Annex" means the technical specification(s) relating to Thomas’ API, as may be amended from time to time; and
"Third Party Software" means any software proprietary to third parties which is to be provided to the Account Holder without modification as part of the Integration Services.
2. INTEGRATION SERVICES
2.1 Where either:
2.1.1 the Account Holder issues Thomas with an Integration Service Request; or
2.1.2 Thomas provides the Account Holder with an Integration Service Notice,
the parties shall, within a reasonable period of time and in any event within twenty-eight (28) days of receipt by Thomas of the Integration Service Request or receipt by the Account Holder of the Integration Service Notice (as applicable), agree in writing and in reasonable detail, the scope of the Integration Services, the Technical Annex, the Acceptance Tests, and Maintenance or Support, each of which (as applicable) shall be further set out in the relevant Order (each, an "Integration Project").
2.2 Thomas shall use reasonable endeavours to:
2.2.1 provide Integration Services and any Maintenance or Support in accordance with the Integration Project to which they relate;
2.2.2 deliver and install any Integration Software needed to provide the Integration Services;
2.2.3 successfully integrate the Integration Software with the relevant Account Holder software;
2.2.4 develop (or use reasonable endeavours to ensure a party acting on its behalf develops) any Bespoke Software in accordance with the Integration Project; and
2.2.5 successfully deliver an Integration Project in accordance with any identified Integration Project timelines, provided that time shall not be of the essence in respect of the delivery of any Integration Project.
2.3 The Account Holder shall:
2.3.1 provide Thomas with all necessary co-operation;
2.3.2 provide Thomas with all necessary access to such information, documentation and other material as may be reasonably required by Thomas, including any Content and security access information; and
2.3.3 comply with all reasonable instructions (whether written or verbal) given by Thomas to the Account Holder and carry out all other Account Holder responsibilities set out in the Master Agreement, these Service Module Terms and/or any Order,
in relation to the provision of the Integration Services and the delivery of an Integration Project.
2.4 The Account Holder must strictly comply at all times with:
2.4.1 these Service Module Terms;
2.4.2 the Master Agreement; and
2.4.3 the Technical Annex.
2.5 Without prejudice to clause 15 (Limitation of Liability) of the Master Agreement, Thomas shall not be liable in any circumstances for any failure to provide the Integration Services or to deliver an Integration Project (including any failure to meet an Integration Project deadline) where such failure arises directly or indirectly out of the Account Holder's failure (whether by act or inaction) to comply with its obligations under the Master Agreement and/or these Service Module Terms.
3. OWNERSHIP
3.1 For the purposes of these Service Module Terms, clause 7 (Intellectual Property Rights) of the Master Agreement shall not apply and shall be replaced with this clause 3.
3.2 All Background IPRs shall remain vested in the relevant party that owns such Background IPRs.
3.3 Subject to clause 3.4, the Intellectual Property Rights in the Integration Software (other than Third Party Software) shall belong to, vest in and remain vested in Thomas unconditionally and immediately upon their creation, and the Account Holder shall not have any rights in, or to, the Integration Software, other than in accordance with the licence granted to the Account Holder in clause 4. Accordingly, the Account Holder assigns to Thomas, with full title guarantee for all purposes, applications and fields of use (including by way of assignment of future Intellectual Property Rights) all Intellectual Property Rights in the Integration Software, including the right to take action for any past, present and future damages and other remedies in respect of any infringement. The Account Holder must execute, and will procure that its sub-contractors execute, such documents and do such things as Thomas may consider reasonably necessary to give effect to this clause 3.3.
3.4 Neither party shall be prevented or restricted from developing and using any techniques, ideas, concepts, information or know-how relating to methods or processes of general application which can be recalled only from the unaided memories of either party's personnel provided that in doing so there is no infringement of the Intellectual Property Rights of the other party.
3.5 The Account Holder waives and will ensure that its employees, contractors, consultants, sub-contractors and all of its personnel waive all moral rights they might have in the Integration Software.
3.6 The Account Holder shall use commercially reasonable endeavours to prevent any infringement of Thomas' Intellectual Property Rights in the Integration Software and shall promptly report to Thomas any such infringement that comes to its attention. In particular, the Account Holder shall:
3.6.1 ensure that each Platform User, before starting to use the Integration Software, is made aware that the Integration Software is proprietary to Thomas and that it may only be accessed and used in accordance with these Service Module Terms; and
3.6.2 not permit third parties to have access to the Integration Software without Thomas' prior written consent.
4. LICENCE
4.1 In addition to the licence granted pursuant to clause 5.1 (Licences) of the Master Agreement and subject to clauses 2.4 and 4.2, Thomas grants to the Account Holder a:
4.1.1 limited-term, non-exclusive, non-transferable, revocable right to use the Integration Services and the Integration Software (excluding the Bespoke Software) solely and only to the extent required for the Account Holder to access and be provided with any Solution(s) and related services it has purchased in accordance with the Master Agreement, these Service Module Terms and any other applicable Service Modules and/or Orders, and in any event strictly for the Account Holder's internal business purposes; and
4.1.2 perpetual, exclusive, non-transferable, non-sub licensable right to use the Bespoke Software,
4.1.2.1 except that the Account Holder shall be permitted to grant a sub-licence for Platform Users to use the Bespoke Software solely and only to the extent required for such Platform Users to access and be provided with any Solution(s) and related services that the Account Holder has purchased in accordance with the Master Agreement, these Service Module Terms and any other applicable Service Modules and/or Orders, and in any event strictly for the Platform User's internal business purposes; and
4.1.2.2 provided always that:
(a) the scope of "use" of the Bespoke Software under this clause 4.1.2 shall be restricted to use of the Bespoke Software in object code form for the normal business purposes of the Account Holder and/or any Platform User (as applicable); and
(b) upon termination or expiry of the Master Agreement, these Service Module Terms and/or any Order to which this licence relates, such licence will automatically terminate to the extent that the Bespoke Software uses, relies upon or interacts in any way with API or any other software that is proprietary to Thomas and the Account Holder shall no longer be licensed to use such Bespoke Software which is affected in this way.
4.2 Unless and to the extent expressly permitted by Thomas in writing, the Account Holder shall not and shall ensure that Platform Users shall not:
4.2.1 sub-licence, rent, lend, assign or transfer in any other way the Integration Services to any person;
4.2.2 give access to the Integration Software through any network of computers to users who are not employees or agents of the Account Holder;
4.2.3 make adaptations or variations of the Integration Software; or
4.2.4 disassemble, decompile, reverse translate or in other manner decode the Integration Software except as permitted by law.
5. THIRD PARTY SOFTWARE
5.1 The Account Holder shall comply with any Third Party Software licences and shall indemnify and hold Thomas harmless against any loss or damage which it may suffer or incur as a result of the Account Holder's breach of such terms howsoever arising.
5.2 Thomas may treat the Account Holder's breach of any Third Party Software licence as a breach of these Service Module Terms.
5.3 Thomas shall provide the Account Holder with any Third Party Software under the standard licence terms provided by the relevant third parties, copies of which shall be provided to the Account Holder, and the Account Holder agrees to be bound to the relevant third parties by such licence terms.
6. LIABILITY AND INDEMNIFICATION
6.1 In addition and without prejudice to clause 14 (Indemnification) of the Master Agreement, the Account Holder will indemnify and hold Thomas harmless against any loss or damage which it may suffer or incur as a result of the Account Holder’s breach of clause 4 above.
6.2 In addition and without prejudice to clause 15 (Limitation of Liability) of the Master Agreement, Thomas shall not be liable in any circumstances for any losses (including indirect or consequential loss or damage) arising directly or indirectly out of:
6.2.1 the incompatibility or failure of the Account Holder Environment with or in relation to the Integration Services and/or the Integration Software, and/or the provision or use of any of Thomas’ operational systems; and/or
6.2.2 the use or misuse by the Account Holder of the Account Holder Environment or any Integration Software.
7. ACCEPTANCE TESTS AND ACCEPTANCE
7.1 The Account Holder acknowledges and agrees that the agreed Acceptance Tests for each Integration Project must be carried out before the Account Holder is permitted to independently utilise the finalised Integration Services (including any Integration Software) within its Account Holder Environment.
7.2 The agreed Acceptance Tests for each part of the Integration Project shall be carried out as soon as reasonably possible after the relevant Integration Services have been completed (including the provision of any Integration Software). To the extent the Acceptance Tests are conducted by Thomas, Thomas will:
7.2.1 run such Acceptance Tests during its normal working hours;
7.2.2 endeavour to give the Account Holder advance notice of the start of the Acceptance Tests where practicable to do so; and
7.2.3 permit the Account Holder to observe all or any part of the Acceptance Testing.
7.3 If any Integration Services fail to pass the Acceptance Tests, the Account Holder shall, within five (5) days from the completion of the Acceptance Tests or any part of the Acceptance Tests, provide a written notice to Thomas to this effect, giving details of such failure(s). Thomas shall use reasonable endeavours remedy the defects and deficiencies for which it is responsible for in accordance with the relevant Integration Project and the relevant Acceptance Test(s) shall be repeated within a reasonable time.
7.4 Acceptance of the Integration Project shall be deemed to have occurred on the expiry of five (5) days after the completion of all Acceptance Tests relating to the applicable Integration Services (including any Integration Software), unless the Account Holder has given written notice under clause 7.3.
8. MAINTENANCE AND SUPPORT
8.1 Should Thomas agree to provide any Maintenance or Support as part of an Integration Project, the Account Holder shall not, without Thomas’ prior written approval, allow any person other than a representative of Thomas to modify, repair or maintain any part of the Integration Software.
8.2 The Account Holder shall co-operate with Thomas in any manner reasonably required by Thomas in order to carry out Maintenance or Support, including the provision of information and data, and making available suitably qualified employees and contractors to Thomas. This clause 8.2 shall be subject to Thomas complying with the Account Holder’s normal security requirements.
8.3 Unless otherwise agreed in an Integration Project, the Account Holder will:
8.3.1 not be entitled to any support in respect of the Integration Services (including any Integration Software); and
8.3.2 be responsible for providing all support and technical assistance to end users of its own applications and systems, including but not limited to any applicable Integration Software.
9. USE OF INTEGRATION SERVICES
9.1 The Account Holder shall not (and shall ensure that third parties acting on its behalf shall not) use the Integration Services (including any Integration Software) in a manner which (in Thomas’ reasonable opinion) constitutes excessive or abusive usage or otherwise fails to comply or is inconsistent with:
9.1.1 any reasonable instructions provided by Thomas from time to time;
9.1.2 the standards expected of an Account Holder; and/or
9.1.3 the Technical Annex.
9.2 The Account Holder shall be responsible for having and maintaining an appropriate Account Holder Environment that is suitable to receive the benefit of the Integration Services (including any Integration Software) and obtaining any licenses for any third party software required for Thomas to access and use that Account Holder Environment for the purpose of implementing an Integration Project.
10. UPDATES
10.1 The Account Holder acknowledges and agrees that Thomas may update or modify any component of Integration Software from time to time at its sole discretion (each an "Update"), and may require the Account Holder to obtain and use the most recent version of such component accordingly.
10.2 The Account Holder is required to make any changes to the Account Holder Environment as may be required for use of the Integration Services (including any Integration Software) as a result of an Update.
10.3 Continued use of the relevant component of Integration Software following an Update constitutes binding acceptance by the Account Holder of the applicable Update.
11. TERMINATION AND CANCELLATION
11.1 For the avoidance of doubt, except as may be permitted under clause 16.2 (Termination) of the Master Agreement and clause 11.2 of these Service Module Terms, the Account Holder is not permitted to terminate these Service Module Terms or any Order for Integration Services (including any Integration Project).
11.2 If the Account Holder cancels an Order for Integration Services (including any Integration Project) after the agreed start date of the Integration Project, the Account Holder will remain liable to pay to Thomas the full Fees pertaining to the relevant Order for such Integration Services.
12. FEES
The Fees for the Integration Services shall be calculated on a per Integration Project basis and as set out in the relevant Order.
Service Module 8: Value Added Reseller (VAR)
Service Module 8
Version: 1.0
Version date: 2nd July 2019
Thomas and the Account Holder have entered into master terms and conditions for the provision to the Account Holder of certain solutions (the "Master Agreement").
Pursuant to this Master Agreement, the Account Holder is entering into an Order for the purchase of specific Solutions, in respect of which these Service Module terms and conditions (the "Service Module Terms") shall apply.
These Service Module Terms shall apply to and govern the terms applicable when an Account Holder becomes a Value Added Reseller (as defined below). These Service Module Terms amend the terms of the Master Agreement and the terms of other Service Modules, except that in the event of any conflict, ambiguity or inconsistency between the Order and these Service Module Terms, the terms of the applicable Order shall take precedence accordingly.
1. DEFINITIONS
1.1 Any reference to capitalised terms in these Service Module Terms will have the meaning given to them in the Master Agreement unless otherwise defined below.
"Initial VAR Licence Period" means the period of twelve (12) months from the date on which the Account Holder is appointed as a VAR in accordance with clause ;
"Inspection Parties" has the meaning set out in clause 4.3;
"Permitted Users" has the meaning set out in clause 4.1.1;
"Renewed VAR Licence Period" has the meaning set out in clause 5.1.2;
"Termination Notice" has the meaning set out in clause 11.1.1;
"Value Added Reseller" or "VAR" has the meaning set out in clause 2.1;
"VAR Clients" means any or all of a Value Added Reseller's clients;
"VAR Licence" has the meaning set out in clause 4.1;
"VAR Licence Period" means a period of twelve (12) months, being either the Initial VAR Licence Period or any subsequent Renewed VAR Licence Period;
"VAR Offering" means all or any parts of any products or services provided by a VAR to VAR Clients;
"VAR Portal" means the portal for VARs accessed via such link as may be advised by Thomas from time to time;
"VAR Service Usage Guide" means the Thomas document known as the VAR Service Usage Guide, which sets out the possible levels of VAR Service usage and any applicable Fee discounts and/or benefits, as may be updated from time to time; and
"VAR Services" means access to and use of the various Thomas Solutions and related services provided by Thomas either via the Thomas Platform, the Thomas Website or through the use of the Thomas system.
2. APPOINTMENT
2.1 Subject to the conditions set out in clause 2.2 being met, Thomas hereby appoints the Account Holder as its non-exclusive reseller to offer access to and use of the Solutions as a part of a VAR Offering to the Account Holder's clients in accordance with the terms of these Service Module Terms, and whereby the Account Holder shall be identified for the purposes of these Service Module Terms as the "Value Added Reseller", or "VAR".
2.2 In order to be appointed as a Value Added Reseller in accordance with clause 2.1, each Account Holder must:
2.2.1 sign up to the VAR Portal (if available); and
2.2.2 fully comply with the provisions set out in these Service Module Terms.
2.3 By completing registration on the VAR Portal (if available) and/or otherwise holding itself out as a VAR, the Account Holder acknowledges that it accepts the appointment as a Value Added Reseller under and in accordance with these Service Module Terms.
2.4 The VAR may describe itself as an "Authorised Value Added Reseller" of the Solutions but shall not represent itself as an agent of Thomas for any purpose, nor pledge Thomas' credit or give any condition or warranty or make any representation on Thomas' behalf or commit Thomas to any contracts. Further, the VAR shall not without Thomas' prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of the Solutions that are inconsistent with those contained in the Documentation or any other promotional material supplied by Thomas or otherwise incur any liability on behalf of Thomas.
2.5 The VAR shall not sell any of the Solutions through a sub-contractor, a sales agent or to a sub-distributor or reseller without the express written permission of Thomas. Where Thomas agrees to any such appointment, the VAR shall ensure that it enters into a written contract with such sub-contractor, sales agent, sub-distributor or reseller on terms which provide at least the same level of protection to Thomas as set out in these Service Module Terms.
2.6 The VAR's appointment under this clause 2 only grants to the VAR a right to resell the VAR Services to VAR Clients as a part of the VAR Offering in accordance with these Service Module Terms, and does not transfer any right, title or interest in or to any Solutions to the VAR or the VAR Clients.
3. VAR UNDERTAKINGS
3.1 The VAR undertakes and agrees with Thomas to:
3.1.1 resell the VAR Services strictly and solely in accordance with the Agreement, the applicable Service Module Terms, the Documentation and any other instructions given by Thomas from time to time in writing; and
3.1.2 within fourteen (14) days of a written request from Thomas or at regular intervals as agreed between the parties from time to time, submit reports in the agreed format to Thomas showing details of sales relating to the VAR Service usage by VAR Clients, outstanding orders and any other information relating to the performance of the VAR's obligations under the Master Agreement and/or these Service Module Terms that Thomas may reasonably require from time to time.
4. VAR LICENCE TERMS
4.1 Subject to the payment of the relevant Fees in accordance with clause 8, Thomas grants to the VAR a non-exclusive, non-transferable licence to:
4.1.1 access and/or use the Thomas Platform and the VAR Services for the VAR's internal business purposes during the VAR Licence Period in accordance with these Service Module Terms and whereby the VAR shall be expressly permitted to provide access to and use of the VAR Services to VAR Clients as a part of the VAR Offering (the "Permitted Users"),
provided always that the VAR shall:
4.1.2 ensure that there is a clear distinction between the VAR Services and the other services included within the VAR Offering;
4.1.3 provide access to and use of the VAR Services in an un-amended format;
4.1.4 immediately comply with any instructions (including any security requirements) issued by Thomas in respect of the VAR's access to and/or use of the Thomas Platform and/or any VAR Services,
(the "VAR Licence").
4.2 Thomas shall use reasonable endeavours to make the VAR Services available twenty-four (24) hours per day, seven (7) days per week, provided that:
4.2.1 such availability shall exclude any planned or unplanned maintenance on the Thomas Platform, which Thomas may carry out at any time and whereby Thomas shall use reasonable endeavours to provide the VAR with prior notice of such unavailability; and
4.2.2 the VAR maintains a sufficiently fast and reliable internet connection and uses a browser environment which complies with Thomas guidelines published from time to time on the Thomas Website and which may require the downloading of additional browser plug-ins to enable access and whereby Thomas is not responsible for such third party plug-ins and the VAR is responsible for complying with any licence agreements and other terms and conditions which may apply to them.
4.3 During the Term and following the termination or expiry of these Service Module Terms, the VAR shall grant to Thomas and/or its employees, auditors, representatives or agents (the "Inspection Parties") at all reasonable times during normal business hours and on reasonable notice in the circumstances (which may be a very short period where the request is urgent), effective access to all information relating to:
4.3.1 the use of the Thomas Platform (including any VAR Licence that has been granted); and
4.3.2 the provision of the VAR Services and the receipt of any Documentation and Deliverables,
including the right of access to and to carry out on-site inspections at any of the VAR premises, the right of access to systems, personnel and any records as Thomas and/or the Inspection Parties may reasonably require in order to verify that the use of the Thomas Platform (including any VAR Licence that has been granted) and/or the use or receipt of the VAR Services, Documentation and Deliverables is in accordance with these Service Module Terms and the relevant Order(s).
4.4 If any audit referred to in clause 4.3 demonstrates:
4.4.1 any breach of an Order and/or these Service Module Terms by the VAR; or
4.4.2 that Thomas Platform access has been provided to any individual who is not the VAR or a Permitted User; or
4.4.3 an under-payment of the Fees that should have been due from the VAR for the period covered by the audit,
then without prejudice to Thomas’ other rights or remedies under the Master Agreement and/or these Service Module Terms:
4.4.4 Thomas shall be entitled to disable the VAR's Thomas Platform access immediately if the VAR does not rectify the breach identified pursuant to clause 4.4.1 or 4.4.2 immediately upon request; and
4.4.5 the VAR shall pay to Thomas an amount equal to any identified underpayment of the Fees pursuant to clause 4.4.3 within two (2) weeks of the request for payment.
5. VAR LICENCE PERIOD AND RENEWALS
5.1 The term of a VAR Licence shall:
5.1.1 continue for an Initial VAR Licence Period; and
5.1.2 subject to clause 5.2, automatically renew for further twelve (12) month periods ("Renewed VAR Licence Period"), at the end of the Initial VAR Licence Period or a Renewed VAR Licence Period, as the case may be.
5.2 The VAR must notify Thomas of its intention not to renew a VAR Licence no later than sixty (60) days before the end of the Initial VAR Licence Period or the Renewed VAR Licence Period, as the case may be and in which case:
5.2.1 the VAR Licence; and
5.2.2 any VAR Services which the VAR has purchased,
will automatically expire as at the end of the relevant VAR Licence Period or Renewed VAR Licence Period (as applicable).
5.3 Unless otherwise agreed by Thomas, if the VAR notifies Thomas of its intention not to renew its VAR Licence in accordance with clause 5.2 but subsequently places an Order with Thomas for another VAR Licence ("New VAR Licence"):
5.3.1 if such Order is placed within three (3) months of the end of the VAR’s last VAR Licence Period, the VAR Licence Period of such New VAR Licence shall be effective from the end of the previous VAR Licence Period and be classed as a Renewed VAR Licence Period; or
5.3.2 if such Order is placed more than three (3) months but less than twelve (12) months from the end of the VAR’s last VAR Licence Period, the VAR Licence Period of such New VAR Licence shall be effective as if the VAR were an entirely new customer but will still grant the VAR access to historic Documentation, Content and/or Deliverables (including Assessment Responses) relating to the previous VAR Licence until the expiry of twelve (12) months from the end of the VAR’s last VAR Licence Period; or
5.3.3 if such Order is placed more than twelve (12) months from the end of the VAR’s last VAR Licence Period, the VAR Licence Period of the New VAR Licence shall be effective from the date set out in the Order, provided always that the VAR agrees and acknowledges that the New VAR Licence will be set up as if the VAR were an entirely new customer and therefore will not grant the VAR access to any reconstituted or historic Documentation, Content and/or Deliverables (including any Assessment Responses or related data).
5.4 The VAR Services provided as part of a VAR Licence will expire at the end of the relevant VAR Licence Period. Any unused portion of the VAR Services cannot be rolled over into any subsequent VAR Licence Period or be refunded or exchanged.
5.5 The VAR Services cannot be exchanged for replacement VAR Services or any other Solutions, Documentation or Deliverables at any time, unless otherwise agreed in writing by Thomas.
6. VAR LICENCE SUSPENSION, TERMINATION AND EXPIRY
6.1 If the Account Holder or VAR is either:
6.1.1 in breach of any of these Service Module Terms; or
6.1.2 holding itself out to be, or in any other way acting as a Value Added Reseller without having first signed up to the VAR Portal (if available) and otherwise being fully compliant with these Service Module Terms,
any such circumstances shall permit Thomas at any time to suspend the Account Holder or VAR's access to and use of the Thomas Platform, the VAR Services and/or any Solution, Deliverable or any part of them, provided that Thomas shall use its reasonable endeavours to notify the Account Holder or VAR (as applicable) of the suspension and, where practicable, of the reason for the suspension.
6.2 Without prejudice to any other rights or remedies Thomas may have under or in accordance with the Master Agreement and/or these Service Module Terms, Thomas may terminate the Master Agreement (in whole or in part), these Service Module Terms and/or any or all Orders at any time during the Term with immediate effect by written notice to the Account Holder or VAR (as applicable) in the event that any circumstances arise which permit Thomas to suspend access to and use of the VAR Services and/or any of the Solutions and/or Deliverables pursuant to clause 6.1.
6.3 If the VAR has its access to the Thomas Platform disabled or suspended by Thomas pursuant to these Service Module Terms and/or the Master Agreement, any VAR Licence which the VAR has purchased under these Service Module Terms will automatically be disabled or suspended for the same amount of time of disablement or suspension relating to the Thomas Platform. Once a period of disablement or suspension is over and access to the Thomas Platform is resumed by the VAR, the VAR Licence will continue to be effective for the remainder of the relevant VAR Licence Period.
6.4 If:
6.4.1 these Service Module Terms are terminated for any reason, any VAR Licence which the VAR has purchased in respect of these Service Module Terms will automatically expire at the date of such Service Module termination; and
6.4.2 the VAR Licence is terminated for any reason other than as set out in clause 5.2 (including pursuant to the terms of the Master Agreement), the VAR Licence and any VAR Services shall automatically expire as at the date of such termination.
7. VAR PROGRAMME
7.1 Prior to the commencement of a VAR Licence Period, Thomas will calculate (in its sole discretion and acting reasonably) the anticipated VAR Service usage amount by the VAR during that upcoming twelve (12) month period, on the following basis:
7.1.1 for the Initial VAR Licence Period, an estimate of the expected VAR Service usage amount; and
7.1.2 for any Renewed VAR Licence Period, an estimate of the expected VAR Service usage amount which shall be based upon the actual VAR Service usage amount for the previous VAR Licence Period,
provided that the VAR shall be entitled to make representations to Thomas to adjust the allocated VAR Service usage amount for a particular VAR Licence Period and which shall be considered by Thomas in order to make the final decision as to the allocated VAR Service usage amount for the relevant VAR Licence Period.
7.2 For each VAR Licence Period and based on the VAR Service usage amount as calculated in accordance with the VAR Service Usage Guide, Thomas shall categorise the VAR within the VAR programme levels which shall entitle the VAR to:
7.2.1 the applicable discounted Fee percentage for the relevant VAR programme level; and
7.2.2 the other stated benefits for the relevant VAR programme level,
each as further set out in the VAR Service Usage Guide.
8. FEES
8.1 The Fees for the VAR Licence provided pursuant to these Service Module Terms shall consist of an annual sum payable in respect of the VAR Licence, as discounted by any applicable Fee discount percentage which applies to the VAR's allocated VAR programme level in accordance with clause 7, and as may be further set out in the relevant Order.
8.2 In respect of these Service Module Terms, clause 7.3 (Fees and Payment) of the Master Agreement shall not apply. Instead, Fees payable under and in accordance with these Service Module Terms shall be payable at least fourteen (14) days in advance of each VAR Licence Period.
8.3 In addition to, and without prejudice to, the terms set out in clause 7 (Fees and Payment) of the Master Agreement, if the VAR Licence Fee or any other amount payable in connection with these Service Module Terms are not paid in full when due, Thomas reserves the right to suspend the:
8.3.1 VAR's access to the Thomas Platform and/or the VAR Licence (or any part of it); and/or
8.3.2 provision of the VAR Services, Documentation and/or any Deliverables or any part of them to the VAR.
8.4 Thomas does not guarantee the integrity of any Content in the event it suspends access to the VAR Services, Documentation, Deliverables and/or the Thomas Platform in accordance with clause 8.3
9. INDEMNIFICATION
9.1 In addition and without prejudice to clause 14 (Indemnification) of the Master Agreement, the VAR will indemnify Thomas against any and all claims from VAR Clients arising from the VAR Offering and/or the non-availability of the VAR Services.
10. LIABILITY
10.1 Subject to clauses 15.1 and 15.2 (Limitation of Liability) of the Master Agreement, in the event of any loss or damage to the VAR’s Content which is inputted into the Thomas Platform, the VAR’s sole and exclusive remedy shall be for Thomas to use reasonable endeavours to restore the lost or damaged Content from the latest back-up of such Content maintained by Thomas, provided that Thomas shall not be responsible for any loss, destruction, alteration or disclosure of Content caused:
10.1.1 by any third party (except those third parties sub-contracted by Thomas to perform services related to Content maintenance and back-up); or
10.1.2 as a result of any breach by the VAR of the Master Agreement or these Service Module Terms.
10.2 The VAR assumes sole responsibility for any conclusions drawn from results obtained from use of the Thomas Platform, the VAR Service, the Documentation and/or the Deliverables (including any Assessments).
11. ADDITIONAL TERMINATION RIGHTS
11.1 In addition, and without prejudice to, the termination rights set out in clause 16 (Term and Termination) of the Master Agreement:
11.1.1 Thomas may terminate a VAR Licence at any time upon sixty (60) days’ written notice ("Termination Notice") to the VAR.
11.1.2 In the event Thomas serves a Termination Notice, it shall refund pre-paid Licence Fees on a pro-rated basis to be calculated as follows:
Refund = (VAR Licence Fee / 365) x remaining days*
* meaning the number of days remaining in the then-current VAR Licence Period starting from the end of the Termination Notice
