Partner Terms for Service
These Partner Terms apply to the MFC Programme Licences purchased by the Partner (as set out in the Order Form) to the exclusion of any other terms that the Partner seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.1 The defined terms used in these Partner Terms shall have the meaning specified in the Order Form and/or in this clause 1 of these Partner Terms (as applicable):
“Assessment Data” means the Student Data and any automated and/or bespoke reports, analysis and/or recommendations produced by MFC (by means of an MFC Programme or otherwise) in respect of that Student Data;
“Confidential Information” means all proprietary information, intellectual property rights, know-how, ideas, concepts, trade secrets, designs, specifications, manuals, computer programs, data whether of a business, financial, technical or non-technical nature and other information that is clearly designated by a party as being confidential to it (whether or not it is marked “confidential”) or which ought reasonably be considered to be confidential (including the MFC Programmes which are MFC’s Confidential Information);
“Contract Year” means a twelve month period commencing on the Commencement Date or an anniversary of the Commencement Date, as applicable;
“Controller” has the meaning specified in the Data Protection Legislation;
“Data Protection Legislation” means the Data Protection Act 2018 (including, to the extent incorporated therein, the General Data Protection Regulation (EU) 2016/679) and any other UK laws relating to the protection of personal data and the privacy of individuals;
“MFC Platform” means a secure portal through which the Students are able to access and complete the MFC Programmes and to which Staff Users will be granted appropriate access by MFC on reasonable request by the Partner;
“Non-School Partner” means a business providing educational services to Students (whether directly or via a School Client);
“Order Form” means the order form setting out the key details of the Partner Agreement, which shall interpreted in accordance with these Partner Terms;
“Partner Agreement” means the partner agreement entered into between MFC and the Partner on its execution by both parties, incorporating the Order Form and these Partner Terms;
“School Client” means a school or other educational institution that procures MFC Programmes Licences through a Non-School Partner;
“Staff Users” means the Partner’s staff, consultants and/or any other relevant authorised users that are granted access by MFC to the MFC Platform in connection with the provision of MFC Programmes to the Students;
“Student” means a student that is granted access to one of more MFC Programmes by MFC in accordance with the Partner Agreement;
“Student Data” means all information provided by or on behalf of the Student in relation to an MFC Programme.
1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. MFC Programme Licences
2.1 MFC hereby grants to the Partner a non-exclusive, non-transferable licence to promote and make available the MFC Programmes to Students located within the Territory in accordance with the terms of the Partner Agreement.
2.2 MFC acknowledges that, where the Partner is a Non-School Partner, the Partner may choose to sell MFC Programme Licences to a School Client (to make available to their students) and/or directly to a Student.
2.3 The Partner shall comply with all applicable laws (including consumer laws to the extent applicable to the Partner’s activities in connection with the Partner Agreement).
2.4 The Partner agrees to:
2.4.1 ensure that the Students and the Staff Users keep a secure, confidential password for their individual access to the MFC Platform;
2.4.2 instruct Students to access the MFC Platform using a personal email address that they control (ie an email address that the Student has personally signed up for through a provider such as Gmail, Outlook, GMX or Yahoo).
2.5 The Partner shall not (and shall ensure that the Students and Staff Users do not):
2.5.1 access all or any part of the MFC Platform or an MFC Programme in order to build a product or service that competes with the MFC Platform or MFC Programmes;
2.5.2 access, store, distribute or transmit any virus, worm, Trojan horse or other harmful or disruptive component during the course of any access to or use of the MFC Platform or MFC Programmes; or
2.5.3 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the MFC Platform or an MFC Programme in any form or media or by any means or a attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the MFC Platform or an MFC Programme, except to the extent expressly permitted by these Partner Terms and/or as may be allowed by any applicable law which is incapable of exclusion.
3. MFC Programme Support
3.1 MFC shall provide the MFC Programmes with reasonable skill and care and in accordance with these Partner Terms.
3.2 MFC warrants that the MFC Programmes will perform in all material respects with the specifications provided by MFC.
3.3 MFC delivers training sessions once per academic year. The Partner shall attend a training session delivered by MFC as soon as reasonably practicable after the Commencement Date and, where applicable, at the start of each academic year thereafter for the duration of the Contract Period.
3.4 The Partner shall be responsible for providing front line support for the MFC Programmes to the Students (and/or, where the Partner is a Non-School Partner, the School Clients and their Staff Users). This will include responding to general questions concerning the MFC Programmes and providing assistance in the diagnosis and correction of problems encountered by any such users. It is anticipated that the Partner will be able to provide address and resolve the majority of support issues experienced by users on the basis of the training and guidance materials provided by MFC to the Partner.
3.5 MFC shall, on reasonable request by the Partner (where the Partner is unable to resolve a support query or issue), provide reasonable support and assistance in respect of the MFC Platform and MFC Programmes during MFC’s normal business hours and at no additional cost.
3.6 The Partner shall obtain MFC’s prior written approval of any marketing, instructional or other materials that the Partner wishes to use in relation to the MFC Programmes or which incorporate the MFC name (other than materials provided to the Partner by MFC).
4. Fees and Payment
4.1 Each MFC Programme Licence is subject to a Licence Fee (plus VAT or any other applicable sales tax) and allows one Student to access and use the selected MFC Programme bundle.
4.2 The Partner shall pay the Licence Fees (calculated in accordance with the Order Form) to MFC in accordance with the payment terms specified in the Order Form.
4.3 The Partner acknowledges and agrees that any discount applied to the Licence Fees in the first Contract Year is subject to the Partner purchasing the minimum number of MFC Programme Licences specified in the Order Form in relation to the remainder of the Contract Period (namely, the second Contract Year or the second and third Contract Years, as applicable). If the Partner fails to meet the minimum purchase requirements specified in the Order Form, MFC shall be entitled to reclaim any applicable discount in respect of previous contract years and the Partner shall repay any such amounts owing to MFC on demand.
Example 1: If a Partner selects a Contract Period of two years and does not meet the minimum purchase requirements for the second Contract Year, then MFC shall be entitled to reclaim the discount applied to the Licence Fees for the first Contract Year.
Example 2: If a Partner selects a Contract Period of 3 years and meets the minimum purchase requirements for the second Contract Year but not the third Contract Year then MFC shall be entitled to re-calculate the Licence Fees paid so that the discount applicable to a two year contract is lieu of the discount applicable to a three year contract.
4.4 If a party fails to make any payment due to the other party under the Partner Agreement by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 4% a year above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement.
4.5 In the event of any failure by the Partner to comply with its payment obligations under the Partner Agreement, MFC reserves the right to suspend the Partner’s right to make available the MFC Programmes and this may include suspending access to the MFC Platform for the partner and the partner’s clients.
5. Intellectual Property
5.1 The Partner acknowledges and agrees that MFC and/or its licensors own all copyright and other intellectual property rights in the MFC Platform, the MFC Programmes and the Assessment Data (excluding the Student Data). Except as expressly stated in these Partner Terms, MFC does not grant the Partner any rights or licences in respect of the MFC Platform, the MFC Programmes or the Assessment Data (excluding the Student Data).
5.2 MFC warrants that the provision and use of the MFC Platform and MFC Programmes in accordance with these Partner Terms will not infringe the copyright of any third party.
5.3 If there is a claim that the use by the Partner and/or its Authorised Users of the MFC Platform and/or an MFC Programme in accordance with these Partner Terms infringes the copyright of a third party, MFC shall use all reasonable endeavours to:
5.3.1 procure the right for the Partner and its Authorised Users to continue using the MFC Platform and/or the MFC Programme (as applicable) in accordance with these Partner Terms (or as otherwise agreed between the parties in writing);
5.3.2 make such alterations, modifications or adjustments to the MFC Platform and/or the MFC Programmes (as applicable) as are necessary for them to become non infringing; or
5.3.3 replace the MFC Platform and/or the MFC Programme (as applicable) with non-infringing software, content or other material, as applicable.
5.4 If MFC is unable to resolve the claim by taking one of the actions under clause 5.3 above, MFC shall have the right to terminate the Partner Agreement subject to repaying any Licence Fees relating to an unused MFC Programme Licence (or any applicable portion of it).
6. Assessment Data
6.1 To the extent that MFC owns the Assessment Data and any intellectual property rights therein, MFC hereby grants:
6.1.1 to the Partner a right to use, and sub-license the use of, the Assessment Data for the purposes of exercising its rights and carrying out its obligations under the Partner Agreement, subject to the consent of the relevant Students and the Partner’s compliance with these Partner Terms, in particular, its data protection and confidentiality obligations;
6.1.2 (if the Partner is a Non-School Partner) a right for its School Clients to use, and sub-licence the use of the Assessment Data relating to that School Client’s Students, subject to the consent of the relevant Students and the School Client’s compliance with the Data Protection Legislation and any other applicable laws; and
6.1.3 to each Student, a right to use any Assessment Data generated in relation to that Student.
6.2 The Partner acknowledges and agrees that MFC shall be entitled to compile and use the Assessment Data in an anonymised form, subject to compliance with the Data Protection Legislation.
6.3 The Partner acknowledges that MFC may:
6.3.1 disclose the Assessment Data of a Student to the parent or guardian of that Student on request (unless the Student objects to such disclosure in writing to MFC); and
6.3.2 compile and use the Assessment Data in an anonymised form, subject to compliance with the Data Protection Legislation.
6.4 If and to the extent that the Partner owns any intellectual property rights in the Student Data, the Partner hereby grants to MFC a non-exclusive licence to retain and use the Student Data in the manner anticipated by these Partner Terms.
7. Data Protection
7.1 The parties acknowledge and agree that each party is a Controller in respect of the Student Data. Each party shall, in respect of its use of the Student Data, comply with the Data Protection Legislation (and/or any equivalent data protection laws that apply to the Partner if the Partner collects or otherwise processes such Student Data in a territory other than the United Kingdom).
7.2 The Partner acknowledges and agrees that, to enable MFC to transfer the Student Data to the Partner and/or the School Clients (where any such entities are based outside of the European Economic Area), MFC may require the Partner and/or the School Clients (as applicable) to enter into the European Commission’s standard contractual clauses for the transfer of personal data to third countries, as updated, amended or replaced from time to time (“Standard Contractual Clauses”). The Partner agrees that, if a School Client is based outside of the European Economic Area and is not established in a country in respect of which the European Commission has issued an adequacy decision, the Partner shall procure that the School Client enters into the Standard Contractual Clauses with MFC.
8.1 Each party shall treat the Confidential Information of the other party as confidential except to the extent that a disclosure is expressly permitted under these Partner Terms or otherwise agreed in writing between the parties.
8.2 The parties acknowledge that the Confidential Information may be disclosed:
8.2.1 to any employees, officers, representatives or advisers of that party who need to know the information; and
8.2.2 to the extent required by law, by any court of competent jurisdiction or by any regulatory or administrative body.
8.3 The parties acknowledge that the Confidential Information shall not include any information which:
8.3.1 is or becomes publicly known other than through any act or omission of the receiving party;
8.3.2 was in the other party’s lawful possession before the disclosure or is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
8.3.3 is independently developed by the receiving party and such independent development can be shown by written evidence.
9. Limitation of Liability
9.1 Nothing in the Partner Agreement shall exclude or restrict MFC’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.
9.2 Subject to clause 9.1, in no circumstances shall MFC be liable to the Partner, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any indirect, special or consequential loss, costs, damages, charges or expenses, loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, however arising under the Partner Agreement.
9.3 Subject to clauses 9.1 and 9.2, MFC’s liability for direct loss in tort, contract or otherwise arising under or in connection with the Partner Agreement shall be limited, in each Contract Year, to the total amount of the Licence Fees paid or payable to MFC by the Partner in that Contract Year (or, in the case of liability arising after termination or expiry of the Partner Agreement, to the amount paid or payable by the Partner in the final Contract Year).
9.4 Except as expressly set out in these Partner Terms all conditions, warranties, terms and undertakings, express or implied, whether by statute, common law, trade practice, custom, course of dealing or otherwise (including without limitation about quality, performance or fitness or suitability for purpose) in respect of the MFC Platform and MFC Programmes are excluded to the fullest extent permissible by law.
9.5 The Partner acknowledges and agrees, and shall ensure that the Students (and, where the Partner is a Non-School Partner, the School Clients) understand and agree, that:
9.5.1 the Partner Agreement (including the licences granted under it) is between the Partner and MFC and that MFC gives no warranties to the Students (or, where the Partner is a Non-School Partner, the School Clients) in respect of the MFC Programmes and accepts no liability to the Students (or, where the Partner is a Non-School Partner, the School Clients) for any loss whether direct or indirect and whether in contract, tort, or otherwise arising out of or in connection with MFC’s provision of the MFC Programmes or any related services to such Students (or, where the Partner is a Non-School Partner, the School Clients) pursuant to the Partner Agreement; and
9.5.2 the MFC Programmes are intended to assist Students with making informed educational and careers choices by providing general information and guidance to Students (based on the data submitted by each such Student) – the MFC Programmes are not intended to act as definitive decision making tools and all results should be reviewed and interpreted with the guidance of a careers professional.
10. Term and Termination
10.1 The Partner Agreement shall commence on the Commencement Date and, unless terminated earlier in accordance with these Partner Terms, shall continue for the Contract Period.
10.2 Either party may terminate the Partner Agreement with immediate effect (or following such notice period as it sees fit) without prejudice to any of its rights or remedies, by giving written notice to the other party if:
10.2.1 the other party commits any material breach (which may, without limitation, consist of a series of minor breaches) of the terms of the Partner Agreement which (if capable of remedy) it fails to remedy within thirty (30) days of a notice in writing from the first party specifying the breach and requiring such breach to be remedied; or
10.2.2 is unable to pay its debts; or becomes insolvent; or is subject to an order or a resolution for its liquidation, administration, winding up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction); or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets; or enters into or proposes any composition or arrangement with its creditors generally; or ceases or threatens to cease business; or is subject to any analogous event or proceeding.
11. Consequences of Termination
11.1 On expiry or termination of the Partner Agreement:
11.1.1 all outstanding Licence Fees shall become due immediately to MFC and the Partner shall have no longer than 30 days to remit such payment to MFC;
11.1.2 all licences granted by MFC to the Partner and the Students and Staff Users to access and use the MFC Platform and MFC Programmes shall immediately terminate save to the extent that MFC considers any continuing access to be appropriate in the circumstances (for example, to enable the Students to complete the MFC Programmes); and
11.1.3 any provision of the Partner Agreement which is expressly or by implication intended to survive expiry or termination of the Partner Agreement shall survive and continue in full force and effect.
11.2 Any termination of the Partner Agreement shall be without prejudice to any other rights or remedies either party may be entitled to under the Partner Agreement or at law.
Upon reasonable prior written notice, the Partner shall grant MFC access during normal business hours to its systems, records and staff to the extent necessary for MFC to verify that the Partner and its Authorised Users are accessing and using the MFC Platform and MFC Programmes in accordance with the licence terms and to otherwise verify the Partner’s compliance with its obligations under the Partner Agreement.
Neither party shall export, directly or indirectly, any technical data acquired from the other party under the Partner Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (“Export Control Laws”), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
Each party shall: (i) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including the UK Bribery Act 2010; (ii) have and maintain in place throughout the Contract Period its own policies and procedures designed to ensure compliance with anti-bribery and anti-corruption laws, as appropriate; and (iii) promptly report to the other party any request or demand for any undue financial or other advantage of any kind made or received by it in connection with the performance of the Partner Agreement.
15.1 Any notice required to be given under the Partner Agreement shall be in writing and shall be delivered by hand or commercial courier or sent by email to the other party using the contact details set out in this Partner Agreement or otherwise notified by a party to the other from time to time.
15.2 A notice delivered by hand, commercial courier or email shall be deemed to have been received when delivered (or if delivery is not during the normal business hours of the recipient party, at 9 am on the first business day following delivery).
16.1 The Partner Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous discussions, agreements, arrangements and understandings between the parties with respect thereof.
16.2 Neither party shall be liable for any delay in or for failure to perform its obligations under the Partner Agreement, other than an obligation to make any payment due to the other party, if that delay or failure is caused by circumstances beyond the reasonable control of that party including fires, strikes, insurrection, riots, embargoes, or regulations of any civil or military authority.
16.3 The Partner shall not assign, transfer, sub-contract, charge or deal in any other manner with any of its rights and/or obligations under the Partner Agreement without the prior written consent of MFC.
16.4 The Partner shall not represent itself as an agent of MFC for any purpose, give any condition or warranty or make any representation on MFC’s behalf or commit MFC to any contractual obligations, or otherwise incur any liability on behalf of MFC.
16.5 The failure or delay of either party to exercise or enforce any right under the Partner Agreement shall not operate as a waiver of that right or preclude the exercise or enforcement of it at any time or times thereafter.
16.6 No variation of the Partner Agreement shall be effective, unless it is in writing and signed by the parties (or their authorised representatives).
16.7 No person who is not a party to the Partner Agreement shall have any rights under the Contracts (Rights of Third Parties) Act 1999.
16.8 The Partner Agreement and any dispute or claim (including any non-contractual dispute or claim) arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the laws of England and Wales and the parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim (including any non-contractual dispute or claim) that arises out of or in connection with the Partner Agreement or its subject matter.
Last updated: August 2020