Both parties shall keep in strict confidence all information of a confidential nature disclosed to one party by the other and any other confidential information concerning the other party’s business or affairs which they may receive (together “Confidential Information”). For the avoidance of doubt, all teaching or other materials (online, via email or in hard copy) provided to you or any Third Party Provider by Figtree shall be deemed to be Figtree’s Confidential Information.
8. Data Protection
- For the purposes of this clause, “Data Protection Legislation” includes the General Data Protection Regulation (EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation including the Data Protection Act 2018 (DPA 2018) relating to data protection and privacy, as amended or updated from time to time, in the UK, as well as any successor legislation to the GDPR and DPA 2018. The terms “Personal Data”, “data controller”, “data processor”, “process” and “processor” shall have the meanings given to them in the Data Protection Legislation.
- You and Figtree acknowledge that for the purposes of the Data Protection Legislation:
- Figtree is a data controller in respect of Personal Data relating to you and your family;
- Both Figtree and you are data controllers in respect of Personal Data concerning prospective Third Party Providers that Figtree provides to you;
- Once you engage any Third Party Provider to provide services to you and retain Figtree to deal with booking and payment administration on your behalf and as your agent in relation to your dealings with Third Party Providers, you will be the Data Controller in respect of personal data concerning those Third Party Providers processed by Figtree as part of the Services and Figtree will be a data processor.
- Figtree shall, in relation to any Personal Data processed in the manner described at Clause 3(c) above:
- process that Personal Data only on your written instructions;
- keep that Personal Data confidential
- comply with your reasonable instructions with respect to processing that Personal Data;
- not transfer that Personal Data outside of the European Economic Area without your prior written consent (provided that transfers within the United Kingdom shall not require your prior written consent);
- assist you in responding to any data subject access request and to ensure compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities or regulators;
- notify you without undue delay on becoming aware of a Personal Data breach or communication which relates to your or Figtree’s compliance with the Data Protection Legislation;
- at your written request, delete or return the Personal Data and any copies thereof to you on termination of this agreement unless required by the Data Protection Legislation to store that Personal Data;
- maintain complete and accurate records and information to demonstrate compliance with this clause 4.
- Figtree shall ensure that it has in place appropriate technical or organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
- This clause 9 describes the full extent to which Figtree will be liable to you in respect of any legal claim that you may choose to bring against it. For the purposes of this clause 9 Figtree shall mean Figtree and its employees, agents, any Third Party Provider and sub-contractors:
- You acknowledge that Figtree does not make any guarantees regarding the future academic performance or exam success of any student that receives the benefit of any Services (or the services of any Third Party Provider).
- Nothing in this Agreement limits or excludes Figtree’s liability:
- for death or personal injury resulting from negligence; or
- for any damage or liability which results from any fraud or fraudulent misrepresentation by Figtree.
- Except where described at Clause 3 above and in so far as it can, Figtree excludes all liability for any loss or damage caused by Figtree howsoever that damage is caused.
- Except where described at 3 above where Figtree is liable to you for any losses, Figtree’s liability shall be limited to a refund of the sums that Figtree has received from the Services.
- You accept that the Third Party Providers have no direct contractual relationship with Figtree and therefore:
- Figtree has no contractual obligations or liability to any Third Party Provider;
- Figtree is not acting as an agent for any Third Party Provider; and
- Figtree is not responsible for the payment of any taxes, national insurance and/or social security contributions due in respect of payments to be made by you to any Third Party Provider and you shall fully indemnify and hold Figtree harmless in this regard.
- Either you or Figtree may terminate this agreement forthwith by written notice if:
- the other is in material breach of any of the provisions of these Terms & Conditions and in the case of a breach capable of remedy fails to remedy the same within 30 days of receiving a written request from the other to do so;
- the other has a trustee, receiver, administrative receiver or manager or other similar officer appointed in respect of any material part of its business or assets;
- the other is directly involved in any impropriety within its reasonable control which could reasonably be demonstrated by whichever of Figtree and you is seeking to terminate the agreement to have the potential to cause detriment;
- an allegation of serious criminal behaviour is made against the other or one or more of its directors and an investigation into the activities of that party is commenced by the relevant police or public authorities;
- criminal proceedings (other than a private prosecution) are commenced against the other; or
- the other or any of its directors makes a public admission that it has/they have, or may have, engaged in criminal behaviour.
- Either you or Figtree shall also have the right to terminate this agreement under Clause 11 (Force Majeure).
- The following clauses shall survive the termination of this agreement for any reason: 6 (direct contact with/payments to Third Party Providers), 5.7 (expenses), 6 (payment), 9 (liability), 10.3 (this provision survival clause), 12.3 (severability), 12.9 (governing law) and 12.10 (jurisdiction).
11. Force Majeure
Neither party shall have any liability under or be deemed to be in breach of these Terms & Conditions for any delays or failures in performance of these Terms & Conditions which result from circumstances beyond the reasonable control of that party. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than three months, either party may terminate this Agreement by written notice to the other.
12. General Provisions
- Assignment and sub-contracting: Neither party may assign, transfer, charge or otherwise deal with all or any of its rights and/or obligations under or pursuant to these Terms & Conditions, or sub-contract the performance of any of its obligations under or pursuant to these Terms & Conditions without the prior written consent of the other. Neither party will be relieved of any of its obligations and/or duties under these Terms & Conditions by virtue of the other agreeing in writing to the sub-contracting of any or all of its obligations and/or duties under these Terms & Conditions.
- Third party rights: The parties agree that no term of the Agreement will be enforceable by any third party by virtue of the Contracts (Rights of Third Parties) Act 1999 provided that any Third Party Provider shall be entitled to enforce against you any provision of this Agreement that purports to confer any benefit upon it.
- Severability: If any provision (or part of a provision) of these Terms & Conditions is held to be invalid or unenforceable, then such provision (or relevant part, as the case may be) shall (so far as invalid or unenforceable) be given no effect and shall be deemed not to be included in these Terms & Conditions but without invalidating any of the remaining provisions (or remaining part of any provision) of these Terms & Conditions.
- Waivers: No failure or delay by any party in exercising any right or remedy provided by law under or pursuant to these Terms & Conditions shall impair such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time.
- Variation: Figtree shall be entitled to vary these Terms & Conditions by giving you notice by email of a change. Your continued receipt of the Services after any such variation takes effect shall be deemed to be an acceptance of any such variation. No amendment or variation of these Terms & Conditions shall otherwise be valid unless it is in writing and signed by or on behalf of duly authorised representatives of each of the parties.
- Entire Agreement: These Terms & Conditions set out the entire agreement and understanding between the parties in respect of the matters covered herein and supersede any previous arrangement, understanding or agreement between the parties relating to the subject matter of these Terms & Conditions.
- Further Assurances: Each party shall (and shall procure that any necessary third parties shall) (at the other party’s cost) do all such acts and execute all such documents in a form satisfactory to the other party as the other party may from time to time request in order to carry out the purposes and intent of these Terms & Conditions.
- Relationship between the Parties: Nothing in this Agreement shall be construed as creating a partnership or a contract of employment between you and Figtree. You shall have sole responsibility for the fees, wages, taxes etc payable to any Third Party Provider or your staff.
- Governing Law: These Terms & Conditions and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
- Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms & Conditions or their subject matter or formation (including non-contractual disputes or claims).