Advance HE: Membership Packages terms and conditions (worldwide)
Advance HE is a company limited by guarantee incorporated in England and Wales under company number 4931031, and registered as a charity in England under charity number 1101607, with its registered office at Innovation Way, York Science Park, Heslington, York YO10 5BR (“Advance HE”). The following are the terms and conditions (the “Terms”) between Advance HE and the organisation to which it has agreed to provide the Membership. These Terms, the Letter and the Terms of Use are together the “Contract”. In the event and only to the extent of any conflict between these Terms, the Letter and/or the Terms of Use, these Terms shall prevail except where the Letter or the Terms of Use (as applicable) specifically states that its terms are to prevail over these Terms.
1. Interpretation
1.1 In this Contract, the following expressions shall have the following meanings unless the context otherwise requires:
Accreditation Services: means the operation by Advance HE of peer review processes to accredit programmes and / or training schemes and / or a commitment to, and progress on, equality and diversity charters, of Members. The review process applies specific criteria as set out in Advance HE’s Accreditation and Charter’s policy and guidance;
Advance HE Surveys: means Postgraduate Research Experience Survey (PRES), Postgraduate Taught Experience Survey (PTES) and/or UK Engagement Survey (UKES);
Confidential Information: any information which has been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information which relates to the business, affairs, finances, properties, assets, trading practices, Services, products, marketing, developments, trade secrets, Intellectual Property Rights, know-how, personnel, and customers of Advance HE or the Member (as the case may be) and all personal data and sensitive personal data within the meaning of the Data Protection Legislation, which is in each case provided or obtained by one party, to or for the other party;
Intellectual Property Rights: any copyright and related patents, rights to inventions, registered designs, database rights, design rights, topography rights, trademarks, service marks, trade names and domain names, trade secrets, rights in unpatented know-how, rights of confidence, rights in databases, moral rights and any other intellectual or industrial property rights of any nature including all applications (or rights to apply) for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, marketing methods and procedures and advertising literature, including the “look and feel” of any websites, now or in the future in any part of the world;
Letter: the e-mail and/or letter sent by Advance HE to the Named Representatives with details of the Membership packages available, including enclosures or attachments referred to in such e-mail and/or letter;
Materials: all materials including, but not limited to, items, documents, web- based content supplied by Advance HE to the Member as part of the Membership;
Member: the organisation that pays or will pay for the Membership;
Membership: means the membership package offered by Advance HE and accepted by the Member in the Letter, which entitles the Member and Users to use and access the Services in accordance with the Contract;
Membership Fee: the fee payable by the Member to Advance HE for the Membership, as set out in the Letter;
Named Representatives: the Member’s named institutional contact(s);
Services: the services provided by Advance HE to the Member as part of the relevant Membership and including any Accreditation Services (as more particularly described in, or referred to in, the Letter and on the Website), in accordance with this Contract;
Terms of Use: the terms of use (https://www.advance-he.ac.uk/terms) governing the use of the Website;
Users: those employees of the Member who are authorised by the Member to use the Services; and
Website: https://www.advance-he.ac.uk or website link as notified by Advance HE to the Member.
1.2 Where the words “include(s)” or “including”, or words of a similar nature, are used in this Contract, they are deemed to have the words “without limitation” following them, and are illustrative and shall not limit the sense of the words preceding them.
1.3 Words denoting the singular shall include the plural and vice versa and words denoting one gender shall include each gender and all genders.
1.4 Unless otherwise stated, a reference in this Contract to a statute or statutory provision is a reference to the relevant UK statute or statutory provision as it is in force during the Membership Term, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation made under such statute or statutory provision and in force during the Membership Term.
1.5 The terms of this Contract shall prevail over any other terms and conditions issued by the Member, whether on a purchase order or otherwise.
2. Membership
2.1 Advance HE hereby grants to the Member the non-exclusive, non-transferable right to use and access the Services (via the Website, when available) during the Member Term solely for the Member’s internal business operations.
2.2 The Member shall:
2.2.1 provide details of the Website to the Users (when available);
2.2.2 provide details of the Services available to the Member and access if required;
2.2.2 provide Advance HE with 30 (thirty) days’ written notice should it wish to change the Membership package;
2.2.3 be responsible for any Users use of the Services that is not in accordance with the Terms of Use; and
2.2.4 if purchasing Advance HE Surveys, ensure that it has access to any necessary platform required to access Advance HE Surveys at its own cost.
2.3 The Member shall not:
2.3.1 use the Services to provide services to third parties;
2.3.2 licence, sell, rent, lease, transfer, assign or otherwise commercially exploit or otherwise make the Services available to any third party except the Users.
2.4 Where Accreditation Services are being provided as part of the Services under the Membership, the Member shall:
2.4.1 complete and return an annual review form before the deadline as set by Advance HE;
2.4.2 comply with all obligations under the Accreditation Policy of Advance HE as published on the Website; and
2.4.3 allow Advance HE to conduct audits at any time and as notified to the Member, in order to assess compliance with these Terms (including Advance HE’s Accreditation Policy from time to time).
2.5 Advance HE’s Accreditation Services policies set out the position should a Membership cease or be terminated.
2.6 Unless otherwise explicitly agreed, all communication and documents submitted by the Member to Advance HE shall be in the English language.
3. User Memberships
3.1 In relation to the Users, the Member undertakes not to do or say anything throughout the Membership Term which damages or which could reasonably be expected to damage the interests or the reputation of Advance HE or its officers, employees, agents, contractors, funders or owners.
4. Obligations of Advance HE
4.1 Advance HE warrants that it has and will maintain all necessary licences, consents and permissions necessary for the performance of its obligations under these Terms.
5. Membership Fee
5.1 The Member shall pay the Membership Fee to Advance HE in accordance with this clause 5.
5. The Member shall pay to Advance HE the Membership Fee in full cleared funds (without deduction or set-off) in Pound Sterling, or the agreed currency when explicitly agreed to in writing by Advance HE. The payment will be made by the Member within 30 days of the date of any invoice submitted by Advance HE to the Member.
5.3 Without prejudice to any other right or remedy that it may have, if the Member fails to pay Advance HE within the timescale set out in clause 5.2 above, Advance HE may:
5.3.1 charge interest on such sum from the due date for payment at the annual rate of 4% above the base rate from time to time of the Royal Bank of Scotland accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Member shall pay the interest immediately on demand; and
5.3.2 immediately withdraw/suspend all Services until full cleared payment has been received from the Member by Advance HE.
5.4 Advance HE shall provide the Services to the Member only upon receipt of the Membership Fee.
6. Confidentiality
6.1 Each party undertakes that it shall not at any time disclose to any person any Confidential Information of the other party, except as permitted by clause 6.2.
6.2 Each party may disclose the other party's Confidential Information:
6.2.1 to its employees, officers, representatives, professional advisers or consultants who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives, professional advisers or consultants to whom it discloses the other party's confidential information comply with this clause 6; and
6.2.2 to the extent required by law, a court of competent jurisdiction or any governmental or regulatory authority.
6.3 No party shall use any of the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
6.4 The provisions of this clause 6 shall not apply to any Confidential Information which:
6.4.1 is or becomes public knowledge (otherwise than by breach of this clause 6);
6.4.2 was in the possession of the receiving party, without restriction as to its disclosure, before receiving it from the disclosing party;
6.4.3 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or
6.4.4 is independently developed without access to the Confidential Information.
6.5 This clause 6 shall remain in full force and effect, and will survive the termination and/or expiry of this Contract, however arising.
7. Intellectual Property Rights
7.1 The Intellectual Property Rights in any Materials (or in or arising out of or in connection with the Services) shall be owned by Advance HE or its licensors (as the case may be). Advance HE hereby grants to the Member during the Membership Term a non-exclusive, revocable, non-transferable, non-assignable, royalty-free licence to use the Materials solely for the purpose of receiving and using the Services and subject to the terms set out below and for no other purpose whatsoever (“Licence”):
7.1.1 the Member may use the Material for its own academic teaching and academic research purposes only;
7.1.2 for the avoidance of doubt the Member may not distribute, publish or make available the Material to the public, whether for commercial advantage or otherwise, in any media or format whether now known or hereafter devised without the prior written consent of Advance HE; and
7.1.3 under the terms of the Licence, the Member may not make adaptations of the Materials (including any translation, adaptation, derivative work or other alteration derived from the original Materials) without the prior written consent of Advance HE.
7.2 The Member shall not sub-license, assign or otherwise transfer the rights granted in clause 7.1.
7.3 As a condition of the Licence granted to the Member, the Member must keep intact all copyright notices for the Materials together with any other attribution notices as directed by Advance HE from time to time.
7.4 The Member shall not use the Materials in any manner that infringes Advance HE’s or its suppliers’ Intellectual Property Rights in them.
7.5 Nothing in this Agreement shall operate to grant any licence or rights to the Member to use Advance HE’s names, trade marks or logos whether in connection with the Materials or otherwise, except where expressly provided in writing.
7.6 All rights that are not expressly granted by Advance HE are reserved by Advance HE.
7.7 The provisions of this clause 7 shall survive the termination and/or expiry of this Contract, however arising.
8. Data Protection
The following provisions of this clause 8 apply (and the Schedule to these terms and conditions shall not apply) if the Member is established in the United Kingdom (UK), or in any member state of the European Union (EU), or (to the extent applicable under Data Protection Legislation) the European Economic Area (EEA), or in a state that has been formally recognised by the European Commission as providing adequate protection for Personal Data and the rights of Data Subjects.
If the Member is located in any other state or jurisdiction, the Schedule to these terms and conditions shall apply, and clauses 8.1, 8.2.4 and 8.3 to 8.8 (inclusive) shall apply in relation to the Personal Data described in the Schedule but the other provisions of this clause 8 shall not apply. In such case: (a) the Member specifically agrees to the selection made in clause 2(h) of the Schedule; and (b) the Member agrees to notify Advance HE in writing with the name and contact details of the Member’s employee who is responsible for the Member’s Processing of the Personal Data.
8.1 In these terms and conditions:
8.1.1 “Data Protection Legislation” shall mean the DPA, the GDPR and any other applicable laws relating to the protection of personal data and the privacy of individuals (all as amended, updated or re-enacted from time to time);
8.1.2 “Data Subject”, “Controller”, “International Organisation”, “Personal Data Breach”, “Processor” and “Processing” have the same meaning as in GDPR;
8.1.3 “DPA” means the UK Data Protection Act 2018;
8.1.4 “GDPR” means the General Data Protection Regulation (EU) 2016/679;
8.1.5 “Personal Data” has the meaning set out in GDPR in relation to data that are Processed under this Contract;
8.1.6 “Privacy Notice” means an information notice for the purposes of Articles 13 and 14 of GDPR;
8.1.7 “Regulator” means any independent public authority responsible for monitoring the application of the Data Protection Legislation in the UK or any member state of the European Union and includes (in relation to guidance) guidance issued by the Article 29 Working Party or its successor(s); and
8.1.8 “Third Country” means any country other than the UK, a European Union Member State or a member of the European Economic Area at the time of transfer of Personal Data.
Sharing of Personal Data between the parties as Controllers
8.2 Each party acknowledges and agrees that, for the purposes of the Data Protection Legislation and this Contract:
8.2.1 the parties shall share Personal Data relating to the following categories of Data Subjects:
· staff of the Member, including management and administrative contacts used by Advance HE as well as fellows and prospective fellows of Advance HE;
· staff and contractors of Advance HE, including management and administrative contacts provided by Advance HE for the Member, and consultants and trainers; and
· any staff member of any higher education institution who is not a member of Advance HE;
8.2.2 the parties shall share the following categories of Personal Data relating to such Data Subjects: name, date of birth, job title, Advance HE fellowship status, institution, department, e-mail address, postal address, telephone number, the contents of correspondence, and any Personal Data submitted to Advance HE as part of a peer review application or annual review form;
8.2.3 the nature/purpose of the Processing is for Advance HE to:
(i) provide, and to enable the Member to enjoy the benefit of, its Membership benefits under this Contract (which form the subject matter of the Processing); and
(ii) provide the Accreditation Services;
8.2.4 the duration of the Processing shall be the Membership Term; and
8.2.5 each party shall normally be a Controller in relation to the Personal Data and Data Subjects provided that if the Member receives from Advance HE any Materials that contain Personal Data in relation to which the Member is not a Controller (for example, due to an error in the Personal Data, or because the Data Subject is no longer employed by the Member), the Member shall not Process such Personal Data for its own purposes whatsoever, and shall only Process the Personal Data so as to (a) notify Advance HE in writing (identifying the Data Subject and Personal Data) within three (3) days of the Member discovering that it holds Personal Data in relation to which it is not a Controller, and (b) comply with Advance HE’s instructions in relation to the Member destroying the Personal Data and receiving replacement Materials.
8.3 Each party shall comply with its obligations under the Data Protection Legislation and shall not do or omit to do anything that might cause the other party to be in breach of the Data Protection Legislation.
8.4 Each party shall notify the other party, as soon as reasonably practicable, about any exercise of rights, request or complaint received from any Data Subjects or Personal Data of the types described in clause 8.2 above.
8.5 With respect to any Personal Data disclosed to Advance HE by the Member, the Member shall:
8.5.1 to the extent it is required by the Data Protection Legislation, inform the Data Subject of such disclosure in advance of such disclosure;
8.5.2 ensure that such disclosure is lawful, fair and transparent in all respects for the purposes of Data Protection Legislation; and
8.5.3 provide a relevant Privacy Notice to administration staff and academic staff before providing each such person’s Personal Data to Advance HE.
8.6 With reference to Personal Data disclosed or made available to the Member by Advance HE, the Member shall not:
8.6.1 disclose or make available such Personal Data to any third party (including any subsidiary of the Member); or
8.6.2 transfer any such Personal Data to any Third Country,
unless the Member has (a) informed the Data Subject of such transfer or disclosure in advance of such transfer or disclosure, and (b) ensured that such transfer or disclosure is lawful, fair and transparent in all respects for the purposes of Data Protection Legislation.
8.7 The Member shall not transfer any Personal Data to any subsidiary of that Member that is based in a Third Country without obtaining prior written approval from Advance HE (which Advance HE may make subject to the subsidiary entering into a contract with Advance HE in relation to the Personal Data).
8.8 The Member shall update the MyAcademy portal as soon as reasonably practicable to reflect new staff employed or staff no longer employed at the Member’s institution, and shall also maintain the contact details of its nominated contact who has access to the MyAcademy Portal and ensure such details are complete, accurate and up-to-date.
Provision for appointment of a party as Processor of the other party
8.9 Advance HE may appoint the Member as a Processor for Advance HE from time to time (for example, for the purpose of arranging visas for Advance HE’s staff or contractors who are required to attend the Member’s site(s) in a state that is outside the UK or EU), and Advance HE may agree in writing to accept appointment as a Processor for the Member for certain specific purposes. The Member shall have no such appointment unless Advance HE notifies the Member in writing, stating that Advance HE appoints the Member as Advance HE’s Processor, and stating (a) the type(s) of Personal Data and categories of Data Subjects that the Member is appointed to Process, and (b) the nature/purpose of the Processing and the duration of the Processing.
8.10 If the Member is established in or will Process the Personal Data in a Third Country, any Processor appointments pursuant to clause 8.9 shall be subject to the Member first entering into a separate, binding written agreement with Advance HE, on terms and conditions specified by Advance HE in accordance with Data Protection Legislation. If the Member is established in (and will Process the Personal Data in) the UK or EU and Advance HE notifies the Member pursuant to clause 8.9 (or Advance HE agrees to be appointed as a Processor) the following provisions of this clause 8.10 shall apply. In such a case the Processor shall, when acting as Processor for the other party, in particular:
8.10.1 Process the Personal Data that is specified in their appointment only to the extent, and in such manner, as is necessary for the relevant purpose as referred to in the written appointment, and in accordance with the other Party’s written instructions and this clause 8.10;
8.10.2 implement appropriate technical and organisational measures in accordance with the Data Protection Legislation to ensure a level of security appropriate to the risks that are presented by such Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the relevant Personal Data, taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the likelihood and severity of risk in relation to the rights and freedoms of the relevant Data Subjects;
8.10.3 not transfer the Personal Data to a Third Country without the prior written consent of the other party;
8.10.4 ensure that any employees or other persons authorised to Process the relevant Personal Data are subject to appropriate obligations of confidentiality;
8.10.5 not engage any third party to carry out any of the Processing without obtaining the prior written consent of the other party and, where such consent is given, procuring by way of a written contract that such third party will, at all times during the engagement, be subject to data Processing obligations equivalent to those set out in this clause;
8.10.6 notify the other party, as soon as reasonably practicable, about any exercise of rights, request or complaint received from relevant Data Subjects without responding to that request (unless authorised to do so by the other party) and assist the other party by technical and organisational measures, insofar as possible, for the fulfilment of the other party’s obligations in respect of such requests and complaints;
8.10.7 on request by the other party and taking into account the nature of the Processing and the information available to the Processor, assist the other party in ensuring compliance with its obligations under the Data Protection Legislation with respect to:
(i) implementing appropriate technical and organisational measures, including in accordance with Article 32 of the GDPR;
(ii) where relevant, notifying any Personal Data Breach to the Information Commissioner’s Office (or any replacement body) or other relevant Regulator, and/or communicating such Personal Data Breach to the Data Subject in accordance with Articles 33 and 34 of the GDPR; and
(iii) where necessary, carrying out and/or reviewing and, if applicable, consulting with the Information Commissioner’s Office (or any replacement body) or other relevant Regulator with respect to data protection impact assessments in accordance with Articles 35 and 36 of the GDPR;
8.10.8 on request by the other party, make available all information necessary to demonstrate the Processor’s compliance with this clause and otherwise permit, and contribute to, audits carried out by the other party (or its authorised representative); and
8.10.9 on termination or expiry of this Contract or the Processor appointment (whichever is the earlier), destroy or return to the other party (as the other party directs) all Personal Data and delete all existing copies of such Personal Data.
8.11 Advance HE may, at any time on not less than 30 days’ notice, revise this clause 8 by replacing it with any standard clauses adopted in accordance with Article 28 of the GDPR, or to take account of changes in the Data Protection Legislation or guidance issued by a Regulator under the Data Protection Legislation.
9.Limitation of Liability
9.1 This clause 9 sets out the entire financial liability of Advance HE to the Member in respect of:
9.1.1 any breach of this Contract;
9.1.2 any use made by the Member of the Services or any part thereof; and
9.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract.
9.2 Nothing in this Contract shall exclude or restrict the liability of either party to the other:
9.2.1 for death or personal injury resulting from negligence; or
9.2.2 for fraud or fraudulent misrepresentation; or
9.2.3 in any other circumstances where liability may not be limited under any applicable law.
9.3 Nothing in this Contract shall exclude or restrict the liability of the Member to Advance HE:
9.3.1 for any breach by the Member of:
9.3.1.1 clause 6 (Confidentiality); or
9.3.1.2 clause 7 (Intellectual Property Rights); or
9.3.1.3 clause 8 (Data Protection).
9.4 Subject to clauses 9.2 and 9.3:
9.4.1 Advance HE shall not under any circumstances whatsoever be liable for:
9.4.1.1 loss of profits; or
9.4.1.2 loss of business; or
9.4.1.3 depletion of goodwill and/or similar losses; or
9.4.1.4 loss of anticipated savings; or
9.4.1.5 loss of goods; or
9.4.1.6 loss of contract; or
9.4.1.7 loss of use; or
9.4.1.8 loss or corruption of data or information; or
9.4.1.9 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.4.2 Advance HE’s total aggregate liability whether in contract, tort, negligence, breach of statutory duty or otherwise at law, in respect of any one claim or series of linked claims under or in connection with this Contract shall be limited to the sum equal to the Membership Fee properly paid and payable in the preceding year in which the claim or series of claims arose.
9.5 Except where otherwise expressly stated in this Contract, all remedies available to either party for breach of this Contract are cumulative and may be exercised concurrently or separately, and the exercise of one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
9.6 The provisions of this clause 9 shall survive the termination and/or expiry of this Contract, however arising.
10. Indemnity
10.1 The Member shall defend, indemnify and hold harmless Advance HE against any claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Member’s use of the Services, provided that:
10.1.1 the Member is given prompt notice of any such claim;
10.1.2 Advance HE provides reasonable co-operation to the Member in the defence and settlement of such claim, at the Member’s expense; and
10.1.3 the Member is given sole authority to defend or settle the claim.
10.2 Advance HE shall defend the Member, its officers, directors and employees against any claim that the Services infringe any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality and shall indemnify the Member for any amounts awarded against the Member in judgment or settlement of such claims, provided that:
10.2.1 Advance HE is given prompt notice of any such claim;
10.2.2 the Member provides reasonable co-operation to Advance HE in the defence and settlement of such claim, at Advance HE’s expense; and
10.2.3 Advance HE is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, Advance HE may procure the right for the Member to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 (two) days’ prior written notice to the Member without any additional liability or obligation to pay damages, whether liquidated or otherwise, or other additional costs to the Member.
10.4 In no event shall Advance HE, its employees, agents and sub-contractors be liable to the Member to the extent that the alleged infringement is based on:
10.4.1 a modification of the Services by anyone other than Advance HE; or
10.4.2 the Member’s use of the Services after notice of the alleged infringement from Advance HE or any appropriate authority.
11.Membership Term and Termination
11.1 The Schedule (where applicable) and clause 8 shall commence on 1 May 2020 and shall continue in full force and effect for the Membership Term. For all other purposes this Contract shall commence on 1 August 2020 or such other date as communicated by Advance HE to the Member (“Effective Date”) and unless terminated earlier in accordance with its terms, shall continue in full force and effect for a period of 12 (twelve) months or such other period as set out in the Letter from the Effective Date (“Membership Term”).
11.2 The Contract may be terminated immediately by either party on written notice to the other party:
11.2.1 if the other party commits a material breach of the Contract, provided that, if the breach is capable of being remedied, the defaulting party has failed to remedy the same within 20 (twenty) days from the date of receipt of notice specifying the breach and requiring its remedy;
11.2.2 if a Force Majeure event occurs in accordance with clause 12;
11.2.3 the Member is unable to pay its debts within the meaning of s.123 Insolvency Act 1986 or equivalent provision in another jurisdiction;
11.2.4 any step, action, application or proceeding is taken by or in respect of the Member in relation to the whole or any part of its undertaking for;
11.2.4.1 a voluntary arrangement or composition with its creditors or reconstruction of its debts; or
11.2.4.2 winding-up, dissolution, administration or receivership (administrative or otherwise) or bankruptcy;
11.2.5 any step, action, application or proceeding is taken by or in respect of the Member in any jurisdiction to which it is subject (including, without limitation, one in which the Member is incorporated) which has an effect similar or equivalent to any of the events mentioned in clause 11.2.3 and clause 11.2.4.
11.3 Advance HE may terminate the Contract at any time by giving the Member not less than 30 (thirty) days’ notice in writing. Advance HE shall refund the Membership Fee paid by the Member for the remainder of the Membership Term. The remainder of the Membership Term is calculated by the amount of full months left on the Membership Term. The amount of full months left on the Membership Term shall be rounded down. The Membership Fee shall be divided equally over the amount of months the Membership Term consists of. The Member shall not be entitled to claim any compensation on account of such termination. In the event of termination by Advance HE in accordance with this clause 11.3, the Member must notify Advance HE of its payment details in accordance with the notice of termination within 14 (fourteen) days of the date of the notice of termination in order for Advance HE to arrange for a refund. The Member shall forfeit the refund if the payment details are not supplied within the aforementioned time period.
11.4 Should the Member wish to terminate the Contract, the Membership Fee for the Membership Term shall not be refunded by Advance HE.
11.5 On termination of this Contract for any reason, the Member shall immediately delete or return to Advance HE, at Advance HE’s request, all documents, Materials, information and other resources provided by Advance HE to the Member for the purposes of or in connection with this Contract, including any Confidential Information, except that:
11.5.1 where expressly agreed in writing by Advance HE, the Member shall be entitled to retain one copy of such documents, Materials, information and other resources for audit purposes only; and
11.5.2 the Member shall not be required to return or destroy any such documents, Materials, information and other resources stored in its automatically archived electronic files, provided that such files are accessible only to those persons engaged by the Member to be responsible for the safe and secure storage of such files, and in each case the provisions of clauses 6 (Confidentiality) and 8 (Data Protection) shall continue to apply to such retained documents, Materials, information and other resources.
11.6 Termination of this Contract, however it arises, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
12. Force Majeure
12.1 Advance HE shall not be in breach of this Contract if it is prevented from or delayed in carrying on its business or providing the Services by acts, events, omissions or accidents beyond its reasonable control (“Force Majeure”) including (insofar as beyond such control but without prejudice to the generality of the foregoing expression) but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, epidemic, pandemic, war, riot, civil commotion, malicious damage, volcanic ash, earthquake, military coup, armed conflict, explosion, terrorist act, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, illness or cancellation by Advance HE, any state’s exit from the European Union, (where applicable) inability to obtain the relevant visa for Advance HE staff to undertake required international travel, or default of consultants or sub-contractors.
12.2 In the event of Force Majeure, Advance HE may, at its own discretion, perform, suspend performance of or terminate the Contract with immediate effect upon giving written notice thereof to the Member. In no event shall Advance HE be held liable for any damages arising out of this Agreement due to Force Majeure as set forth in this clause 12. It is in the sole discretion of Advance HE to issue any refunds to the Member regarding the Membership Fee in the event of suspending or terminating the Contract due to Force Majeure as set in this clause 12.
13. General
13.1 Publicity: The Member shall not publicise the terms of the Letter or use any Advance HE trade mark(s) without the prior written consent of Advance HE. However, the Member may refer to Advance HE in press releases, promotional literature, publications or advertising material, including any website, “blogs”, social media or other online services provided that such publication is not derogatory in any way to Advance HE, or damages (or which could reasonably be expected to damage) the interests or the reputation of Advance HE or its officers, employees, agents, contractors, funders or owners.
13.2 Assignment: The Member shall not, without the prior written consent of Advance HE, assign, transfer, charge, create a trust in, or deal in any other manner with all or any of its rights or obligations under this Contract. Advance HE may assign or novate this Contract to: (i) any separate entity controlled by Advance HE; or (ii) any body or department which succeeds to those functions of Advance HE to which this Contract relates. The Member warrants and represents that it will (at Advance HE’s reasonable expense) execute all such documents and carry out all such acts, as reasonably required to give effect to this clause 13.2.
13.3 Subcontracting: Advance HE may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract. The Member shall not, without the prior written consent of Advance HE, subcontract any of its rights and obligations under this Contract.
13.4 Third Party Rights: The Contract does not create any rights or benefits enforceable by any person not a party to it (within the meaning of The Contracts (Rights of Third Parties) Act 1999).
13.5 Entire agreement: This Contract contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing, provided that nothing in this clause 13.5 shall operate to limit or exclude either party’s liability for fraudulent misrepresentation.
13.6 Waiver: A waiver of any right under this Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
13.7 Severability: If any provision (or part of a provision) of this Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
13.8 Notices: All notices and other communications shall be in writing and in the English language, and shall conclusively be deemed to have been duly given at 9.00 am on the second business day after posting by first class post to the address of the relevant party as set out in these Terms or the Letter or such other address as notified by the parties from time to time.
13.9 Insurance: During the Membership Term, the Member shall maintain in force, with a reputable insurance company, adequate insurance to cover the liabilities that may arise under or in connection with the Contract, on terms no less favourable than those generally available to a prudent contractor in respect of risks insured in the relevant insurance market from time to time, and shall, upon Advance HE’s request, produce satisfactory documentary evidence to demonstrate compliance with this clause.
13.10 Variation: Advance HE may at any time vary these Terms subject to 1 (one) months’ prior notification in writing to the Member of such variation. For the avoidance of doubt, such notification shall be effective if sent by e-mail.
13.11 Dispute Resolution: Subject to the remainder of this clause 13.11, the parties agree irrevocably that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including any non-contractual dispute or claim) that arises out of or in connection with this Contract or its subject matter or formation. If any dispute or claim arises out of or in connection with this Contract, the parties shall, following service of written notice by one party on the other, attempt to resolve amicably by way of good faith negotiations and discussions any such dispute or claim as soon as reasonably practicable (and in any event within 10 working days after such notice is given or by such later date as the parties may otherwise agree in writing). If the dispute or claim is not settled by mediation within 30 days of the commencement of the mediation, or such further period as the parties shall agree in writing, either party may commence proceedings in accordance with clause 13.11. Nothing in this clause 13.11 shall prevent either party from applying at any time to the court for injunctive relief on the grounds of infringement, or threatened infringement, of the other party's obligations of confidentiality contained in this Contract or infringement, or threatened infringement, of the applicant's Intellectual Property Rights.
13.12 Governing law: This Contract and any dispute or claim (including any non-contractual dispute or claim) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the laws of England and Wales.
Schedule
Introduction
1.1 The Member shall control any personal data under this agreement in accordance with the laws applicable in the territory within which the Member operates (the “Local Laws”) and shall not do anything to put the Advance HE in breach of the Local Laws.
1.2 In order to ensure compliance with Advance HE’s obligations under English law the parties agree that the Standard Contractual Clauses set out below (the “Clauses”) are incorporated into this agreement. For the purposes of those Clauses, Advance HE shall be the data exporter and the Member shall be the data importer.
1.3 Expressions defined in the Clauses below and used in this introduction have the meaning set out in the Clauses.
1.4 The parties agree to execute any such further documents required to comply with the General Data Protection Regulation (EU) 2016/679 from the date it comes into force in the United Kingdom.
Standard Contractual Clauses (controllers)
Definitions
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data/sensitive data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority/authority' shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby ‘the authority’ shall mean the competent data protection authority in the territory in which the data exporter is established);
(b) 'the data exporter' means the controller who transfers the personal data;
(c) ‘the data importer’ shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these Clauses and who is not subject to a third country's system ensuring adequate protection.
(d) The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the Clauses.
Clause 1 - Obligations of the data exporter
The data exporter warrants and undertakes that:
(a) The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
(b) It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these Clauses.
(c) It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
(d) It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
(e) It will make available, upon request, a copy of the Clauses to data subjects who are third party beneficiaries under Clause 3, unless the Clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the Clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the Clauses to the authority where required.
Clause 2 - Obligations of the data importer
The data importer warrants and undertakes that:
(a) It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
(b) It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
(c) It has no reason to believe, at the time of entering into these Clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these Clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
(d) It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these Clauses.
(e) It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of Clause 1(e).
(f) At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under Clause 3 (which may include insurance coverage).
(g) Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these Clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
(h) It will process the personal data, at its option, in accordance with:
(i) the data protection laws of the country in which the data exporter is established, or
(ii) the relevant provisions of any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorisation or decision and is based in a country to which such an authorisation or decision pertains, but is not covered by such authorisation or decision for the purposes of the transfer(s) of the personal data; or
(iii) the data processing principles set forth in Annex A.
Data importer to indicate which option it selects:
Option (i) above
Initials of data importer:
The Member agrees to the selection of option (i) as indicated above
(i) It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
(i) the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection; or
(ii) the third party data controller becomes a signatory to these Clauses or another data transfer agreement approved by a competent authority in the EU; or
(iii) data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards; or
(iv) with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer.
Clause 3 - Liability and third party rights
(a) Each party shall be liable to the other parties for damages it causes by any breach of these Clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these Clauses. This does not affect the liability of the data exporter under its data protection law.
(b) The parties agree that a data subject shall have the right to enforce as a third party beneficiary this Clause and Clause 1(b), Clause 1(d), Clause 1(e), Clause 2(a), Clause 2(c), Clause 2(d), Clause 2(e), Clause 2(h), Clause 2(i), Clause 3(a), Clause 5, Clause 6(d) and Clause 7 against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter's country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these Clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
Clause 4 - Law applicable to the Clauses
These Clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under Clause 2(h) which shall apply only if so selected by the data importer under that Clause.
Clause 5 - Resolution of disputes with data subjects or the authority
(a) In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
(b) The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
(c) Each party shall abide by a decision of a competent court of the data exporter's country of establishment or of the authority which is final and against which no further appeal is possible.
Clause 6 - Termination
(a) In the event that the data importer is in breach of its obligations under these Clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
(b) In the event that:
(i) the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to Clause 6(a);
(ii) compliance by the data importer with these Clauses would put it in breach of its legal or regulatory obligations in the country of import;
(iii) the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these Clauses;
(iv) a final decision against which no further appeal is possible of a competent court of the data exporter's country of establishment or of the authority rules that there has been a breach of the Clauses by the data importer or the data exporter; or
(v) a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs
then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these Clauses, in which case the authority shall be informed where required. In cases covered by Clause 6(b)(i), Clause 6(b)(ii), or Clause 6(b)(iv) above the data importer may also terminate these Clauses.
(c) Either party may terminate these Clauses if:
(i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer; or
(ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
(d) The parties agree that the termination of these Clauses at any time, in any circumstances and for whatever reason (except for termination under Clause 6(c) does not exempt them from the obligations and/or conditions under the Clauses as regards the processing of the personal data transferred.
Clause 7 - Variation of these Clauses
The parties may not modify these Clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial Clauses where required.
Clause 8 - Description of the transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under Clause 1(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
Annex A - DATA PROCESSING PRINCIPLES
1. Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
2. Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
3. Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
4.Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
5.Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
6. Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under Clause 2.
7. Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to "opt-out" from having his data used for such purposes.
8. Automated decisions: For purposes hereof "automated decision" shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
(a) (i) such decisions are made by the data importer in entering into or performing a contract with the data subject; and
(ii) the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.
or
(b) where otherwise provided by the law of the data exporter.
Annex B - DESCRIPTION OF THE TRANSFER
This Annex forms part of the Clauses and must be completed and signed by the parties
Data subjects
The personal data transferred concern the following categories of data subjects:
·staff of the Member, including management and administrative contacts used by Advance HE as well as fellows and prospective fellows of Advance HE; and
· staff and Contractors of Advance HE, including management and administrative contacts provided by Advance HE for the Member, and consultants and trainers.
Purposes of the transfer(s)
The transfer is made for the following purposes:
·To enable Advance HE to provide the Membership Package Services, and to enable the customer to enjoy the benefit of such services.
Categories of data
The personal data transferred concern the following categories of data:
· Name, date of birth, job title, fellowship status, institution, department, e-mail address, address, telephone number, passport details, the contents of correspondence and any Personal Data submitted to Advance HE as part of a peer review application.
Recipients
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
· Advance HE’s staff, including consultants and contractors as well as employees; and
· the Member’s own employees only, and not the Member’s contractors, workers, volunteers or any other third party.
Sensitive data (if appropriate)
The personal data transferred concern the following categories of sensitive data:
· Any special category Personal Data submitted to Advance HE as part of a peer review application
Data protection registration information of data exporter (where applicable)
· Advance HE is registered with the Information Commissioner’s Office in the UK, with registration reference Z8550188.
Additional useful information (storage limits and other relevant information)
· None.
Contact points for data protection enquiries
Advance HE
Name: Data Protection Team: data.protection@advance-he.ac.uk
DATA IMPORTER
Name: the Member’s employee who is the Member’s nominated contact notified to Advance HE in accordance with clause 8 of the Membership Packages terms and conditions.