Terms of Business

Acceptance

These are the terms and conditions upon which External Examiner Network Limited supplies its commercial services to its business clients. If you want to make use of our services, you will have to check the box that indicates your acceptance of these terms and conditions on the webpage setting out your application. If you don't check that box, your application will not be submitted. If you do check that box and then submit your application, we will call you to confirm the details of your application and payment arrangements. We will then accept your application and at that point there will be a binding contract between us.

To engage with us on a commercial basis, you, the individual completing and submitting the application, must first be duly authorised to contract on behalf of your university or college. In other words, you complete the application but the contract will be with the university or college on whose behalf you act.

We will form an individual contract with the schools or faculties within your college or university. There will only be one prime contact for each school or faculty and if you are the first user to sign up on behalf of your school or faculty, that main user, for the time being at least, will be you. As the prime contact, you will have access to the full functionality of findexaminers. Subsequent operators will be sub-users, and the functionality available to them will be more limited.

In the event that sub-users wish to add further areas of specialism, we can arrange that for you at no extra cost. Please ask us about this when we call following receipt of your application.

1. Interpretation

1.1 It saves a lot of reading if we define what is meant by certain words at the outset. So, wherever you see the following words With Apparently Inappropriate Use of Capital Letters, they will have the meanings set out here:

Application

means the application that you have submitted to us via the Website, citing details relating to the Client and the nature of the Services that you seek to use.

Conditions

means these terms and conditions that you are reading now, including the section at the top titled "Acceptance". Please bear in mind that we may change these Conditions from time to time and if we do, we will let you know and the new version of the Conditions will apply to the Contract we have with you from that moment onwards.

Contract

means the contract we have with you that is subject to these Conditions and which together we have created through the process of your submission of an Application and our acceptance of that Application.

EEN

means us, External Examiner Network Limited, a company incorporated in England under registration number 08026796 whose registered office of External Examiners Limited is located at Boho One, Bridge Street West, Middlesbrough, TS2 1AE. When we use words like "we", "us" and "our" in these Conditions, it is to EEN that we refer.

Client

means the college or university that is engaging our Services and which is named in the Application or, depending on the context, other institutions doing likewise. When we make use of terms like "you" and "yours" in these Conditions then, unless we specifically say otherwise, we mean you, our Client.

Account

means the account that you create with us when you submit your Application and we accept it.

Candidates

means individuals who have signed up to the Registration Terms and are making use of the System to seek engagements as external examiners with our Clients.

Commencement Date

means the date that your Application is accepted by us. This is the date upon which these Conditions will come into effect and the date upon which we will start to supply our Services to you.

Content

means the content you post to the System using the Services.

Credentials

means the username and password set up for your Operators, who will only be able to access the System by using Credentials that are current.

Database

means the database at the heart of the System that is designed and maintained by us and which is made up of Content posted to the System by our Candidates and Clients and other content.

Dashboard

means the functionality provided in the Website that enables you to make use of the Services.

Fees

means the annual subscription fee that you pay to us for use of the Services. These charges are set out in detail on the Website and are subject to change. When we change the Fees, we shall notify you in advance so that you have a chance to adapt your use of the Services, as you feel appropriate. The new Fees will take effect from the renewal of your subscription. Unless otherwise stated, the Fees exclude value added tax (or any other applicable sales tax), which will be charged in addition at the applicable rate from time to time.

Intellectual Property Rights

means all those intangible things that can be owned and controlled notwithstanding the fact that they are not physical. This includes things like copyright, trade marks, domain names, database right and a host of other Intellectual Property Rights, wherever they might take effect in the world. It covers all such Intellectual Property Rights, whether they are registered or not, and whether they exist at the Commencement Date or come into existence some time later. This term also includes applications for registered Intellectual Property Rights that are pending as at the Commencement Date and Intellectual Property Rights whose term of protection has been renewed or extended somehow.

Operators

means the individuals as operating the Services on behalf of the Client, whether employed by you or not and register to use the Services whether as the main contact for a school or faculty within the Client or as a sub-user.

Package

means the package of Services to which you have subscribed when placing your Application (or subsequently amending your Application via the Dashboard).

Renewal Date

the anniversary of the acceptance by us of your Application.

Services

means the commercial services that we offer to our clients and which are set out in detail on the Website.

System

means the service that we supply to our Candidates as further defined in the Registration Terms.

Term

means the duration of the Contract, from the Commencement Date until the Termination Date.

Termination Date

means the effective date that this Contract is terminated.

Website

means the website hosted at an internet protocol address corresponding to the URL www.findexaminers.com.

1.2 When you see the words "includes" or "including" used in these Conditions, it means without limitation to what then follows, which is effectively an example.

1.3 You can take it that when we refer to legislation, we are also referring to all subordinate legislation (rules and regulations) that are set down under or pursuant to that legislation. Those references also include instances where the original legislation we refer to is replaced by new legislation that does the job of the legislation we referred to.

1.4 When we refer to something being "in writing" or "written", this includes emails or other forms of electronic communication, including messages or notifications sent to your account.

2. Service

2.1 Subject to your payment of the Fees, we grant you the right to make use of our Services in accordance with these Conditions.

2.2 You may decide to allow Operators to register as sub-users (as described in the Acceptance section at the top of these Conditions). In some instances, those Operators might not be employed by you but will be operating on your behalf. In such a situation, you remain liable for the acts and omissions of your Operators as if they were your own employees and you will remove their Credentials as soon as they cease to act on your behalf.

2.3 We will provide the Services to you in accordance with these Conditions provided that you have paid the Fees when they were due and that you have complied with your obligations under the Conditions.

2.5 EEN hereby grants to the Client a non-exclusive, non-transferable licence to use during the Term the Dashboard solely for the purpose of accessing and using the System in accordance with these Conditions and for no other purpose whatsoever.

3. Fees and Payment

3.1 In consideration of our supply of the Services, you will pay the Fees annually. We will invoice you when we accept your application. Payment will be due 30 days from the date of the invoice. We will invoice you again in advance of the renewal of your subscription and payment of the second invoice (and invoices concerning all further renewals) will be due on the Renewal Date.

3.2 We reserve the right to suspend your use of the Services or to terminate the Contract and delete your Account if you do not pay the Fees when they are due. We may, at our discretion, suspend the provision of the Services to you temporarily for the duration of any period in which the payment of Fees is overdue and we will not be obliged to repay any portion of the Fees paid in advance or to reduce the Fees chargeable for any period during which the Service has been suspended.

3.3 If we provide any additional Services that are not specified as included within the Fees charged for the Services to which you have subscribed, we will charge you for those additional Services at our current rates. We will raise an invoice for those additional fees and payment will be due 30 days from the date of the invoice.

3.4 In the event of the termination of the Contract, we shall attempt to collect any outstanding fees on the date of the termination (or as soon as practicable thereafter). If we are unable to do so, we shall forward you an invoice in that amount, which will be payable 30 days of the date of that invoice.

3.5 If you fail to settle any invoice raised in respect of Fees or additional fees due, we may pursue you for the recovery of that debt and if we do, we shall charge in addition interest on that debt at 4% above the base rate of Barclays Bank plc, together with any administrative fees permissible under the Late Payment of Commercial Debts (Interest) Act 1998. The interest chargeable will accrue on a daily basis from the date upon which payment was due until the date upon which payment is made, whether that is before or after judgment is given.

4. Security

4.1 The security of our Candidates is of paramount importance to us. You agree to take all measures necessary to ensure that you comply with our recommendations on security issues and that you will ensure that your Operators do likewise, providing them at your expense with any training that is necessary for the purpose. In particular, you will ensure that all Credentials are stored securely and that passwords chosen are sufficiently strong to withstand social hacking techniques.

4.2 You will co-operate with any investigation relating to security that is carried out either by EEN or by some third party authorised to do so either by us or under applicable law.

4.3 In addition and without prejudice to any security policy that we may introduce, if we become aware that you are making deliberate use of the Services for any purpose that endangers the security of our Candidates, we may, at our discretion, suspend the delivery of the Services or terminate the Contract with immediate effect and without notice.

4.4 You agree to remain alert to breaches of our Security Policy by other Clients or Candidates and to inform us if you become aware of the same. If you become any aware of any issue not covered by our Security Policy but which presents a clear danger to our Candidates or Clients, you agree to inform us of that issue immediately. Please do not assume that we are already aware of it. We would rather be told by several Clients than run the risk of missing something important.

5. Client's Undertakings

5.1 This Clause sets out the various promises you make when forming this contract with us and defines your obligations under these Conditions. You will:

5.1.1 not attempt to replicate or reproduce the System or the Services whether during the Term or for a period of one calendar year from the Termination Date.

5.1.2 set up as Operators only those individuals with whom you have a contractual arrangement (whether as employees, self-employed contractors or employees of contractors).

5.1.3 not remove, suppress or modify (or attempt to any of those things) any proprietary markings including any trade marks or legal notices concerning the ownership of Intellectual Property Rights that appear on the Website or the System. You also agree not to post any Content to the System or create any material outside the System for the purpose of promoting your deployment of the Services that might confuse Candidates or third parties as to the ownership of the System and Website or that might affect the distinctiveness of our trade marks, trade dress or other indicia, whatever that might be.

5.1.4 be solely responsible for providing and maintaining any equipment or network connectivity that you use to access the Services. You acknowledge that we will not be liable for your failure to access the Services where that failure can be attributed in whole or in part to any hardware failure that is not within our ownership or control.

5.1.5 also be solely responsible for the Content posted to the System by your Operators and that you will ensure that it complies with clause 5.2 of these Conditions and that such Content is accurate and free from viruses or other malware. You are responsible for backing up your Content and for maintaining procedures that will facilitate you to reconstruct Content that is lost and you acknowledge and accept that we will not be liable under any circumstances for loss or damage you suffer following the loss or corruption of Content that could have been recovered or reconstructed had you had appropriate procedures in place.

5.1.6 not resell, remarket or otherwise distribute the Services or any part of them.

5.1.7 at your own cost, obtain and maintain all necessary permissions, consents and licences to enable your Operators to use the Services in the countries from which they seek to access the System, if they are not located in the United Kingdom.

5.1.8 at your own cost, comply with all applicable conventions and codes of practice and all applicable laws, regulations, and other similar forms of legislation and be responsible for obtaining all regulatory approvals (or relief from the need for regulatory approval) in all relevant jurisdictions that may relate to your use of the Services and access to the System.

5.2 You warrant that the Content posted by your Operators on your behalf will not infringe the Intellectual Property Rights of any third party, nor will that Content contain anything that is offensive, obscene, abusive, libellous, false, deliberately misleading, or is otherwise illegal, nor will you make use of the Services for the distribution of unsolicited commercial mailings (otherwise known as 'spam'). In order to mitigate the damage done by the posting of any such Content (whether such Content has been posted deliberately or accidentally) we shall, as soon as we become aware that there may be an issue, immediately suspend the Content in question while we investigate. We may also, in more serious cases, at our discretion suspend your access to the Services or even terminate this Contract and delete your Account.

6. Data Processing

6.1 Our approach to the processing of personal data relating to Candidates and your Operators is set out in our Privacy Policy. You agree to treat any personal data relating to our Candidates in accordance with the Data Protection Act 1998 (and all other relevant legislation) and you will indemnify us for any loss expense or damage that we suffer as a result of your failure to do so.

6.2 We will:

6.2.1 process Personal Data and other information supplied by you solely to provide the Services under these Conditions and in accordance with the your lawful and reasonable written instructions;

6.2.2 comply with our obligations under the Data Protection Act 1998 concerning the implementation of appropriate organisation and technical security measures to safeguard the Personal Data supplied by you;

6.2.3 not disclose the Personal Data or other information supplied by you to any third party other than on your written instructions or as required by law;

6.2.4 maintain suitable back-up facilities for the Personal Data you provide at no cost to you; and

6.2.5 immediately forward to you communications from data subjects, regulatory bodies and other third parties concerning the Personal Data that you have supplied and not respond to or act on such communications without your prior agreement.

7. Term & Termination

7.1 This Contract will commence on the Commencement Date and will continue thereafter from year to year indefinitely until terminated in accordance with these Conditions.

7.2 You may terminate the Contract at any time after the expiry of any minimum term applicable to the package of services that you have purchased. You can terminate the contract by following the instructions on the Website. Your subscription will end immediately notwithstanding that you may have time remaining for which you've paid your annual Fees.

7.3 We may terminate the Contract if you are in material persistent breach of your obligations under these Conditions and either that breach or those breaches are not capable of remedy or, if they are capable of remedy, you have failed to remedy that breach within 14 days of our notifying you of the same.

7.4 We may terminate the Contract if you are unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986 or you become insolvent or an order is made or a resolution passed for your administration, winding-up or dissolution (otherwise that for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of your assets or you enter into or propose any composition or arrangement with your creditors generally of anything analogous to any of the above occurs in any applicable jurisdiction within which you operate.

7.5 We may terminate the Contract if you use the System to post Content that breaches clause 5.2 of these Conditions.

7.6 We will delete your Account following termination, however it comes about. You will remain liable for any and all sums accrued and which are due prior to, on or after the effective date of termination.

8. Intellectual Property Rights

8.1 You warrant that all Intellectual Property Rights in the Content that you upload to the System (or which is uploaded by your Operators on your behalf) belong to you or that you have permission from those that do own the Intellectual Property Rights in that Content to use those Intellectual Property Rights for the purpose of the delivery of the Services.

8.2 You hereby grant to us a non-exclusive licence to use, edit, create databases from, copy and store all Content posted by you to the System both during the Term and following the Termination Date.

8.3 Save for the Content that you post to the System, you acknowledge that all Intellectual Property Rights in the Services including the Database, Dashboard, System and Website are and shall at all times belong to us or our licensors. No rights to or property in the Services shall pass to you and you are not permitted to modify, adapt or create derivative works from the Services or any part of them. We grant to you a licence to use the Database, Dashboard and System only to the extent required to enable you to benefit from the Services according to these Conditions and we warrant that we are entitled to grant that access.

8.4 If any action or proceeding is brought by a third party

(a) against you in respect of any alleged infringement of any Intellectual Property Right arising as a result of your use of the Services, or

(b) against us in respect of any alleged infringement or any Intellectual Property Right in respect of the Content,

then the party that is the subject of the third party action or proceedings shall be indemnified by the other party from and against all costs, damages, liabilities, and losses agreed to be paid by way of settlement or compromise by, or finally awarded against the threatened party as a result of or in connection with such claims of infringement provided that:

8.4.1 the indemnified party shall notify the other party in writing of any such allegation or claim within seven days of becoming aware of the same;

8.4.2 the indemnified party shall make no verbal or written admission relating to the claim without the prior written consent of the other party, such consent is not to be unreasonably withheld or delayed; and

8.4.3 the indemnifying party (or any person nominated by it) shall at its own expense be entitled to conduct and/or settle all negotiations and litigation so arising and the indemnified party shall at the other party's expense give to the other party (or any person nominated by it) such reasonable assistance in connection therewith as the indemnifying party from time to time may reasonably request.

8.5 The exclusions and limitations under condition 10 shall not apply to the indemnity under condition 8.4.

8.6 In the event of any claim or allegation in respect of breach of any Intellectual Property Rights being made in respect of the delivery of the Services or the use of the System, we may:

8.6.1 obtain the right for you to continue using the Services and/or System in the manner permitted under these Conditions; or

8.6.2 modify the Services and/or System so as to avoid the alleged infringement provided that such modification shall not materially detract from the overall performance of the Service.; or

8.6.3 terminate the Contract with immediate effect.

9. Our Warranties & Undertakings

9.1 We warrant that the Services will comprise of the facilities and functionality described on the Website. Should you come across an element of functionality that is not operating correctly, you may inform us of this by contacting us by email addressed to support@findexaminers.com, pointing out the nature of the error and the time and date at which it was encountered. We shall use reasonable endeavours to replicate the error and, should we be able to isolate and identify the cause of the error, we will fix it as soon as reasonably practicable.

9.2 We will not be liable for any deficiency in the Services attributable to operator error, deficiencies or errors relating to any third party component not provided by us or third party connectivity needed by you to connect to the System and access the Services, nor shall we have any obligation under this condition where difficulties you have encountered are as a result of your use of the Services and the System for a purpose for which they are not intended or in a manner that is not consistent with these Conditions or as a result of the negligence or wilful misconduct either of yourself or your Operators.

10. Liability

10.1 Where any of the obligations relating to the delivery of the Services are sub-contracted by us to a third party, we will remain liable for the acts and omissions of those contractors as if they were our own.

10.2 OUR LIABILITY TO YOU IN RESPECT OF ALL OTHER CLAIMS, LOSSES OR DAMAGES, WHETHER ARISING FROM CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE UNDER OR IN CONNECTION WITH THESE CONDITIONS ARISING IN ANY CALENDAR YEAR COMMENCING ON THE COMMENCEMENT DATE OR ANY RENEWAL DATE (WHERE, FOR A SERIES OF CONNECTED CLAIMS, THE CALENDAR YEAR IN QUESTION SHALL BE THE FIRST SUCH YEAR OF THE FIRST EVENT GIVING RISE TO A CLAIM), SHALL IN NO EVENT EXCEED THE AGGREGATE OF ALL FEES PAID OR PAYABLE BY YOU IN THAT PERIOD.

10.3 SUBJECT TO CONDITIONS 10.2 AND 10.4, WE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE; OR ANY LOSS OF PROFITS, TURNOVER, DATA, BUSINESS OPPORTUNITIES, ANTICIPATED SAVINGS OR DAMAGE TO GOODWILL (WHETHER DIRECT OR INDIRECT).

10.4 Nothing in these Conditions shall act or be construed so as to act in any way to limit our liability for

(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or sub-contractors (as applicable); or

(b) fraud or fraudulent misrepresentation by us or our employees.

11. General

11.1 We will treat as confidential all Content that you upload to the System but which you do not intend to make public, such as information relating to your Account or method of payment or information to be accessed by your Operators for the purpose of making use of the Services.

11.2 We will not be liable to you for our failure to deliver the Services for any reason that is beyond our reasonable control.

11.3 We are satisfied that our delivery of the Services will comply with English law. You will ensure that when making use of the Services, you (and your Operators) will comply with all applicable laws and regulations whether under English law or the law of your own jurisdiction, wherever that happens to be. We will not be liable should you (or your Operators) fail, whether directly or indirectly, deliberately or accidentally, to comply with those laws and regulations and you will indemnify us for any loss or expense we incur as a result of dealing with any investigations, claims or other regulatory or civil action that occurs as a result of that failure.

11.4 You (our Client) and us (EEN) are independent businesses and we are not operating in partnership or in any kind of principal/agent or employer/employee relationship, nor in any other relationship of trust to each other. Under the terms and conditions that apply to their registration, Candidates acknowledge that any engagement that they agree with you will not create an employer/employee relationship, although you are free to agree with Candidates to the contrary should you so desire. You should be aware, however, that the existence of an employer/employee relationship is one based on the facts. It will not necessarily matter to a court, a tribunal or some other authority (such as HM Revenue & Customs) that the parties have agreed to call it something else. You may wish to seek advice on this issue from your lawyers.

11.5 In order to have the effect intended for them, some of the provisions of these Conditions will survive the termination of the Contract, howsoever that comes about.

11.6 The unenforceability of any part of these Conditions will not affect the enforceability of any other part.

11.7 Just because we do not insist on your compliance with any one or more of your obligations under these Conditions does not mean that we waive our right to insist on that compliance at some later date.

11.8 There may be occasions when the law requires information that we give you or communications you wish to send us have to be in writing. Where that is the case, you agree that such communications and information may be transmitted electronically. Nevertheless, if you wish to write to us in hard copy, you may address your letter to the registered office address given at the top of these Conditions. For the purpose of these Conditions, you may assume that we have received that letter seven days after the date you have posted it.

11.9 You recognise that your breach (or threatened breach) of these Conditions may cause irreparable harm to us and that in such a situation, we are entitled to seek an injunction or other equitable relief to prevent that breach or further occurrences of that breach in future.

11.10 With regard to any indemnity given by you to us or us to you under these Conditions, the party with the benefit of that indemnity will take all reasonable steps to reduce or mitigate the loss covered by that indemnity.

11.11 No person who is not a party to our Contract with you shall have any rights under the Contracts (Rights of Third parties) Act 1999 to rely upon or enforce any of the provisions of these Conditions. However, this does not affect any right or remedy of the third party which exists or is available apart from that Act.

11.12 The Contract between us incorporates these Conditions to the exclusion of all others, together with the Application and the Privacy Policy, which constitutes the entire agreement and understanding between us and you in respect of the matters dealt with in it and supersedes, cancels and nullifies any previous agreement between us in relation to such matters. You agree that in entering into the Contract, you do not rely upon, and shall have no remedy in respect of, any statement, representation, warranty or undertaking (whether negligently or innocently made) other than as expressly set out in these Conditions and any document referred to in them. The only remedy available to you in respect of any such statements, representation, warranty or understanding shall be for breach of contract under the terms of these Conditions.

11.13 These Conditions and the Contract are governed by the law of England and Wales and are subject to the exclusive jurisdiction of the English Courts.