These Terms of Service govern the relationship between: (i) You (the “Client”), as more fully detailed in a Statement of Work; and (ii) Makers Academy Limited (company number 08253870) whose registered office is at 2nd Floor, 50-52 Commercial Street, London E1 6LT, United Kingdom (“Us”, “We”, the “Supplier”).
(A) We are the provider of training services, specialising in training technology
professionals, and supplying trained technology personnel.
(B) From time to time You wish to obtain and We agree to provide to You, and, where
applicable, your Affiliates, our Services, subject to these Terms of Service.
The following definitions and rules of interpretation apply in the Terms of Service:
Affiliates: in relation to either party, each and any subsidiary or holding company of that
party, and each and any subsidiary of a holding company of that party, in each case
where direct or indirect.
Applicable Laws: all applicable laws, statutes, regulations and codes from time to time
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when
banks in London are open for business.
Change Order: has the meaning given in paragraph 5.1.
Charges: the sums payable for the Services as set out in a relevant Statement of Work.
Controller, processor, data subject, personal data, personal data breach,
processing and appropriate technical measures: as defined in the Data Protection
Data Protection Legislation: the UK Data Protection Legislation and any other
European Union legislation relating to personal data and all other legislation and
regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic
communications); and the guidance and codes of practice issued by the relevant data
protection or supervisory authority and applicable to a party.
Insolvency Event: in relation to a party: (a) that party passes a resolution for its
winding-up (except in connection with a good faith business reorganisation) or a court of competent jurisdiction issues an order for the winding-up of that party or the dissolution of that party; (b) an administrator, receiver or an administrative receiver or manager is appointed over the whole or part of that party’s assets; (c) that party makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection from its creditors generally; (d) that party is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (or other Applicable Law) (provided that there shall be no need for a determination by a court); or (e) any event similar to or analogous to the events described above occurs
under the laws of any other jurisdiction;
Intellectual Property Rights: means any and all intellectual property rights of any
nature anywhere in the world whether registered, registerable or otherwise, including
patents, utility models, trade marks, registered designs and domain names, applications
for any of the foregoing, trade or business names, goodwill, copyright and rights in the
nature of copyright, design rights, rights in databases, moral rights, know-how and any
other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing
methods and procedures and advertising literature, including the “look and feel” of any
websites, and all other intellectual property rights, in each case whether registered or
unregistered and including all applications and rights to apply for and be granted,
renewals or extensions of, and rights to claim priority from, such rights and all similar or
equivalent rights or forms of protection which subsist or will subsist now or in the future
in any part of the world.
Materials: all documents, information, items and materials in any form, whether owned
by a party or a third party, which are provided by one party to the other party in
connection with the Services.
Personnel: means in relation to any party, its employees, directors, officers, and shall
include, in the case of the Supplier, graduates who have completed any of the Supplier’s
training programmes, in each case who have come into material contact with the other
party in the course of the provision of any Services.
Services: the services as set out in an applicable Statement of Work.
Statement of Work: a detailed plan, as agreed between the Supplier and the Client
from time to time, describing the Services to be provided by the Supplier, the Charges
payable, and any other specific terms applicable to those Services.
UK Data Protection Legislation: all applicable data protection and privacy legislation in
force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
1.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a
reference to the other gender.
1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all relevant subordinate legislation made from time to time.
1.4 Any words following the terms including, include, in particular, for example or any
similar expression shall be construed as illustrative and shall not limit the sense of the
words, description, definition, phrase or term preceding those terms.
1.5 Application of these Terms of Service
1.6 These Terms of Service shall apply to all Services that the Supplier may provide to the Client. The parties will agree the Services to be provided in the relevant Statement(s) of Work, to be signed by both parties, and the Supplier shall provide those Services from the date specified in that Statement of Work.
1.7 Once a Statement of Work has been agreed and signed, no amendment shall be made to it except in accordance with paragraph 5 (Change control) or paragraph 16
1.8 Each Statement of Work shall be subject to, and shall incorporate by reference, these
Terms of Service, save that to the extent there is any conflict between these Terms of
Service and a Statement of Work, the provisions of the Statement of Work shall prevail.
2. Supplier’s responsibilities
2.1 The Supplier shall use reasonable endeavours to provide the Services to the Client with care, skill and diligence and in accordance with the relevant Statement of Work in all material respects.
2.2 The Supplier shall use reasonable endeavours to meet agreed timelines specified in a
Statement of Work but any such dates shall be estimates only and time for performance
by the Supplier shall not be of the essence.
2.3 The Supplier shall maintain all necessary licences and consents required for the proper performance of the Services
3. Client’s obligations
3.1 The Client shall:
(a) co-operate in good faith with the Supplier to enable the Supplier to deliver the
(b) provide, for the Supplier access to the Client's premises, office accommodation, data and other facilities as may be reasonably required by the Supplier for the proper performance of the Services;
(c) provide to the Supplier all documents, information, items and materials in any form (whether owned by the Client or a third party) required under a Statement of Work or otherwise reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects;
(d) obtain and maintain all necessary licences and consents and comply with all
relevant legislation as required to enable the Supplier to provide the Services,
including in relation to the Supplier’s use of all Client Materials; and
(e) comply with any additional responsibilities of the Client as set out in the relevant
Statement of Work.
3.2 If the Supplier’s performance of its obligations under these Terms of Service or any Statement of Work is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
4.1 Neither party shall, during the term of any Statement of Work and for 6 (six) months after termination of the final Statement of Work entered into between the parties, without the other party’s written consent, offer employment or engagement to any of the other party’s Personnel. However, this restriction shall not apply to any person who (without having been approached directly or indirectly) responds to a general recruitment advert placed by or on behalf of the new employer. If a party breaches this paragraph, the breaching party shall promptly pay to the non-breaching party a sum equal to the annual salary of the employee in question (paid by the original employer) and it is agreed that this amount is a genuine pre-estimate of the loss that the non-breaching party is likely to suffer as a result of such breach.
5. Change control
5.1 Either party may propose changes to the scope or execution of the Services but no
proposed changes shall come into effect until a relevant Change Order has been signed
by both parties. A Change Order shall be a document setting out the proposed changes
and the effect, if any, that those changes will have on:
(a) the Services;
(b) the Charges; or
(c) any of the other terms of the relevant Statement of Work.
5.2 If the Client wishes to make a change to the Services:
(a) it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed change;
(b) the Supplier shall, as soon as reasonably practicable after receiving the
information at paragraph
5.2(a), provide a draft Change Order to the Client.
5.3 Neither party has any obligation to proceed with any Change Order unless and until the parties have agreed in writing on the terms of such Change Order.
6. Charges and payment
6.1 In consideration of the provision of the Services by the Supplier, the Client shall pay the Charges and expenses as set out in a Statement of Work.
6.2 The Supplier shall invoice the Client for the Charges as specified in the Statement of
Work, and the Client shall pay such invoices in accordance with the Statement of Work.
6.3 Unless specified otherwise in a Statement of Work, the Client shall pay each undisputed invoice within 30 days of receipt into a bank account nominated in writing by the Supplier from time to time.
6.4 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier any sum due under any Statement of Work on the due date:
(a) the Client shall pay interest on the overdue sum from the due date until payment
of the overdue sum, whether before or after judgment. Interest under this
paragraph will accrue each day at 4% a year above the Bank of England’s base
rate from time to time, but at 4% a year for any period when that base rate is
below 0%; and
(b) the Supplier may suspend part or all of the Services until payment has been
made in full.
6.5 All sums payable to the Supplier under any Statement of Work:
(a) are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice, where applicable; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding
(other than any deduction or withholding of tax as required by law).
7. Intellectual property rights
7.1 The Client shall retain ownership of all Intellectual Property Rights in all Client’s
Materials, and the Supplier shall retain ownership of all Intellectual Property Rights in all
Supplier’s Materials. Each party shall retain ownership of all Intellectual Property Rights
in any Materials created by that party during the provision of any Services. For the
avoidance of doubt, the Supplier will own copyright to any training material, methodology or tools created or provided by the Supplier, unless stated otherwise.
7.2 Each party hereby grants to the other party a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual, irrevocable and non-terminable licence to use, copy, reproduce, adapt, distribute, display, modify in whole or in part and in any manner, any and all Client’s Materials or Supplier’s Materials respectively, solely for the purpose of, and to the extent reasonably necessary to provide and/or receive the benefit of the Services, as relevant.
7.3 Each party shall indemnify the other party all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all other reasonable professional costs and expenses)
suffered or incurred or paid by the other party arising out of or in connection with any
claim brought against that other party for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with the receipt or use of the indemnifying party’s Materials in relation to the Services. To the extent any such third party claim arises, the relevant party shall notify the indemnifying party as soon as possible.
8. Compliance with laws
8.1 In performing their respective obligations under these Terms of Service and any
Statement of Work, both parties shall comply with the Applicable Laws. Changes to the
Services required as a result of changes to the Applicable Laws shall be agreed in
writing between the parties.
9. Data protection
9.1 Both parties will comply with all applicable requirements of the Data Protection
Legislation. This paragraph is in addition to, and does not relieve, remove or replace, a
party’s obligations or rights under the Data Protection Legislation.
9.2 Without prejudice to the generality of paragraph 9.1, each party will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the other for the duration and purposes of these Terms of Service or any Statement of Work as required for the proper provision of the Services. Details of
personal data processing will be set out in a schedule to the Statement of Work.
9.3 Without prejudice to the generality of paragraph 11.1, each party shall, as applicable, in relation to any personal data processed in connection with the proper performance each party’s obligations under these Terms of Service and any Statement of Work:
(a) process that personal data only on the documented written instructions of the
other party unless the processing party is required by Applicable Laws to otherwise process that personal data;
(b) ensure that it has in place appropriate technical and 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;
(c) ensure that all personnel who have access to and/or process personal data are
obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless
appropriate safeguards are in place, such as:
(i) the transfer is to a country providing adequate protection of privacy
rights (as deemed by the European Commission from time to time); or
(ii) the transfer is pursuant to the Standard Contractual Paragraphs issued
by the European Commission provided relevant processor has secured
all necessary approvals for the transfer from applicable governmental
authorities; or authorized by all applicable governmental authorities in
the EEA or Switzerland, as the case may be, such as through Binding
Corporate Rules approved by all applicable governmental authorities; or
(iii) the relevant processor has appropriate privacy shield certification in
place for such transfer.
(e) assist the other party in responding to any request from a data subject and in
ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the other party without undue delay on becoming aware of a personal
data breach; and
(g) at the written request of the other party, delete or return personal data and copies thereof to the other party on termination of all Statements of Work unless required by Applicable Law to store the personal data.
10.1 Each party undertakes that it shall not at any time disclose to any person any
confidential information concerning the business, affairs, customers, clients or suppliers
of the other party or of any member of the group of companies to which the other party belongs, except as permitted by paragraph 10.2(a).
10.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers 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 these Terms of Service or any Statement
of Work. Each party shall ensure that its employees, officers, representatives or
advisers to whom it discloses the other party’s confidential information comply
with this paragraph 10; and
(b) as may be required by law, a court of competent jurisdiction or any
governmental or regulatory authority.
10.3 No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms of Service or any Statement of Work. In particular, no party shall use the other party’s confidential information for commercial gain or internal training or know-how.
10.4 No party shall not make any public announcement or issue a press release or respond to any enquiry from the press or other media concerning or relating to these Terms of Service or any Statement of Work, or its or their subject matter or any ancillary matter, without the other party’s prior written consent.
11. Limitation of liability
11.1 Nothing in these Terms of Service limits any liability for:
(a) death or personal injury caused by negligence;
(b) fraud, fraudulent misrepresentation or wilful default;
(c) any other liability that cannot lawfully be excluded; or
(d) liability under paragraph 10 (Confidentiality) or 7 (Intellectual Property Rights)
or 9 (Data Protection), or under any indemnity given by any party under these
Terms of Service or any Statement of Work.
11.2 All warranties, paragraphs and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms of Service.
11.3 Neither party shall in any circumstances be liable, whether in tort (including without
limitation for negligence or breach of statutory duty howsoever arising), contract,
misrepresentation (whether innocent or negligent) or otherwise for any special, indirect,
consequential or punitive loss, costs, damages, charges or expenses, including loss of
or damage to goodwill, loss of profits, loss of sales or business, loss of agreements or
contracts, loss of anticipated savings, wasted expenditure (including management
time) loss of use or corruption of software, data or information.
11.4 Subject to paragraph 11.1, the total liability of either party (whether arising from contract, negligence or otherwise) of in relation to these Terms of Service and all Statements of Work, will be limited to 100% of the amounts payable to the Supplier under the Statement of Work relevant to the claim in question during such 12-month period immediately preceding the date of the event(s) (or the date of the last such event) giving rise to the claim in question, or, if the claim arose during the first 12 months of the first Statement of Work being in force, the Charges payable under the relevant Statement of Work during the first 12 months.
11.5 Notwithstanding the foregoing, the Supplier shall not be liable, in any circumstances, for any loss, costs, damages, charges or expenses related to the performance of any Client personnel as a result of or in relation to any Services. In particular, the Supplier gives no warranty and accepts no liability for the performance of any Apprentices, Pathway Makers or other individuals hired by the Client in connection Services provided by the Supplier.
12. Force majeure
12.1 Neither party shall be in breach of these Terms of Service nor liable for delay in
performing, or failure to perform, any of its obligations under these Terms of Service or
any Statement of Work if such delay or failure results from events, circumstances or
causes beyond its reasonable control. In such circumstances the affected party shall be
entitled to a reasonable extension of the time for performing such obligations. If the
period of delay or non-performance continues for three months, the party not affected
may terminate this the affected ongoing Statement(s) of Work by giving 30 days’ prior
written notice to the affected party.
13. Audit and Record Keeping
13.1 The Supplier shall keep and maintain until six years after the termination of all Services, adequate records of the Services provided to the Client, the terms on which such Services were provided, and related fees and charges paid or payable by the Client.
13.2 The Supplier shall on written request provide the Client or the Client’s authorised representatives such access, on reasonable notice, upon the provision of adequate
confidentiality undertakings and within normal working hours, to those records as may
be reasonably required in connection with the Services.
14. Assignment and other dealings
14.1 Neither party shall not assign, transfer, or deal in any other manner with any of its rights and obligations under these Terms of Service or any Statement of Work without the prior written consent of the other party.
Subject to paragraph 5 (Change control), no variation of these Terms of Service or any
Statement of Work shall be effective unless it is in writing and signed by the parties (or
their authorised representatives).
16.1 A waiver of any right or remedy under these Terms of Service or any Statement of Work or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
16.2 A failure or delay by a party to exercise any right or remedy provided under these Terms of Service or any Statement of Work or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms of Service or any Statement of Work or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17. Rights and remedies
The rights and remedies provided under these Terms of Service or any Statement of
Work are in addition to, and not exclusive of, any rights or remedies provided by law.
18.1 If any provision or part-provision of these Terms of Service or any Statement of Work is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms of Service or that Statement of Work.
19. No partnership or agency
19.1 Nothing in these Terms of Service or any Statement of Work is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties,
constitute any party the agent of another party, or authorise any party to make or enter
into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20. Third party rights
20.1 Neither these Terms of Service or any Statement of Work give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms of Service or any Statement of Work.
21.1 Any notice under these Terms of Service or any Statement of Work shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post or by email to the other party at its address as set out in these Terms of Service or any Statement of Work, or such other address as may have been notified by that party for such purposes.
21.2 Notices for the Supplier should be sent to:
(a) Name: Finance Director
(b) Address: 50-52 Commercial Street, London E1 6LT
(c) Email: [email protected]
21.3 Notices for Client should be sent to the details as set out in an applicable Statement of Work.
21.4 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at 9am on the next business day after posting. Notices sent by email shall be deemed to have been received, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this paragraph, business hours means 9.00am to 5.30pm Monday to Friday on a day that is not a public holiday in the place of receipt.
21.5 This paragraph does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute
22. Governing law
These Terms of Service and any dispute or claim (including non-contractual disputes or
claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive
jurisdiction to settle any dispute or claim (including non-contractual disputes or claims)
arising out of or in connection with these Terms of Service or their subject matter or formation.