Terms & conditions
1. Interpretation
In the Contract the following words shall have the following meanings:
Academic Year means the period from the Commencement Date to the 31st July following the Commencement Date and each consecutive period of 12 months thereafter during the term of the Contract;
Assessor means any assessor or tutor appointed by the Centre to provide assessment and feedback to Learners in respect of material stored in v–Portfolio;
Block means a block of Learner Licences in the quantity and at the price offered to the Centre by Creating Careers from time to time;
Centre means the centre, college of further education, schools, organisation or persons entering into a Contract with Creating Careers;
Commencement Date means (unless otherwise agreed in writing between the parties) the date the Centre signs the v–Portfolio Order Form;
Contract means the contract between the Centre and Creating Careers consisting of the v–Portfolio Order Form, Creating Careers’ standard price list, the v–Portfolio privacy policy on the Website, these terms and conditions and any other guidelines or legal notices that may from time to time be established by Creating Careers with respect to v–Portfolio;
Creating Careers means Creating Careers Limited a company incorporated in England and Wales under company number 03885966 whose registered office is at 5 Horton Park, Seaton Burn, Northumberland, NE13 6BU;
Learner means any individual learner of the Centre;
Learner Licence means an individual non–exclusive and non–transferable licence for a Learner to use v–Portfolio;
Learner Term means in respect of each Learner Licence, 36 months from the date the Centre allocates the Learner Licence to the Learner in accordance with clause 4.5, plus any subsequent 12–month period(s) for which the Learner Licence is extended in accordance with clause 4.2 below, plus a further 3–month period for Verifiers to verify the material held;
Licence means a non–exclusive, (subject to clause 20) non–transferable licence to use Blocks of Learner Licences set out on the v–Portfolio Order Form and any Blocks of Learner Licences subsequently ordered by the Centre under clause 2.2, in each case on a Centre–branded version of v–Portfolio;
Licence Term means the term of the Licence period from the Commencement Date to expiry date of the last to expire Learner Term (which includes a period of 3 months for Verifiers to verify the material held) or (if no Learner Licences have been allocated) the lapse of the last unallocated Learner Licence under clause 2.2;
Pre-book means, of the Centre, to pre–book a Block of Learner Licences and &quo;pre-booked&quo; and &quo;pre-booking&quo; shall be construed accordingly;
Price means the price to be paid by the Centre to Creating Careers for the setup of v–Portfolio and the fee for the Licence as set out in the Contract;
Support means the support from Creating Careers of the Centre in the use of v–Portfolio;
Training means the training from Creating Careers of the Centre on the use of v–Portfolio;
Verifier means an internal or external verifier who will assess the consistency and quality of the assessment and feedback provided by the Assessors;
v–Portfolio means Creating Careers’ online e–portfolio system, through which coursework may be stored, accessed, presented, verified and assessed; featuring administrative, Learner, Assessor and Verifier access;
v–Portfolio Order Form means v–Portfolio order form signed by the Centre which is expressed to be subject to these terms and conditions;
Website means the v–Portfolio website from time to time, currently at www.v-portfolio.com.
2. Pre–booking of Licences
2.1. The Centre shall, on or before the Commencement Date, Pre–book a Block of Learner Licences to use v–Portfolio.
2.2. The Centre shall be entitled to Pre–book further Blocks of Learner Licences. at any time during the term of the Contract with Creating Careers’ prior consent;
2.3. The Centre shall pay for each Pre–booked Block of Learner Licences promptly and in accordance with clause 5.
2.4. Pre–booked Licences from each Block must be allocated to Learners within 24 months of purchase; the Centre’s right to allocate any Learner Licences which it has not allocated within 24 months of purchase will lapse.
3. Supply of v–Portfolio
3.1. Creating Careers will brand a version of v–Portfolio with the Centre’s branding, grant the Centre the Licence, and provide the Centre with Training and Support.
3.2. With effect from the Commencement Date and following the set–up of usernames and passwords under clause 3.3, the Centre, Learner, Assessors, Verifiers and Centre’s administrative staff will be permitted to use v–Portfolio in accordance with the provisions of clause 4.
3.3. Access to v–Portfolio shall be by way of unique username and password as follows:
3.3.1. Creating Careers will set up the username and password for the Centre’s administrator.
3.3.2.The Centre’s administrator will set up usernames and passwords for the Centre’s Assessors and Verifiers.
3.3.3. The Assessors (or the Centre’s administrator) will set up usernames and passwords for Learners.
3.3.4. v–Portfolio will automatically issue confirmatory emails to all new users.
3.4. Creating Careers will use reasonable endeavours to back up the material held pursuant to the Licence and to ensure that v–Portfolio is available at all times except for periods of essential maintenance and unavoidable down time for whatever reason.
3.5. Creating Careers reserves the right to make changes (at its discretion) to any part of v–Portfolio, provided that this does not materially reduce its functionality or content.
4. Grant of Licence
4.1. Creating Careers hereby grants to the Centre a Licence to use v–Portfolio for the duration of the Licence Term.
4.2. In relation to each Learner Licence, either the Centre or the Learner may elect to extend the duration of each Learner Term (and therefore the Centre’s Licence Term) as follows:
4.2.1. Subject to payment under clause 5.2, Creating Careers will extend the Learner Term (and any extended term) on its expiry for an additional 12 months;
4.2.2. Alternatively, subject to payment under clause 5.2, Creating Careers will (if requested) maintain an archived copy of the material held in v–Portfolio under each Learner Licence by extending the Learner Term for an additional 12 month period.
4.3. The Centre acknowledges and agrees that Creating Careers may approach each Learner direct for the purpose of enquiring whether the Learner wishes to extend the Learner Term under clause 4.2 and to obtain permission to market career development products and services to the Learner.
4.4. Each Learner Licence is for an individual Learner only. Each Learner’s v–Portfolio username and password must not be shared with other Learners.
4.5. The Licence granted under this clause 4 permits the Centre to:
4.5.1. Allocate Learner Licences to Learners and thereby authorise Learners to access and use v–Portfolio for the Learner Term, subject to the Contract; this allocation of Learner Licences may be performed by the Centre’s Assessors;
4.5.2. Authorise Assessors to access and use the Assessor areas of v–Portfolio to provide assessment and feedback to Learners;
4.5.3. Authorise Verifiers to access and verify the assessment and feedback provided by Assessors; and
4.5.4. Authorise its administrative staff to access and use the administrative areas of v–Portfolio for administrative purposes.
4.6. The Centre is not permitted to:
4.6.1. Allow any unauthorised person to access or use v–Portfolio;
4.6.2. Use v–Portfolio as a bureau service for other centres, or to grant Leaner Licences to any individuals who are not Learners of the Centre;
4.6.3. Copy, modify, adapt, merge, translate, reverse engineer, decompile or disassemble v–Portfolio, except to the extent expressly permitted by the Contract or by applicable law; or
4.6.4. Create derivative works based on the whole or any part of v–Portfolio.
4.7. Without prejudice to its rights to terminate the Contract under clause 9, Creating Careers reserves the right at its absolute discretion to suspend immediately and without notice the Centre’s, any Assessor’s, any Verifier’s or any Learner’s right to access v–Portfolio (or any part) either temporarily or permanently in the event of any breach of the terms of the Contract.
4.8. Creating Careers reserves the right to remove all material held in v–Portfolio in relation to each Learner on the expiry of the Learner Term and any remaining material at the end of the Licence Term.
5. Price and Payment
5.1. The price to be paid by the Centre to Creating Careers for the initial Pre–booked Block of Learner Licences shall be the price as set out on the v–Portfolio Order Form.
5.2. The price to be paid by the Centre or Learner for extending the Learner Term and/or archiving material held under a Learner Licence under clause 4.2 shall be the price as set out in Creating Careers’ standard price list from time to time.
5.3. Creating Careers shall invoice the Centre for each Block of Learner Licences on or as soon as reasonably practicable after the date that the Centre Pre–books that Block of Learner Licences.
5.4. The Centre shall pay the full amount invoiced to it by Creating Careers within 14 days of the date of the invoice.
5.5. All amounts due under the Contract shall be paid in full without any deduction or withholding other than as required by law and the Centre shall not be entitled to assert any credit, set–off or counterclaim against Creating Careers in order to justify withholding payment of any such amount in whole or in part.
5.6. If the Centre fails to make any payment due under the Contract by the due date then, without prejudice to any other right or remedy available to Creating Careers, Creating Careers shall be entitled to claim interest and / or compensation for reasonable debt recovery costs under the Late Payment of Commercial Debts (Interests) Act 1998.
5.7. Unless otherwise stated, all prices are exclusive of Value Added Tax.
6. Centre’s Responsibilities
6.1. Except as expressly provided in the Contract, the Centre shall be entirely responsible for ensuring that v–Portfolio is used and supported in accordance with the professional standards reasonably expected in the education sector and in accordance with all applicable legal, regulatory or funding requirements, and Centre shall be responsible for and shall ensure that
6.1.1. all Assessors are notified that their comments to a Learner’s material may be published by the Learner to third parties; and
6.1.2. all prospective Learners are:
6.1.2.1. assessed for suitability, given appropriate pre–entry information, advice and guidance; and
6.1.2.2. subject to appropriate Centre policies to:
6.1.2.2.1. prohibit plagiarism and copyright infringement and defamatory statements
6.1.2.2.2. prohibit sharing login details or unauthorised access of data or computers in breach of the Computer Misuse Act 1990;
6.1.2.2.3. ensure acceptable use of v–Portfolio; and
6.1.2.2.4. ensure safe use of the Internet access given to a Learner to enable the Learner Licence.
6.2. The Centre shall be responsible to Creating Careers for the actions of Learners, Assessors, Verifiers and its administrative and other staff when using v–Portfolio and for ensuring their compliance with the terms of the Contract.
6.3. The Centre shall indemnify Creating Careers against all costs, claims, damages or expenses incurred by Creating Careers, or for which Creating Careers may become liable, which arises from a breach of this Clause.
7. Warranties
7.1. Subject to the Centre complying with its obligations set out in the Contract and to the limitations of liability set out in clause 8, Creating Careers warrants that;
7.1.1. it has full power and authority to enter into the Contract and to grant the rights and licences set out in the Contract;
7.1.2. it will use reasonable skill and care in performing its obligations under the Contract.
7.2. If Creating Careers receives a written notice from the Centre of any breach of the warranties set out in clause 7 then Creating Careers shall at its option within 4 weeks after receiving such notice:
7.2.1. at its own expense, use reasonable endeavours to remedy the defect or error in question; or
7.2.2. terminate the Contract immediately by notice in writing to the Centre and refund the Price paid by the Centre as at the date of termination (less a reasonable sum in respect of the Centre’s use of v–Portfolio to the date of termination) on cessation by the Centre, its Learners, Assessors and Verifiers of the Centre–branded v–Portfolio.
7.3. To the extent permitted by law Creating Careers makes no warranty that:
7.3.1. The use of v–Portfolio will be continuously available, uninterrupted or error–free;
7.3.2. v–Portfolio will be free from attack, viruses or other harmful code; or
7.3.3. v–Portfolio will be compatible with the Centre’s or any Learner’s computer software, hardware, network or communications.
7.4. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into the Contract or any collateral contract, whether by statute, common law or otherwise, are hereby excluded.
8. Limitation of Liability
8.1. Except as expressly stated in clause 8.2:
8.1.1. Creating Careers’ liability, whether under this Contract or any collateral contract, for loss of or damage to the Centre’s tangible property caused by the negligence of Creating Careers, its officers, employees, contractors or agents, shall not exceed a sum equal to 150% of the Price;
8.1.2. Creating Careers shall have no liability for any losses or damages which may be suffered by the Centre (or any person claiming under or through the Centre), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
8.1.2.1. special damage even though Creating Careers was aware of the circumstances in which such special damage could arise;
8.1.2.2. loss of profits;
8.1.2.3. loss of anticipated savings;
8.1.2.4. loss of business opportunity;
8.1.2.5. loss of goodwill;
8.1.2.6. loss of data;
provided that this clause 8.1.2 shall not prevent claims for loss of or damage to the Centre’s tangible property that fall within the terms of clause 8.1.1 or any other claims for direct financial loss that are not excluded by any of categories 8.1.2.1 to 8.1.2.6 inclusive of this clause 8.1.2;
8.1.3. the total liability of Creating Careers, whether in contract, tort (including negligence) or otherwise and whether in connection with this Contract or any collateral contract, shall in no circumstances exceed a sum equal to 100% of the Price; and
8.1.4. the Centre agrees that, in entering into this Contract, either it did not rely on any representations (whether written or oral) of any kind or of any person other than rely on those expressly set out in this Contract or (if it did any representations, whether written or oral, not expressly set out in this Contract) that it shall have no remedy in respect of such representations and (in either case) Creating Careers shall have no liability otherwise than pursuant to the express terms of this Contract.
8.2. The exclusions in clause 8.1 shall apply to the fullest extent permissible at law, but Creating Careers does not exclude liability for death or personal injury caused by the negligence of Creating Careers, its officers, employees, contractors or agents; for fraud or fraudulent misrepresentation; for breach of the obligations implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982; or for any other liability which may not be excluded by law.
9. Term and Termination
9.1. The Contract shall come into effect on the Commencement Date and (subject to prior termination in accordance with clause 9.3) shall continue for the Licence Term (including any extension to the Licence Term under clause 4.2).
9.2. Creating Careers may by written notice to the Centre terminate the Contract immediately if the Centre fails to pay any sums due to Creating Careers under the Contract by the due date.
9.3. Either party may by written notice to the other party terminate the Contract immediately if:
9.3.1. the other party commits any breach of its obligations under the Contract which (if remediable) is not remedied within 14 days after the service of written notice specifying the breach and requiring it to be remedied; or
9.3.2. the other party ceases to trade or operate or becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to the other party provided that this right to terminate shall not apply where the other party has made a valid assignment of the Contract under clause 20.
9.4. Termination of the Contract however caused shall be without prejudice to any rights or liabilities accrued at the date of termination.
9.5. Except as provided above, on termination of the Contract all provisions of the Contract and all rights and licences granted herein shall cease to have effect, except that any provision which can reasonably be inferred as continuing, or is expressly stated to continue, shall continue in full force and effect.
10. Intellectual Property Rights
10.1. The Centre acknowledges and agrees that all copyright and other intellectual property rights in v-Portfolio are and shall remain the property of Creating Careers and that it shall not by virtue of the Contract obtain or claim any right, title or interest in or to such copyright or intellectual property rights except the limited rights of use granted under clause 4.
10.2. Creating Careers and the Centre acknowledge and agree that all copyright and intellectual property rights in the material stored by a Learner in v–Portfolio is and shall remain the property of the Learner and that they shall not by virtue of the Contract obtain or claim any right, title or interest in or to such copyright or intellectual property rights other than the rights to use the material to perform its obligations and exercise its rights under the Contract. If either party uses a Learner’s material for any other purpose, it shall first ensure it obtains appropriate permissions and consents from the Learner.
11. Confidentiality
The Centre agrees and undertakes that during the term of the Contract and thereafter it shall keep confidential and shall not use for its own purposes, nor without the prior written consent of Creating Careers disclose to any third party, any information of a confidential nature which Creating Careers may (at any time before or after the Commencement Date) disclose or have disclosed to the Centre, unless the information is public knowledge or already known to the Centre at the time of disclosure or subsequently becomes public knowledge other than by breach of the Contract or subsequently comes lawfully into the possession of the Centre from a third party.
12. Data Protection
12.1. In this clause the terms Personal Data, Processing, Data Controller and Data Processor shall be given the meanings given to them under the Data Protection Act 1998 (the Act).
12.2. Each party agrees that in Processing Personal Data as a Data Controller under the Contract it shall comply with the provisions of the Data Protection Act 1998 and other applicable data protection legislation.
12.3. To the extent that Creating Careers acts as the Centre’s Data Processor in relation to any Personal Data it Processes under the Contract Creating Careers agrees in relation to that Personal Data to act only on the Centre’s instructions (and the Processing of Personal Data in accordance with the terms of the Contract shall be deemed to be on the Centre’s instructions) and to comply with the seventh data protection principle.
13. Entire Agreement
These terms and conditions together with the v–Portfolio Order Form, Privacy Policy and any other documents expressly incorporated by reference in these terms and conditions constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in accordance with clause 15. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
14. Notices
14.1. Any notice consent or the like (in this clause referred to generally as ‘notice’) required or permitted to be given under the Contract shall not be binding unless in writing and may be given personally or sent to the party to be notified by pre–paid first class post or by electronic mail or facsimile transmission at its address as set out on v–Portfolio Order Form or as otherwise notified in accordance with this clause.
14.2. Notice given personally shall be deemed given at the time of its delivery. Notice sent by post shall be deemed given at the commencement of business of the recipient on the second business day following its posting. Notice sent by electronic mail or facsimile transmission shall be deemed given at the time of its actual transmission provided that the sender does not receive any indication that the electronic mail message or facsimile transmission has not been successfully transmitted to the intended recipient.
15. Variation
15.1. Subject to the Centre’s right of termination under clause 9, Creating Careers may vary the terms of the Contract by giving the Centre not less than 1 month’s notice.
15.2. Except as provided in this clause 15, the Contract may not be modified except by an instrument in writing signed by both of the parties or their duly authorised representatives.
16. Waiver
No failure or delay by either party in exercising any of its rights under the agreement shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
17. Severance
If any provision of the Contract is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
18. No Partnership or Agency
Nothing in the Contract shall be deemed to constitute a partnership between the parties nor relationship of employer and employee under a contract for service nor the relationship of principal and agent.
19. Force Majeure
Creating Careers shall not be responsible for any breach of its obligations under the Contract resulting from any cause beyond its reasonable control including without limitation the acts or omissions of any third party, changes in government policy, changes in funding criteria or availability, acts of God, earthquakes, inclement weather, flood, drought, lightning or fire, explosion, strikes, industrial action, war, military operations, terrorist attack, denial of service attack or other attack on v–Portfolio, embargoes, shortages, or regulations of any civil or military authority.
20. Assignment
20.1. The Contract may be assigned by the Centre to successor organisations, subject to providing prior written notice to Creating Careers and subject to the consent of Creating Careers (which may be withheld at Creating Careers’ absolute discretion).
20.2. Creating Careers may at any time assign all or part of its rights and obligations under the Contract and may sub–contract its obligations to third parties.
21. Third Party Rights
A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
22. Governing Law and Jurisdiction
The Contract shall be governed by and construed in accordance with the law of England and Wales and each party hereby irrevocably submits to the exclusive jurisdiction of the Courts in England and Wales.
