Terms of Use (last update: 28th Jan 2014)

This Agreement contains the terms under which NIP provides the Service to You and describes how the Service may be accessed and used. Please read it carefully.

This Agreement constitutes the entire agreement between You and NIP ("The Parties") regarding the Service and supersedes any and all prior oral and written agreements between us.

The headings in this Agreement are inserted for ease of reference only and shall not affect the interpretation of the Agreement.

This Agreement shall be governed by and construed in accordance with English Law and the parties hereto agree to submit to the non-exclusive jurisdiction of the English courts.

The Privacy Policy referred-to in these Terms Of Use can be read here.

1. Definitions

2. Use of the Service, Cancellation and Refunds

a. Use

By Your acceptance of this Agreement and payment of a Fee (and subject to clause 2b):

Your use of the Service is deemed to commence upon You accessing an Assessment associated with the particular Fee (the fact of which will be visible to NIP, pursuant to the Privacy Policy).

b. Cancellation

This Agreement may be cancelled forthwith by:

  1. You, if, pursuant to clause 2a, Your use of the Service has not commenced.
  2. Either of The Parties, if the other commits any material breach, not covered by clause 9(i), of any term of this Agreement and which shall not have been remedied within fourteen (14) days of a written request to remedy the same.

The party that cancels this Agreement must inform the other in writing, pursuant to clause 11, and NIP will then do the following:

Any cancellation of this Agreement pursuant to this clause 2b shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in the force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

This clause 2b and clauses 5, 6b(iii), 7, 9(i), and 9(iv) shall survive the cancellation of this Agreement in all events.

c. Refunds

In the event of cancellation under clause 2b(i) or because of a material breach by NIP under clause 2b(ii), You are entitled to a full refund of the Fee.

Upon receipt of a written request from You for same, pursuant to clause 11, NIP will provide You with a full refund of the Fee via Sage Pay within twenty-eight (28) days.

3. Your Obligations and Responsibilities

a. General

It is Your sole responsibility to determine that the Service meets the need of Your business and is suitable for the purposes for which You use it.

b. Access & Security

You must ensure that Your Personal Data is kept up to date, and are solely responsible for any subsequent issues and costs should You not fulfil this obligation.

You are responsible for choosing a secure password, and for keeping Your Login confidential. You must immediately notify NIP of any unauthorised use of Your Login.

You must take all other actions that NIP reasonably deems necessary to maintain the security of the Website and the Service, including (but not limited to) the following:

c. Data

You have sole responsibility for the accuracy, appropriateness, and lawfulness of the Data and Personal Data (both of which must not (i) be offensive or pornographic, and (ii) violate any copyright, trade secret or other intellectual property right).

Although NIP will back-up the Personal Data and Data regularly pursuant to clause 4a and the Privacy Policy, You have ultimate responsibility for maintaining, protecting, and making any backups You require of the Data.

d. Indemnity

You indemnify NIP against all claims, costs, damage and loss arising from Your breach of any of the terms of this Agreement.

4. NIP's Obligations and Responsibilities

a. Equipment and Back-up

NIP will provide and maintain the Equipment and appropriate software to enable it to provide the Service.

NIP will ensure appropriate Back-up for the Equipment, and Data and Personal Data will be backed-up daily and stored off-site.

b. Service Availability

NIP will use its best endeavours to provide sufficient internet bandwidth for the provision of the Service and use its reasonable endeavours to ensure that the bandwidth allocated is available to You at all times.

However, You acknowledge (and NIP agrees) that NIP has no direct control over the availability of the bandwidth over the entirety of the internet, and accordingly NIP will not be responsible for delays caused by overuse of or lack of availability of such bandwidth, except where such availability is within the reasonable control of NIP.

NIP is continually developing the Service and from time to time may:

You acknowledge that such changes may require the Service to be temporarily unavailable whilst they are being installed, and whilst NIP will typically inform You in advance, via the Service, of changes to the Service and any associated unavailability, this is not guaranteed.

5. Confidential Information and Intellectual Property Rights

All Confidential Information shall be treated in accordance with NIP's Privacy Policy, which You will be taken to have accepted when You accept this Agreement.

Both of The Parties will take all steps as shall from time to time be necessary to protect the intellectual property rights of the other:

Pursuant to clause 6b(i), NIP indemnifies You against any claim that the normal use of the Service infringes the intellectual property rights of any third party provided that:

NIP shall have the right to replace or change all or any part of the Service in order to avoid any infringement. The foregoing states the entire liability of NIP to You in respect of the infringement of the intellectual property rights of any third party.

6. Warranties

a. You

You warrant that:

  1. You are based in the United Kingdom.
  2. Where You have registered to use the Service on behalf of an organisation, You have the right and authority to do so.
  3. You are authorised to input the Data.
  4. You will only use the Service in accordance with this Agreement, for Your own lawful organisational or personal purposes.
b. NIP

NIP warrants that:

  1. Pursuant to clause 5, it owns, or has secured, the intellectual property rights to the Service and that to the best of its knowledge the Service does not infringe the intellectual property rights of any third party.
  2. The Service is fit for its purpose as defined.
  3. It has used all reasonable endeavours to ensure that no Harmful Code is coded or introduced to the Service and that, in the event that Harmful Code is found in or originating from the Service, it will use reasonable endeavours to assist You in reducing the effect of the Harmful Code and particularly in the event that Harmful Code causes loss of operational efficiency and/or loss of data to assist You to the same extent to mitigate such losses and to restore You to Your original operating efficiency. NIP will carry out these endeavours at its own cost, except where the Harmful Code is found to have originated from You.

7. Limitations of Liability

a. Specific Exclusions
  1. Pursuant to clause 3c and clause 6a(iii), NIP assumes no liability for the contents of the Data.
  2. Pursuant to clause 3c, and to the extent permitted by applicable law, NIP is not liable for any loss or corruption of the Data, howsoever caused.
  3. NIP shall not be liable for loss arising from or in connection with any representations agreements statements or undertakings made to You prior to the date of this Agreement other than those representations agreements statements or undertakings confirmed by a duly authorised representative of NIP in writing or expressly incorporated or referred to in this Agreement.
  4. Whilst NIP strives to make the information within the Service and the Website as timely and accurate as possible, NIP makes no claims, promises, or guarantees about the accuracy, completeness, or adequacy of this information, and expressly disclaims liability for any errors and omissions within it.
b. Extent of Liability

NIP‘s liability to You (and any party claiming through You against NIP) for any claim for loss or damages made in connection with the Service (including legal expenses) – whether in contract, tort (including negligence), under statute, in equity or otherwise – is limited as follows:

  1. To any one of the following at the option of NIP:
    1. Provision of the defective Service again; or
    2. Payment of the cost of having the defective Service provided again; or
    3. Repayment of the Fee, following the process described in clause 2b.
  2. NIP‘s liability under clause 7b(i):
    1. Does not extend to loss or damages caused or contributed to by You; and
    2. Is to a maximum of the value of the Fee for the defective Service.
  3. Pursuant also to clause 3a, NIP is not liable for any indirect, special or consequential loss resulting from or caused in any way by the Service. “Indirect, special or consequential loss” includes (but is not limited to):
    1. Loss of income, profit or business;
    2. Loss of goodwill or damage to reputation;
    3. Loss of value of intellectual property;
    4. Reduction in share price;
    5. Any other types of loss or damage whether or not foreseeable by NIP arising from or caused in any way by the Service; and
    6. Any legal or other costs resulting from a defective Service.

Any claim by You in respect of a defective Service must be made in writing within thirty (30) days of commencing use of the Service (as defined in clause 2a).

8. Duration of Agreement

This Agreement shall continue unless cancelled in accordance with the provisions of clause 2b.

9. Force Majeure

  1. Neither of The Parties shall be liable for any breach of its obligations hereunder resulting from an Act of God, fire, riot, civil commotion, failure of technical facilities or from causes beyond its reasonable control (an "Event of Force Majeure").
  2. Each of The Parties agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain full details of the circumstances giving rise to the Event of Force Majeure.
  3. If a default due to an Event of Force Majeure shall continue for more than two (2) weeks, the party not in default shall not be entitled to cancel this Agreement.
  4. Neither of The Parties shall have any liability to the other in respect of the cancellation of this Agreement as a result of an Event of Force Majeure.

10. Waiver

The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same, or other provisions, nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has, or may have, hereunder operate as a waiver of any breach or default by the other party.

11. Notices

Any notice, request, instruction or other document to be given hereunder shall be delivered by email transmission to the email address of the other party and any such notice or other documents shall be deemed to have been delivered at the time of delivery upon the expiration of forty-eight (48) hours after sending without any delivery failure notification having been received.

Notices to NIP should be sent to support@capabilityassessments.com; notices to You will be sent to the email address contained within Your Personal Data.

12. Invalidity and Severability

If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provisions shall not affect the other provisions of this Agreement, and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

13. Exclusion of third party rights

The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and no rights or benefits expressly or impliedly conferred by it shall be enforceable under the Act against The Parties by any other person.

14. Relationship of The Parties

This Agreement does not constitute or imply any relationship of partnership, agency or joint venture between The Parties.

15. Sub Contracting

NIP may sub-contract any aspect of the Service at its discretion and without prior notification to You.

Where NIP sub-contracts to a third party specified by You, NIP shall not be liable for any non-performance of that third party's obligations.