CBI-SMART™ Licence Agreement("Licence")

This is the Licence referred to during the initial login process for CBI-SMART™.  All new CBI-SMART Users need to confirm their acceptance of this Licence Agreement before they are able to start using the CBI-SMART product.

Provided the Client agrees to be bound by the terms and conditions of this Licence on payment of the Fee the Client will be granted the right to use the Licensed Program on the terms and conditions of this Licence.

1)     Definitions

a)     In this Licence the following words and expressions shall have the following meanings:

‘A&DC’ means The A&DC Group Ltd, whose registered address is at C/O Gibson Appleby, Blenheim House, 120 Church Street, East , BN1 1AU and whose Registered Number is 5566781;

'A&DC Server' means the computer hardware from which A&DC will make the Licensed Program available for access;

'CBI-SMART User’ (‘User’ or ‘Users’) means the individual or individuals (including the ‘Master User’ – see below) employed by the Client who are registered with A&DC as authorised Users of the Licensed Program and who have a permitted Password;

'Client' means the individual or business named as the Client in the Order Confirmation;

'Client Server' means the computer hardware from which the Client provides online access to the Licensed Program;

'Commercial Use' means external use for the purposes of monetary reward by means of the sale, re-sale, transfer, loan, hire, licence or other form of exploitation of the Licensed Program or Generated Works;

‘Content’ means the data, information and materials which populate the Licensed Program and the Generated Works from time to time, including but not limited to all competencies, behavioural indicators, questions and compilations thereof and Customised Content;

‘Customised Content’ means Content and any associated materials or works generated by A&DC pursuant to the Customised Services (if any);

‘Customised Services’ means the customised services (if any) set out in the Order Confirmation;

'Fee' means (i) the annual licence fee payable by the Client in consideration of the grant to the Client of the Rights; and (ii) any additional fees payable by the Client in respect of the Customised Services, in the amounts specified in the Order Confirmation or otherwise agreed in writing;

‘Generated Works’ means interview guides, compilations and other materials generated by the Client as a result of the operation of the Licensed Program;

'Intellectual Property' means any and all intellectual property rights of any nature including patents, rights to inventions, utility models, copyright and related rights, future copyright, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, registered designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how, trade secrets and business methods) and any other intellectual property rights, in each case whether in existence now or coming into existence in the future, registered or unregistered and including all applications for and renewals or extensions of such rights, rights to apply for registration, and all similar or equivalent rights or forms of protection in any part of the world;

'Licence Period' means the period commencing on the Start Date and continuing for the remainder (if any) of that calendar month and ending after a further whole twelve (12) calendar months thereafter;

'Licensed Program' means the CBI-SMART software and database product specified in the Order Confirmation including all updates, amendments, fixes, additions to and new versions thereof introduced (at A&DC’s discretion) during the Licence Period;

‘Master User’ means the employee of the Client named as the Master User during the initial login process and any replacement notified to A&DC from time to time;

‘Order Confirmation’ means the communication sent by A&DC to the Client at the point at which the order is placed;

'Password ’ means the confidential, personal, non-transferrable password or username issued and/or approved by A&DC to each CBI-SMART User;

'Person' means any person firm company or legally constituted institution or organisation or other legal entity;

'Program Materials' means a component part, module or product of the Licensed Program including but not limited to Content, Generated Works, instructions, advice, competencies, questions, pro-forma documents, reports, data or any combination of the foregoing interview guides, criteria, questions, behavioural indicators, communications, files, text, graphics, procedures, know how, presentations and manuals, whether written or in the form of a video or software program or in any other medium;

'Rights' means the non-exclusive non-transferable right for the Licence Period within the Client’s business:

a)     for the User to access the Licensed Program to search, retrieve and generate an unlimited number of Generated Works;

b)    for the Generated Works to be downloaded onto and stored on the hard disc of the User’s computer terminal; and

c)     to print off and/or copy Generated Works for exclusive use by the User pursuant to the Licence;

'Start Date' means the date on which access to the Licensed Program is granted to the Client and which is set out in the Order Confirmation;

‘Website’ means A&DC’s website through which the Licensed Program can be accessed as currently www.cbi-smart.com.

a)     The headings in these Conditions are for convenience only and shall not affect their interpretation.

b)    These Conditions override any earlier terms and conditions relating to the Licensed Program appearing in A&DC's catalogues, websites or elsewhere, or referred to by the Client whether in the order or any negotiations.

c)     A&DC may amend, vary or revise these Conditions from time to time.  A&DC shall notify the Client of such revised Conditions, which shall be binding on the parties unless the Client wishes not to accept the new Conditions in which case the Client shall cease using the Licensed Program.

2)     Grant of Rights

a)     In consideration of the payment by the Client of the Fee (in cleared funds) and of the agreement by the Client to abide by the terms of this Licence A&DC grants to the Client the Rights in the Licensed Program for the Licence Period.

b)    Intellectual Property in any Customised Content shall be jointly owned by the Client and A&DC and each shall have the right to use the Customised Content without limitation or further payment SUBJECT ALWAYS to clauses 2 c) and 2d) below.

c)     The Client’s right to use the Customised Content shall be subject to the following conditions:

i)      Payment of all outstanding sums in respect of the Customised Services to A&DC;

ii)     Customised Content may not be used by the Client for Commercial Use or otherwise to generate any product which competes with the Licensed Program;

iii)    A&DC retains sole ownership of all rights in the Licensed Program and in any Program Materials or Generated Works or Content embedded in the Customised Content and which predate the Licence and which, for the avoidance of doubt, are and remain subject to the rights granted under clause 2(a).

d)    A&DC may use Customised Content without limitation, including in any upgrade to or new versions of the Licensed Program, provided always that such use does not identify the Client (either expressly or by implication) or any Client personnel and does not make use of any Client brand or trade mark.

e)     Individuals will automatically cease to be Users immediately upon ceasing to be employed by the Client.  Users may be replaced during the Licence Period providing always that new registration details are provided to A&DC and new Passwords are approved.

f)     A&DC reserves the right at any time to withdraw from the Licensed Program any Program Materials included in it:

i)     if A&DC ceases for whatever reason to offer that Program Material to licensees generally;

ii)     if in A&DC’s sole discretion A&DC believes that there is at least a reasonable chance that use of it would amount to an infringement of copyright, database right, defamation or any other unlawful act. 

On receipt of notice from A&DC of withdrawal of Program Material the Client shall immediately cease all distribution in any and all media of the withdrawn item or items and delete them from the Client Server and will erase or delete or otherwise destroy all copies in whatever format and certify to A&DC that this has been done.  A&DC shall have the right at its own expense to appoint an independent auditor to verify such actions and the Client shall co-operate with such auditor to provide such verification.

g)    The Client shall not:

i)     amend or alter the Licensed Program without written authorisation from A&DC and any such amendments made by the Client shall belong to A&DC and become part of the Licensed Program;

ii)    use the Licensed Program or any Generated Works for any Commercial Use;

iii)   except to the extent necessary to exercise the Rights granted by this Licence, store the Generated Works transiently or permanently on any medium;

iv)   frame, link to or copy any part of the Website or the Licensed Program;

v)     use any data mining, robots or similar data extraction methods within the Website; 

vi)   transcribe or copy any Program Materials or part thereof, including any data, into any kind of information retrieval system, including a database or software program, without the express written permission of A&DC;

vii)  reverse engineer, transfer, transmit, reproduce, loan to any third party, publish or otherwise exploit, modify or combine with other material the Program Materials or any part thereof.

3)     Duration of Licence

a)     This Licence shall commence on the Start Date and shall (subject at all times to earlier termination in accordance with the provisions of this Licence) remain in effect for the Licence Period at the end of which it shall automatically expire unless the Client renews the Licence and an additional Fee has been paid.

b)    When Users log in to CBI-SMART within one month of the end of the Licence Period A&DC will remind the Client of the expiry of the Licence Period, however this shall be without prejudice to the automatic termination of the Licence under clause 3 a) if the Client elects not to renew.

4)     Obligations of A&DC

a)     A&DC shall during the Licence Period:

i)     use all reasonable endeavours to ensure that A&DC Server or Servers have sufficient capacity band width and rate of connectivity to provide the Client with a quality of service comparable with the current standards in the World Wide Web online information provision industry;

ii)     provide the standard Licensed Program features specified on the Website to a reasonable standard;

iii)    provide to the Client all information necessary to access the Licensed Program online;

iv)    use all reasonable endeavours to restore access to the Licensed Program as soon as reasonably possible in the event of an interruption or suspension of availability; and

v)     provide User support in line with our standard service level agreement and/or any additional support requirements that are agreed in writing with the Client.

5)     Obligations of the Client

a)     The Client shall during the Licence Period:

i)     appoint if required by A&DC a Master User whose responsiblities shall include, but shall not be restricted to:

(1)   Managing the relationship with A&DC;

(2)   Administering the Client’s obligations under the Licence;

(3)   Ensuring that all Users of CBI-SMART within the Client’s organisation are using the product in accordance with this Licence Agreement, in particular, that full respect is afforded to their obligations set out in paragraph 9)e);

ii)     provide complete and accurate registration, ordering and financial details;

iii)    amend registration details promptly and in any event within ten (10) working days following any additions deletions or other alterations including changes to the Master User or User(s);

iv)    protect and maintain as confidential all assigned Passwords and ensure that only Users are permitted access to the Licensed Program and that all Users abide by the provisions of clause 2 of this Licence;

v)     notify A&DC forthwith if the Client becomes aware that there has been unauthorised access to Passwords, the Licensed Programs or unauthorised use of Generated Works;

vi)    obtain at its cost all telecommunications and other equipment and software together with all relevant software licences necessary to access the Licensed Program from A&DC Server;

vii)   as soon as practicable on becoming aware of any claim by any third party that the Licensed Program infringes any Intellectual Property or proprietary right of any third party notify A&DC of such claim;

viii)  as soon as practicable after becoming aware of any breach by a User of the terms of this Licence terminate such User’s access to the Licensed Program and notify A&DC in writing of such breach; and

ix)    ensure that any user of the Generated Works is aware of the terms of this Licence, is competent in the use and principles of the Generated Works and that such use is supervised by a User.

6)     Fee and Payment Terms

a)     The Fee for the Licence is set out in the Order Confirmation.  A&DC shall be free to change the Fee in respect of Licence renewals without notice.  Unless stated otherwise on the Website, the Fee is exclusive of any applicable costs including but not restricted to handling, carriage and taxes, all of which could be subject to amendment.

b)    Unless otherwise specifically agreed with A&DC the Fee shall be paid in pounds sterling or such other currency as A&DC shall expressly agree in writing with the Client.

c)     The Fee can be paid through (i) the online payment system provided through the Website (ii) by cheque or postal order; or (iii) by bank transfer.

d)    The Client shall bear all charges in relation to bank transfers and currency transactions.

e)     All Fees shall be due in full and in advance of the Client being granted the right to use the Licensed Program.  Unless otherwise agreed in writing with A&DC Fees for Customised Services shall be charged on a time and materials basis at A&DC’s then standard hourly or daily rates for such services.  In the event that any undisputed amount is not paid by the due date for payment, the Client shall pay A&DC interest on such amount from the due date for payment until payment is made in full at a rate equal to one (1) per cent above the base rate of Barclays Bank PLC as at the due date for payment.

f)     The Fee shall not be considered paid until it has been received by A&DC in cleared funds.  Fourteen (14) days should be allowed for clearance of cheques or postal orders.

g)    Failure to provide accurate financial information may delay the Client’s access to the Licensed Program.

h)     The Fee is non-refundable.  If the Client believes that there is good reason why it should receive a refund of all or some of the Fee evidence of such reasons should be submitted to A&DC in writing within five (5) working days of the relevant situation occurring and A&DC will decide each case on its merits.

7)     A&DC’s Warranties

a)     A&DC warrants that it has the right to license the Rights granted to the Client under this Licence. 

b)    The warranty set out in Clause 7 a) is in lieu of all warranties terms and conditions whether implied by or arising under statute or common law custom trade usage or course of dealing between the parties or otherwise all of which are hereby excluded to the fullest extent permitted by law. 

c)     The Licensed Program is provided on an 'as is' and 'as available' basis and accordingly A&DC does not give any warranty express or implied or make any representation:

i)     that the Licensed Program or Generated Works will be suitable for any specific requirement, use or conditions of the Client or of any User even if such requirement or use or conditions may be known to A&DC; or

ii)     that A&DC’s online service will operate error free or without interruption or that any errors will be corrected; or

iii)    that the Licensed Program is complete or accurate or up to date.

d)    If, during the Licence Period, the Client notifies A&DC in writing of any defect or fault in the Licensed Program in consequence of which it fails to perform substantially in accordance with the specification in the Website, and such defect or fault does not result from the Client having amended the Licensed Program or used it in contravention of the terms of this Licence, A&DC will, at its sole option, either repair or replace the Licensed Program, provided that the Client make available all the information that may be necessary to help A&DC to remedy the defect or fault, including sufficient information to enable A&DC to recreate the defect or fault. This warranty is contained in our standard service level agreement and/or any additional support requirements that are agreed in writing with the Client (refer to clause 4)v)).

e)     Unless specifically agreed with A&DC in writing the Client acknowledges that the Licensed Program has not been developed to meet customised requirements and that it is therefore the Client’s responsibility to ensure that the facilities and functions of the Licensed Program as described in the Website meet the Client’s requirements.

f)     It is the Client’s responsibility to ensure that the Licensed Program and Generated Works are used in designated situations and only by appropriate trained and supervised individuals.  A&DC accepts no liability for their use in this respect or any recruitment or employment decisions or claims made on the basis of or derived from the Program Materials or associated procedures.

8)     Liability

a)     Subject to condition 8d) the following provisions set out the entire financial liability of A&DC (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:

i)     any breach of this Licence;

ii)     any use of the Licensed Program or Generated Works; and

iii)    any representation, statement or tortious act or omission including negligence arising under or in connection with the Licence.

b)    A&DC’s liability under this Licence shall be limited:

i)     to exclude altogether liability howsoever arising for loss of profits, loss of business or of anticipated savings, loss of goodwill, loss of income, loss of reputation, loss or corruption of data (whether of the Licensed Program, Generated Works or of other data and whether caused by processing or transmission of it) and for any other type of special, indirect, incidental or consequential loss or damage;

ii)    to exclude liability for any acts, omissions or negligence of third parties (e.g. Internet failure);

iii)   to exclude any liability for any decisions that are made as a result of the use of the Licensed Program or Generated Works; and

iv)   in any Licence Period to the Fee paid for that Licence Period.

c)     A&DC is not responsible for nor endorses any non-A&DC software or external website linked to or from the Website.

d)    Nothing in this Licence shall exclude or in any way limit A&DC’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent that it may not be excluded or limited as a matter of law.  If the Client is using the Licensed Program as a consumer then nothing in these Conditions shall in any way limit the Client’s statutory rights.

e)     A&DC makes every effort to check and test the Program Material however A&DC recommends that the Client take all commercial precautions to prevent damage to its IT system or software and that it should run an anti-virus program on all material downloaded from the Internet.  A&DC does not accept any responsibility for any loss, disruption or damage to the Client’s data or the Client’s computer system, which may occur whilst using the Website, Licensed Programs or Generated Works and any resulting damage to the Client’s computer or loss of data will be the Client’s responsibility.

f)     The Client hereby agrees to abide by any laws, regulations or restrictions applicable to the use of the Website, access to the Licensed Program and use of the Generated Works that are relevant to its local jurisdiction or to the use of the Website.  A&DC shall have no liability in this respect and, unless otherwise specifically agreed by A&DC in writing, the Licensed Program is not in any way adapted to take account of local or national laws, restrictions or regulations outside the .

g)    The Client hereby agrees to indemnify A&DC and hold A&DC its subsidiaries, affiliates, officers, directors, agents and employees, harmless, both during and after the Licence Period,  from any liability for any claims, demands, damages and expenses, including reasonable lawyers’ fees, made by any third party whether in contract (including fundamental breach), tort (including negligence) or otherwise and due to or arising out of:

i)     the Client’s use of the Website, Licensed Program or Generated Works or any part thereof in breach of this Licence;

ii)     any other breach of this Licence; and/or

iii)    the violation of any law or the rights of a third party or arising out of any materials or data submitted to A&DC by or on behalf of the Client.

9)     Intellectual Property

a)     The Client acknowledges that A&DC is the sole owner of all Intellectual Property in the Licensed Program and Generated Works.

b)    A&DC ^® , AC-EXS ^® , CBI-SMART™ and other associated A&DC logos and marks ( "Trade Marks" ) are the trade marks of A&DC and the Client hereby acknowledges and agrees:

i)     that the Trade Marks are the property of A&DC;

ii)     that use of the Trade Marks by the Client will at all times be in keeping and consistent with the style and reputation of A&DC and retained as they appear on any Generated Works;

iii)    to maintain the distinctiveness and reputation of the Trade Marks and not to use the Trade Marks in any way that would bring the reputation of A&DC into disrepute or to create a link to the Website without the express authorisation of A&DC;

iv)    any goodwill in the Trade Marks arising as a result of their use by the Client shall accrue to and/or is hereby assigned to A&DC; and

v)     not to use any mark or name confusingly similar to the Trade Marks in respect of goods similar to the Licensed Program or in any literary works or as part of any corporate business or trading name, domain name or website (including as a meta tag) of the Client.

c)     Other than as expressly set out herein nothing contained in this Licence gives the Client or any User any ownership rights in the Intellectual Property (including the Trade Marks) or confidential information of A&DC and/or its licensors in the Licensed Program or Generated Works.

d)    Nothing in this Licence shall give one party any rights to the trade marks or brands of the other party other than as expressly set out herein.

e)     The correct and appropriate use of A&DC’s Intellectual Property is a fundamental obligation of the Client and a condition to the grant of this Licence.  Breach of this clause 9 by the Client, any unauthorised use of the Licensed Program, Program Materials or Generated Works or any other misuse or infringement of the Intellectual Property of A&DC by the Client will be a material and fundamental breach of this Licence entitling A&DC to terminate the Licence forthwith, to claim against the Client’s indemnity hereunder and may also entitle A&DC to initiate criminal or other civil proceedings. 

10)  Data Protection, Privacy  and Confidentiality

a)     The Client and A&DC shall comply with relevant national and international law on data protection and with A&DC’s Privacy Policy (as it appears on the Website from time to time) in relation to the use of the Licensed Program and the Client shall ensure that it has obtained all necessary consents before passing personal data to A&DC for processing.  Furthermore the Client consents to the processing of all data and personal information supplied to A&DC for the purposes of this Licence and the effective use of the Licensed Program.

b)    Each party shall keep confidential all information obtained from the other pursuant to this Licence and shall not divulge such information to another party without the other's written consent unless ordered to make such a disclosure by a competent court of law or other empowered tribunal or authority or unless required to do so by law.  Where disclosure is ordered or required under applicable national and international law on freedom of information, A&DC will inform the Client accordingly.  Each party will ensure its employees; sub-contractors and agents are bound by this clause, which shall not restrict the use of information lawfully in the public domain.

11)  Termination

a)     A&DC may terminate this Licence immediately by written notice to the Client if:

i)     the Client commits an irremediable breach of this Licence;

ii)     the Client commits a material or persistent breach of this Licence which the Client fails to remedy (if remediable) within 14 days after the service of written notice requiring the Client to do so and for the avoidance of doubt any misuse of A&DC’s Intellectual Property shall constitute a material breach; or

iii)    a petition for a bankruptcy order to be made against the Client has been presented to the court; or

iv)    the Client (where it is a company) becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, unable to pay the Client’s debts (within the meaning of section 123 of the Insolvency Act 1986); or

v)     if there is a direct or indirect change of Control of the Client or the parent company of the Client to an A&DC competitor.

b)    Alternatively A&DC reserves the right to refuse access to all or some of the Licensed Program to any Person (including Users) who is in breach of the standards of use required by this Licence, the Website or is otherwise in breach of the Licence.


12)  Effect of Termination

a)     On termination of this Licence for any reason the Client shall immediately cease to make available to Users the whole or any part of the Licensed Program;

b)    On termination of this Licence for breach by the Client the Client shall:

i)      immediately cease to make available to Users the whole or any part of the Licensed Program or the Generated Works; and

ii)     within five (5) working days delete all copies of the Generated Works held on the Client Server or Network or which are otherwise in its possession or under its control and shall certify to A&DC that this has been done and that no copies in any media have been retained.

13)   Transfer of Rights and Obligations

a)     This Licence is binding on the Client and A&DC, and on their respective successors and assigns.

b)    The Client may not transfer, assign, charge or otherwise dispose of this Licence, or any of the rights or obligations arising under it, without A&DC’s prior written consent.

c)     A&DC may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of A&DC’s rights or obligations arising under it, at any time during the term of the Licence.

14)  Force Majeure

a)     A&DC will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Licence that is caused by events outside its reasonable control (" Force Majeure Event ").

b)    A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:

i)      strikes, lock-outs or other industrial action;

ii)     civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;

iii)    fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;

iv)    impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

v)     impossibility of the use of public or private telecommunications networks;

vi)    the acts, decrees, legislation, regulations or restrictions of any government.

c)     A&DC’s performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and A&DC will have an extension of time for performance for the duration of that period.  A&DC will use its reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which A&DC’s obligations under this Licence may be performed despite the Force Majeure Event.

15)  General

a)     Rights of Third Parties: A person who is not party to these terms of business shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce this Licence or any part of it.

b)    Waiver:

i)     If A&DC fails, at any time during the term of this Licence, to insist upon strict performance of any of the Client’s obligations under this Licence, or fails to exercise any of the rights or remedies to which A&DC is entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve the Client from compliance with such obligations.

ii)     A waiver by A&DC of any default shall not constitute a waiver of any subsequent default.

iii)    No waiver by A&DC of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Client in writing.

c)     Severability:   If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

d)    Entire Agreement:   This Licence and any document expressly referred to in it represents the entire agreement between A&DC and the Licensor in relation to the licensing of the Licensed Program and Generated Works and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing.

e)     Law and Jurisdiction:  The terms and conditions of this Licence are governed by English law and the English courts shall have jurisdiction provided always that A&DC may take action against the Client in any appropriate jurisdiction in order to protect its Intellectual Property.