General Terms and Conditions – DBM ProWorks
These General Terms and Conditions (the “Agreement”) governs the obligations and rights of the Client and Digital Business Masters, “DBM ProWorks”. By accepting these terms and conditions upon a sign up procedure, or in any other way, you hereby confirm that you are authorized to bind the Client through such execution.
1 Services – Right to use
1.1 Subject to the terms and conditions of this Agreement, DBM ProWorks hereby grants to the Client a non-transferable, non-exclusive, non-sublicensable limited term world-wide right and licence for the Client to access and use the Services. The “Services” means the at all times current version of the web services, associated software, and other services related thereto provided to the Client by DBM ProWorks in accordance with this Agreement. The Services consist of an online education platform with videos, assignments, quizzes and tasks available on the website. The Client may not transfer, sub-licence or in any other way provide, permit or utilise the Services or its material for use by a third party, e.g. through time-sharing, as a service or otherwise.
1.2 DBM ProWorks reserves the right to implement new versions and upgrades of the Services including, but not limited to, changes that effect modifications to the material, design, operational method, technical specifications, systems, and other functions, etc. of the Services, at any time without prior notice.
1.3 DBM ProWorks undertakes, in its sole discretion, to adopt reasonable measures so that the Services are available over the Internet around the clock, seven (7) days a week. DBM ProWorks shall be entitled to take measures that affect the aforementioned accessibility where DBM ProWorks deems such to be necessary for technical, maintenance, operational, or security reasons. The Client does not have the right to compensation in the event of lack of access as a result of any such measures taken. Nor is DBM ProWorks liable for lack of access as a result of interruptions or communication problems on the Internet or other private and public networks, for other accessibility deficiencies outside of DBM ProWorks control, or problems with the Client’s own equipment which is used to obtain access to the Services.
1.4 DBM ProWorks has the right to amend these General Terms and Conditions. The Client shall be informed of any such amendments through a notification via e-mail or via the DBM ProWorks web site. The Client shall be regarded as having received the notification at the latest one (1) week from the date on which the notification was sent by e-mail or announced on the web site. If the change has an appreciable adverse effect on the Client, the Client has the right to terminate the Agreement within thirty (30) days of the date on which the notification was regarded as having been received in accordance with the above. If the Client does not terminate the Agreement within the period stipulated above, the Client shall be regarded as having accepted the new General Terms and Conditions to this end.
1.5 DBM ProWorks shall be entitled to retain subcontractors, including third party software suppliers, for the performance of obligations in accordance with this Agreement. DBM ProWorks shall be liable for the subcontractors’ work and services in the same manner as for its own work and services.
2 Client Obligations
2.1 The Client shall always comply with any security and administrative regulations as notified in conjunction with registration, by e-mail, as made available on the DBM ProWorks web site, or in any other manner.
2.2 The Client shall ensure that all details provided regarding the Client’s contact information, billing information and credit card information, where applicable, are correct and undertakes to update such information as soon as possible when changes to such information occurs.
2.3 The Client shall be responsible for the activities conducted by the Client and shall use the Services in compliance with national laws in conjunction therewith. All applications and other results and the use of such applications and result created by the Client using the Services shall be the sole responsibility of the Client.
2.4 The Client undertakes not to use the Services in any manner which may result in the infringement of any third party’s copyright, or which constitutes a dissemination of business secret, or may incite a third party to commit or participate in a crime, or may be understood as constituting a threat, or to use the Services in any other manner incompatible with the purpose intended.
2.5 The Client is obligated to notify DBM ProWorks regarding any suspected breach of these article 2 provisions.
3 Fees and Payment Terms
3.1 The Client shall pay compensation for the Services in accordance with the fees set out upon sign up procedure, purchasing page or otherwise agreed.
3.2 All DBM ProWorks subscriptions automatically renew at the end of the billing period, unless the customer cancels the subscription prior to the end of the billing period.
3.3 The Client can cancel the DBM ProWorks subscription at any time through their DBM ProWorks account settings or by contacting customer support. Cancellations only apply to future payments.
3.4 All Services provided by DBM ProWorks shall be debited to the Client in advance.
3.5 Payment shall be made by the Client against through use of a credit card or through a selected DBM ProWorks third party payment provider.
3.6 In the event of early termination of the Services or the Agreement, due to the Client’s breach the Client shall not be entitled to a refund of any prepaid fees.
4.1 DBM ProWorks shall hold title to any and all intellectual property rights and technical solutions to the Services or, in the alternative, shall possess a sole right to use the same. Such intellectual property rights and technical solutions may only be used by the Client in the manner stated in this Agreement. Under no circumstances shall the Client or a third party acquire any intellectual property rights to the Services or to the software or technical solutions used in Services, or to any trademark or any other business mark belonging to or used by DBM ProWorks. Access to the Services are licensed, not sold.
4.2 All content and data uploaded to, transferred through, posted, processed or entered into the Services by the Client shall remain the sole property of the Client or its respective legal owner. DBM ProWorks shall have no liability for such content and data.
4.3 The Client may not in any way modify, decompile, disassemble or reverse engineer the Services except as permitted by law.
5 Client Support
5.1 DBM ProWorks provides the Client with support by e-mail, regarding Client’s enquiries in connection with use of the Services. Such support is provided on weekdays (excluding public holidays) during DBM ProWorks ordinary office hours and to the reasonable extent decided upon from time to time in detail by DBM ProWorks.
5.2 Enquiries and/or error notices must be submitted to DBM ProWorks by e-mail in accordance with the contact information available on the DBM ProWorks web site.
6 Personal Data, Privacy, Disclosure
6.2 In addition, in order for the Client to be able to use the Services, the Client must also allow DBM ProWorks to store and retrieve session information on the Client’s representatives’ end terminal equipment, through the use of “cookies”. The purpose of such storage and retrieval of information is to enable the necessary login/logout procedures used in the Services and to ensure that unauthorised persons do not gain access to the Services and to improve the use of the Services. The Client further approves that DBM ProWorks is entitled to produce aggregated statistics on and analyzing data related to the Client’s application and the Client’s users use of the same application.
6.3 The Client agrees that DBM ProWorks may use the Client’s name and logo to identify the Client as a client of DBM ProWorks.
7.1 The Client shall ensure that usernames, passwords, and equivalent obtained by the Client in conjunction with registration are stored and used in a secure manner and cannot be accessed and thereby used by third parties. The Client shall be liable for any unauthorised use of the Services. DBM ProWorks shall have no liability for any loss or damage arising from the Client’s failure to comply with these requirements.
8 Limited Warranty
8.1 DBM ProWorks warrants to the Client that the Services will perform substantially and materially in accordance with how it is presented on its web site, under normal use and circumstances, and for the purpose intended.
8.2 Except for the express warranties set forth above and to the extent permitted by law, DBM ProWorks expressly disclaims all other warranties with respect to the Services, whether express or implied, including without limitation, fitness for a particular purpose, accuracy or reliability of results from use of the Services, that the Services will meet specific requirements, that the Services will be uninterrupted, completely secure, free of software errors, or that defects and deficiencies in the Services will be corrected.
9 Limitation of Liability
9.1 Subject to the limitations set forth in this Agreement DBM ProWorks shall only be liable for direct damages.
9.2 In the event of major defects that seriously impede the Client’s use of the Services and that are attributable to DBM ProWorks, DBM ProWorks undertakes to act to rectify such defect without unreasonable delay. In the absence of intent or gross negligence by DBM ProWorks, DBM ProWorks assumes no responsibility for defects or deficiencies in the Services. Error notification must be given by the Client in accordance with the instructions announced by DBM ProWorks and within a reasonable time of the discovery of the defect.
9.3 The Client shall not be entitled to a reduction in payment, or to damages or other sanctions in the event of operational disruption or errors that impede data traffic that are not due to negligence by DBM ProWorks.
9.4 DBM ProWorks shall defend and indemnify Client from and against any damage, cost and expense (including reasonable attorneys’ fees) finally awarded or agreed in a settlement by DBM ProWorks as a result of any claim, suit or proceeding brought against Client based on a claim that the authorized use of the Services furnished by DBM ProWorks under this Agreement constitutes an infringement of any third party intellectual property right; provided that DBM ProWorks has been notified promptly in writing of such claim, and given authority, information, and assistance to handle the claim or the defence of any suit, proceeding or settlement and that Client has not compromised or settled the claim, suit or proceeding without DBM ProWorks prior written consent, and provided further that DBM ProWorks shall have no obligations under this section to the extent any claim is based on the combination or use of the Services with other software, hardware or services not furnished by DBM ProWorks or use of the Services in a manner prohibited under this Agreement, in a manner for which it was not designed where the Services would not otherwise itself be infringing.
9.5 In the event that the Services in such suit or proceeding are held to constitute an infringement, or if in DBM ProWorks reasonable opinion the Services may constitute such infringement, and/or its further use is enjoined, DBM ProWorks shall, at its own expense and at its option, either
(i) procure for Client the right to continue the use of the Services, or
(ii) replace the Services with non-infringing services of materially equivalent function and performance, or
(iii) modify the Services so that it becomes non-infringing without materially detracting from function or performance.
Should none of these measures be technically, commercially or economically reasonable to DBM ProWorks, then either party may terminate this Agreement. Upon such termination, DBM ProWorks shall refund the amount of fees paid in advance in respect of not yet used Services.
9.6 DBM ProWorks liability under this Agreement shall, under all circumstances be limited to direct losses in an amount corresponding to the agreed fees paid by the Client for the Services during the period of six (6) months immediately prior to the breach of contract that entitles the Client to damages.
10 Force Majeure
10.1 A party is exempt from sanctions for failure to fulfil certain obligations under the Agreement if the failure is due to any circumstance which is outside the party’s control and which the party could not reasonably have foreseen or avoided, such as war, actions by the authorities, new or amended legislation, industrial action, restrictions on trade or currencies, blockade, fire, flood or similar circumstance, as well as defects or delays in deliveries from subcontractors.
10.2 It is incumbent upon the party who wishes to cite grounds for exemption under this section to inform the other Party without delay that such a circumstance has arisen, and when it ceases.
10.3 Irrespective of the provisions on exemption from sanctions in this section, a party has the right, without sanction, to terminate this Agreement with immediate effect in writing to the other party if the fulfilment of a significant obligation under this Agreement is delayed by more than three (3) months.
11.1 DBM ProWorks undertakes not to disclose to any third party, or otherwise make available, information received by DBM ProWorks from the Client within the scope of the Agreement. Furthermore, any other information received by a party that in any way relates to the other party, including but not limited to any business, financial, scientific, intellectual property, customer or potential customer related, technical or operational information shall be considered confidential and shall not be disclosed to any third party. The above confidentiality obligations shall not apply to such information as a party can demonstrate became known to that party other than pursuant to this Agreement or which is in the public domain. Nor shall the duty of confidentiality apply where a party is obligated to provide information pursuant to legal provisions, public authority regulations or court orders
12 Term of Agreement and Termination
12.1 The Agreement comes into force on the earliest of (i) when the Client logs-on to the Services for the first time, (ii) when the Client pays the fee for the Services. The Agreement runs thereafter until further notice and is terminated in accordance with 12.2.
12.2 Each Party has the right to give written notice of termination of the Agreement. Such notice of termination must be given no later than ninety (90) days before the party wants the Agreement to expiry.
12.3 Either party has the right to terminate the Agreement with immediate effect if:
(i) the other party is guilty of material breach of the Agreement and the breach of the Agreement is not fully rectified within thirty (30) days from the date on which the party in breach receives written notice from the other party with a request that corrective action is taken;
(ii) the other party suspends payments, resolves on voluntary or involuntary liquidation, applies for a company reorganisation or bankruptcy or if the party can otherwise be regarded as insolvent.
12.4 On the termination of the Agreement, all parts of the Client’s right to utilise the Services terminates.
12.5 Upon termination of this Agreement for any reason, DBM ProWorks shall be entitled to permanently delete and destroy all of the Client’s data and content related thereto.
12.6 Sections 9 and 15 shall survive any termination of this Agreement.
13 Access Restrictions and Early Termination
13.1 DBM ProWorks shall be entitled, with immediate effect, to disable the Client’s access to the Services or to terminate the Agreement at any time in writing where: (a) the Client uses the Services in a manner that entails the perpetration of a crime; (b) the Client uses the Services in a manner that occasions losses or the risk of loss for DBM ProWorks or any third party; (c) the Client uses the Services in a manner that violates DBM ProWorks security or administrative regulations; (d) it may be reasonably assumed that Client’s use of the Services violates governing law; (e) the Client otherwise fails to comply with the Agreement and such breach of contract is material.
14.1 DBM ProWorks shall be entitled, in whole or in part, to assign its rights and obligations under the Agreement to a company within the same de jure or de facto group of companies as DBM ProWorks or to a purchaser of all or substantially all of its stock or assets without the Client’s prior consent.
15 General Provisions
15.1 If any provision of this Agreement is declared unenforceable for any reason, the remainder of this Agreement will continue in full force and effect, and the unenforceable provision shall be amended to the extent possible and permitted by law to achieve as nearly as possible the same intent and economic effect as the original provision.
15.2 This Agreement and the ensuing relationship between DBM ProWorks and the Client shall be construed in accordance with, and governed by, the laws of the United Kingdom. The United Nations Convention on the International Sale of Goods shall have no application to this Agreement
15.3 Disputes arising from the Agreement shall be finally settled through arbitration administered by the London Chamber of Arbitration (LCA). The Institute’s Rules for Expedited Arbitration shall apply unless LCA, in consideration of the degree of complexity of the case, the value of the matter at issue and other circumstances decides that the Arbitration Rules of the London Chamber of Arbitration shall apply to the proceedings. In this last named case, LCA shall also determine whether the arbitral tribunal shall consist of one arbitrator or three arbitrators.
15.4 Notwithstanding section 15.3 DBM ProWorks may however bring disputes regarding overdue unpaid claims for the Services before UK ordinary courts.
Version 1.0 January 2023