1.1 In this Agreement the following expressions shall have the following meanings:
Bribery: offering, promising or giving any financial or any other advantage to retain business.
Commission: a fee payable to Learnerbly as a percentage of the price paid for services by Learnerbly or a Learnerbly Client.
Data Protection Laws: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) ("the GDPR") and its equivalent in the United Kingdom (the "UK GDPR") and any legislation and/or regulation which amends, replaces, re-enacts or consolidates them.
Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application for such rights), including copyright, know-how, confidential information, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor, topography rights, database rights and rights to sue for passing off.
Introduction: any introduction, referral or connection given by Learnerbly of any Learnerbly Client to the Partner, whether in person, online or howsoever arising. Introduce, Introduces and Introduced shall be interpreted accordingly.
Learnerbly: the trading name of Enternships Limited, incorporated and registered in England with company number 06815520 whose registered office is at 30 Old Bailey, London, EC4M 7AU, United Kingdom.
Learnerbly Client: a client, or potential client, of Learnerbly.
Net Income: means the income received in exchange for Services, minus any applicable VAT.
Partner, You or Your: Any provider entering into a Partner Agreement with Learnerbly to provide services to Learnerbly or a Learnerbly Client on behalf of Learnerbly.
Partner Agreement: the document entitled Learnerbly Partner Agreement signed by the parties.
User: an individual user of a Service.
We, Us or Our: Learnerbly.
Relevant Contract: a contract (in any format and whether written or oral) for the supply of Services between the Partner and Learnerbly or to a Learnerbly Client on behalf of Learnerbly entered into during, or otherwise applicable to, the term of this Agreement or the period of six months following its termination.
Services: any services or content offered directly or indirectly by Learnerbly to Learnerbly Clients purchased from or delivered by the Partner.
2. LEARNERBLY’S RESPONSIBILITIES
2.1. Learnerbly provides access to learning content and services to its Clients purchased from or delivered on behalf of its learning providers and Partners.
2.2. Learnerbly is a Data Controller registered with the Information Commissioner’s Office for the purpose of the Data Protection Act 2018 (Registration Number Z2720747). Learnerbly acts as a Data Processor on behalf of its Clients.
2.3. We will be responsible for the performance and conduct of Our employees and their compliance with Our obligations.
2.4. Learnerbly does not engage in Bribery, does not direct, authorise or knowingly permit any person who acts on its behalf or provides services to it, to engage in Bribery.
3. PARTNER SERVICES
3.1. The Partner shall provide the Services in a professional manner with all due care and skill.
3.2. The Partner shall defend, indemnify, and hold Learnerbly and its employees harmless from and against any and all costs, expenses, and losses, (including reasonable legal fees and costs) incurred through claims by Learnerbly Clients or other third parties against Learnerbly arising in connection with (a) the Partner’s provision of, or failure to provide, the Services, or (b) the Partner’s breach of personal data associated with the provision of the Services.
4.1. The Partner shall pay Learnerbly Commission if Learnerbly purchases Services from the Partner or Services are purchased from the Partner by a Learnerbly Client. The rate of the commission shall be defined in the Partner Agreement.
4.2. Commission shall be calculated as a percentage of the net income received by the Partner from any goods or services purchased by Learnerbly or a Learnerbly Client.
4.3. All sums payable under this Agreement are exclusive of value-added tax or other applicable sales tax, which shall be added to the sum in question. Learnerbly may be required to add VAT or other taxes to the commission received under this agreement, which shall be paid by the Partner in addition to the commission.
4.4. Termination of this Agreement, howsoever arising, shall not affect the continuation in force of this clause 4 and the Partner’s obligation to pay Commission to Learnerbly in accordance with it.
4.5. In the event that Learnerbly purchases Services on behalf of one or more of its Clients, it does so as an agent of its Client and the contract for such Services shall be between the Partner and the Client.
4.6. Learnerbly may pay the Partner on behalf of its Client, less the Commission due on such amount, which shall be retained by Learnerbly.
4.7. Learnerbly may, with prior agreement from the Partner, purchase content from the Partner to resell to Learnerbly Clients at a higher price; the difference being our commission.
4.8. Learnerbly shall have no responsibility for validating the Services which it purchases on behalf of and on the instructions of the Client and undertakes no assessment or due diligence activities on the provider of the Services.
4.9. All Commission payable shall be due to Learnerbly within 30 days of the end of the month in which the Partner receives the corresponding payment for Services. If the Partner receives payment under any Relevant Contract in instalments, the Commission shall be calculated and paid on such instalments as they are received by the Partner.
5.1. The Partner hereby grants to Learnerbly the non-exclusive right to promote, advertise and provide its Services to individuals and organisations subject to all the terms and conditions of this Agreement.
5.2. The Partner shall provide technical support to Learnerbly, as requested and required, to ensure the highest quality end-user Learnerbly Client experience.
6. PROPRIETARY RIGHTS AND LICENSES
Reservation of Rights. Save as expressly agreed between the parties, nothing in this Agreement is intended to transfer any right, title or interest in any Intellectual Property Rights from one party to the other.
7. IPR INDEMNIFICATION
7.1. The Partner shall indemnify Learnerbly against all damages, losses and expenses arising as a result of any action or claim that information uploaded by the Partner or on behalf of the Partner infringes the Intellectual Property Rights of a third party.
7.2. Learnerbly shall indemnify the Partner against all damages, losses and expenses arising as a result of any action or claim that the Learnerbly application infringes any Intellectual Property Rights of a third party, other than infringements referred to in clause 7.1.
7.3. The indemnities in clauses 7.1 and 7.2 are subject to the following conditions:
a) the indemnified party promptly notifies the indemnifier in writing of the claim;
b) the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require, at the indemnifying party’s costs; and
d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
7.4. The indemnities in clauses 7.1 and 7.2 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing. Your Confidential Information includes Your Data; Our Confidential Information includes Our Data, any and all Learnerbly Client or User information; and Confidential Information of each party includes these Terms & Conditions, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) not to use any Confidential Information of the Disclosing Party.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so.
9. DATA PROTECTION
9.1. Learnerbly and the Partner shall comply with their respective obligations under the Data Protection Laws, and references to “Data Controller”, "Data Processor" and "Personal Data" herein shall be interpreted as having the meanings defined within the Data Protection Laws.
9.2. The assignment of Data Controller and Data Processor shall be confirmed between Learnerbly and the Partner within the Partner Agreement.
9.3. The Data Processor shall process personal data only on documented instructions from the Data Controller unless required to do so by UK, European Union or Member State law to which the processor is subject. Such instructions, if any, shall be specified in the Partner Agreement. Subsequent instructions can also be given by the Data Controller throughout the duration of the processing of personal data, but such instructions shall always be documented and kept in writing, including electronically, in connection with the Terms.
9.4. The Partner shall be responsible for creating and retaining such records as are required to demonstrate compliance with its Personal Data processing obligations. At the request of Learnerbly, the Partner shall demonstrate the measures it has taken pursuant to this Section 9 and shall allow Learnerbly to audit such measures.
9.5. The Partner shall implement and maintain appropriate technical and organisational security measures to protect Personal Data from Security Incidents and to preserve the security and confidentiality of Personal Data.
9.6. In the event of a data breach, in which Personal Data hosted by the Partner is compromised, the Partner shall inform Learnerbly no later than 48 hours after the breach is detected. The Partner shall provide updates and assistance to Learnerbly in resolving the data breach and in informing any relevant Learnerbly Clients.
10. LIMITATION OF LIABILITY
10.1. Nothing in these Terms & Conditions excludes the liability of the Parties:
a) for death or personal injury caused by either party’s negligence; or
b) for fraud or fraudulent misrepresentation; or
c) for the consequences of personal data breaches as defined within the Data Protection Laws
10.2. Subject to clause 10.1, Learnerbly shall not be liable to the Partner for any loss of profits, loss of business or revenue, loss of data, or for any special, indirect or consequential loss, costs, damages, charges or expenses howsoever arising including whether in contract and tort (including negligence or breach of statutory duty).
10.3. Subject to clause 10.1, Learnerbly’s total liability in contract, tort (including negligence), breach of statutory duty or otherwise, in respect of all claims arising out of or in connection with these Terms & Conditions shall be limited to 100% of the amount payable by Learnerbly or the Learnerbly Client in respect of the Services to which the claim relates.
10.4. Subject to clause 10 c), Learnerbly shall only be liable for the personal data processing activities which it has undertaken and which, through its negligence or otherwise, have caused the breach of personal data. Learnerbly shall not be responsible for personal data breach liabilities arising from any act or omission of a Partner.
10.5. We have no control over and are not responsible for other sites, services and resources provided by third parties.
11.1. This Agreement will commence on the Commencement Date and will continue until terminated by either party in accordance with its provisions. Either party may terminate this Agreement at any time by giving the other party not less than two months’ notice in writing, such notice to expire on or after the expiry of the Minimum Term stated in the Partner Agreement.
11.2. Without affecting any other right or remedy available to it, either party may terminate the Partner Agreement with immediate effect by giving written notice to the other party if:
a) the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
b) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply.
11.3. The Partner shall not contract directly or indirectly with Learnerbly Clients or a client introduced by Learnerbly for a period of least six months following the termination of the Partner Agreement.
12. CONSEQUENCES OF TERMINATION
12.1. On termination of the Partner Agreement, the following clauses shall continue in force: clause 4, clause 7, clause 8 and clause 9 (inclusive).
12.2. Termination of the Partner Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
12.3. Upon your written instruction, You will securely delete or return any Learnerbly or Learnerbly Client Personal Data and all copies thereof on termination of this agreement, unless we are required to retain it under a legal or regulatory obligation to store the Personal Data.
13. GOVERNING LAW
This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).