PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN THE ARBITRATION TERMS BELOW. IT AFFECTS HOW DISPUTES RELATING TO THESE TERMS & CONDITIONS ARE RESOLVED.
These Terms & Conditions, together the Client Agreement (together, the “Agreement”) govern your use of the Services (as defined below), received or accessed through any Learnerbly website or other property, including Learnerbly.com.
Use of certain aspects of the Services may be subject to additional terms, to which you must agree in order to use such Service (such as the Virtual Card Agreement for use of the Virtual Card). In the event of any conflict between a provision in such additional terms and these Terms & Conditions, the provision of these Terms & Conditions shall control solely to the extent of the conflict.
1.1. In these Terms & Conditions the following defined terms shall have the following meanings:
Anti-Bribery Laws are as described in Clause 3.3.
Client, You or Your means any person authorized pursuant to these Terms & Conditions to make use of the Services.
Client Agreement means the document headed "Learnerbly Client Agreement" which includes the commercial proposal, scope and the term of the Services purchased.
Commencement Date means the earlier of (a) the date of execution of a Client Agreement or (b) the date of Your first access to the Platform (other than any agreed free trial period);
Content means all text, information, data, images, audio or video material in whatever medium or form provided by either You or Us.
Data Protection Laws means the legislation governing the processing of personal data in the country or state in which that personal data is processed, and includes (as appropriate) the Data Protection Act 2018 (UK), the UK GDPR (as defined in the Data Protection Act 2018) (“UK GDPR”), the General Data Protection Regulation 2016/679 (EU) (“GDPR”) as well as applicable state and federal legislation in the US, including in each case any national or state implementing laws, regulations and secondary legislation as well as all other regulations, mandatory guidance(s) issued by the relevant supervisory authority in relation to the processing of personal data, provided always that where such legislation (including implementing laws, regulations and secondary legislation) is less stringent than the requirements of the GDPR, the requirements of the GDPR will apply.
Fees means the fees, if any, payable by the Client as set out in the Client Agreement.
Intellectual Property Rights means all intellectual property and proprietary 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 of publicity, rights of privacy, rights to sue for passing off, moral rights, rights in data or databases, contract rights and any other legal rights protecting data, information or intangible property throughout the world..
Learnerbly means the trading name of Learnerbly Inc., incorporated in Delaware whose business address is at 1209 Orange Street, Wilmington, DE 19801 United States.
Learning Credits means prepaid credit purchased from Learnerbly by the Client which can be redeemed against the purchase of Learning Products on the Learnerbly platform, as described in Clause 15.
Learning Product means a Non-Learnerbly Product that is resold by Learnerbly for learning and development purposes through the Platform and pursuant to these Terms and Conditions.
Licensor means a supplier of Learning Products which has authorized its Third Party Products to be accessible through the Platform.
Malicious Code means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
Marks means any and all trademarks, trade names, service marks, design marks, trade dress, logos, URLs or identifying slogans, whether or not registered.
Non-Learnerbly Product means a software application or other product or service that is provided by a third-party supplier and not by Learnerbly.
Personal Data Processing Activities means Data Processing Activities is as defined in Learnerbly’s Privacy Notice.
Platform means the software, hardware, databases and other technology used by Leanerbly to provide the Services,
Product means software applications, other products including content, books, tickets to conferences, online sources, etc, for learning and development available through the Platform and includes the Learning Products.
Services means the Products and services that are provided by Learnerbly via the Platform pursuant to these Terms and Conditions.
User means an individual user of a Service, to whom We have supplied a user identification and password pursuant to these Terms and Conditions. Users may include, for example, Your employees, consultants, contractors and agents ..
Virtual Card means a virtual business charge card issued by a Virtual Card Issuer to You which Your authorized Users may use to purchase Learning Products.
Virtual Card Agreement has the meaning given in Clause 14.2(a).
Virtual Card Functionality has the meaning given in Clause 14.1.
Virtual Card Issuer means a third-party service provider that issues a Virtual Card to You under a Virtual Card Agreement.
We, Us or Our means Learnerbly.
Your Data means electronic data and information about You which is submitted to or collected and processed by Us of a third party provider in connection with Your use of the Services.
2. How to Order; Scope of Services
2.1. Client Agreement
You must enter into a Client Agreement to purchase the Services. Each Client Agreement sets out the details of the Services to be provided by Us or our third-party suppliers and partners (the Scope).
2.2. Third-Party Functionality
The Service may contain or include functionality and software provided or licensed by third-parties (Third-Party Functionality). For any Third-Party Functionality clearly indicated to be subject to the terms of a separate agreement (a Third-Party Agreement), the terms of the applicable Third-Party Agreement will apply to the Third-Party Functionality independent of the terms of this Agreement. All other Third-Party Functionality provided to the Client through the Service may be used only under the terms of Terms & Conditions. Nothing in Terms & Conditions limits Client's rights under the terms of any such applicable Third-Party Agreement.
3. Learnerbly's Responsibilities
3.1. Operation of the Services
(a) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for:
(i) planned downtime (of which We shall endeavour to provide at least 8 hours' electronic notice and which We shall schedule, to the extent practicable, during the weekend between 6:00 p.m. Friday and 3:00 a.m. Monday GMT time); and
(ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure, Non-Learnerbly Product failure, or denial of service attack; and
(b) provide Our standard customer support for the Services to You at no additional charge.
3.2. Protection of Your Data.
(a) We will maintain reasonable and appropriate administrative, physical, and technical safeguards for the protection of the confidentiality, integrity and availability of Your Data, in accordance with industry standards and applicable law.
(b) Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Us except:
(i) to provide the Services and prevent or address service or technical problems;
(ii) as compelled by law in accordance with clause 7.3 (Compelled disclosure) below; or
(iii) as You expressly permit in writing.
(c) We will be responsible for the performance and conduct of Our employees and sub processors and their compliance with Our obligations.
3.3. Anti-Bribery and Corruption
(a) We, and to the best of Our knowledge, Our officers, directors, employees, agents, and anyone acting on its behalf (collectively, the "Representatives") are in compliance with all applicable anti-bribery and anti-corruption laws, including the US Foreign Corrupt Practices Act, the UK Bribery Act 2010 (collectively, the "Anti-Bribery Laws").
(b) We have adopted and maintain adequate policies, procedures, and controls to ensure that We have complied and are in compliance with all Anti-Bribery Laws, including at a minimum policies and procedures relating to the prevention of bribery, accounting for financial transactions, due diligence on third parties, and training of personnel.
4. Client’s Responsibility
4.1 You acknowledge that the Platform and all software, hardware, databases, and other technology used by or on behalf Us to provide the Platform and Services (collectively, the “Technology”) and their structure and organisation constitute Our and our suppliers’ valuable trade secrets.
4.2 You will:
(a) be responsible for Users' compliance with these Terms & Conditions;
(b) managing records related to the legal basis for data processing (e.g. contracts with the data subject or consent records);
(c) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data;
(d) prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use; and
(e) use Services only in accordance with applicable laws and regulations.
4.3 Usage Restrictions
You will not, and will not permit any User or other third party to:
(a) make any Service available to, or access or use any Service for the benefit of, anyone other than You or Users. User accounts and passwords may not be shared and may only be used by one individual per account;
(b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering;
(c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or in any other manner which causes Us to violate applicable law;
(d) use a Service to store or transmit Malicious Code;
(e) damage, disable, overburden, impair, interfere with or disrupt the integrity or performance of any Service or third-party data contained therein or interfere with the operation or hosting of any Service;
(f) attempt to gain unauthorized access to any Service or its related systems or networks;
(g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit;
(h) copy a Service or any part, feature, function or user interface thereof;
(i) frame or mirror any part of any Service, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted by Us;
(j) access any Service in order to build a competitive product or service;
(k) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of any Service (save to the extent such restriction is permitted by law); or
(l) monitor availability, performance or functionality of any Service or perform any benchmarking, business intelligence, data mining or competitive analysis of any Service.
4.4 Removal of Content
If We receive a reasonable instruction from a Licensor to remove Content deemed violative by the Licensor, or receive information that Content provided by You may violate applicable law or third-party rights, We will so notify You and in such event You shall promptly remove such Content. If You do not take required action, within a reasonable time not in excess of 5 days, in accordance with the above, We shall have the right in our sole discretion to disable the applicable Content and Service until the potential violation or objectionable Content is resolved.
5. Fees and Payment
You will pay all fees as specified in the Client Agreement without offset or deduction by the method agreed in the Client Agreement, and in any case no later than the due date and in the currency stated on the invoice. Payment obligations are non-cancellable and fees paid are non-refundable.
5.2 Invoicing and Payment
(a) Prior to the commencement of the Services, the Client shall issue Learnerbly with a unique Purchase Order Number (PO) by Client, if required.
(b) All Fees and other amounts payable by You under the Agreement are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by You hereunder, other than any taxes imposed on Learnerbly’s income.
(c) All invoices relating to this Client Agreement shall be sent to the business address of the Client or such other address as may be notified by the Client to Learnerbly from time to time.
5.3 Overdue charges
(a) If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies:
(i) We may charge late interest (including pre-judgment interest) on the outstanding balance at the rate of 1.5% per month (or if lower, the highest rate permitted under applicable law). Such interest shall accrue on a daily basis and be compounded monthly.
(ii) You shall reimburse Us for all reasonable costs incurred by Us in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
(iii) Learnerbly shall have the right to suspend some or all of Your or Your Users’ access to the Services if Client invoices are not paid in full and cleared funds by their due date. Users may be informed of this suspension via the Learnerbly platform.
(b) Any orders placed for learning resources via Learnerbly are subject to availability.
(c) Prices quoted on the Learnerbly site for third-party products and services are subject to change from time to time without notice. By placing an order via Learnerbly you accept that the price payable may vary by up to the greater of US$10 (or the equivalent currency value) or 10% of the price quoted. We will inform the User and obtain their prior consent if the price payable exceeds the price quoted by more than this amount.
(d) License fees for access to the Learnerbly platform shall be invoiced and are payable in full in advance of the contract start date. Any additional Users added during the contract term shall be invoiced on a monthly basis, payable for the remainder of the current billing cycle.
6. Proprietary Rights and Licenses
6.1 Leanerbly Licence Grant
Subject to these Terms & Conditions, Learnerby hereby grants to You a non-exclusive, non-sublicenseable, revocable, non-transferable (except in compliance with clause 20)) license to access the Services and use the Products during the subscription term in accordance with the Scope and solely for Your internal business purposes.
6.2 Reservation of Rights
Subject to the limited rights expressly granted hereunder, We reserve all of Our right, title and interest in and to the Services, including all of Our related Intellectual Property Rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.3 License by You to host Your Data
You grant to Us a worldwide, limited, royalty-free and sublicensable license to: (a) use, host, copy, transmit and display Your Data and program code created by or for You using a Service (if any), as necessary for Us to provide the Services; and (b) for the purposes of reporting on the performance, developing and providing new and different products for You and our other customers (provided that such use is aggregated and anonymised and does not identify the You or a User (as applicable).
6.4 License by You to use feedback
If You or any of Your employees or contractors sends or transmits any communications or materials to Learnerbly by mail, email, telephone, or otherwise, suggesting or recommending changes to the Learnerbly IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Learnerbly is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. You hereby assign to Learnerbly on Your behalf, and on behalf of Your employees, contractors and/or agents, all right, title, and interest in, and Learnerbly is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Learnerbly is not required to use any Feedback. You grant to Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
7.1 Definition of Confidential Information
Confidential Information means all information disclosed by a party (Disclosing Party) to the other party (Receiving Party). Your Confidential Information includes Your Data; Our Confidential Information includes any pricing information and information relating to the Services; 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 affairs and, processes, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” disclosed by such party. However, Confidential Information does not include any information that:
(a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
(b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
(c) is received from a third party without breach of any obligation owed to the Disclosing Party; or
(d) was independently developed by the Receiving Party.
7.2 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.
7.3 Compelled disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so.
8. Data Protection
8.1 Learnerbly and the Client shall comply with their respective obligations under the Data Protection Laws, and references to Data Controller, Data Processor , Personal Data (which shall include Personal Identifiable Data where applicable) herein shall be interpreted as having the meanings defined within the Data Protection Laws.
8.2 Unless otherwise agreed between the Parties, each of them shall be a separate and independent Controller in respect of its own processing of the Personal Data in connection with these Terms & Conditions, and shall be solely responsible and liable for its own processing of the Personal Data including (without limitation) the lawful basis for that processing and ensuring that the Data is processed in compliance with the Data Protection Laws.
8.3 Each Party shall assist the other in complying with all applicable requirements of the Data Protection Laws. In particular, each Party shall:
(a) consult with the other Party about any notices given to data subjects in relation to the Personal Data. As, prior to the provision of the Services, Learnerbly does not have a direct relationship with the data subject, and in each case where consent is the lawful basis for processing Personal Data, the Client shall be solely responsible for obtaining the specific, informed, unambiguous and freely given consent of each data subject for the processing of their Personal Data by or on behalf of Learnerbly unless otherwise agreed between the Parties.
(b) promptly inform the other Party about the receipt of any data subject access request, where possible consult with the other Party before releasing any personal data in response to a data subject access request, and provide the other Party with reasonable assistance where required by the other Party to comply with any data subject access request;
(c) notify the other Party without undue delay on becoming aware of (and in no event later than 48 hours after becoming aware of), any breach of the Data Protection Laws or any personal data breach in respect of the Data and co-operate with the other Party in respect of any notification required to be made, any investigation into the breach and any measures necessary to remedy the breach or mitigate the damage or harm caused by the breach;
(d) provide any assistance reasonably required by the other Party in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to breach notifications and consultations with supervisory authorities or regulators;
(e) maintain complete and accurate records and information to demonstrate its compliance with the Data Protection Laws;
(f) have in place appropriate technical and organisational measures to ensure a level of security appropriate to the risks that are presented by the processing of the Personal Data, in particular protection against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed pursuant to these Terms & Conditions, including where appropriate data protection by default and/or by design measures; and
(g) provide the other Party where requested with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Laws in connection with these Terms & Conditions.
8.4 In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the Parties, the Parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
8.5 The categories of Personal Data processed pursuant to these Terms & Conditions and the nature and purpose of the processing, duration and the categories of data subjects, are as described below in clause 8.6 and as may be updated from time to time.
8.6 The processing comprises of the following:
(a) Data subjects: the personal data transferred concern the following categories of data subjects: customers and clients (including their staff) and other individuals authorised by the customer to use the Service.
(b) The purpose of the transfer: the processing is necessary to provide the Services pursuant to these Terms & Conditions and internal analytics used for its continuous improvement.
(c) Categories of data: the personal data transferred concern the following categories of data: personal details (including any information that identiﬁes the data subject and their personal characteristics, including: name, address, contact details) employment details (including information relating to the employment of the data subject), goods or services provided and related information (including details of the goods or services supplied, licences issued, and contracts).
(d) Duration: The duration of the processing will be: until the earliest of (i) expiry/termination of these Terms & Conditions, or (ii) the date upon which processing is no longer necessary for the purposes of either Party performing its obligations under these Terms & Conditions (to the extent applicable) or under Data Protection Laws.
9.1 Each party acknowledges and agrees for all purposes that all Marks associated with the other party or the other party's services, products, literature, promotional materials or otherwise, whether or not registered, constitute the other party's exclusive property. Unless the Client expressly disagrees in writing, Learnerbly shall have the right to refer to the Client in its marketing materials and activities without any royalty, fee, or other compensation or payment being chargeable due or payable therefore. Learnerbly will not create any case studies in relation to the Client without the Client's express prior permission.
9.2 All uses of the Marks, including all goodwill arising, shall accrue solely to the benefit of the relevant owner.
9.3 All promotional literature and other materials prepared by either party shall bear appropriate copyright and trademark notices as prescribed by the party whose content or branding is included therein.
9.4 Neither party shall use, register or attempt to register in any jurisdiction, or otherwise appropriate or adopt, any name, mark or logo that is confusingly similar to the Marks of the other party.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THAT PURPOSE IS KNOWN TO US OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICE AND ANY THIRD PARTY PRODUCTS ARE PROVIDED "AS IS," EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
11.1 The Client shall indemnify, defend and hold harmless Learnerbly and its officers, directors, employees, representatives, and agents from and against all liabilities, damages, costs, losses and expenses (including without limitation, legal fees and court costs) that may be incurred in whole or in part, arising directly or indirectly as a result of: (a) any action or claim that information uploaded by the Client or on behalf of the Client infringes the Intellectual Property Rights of a third party; or (b) any breach by You or a User of these Terms & Conditions.
11.2 Learnerbly shall indemnify, defend and hold harmless the Client and its officers, directors, employees, representatives, and agents from and against all liabilities, damages, costs, losses and expenses (including without limitation, legal fees and court costs) that may be incurred in whole or in part, arising directly or indirectly as a result of any third party action or claim that the Site or the Services infringes or misappropriates any copyright, trademark or trade secret of a third party, or that the Service knowingly infringes any third party U.S. patent in in the development or operation of the Service, other than infringements referred to in clause 11.1.
11.3 If the Service becomes, or if We believe that the Service is likely to become, the subject of a claim of infringement or misappropriation, We may, in Our sole discretion, replace or modify the Service, procure for You the right to continue using the Service, or terminate these Terms & Conditions and require You to immediately cease access to and use of the Service. In the case of any such termination, We will refund to You any pre-paid portion of any fees. We shall have no obligation under this clause 11.3 as to any claim or action arising out of or related to: (a) Your or a User’s failure to use the Service in accordance with these Terms & Conditions, any documentation applicable to the Service, or Our instructions; (b) Your modification of the Service not specifically authorized in writing by Us; (c) the combination of any portion of the Service with any third party software, equipment, service, or data; and (d) any breach by You of these Terms & Conditions. THIS CLAUSE 11.3 STATES OUR ENTIRE OBLIGATION AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY ACTUAL, THREATENED OR ALLEDGED CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, MISAPPROPRIATION OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. THE FOREGOING IS GIVEN TO YOU SOLELY FOR YOUR BENEFIT AND IN LIEU OF ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE SERVICE.
11.4 The indemnities in clauses 11.1 and 11.2 are subject to the following conditions:
(q) 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.
11.5 The indemnities in clauses 11.1 and 11.2 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.
12. Limitation of Liability
12.1 EXCEPT IN THE EVENT OF: (A) THE OBLIGATIONS OF EACH PARTY UNDER CLAUSE 11 (INDEMNIFICATION), (B) A PARTY’S BREACH OF CLAUSE 7 (CONFIDENTIALITY), (C) A PARTY’S BREACH OF ITS OBLIGATIONS REGARDING THE INTELLECTUAL PROPERTY OF THE OTHER PARTY; OR (D) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (OR, IN THE CASE OF LEARNERBLY, TO ANY USER) FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING ANY LOSS OF USE OR ACCESS, LOSS OF BUSINESS OR LOSS OF REVENUE OR PROFIT, ARISING OUT OF OR IN CONNECTION WITH these Terms & Conditions OR THE PLATFORM OR SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF SUCH PARTY IS AWARE (OR SHOULD HAVE BEEN AWARE) OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 SUBJECT TO CLAUSES 12.1, 12.3 AND 12.4, OUR TOTAL AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL:
(a) WITH RESPECT TO BREACH OF OUR OBLIGATIONS UNDER THIS AGREEMENT IN CONNECTION WITH CLAUSE 8 (DATA PROTECTION) IN THE AGGREGATE BE LIMITED TO USD500,000; AND
(b) OTHERWISE BE LIMITED TO 100% OF THE TOTAL FEES PAID OR PAYABLE BY CLIENT TO US FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
12.3 NOTWITHSTANDING CLAUSE 12.2(a), 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 CLIENT OR USER.
12.4 WE HAVE NO CONTROL OVER AND ARE NOT RESPONSIBLE FOR OTHER SITES, SERVICES AND RESOURCES PROVIDED BY THIRD PARTIES. WE DO NOT SUPPLY LEARNING PRODUCTS AND DO NOT ASSUME ANY RESPONSIBILITY RELATING TO LEARNING PRODUCTS. THE SUPPLIER OF EACH LEARNING PRODUCT IS RESPONSIBLE FOR ANY ISSUE OR CLAIM THAT YOU HAVE IN RELATION TO IT, INCLUDING ANY REQUEST FOR A REFUND.
13. Term and Termination
This Agreement shall commence on the Commencement Date and, unless otherwise terminated earlier as provided in this clause 13, shall continue for the subscription term referenced in the Client Agreement (Term). Save for any provisions that survive termination of these Terms & Conditions, these Terms & Conditions automatically expires when the Term in all Client Agreements have expired or otherwise been terminated.
The Client’s initial term shall be detailed in the Client Agreement, the final day of which shall be Your Renewal Date. Unless otherwise detailed in the Client Agreement, Your subscription term will automatically renew each year on Your Renewal Date, for the longer of the initial subscription term, or one year.
In order to cancel the renewal of Your subscription, You must provide written notice to Learnerbly to cancel no less than thirty (30) days prior to Your Renewal Date. If no such notice is received by the due date, then Your subscription shall renew per the terms above. Notices are to be sent via email to ‘email@example.com’.
We may also immediately suspend access to and use of the Platform and Services following any actual or suspected breach of this these Terms & Conditions, the Documentation or a Client Agreement including, without limitation, obligations set out in clause 14 (Virtual Cards) of these Terms & Conditions, or applicable law or to prevent any other conduct that in Our judgment threatens the security, integrity or availability of the Service; provided however, that We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
13.4 Termination for Breach
Without prejudice to any other rights and remedies to which the parties may be entitled, either party may terminate these Terms & Conditions and the Client Agreement immediately by written notice if (a) the other party commits a non-remediable material breach of that Agreement; (b) the other party commits a material breach of these Terms & Conditions or the Client Agreement and fails to remedy such breach within the period of 30 days from receipt of notification from the other party requiring such breach to be remedied, (c) the other party persistently breaches these Terms & Conditions, (d) the other party is deemed to be unable to pay its debts as and when they fall due or (e) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or any analogous insolvency-related events in any jurisdiction.
13.5 Consequences of termination
(a) Following termination or expiration of the Agreement (or Client Agreement if the context requires): (i) You shall immediately pay to Us all outstanding Fees, (ii) save where stated otherwise in these Terms & Conditions, all rights and licenses granted under the Agreement, shall cease; (iii) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; (iv) on request, the parties shall return or destroy (and certify destruction of) all copies of any Confidential Information of the other party disclosed to it.
(b) If the Client Agreement or these Terms & Conditions is terminated by You in accordance with clause 13.4 (Termination for Breach), We will refund You any prepaid fees covering the remainder of the term of the subscription after the effective date of termination, as well as any remaining Learning Credits balance. If the Client Agreement or your access to the Services is terminated by Us in accordance with clause 13.4, You will pay any unpaid fees covering the remainder of the term of the subscription. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
The following clauses will survive termination or expiration of these Terms & Conditions for any reason: 5 (Fees and Payment), 6 (Proprietary Rights), 7 (Confidentiality), 8 (Data Protection), 10 (Disclaimer), 11 (Indemnification), 12 (Limitation of Liability), 13 (Term and Termination), 17 (Force Majeure), 18 (Waiver), 19 (Severability), 22 (Third Party Rights) and 23 (Governing Law and Jurisdiction).
14. Virtual Cards
14.1 We may, in our sole discretion as part of the Services, offer You functionality which allows You to:
(a) apply to a Virtual Card Issuer to issue You with Virtual Cards for You and/or any person that you designate as an authorized user of your Virtual Card (Authorized User) to purchase the purpose of purchasing the Learning Products;
(b) access and manage Your Virtual Cards;
(c) access reporting relating to Your Virtual Card Usage (in the manner and form determined by Us from time to time);
(d) cancel Virtual Cards or close Your account with the Virtual Card Issuer,
(together, the Virtual Card Functionality).
14.2 You agree that if You use the Virtual Card Functionality, You:
(a) Are subject to and shall comply with any separate agreement with the Virtual Card Issuer in relation to the issuing of Virtual Cards (Virtual Card Agreement);
(b) shall ensure that each Virtual Card issued to You is used in accordance with the Virtual Card Agreement, including any use of the Virtual Card by the Authorized User;
(c) authorize Us to access Your Virtual Card account information held with the Virtual Card Issuer for the purposes of:
(i) enabling You to communicate with the Virtual Card Issuer in relation to Your Virtual Cards; and
(ii) providing You with reporting relating to Your Virtual Card usage.
(d) During the term of any Client Agreement and on a continuing basis, You warrant that You have agreed in writing with the Virtual Card Issuer that We may act as an authorized administrator of your Virtual Card account in order to access Your Virtual Card account for any purpose set out in Clause 13 of these Terms & Conditions;
(e) will not be able to use the Virtual Card Functionality if:
(i) Our authorization to access Your Virtual Card account is withdrawn for any reason; or
(ii) the Virtual Card Agreement is suspended or terminated for any reason; and
(f) will be liable will meet all liabilities arising for Your acts and omissions, and the acts of your Authorized Users, in connection with your Virtual Cards, including any breach by You or your Authorized Users under the Virtual Card Agreement or other agreement with the Virtual Card Issuer (including chargeback and fraud related liabilities and any negative balances) and will indemnify Us against all damages, losses and expenses arising or related to Your or Your Users' use of Virtual Cards. You must pay us any such amounts on demand. We may at any time deduct any such amounts from Your Learning Credit balance or from any liability we have to You under these Terms & Conditions or otherwise;
(g) will provide and maintain all required reserve or similar funding requirements, to us or the Virtual Card Issuer, as required by these Terms and Conditions or the Virtual Card Agreement;
(h) shall ensure that its Virtual Card contains adequate funds to purchase Learning Products;
(i) warrant that Virtual Cards are only used to purchase Learning Products in connection with the business purpose and not for any personal, family or household use; and
(j) will not use, or permit any Authorized User to use, a Virtual Card for any unlawful purpose or for any “restricted” purpose identified in the Virtual Card Agreement
14.3 If You no longer wish to use the Virtual Card Functionality, you may request in writing that We instruct the Virtual Card Issuer on your behalf to close Your Virtual Card account in accordance with the terms of Your Virtual Card Agreement. We can suspend or terminate Your Virtual Card account, immediately or upon such prior notice as we deem appropriate in our sole discretion: (a) if We cease offering the Virtual Card Functionality or our agreement with the Virtual Card Issuer ends; (b) if You are, or any Authorized User is, in breach of Your Virtual Card Agreement or any other agreement with the Virtual Card Issuer, or these Terms and Conditions (including but not limited to this Section 13) and You have not cured such breach in such time and in such manner as We or the Virtual Card Issuer require, or (c) if the Virtual Card Issuer instructs us to close your Virtual Card account or terminates your Virtual Card Agreement.
14.4 You agree that, except as provided for in this Clause 14 (Virtual Cards), We have no duty to accept any instruction to act on your behalf in relation to the Virtual Card Functionality and any arrangements outside this Clause 14 must be made between You and the Virtual Card Issuer directly.
14.5 We may charge a fee for the Virtual Card Functionality, as specified in the Client Agreement, or as notified by Us to You from time to time.
14.6 You shall be responsible for Your own sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any purchases made using Virtual Cards.
14.7 If You use a Virtual Card to purchase a Learning Product that is paid for with a recurring payment, then You are responsible for ensuring that all recurring payment charges due to the supplier of the Learning Product are paid by You.
14.8 You acknowledge and agree that your eligibility for, and continued use of, a Virtual Card is subject to the approval of the Virtual Card Issuer, and your compliance with the Virtual Card Agreement and these Terms & Conditions.
15. Client Credit (Learning Credits on account)
15.1 Where Learnerbly charges Learning Credits fees to the Client, such fees are pre-purchased credit which can be redeemed against training services or other related products or services via the Learnerbly Platform (Learning Credit).
15.2 Once the Client submits a purchase request (which has been approved if necessary), Learnerbly shall arrange for a supplier to provide the relevant products or services to the Client. Learnerbly will use reasonable efforts to fulfil transactions as soon as possible after receiving approval, or liaise with the Client if additional information is required in order to complete the fulfilment. The Client may agree auto-approval thresholds which will allow Learnerbly to arrange for the purchase of resources on the Client's behalf as soon as they are requested by the User.
15.3 Once arranged by Learnerbly at the request of the Client, products and services are cancellable, if at all, strictly in accordance with the relevant Third Party Agreement. If any cancellation fees are incurred these will be paid by the Client, as a deduction from your Learning Credits balance.
15.4 If a User is dissatisfied with products or services fulfilled at the request of the Client by Learnerbly, Users may request a return and refund of any content purchased via Learnerbly’s marketplace up to 14 days after the request has been fulfilled. To be eligible for a refund, the learning product must be returned in a resellable condition, which may exclude any downloads or online content already accessed. Any eligible refund will be credited back to the Client’s Learning Credits balance as well as the budget of the User, if applicable.
15.5 The above Clause 15.4 applies only to content purchased and fulfilled via Learnerbly’s marketplace and excludes any item purchased with a Virtual Card as detailed in Clause 14.
15.6 You shall be responsible for Your own sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any purchases made using Learning Credits.
15.7 Should a Client's Learning Credits balance be insufficient to arrange the supply of learning resources, Learnerbly shall suspend the fulfilment of Client requests until the Credits on account are replenished by the Client. Learnerbly may provide written updates to Users explaining the delay in delivery of resources in these instances.
15.8 Learnerbly may offer the Client's users the ability to spend Learning Budgets in GBP, EUR, or USD. Learnerbly shall assign the appropriate budget currency based on the User's location. Learning Credits in alternative currencies may be invoiced in the budget currency directly or may be invoiced in USD and converted by Learnerbly upon receipt. Should there be any currency conversions required the funds will be converted at the best available rate, minus any conversion fees.
16. Content Region
16.1 Users added to the Learnerbly Platform shall be assigned a Content Region, according to their geographical location. Such regions may determine the learning content they are able to view and request via the platform, and is designed to improve and localize the user experience as well as aid the delivery of content.
16.2 The designation of the content region shall be assigned by Learnerbly at its sole discretion. Should no local Content Region be currently available for the Users' location, such Users will be placed in Learnerbly's Global content region on which some types of resources may not be available.
17. Force Majeure
Learnerbly shall not be liable for any delay or non-performance of its obligations resulting from acts, events omissions or accidents beyond its reasonable control, including without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, epidemic or pandemic, war, riot, civil compliance with any law or government order, rule, regulation or direction, fire, flood or storm.
No forbearance or delay by Learnerbly in enforcing its rights shall prejudice or restrict Learnerbly’s rights under these Terms & Conditions; and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
If any provision of these Terms & Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms & Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms & Conditions so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
The Client shall not assign or sub-contract or purport to assign or sub-contract any of its rights or obligations hereunder without the prior written consent of Learnerbly.
21. No Partnership or Agency
Except as agreed otherwise and explicitly in writing, nothing in these Terms & Conditions is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22. No Third Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and does not confer any rights or remedies upon any Person other than the parties to these Terms & Conditions and their respective successors and permitted assigns.
23. Governing law and jurisdiction
23.1 Governing Law
23.2 These Terms & Conditions shall be governed by and construed in accordance with the laws of the State of Delaware.
(a) Any dispute, controversy or claim arising out of or relating to these Terms & Conditions or the breach, termination or validity thereof (Dispute), shall be submitted to mandatory, final and binding arbitration before the State of Delaware, in accordance with the rules of the State of Delaware in effect at the time of filing of the demand for arbitration, with the arbitration administered by the State of Delaware, subject to the provisions of this clause 23.3, pursuant to the United States Federal Arbitration Act, 9 U.S.C., Section 1, et seq.
(b) There shall be one arbitrator, who will be agreed to by the Parties within 30 days of receipt by respondent of a copy of the demand for arbitration. If the Parties cannot agree on an arbitrator within the time period specified then, at the request of either Party, such arbitrator shall be appointed by the State of Delaware.
(c) The language of the arbitration shall be English. The place of arbitration shall be the State of Delaware, United States.
(d) The arbitration shall be the sole and exclusive forum for resolution of the Dispute, and the award shall be in writing, state the reasons for the award and be final and binding. Judgment thereon may be entered in any court of competent jurisdiction.
(e) The parties agree to arbitrate solely on an individual basis, and that this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration agreement will remain in force.
(f) By agreeing to arbitration, the Parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the Tribunal shall have full authority to grant provisional remedies and to direct the Parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any Party to respect the arbitral tribunal's orders to that effect. In any such judicial action: (i) each of the Parties irrevocably and unconditionally consents to the jurisdiction and venue of the federal or state courts located in Delaware, United States (the DE Court) for the purpose of any pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings, and to the non-exclusive jurisdiction of such courts for the enforcement of any judgment on any award; (ii) each of the Parties irrevocably waives, to the fullest extent they may effectively do so, any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens or any right of objection to jurisdiction on account of its place of incorporation or domicile, which it may now or hereafter have to the bringing of any such action or proceeding in any DE Courts; and (iii) each of the Parties irrevocably consents to service of process by first-class certified mail, return receipt requested, postage prepaid.
(g) Each Party shall bear the fees and expenses of its arbitrators and shall jointly and equally share with the other the fees and expenses of the Chair and of the arbitration, including attorneys' fees and experts' fees. The prevailing Party, as determined by the Tribunal, shall be entitled to recover its reasonable costs and, attorneys' fees and costs from the non-prevailing Party.
(h) Except as may be required by law, the Parties shall preserve the confidentiality of all aspects of the arbitration, and shall not disclose to a third party (other than disclosure to affiliate(s) of a Party on a need-to-know basis and such affiliate(s) are informed of the confidential nature of such information and are instructed to keep such information confidential), all information made known and documents produced in the arbitration not otherwise in the public domain, all evidence and materials created for the purpose of the arbitration, and all awards arising from the arbitration, except, and to the extent that disclosure is required by law or regulation, is required to protect or pursue a legal right or is required to enforce or challenge an award in legal proceedings before a court or other competent judicial authority.
23.4 Waiver of Jury Trial.
Each of the parties hereto hereby irrevocably waives any and all right to trial by jury in any judicial proceeding permitted under these Terms & Conditions.
All notices must be in English, in writing and addressed to Us at our business office address stated in our Terms and Conditions with a copy sent to our email address at firstname.lastname@example.org. Notices to You will be sent to the email or postal address in the Client Agreement. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable). Postal notices must be sent by first class mail to the other party’s postal address as set out in the Client Agreement. Postal notices shall be deemed received on the second Business Day after the day of despatch.