Terms and Conditions
Learning Nexus Limited (registered number 10056772) (“Learning Nexus”)
Pioneer House, Pioneer Business Park, North Road, Ellesmere Port, CH65 1AD
General Terms
1. INTRODUCTION
- These General Terms are the only terms and conditions on which Learning Nexus contracts with customers for the provision of any Learning Nexus services. When signing a Learning Nexus’ order form (the “Order Form”), the Customer (as specified in the Order Form) indicates acceptance of these General Terms, which then forms a “Contract”. Multiple Order Forms can be signed by each Customer which will each create a Contract.
- The Order Forms shall contain details of (i) the Customer, (ii) the Services, (iii) the Term and (iv) the Fees for each Contract.
2. DEFINITIONS
- In these Terms:
“Agreement Personal Data”: Personal Data provided to and processed by Learning Nexus in the delivery of the Services other than direct contact information of the Customer used for administration purposes.
“Bespoke Content”: means bespoke digital training or media content to be delivered to the Customer by Learning Nexus (if any) in accordance with the format set out in an Order Form (which excludes any Third Party Content and any Third Party Technology).
“Business Day”: means any day which is not a Saturday, Sunday or bank or public holiday in England.
“Control”: means a situation where there is beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company.
“Controller”: shall have the same meaning as that given to a controller in the Data Protection Legislation.
“Customer Content”: means (i) any User Data and related user records and (ii) online courses or content created by the Customer.
“Data Protection Legislation”: means all legislation and regulatory requirements in force from time to time applicable to the parties and relating to the use of personal data and the privacy of electronic communications, including, without limitation:
- the Data Protection Act 2018; and
- the UK General Data Protection Regulation (UK GDPR); and
- any successor legislation to either the DPA or the UK GDPR and any other applicable laws and regulations relating to the processing of personal data and privacy. Union has legal effect in the UK).
“Data Security Incident”: means the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Agreement Personal Data transmitted, stored or otherwise Processed by Learning Nexus (or on its behalf).
“Fees”: means the fees for the Services set out in the Order Form.
“Group”: means, in relation to a party, any holding company of that party, any subsidiary of that party and any other subsidiary of such holding company and “Group Company” shall be construed accordingly.
“Intellectual Property Rights“: means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, database rights, rights in undisclosed or confidential information such as know-how and other trade secret rights, and all other intellectual property rights or similar proprietary rights of whatever nature (whether registered or not and including applications to register or rights to apply for registration), derivatives, and forms of protection of a similar nature which may now or in the future subsist anywhere in the world.
“Learning Nexus Content”: means any content used in any standard or generic online courses provided to the Customer (but excluding any Third-Party Content).
“Learning Nexus Technology”: means any technology that is owned by Learning Nexus or licensed to it and used in the provision of the Services.
“Personal Data”: shall have the same meaning as that given in the Data Protection Legislation.
“Processing”: (together with Process or Processed) shall have the same meaning as that given in the Data Protection Legislation.
“Processor”: shall have the same meaning as that given to a processor in the Data Protection Legislation.
“Services“: means the services specified in an Order Form.
“Service Level Agreement”: means Learning Nexus’ service level agreement from time to time in force available at: https://www.learningnexus.co.uk/service-level-agreement/
“Term”: means the duration of the Contract specified in an Order Form.
“Third Party Content”: means content to be provided by Learning Nexus to the Customer under the Contract where such content is not owned by Learning Nexus but instead is licensed by it for such purposes from third parties.
“User(s)“: means the employees or prospective employees, representatives, consultants, contractors, agents, resellers, partners, or customers of the Customer (and those of any Group Company) who are authorised by the Customer to use the Services and have been supplied usernames and passwords by the Customer or by Learning Nexus.
“User Data”: means any data which is held by Learning Nexus as part of the Service provided by and/or about User(s) which may include data relating to human resources records, performance, talent or training records, courses or course information and any Personal Data; and
“Virus”: means any software code or file which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
3. PROVISION OF THE SERVICES
3.1. In consideration of the Customer’s payment of the Fees, Learning Nexus agrees to provide the Services in accordance with these General Terms and the Service Level Agreement.
3.2. The Services shall be accessed by the number of Users specified in the Order Form only. If additional Users access the Services, Learning Nexus reserves the right to charge the Customer in accordance with its then current rates.
3.3. The Customer shall only use the Services as a platform to deliver to Users. The Customer shall not use the Services to provide any other service to any third party, including Users.
3.4. If Learning Nexus provides the Services utilising technology owned by Totara, the Customer will be required to accept the Product License and Subscription Agreement available at https://www.totara.com/license.
3.5. Learning Nexus will provide the Customer with its customer support services as set out in the Service Level Agreement. The Customer may purchase enhanced support services separately upon request to Learning Nexus in accordance with Clause 19.
3.6. Learning Nexus reserves the right to suspend access to the Services to any or all User(s) if it becomes aware of or has reasonable suspicion of any unauthorised use or any misuse or abuse of the Services by the Customer or any User(s).
3.7. Learning Nexus shall use reasonable endeavours to prevent any Virus from entering or accessing any IT system used by the Customer in relation to the Services.
3.8. In respect of the Services, Learning Nexus retains the right at any time to require the Customer to conduct a fair usage review if usage is so excessive that the Customer’s service levels or those of Learning Nexus’ other customers are being detrimentally affected. Learning Nexus understands that customers will occasionally have very high volumes of traffic outside of normal usage patterns. In those cases where this traffic can be predicted Learning Nexus requests to be informed with as much notice as is reasonably possible to ensure that service delivery remains consistently high.
4. THE CUSTOMER’S RESPONSIBILITIES
4.1. The Customer is responsible for all User activity occurring, shall ensure each User complies with the terms of the Contract and shall be liable for any failures, acts or omissions of any User.
4.2. The Customer shall prevent any unlawful and/or unauthorised use, including any use by persons who are not Users. The Customer shall abide by (and shall procure that all Users abide by) all relevant laws and regulations that are applicable to the Customer in using the Services, including those related to data privacy and the transmission of Personal Data.
4.3. The Customer shall ensure that each username and password combination (“Login”) is only used by one person. The Customer may create separate Logins for as many Users as its account allows. The Customer is responsible for maintaining the security of Logins to its account.
4.4. The Customer shall:
4.4.1 notify Learning Nexus promptly upon becoming aware of any unauthorised use of any password or account or any other known or suspected breach of security;
4.4.2 report to Learning Nexus promptly upon becoming aware of any infringement of Leaning Nexus’ Intellectual Property Rights and use reasonable efforts to stop immediately any such infringement and/or any copying or distribution of Learning Nexus Content or any Third Party Content that is known or suspected by the Customer or its Users; and
4.4.3 not permit any User to log in as, or impersonate another Learning Nexus user, or provide false identity information to gain access to or use the Service.
4.5. The Customer shall not (and shall procure that the Users shall not) access, store, distribute or transmit any material during the course of its use of the Service that:
4.5.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
4.5.2 facilitates illegal activity;
4.5.3 depicts sexually explicit images;
4.5.4 promotes unlawful violence;
4.5.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
4.5.6 causes damage or injury to any person or property.
4.6. The Customer shall use all reasonable endeavours, including by the use of up to date commercially available anti-malware software, to prevent any Virus from entering or accessing any IT system used by Learning Nexus in relation to the Service.
4.7. Learning Nexus reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this Clause 4.
4.8. The Customer shall not (and shall procure that the Users shall not):
4.8.1 use or otherwise access all or any part of the Services in order to build a product or service which competes with the Services; or
4.8.2 use or otherwise access all or any part of the Services to provide services to third parties (other than to provide the relevant functions to Users); or
4.8.3 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Users: or
4.8.4 attempt to obtain, or assist third parties in obtaining, access to all or any part of the Services, other than as provided by the Contract.
4.9. If the Customer becomes aware of any use of the Service which is or might be in breach of any of the provisions of this Clause 4, or is otherwise an inappropriate use or action in respect of the Services by any User (whether such User(s) fall into Clause 4.1), the Customer shall promptly notify Learning Nexus and assist Learning Nexus, as Learning Nexus may reasonably require, to deal with such breach or inappropriate use or action. The obligations in this Clause 4 do not prejudice any other right or remedy that Learning Nexus may have in respect thereof.
5. INTELLECTUAL PROPERTY OWNERSHIP
5.1. Subject to the Customer’s payment of the Fees, Learning Nexus hereby grants to the Customer for the Term in the United Kingdom a non-exclusive, non-transferable licence to allow the Users to access the Services and to use the Services (and, where applicable, the Third Party Content and Third Party Technology) solely for the Customer’s internal business purposes.
5.2. Where the Services incorporate Third Party Content and/or Third Party Technology or other computer code which is commonly embedded, used or otherwise incorporated into applications and which is publicly available under standard licence terms or public licences then the Customer shall not unreasonably withhold or delay its consent to such standard licence terms.
5.3. The Customer acknowledges and agrees that Learning Nexus and/or its licensors own all Intellectual Property Rights in the Learning Nexus Content, Technology, Services, Third Party Content and the Third Party Technology. Except as expressly stated herein, the Contract does not grant the Customer any Intellectual Property Rights or any other rights or licences in respect of the Learning Nexus Content, Technology, Services, Third Paty Content, Third Party Technology or any related documentation.
5.4. Where the Order Form states that Bespoke Content is being created for the Customer, the Intellectual Property Rights in the any Bespoke Content shall vest in the Customer upon creation provided that the Customer has paid all outstanding Fees relating to the Services.
5.5. Except as expressly provided in this Contract, no right, title or interest of any manner or sort (including in respect of Intellectual Property Rights) is granted to the Customer.
5.6. Learning Nexus agrees that the Customer may brand the Services, provided that the Customer shall indemnify Learning Nexus against any claim that the Customer’s branding of the Service infringes in any respect the Intellectual Property Rights of any third party.
5.7. The Customer shall own all rights, title, and interest in and to all the Customer Content (or, in respect of courses provided to it by third parties, be appropriately licensed to hold and use such content and be entitled to provide it to Learning Nexus).
5.8. The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Content.
5.9. Learning Nexus will not bear any responsibility for the quality or integrity of data provided by the Customer. It remains the Customer’s responsibility to ensure that data provided to Learning Nexus has been correctly validated. Learning Nexus reserves the right to charge the Customer for work undertaken to diagnose data quality issues in any processable data provided by the Customer.
5.10. In respect of Third Party Content, the Customer must include proper attribution or an appropriate copyright or other notice, as may be required by Learning Nexus from time to time.
6. FEES AND PAYMENT
6.1. Learning Nexus shall invoice the Customer annually in advance for the Fees (or otherwise in accordance with the Order Form).
6.2. The Customer shall reimburse Learning Nexus for all actual, reasonable expenses including, but not limited to, travel, hotel and meals incurred by Learning Nexus in the performance of the Services.
6.3. All invoices provided by Learning Nexus shall be paid in full, without set off or deductions, by the Customer within 30 days of the date of the relevant invoice, unless an alternative payment period is set out in the Order Form.
6.4. All Fees paid in advance are non-refundable save in the event of the Customer lawfully terminating the Contract pursuant to Clause 8.2, in which case Learning Nexus will refund the Customer, on a pro rata basis, any pre-paid Fees for the period starting on the date on which the breach occurred and ending on the date on which this Contract would have expired.
6.5. All Fees shall be paid in the currency specified in the Order Form. All amounts payable under the Contract are exclusive of value-added tax.
6.6. If the Customer wishes to dispute any invoice, it must notify Learning Nexus within 10 days of the date of the relevant invoice. If no notification is received, such invoice shall be deemed undisputed.
7. NON-PAYMENT AND SUSPENSION
7.1. Without prejudice to any other available remedy, Learning Nexus reserves the right to suspend the provision of the Services and the Customer’s access to the Services if any sums are overdue to be paid by it and the Customer has not paid any undisputed sums within 30 days of receipt of a notice from Learning Nexus notifying the Customer that the payment is late and requesting payment.
7.2. Late payments shall automatically accrue interest from the due date until payment in full is received by Learning Nexus at the rate for the time being in force under the Late Payment of Commercial Debts (Interest) Act 1998. No fees or other charges will be refunded or waived in respect of any period of suspension. Where interest accrues on any sum due in accordance with this Clause 7, any payment later received will be applied first in payment of the interest due, and only secondly in reduction of the indebtedness.
7.3. Learning Nexus reserves the right to impose a reasonable reconnection fee (currently £925 plus VAT) in the event the Customer is suspended validly in accordance with this Contract and thereafter requests access to the Service.
8. TERM AND TERMINATION
8.1. Each Contract shall remain in force for its Term unless terminated in accordance with these General Terms or the terms set out in the Order Form.
8.2. Either party (“the notifying party”) shall at any time during the Term be entitled to terminate a Contract immediately by written notice to the other (“the notice recipient”) if the notice recipient:
8.2.1 fails to pay an undisputed sum to the notifying party within 30 days of having received a notice from the notifying party giving details of the late payment and requesting payment. If the sum is owed to Learning Nexus, a notice issued by Learning Nexus pursuant to Clause 7 above shall serve as an appropriate notice by it;
8.2.2 commits any material breach of the Contract that is not capable of remedy (including, in the case of the Customer and without limitation, any breach of confidentiality or any infringement of Learning Nexus’ Intellectual Property Rights);
8.2.3 commits any material breach of the Contract that is capable of remedy and fails to remedy it within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied: or
8.2.4 is involved in any legal proceedings concerning its solvency, or ceases trading, or enters into liquidation, whether compulsory or voluntary (other than for the purposes of an amalgamation or reconstruction), or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or any analogous event occurs in any relevant jurisdiction.
8.3. Learning Nexus may at any time during the Term terminate any and all Contracts by giving to the Customer not less than 60 days’ notice in writing if, in Learning Nexus’ reasonable opinion, the Customer has been acquired by a competitor of Learning Nexus, or such a competitor has taken Control of the Customer, or the Customer has become part of a group of companies comprising a competitor of Learning Nexus.
8.4. Where Learning Nexus has grounds to terminate a Contract pursuant to Clause 8.2, it shall be entitled to terminate all and any Contracts in place with the Customer at the same time.
8.5. On termination of a Contract:
8.5.1 all Services being provided shall terminate automatically; and
8.5.2 if termination is for any reason other than termination by the Customer under Clause 8.2 above, all Fees and other sums that are payable under the Contract shall become due for payment immediately.
8.6. Learning Nexus shall either destroy or return to the Customer, in the format reasonably requested by the Customer (provided that the Customer shall pay in advance a reasonable charge for conversion of any data to the format requested), any and all property and data (and all copies) including all User Data which is in Learning Nexus’ possession or under its control and which belongs to the Customer and on the request of the Customer shall certify to the Customer in writing that it has done so.
8.7. Without affecting any other right or remedy available to it, Learning Nexus may terminate the provision of any Third Party Content by giving not less than 60 days’ written notice to the Customer. If it so terminates, Learning Nexus shall refund to the Customer a pro rata portion of Fees for the relevant Third Party Content which have been paid in advance by the Customer in respect of the period after termination.
8.8. Any termination of the Contract will not affect any accrued claims, rights or liabilities of either party nor will it affect the coming into force or continuation in force of any other provisions of the Contract, which are expressly or by implication intended to come into force or continue in force on or after termination, including Clause 5 (Intellectual Property Ownership).
9. CONFIDENTIALITY
9.1. During the Term, each party may have access to confidential information of the other party. “Confidential Information”:
9.1.1 of the Customer shall include but not be limited to employee data of the Customer (including the User Data);
9.1.2 of Learning Nexus shall include but not be limited to confidential aspects of the Service and the Learning Nexus Technology; and
9.1.3 of each party shall include all other information relating to its business, customers, contracts, financial information, research and development information, formulae, methods, know-how, processes, designs, performance tests, product evaluations, computer software and any other information identified as confidential or information that the receiving party knew or reasonably should have known was confidential.
9.2. Confidential Information shall be used solely for each party’s performance under the Contract and the exercise of its rights under the Contract and shall not be disclosed to any third party. Each party shall take reasonable precautions, at least as great as the precautions it takes to protect its own confidential information, to maintain the Confidential Information of the other party in strict confidence.
9.3. The database files, database structure, column names, table names, datatypes, field lengths, database views or residual code contained within any copy of the Customer Content that Learning Nexus delivers to the Customer are part of the Learning Nexus Technology and are expressly designated by Learning Nexus as confidential aspects of the Service, and therefore constitute Confidential Information of Learning Nexus under this Contract. Notwithstanding any other provision of this Contract, it is expressly agreed by the Customer that the Customer shall only provide information that would or might include any elements of such information, including Customer Content, to a third party in a raw data form to ensure that no Confidential Information of Learning Nexus is disclosed.
9.4. Confidential Information shall not include any information that the receiving party can establish:
9.4.1 is or subsequently becomes publicly available through no act or omission of the receiving party.
9.4.2 was in the receiving party’s lawful possession (without restriction of confidentiality) prior to disclosure of such information.
9.4.3 is subsequently disclosed to the receiving party by a third party who is not in breach of an obligation of confidentiality; or
9.4.4 is independently developed by the receiving party without the use or benefit of any part of the Confidential Information.
9.5. Confidential Information may be disclosed pursuant to any applicable laws, rules, regulatory authority, requirements of any investment exchange, court order, a valid subpoena, or other legal process, provided in each case that, where it is not prohibited from doing so, the receiving party promptly notifies the disclosing party in writing of such intended disclosure and provides the disclosing party an opportunity to seek an appropriate protective order prior to disclosing such Confidential Information.
9.6. The disclosing party may be irreparably damaged if the obligations of confidence under this Clause 9 are breached and such party may not have an adequate remedy in damages in the event of a breach by the other party of such obligations. The parties agree, therefore, that such party may be entitled, in addition to other available remedies, to apply for an injunction restraining any actual, threatened or further breaches of the other party’s obligations of confidence or any other appropriate equitable order or decree.
10.DATA PROTECTION
10.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
10.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Learning Nexus is the Processor of the Agreement Personal Data.
10.3. Without prejudice to the generality of Clause 10.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Agreement Personal Data to Learning Nexus and/or lawful collection of the Agreement Personal Data by Learning Nexus on behalf of the Customer for the duration and purposes of each Contract.
10.4. Without prejudice to the generality of Clause 10.1, Learning Nexus shall, in relation to the Agreement Personal Data:
10.4.1 process that Agreement Personal Data only on the documented written instructions of the Customer unless Learning Nexus is required by applicable law to otherwise process that Agreement Personal Data. Where Learning Nexus is relying on applicable as the basis for processing Agreement Personal Data, Learning Nexus shall promptly notify the Customer of this before performing the processing required by such law unless such prohibits Learning Nexus from so notifying the Customer;
10.4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Agreement Personal Data and against accidental loss or destruction of, or damage to, Agreement Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
10.4.3 ensure that all personnel who have access to and/or process Agreement Personal Data are obliged to keep the Agreement Personal Data confidential; and
10.4.4 not transfer any Personal Data outside of the UK or EEA unless the following conditions are fulfilled:
a) the Customer or Learning Nexus has provided appropriate safeguards in relation to the transfer;
b) the data subject has enforceable rights and effective legal remedies;
c) Learning Nexus complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
d) Learning Nexus complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
10.4.5 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
10.4.6 notify the Customer without undue delay on becoming aware of a Data Security Incident;
10.4.7 at the written direction of the Customer, delete or return Agreement Personal Data and copies thereof to the Customer on termination of the relevant Contact unless required by applicable law to store the Agreement Personal Data; and
10.4.8 maintain complete and accurate records and information to demonstrate its compliance with this Clause 10 and allow for audits by the Customer or the Customer’s designated auditor.
10.5. The Customer consents to Learning Nexus appointing third-party processors of Agreement Personal Data under this agreement. Learning Nexus confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are compliant with Data Protection Legislation. As between the Customer and Learning Nexus, Learning Nexus shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 10.
11. INTERNET DELAYS AND FORCE MAJEURE
11.1. The Services may be subject to limitations and/or delays, inherent in the use of the internet and electronic communications. Except to the extent that Learning Nexus is in breach of obligations under the Contract, Learning Nexus is not responsible to the Customer or any User for any delays, delivery failures, resulting from internet connectivity problems.
11.2. Neither party shall be liable for any delay or default in performing any of its obligations (not being an obligation to pay money to the other party) if the delay or default results from events or circumstances outside its reasonable control, including interruption or failure of utility services (including but not limited to electricity, internet or telephone services), failure of any transportation service, fuel shortage, any industrial dispute, fire, flood, earthquake, severe weather conditions, war or other hostilities, acts of terrorism, actions of governments or governmental agencies, riots or other civil commotions (“Event of Force Majeure”). The party affected by the Event of Force Majeure shall use reasonable endeavours to remove or overcome the Event of Force Majeure as soon as practicable.
12. WARRANTIES
12.1. Each party warrants that it has the legal power and authority to enter into the Contract.
12.2. Learning Nexus warrants that:
12.2.1 it has the right to license the Services to the Customer; and
12.2.2 the Services shall be performed with reasonable skill and care and in a professional manner in accordance with good industry practice.
12.3. No warranty is made regarding the results the Customer can achieve from using the Services nor that the Services will operate uninterrupted or error free.
12.4. Except as set out expressly in these General Terms, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.
13. INDEMNITIES
13.1. Learning Nexus will indemnify the Customer against any and all liability incurred by the Customer as a result of any third-party claim that the Services used by the Customer in accordance with the Contract, infringes any third-party Intellectual Property Rights.
13.2. Learning Nexus’ obligations under any indemnity under this Contract are subject to the following conditions:
13.2.1 the Customer must notify Learning Nexus in writing promptly after it becomes aware of a claim; and
13.2.2 the Customer must grant Learning Nexus the sole control of the settlement, compromise, negotiation, and defence of any such claim and any related legal action; and
13.2.3 the Customer must promptly provide Learning Nexus with all information related to the claim and any related legal action that is reasonably requested by Learning Nexus.
13.3. If any claim is made, Learning Nexus may at its option either:
13.3.1 obtain the right for Customer to continue using the Services; or
13.3.2 modify the Services so they are no longer infringing; or
13.3.3 terminate the Contract.
If Learning Nexus terminates the Contract, Learning Nexus shall refund on a pro-rata basis any Fees for the Service that have been paid in advance.
13.4. Learning Nexus shall not be liable for any settlement made by the Customer without Learning Nexus’ advance written approval or for any award from any legal action in which Learning Nexus was not granted sole control of the defence in accordance with this Clause 13.
13.5. The parties agree to co-operate in good faith in the defence of any legal action or suit that causes the Customer to invoke an indemnity under this Contract.
13.6. This Clause 13 states Learning Nexus’ entire liability and the Customer’s exclusive remedy for a claim of infringement of Intellectual Property Rights of any kind.
13.7. The Customer shall indemnify Learning Nexus against any and all liability incurred by Learning Nexus as a result of any claim that any User Data or any Customer Content or material that the Customer or any User uploads to or uses in relation to the Services, or any unauthorised or unlawful use that the Customer or any User makes of the Services, infringes any proprietary right of any third party or is offensive or unlawful in any respect in any jurisdiction in which the Services may be used by the Customer or by any User.
14. LIMITATION OF LIABILITY
14.1. Nothing in a Contract shall limit either party’s liability for death or personal injury caused by a party’s negligence or liability for fraud.
14.2. To the extent permitted by English law, in no event shall Learning Nexus be liable for any:
14.2.1 loss of revenue.
14.2.2 loss of actual or anticipated profits.
14.2.3 loss of contracts.
14.2.4 loss of anticipated savings.
14.2.5 loss of business.
14.2.6 loss of opportunity.
14.2.7 loss of goodwill.
14.2.8 loss of reputation; or
14.2.9 indirect or consequential loss,
in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or caused by breach of contract, tort (including negligence and negligent misstatement), breach of statutory duty or otherwise.
14.3. To the extent permitted by English law and notwithstanding the form, whether contract, tort (including negligence and negligent misstatement), statutory duty, misrepresentation or otherwise in which any legal or equitable action may be brought against Learning Nexus, Learning Nexus shall not be liable under the Contract (including under an indemnity) for damages or any other monetary remedy which exceeds:
14.3.1 in respect of any claim relating in any manner to Third Party Content, the Fees actually paid by the Customer for that Third Party Content; and
14.3.2 in respect of all other claims, the greater of £50,000 and 150% of the aggregate total Fees paid or payable by the Customer in respect of the Services to which the claim(s) relate during the previous twelve (12) month period of the Contract from when the cause of action arises.
14.4. Any material downloaded or otherwise obtained by the Customer or any User through the use of the Services is at Customer’s own discretion and risk, and Learning Nexus shall have no responsibility for any damage to Customer’s computer system or loss of data or any claim from a User or a third party that results directly or indirectly from the download, use or possession of any such material.
14.5. The parties agree that each of them shall be obliged to mitigate any loss which it may suffer or incur as a result of any matter that may give rise to a claim under this Contract, including any indemnity.
15. ASSIGNMENT AND SUBCONTRACTING
The Contract is personal to the parties, neither of whom may assign, novate, transfer or subcontract any of its rights or obligations under the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld), provided that:
15.1 either party may assign its rights and obligations under the Contract to a purchaser of all or a substantial part of its business and undertaking without the consent of the other party;
15.2 Learning Nexus may subcontract or delegate any or all of its obligations under the Contract to any third party without the consent of the Customer; and
15.3 Learning Nexus may assign, novate or transfer any or all of its obligations under the Contract to any of company within its Group.
16. ANTI – BRIBERY
16.1. Learning Nexus shall:
16.1.1 comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements).
16.1.2 not ensgage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK.
16.1.3 have and shall maintain in place throughout the term of this Contract its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate.
16.1.4 promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by Learning Nexus in connection with the performance of this Contract.
17. ANTI-SLAVERY
17.1. In performing its obligations under the Contract, Learning Nexus shall:
17.1.1 comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including the Modern Slavery Act 2015.
17.1.2 not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4 of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK.
17.1.3 include in contracts with its direct subcontractors and suppliers provisions which are at least as onerous as those set out in this Clause17.
17.1.4 notify the Customer as soon as it becomes aware of any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Contract; and
17.1.5 maintain records to trace the supply chain of services provided to the Customer in connection with this Contract and permit the Customer and its third-party representatives reasonably to inspect Learning Nexus’ records, and to meet Learning Nexus’ personnel to audit its compliance with its obligations under this Clause17.
17.2. Learning Nexus represents and warrants that at the date of this Contract it has not been convicted of any offence involving slavery and human trafficking, nor has it been the subject of any investigation, inquiry or enforcement proceedings regarding any offence or alleged offence of or in connection with slavery and human trafficking.
17.3. Breach of this Clause 17 shall be deemed a material breach under Clause 8.2.
18. ANTI FACILITATION OF TAX EVASION
18.1. Learning Nexus shall:
18.1.1 not engage in any activity, practice or conduct which would constitute either:
(a) a UK tax evasion facilitation offence under section 45(5) of the Criminal Finances Act 2017; or
(b) a foreign tax evasion facilitation offence under section 46(6) of the Criminal Finances Act 2017.
18.1.2 have and shall maintain in place throughout the Contract such policies and procedures as are both reasonable to prevent the facilitation of tax evasion by another person (including without limitation Learning Nexus’ employees) and to ensure compliance with Clause 18.1.1;
18.1.3 notify the Customer in writing if it becomes aware of any breach of Clause 18.1.1 or has reason to believe that it or any person associated with it has received a request or demand from a third party to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017 in connection with the performance of this Contract;
18.1.4 within 6 months of the date of this Contract, and annually thereafter, on request from the Customer certify to it in writing (signed by an officer of Learning Nexus) compliance with this Clause 18 by Learning Nexus and all persons associated with it under Clause 18.2. Learning Nexus shall provide such supporting evidence of compliance as the Customer may reasonably request.
18.2. Learning Nexus shall ensure that any person associated with it who is performing Services in connection with this Contract does so only on the basis of a written contract which imposes on and secures from such person similar terms to those imposed on Learning Nexus in this Clause 18 (“Relevant Terms”). Learning Nexus shall be responsible for the observance and performance by such persons of the Relevant Terms and shall be directly liable to the Customer for any breach by such persons of any of the Relevant Terms.
18.3. Breach of this Clause 18 shall be deemed a material breach under Clause 8.2.
18.4. For the purposes of Clause 18, the meaning of reasonable prevention procedure shall be determined in accordance with any guidance issued under section 47 of the Criminal Finances Act 2017 and a person associated with Learning Nexus includes any subcontractor of Learning Nexus
19. CHANGE CONTROL
19.1. If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing in accordance with the template set out in the Appendix.
19.2. If either party requests a change to the scope or execution of the Services, Learning Nexus shall, within a reasonable time, provide a written estimate to the Customer of:
19.2.1 the likely time required to implement the change;
19.2.2 any variations to the Fees arising from the change; and
19.2.3 any other impact of the change on the terms of the Contract.
19.3. If Learning Nexus requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
19.4. If the Customer wishes Learning Nexus to proceed with the change, Learning Nexus has no obligation to do so unless and until the parties have agreed in writing the necessary variations to the Fees and any other relevant terms of the Contract to take account of the change.
20. MISCELLANEOUS
20.1. The parties are independent contractors and nothing in the Contract shall be deemed to make either party an agent, employee, partner or joint ventures of the other party. Neither party shall have the authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
20.2. Learning Nexus may use the Customer’s plain text name to list the organisation as a customer of Learning Nexus and may issue press releases announcing that the Customer is a customer of Learning Nexus.
20.3. Any notice given under the Contract shall be in writing and shall be delivered by hand (in which case delivery is effective immediately), by email (in which case delivery shall be deemed to have taken place on the next following Business Day), by Royal Mail special delivery (if posted and sent in the United Kingdom) or by airmail (if posted or sent outside the United Kingdom). In the case of Royal Mail special delivery, delivery shall be deemed to take place at the later of the time recorded by the delivery service as having left the notice at the party’s address or two (2) Business Days after posting. In the case of airmail, delivery shall be deemed to take place seven (7) days after posting. Notices shall be delivered or posted to the addresses of the parties given above or to any other address notified in substitution on or after the Effective Date.
20.4. This Contract (together with the Service Level Agreement) constitutes the entire agreement between the parties regarding the subject matter of the Contract and supersede all proposals and prior discussions and writings between the parties with respect to such subject matter. Each party confirms that it has not relied on any pre-contractual statement made by the other in deciding to enter into the Contract.
20.5. A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of the Contract.
20.6. If any provision or part provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract.
20.7. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.8. No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20.9. The 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 the laws of England and the parties submit irrevocably to the exclusive jurisdiction of the English courts.