In these terms ELEARN HERE LIMITED (“We”, “Us” or “Our”), the entire legal and beneficial owner of online courses agrees to licence the courses to your company (“You” or “Your”) for use by Your Learners on the terms and conditions set out below.
We are a company incorporated and registered in England and Wales with company number 12311981 whose registered office is at Kemp House. 152-160 City Road, London EC1V 2NX.
TERMS AND CONDITIONS
1.1 The following definitions and rules of interpretation apply:
- AFFILIATE: includes, in relation to either party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party or any business entity from time to time controlling, controlled by, or under common control with, either party.
- AGREED PURPOSE: to provide online training to Learners via the Courses.
- ACCESS PAGE: the web page on the Site via which Learners contracting with You can register to access a Course or Courses.
- CONTROL: a business entity shall be deemed to “control” another business entity if it owns, directly or indirectly, in excess of 50% of the outstanding voting securities or capital stock of such business entity, or any other comparable equity or ownership interest with respect to a business entity other than a corporation OR as defined in section 1124 of the Corporation Tax Act 2010.
- COURSES: online educational courses which are hosted on the Platform.
- FEE: the fee specified on the Site to purchase an enrolment key for each course purchased plus VAT.
INTELLECTUAL PROPERTY RIGHTS: patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
LEARNER: an individual to whom an enrolment key is provided to participate in a Course.
- PLATFORM: the software platform through which the Courses are accessed on the Site.
- THE SITE: the website which hosts the Platform through which the Courses can be accessed.
- SOFTWARE: all code relating to the functioning of the Site, the Platform and each Course.
1.2 HOLDING COMPANY AND SUBSIDIARY mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
1.3 Paragraph headings shall not affect the interpretation of this agreement.
1.4 Unless the context otherwise requires:
- (a) words in the singular shall include the plural and in the plural shall include the singular;
- (b) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
- (c) a reference to one gender shall include a reference to the other genders; and
- (d) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
2. PURCHASE OF LICENSES
2.1 We will provide You with access to a page on the Site through which You may purchase licenses and, on payment of the Fee for each licence, We will provide you with an enrolment key for each Learner to access a Course via the Platform.
2.2 Enrolment keys have no expiry but once a Learner has used an enrolment key to start a Course, the key becomes non-transferable and non-refundable.
3.1 In return for paying the Fee, you will have the right to:
- (a) provide Your Learners with access to the Course via the Site.
- (b) access the back-end of the Site providing You with personal registration data on each registered Learner and monitoring the progress of each registered Learner.
3.2 You agree that:
- (a) You may not use the Licence other than for the Agreed Purpose.
- (b) You have no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.
3.3 Other than making Courses available to Learners subject to these terms and conditions, You will not:
- (a) sub-license, assign or novate the benefit or burden of this Licence in whole or in part;
- (b) allow the Software to become the subject of any charge, lien or encumbrance; and
- (c) deal in any other manner with any or all of Your rights and obligations under this agreement.
4. YOUR OBLIGATIONS
4.1 You will comply with all relevant regulatory requirements.
4.2 You will maintain the highest levels of probity and professionalism in marketing, managing Learners on courses and in all things appertaining to the delivery of Courses offered under these terms.
“By registering for this online e-learning course, you agree that the course content, the software code underlying the course and the website and platform on which the course is hosted are owned by ELEARN HERE LIMITED (English company number 12311981) who have licensed your training provider to allow you to use it and you further agree that you will not share its use with any third person or copy any part of it ”.
4.4 You will advise us immediately if You become aware of any Learner breaching the provisions of the agreement set out in clause 4.3 above.
4.5 If You breach any regulatory requirements, We will notify You immediately and We may suspend Your access to the Site and/or the Product and prevent You from making Courses available to Learners until the non-compliance has been remedied.
4.6 Without prejudice to Our rights under clause 4.5, We may review Your processes at any time (with or without prior notice) and You shall give any auditor appointed by Us reasonable access to allow him / her to review relevant records, monitor examinations and to ensure compliance with relevant regulatory requirements.
5. OUR OBLIGATIONS
5.1 We will ensure that the latest version of the Courses is made available to You on the Site.
5.2 The welcome page of the each Course and all Certificates issued will include Your logo if requested.
5.3 Our only support obligation to You is to provide technical support to your Learners who require help accessing the Courses or registering via our email support service at firstname.lastname@example.org.
6. LIMITS OF LIABILITY
6.1 Except as expressly stated in clause 6.2:
- (a) We shall not in any circumstances have any liability for any losses or damages which may be suffered by You (or any person claiming under or through You), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
- (i) special damage even if We were aware of the circumstances in which such special damage could arise;
- (ii) loss of profits;
- (iii) loss of anticipated savings;
- (iv) loss of business opportunity;
- (v) loss of goodwill;
- (vi) loss or corruption of data,
- (b) Our total liability, whether in contract, tort (including negligence) or otherwise and whether in connection with these terms or any collateral contract, shall in no circumstances exceed a sum equal to the Fee; and
- (c) You agree that, in contracting on these terms, either You did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in these terms or (if You did rely on any representations, whether written or oral, not expressly set out in these terms) that You shall have no remedy in respect of such representations and (in either case) We shall have no liability in any circumstances otherwise than in accordance with the express terms of these terms.
provided that this clause 6.1(a) shall not prevent claims for loss of or damage to Your tangible property that fall within the terms of clause 6.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 6.1(a);
6.2 The exclusions in clause 6.1 shall apply to the fullest extent permissible at law, but We do not exclude liability for:
- (a) death or personal injury caused by Our negligence, Our officers, employees, contractors or agents;
- (b) fraud or fraudulent misrepresentation;
- (c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
- (d) any other liability which may not be excluded by law.
6.3 All references to Us in this clause 6 shall, for the purposes of this clause and clause 12 only, be treated as including all of Our employees, subcontractors and our Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 12.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 You acknowledge that all Intellectual Property Rights in the Courses including course content (including any later versions of the Courses) and in the Software (“Protected IPR”) belong and shall belong to Us or the relevant third-party owners (as the case may be) and You shall have no rights in or to the Protected IPR other than the right to use it in accordance with these terms.
7.2 We undertake at Our own expense to defend You or, at Our option, settle any claim or action brought against You alleging that the possession or use of the Protected IPR (or any part thereof) in accordance with these terms infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against You as a result of or in connection with any such Claim. For the avoidance of doubt, clause 7.2 shall not apply where the Claim in question is attributable to possession or use of the Protected IPR (or any part thereof) by You other than in accordance with these terms, use of the Protected IPR in combination with any hardware or software not supplied or specified by Us if the infringement would have been avoided by the use of the Protected IPR not so combined, or use of a non-current release of the Protected IPR.
7.3 If any third party makes a Claim, or notifies an intention to make a Claim against You, Our obligations under clause 7.2 are conditional on You:
- (a) as soon as reasonably practicable, giving written notice of the Claim to Us, specifying the nature of the Claim in reasonable detail;
- (b) not making any admission of liability, agreement or compromise in relation to the Claim without Our prior written consent (such consent not to be unreasonably conditioned, withheld or delayed);
- (c) giving Us and Our professional advisers access at reasonable times (on reasonable prior notice) to Your premises and Your officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within Your power or control, so as to enable Us and Our professional advisers to examine them and to take copies (at Our expense) for the purpose of assessing the Claim; and
- (d) subject to Our providing security to You to Your Licensee’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as We may reasonably request to avoid, dispute, compromise or defend the Claim.
7.4 If any Claim is made, or in Our reasonable opinion is likely to be made, against You, We may at Our sole option and expense:
- (a) procure for You the right to continue to use the Protected IPR (or any part thereof) in accordance with the terms of this Licence;
- (b) modify the Protected IPR so that it ceases to be infringing;
- (c) replace the Protected IPR with non-infringing software; or
- (d) terminate your right to use the Protected IPR immediately by giving you notice in writing.
7.5 This clause 7 constitutes Your exclusive remedy and Our only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 6.1.
No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
10. ENTIRE AGREEMENT
10.1 These terms contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
10.2 Nothing in this clause shall limit or exclude any liability for fraud.
11.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
11.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12. THIRD-PARTY RIGHTS
12.1 A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
12.2 It is agreed that it is intended to confer a benefit on Us and Our Affiliates by making the exclusions and limitations of liability available to them in accordance with these terms, provided that the rights of such Affiliates under these terms shall only be enforceable by You on their behalf. We will owe no duty to them to enforce such rights and it may conduct or compromise any relevant proceedings as it sees fit.
12.3 Except as provided in clause 12.1 and clause 12.2, a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
12.4 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any person that is not a party to this agreement.
13. NO PARTNERSHIP OR AGENCY
13.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
13.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
14. FORCE MAJEURE
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for four weeks, the party not affected may terminate this agreement by giving immediate written notice to the affected party.
15.1 Any notice given to a party under or in connection with these terms contract shall be sent by email to the email address provided from time to time by each party to the other.
16. GOVERNING LAW AND JURISDICTION
16.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
16.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).