LearnUpon Terms of Service
Effective: 24th May 2018
The Platform (as defined below) is being made available by LearnUpon Limited (“LearnUpon”) to You on the condition that You agree to these terms and conditions (the “Agreement”). “You,” or “Your” refers to the person accessing or using the Platform, or, if the Platform is being used on behalf of an organization, such as your employer, “You,” or “Your” means such organization. If you are accessing the Platform on behalf of your organization, You represent and warrant that You have the authority to do so and to bind such organization to this Agreement. Violation of any of the terms below will result in the termination of this Agreement and Your access to the Platform. BY USING THE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THESE TERMS AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE LEARNUPON PLATFORM.
For more information on LearnUpon and the Platform please visit www.learnupon.com.
LearnUpon’s software is constantly evolving, and as such, it may change the terms of this Agreement from time to time. If a change to the terms occurs, then a new copy of this Agreement will be available at https://www.learnupon.com/terms-of-service/ at least thirty (30) days before the new version becomes effective. Your use of the Platform is subject to the most current version of the Agreement at the time of such use.
For purposes of this Agreement:
1.1 “Account” means Your Platform account and profile, accessed using Your unique username and password.
1.2 “Charge” means the charge payable by You in respect of the Plan to which You have subscribed as set out in the Agreement or any alternative pricing as may be agreed in writing with LearnUpon.
1.3 “Content” means all visual, audio and audio-visual content and materials that You or Your End Users post or upload to, or disseminate, distribute or transmit through, the Platform or Portal including all videos, pictures, photographs, text, sound clips, posts, comments, graphics, software, advice, recommendations, data, slides, images, files, links, information, chats, and any other content and materials.
1.4 “Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy including the General Data Protection Regulation 2016/679 (“GDPR”) and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated and the terms “data controller”, “data processor”, “process” and “personal data” shall have the meanings given to those terms in such data protection laws and regulations.
1.5 “Documentation” means any and all user manuals, instructions, videos, brochures or similar media relating to the use of the LearnUpon Platform made available by LearnUpon.
1.6 “End User” means any individual authorized to access and use Your Top-Level Portal or one or more of Your Sub-Portals pursuant to, or in accordance with, an End User Contract. “End User”, as defined, is further limited to only the maximum number of End Users permitted by Your Plan.
1.7 “End User Contract” means the terms on which You grant each End User access to and use of Your Portal and the Platform. Your “End User Contract” must be at least as protective of LearnUpon and the Platform as this Agreement. If You choose to make Your Portal and the Platform available to Your End Users without a written End User Contract, You acknowledge and agree that You are solely liable and responsible for Your End Users’ compliance with the requirements set forth in this Agreement.
1.8 “Intellectual Property Rights” means all intellectual property rights including rights in software and computer programs, copyrights, database rights, sui generis database rights, discoveries, concepts, domain names, patents, secret or other processes, technologies, know how, inventions, ideas, improvements, information, trade secrets, business methods, logos, documents, manuals, designs, trademarks, anywhere in the world existing now or in the future (whether any of the foregoing is registered or unregistered and including any application or right of application in relation to any of them).
1.9 “Plan” means the LearnUpon subscription plan to which You have subscribed (set out at http://www.learnupon.com/pricing/), which includes the applicable charges and billing schedule for Your Plan, as agreed to by the parties.
1.10 “Platform” means the online learning platform accessible through http://app.learnupon.com, including all documentation, manuals, videos and software in or accessible through the Platform, excluding Your Content.
1.11 “Portal” means the Top-Level Portal and Sub-Portals, together.
1.13 “Sub-Portal” means the one or more web-based Sub-Portals (each with its own unique login domain) established by You on the Platform for the purposes of delivering Content, training, and courses to End Users. Your Plan specifies the maximum number of Sub-Portals You may create.
1.14 “Support” means the customer support available with Your Plan in relation to the Platform as outlined in Clause 5 of this agreement.
1.15 “Top-Level Portal” means the top level portal You establish when You create an account on the Platform to deliver Content, training and courses to End Users.
2. Free Trial License.
2.1 LearnUpon offers a free trial version of the Platform for you to evaluate the Platform before committing to a paid Plan. If You enroll in the free trial version of the Platform, LearnUpon hereby grants You, subject to this Agreement and for a period not to exceed 30 days, a limited, non-exclusive, non-transferable, revocable right to access and use the Platform solely to enable You to assess whether the Platform meets Your requirements. You may not use the free trial to deliver a complete training or other course. You may configure the Top-Level Portal, create one or more Sub-Portals and upload Content solely to evaluate the Platform with End Users. LearnUpon reserves the right to end Your free trial at any time for any reason.
2.2 You may activate a free trial only once. During the initial free trial period, You may create multiple Sub-Portals and allow access to multiple End Users. If multiple free trials are activated LearnUpon reserves the right to terminate Your access and erase all data uploaded to Your Portal.
2.3 If by the end of the free trial period You do not subscribe to and pay for a paid Plan, LearnUpon reserves the right to disable Your access to the trial account and delete all data, Content and configurations made during the free trial period.
2.4 LearnUpon may, at its sole discretion, extend your free trial beyond 30 days for a period of its choosing.
2.5 Under no circumstances does LearnUpon accept any responsibility for loss of content or data during your free trial period.
3. Commercial Version.
3.1 License Grant. Subject to the terms and conditions of this Agreement and solely in the manner and to the extent permitted by and provided for in Your Plan, LearnUpon hereby grants You a limited, non-exclusive, non-transferable, revocable right to access and use the Platform to:
3.1.1 create and upload Content to Your Top-Level Portal and Sub-Portals;
3.1.2 run courses and training for End Users from Your Top-Level Portal for Your business purposes or, if expressly permitted to do so by Your Plan, on a commercial basis (i.e. by charging End Users through the E-Commerce Module); and
3.1.3 sublicense the right to access and use Your Top-Level Portal and Sub-Portal(s) to End Users.
3.2 White Label Branding. Certain LearnUpon Plans allow You to “white-label” Your Portals. If expressly permitted to do so by Your Plan, You are granted the right to brand Your Portals on a white labelling basis, however LearnUpon may include a hypertext link and/or icon logo with the words “Powered by LearnUpon” (or equivalent) at the foot of each page of the Platform.
4. License Limitations.
4.1 Except as expressly permitted by the terms of this Agreement, You shall not and shall ensure that Your End Users do not:
4.1.1 copy, modify, adapt, translate, or otherwise create derivative works of the Platform, LearnUpon Intellectual Property or any software, services, or other technology of the third-party vendor(s) or hosting partner(s) who provide the infrastructure, hardware, software, networking, storage, and related technology required to operate and provide the Platform;
4.1.2 store, distribute, post, upload or transmit any Content through the Platform (including Your Sub-Portals) that (a) is or is at risk of being perceived to be unlawful, embarrassing, harmful, threatening, bullying, libelous, defamatory, obscene, harassing, annoying, racially or ethnically offensive, inciting hatred or invasive of a person’s privacy; (b) that facilitates or promotes illegal activity, violence, discrimination based on race, gender, color, religious or philosophical belief, sexual orientation, disability or any other illegal activities; (c) depicts or contains sexually explicit or pornographic images; and/or (d) infringes the Intellectual Property rights of a third party;
4.1.3 knowingly introduce any virus, worm, malware, spyware, Trojan horse or other harmful or malicious code to the Platform (including Your Sub-Portals);
4.1.4 exceed any maximum storage, posting, uploading or usage data restrictions in respect of the Platform (including Your Sub-Portals);
4.1.5 do anything which may negatively impact the Platform IT system or environment or availability of the Platform;
4.1.6 attempt to duplicate, modify, sub-license (except as permitted by clause 1.3), copy, adapt, distribute, market, lease, create derivative works from or resell the Platform (or any part of it including any of the software in or accessible through it);
4.1.7 access and use the Platform in order to build a product or service competitive with the Platform;
4.1.8 attempt to decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part of the Platform (including any of the software in or accessible through it) or to discover or disclose the source code, methods and concepts embodied in the Platform (including any of the software in or accessible through it) except as may be allowed by any applicable law notwithstanding contractual prohibition;
4.1.9 alter, obscure, remove, conceal or otherwise interfere with any markings on or in the Platform which refers to LearnUpon or includes any of its trademarks or logos;
4.1.10 use the Platform for the purposes of direct marketing or promotion to anyone other than Your End Users and their customers;
4.1.11 suggest or state that LearnUpon endorses or supports Your Content or any training or other course You are running;
4.1.12 circumvent or manipulate any of the restrictions or security-related features within the Platform, such as with respect to the number of permitted End Users; or
4.1.13 engage in any deceptive, unfair or misleading practice and/or in violation of applicable law.
5.1 You are entitled to LearnUpon’s standard customer support services offered with Your Plan. Support is generally available between the hours of 00:00 am and 11:59 pm Eastern Standard Time, Monday to Friday (excluding bank and US public holidays). You should make all reasonable efforts to investigate and diagnose problems before contacting customer support. LearnUpon may change the support services offered from time to time in the manner it sees fit, provided it does not materially decrease the quality or timeliness of the support services available under Your Plan.
6. Access by End Users.
6.1 Subject to the terms of this Agreement, You are granted a limited, non-transferable, royalty-free license to sublicense access to and use of Your Portal to Your End Users, provided the number of End Users accessing or using Your Portals must not exceed the maximum number permitted by Your Plan.
6.2 You are responsible for ensuring that Your Plan has available End Users for the number of End Users accessing and using Your Portals. You shall not allow any End User profile to be used by more than one individual person unless it has been reassigned in its entirety to a different individual (in which case You shall ensure the prior End User ceases to have any access to that Top-Level and/or Sub-Portal(s)).
6.3 Any transactions or terms in relation to the use of the Portal by Your End Users is solely between You and each End User. Other than those made herein, LearnUpon has no responsibility or liability to Your End Users and nothing herein confers a benefit on any person other than You. You shall defend, indemnify, and hold LearnUpon harmless from and against any threats, demands or claims made by any End User against LearnUpon and any damages, awards, costs, expenses, liabilities and/or losses suffered, incurred and/or agreed to be paid by LearnUpon in connection with and/or arising from any such threats, demands or claims. This clause survives the termination or expiration of this agreement.
6.4 You are solely responsible for Your End Users’ compliance with the terms of this Agreement. Upon request, You shall take all steps to enforce LearnUpon’s rights against any particular End User and/or procure compliance by an End User with the terms of this Agreement, which may include restricting specific End Users access to Your Top-Level and/or Sub-Portal(s). If it believes there to be good reason to do so, LearnUpon reserves the right to restrict or disable (on a temporary or permanent basis) access to the Platform (including Your Sub-Portals) and/or to delete one or more of Your End Users. LearnUpon will not permanently disable Your Account without first notifying You and giving You an opportunity to cure such noncompliance, if curable.
7. Acceptable Use of the Platform.
7.1 You are responsible for the way in which You and Your End Users access and use the Platform (including Your Sub-Portals) and for any Content stored, posted or uploaded to, or distributed or transmitted through, the Platform (including Your Sub-Portals) by or on behalf of You or Your End Users.
7.2 You shall use commercially reasonable efforts to prevent any unauthorized access to or use of the Platform and, in the event of any such unauthorized access or use, shall promptly notify LearnUpon.
7.3 You shall comply with all applicable laws, regulations, rules and codes with respect to Your activities relating in any way to Your use or exploitation of the Platform including, where applicable, under any legislation implementing the European E-Commerce Directive 2000/31/EC, E-Privacy Directive 2002/58/EC and Consumer Rights Directive 2011/83/EC (including the distance selling rules).
7.4 LearnUpon does not monitor any Content on the Platform (including Your Sub-Portals), but reserves the right (but is not required) to remove, delete and/or destroy any Content which is in breach of this Agreement or if considered prudent to do so for any reason.
7.5 You shall notify LearnUpon in writing of any breach of this Agreement by You or any End User immediately upon becoming aware of such breach or reasonably suspecting that a breach has occurred.
8. Your Account.
8.1 You are responsible for all use of Your Account and for maintaining the security of Your Account and the confidentiality and security of the password and username for Your Account. Please contact LearnUpon immediately if You know or suspect Your Account has been accessed by an unauthorized third party.
9.1 You are solely responsible for providing all training, teaching, courses, instruction and other Content for Your Portals and End Users. All Content is uploaded at Your own risk and LearnUpon recommends that You regularly back-up all Content uploaded onto the Platform. LearnUpon reserves the right to delete Your Content within thirty (30) days following the expiration or termination of Your Plan.
9.2 You and Your End Users are solely responsible for supplying all equipment, Internet access and bandwidth needed to properly access and use the Platform.
9.3 Payments by End Users to You through the e-commerce module available via the Platform are processed by a third party payment provider. LearnUpon has no liability for any claims arising out of or in connection with the processing or failure to properly process any End User payments by the third party payment processor.
9.4 You are responsible for any transactions made through the E-Commerce module including compliance with any VAT and/or sales tax liability that may apply.
9.5 You acknowledge and agree that LearnUpon may, from time to time, change, suspend access to, replace or discontinue features or any other aspects of the Platform (including Sub-Portals).
10.1 You agree to pay all fees in accordance with the Plan You selected. You may not withhold payment or claim any right of set-off without prior written consent. If you enroll in the Automatic Bill Payment option, You authorize LearnUpon to bill the applicable Plan fee to Your credit or debit card or to debit the Plan fee from Your account in advance for the upcoming period.
10.2 Plan fees may change over time, however, LearnUpon will give You thirty (30) days prior notice, generally via email. If LearnUpon revises Your Plan fees, the change will take effect on the date stated in the notice (but in no case will a change affect a period for which You have paid in advance).
10.3 All Plan fees are exclusive of any taxes and duties such as value added tax, sales-and-use tax, import or other duties. You are responsible for paying all taxes and duties at the appropriate rate and in the manner for the time being provided by applicable law.
10.4 If you fail to pay LearnUpon for Your Plan, LearnUpon may, in its sole discretion, (a) disable access for You and End Users to some or all of the Platform and/or terminate this Agreement; (b) delete and remove Your Top-Level Portal and Sub-Portal(s) and/or Content; and/or (c) charge You daily interest (both before and after judgment) on the outstanding balance at a rate of 10% per annum.
10.5 If You have chosen to pay by direct debit and Your bank is unable to make payment in any month, LearnUpon may cancel Your direct debit facility and demand a different method of payment. In these circumstances, You may be charged, and agree to pay, an administrative fee.
10.6 LearnUpon may change the billing period or the payment terms for any reason including failure to pay in full on time or if You have not properly authorized the use of a credit card or debit card.
10.7 In the event You exceed the number of End Users permitted by Your Plan, LearnUpon reserves the right to issue You a supplemental invoice and You agree to pay for such additional users from the date You first exceeded your Plan. If a supplemental invoice for additional End Users over Your Plan is not paid LearnUpon reserves the right to implement all or any of the options outlined in 4.
11. Cancellation and Termination.
11.1 You must maintain an active Plan for Your End Users to continue using and accessing Your Portals. You may cancel Your subscription with LearnUpon at any time with 30 days’ prior written notice, however, payment for the current term is non-refundable.
11.2 LearnUpon may terminate this agreement (a) where permitted by another provision in this Agreement; (b) if You or Your End Users breach any provision in this Agreement and such breach is not cured within thirty (30) days of notice, if curable; (c) it determines, in its sole discretion, that Your continued use of the Platform damages its reputation or brand; or (d) if You enter into bankruptcy proceedings (whether voluntarily or involuntarily) or receivership and such proceeding or receivership is not concluded or stayed within sixty (60) days, or if You make a general assignment for the benefit of creditors.
11.3 On the day that this Agreement terminates or expires, You agree to deliver and return to LearnUpon all copies of the documentation in Your possession and irrevocably delete any electronic versions of documents made available to You. You must pay all sums due and owing to LearnUpon immediately upon the termination or expiration of this agreement.
11.4 Termination or expiration of this agreement does not affect or prejudice any rights, remedies, obligations or liabilities a party accrued up to the date of termination or expiration or the continuation or commencement of any provision that expressly or by implication is intended to survive the termination or expiration of this Agreement.
11.5 It is Your responsibility to retain the original source of all Content and to export all training history of Your End Users prior to terminating Your Plan. LearnUpon reserves the right to delete all Content from the Portal upon termination or cancellation of Your Plan.
12. Intellectual Property.
12.1 Other than Your Content and Your trademarks, You acknowledge that the Platform and all intellectual property contained therein, including, but not limited to, text, works of authorship, software, music, sound, photographs, video, graphics, and third party materials, is proprietary to LearnUpon and its licensors, and LearnUpon and its licensors retain exclusive ownership of the same throughout the world, including all related copyrights, trademarks, service marks, patents, trade secrets or other intellectual property and proprietary rights thereto. Except for the limited express license granted to You under this Agreement, LearnUpon and its licensors retain all right, title or interest in and to the Platform. You acknowledge and agree that any ideas, enhancements, improvements, additions or modifications to the Platform, suggested by You, and any and all intellectual property rights contained therein, will become LearnUpon property, and You hereby assign and agree to assign any and all right, title and interest to any rights in such suggestions to LearnUpon.
12.2 You agree to not make any representation, promise, warranty or other statement of fact about the Platform that is not expressly set out in the documentation provided by LearnUpon to You. You agree that You will not make any representation, promise or warranty or other pledge, or incur any liability, on its behalf or purport to pledge its credit or make any contract binding upon us.
13. Data Protection.
13.1 The Parties shall at all times comply with applicable Data Protection Legislation and make take such actions as it, in their sole discretion, deems necessary to comply with the Data Protection Legislation.
13.2 The Parties acknowledge that for the purposes of the Data Protection Legislation, You are the data controller and LearnUpon is the data processor.
13.3 LearnUpon shall, as a data processor and in relation to personal data that it processes on behalf of You, comply with its obligations set out in this clause 13.3: You shall comply with Your obligations as set out in this clause 13.3:
13.3.1 LearnUpon shall act only in accordance with these Terms and with Your instructions in relation to the processing of personal data (including instructions in relation to the return or destruction of personal data). In the event that a legal requirement prevents LearnUpon from complying with such instructions or requires LearnUpon to disclose the personal data to a third party LearnUpon shall, unless such legal requirement prohibits it from doing so, inform You of the relevant legal requirement before carrying out the relevant processing activities;
13.3.2 LearnUpon shall take reasonable steps to ensure the reliability of staff having access to the personal data and that all staff to whom it discloses personal data are made aware that the personal data is confidential information of Yours and subject to these Terms;
13.3.3 LearnUpon shall have and maintain appropriate technical and organisational measures, in accordance with Data Protection Legislation, to prevent unauthorised or unlawful processing of personal data and accidental loss or destruction of, or damage to, personal data, including operating a security strategy. LearnUpon shall maintain such security measures for as long as it is processing the personal data;
13.3.4 LearnUpon shall, at Your expense, assist You by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Your obligation to respond to requests for exercising the data subject rights laid down in Chapter III of the GDPR;
13.3.5 LearnUpon shall, at Your choice, destroy or return all personal data to You at the end of the provision of services relating to processing and, within a reasonable amount of time, delete existing copies unless European Union law or a law of a Member State of the European Union requires the storage of the personal data;
13.3.6 LearnUpon shall, make available to You, and at Your expense, all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections conducted by You or another auditor authorised by You provided always such inspections and/or audits shall be carried out on reasonable notice, at reasonable intervals and during normal business hours of LearnUpon and upon production of appropriate identity evidencing authority. You undertake to ensure avoidance of disruption (or at least minimise disruption, where avoidance is not possible) to the day to day operations of LearnUpon’s business and/or damage or injury to LearnUpon’s equipment, premises, personnel;
13.3.7 LearnUpon uses sub-processors for the purposes of providing access to, ongoing support and development of, the Platform. LearnUpon currently uses the following categories of sub-processors: Cloud Service Providers, Cloud-based Support Services, Cloud-based Email Notification Services. Changes to same will be notified to You by way of updates to these Terms. LearnUpon shall, where it engages another processor for carrying out specific processing activities on behalf of the controller, use reasonable endeavours to ensure that the same data protection obligations as set out in these Terms shall be imposed on that other processor by way of contract or other legal act under European Union law or the laws of a Member State.
13.4 You acknowledge that LearnUpon is reliant on You for directions as to the extent to which LearnUpon is entitled to use and process the personal data. Consequently, You shall indemnify and keep indemnified LearnUpon and its permitted assign for: (i) any claim brought by a data subject, any person, or a supervisory authority against LearnUpon (and any damages, fines, awards, expenses, liabilities, and/or losses suffered or incurred by LearnUpon) arising from any action or omission by LearnUpon or its sub-contractor, to the extent that such action or omission resulted from Your instructions except to the extent that same has arisen out of non-compliance by LearnUpon or its sub-contractors with their obligations under Data Protection Legislation; and (ii) any damages, fines, awards, expenses, liabilities, and/or losses suffered or incurred by the LearnUpon (and/or its permitted assigns) arising as a result of a breach by You of Your obligations under Data Protection Legislation.
13.5 You warrant and represent that You have obtained and/or have in place, all necessary consents, approvals and/or valid legal basis for the lawful transfer of personal data to LearnUpon for the purposes of these Terms and the provision of services by LearnUpon.
14.1 LearnUpon uses commercially reasonable efforts to keep the Platform available, however, it does not guarantee that use of the Platform (including Your Portal) will be uninterrupted or error free at all times and in all circumstances, nor that such interruption or errors will be corrected. If for any reason LearnUpon expects the Portal or Platform to be down for a period longer than expected for routine maintenance, LearnUpon will use reasonable efforts to publish in advance details of such activity on the website. LearnUpon shall not be liable for any interruption or use of the Platform (including Your Portal) unless due to its gross negligence. We do not warrant that the services will meet your requirements or that they will be suitable for any particular purpose. It is your sole responsibility to determine that the Portal and Platform meet the needs of your business or otherwise and are suitable for the purposes for which they are used.
14.2 EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, YOU AGREE THAT THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LEARNUPON EXCLUDES ALL TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS THAT ARE NOT EXPRESSLY SET OUT IN THIS AGREEMENT (INCLUDING ANY IMPLIED TERMS, WHETHER BY STATUTE, EQUITY, COMMON LAW, COURSE OF TRADE OR DEALING OR OTHERWISE) INCLUDING ANY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, THE LEVEL OF SKILL AND CARE TO BE APPLIED BY LEARNUPON AND ANY OTHERS WHATEVER. YOU ACKNOWLEDGE THAT YOU ARE DEALING WITH LEARNUPON AS A BUSINESS AND NOT AS A CONSUMER.
15.1 EXCEPT FOR FRAUD OR FRAUDULENT MISREPRESENTATION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LEARNUPON BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUES, GOODWILL, BUSINESS OR BUSINESS OPPORTUNITY, ANTICIPATED SAVINGS OR WASTED MANAGEMENT TIME, WORK STOPPAGE, LOSS, DELETION OR CORRUPTION OF CONTENT OR DATA, COMPUTER FAILURE OR MALFUNCTION, DENIAL OF SERVICE, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE EXCEPT FOR FRAUD OR FRAUDULENT MISREPRESENTATION, LEARNUPON’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED THE TOTAL SUBSCRIPTION PAYMENTS MADE TO LEARNUPON BY YOU IN THE PRECEDING SIX (6) MONTHS, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. LEARNUPON IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU, END USERS OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PORTAL AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
15.2 If You are not satisfied with the service provided by LearnUpon Your sole and exclusive remedy is to terminate your subscription to the Platform.
16.1 You agree to defend, indemnify, and hold harmless LearnUpon from and against any claims, demands, damages, losses, liabilities, awards and/or expenses suffered and/or incurred or agreed to be paid out by LearnUpon arising out of or in connection with Your use or the use by Your End Users of the Platform in breach of this Agreement and/or any Content posted, uploaded, distributed, transmitted or disseminated by You or Your End Users.
17.1 Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. This provision does not apply to information which (a) is or becomes a part of the public domain through no act or omission of the receiving Party; (b) is lawfully in the possession of the receiving party before the disclosure took place; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; and/or (d) is independently developed by the receiving party without use of the confidential information of the disclosing party. Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Without limiting the foregoing, You shall treat the Platform and any Intellectual Property Rights therein as confidential information and shall not disclose, disseminate, or distribute such materials to any third party without LearnUpon’s prior written permission. Each party’s obligations under this clause 17 shall apply at all times during the term of this Agreement and shall survive termination of this Agreement.
17.2 The Platform, in the normal course of operations, provides LearnUpon with aggregated, statistical data (such as product or feature usage and functionality metrics), which is anonymized and aggregated with other such anonymized data so that it does not and cannot contain any information identifiable or attributable to You or any End User, either alone or in combination with other data (“Aggregated Anonymous Data”). To the extent that any Aggregated Anonymous Data is collected by LearnUpon, You agree that LearnUpon may use, store, analyze, and disclose such Aggregated Anonymous Data without Your prior written consent.
18.1 You agree that LearnUpon may use Your business name and logo on its marketing and promotional materials for the Platform, for as long as You use the Platform.
18.2 LearnUpon shall not be deemed to be in default of this Agreement if it is prevented, hindered or delayed in performing its obligations under this Agreement by acts, events, omissions or accidents beyond its reasonable control including strikes, lock-outs or other industrial disputes (including with respect to its staff), failure of a utility service, Internet access or transport or electronic communications networks, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of equipment, fire, flood storm or default of suppliers or subcontractors.
18.3 The provisions in this Agreement may only be waived by LearnUpon in writing by express reference to this clause. No delay or neglect on its part in enforcing against You any provision of this Agreement is a waiver and does not in any way prejudice its right under this Agreement. A waiver by LearnUpon of any breach of any provision of this Agreement does not constitute a general waiver of such provision.
18.4 This Agreement does not give rise to any partnership, joint venture, agency or employment relationship between You and LearnUpon.
18.5 Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by a party pursuant to the terms of this Agreement shall be in writing to the address, email address and individual set forth: firstname.lastname@example.org or to any other email address notified to You by us, with written copies of any legal notices sent to LearnUpon Limited, First Floor Ocean House, Arran Quay, Dublin 7, D07 DHT3, Ireland. Attention: General Counsel. Notice shall be deemed given (a) when delivered personally, (b) on the next business day after timely delivery to an overnight courier, (c) on the third business day after deposit in the U.S. mail (certified or registered mail return receipt requested, postage prepaid), or (d) as of the date received via email.
18.6 You shall not assign, transfer, charge, novate, sub-contract or deal in any other manner with all or any of Your rights or obligations under this Agreement without LearnUpon’s prior written consent. LearnUpon may at any time assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. You agree to execute any necessary document attesting and/or giving effect to such.
18.7 For avoidance of doubt, any provisions of the Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.
18.8 The masculine gender includes the feminine and neuter and the singular number include the plural and vice versa and words importing persons include firms or companies. The section headings are inserted for convenience and are not a part of this Agreement. Amendments to this Agreement may be made only with LearnUpon’s prior written consent. Terms such as “including”, “in particular”, “such as”, and “for example” are not read as exhaustive, or to limit, but may extend the generality of the provisions to which they relate.
18.9 If any provisions of this Agreement are held to be unenforceable, illegal or void in whole or in part the remaining portions of this Agreement shall remain in full force and effect.
18.10 This Agreement, and the schedules and exhibits attached or referenced herein, represent the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior discussions, understandings and agreements concerning such matters.
18.11 This Agreement will be governed by the laws of the State of New York, USA without regard to the conflict of laws principles thereof. If any dispute, controversy, or claim cannot be resolved by a good faith discussion between the parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in New York, New York, USA, and the parties hereby agree to submit to the jurisdiction and venue of such court. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY ACCESSING, RUNNING OR USING THE PLATFORM IN ANY WAY YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN LEARNUPON AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.