- LearnerLab is a specialist provider of communication, training, learning and software products, including the storytelling software as a service StoryTagger which it makes available to subscribers on a pay-per-use basis via a proprietary website and app (‘the Service’ as defined below).
- LearnerLab has developed and is the sole legal owner of the Service and is willing to licence the same to the Client.
- The Client has identified a need for the Service in its commercial operations and LearnerLab, in accordance with the attached Service Order and in consideration for the Fees, has agreed to provide the Service in accordance with the Terms and Conditions of this agreement (“Agreement”).
1.1 The definitions and rules of interpretation in this clause apply in this licence.
Acceptable Use Policy: LearnerLab’s acceptable use policy, as set out Clause 2.3.1, or as otherwise in force from time to time and made known to the Client and Authorised Users including via the StoryTagger End User Licence Agreement.
Account Administrator: the nominated representatives of the Client, as may be set out in a Service Order or as agreed in writing between the parties from time to time, entitled to escalate user queries to LearnerLab as set out in the Client Support Policy.
Additional Fees: the additional fees payable by the Client for services requested outside the scope of the original Service Order, Service or Subscription Plan or as otherwise agreed in writing with LearnerLab.
Affiliate: any business entity from time to time controlling, controlled by, or under common control with, either party.
Asset Library: the secure file storage provided to the Client as part of the Service where it may keep Input Material, Output Material or other materials for use with the Service.
Authorised Users: those employees, third parties, customers, agents and independent contractors of the Client who are authorised by the Client to use the Service and the Documentation.
Background IP: all IPR in pre-existing Software code or other forms of IPR owned and developed by LearnerLab in the Software or Service (including, for the avoidance of doubt, in the non-bespoke elements of the Service used in support of other client projects) together with any additional software code or other IPR created by LearnerLab for the Client, including in connection with a Service Proposal, which further develops, enhances or refines the Background IP, and other IPR owned by or licensed to LearnerLab and which may be accessible by the Client or Authorised Users through use of the Service, except for the Foreground IP, Input Material or Open Source Software.
Business: means LearnerLab’s software-based audience research, training, learning and communication services, including the Service.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change of Control: the 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, and controls, controlled and the expression change of control shall be construed accordingly.
Client Support Services: the online and other support services provided by LearnerLab to support clients’ use of the Service.
Commencement Date: the date of this Agreement or if earlier the date on which the Service is made available to the Client.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 11.6 or Clause 11.7.
Control: a business entity shall be deemed to “control” another business entity if it owns, directly or indirectly, more than 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.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.
Documentation: the user documents made available to the Client by LearnerLab online at www.storytagger.com as updated or such other web address notified by LearnerLab to the Client (and Authorised Users) from time to time, which sets out a description of the Service and the user instructions for the Services.
Foreground IP: all IPR in the bespoke elements of the Service created by LearnerLab for the Client and any Input Material provided by the Client but excluding any rights in Third Party IP and Open Source Software;
Initial Setup Period: an initial term of 14 days from the Commencement Date, or such other term as may be agreed by the parties in writing, commencing on the day LearnerLab first makes the Service available to the Client and during which period the Client shall make known to LearnerLab any defects with the Service including any incompatibility with any Documentation supplied to the Client.
Initial Subscription Term: the initial term of this Agreement as agreed in writing with LearnerLab, including as may be set out in a Service Order or under a Subscription Plan, which term commences at the start of the Initial Set-up period, where applicable, or once the Service is made available to the Client.
Input Material: all documents, diagrams, images, video, sound recordings, trade marks, information and materials provided by the Client, or Authorised Users, relating to the Service (including any third party materials or Third Party IP) or as part of the Client’s use of the Service (including materials stored in the Client’s Asset Library), including any information derived from such information, computer programs, data, reports and specifications and such other material applicable and necessary to the proper provision of the Services, including in accordance with a Service Proposal, or stored in the Client’s Asset Library.
Intellectual Property Rights (IPR): 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.
IPR Claim: any claim made against the Client and/or any Authorised User for actual or alleged infringement of a third party’s IPR, and/or breach of confidentiality arising out of, or in connection with, the supply of the Service and/or the use of the Background IP, and/or any Foreground IP, Template materials and/or Third Party IP introduced by LearnerLab.
Normal Business Hours: 09:00 to 17:30 local UK time, each Business Day.
Open Source Software: open-source software comprised in the Service which is not owned or controlled by LearnerLab but which is freely available for redistribution (such as source libraries or plugins).
Output Material: the materials (including digital video and audio files) created by the Client or Authorised Users as a result of using the Service, which may comprise Input Material, Background IP, Foreground IP, Templates, Third Party IP and Open Source Software.
Renewal Period: the period described in Clause 14.1.
Service: the StoryTagger guided video storytelling tool for capturing and sharing customer and employee experiences, enabling Authorised Users of the Client to communicate, create, store, view and download resources, provided by LearnerLab to the Client under this Agreement as more particularly described in the Documentation.
Service Order: a service order that sets out the scope of the Client’s use of the Service under this Agreement and agreed in writing by LearnerLab.
Software: the online software applications provided by LearnerLab as part of the Service.
Source Code Material: the source code of the Software, and all technical information and documentation required to enable the Client to modify and operate it.
Story Templates: the story and video templates created or uploaded by LearnerLab, which may incorporate Input Material, for use by the Client and Authorised Users with the Service which LearnerLab licences the Client to use under this Agreement as Output Material.
Subscription Fees: the Subscription Plan fees payable by the Client to LearnerLab for the User Subscriptions, at the rates detailed at StoryTagger/Pricing as amended from time to time, and as may be set out in a Service Order.
Subscription Plan: the Service subscription and user plan including the permitted number of User Subscriptions or Authorised Users, as may be set out in a Service Order, and agreed by the Client with LearnerLab in writing from time to time.
Subscription Term: has the meaning given in Clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Standard Contractual Clauses: the European Commission’s standard contractual clauses intended to provide sufficient safeguards on data protection for Personal Data to be transferred internationally outside of the EU/EEA as set out at EC Standard Contractual Clauses and as amended from time to time.
Third Party IP: any third party IPR in any third-party materials, including trade marks, video, images or sound recordings, or data specified as dependencies for the use of the Service, or provided by the Client in the form of Input Material or incorporated by the Client in Output Material.
UK Data Protection Legislation: any applicable privacy or data protection legislation from time to time in force in the UK including the Data Protection Act 2018 (including the UK GDPR) or any successor legislation.
User Subscriptions: the user subscriptions purchased by the Client pursuant to Clause 9.1 which entitle Authorised Users to access and use the Service and the Documentation in accordance with this Agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as amended from time to time.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation as amended from time to time under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
2.1 Subject to the Client purchasing the User Subscriptions under the Subscription Plan in accordance with Clause 3.3 and Clause 9.1, the restrictions set out in this Clause 2 and the other terms and conditions of this Agreement, LearnerLab hereby grants to the Client:
2.1.1 a non-exclusive licence to use the Service and the Documentation; and
2.1.2 a non-exclusive, non-transferable right, to sub-licence the Service and the Documentation solely to the Authorised Users to use the Service and the Documentation during the Subscription Term solely for the purposes of the Client’s business operations.
2.2 In relation to the Authorised Users, the Client undertakes that:
2.2.1 the maximum number of Authorised Users that it authorises to access and use the Service and the Documentation shall not exceed the number of User Subscriptions it has purchased under a Subscription Plan and as expressly agreed in writing with LearnerLab;
2.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Service and/or Documentation;
2.2.3 each Authorised User shall keep secure and confidential any Client password and any Campaign ID for his use of the Service and Documentation (and the Client shall restrict access to the same to its Account Administrators and Authorised Users);
2.2.4 it shall, on receipt of 10 Business Days’ written notice, permit LearnerLab to audit the Service in order to confirm the Client’s adherence with the Subscription Plan. Such audit shall be conducted remotely by reviewing the number of users listed within the application.
2.2.5 if any audit referred to in Clause 2.2(4) reveals that the Client has underpaid Subscription Fees, then without prejudice to LearnerLab’s other rights, the Client shall pay an amount equal to such underpayment as calculated in accordance with the prevailing Subscription Plan rates within 10 Business Days of the date of the relevant audit.
2.3 The Client shall not, and shall not allow any Authorised Users to, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that, in LearnerLab’s reasonable opinion:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity;
2.3.3 depicts sexually explicit images;
2.3.4 promotes unlawful violence;
2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
2.3.7 is otherwise illegal or causes damage or injury to any person or property;
2.3.8 or otherwise conflicts or contradicts what LearnerLab at its sole discretion deems to be acceptable use of the Service, and LearnerLab reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that it deems a breach of the provisions of this clause.
2.4 The Client shall not:
2.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
18.104.22.168 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
22.214.171.124 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.4.2 access all or any part of the Service and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
2.4.3 use the Service and/or Documentation to provide services to third parties; or
2.4.4 subject to Clause 24, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or Documentation available to any third party except the Authorised Users, or
2.4.5 attempt to obtain, or assist third parties in obtaining, access to the Service and/or Documentation, other than as provided under this Clause 2.
2.6 The Client shall adhere to reasonable data usage, or other data use limits as made known to it, as regards the Client’s and Authorised Users’ use of the Service and particularly as regards use of the Asset Library and the downloading of any videos or other files from the Service.
2.7 The rights provided under this Clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
3. ADDITIONAL USER SUBSCRIPTIONS
3.1 Subject to Clause 3.2 and Clause 3.3, the Client may, from time to time during any Subscription Term, purchase additional User Subscriptions under a Subscription Plan in excess of the number originally agreed with LearnerLab, and LearnerLab shall grant access to the Service and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.
3.2 If the Client wishes to purchase additional data usage, User Subscriptions or elevate its Subscription Plan during any Subscription Term, the Client shall purchase such an upgrade via the Service or notify LearnerLab in writing. LearnerLab shall evaluate such request and respond to the Client with approval or rejection of the request. Where LearnerLab approves the request, LearnerLab shall activate the additional User Subscriptions within 7 days of its approval of the Client’s request.
3.3 If LearnerLab approves the Client’s request to purchase additional User Subscriptions or elevate its Subscription Plan, the Client shall, within 30 days of the date of LearnerLab’s invoice, pay to LearnerLab the Subscription Fees for such additional User Subscriptions, and, if such additional User Subscriptions are purchased by the Client part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by LearnerLab for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 LearnerLab shall, during the Subscription Term, provide the Service and make available the Documentation to the Client on and subject to the terms of this Agreement.
4.2 LearnerLab shall use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for:
4.2.1 planned maintenance, provided always that LearnerLab has provided the Client with reasonable notice; and the maintenance time does not exceed 4 hours in any 24 hour period; or
4.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that LearnerLab has used reasonable endeavours to give the Client reasonable notice in advance, unless the issue requires immediate response when it will be performed as needed.
4.3 LearnerLab will, as part of the Service, provide the Client with the Client Support Services during Normal Business Hours.
5. CLIENT CONTENT
5.1 The Client shall own all right, title and interest in and to all of the Input Material and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Input Material, including that stored in the Client’s Asset Library or incorporated into any Video Templates as part of the Service (Client Content).
5.2 The Client and any Authorised Users shall be responsible for:
5.2.1 the backup, publishing and sharing of any Output Material exported or downloaded from the Service;
5.2.2 the use of any Third Party IP it introduced to the Services, including obtaining the necessary permissions or licences for such use (including any third party fonts, trademarks, video or music used) and any materials uploaded or used with the Services by Authorised Users, and
5.2.3 ensuring that all Client Content, Input Material, and Third Party IP provided by the Client complies with LearnerLab’s Acceptable Use Policy and does not infringe any third party IPRs.
5.3 LearnerLab shall follow its standard backup procedures for the Service, which includes the back-up of Client Content.
6. DATA PROTECTION
6.1 Both parties will comply with all applicable requirements of the Data Protection Legislation and all applicable laws, regulations, rules, codes of practice, guidelines, directions and decrees imposed by law or any competent authority with jurisdiction over the Parties relating to the collection and processing of personal data. This clause 6.1 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
6.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and LearnerLab is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The Client and LearnerLab may enter into a separate data processing agreement that sets out the scope, nature and purpose of processing by LearnerLab, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.
6.3 Without prejudice to the generality of Clause 6.1, the Client will ensure that it has all necessary consents and notices in place to enable lawful transfer of the Personal Data to LearnerLab for the duration and purposes of this Agreement, including age appropriate notices and consents as regards minors’ personal data and use of the Services.
6.4 Without prejudice to the generality of Clause 6.1, LearnerLab shall, in relation to any Personal Data processed in connection with the performance by LearnerLab of its obligations under this Agreement:
6.4.1 process that Personal Data only on the written instructions of the Client unless LearnerLab is required by the Data Protection Legislation to otherwise process that Personal Data;
6.4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, 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 (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
6.4.3 ensure that personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
126.96.36.199 the Client or LearnerLab has provided appropriate safeguards in relation to the transfer;
188.8.131.52 the data subject has enforceable rights and effective legal remedies;
184.108.40.206 LearnerLab complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
220.127.116.11 LearnerLab complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
18.104.22.168 assist the Client, at the Client’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;
22.214.171.124 notify the Client without undue delay on becoming aware of a Personal Data breach;
126.96.36.199 at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Agreement unless required by Applicable Law to store the Personal Data; and
188.8.131.52 maintain complete and accurate records and information to demonstrate its compliance with this Clause 6 and allow for audits by the Customer.
6.6 The parties may agree, at any time on reasonable notice, to revise this Clause 6 by replacing it with any applicable controller to processor data processing agreement or similar terms (including Standard Contractual Clauses) or forming part of an applicable certification scheme.
7. THIRD PARTY PROVIDERS
7.1 The Client acknowledges that the Service may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites or an API and that it does so solely at its own risk.
7.2.1 LearnerLab gives no warranties whatsoever as to the uptime, reliability or accuracy of any API connection to the Service, or that it shall be uninterrupted or error-free, or for any network connection used by which the Client to connect to the Service (including specifically any network under the control of the Client or a third party).
7.3 In accordance with Clause 5.2 and 9.1:
7.3.1 the Client is entirely responsible for use of any third party material or Third Party IP introduced or used with the Service, including obtaining the necessary permissions or licences for use with the Service, and
7.3.2 for ensuring that the Authorised Users are responsible for the upload, storage or use of any materials including Third Party IP they introduce to the Service and that the same does not infringe any third party rights including IPR.
8. LEARNERLAB OBLIGATIONS
8.1 LearnerLab undertakes that the Service will perform substantially in accordance with the Documentation.
8.2 The undertaking at Clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to LearnerLab’s written instructions, including as set out in any Service Order, or modification or alteration of the Service by any party other than LearnerLab or its duly authorised contractors or agents. If the Service does not conform with the foregoing undertaking, LearnerLab will, at its expense and without prejudice to the other rights of the Client accrued under this Agreement, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance.
8.3 Subject to clauses 8.1 and 8.2 above, and unless specifically set out otherwise in this Agreement, LearnerLab:
8.3.1 does not warrant that the Client’s use of the Service will be uninterrupted or error-free; or that the Service, Documentation and/or the information obtained by the Client through the Service will meet the Client’s requirements; and
8.3.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Service and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.3 This Agreement shall not prevent LearnerLab from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
8.4 LearnerLab warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
9. CLIENT’S OBLIGATIONS
9.1 The Client shall:
9.1.1 provide LearnerLab with:
184.108.40.206 all necessary cooperation in relation to this Agreement; and
220.127.116.11 such information as may be reasonably required by LearnerLab, in order to provide the Service, including but not limited to Input Material, security access information and configuration services;
9.1.2 comply with all applicable laws and regulations with respect to its activities under this Agreement;
9.1.3 carry out all its responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, LearnerLab may adjust any agreed timetable or delivery schedule as reasonably necessary;
9.1.4 ensure that the Authorised Users use the Service and the Documentation in accordance with the terms and conditions of this Agreement and the StoryTagger End User Licence Agreement;
9.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for LearnerLab, and its contractors and agents, to perform their respective obligations under this Agreement, including without limitation the Service;
9.1.6 ensure that its network and systems comply with the relevant specifications to provide the Service from time to time;
9.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to relevant data centres;
9.1.8 ensure that sufficient measures, processes and protections are in place to ensure the necessary back up of Input Material and Output Material and any Third Party IP used by the Client, and
9.1.9 the Client warrants that all Input Material, Third Party IP or other materials it supplies to LearnerLab shall not infringe the rights of any third party or breach any applicable law and the Client shall fully indemnify LearnerLab against a breach of this clause.
10. CHARGES AND PAYMENT
10.1 The Client shall pay the Subscription Fees to LearnerLab in accordance with this Clause 10 or as otherwise agreed in writing with LearnerLab.
10.2 The Client shall on or before the Commencement Date provide to LearnerLab valid, up-to-date and complete contact, purchase order, payment or billing information in order to allow LearnerLab to charge the Client:
10.2.1 for the Subscription Fees payable in respect of the Initial Subscription Term, and
10.2.2 subject to Clause 16.1, at least 30 days prior to each anniversary of the Commencement Date for the Subscription Fees payable in respect of the next Renewal Period, and the Client shall pay the Subscription Fees in advance or in accordance with any invoice presented by LearnerLab, or as otherwise agreed in writing with LearnerLab.
10.3 If LearnerLab has not received payment of any Subscription Fees, Additional Fees or any other sums due within 14 days after the due date, and without prejudice to any other rights and remedies of LearnerLab may:
10.3.1 without liability to the Client, disable the Client’s password, account, Campaign ID and access to all or part of the Service and LearnerLab shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and
10.3.2 claim interest in accordance with The Late Payment of Commercial Debts (Interest) Act 1998, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.4 All amounts and fees stated or referred to in this Agreement:
10.4.1 shall be payable in pounds sterling or other amount specified by LearnerLab;
10.4.2 are, subject to Clause 16.4, non-cancellable and non-refundable, and
10.4.3. are exclusive of value added tax, which shall be added to LearnerLab’s invoice(s) at the appropriate rate.
10.5 If, at any time whilst using the Service, the Client exceeds the reasonable data usage limits, or limits otherwise set out in the Service Order, LearnerLab may require the Client to elevate to the next higher Subscription Plan.
10.6 LearnerLab shall be entitled to increase the Subscription Fees, the fees payable in respect of additional User Subscriptions purchased pursuant to Clause 3.3, and/or any excess fees payable pursuant to Clause 10.5 at the start of each Renewal Period upon thirty (30) days’ prior notice to the Client, and any Service Order shall be deemed to have been amended accordingly.
11. PROPRIETARY RIGHTS
11.1 The Client acknowledges and agrees that LearnerLab and/or its licensors own all IPR in the Service, Documentation and Background IP. Except as expressly stated herein, this Agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Service or the Documentation.
11.2 LearnerLab confirms that it has all the rights in relation to the Service, the Documentation and the Background IP that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
11.4 LearnerLab hereby grants the Client and each Authorised Users an unconditional and irrevocable licence to use the Output Material in perpetuity for any reasons whatsoever on the terms of this Agreement.
11.5 LearnerLab shall not, without the Client’s prior written consent, use the Client’s Input Material for any other purpose or for the benefit of any person other than the Client.
12.1 In order to protect the legitimate business interests of LearnerLab, including in respect of the Business, the goodwill, the Confidential Information and the research, development and marketing investments made in the Services by LearnerLab, the Client covenants with LearnerLab for itself and as agent for each company in its group that it shall not (and shall procure that no member of the Client’s group shall) except with the prior written consent of LearnerLab:
12.1.1 attempt to solicit or entice away; or
12.1.2 solicit or entice away, from the employment or service of LearnerLab the services of any Restricted Person other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of LearnerLab.
12.2 The Client shall be bound by the covenant set out in Clause 12.1 during the term of this Agreement, and for a period of 6 months after termination of this Agreement.
12.3 For the purposes of Clause 12.1, a Restricted Person shall mean any firm, company or person employed or engaged by LearnerLab during the term of this Agreement at a the level of developer, product owner, manager or above, who has been engaged in the provision of the Services or the management of this Agreement either as principal, agent, employee, independent contractor or in any other form of employment or engagement and who could materially damage the interests of LearnerLab if they were involved in any capacity in any business concern which competes with the Business.
12.4 If the Client commits any breach of Clause 12.1, the Client shall, on demand, pay to LearnerLab a sum equal to one year’s basic salary or the equivalent annual fee that was payable by LearnerLab to the Restricted Person plus the recruitment costs incurred by LearnerLab in replacing such person.
12.5 In order to protect the legitimate business interests of LearnerLab, including in respect of the Business, the goodwill, the Confidential Information and the research, development and marketing investments made in the Services by LearnerLab, the Client covenants with LearnerLab for itself and as agent for each company in its group that it shall not (and shall procure that no member of the Client’s group shall) except with the prior written consent of LearnerLab employ or engage or otherwise facilitate the employment or engagement of any Restricted Person.
12.6 The Client shall be bound by the covenant set out in Clause 12.5 during the term of this Agreement and for a period of 6 months after termination of this Agreement.
12.7 If the Client commits any breach of Clause 12.5, the Client shall, on demand, pay to LearnerLab a sum equal to one year’s basic salary or the equivalent annual fee that was payable by LearnerLab to the Restricted Person plus the recruitment costs incurred by LearnerLab in replacing such person.
12.8 In order to protect the legitimate business interests of LearnerLab, including in respect of the Business, the goodwill, the Confidential Information and the research, development and marketing investments made in the Services by LearnerLab, the Client covenants with LearnerLab for itself and as agent for each company in its group that it shall not (and shall procure that no member of the Client’s group shall):
12.8.1 carry on; or
12.8.2 be engaged, concerned or interest in; or
12.8.3 assist in any way, any business concern which is (or intends to be) in competition with the Business.
12.9. The Client shall be bound by the covenant set out in Clause 12.8 during the term of this Agreement, and for a period of 9 months after termination of this Agreement.
12.10 The Client undertakes that, other than in concert with LearnerLab or with LearnerLab’s express prior written approval, it shall not, directly or indirectly:
12.10.1 itself pursue any Substitute Project;
12.10.2 induce, solicit, procure or otherwise encourage any third party to pursue a Substitute Project; or
12.10.3 seek, encourage or respond to any approach from any third party to pursue any Substitute Project.
12.11 The Client shall procure that its officers, employees, agents, advisers and other representatives, and each member of its group and their respective officers, employees, agents, advisers and other representatives, comply with Clause 12.10 as if they were the Client.
12.12 For the purposes of this Clause 12, Substitute Project shall mean any project involving the same customers or partners or the same or substantially similar resources, technology or work product as the Business.
12.13 The covenants in clauses 12.1 to 12.12 are intended for the benefit of, and shall be enforceable to the fullest extent permitted by law, by LearnerLab and shall apply to actions carried out by the Client (or any member of the Client’s group) in any capacity (including as shareholder, partner, director, principal, consultant, officer, agent or otherwise) and whether directly or indirectly, on its own behalf or on behalf of, or jointly with, any other person.
12.14 Except as expressly provided in Clause 12.13, 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.
12.14 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 other person.
13.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
13.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
13.1.2 was in the other party’s lawful possession before the disclosure;
13.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
13.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
13.2 Subject to Clause 13.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
13.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
13.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
13.5 Subject to the terms of Clause 6 neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party unless caused by a third party duly appointed by a party, including but not limited to sub-contractors and agents.
13.6 The Client acknowledges that details of the Service, including pricing and the results of any performance tests of the Service, constitute LearnerLab’s Confidential Information.
13.7 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
13.8 Notwithstanding the remainder of this Clause 13, LearnerLab shall be entitled to publicise through its marketing materials the fact that the Client is or has been a customer of LearnerLab.
13.9 The above provisions of this Clause 13. shall survive termination of this Agreement, however arising.
14. IPR INDEMNITY
14.1 Subject to the limit of liability set out in the Agreement, LearnerLab shall during the term of this Agreement, on written demand indemnify the Client, and keep the Client indemnified, against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or arising from a successful IPR Claim.
14.2 If an IPR Claim is made, or LearnerLab anticipates that an IPR Claim might be made, LearnerLab may, at its own expense and sole option, either:
14.2.1 procure for the Client the right to continue using the relevant item which is subject to the IPR Claim; or
14.2.2 replace or modify the relevant item with non-infringing substitutes provided that:
18.104.22.168 the performance and functionality of the replaced or modified item is, in the reasonable opinion of the Client, at least equivalent to the performance and functionality of the original item;
22.214.171.124 there is no additional Fee to the Client; and
126.96.36.199 the terms and conditions of this Agreement shall apply to the replaced or modified item, or
14.2.3 terminate this Agreement and reimburse the Client for the Fees paid prior to the date of termination.
14.3 The provisions of above clauses 14.1 and 14.2 (inclusive) shall not apply in respect of any IPR Claim caused by:
14.3.1 any use by or on behalf of the Client or Authorised Users of the relevant item in combination with any item not supplied pursuant to this Agreement; or
14.3.2 use of the relevant item in a manner not reasonably anticipated by this Agreement.
14.4 In no event shall LearnerLab, its employees, agents and sub-contractors be liable to the Client to the extent that the IPR Claim is based on:
14.4.1 a modification of the Service or Documentation by anyone other than LearnerLab or its duly appointed sub-contractors and/or agents; or
14.4.2 use of the Service or Documentation in a manner contrary to that reasonably anticipated by this Agreement or the Documentation; or
14.4.3 use of the Service or Documentation after notice of the alleged or actual infringement from LearnerLab or any appropriate authority.
14.5 The foregoing and Clause 15.3.2 state the Client’s sole and exclusive rights and remedies, and LearnerLab’s (including its employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
15. LIMITATION OF LIABILITY
15.1 Except as expressly and specifically provided in this Agreement:
15.1.1 the Client assumes sole responsibility for results obtained from the use of the Service and the Documentation by the Client or Authorised Users, and for conclusions and materials produced or drawn from such use, including Output Material. LearnerLab shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to LearnerLab by the Client in connection with the Service, or any actions taken by LearnerLab at the Client’s direction;
15.1.2. 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 this Agreement; and
15.1.3 the Service and the Documentation are provided to the Client on an “as is” basis.
15.2 Nothing in this Agreement excludes the liability of either party for:
15.2.1 death or personal injury caused by negligence; or
15.2.2 fraud or fraudulent misrepresentation.
15.3 Subject to the other provisions of this Clause 15 and notwithstanding Clause 15.4.2 LearnerLab shall indemnify the Client for a breach of its indemnification obligations under Clause 14 (IPR Indemnity) up to the limit of its prevailing Professional Indemnity Insurance cover which shall be no less than £1,000,000.
15.4 Subject to Clause 15.1 and Clause 15.2:
15.4.1 Neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses, or pure economic loss, for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement;
15.4.2 LearnerLab’s total aggregate liability in contract (including in respect of the indemnity at Clause 12.2), tort, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose.
16. TERM AND TERMINATION
16.1 This Agreement shall, unless otherwise terminated as provided in this Clause 16, commence on the Commencement Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of the same duration as the Initial Subscription Term (each a Renewal Period), unless:
16.1.1 either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
16.1.2 otherwise terminated in accordance with the provisions of this Agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
16.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
16.2.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
16.2.2 the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so;
16.2.3 the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
16.2.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
16.2.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
16.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
16.2.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
16.2.8 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
16.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
16.2.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
16.2.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 16.2.4 to Clause 16.2.10 (inclusive);
16.2.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business, or
16.2.13 there is a Change of Control of the other party.
16.3 On termination of this Agreement for any reason:
16.3.1 all licences granted under this Agreement shall immediately terminate and the Client shall immediately cease all use of the Service and/or the Documentation;
16.3.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
16.3.3 LearnerLab may destroy or otherwise dispose of any of the Input Material in its possession unless it receives, no later than 21 days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Input Material. LearnerLab is under no obligation to supply the Client’s Input Material but may at its discretion use reasonable commercial endeavours to deliver the back-up to the Client within 21 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by LearnerLab in returning or disposing of Input Material; and
16.3.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced.
LearnerLab shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of LearnerLab or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.
18.1 If there is an inconsistency between any of the provisions in the main body of this Agreement, any policies referred to and any end user licence agreement, the provisions in this Agreement shall prevail, however any agreed Service Order will prevail over the terms of this Agreement.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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.
21. RIGHTS AND REMEDIES
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.
22.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
22.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
23. ENTIRE AGREEMENT
23.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
23.2 Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
23.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
The Client may not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Where LearnerLab agrees that the Client may sub-contract any of its obligations under this Agreement the Client shall be liable for all of the acts and omissions of its sub-contractor as if they were its own.
25. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
26. THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
27.1 Any notice required to be given under this Agreement shall be in writing.
27.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
28. GOVERNING LAW
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.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
This Agreement has been entered into on the Commencement Date.