These are the terms on which you can use the eLearning247 website, incorporating nimble®LMS, nimble®Author and associated subdomains and services (in this agreement referred to collectively as “the Service”).
1. Definitions and construction
1.1 In these Terms the following expressions shall apply (except where the context otherwise requires):
1.1.1 "eLearning247" means eLearning247 Limited;
1.1.2” eLearning247 Content” means any information, data, text, graphics, links or computer code published on or contained within the Website and/or Service that is added up published by eLearning247.
1.1.3 "the Commencement Date" means the date eLearning247 provides the Account Holder with the Order Confirmation;
1.1.4 "the Contents" means any information, data, text, graphics, links or computer code published on or contained within the Website and/or Service, including eLearning247 Content and Customer Content;
11.1.5 “Customer Content” means any information, data, text, graphics, links or computer code published on or contained within the Website and/or Service that is added by the Customer;
1.1.6 "Intellectual Property Rights" means copyrights, patents, registered and unregistered design rights, topography rights, topology rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world;
1.1.7 "Order Confirmation" means the written confirmation by eLearning247 of the order placed by the Account Holder (whether verbally or on the Website or otherwise) containing the User Password;
1.1.8 "the Account Holder" means the person, organisation, firm or company who or which has registered to use, or has a licence to use, the eLearning247 Website;
1.1.9 "Terms" means the contract between eLearning247 and the Account Holder incorporating these Terms and Conditions irrespective of the country of issue;
1.1.10 "User" means any person, individual, firm or company which enters the Website;
1.1.11 "the User Guide" means the help page to be found at the Website;
1.1.12 "the User Password" means the password issued by eLearning247 in accordance with clause 5;
1.1.13 "the Website" means elearning247.com, nimble®LMS, nimble®Author and any satellite websites or subdomains.
2.1 For Account Holders’ and Users’ convenience a current version of these Terms is available via a link on the Website. eLearning247 may revise the Terms at any time at its sole discretion. eLearning247 will use reasonable endeavours to notify Accounts Holders’ of any change to the Terms before such change takes effect. The date of the latest change to these Terms appears at the beginning of this document. Any change will be deemed to take effect four hours after Website posting and will be deemed to be accepted by Account Holders and Users who continue to access the Website following the new Terms taking effect.
3.1 eLearning247 shall supply the Account Holder with the Service for the number of Users as set out in the Order Confirmation for the agreed period from the Commencement Date.
3.2 eLearning247 will use its reasonable endeavours to maintain the Website and Service and make it available at all times. The Account Holder or User will not be eligible for any compensation, and eLearning247 shall not be liable to the Account Holder or User in any form, because they cannot use the Service or because of the failure, suspension or withdrawal of all or part of the Service. eLearning247 may change, suspend or cancel the Service at its sole discretion at any time. eLearning247 shall use reasonable endeavours to notify the Account Holder of any likely suspension of the Service where it is aware of the likelihood of such suspension in advance of it occurring.
4. Account Holders
4.1 Account Holders shall not assign, sub-license or otherwise transfer or dispose of their rights or obligations hereunder, without the prior written permission from eLearning247.
4.2 Account Holders are fully responsible for the details provided to eLearning247 by them and by their Users including its truthfulness and accuracy, and for non-infringement of any other person's legal or proprietary rights. Account Holders must insert and update email and contact details on the appropriate page of the Website.
4.3 The Account Holder will not allow the Service to be used for storing, sending or receiving any material which is obscene, menacing, threatening, offensive, abusive, indecent, defamatory, fraudulent, or criminal, or which infringes the rights of other parties. The Account Holder will indemnify and keep indemnified eLearning247 against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by eLearning247 arising out of or in connection with any material provided by the Account Holder to eLearning247.
4.4 It is the Account Holder's responsibility to retain copies of their own data or of any information required in hard copy form in respect of Courses. eLearning247 accepts no responsibility for the loss of any data in any form which may result from inclusion on the Website or from the use of the Service.
4.5 eLearning247 shall be entitled to disclose the company name of the Account Holder in any promotional material, unless permission has been expressly denied by the Account Holder.
4.6 Except in accordance with the law, the Account Holder shall not allow any third party to, duplicate or otherwise reproduce the eLearning247 Content in whole or in part.
4.7 Account Holders shall ensure that all Users, employees and representatives are made fully aware of and comply with the requirements as set out in clause 7.
5.1 eLearning247 may issue the Account Holder and their Users with one or more username and password combinations (Credentials) for use in connection with the Services. These Credentials are unique to the Account Holder and User, and the Account Holder and User must not permit any unauthorised third party to use them.
5.2 eLearning247 may assume that all use of the Credentials is by the Account Holder or authorised by the Account Holder. eLearning247 shall have no liability to the Account Holder for any unauthorised use of the Credentials.
5.3 eLearning247 may decline to provide all, or certain aspects, of the Website and/or Services if the Account Holder has not provided the correct Credentials to eLearning247 on request. eLearning247 will use reasonable endeavours to contact the Account Holder to ascertain the correct Credentials but will not be liable to the Account Holder in any form, and no refunds shall be paid, whilst the Account Holder and Users are unable to access the Service or any part of it.
5.4 The Customer must notify eLearning247 immediately if the Account Holder believes that the Credentials have been compromised. Promptly upon notice eLearning247 shall:
(a) remove permissions from the compromised Credentials;
(b) issue the Account Holder with a new set of Credentials.
6.1 The Account Holder will be invoiced by eLearning247 following the issue of an Order Confirmation to them.
6.2 All fees are expressed exclusive of sales or other taxes which will be in addition to the fee at the prevailing rate at the time.
6.3 All invoices issued by eLearning247 are payable within 20 workings days of the date of issue.
6.4 eLearning247 reserves the right to suspend or close the use of the Service by the Account Holder in the event of non-payment without prior written notice to the Account Holder. In such circumstances eLearning247 will not be liable in any form to the Account Holder, and no refunds shall be paid In the event of non-payment, the Account Holder will be responsible for all costs incurred by eLearning247 including without limitation any legal fees incurred.
6.5 If the Customer is late in paying any of eLearning247’s invoices, eLearning247 reserves the right to charge the Customer interest on such late payment at a rate of 8% of the fees due.
6.6 eLearning247 reserves the right to amend Fees with effect from each anniversary of the Commencement Date. eLearning247 will give the Account Holder at least 30 days’ notice of any increase in Fees for the Services.
7. Ownership and IP
7.1 Original content added to a site by the Account Holder, whether media or text, remains the sole copyright of the Account Holder.
7.2 The Account Holder acknowledges that they have obtained all necessary Intellectual Property Rights for the Customer Content they add to the site.
7.3 The Account Holder shall indemnify eLearning247 against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by eLearning247 arising out of or in connection with any breach of its warranty in clause 7.2.
7.4 All content added by the Account Holder will be considered strictly confidential. eLearning247 agrees not to access, view, amend or use in any way, any original content added by the Account Holder, unless expressly invited to do so by the Account Holder. The exception to this is where eLearning247 deems access to an Account Holder’s content unavoidable for reasons of essential support or system maintenance. Access to Account Holder content is strictly controlled and limited to essential support personnel and technical staff.
7.5 All eLearning Content and images on the Website or in the Services are the copyright of eLearning247 and its licensors and all Intellectual Property Rights in or to the same will at all times remain the property of eLearning247 and its licensors. All rights are reserved. No portion of the Website may be reproduced in any form or by any means without the prior written permission from eLearning247.
7.6 The eLearning247 and Nimble names and logos and all related product and service names, design marks and slogans are the trade names, service marks, or trademarks of eLearning247, and may not be used without the prior written consent of eLearning247.
7.7 While every effort is made to ensure that information on the Website or in the Service is accurate, eLearning247 assumes no responsibility for errors or omissions.
7.8 All product names mentioned are acknowledged as the trademarks or registered trademarks of their respective owners. All trademarks are acknowledged. The ownership of information, data, trademarks, corporate logos and graphics remain the property of their owners, which are supplied to eLearning247 for restricted use on the Website and associated publications.
7.9 Nothing in this agreement is intended to or will create any form of partnership or joint venture, agency, franchise, sales representation or employment relationship between eLearning247 and/or the Account Holder and/or the User.
7.10 No rights to, or property in, the Website shall pass to the Account Holder or User.
8. Warranties and Liabilities
8.1 eLearning247 warrants that it will use all reasonable care and skill in carrying out obligations under these Terms. All other conditions, warranties and obligations implied by statute common law or otherwise and any liabilities arising therefrom are excluded to the extent permissible by law.
8.2 The Website and the Services has not been written or developed to meet the individual requirements of the Account Holder and is supplied on an ‘as is' basis. No failure of any part or the whole of the Website or the Service to be suitable for the Account Holder's requirements shall give rise to any right or claim against eLearning247.
8.3 eLearning247 accepts no liability for the completeness or accuracy of any eLearning Content or for placing the same on the Website or in the Service. eLearning247 makes no warranties representations or conditions with regard to any of the eLearning247 Content whether expressed or implied arising by law or otherwise and there is no implied warranty of merchantability or fitness for a particular purpose.
8.4 The Account Holder accepts that eLearning247 is in no way liable for any inaccuracies or misleading statements or representations made in any Contents supplied to eLearning247 by third parties.
8.5 Whilst eLearning247 makes all reasonable attempts to exclude viruses from the Website, it cannot ensure such exclusion and no liability is accepted for viruses. Thus, the Account Holder is recommended to virus check and to insure itself against the risk of virus contamination.
8.6 eLearning247 does not limit its liability to the Account Holder or the User for death or personal injury caused by any of eLearning247's acts or omissions or those of its employees or agents acting in the course of their employment.
8.7 Under no circumstances shall eLearning247 or any of its officers, directors, employees, subsidiaries, agents, parents, or affiliates be held liable for any indirect, incidental, special or consequential damages, even if eLearning247 has been advised of the possibility of damages (including, without limitation, damages for losses whether of a personal, public, institutional or corporate nature, loss of any revenues or profits) arising in contract, tort or otherwise, from the use of or inability to use the Website, Service, or any of the Contents, or from any action or decision taken as a result of using the Website or the Contents.
8.8 No matter how many claims are made and whatever the basis of such claims, eLearning247's maximum aggregate liability to the Account Holder or to Users under or in connection with these Terms or any other agreement between the parties, in respect of any direct loss (or any other loss to the extent that such loss is not excluded by the above sub-clauses of this clause 8 or otherwise), whether such claim arises in contract or in tort, shall not exceed a sum equal to five times the subscription fee paid for the Service in the year in which any such claim is brought.
8.9 All provisions of this Clause limiting or excluding liability operate separately and shall survive independently of the other provisions.
8.10 eLearning247 shall not be liable to the Account Holder for any reason for any loss of data but shall use reasonable endeavours to restore any such lost data where eLearning247 materially contributed to the loss of such data.
8.11 In no event may the Account Holder bring any claim against eLearning247 more than 12 months after the Account Holder knew of (or ought reasonably to have discovered) the event(s) giving rise to the potential liability.
9.1 If the Account Holder shall be in breach of any of these Terms or shall, in the case of a company, have had a petition for winding up presented against it, or a petition for an administration order presented in respect of it, or shall have appointed a liquidator, or shall have had a receiver appointed over all or any part of its property undertaking or assets or shall, in the case of an individual, have had a bankruptcy petition or order made or presented against him or her or, in either case, if the Account Holder shall have sought to enter into an arrangement with its creditors, then and in any such case eLearning247 may, without liability to the Account Holder or any User:
9.1.1 Terminate the agreement with the Account Holder and forthwith cease to provide the Services.
9.1.2 Cancel use of the Account Holder’s and User's Passwords.
9.1.3 Decline, withdraw or terminate access to the Service.
9.2 In the event that this agreement is terminated by eLearning247 pursuant to clause 9.1 or otherwise, the Account Holder:
9.2.1 Will remain liable to pay eLearning247 all sums accrued due on or prior to the date of termination
9.2.2 Will continue to respect and uphold all confidentiality and copyright obligations; and
9.2.3 Will, if requested by eLearning247, return all materials belonging to eLearning247 and return or destroy all copies of the eLearning247 Content and will specifically certify that they have done so.
10. Account Renewal
10.1 Unless otherwise agreed, accounts run for a licence period of one year, at which point the Account Holder can choose to renew, or not renew, their licence for eLearning247’s Website and Service.
10.2 Should an account holder choose not to renew their licence to use eLearning247’s Website and Service following the subscription period, then:
10.2.1 eLearning247 will continue to grant the Account Holder access to their account for a period of no less than one year running from the date of the account cancellation. The Account Holder will be able to view and export all learner data and course scripts. However, learner account access and SCORM course export will be disabled on the account
10.2.2. Account Holders will be granted the right to renew their contract at a later date and reinstate a full service on their account.
11. Data Protection
11.1 For the purposes of this clause 11, the definition used (if not defined elsewhere) shall have the meaning given to them in the Data Protection Act 1998 (the DPA).
11.2 The Account Holder and eLearning247 acknowledge that for the purposes of the Data Protection Act 1998, The Account Holder is the Data Controller and eLearning247 is the data processor in respect of any Personal Data.
11.3 eLearning247 shall process any Personal Data transferred to it by the Account Holder’s or any User’s use of the Service only in accordance with The Account Holder’s instructions from time to time and shall not process the Personal Data for any purpose other than those to comply with its obligations under these Terms or as expressly authorised by The Account Holder.
11.4 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
11.5 eLearning247 warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
11.5.1 take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
11.5.2 the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
11.5.3 the nature of the data to be protected.
11.5.4 take reasonable steps to ensure compliance with those measures.
11.6 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this agreement.
11.7 The Account Holder acknowledges that eLearning247 is reliant on The Account Holder for direction as to the extent to which eLearning247 is entitled to use and process the Personal Data. Consequently, eLearning247 will not be liable for any claim brought by a Data Subject arising from any action or omission by eLearning247, to the extent that such action or omission resulted directly from The Account Holder's instructions.
11.8 eLearning247 may authorise a third party (sub-contractor) to process the Personal Data provided that the sub-contractor's contract contains data protection terms which are substantially the same as those set out in these Terms.
12. Force Majeure
12.1 No party shall be held to be in breach of its obligations hereunder (except in relation to the obligation to make payments) nor liable to the other for any loss or damage which may be suffered by another party due to any cause beyond its reasonable control including without limitation, acts of God, extreme adverse weather conditions or natural disaster, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, terrorist attack, civil war, civil commotion, unrest or riots, nuclear, chemical or biological contamination or sonic boom, compliance with any law, regulation or directive, fire, explosion or accidental damage, failure of plant machinery, machinery, computers or vehicles, any labour dispute, including (but not limited to) strikes, industrial action or lockouts, non-performance by suppliers or subcontractors and interruption or failure of utility or transport service, internet service provider failures or delays or denial of service attacks.
13.1 Any notice required to be given hereunder shall be sent by first class post or electronic mail and shall be deemed to be given two days after posting if sent by post to the other party's address as notified by the party, or at the time the e-mail is received at either party's e-mail address if sent by electronic mail.
13.2 Notices and communication to eLearning247 should be sent for the attention of:
Bond's Mill Estate
13.3 Notices and communication to the Account Holder should be sent for the attention of the contact name provided by the Account Holder (or, if none, then the Managing Director, senior partner or individual Account Holder) at the address or electronic mail address supplied by the Account Holder in the Website registration form, or as subsequently notified in writing by the Account Holder to eLearning247 for such purposes.
14.1 Any failure by any party to exercise or enforce any of its rights hereunder this shall not be deemed to be a waiver of any such rights or operate so as to bar the subsequent exercise or enforcement of any such right.
14.2 These Terms and any other expressly incorporated document represent the entire understanding between the parties in relation to its subject matter and supersede all other agreements or representations made by the parties whether oral or written.
14.3 These Terms are between eLearning247 and the Account Holder. No other person shall have any rights to enforce any of its terms.
14.4 eLearning247 reserves the right to sub-contract any of the work required to fulfil its obligations hereunder.
14.5 If any provision of this Agreement is held to be invalid or unenforceable, the validity or enforceability of the remaining provisions shall not be affected thereby.
These Terms shall be governed by and construed in accordance with the Laws of England and the parties hereto submit to the exclusive jurisdiction of the English Courts.
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