Terms and Conditions

These Terms and Conditions are effective for new and renewing licences from 01 January 2024.

BACKGROUND

These Terms and Conditions, together with any and all other documents referred to herein, set out the terms under which Services are supplied by Us to Business Customers, which are made available via web-based or cloud hosted platforms. Please read these Terms and Conditions carefully and ensure that you understand them before ordering any Services from Us. You will be required to read and accept these Terms and Conditions when the Business to whom you are providing your services subscribes for Services from Us. If you do not agree to comply with and be bound by these Terms and Conditions, you will not be able to subscribe for Services. These Terms and Conditions, as well as any and all Contracts are in the English language only.

PARTIES

Nimble Elearning Ltd, a private limited company registered under the laws of England and Wales with Company Registration Number 07007216 and with Registered Offices situated at Nimble Hub, Chipmans Platt, Stonehouse, Gloucestcolor: #4b4b4bershire, England, GL10 3SQ (the “Provider“); and
The organisation or entity to which you provide your services and who has lawfully subscribed to receive the Subscription Services (the “Customer“).

1. Definitions

1.1 In this Agreement, except to the extent expressly provided otherwise:
“Access Credentials” means the usernames, passwords and other credentials enabling access to the Subscription Services, including both access credentials for the User Interface and access credentials for the API;
“Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;
“API” means the application programming interface for the Subscription Services defined by the Provider and made available by the Provider to the Customer;
“Business Day” means any weekday other than a bank or public holiday where the banks are open for business in London;
“Business Hours” means the hours of 09:00 to 17:00 GMT on a Business Day;
“Charges” means the following amounts:

(a) the amounts specified in the Proposal for the Subscription Services;
(b) such alternative or additional amounts as may be agreed in writing by the parties from time to time; and
(c) amounts calculated by multiplying the Provider’s standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement) by the time spent by the Provider’s personnel performing any bespoke Support Services;

“Customer Confidential Information” means:

(a) any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked or described as “confidential”; or
(ii) should have been reasonably understood by the Provider to be confidential; and
(b) the Customer Data;

“Customer Data” means all data, works and materials:

(a) provided by the Customer to the Supplier for uploading to, transmission by or storage on the Platform;
(b) uploaded by the Customer on to the Platform; or
(c) generated by the Platform as a result of the use of the Subscription Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);

“Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement;
“Data Protection Laws” means the UK GDPR and all other applicable laws relating to the processing of Personal Data;
“Documentation” means the documentation for the Subscription Services produced by the Provider and delivered or made available by the Provider to the Customer;
“Effective Date” means the date of acceptance or deemed acceptance of these Terms and Conditions by the Provider issuing the Customer with an order confirmation;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Personal Data” means personal data under any of the Data Protection Laws;
“Platform” means the platform managed by the Provider and used by the Provider to provide the Subscription Services, including the application and database software for the Subscription Services, the system and server software used to provide the Subscription Services, and the computer hardware on which that application, database, system and server software is installed;
“Proposal” means the Providers proposal issued to the Customer to which these terms are subject;
“Schedule” means any schedule attached to the main body of this Agreement;
“Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement, including but not limited to the Subscription Services;
“Subscription Services” means access to a web-based remote learning Platform with the ability to create learning courses, track learners progress and access a portfolio of existing learning courses, as specified in the Subscription Services Specification, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
“Subscription Services Defect” means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Subscription Services, but excluding any defect, error or bug caused by or arising as a result of:

(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Subscription Services;
(b) any use of the Platform or Subscription Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Subscription Services and any other system, network, application, program, hardware or software not specified as compatible in the Subscription Services Specification;

“Subscription Services Specification” means the specification for the Platform and Subscription Services set out in Schedule 1 (Subscription Services particulars) and in the Documentation;
“Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Subscription Services (including the restoration of deletions from course content), but shall not include the provision of training services;
“Supported Web Browser” means the current release and/or latest version from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported. Whilst the Customer may be able to the Provider’s products using older versions of these browsers, or other browsers, they are not supported and the Provider accepts no liability for any loss or damage caused or occasioned by the use of older versions.
“Term” means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
“UK GDPR” means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time; and
“User Interface” means the interface for the Subscription Services designed to allow individual human users to access and use the Subscription Services.

2. Term

2.1 This Agreement shall come into force upon the Effective Date.
2.2 This Agreement shall continue in force until the date set out in the Proposal, at the beginning of which this Agreement shall terminate automatically, subject to termination in accordance with Clause 18 or any other provision of this Agreement.

3. Subscription Services

3.1 The Provider shall ensure that the Platform will provide, to the Customer upon the Effective Date the Access Credentials necessary to enable the Customer to access and use the Hosted Services for the number of users defined in the Provider’s order confirmation.
3.2 The Provider hereby grants to the Customer in accordance with the Documentation and during the Term, a number of non-exclusive licences (as set out in the Provider’s order confirmation) to use the Hosted Services by means of the User Interface and the API for the internal business purposes of the Customer and for any commercial exploitation which has been agreed in writing and in advance with the Provider.
3.3 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:

(a) the User Interface may only be used through a Supported Web Browser;
(b) the User Interface may only be used by the officers, employees, agents and subcontractors of the Customer, and third parties agreed in writing and in advance with the Provider;
(c) the User Interface may only be used by the Customer in relation to the number of permitted users identified in the Proposal, providing that the Customer may change, add or remove a designated permitted user in accordance with the Provider’s standard operating procedures regarding changes to users;
(d) the User Interface must not be used at any point in time by more than the number of permitted users specified in the Proposal, providing that the Customer may add or remove permitted user licences in accordance with the Provider’s standard operating procedures regarding changes to users; and
(e) the API may only be used by an application or applications approved by the Provider in writing and controlled by the Customer.

3.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the Hosted Services without the advance written consent of the Provider;
(b) the Customer must not permit any unauthorised person or application to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties without the advance written consent of the Provider;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services;
(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
(f) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without (a) providing the Provider with not less than 10 Business Days prior written notice and (b) obtaining the written consent of the Provider.

3.5 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials (including, for the avoidance of any doubt, the sharing of passwords and usernames).
3.6 The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
3.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:

(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer’s computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.

3.8 The Customer must comply at all times with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of the Access Credentials comply with Schedule 2 (Acceptable Use Policy).
3.9 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
3.10 The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
3.11 The Customer must not use the Hosted Services:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

3.12 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
3.13 The Provider may suspend the provision of the Hosted Services:

3.13.1 if any amount due to be paid by the Customer to the Provider under this Agreement is overdue,
3.13.2 and the Provider has given to the Customer at least 30 days’ written notice (following the amount becoming overdue), of its intention to suspend the Hosted Services on this basis.

3.14 In relation to any breach of these Customer obligations, including but not limited to sharing login details, in addition to other rights expressly reserved to the Provider under these terms, the Provider shall also reserve the right to levy additional charges on the Customer. In relation to multiple or repeated breaches, in addition to other rights expressly reserved to the Provider under these terms, the Provider shall also reserve the right to suspend or terminate the provision of the Services.

4. Scheduled maintenance

4.1 The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform, providing that such scheduled maintenance must be carried out in accordance with this Clause 5.
4.2 The Provider shall, where practicable, give to the Customer at least 5 Business Days’ prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services or have a material negative impact upon the Hosted Services.
4.3 The Provider shall use all reasonable endeavors to ensure that all scheduled maintenance is carried out outside Business Hours.
4.4 The Provider shall ensure that, during each calendar month, the aggregate period during which the Hosted Services are unavailable as a result of scheduled maintenance, or negatively affected by scheduled maintenance to a material degree, does not exceed 10 business hours per calendar month.

5. Support Services

5.1 The Provider shall provide the Support Services to the Customer during the Term.
5.2 The Provider shall make available to the Customer a helpdesk, based upon helpdesk ticket items with Customers issued with an initial 10 helpdesk ticket items and further tickets available for an additional charge.
5.3 The Provider shall provide the Support Services with reasonable skill and care.
5.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
5.5 The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
5.6 The Provider may suspend the provision of the Support Services:

5.6.1 if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and
5.6.2 the Provider has given to the Customer at least 30 days’ written notice (following the amount becoming overdue), of its intention to suspend the Support Services on this basis.

6. Customer Data

6.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in this Agreement.
6.2 The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
6.3 The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
6.4 Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to commence restoration to the Platform, of the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 6.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration. The Provider shall use reasonable endeavours to complete such restoration of Customer Data within 10 Business Days, however, this may take longer depending on the extent of Customer Data requiring restoration.

7. No assignment of Intellectual Property Rights

7.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

8. Charges

8.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.
8.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 8.2.
8.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
8.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days’ written notice of the variation expiring on any anniversary of the date of execution of this Agreement.

9. Payments

9.1 The Provider shall issue invoices for the Charges to the Customer in advance of the period to which they relate.
9.2 The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 9, providing that the Charges must in all cases be paid before the commencement of the period to which they relate.
9.3 The Customer must pay the Charges by debit card, credit card, direct debit, bank transfer or cheque (using such payment details as are notified by the Provider to the Customer from time to time).
9.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:

(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

10. Provider’s confidentiality obligations

10.1 The Provider must:

(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in this Agreement;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information; and
(e) not use any of the Customer Confidential Information for any purpose other than outlined in this agreement.

10.2 Notwithstanding Clause 10.1, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors who have a legitimate need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
10.3 This Clause 10 imposes no obligations upon the Provider with respect to Customer Confidential Information that:

(a) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.

10.4 The restrictions in this Clause 10 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
10.5 The provisions of this Clause 10 shall continue in force for a period of 5 years following the termination of this Agreement, at the end of which period they will cease to have effect.

11. Data protection

11.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
11.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
11.3 The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to this Agreement:

(a) the Personal Data of data subjects falling within the categories specified in Section 1 of Schedule 3 (Data processing information) (or such other categories as may be agreed by the parties in writing); and
(b) Personal Data of the types specified in Section 2 of Schedule 3 (Data processing information) (or such other types as may be agreed by the parties in writing).

11.4 The Provider shall only process the Customer Personal Data for the purposes specified in Section 3 of Schedule 3 (Data processing information).
11.5 The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 11.
11.6 The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws), as set out in this Agreement or any other document agreed by the parties in writing.
11.7 The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
11.8 Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
11.9 The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
11.10 The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data, including those measures specified in Section 4 of Schedule 3 (Data processing information).
11.11 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 90 days in advance of any intended changes concerning the addition or replacement of any third-party processor, and if the Customer objects to any such changes before their implementation, then the Provider must not implement the changes. The Provider shall ensure that each third-party processor is subject to the same legal obligations as those imposed on the Provider by this Clause 11.
11.12 As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, the third parties, and third parties within the categories, identified in Section 5 of Schedule 3 (Data processing information).
11.13 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
11.14 The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 11.14.
11.15 The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 2 Business Days after the Provider becomes aware of the breach.
11.16 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 11 and the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 11.16, providing that no such charges shall be levied with respect to the completion by the Provider (at the reasonable request of the Customer, not more than once per calendar year) of the standard information security questionnaire of the Customer.
11.17 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law or regulation requires storage of the relevant Personal Data.
11.18 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider’s processing of Customer Personal Data with the Data Protection Laws and this Clause 11. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 11.18, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Provider of this Agreement or any security breach affecting the systems of the Provider.
11.19 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.

12. Warranties

12.1 The Provider warrants to the Customer that:

(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under this Agreement; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

12.2 The Provider warrants to the Customer that:

(a) the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
(b) the Hosted Services will be free from Hosted Services Defects;
(c) the Platform will incorporate security features reflecting the requirements of good industry practice; and
(d) where courses are provided directly to Customers, in which the Provider has expressly stated have been certified by regulatory or recognised trading, safety or other bodies (including but not limited to CPD or RoSPA), then such courses will have received the necessary certification. This warranty shall not apply to any other course, including those which the Customer subsequently edits or amends (in any way), or elects to market to third parties for resale.

12.3 Whilst the Provider uses reasonable endeavours to exclude viruses from its Website, the Provider cannot ensure nor can it guarantee or warrant such exclusion from viruses. The Customer is required to undertake regular virus checks and to insure itself against the risk of virus contamination.
12.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.
12.5 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
12.6 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:

(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Hosted Services in accordance with this Agreement.

12.7 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
12.8 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

13. Acknowledgements and warranty limitations

13.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
13.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
13.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
13.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

14. Limitations and exclusions of liability

14.1 Nothing in this Agreement will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.

14.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in this Agreement:

(a) are subject to Clause 14.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

14.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
14.4 The Provider shall not be liable to the Customer in respect of:

14.4.1 any loss of profits or anticipated savings;
14.4.2 any loss of revenue or income;
14.4.3 any loss of use or production;
14.4.4 any loss of business, contracts or opportunities;
14.4.5 any loss or corruption of any data, database or software; providing that this Clause 14.4.5 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 6.3 and Clause 6.4.
14.4.6 any special, indirect or consequential loss or damage.

14.5 The liability of the Provider to the Customer under this Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under this Agreement in the 12-month period preceding the commencement of the event or events.

15. Force Majeure Event

15.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
15.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.

15.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

16. Termination

16.1 Subject to clauses 16.2 and 16.3, either party may terminate this Agreement by giving to the other party at least 30 days’ written notice of termination, such notice not to expire before the end of the Term.
16.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
16.3 Subject to applicable law, either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement);

and clause 17.3 (b) shall not apply in these circumstances.

16.4 In addition to the above, the Provider may elect to terminate this agreement, or suspend the provision of the Services (and for the avoidance of any doubt, there shall be no entitlement to any refund during the currency of any suspension of services), in the following circumstances:

(a) the Customer undertakes any activity which may bring the reputation of the Provider into disrepute;
(b) the Customer and/or its permitted users are abusive (verbally or physically), disrespectful or impolite towards the Provider, its employees or any third party, whether in connection with the provision and receipt of the Services or otherwise.

17. Effects of termination

17.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4, 8, 9.2, 9.4, 10, 11, 16, 17, 20 and 21.
17.2 Except to the extent expressly provided otherwise in this Agreement, the termination of this Agreement shall not affect the accrued rights of either party.
17.3 Within 30 days following the termination of this Agreement for any reason:

(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,

without prejudice to the parties’ other legal rights.

18. Notices

18.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 18.2 and Section 3 of Schedule 1 (Hosted Services particulars)):

(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting, or
(c) sent by email, subject to the sender retaining clear and unambiguous sent receipts and read receipts;

providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

18.2 The Provider’s contact details for notices under this Clause 18 are as per the Proposal.
18.3 The addressee and contact details set out in Clause 18.2 and Section 3 of Schedule 1 (Hosted Services particulars) may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 18.

19. Subcontracting

19.1 Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract any of its obligations under this Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
19.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
19.3 Notwithstanding the provisions of this Clause 19 but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third-party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.

20. General

20.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
20.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
20.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
20.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
20.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
20.6 Subject to Clause 14.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
20.7 This Agreement shall be governed by and construed in accordance with English law.
20.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

21. Interpretation

21.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.

21.2 The Clause headings do not affect the interpretation of this Agreement.
21.3 References in this Agreement to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
21.4 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

SCHEDULE 1 (PARTICULARS OF SUBSCRIBED SERVICES)

1. Specification of Subscribed Services

Nimble Author

Nimble Author is a simple, intuitive online course creation tool, which comes complete with a selection of in-built page templates and a library of images included. Add content, quizzes, surveys, interactions, branding, and media with an easy-to-use drag-and-drop interface. Works equally well on desktop, tablet or mobile. With sound learning design principles built in, we’ve taken the guesswork out of creating effective elearning. Courses can be published instantly to our Nimble LMS platform or SCORM output for third party LMS platforms. Web-based so no apps to download or previous experience required.

Nimble LMS

The Nimble Learning Management System (Nimble LMS) makes it easy to keep on top of an organisation’s elearning. Enrol learners onto courses and instantly see everyone’s results using our traffic light system. Manage courses and learners at the click of a button; gain insights through detailed analytics to dive into the details or glance at the big picture – proof of training and compliance is at your fingertips. Track learner’s CPD points and reward them with brand certificates.

Totara LMS
The Totara Learning Management System (Totara LMS) provides similar functionality to Nimble LMS. This is hosted through their agent, Learning Nexus. In this instance, when Services provided by Us include utilising technology owned by Totara, the Customer should be aware of the Product Licence and Subscription Agreement available at https://totara.com/license.

Nimble Courses
Our collection of CPD-certified off-the-shelf and fully editable courses, are written by skilled experts, using our Nimble Author tool. They’ll get any elearning journey off to a great start, with courses on useful topics such as data protection, mental health, customer service and health and safety. Our library is constantly growing.

Nimble+

Nimble+ is our best value, all-inclusive package and comes complete with Nimble Author, Nimble LMS, our full library of Nimble Essentials Courses and our helpdesk support.

The Proposal will set out which of the above Services are included within each Customer contract.

SCHEDULE 2 (ACCEPTABLE USE POLICY)

1. Introduction

1.1 This acceptable use policy (the “Policy“) sets out the rules governing:

(a) the use of the website at www.nimble-elearning.com, any successor website, and the services available on that website or any successor website (the “Services“); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (“Content“).

1.2 References in this Policy to “you” are to any customer for the Services and any individual user of the Services (and “your” should be construed accordingly); and references in this Policy to “us” are to Nimble Elearning Limited (and “we” and “our” should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
1.5 Unless we have been advised (prior to your use) by the Customer who has purchased the services, that a user is below the age of 18, then You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.

2. General usage rules

2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:

(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.

2.3 You must ensure that all Content complies with the provisions of this Policy.

3. Unlawful Content

3.1 Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:

(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.

3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

4. Graphic material

4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 Content must not be pornographic or sexually explicit.

5. Factual accuracy

5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.

6. Negligent advice

6.1 Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.

7. Etiquette

7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
7.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
7.7 You must ensure that Content does not duplicate other content available through the Services.
7.8 You must ensure that Content is appropriately categorised.
7.9 You should use appropriate and informative titles for all Content.
7.10 You must at all times be courteous and polite to other users of the Services.
7.11 Prevention of Harassment: Nimble is dedicated to ensuring a safe, respectful, and inclusive workplace, free from harassment, in line with the Worker Protection (Amendment of Equality Act 2010) Act 2023. Our Worker Protection (Sexual Harassment) Policy reinforces our commitment to protecting employees from harassment, including from third parties such as clients, suppliers, and visitors. Our policy applies to all employees, contractors, and third-party individuals who interact with Nimble’s employees. It outlines measures to prevent third-party harassment and clarifies the roles and responsibilities of both employees and management in maintaining these standards. Nimble is committed to the following actions:
• Zero Tolerance
Nimble maintains a zero-tolerance policy towards any form of harassment, including harassment from third parties (such as clients, vendors, or contractors).
• Client/Third Party Communication
Nimble will inform all clients, contractors, and third parties of our commitment to a harassment-free workplace and clearly communicate our expectations of professional behaviour towards our employees.
• Response and Action
In the event of an incident, Nimble will take immediate action to support the affected employee(s) and to prevent further occurrences, which may include addressing the behaviour with the third-party and, if necessary, terminating contracts or relationships. Failure to adhere to this policy by employees or third parties may result in disciplinary actions, including termination of employment or contracts.

8. Marketing and spam

8.1 You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
8.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam – which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
8.3 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
8.4 You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, “get rich quick” schemes or similar letters, schemes or programs.
8.5 You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.

9. Regulated businesses

9.1 You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
9.2 You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.
9.3 You must not use the Services for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.

10. Monitoring

10.1 You acknowledge that we may actively monitor the Content and the use of the Services.

11. Data mining

11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.

12. Hyperlinks

12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.

13. Harmful software

13.1 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
13.2 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.