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These Terms and Conditions will govern the Education and Training Services
purchased under the applicable Statement of Work (“SOW”). The specific business
details and description of the work to be performed will be set forth in each Education
and Training Services or product SOW executed by both Parties.
- Education and Training Services.
(a) Education and Training Services (the “Services”). Learnosen.com will provide the
following Services as Customer requests: (1) instructor-led classroom, (2) self-paced
training and digital learning subscription services (3) instructor services.
- Course Materials.
(a)Intellectual Property.
(b) Grant of Copyright Rights in the Course Materials. Subject to Customer’s payment
of the applicable amounts due under the applicable SOW and to Customer’s compliance
with the SOW, Customer will own all copyright to the portion of the Course Materials
consisting solely of videos, written reports, analyses, and other working papers (other than
Learnosen.com Retained Materials), prepared and delivered by Learnosen.com to
Customer under the applicable SOW, provided that Customer will exercise its rights for
Customer’s internal business operations only and will not resell or distribute the Course
Materials to any third party.
(c) Grant of License Rights in the Course Materials. For Learnosen.com Retained
Materials and the portion of the Course Materials that consists of scripts, code, templates,
and all other materials developed by Learnosen.com in connection with the Education and
Training Services, Learnosen.com grants Customer a non-exclusive, non-transferrable,
irrevocable (except in case of breach of this Agreement or the applicable SOW) perpetual
license, without the right to sublicense, to use and copy, for Customer’s internal business
operations only (the “Course Materials License”). The Course Materials License does not
apply to (i) Customer Materials, and (ii) any other products or items licensed, or otherwise
provided, under a separate agreement. “Learnosen.com Retained Materials” means
(i) materials (other than products) developed or obtained by or for Learnosen.com
independently of the Consulting Services, and (ii) subsets or modules of the Deliverables
that by themselves provide generic technical information not unique to Customer’s business.
(d) Customer Materials. Any Customer Materials used by Learnosen.com in connection
with an applicable SOW remain Customer property. Pursuant to Customer’s intellectual
property rights in the Customer Materials, Customer grants Learnosen.com a non-
exclusive, non-transferrable right to use the Customer Materials solely for the benefit of
Customer in the performance of Education and Training Services pursuant to the applicable
SOW. Customer warrants that it has the necessary rights to provide the Customer Materials
to Learnosen.com so that Learnosen.com can access, use and modify them as necessary
for Learnosen.com’s performance of the Education and Training Services. “Customer
Materials” means any materials or technology provided to Learnosen.com by Customer in
connection with the Education and Training Services.
(e) Reservation of other Intellectual Property Rights. Each Party reserves for itself all
other Intellectual Property Rights that it has not expressly granted to the other. All rights to
Learnosen.com Retained Materials remain Learnosen.com’s sole property.
Learnosen.com will not be limited in developing, using or marketing services or products
that are similar to the Deliverables (other than those portions of the Deliverables where
ownership of the copyright has been granted to Customer) or the Consulting Services, or,
subject to Learnosen.com’s confidentiality obligations to Customer, in using the
Deliverables or performing similar Consulting Services for any other projects or parties.
General License Grant. Upon payment in full, Learnosen.com grants the Customer a non-
exclusive, non-transferrable, perpetual license, with no right to sublicense, to use the course
materials solely for the Customer’s internal business operations.
(f) Use of Course Materials. For onsite training and for classroom & live online training,
Learnosen.com will deliver the lecture and the guides for courses in an eBook format and
not as printed materials. Customer agrees that Learnosen.com may limit printing of the
eBooks to a specified number of copies. In order to use eBooks effectively, each work
station must be configured by Customer with either one 23” monitor or two 17” monitors,
one of which may be a slave monitor. Alternatively, Customer can allow each trainee to use
personal work stations or tablets (iPads or Android OS) as needed.
(g) Access to eBooks. Where applicable, Learnosen.com will deliver to Customer a list of
eBook redemption codes assigned to each trainee scheduled to attend the training, along
with instructions on how to configure their devices and download their eBooks. For onsite
training, the Customer will be required to provide the Learnosen.com onsite coordinator
listed in the order form detailing each trainee’s name, email address, company name, and
physical ship-to address at least five days prior to the scheduled start of the training. If there
is any substitution of a trainee, then a new spreadsheet with that trainee’s information (and
an email detailing which student is being replaced) must be sent to the Learnosen.com
onsite coordinator as soon as possible before the class starts. The replaced trainees will have
their eBook licenses de-activated and the new trainees will receive new redemption codes.
The new trainees will not be able to attend the training before they have installed their
eBooks. Customer acknowledges that the eBook license is assigned to an individual trainee
and cannot be re-assigned to anyone else.
(h) Exceptions. Recipient’s obligations under Section 3(b) with respect to any of Discloser’s
Confidential Information will terminate if Recipient can show by written records that this
information: (i) was already rightfully known to Recipient at the time of disclosure by
Discloser; (ii) was disclosed to Recipient by a third party who had the right to make the
disclosure without any confidentiality restrictions; (iii) is, or through no fault of Recipient
has become, generally available to the public; or (iv) was independently developed by
Recipient without access to, or use of, Discloser’s Confidential Information. In addition,
Recipient will be allowed to disclose Discloser’s Confidential information to the extent that
the disclosure is required by law or by order of a court or similar judicial or administrative
body, provided that Recipient notifies (to the extent permitted by law) Discloser of that
required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s
request and expense, in any lawful action to contest or limit the scope of that required
disclosure.
(i) Permitted Disclosure. Notwithstanding anything to the contrary, neither Party will
disclose these Terms and Conditions and an applicable SOW to any third party, without a
prior written consent of the other Party. Notwithstanding the foregoing each Party may
disclose the Confidential Information without a prior written consent of the other Party: (i)
as required by any court or other governmental body; (ii) as otherwise required by law; (iii)
to legal counsel of the Parties (iv) in confidence, to their respective accountants, banks or
financing sources and other professional advisors; (v) in connection with the enforcement of
these Terms and Conditions and the rights under an applicable SOW; (vi) in confidence, in
connection with an actual or proposed merger, acquisition, or similar transaction, or (vii) if
compelled by law, in which case the Party compelled to make the disclosure will use its best
efforts to give the other Party advance notice of the requirement.
- Confidentiality
(a) Definition. “Confidential Information” means information or materials provided by one
Party (“Discloser”) to the other Party (“Recipient”) which are in tangible form and labelled
“confidential” or the like, or, information which a reasonable person knew or should have
known to be confidential in the circumstances. The following information will be
considered Confidential Information whether or not marked or identified as confidential:
any personally identifiable information (such as names of Discloser’s customers), or the
physical address of any equipment contained in any information collected about Discloser’s
computing environment, Discloser’s business operations, pricing, discounts, source code,
product roadmaps or strategic marketing plans.
(b) Protection. Recipient may use Confidential Information of Discloser: (i) to exercise its
rights and perform its obligations under these Terms and Conditions and an applicable
SOW; or (ii) in connection with the Parties’ ongoing business relationship. Recipient will
not use any Confidential Information of Discloser for any purpose not expressly permitted
by these Terms and Conditions, and will disclose the Confidential information of Discloser
only to Recipient’s employees or contractors who have a “need to know” that Confidential
Information for purposes of an applicable SOW and who are under a duty of confidentiality
no less restrictive than Recipient’s duty under these Terms and Conditions. Recipient will
protect Discloser’s Confidential Information from unauthorized use, access, or disclosure in
the same manner as Recipient protects its own confidential or proprietary information of a
similar nature but with no less than reasonable care.
(c) Exceptions. Recipient’s obligations under Section 3(b) with respect to any of Discloser’s
Confidential Information will terminate if Recipient can show by written records that this
information: (i) was already rightfully known to Recipient at the time of disclosure by
Discloser; (ii) was disclosed to Recipient by a third party who had the right to make the
disclosure without any confidentiality restrictions; (iii) is, or through no fault of Recipient
has become, generally available to the public; or (iv) was independently developed by
Recipient without access to, or use of, Discloser’s Confidential Information. In addition,
Recipient will be allowed to disclose Discloser’s Confidential information to the extent that
the disclosure is required by law or by order of a court or similar judicial or administrative
body, provided that Recipient notifies (to the extent permitted by law) Discloser of that
required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s
request and expense, in any lawful action to contest or limit the scope of that required
disclosure.
(d) Permitted Disclosure. Notwithstanding anything to the contrary, neither Party will
disclose these Terms and Conditions and an applicable SOW to any third party, without a
prior written consent of the other Party. Notwithstanding the foregoing each Party may
disclose the Confidential Information without a prior written consent of the other Party: (i)
as required by any court or other governmental body; (ii) as otherwise required by law; (iii)
to legal counsel of the Parties (iv) in confidence, to their respective accountants, banks or
financing sources and other professional advisors; (v) in connection with the enforcement of
these Terms and Conditions and the rights under an applicable SOW; (vi) in confidence, in
connection with an actual or proposed merger, acquisition, or similar transaction, or (vii) if
compelled by law, in which case the Party compelled to make the disclosure will use its best
efforts to give the other Party advance notice of the requirement.
5. Warranties and Limitation of Liability.
(a) Learnosen.com Warranty. Learnosen.com warrants that the Services will be
performed in a workmanlike manner in accordance with the standards of the industry.
Customer must notify Learnosen.com of any alleged breach of this warranty within 10
days from the completion of the applicable Services. Learnosen.com’s entire liability and
Customer’s sole remedy for Learnosen.com’s breach of this warranty will be for
Learnosen.com to, at its option, (i) use reasonable efforts to correct that breach, or (ii)
terminate an applicable SOW and refund the portion of any fees received that correspond to
that breach.
(b) Disclaimer of Warranties. THE EXPRESS WARRANTY SET FORTH IN SECTION
4(a) ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, AND, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, LEARNOSEN.COMDISCLAIMS,
ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT AND ANY
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE REGARDING OR RELATING TO THE SERVICES, OR ANY
OTHER MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER AN
APPLICABLE SOW. LEARNOSEN.COMWILL NOT BE LIABLE FOR ANY THIRD-
PARTY SERVICES OR PRODUCTS IDENTIFIED OR REFERRED TO CUSTOMER
BY VMWARE. NO EMPLOYEE, AGENT, REPRESENTATIVE OR AFFILIATE OF
LEARNOSEN.COMHAS THE AUTHORITY TO BIND LEARNOSEN.COM TO ANY
REPRESENTATIONS OR WARRANTIES OUTSIDE OF THESE TERMS AND
CONDITIONS.
(c) Limitation of Liability.
(1) Limitation on Direct Damages. Learnosen.com’s total liability and Customer’s
sole and exclusive remedy for a claim of any nature arising out of these Terms and
Conditions or an applicable SOW, regardless of whether the claim is based on contract,
tort, strict liability, or otherwise, will be limited to proven direct damages caused by
negligence of Learnosen.com in an amount not to exceed (i) US$1,000,000, for
damage to real or tangible personal property; and (ii) the fees paid to Learnosen.com
for the Services from which claim the claim arises, for damage of any type not
identified in (i) above or otherwise excluded hereunder.
(2) Disclaimer of Liability. To the maximum extent permitted by applicable law,
neither Party will be liable for any indirect, incidental, special, punitive or
consequential damages, or any loss of profits, business opportunity, revenue, goodwill
or data, even if advised of the possibility of those damages.
(3) Limitation of Liability Exclusions. The limitations of liability in this Section 4(c)
will not apply to (i) Customer’s violation of Learnosen.com’s or its licensors’
Intellectual Property Rights or Customer’s use of the course materials or eBooks in a
manner not expressly authorized by these Terms and Conditions and an applicable
SOW; (ii) either Party’s breach of confidentiality under these Terms and Conditions
and an applicable SOW; (iii) Customer’s payment obligations under the applicable
SOW; or (iv) any liability which may not be excluded by applicable law] [For
EMEA/APAC] The limitations of liability in this Section 4(c) will not apply to: (i)
Customer’s liability for violation of Learnosen.com’s or its licensors’ Intellectual
Property Rights or use of the course materials or eBooks by Customer in a manner not
expressly authorized by these Terms and Conditions and an applicable SOW; (ii)
Learnosen.com’s indemnification obligations under these Terms and Conditions and
an applicable SOW; (iii) either Party’s liability for breaches of confidentiality under
these Terms and Conditions and an applicable SOW; (iv) Customer’s payment
obligations; (v) either Party’s liability for death or personal injury caused by its
negligence; (vi) either Party’s liability for any fraudulent pre-contractual
misrepresentations made by one party on which the other party can be shown to have
relied; or (vii) any liability which cannot be excluded by applicable law.
(4) Further Limitations. Customers may not bring a claim under these Terms and
Conditions and an applicable SOW more than eighteen (18) months after the cause of
action arises.
- Fees and Payment.
(a) Payment. Learnosen.com will provide the applicable Services for the fees described in
the SOW, plus applicable taxes and travel expenses in accordance with Learnosen.com’s
travel and expense policy, if travel is necessary. Invoicing occurs upon the completion of
the applicable Services, or approval of travel expenses, and must be paid by Customer
within thirty (30) days of the date of invoice. If Customer uses pre-purchased
Learnosen.com Consulting and Training Credits or Learning Credits (the “Credits”) as the
means of payment, then upon the completion of the Services, or travel expenses, the Credits
will be deducted from Customer’s balance. Customer is responsible for ensuring that its
purchase order (“PO”) issued to Learnosen.com for the Services reflects the pricing set
forth in the order form. In addition, Learnosen.com will invoice the Customer for any
applicable materials and expense reimbursement. Once Learnosen.com fulfills its
obligations under a PO from Customer, Learnosen.com will have no liability for any
pricing in Customer’s PO that is inconsistent with the pricing set forth in the order form.
Customer agrees that POs do not have to be signed by Customer to be valid and
enforceable. All fees paid by Customer are non-refundable.
(d) Currency. All charges and fees provided for in the applicable SOW will be in the currency
specified in the applicable SOW.
(e) Cancelling/Rescheduling Services before Commencement. No cancellations and
rescheduling because they are online downloadable formats.
- Term and Termination.
(a) Term. These Terms and Conditions takes effect on the Effective Date and will continue
until terminated by the Parties or until any incomplete SOW(s) in existence on the
termination date is completed, whichever is later.
(b) Termination for Convenience. Either Party will have the right to terminate these Terms
and Conditions at any time, without cause, by providing the other with a written notice,
which termination will become effective upon the later of (i) thirty (30) days after receipt of
the notice by the other Party or (ii) completion and payment for the Services set forth in any
SOW(s) effective on the date of receipt of the termination notice. In addition, Customer may
terminate any SOW thirty (30) days after Learnosen.com’s receipt of Customer’s written
notice.
(c) Other Termination. Either party may terminate these Terms and Conditions or an SOW if
one of the following events occurs:
(1) Termination For Breach. Notwithstanding Sections 6(c)(3) and 6(c)(6), either Party
may terminate these Terms and Conditions or an applicable SOW immediately upon
written notice if: (i) the other Party breaches any provision under these Terms and
Conditions or an applicable SOW, which is not cured within thirty (30) days after
giving written notice of that breach to the other Party; or (ii) the other Party commits a
material breach of these Terms and Conditions or an applicable SOW that cannot be
cured.
(2) Non-payment. Notwithstanding Section 6(c)(1) above, Customer’s failure to pay an
invoice when due will be sufficient cause for Learnosen.com’s termination of these
Terms and Conditions and any SOW if Customer does not cure within ten (10) days of
receipt of written notice of non-payment from Learnosen. Further, Learnosen.com may,
commencing on the date that notice is provided to Customer, suspend performance
under the SOW for the duration of any period during which Customer is delinquent in
making payment to Learnosen.com under any invoice.
(3) Confidentiality Breach. Either Party may terminate these Terms and Conditions or
an applicable SOW immediately upon issuance of a written notice to the other Party in
the event of the other Party’s breach of its confidentiality duties under these Terms and
Conditions.
(d) Effect of Termination. Any provision will survive any termination or expiration if by its
nature and context it is intended to survive, including provisions relation to payment of
outstanding fees, confidentiality, warranties and limitation of liability. Customer will be
responsible for payment to Learnosen.com for all Services rendered and expenses incurred
prior to the effective termination date. In the event of termination under Section 6(c),
Learnosen.com expressly disclaims liability for any resultant damages, delays, or any
claims of Customer and disclaims any warranties made in these Terms and Conditions or an
applicable SOW for the Services which have not been delivered as of the termination date.
8. Miscellaneous.
(e) Waiver. Failure to enforce a provision of these Terms and Conditions or an applicable
SOW will not constitute a waiver.
(f) Reference. Learnosen.com will not use Customer’s name, logo, or project description in
press releases or other marketing material without a prior written consent of Customer, and
Customer agrees that the consent will not be unreasonably withheld. Customer agrees to
allow Learnosen.com to use its name and industry in alphabetical customer listings of
Learnosen.com’s customers generally, provided that no additional project information or
other detail is used without Customer’s written consent.
(i) Entire Agreement. These Terms and Conditions and an applicable SOW contain the
entire agreement between the Parties with respect to the subject matter of these Terms and
Conditions and supersedes all previous or contemporaneous communications,
representations, proposals, commitments, understandings and agreements, whether oral or
written, between the Parties. These Terms and Conditions and an applicable SOW may be
amended only in writing signed by authorized representatives of both Parties.
Learnosen.com rejects any additional or conflicting terms and conditions on any PO
acknowledgement or other business form issued by Customer, unless expressly otherwise
agreed to by the Parties in writing.
(j) Security Clearance. Customer acknowledges that if any security resource is required for
the Services pursuant to these Terms and Conditions, Customer will issue the appropriate
security specifications and/or DD 254 to Learnosen.
(k) Learnosen.com Personnel. When, in the performance of the onsite training services,
Learnosen.com’s personnel are to be located at Customer’s site, Learnosen.com will
furnish a complete list of all personnel to be located at the Customer’s site and will be
responsible for all actions of its personnel. Learnosen.com agrees to comply with all
regulations applicable at Customer’s site, and Customer reserves the right to bar employees,
representatives or agents of Learnosen.com from Customer’s site for failure to observe such
regulations.
(i) Malicious Code. Learnosen.com specifically agrees that Learnosen.com will not
introduce malicious software into Customer’s equipment, database(s), or network(s) in the
course of providing the Services. In the event that Learnosen.com does introduce malicious
software in the course of providing the Services, Learnosen.com will work with Customer
to immediately remove the malicious software from all infected equipment, database(s) and
network(s).
Any correspondence can be sent to gerald@learnosen.com or 40 Airport Road, Warri
Nigeria.