Master Terms and Conditions for Use – The Learning Bar (Effective as of September 29, 2020)
These terms and conditions (the “Terms & Conditions”) together with any applicable Customer Order Form and Schedules attached thereto, shall apply to the provision of Services, as defined herein, by The Learning Bar Inc. (“TLB”, “we” or “us”), to you (“you”, or “Customer”) (together with TLB, the “Parties” and each, a “Party”), (the “Agreement”).
Any capitalized terms not defined herein are as defined in the applicable Customer Order Form or Schedule.
Note: this Agreement includes provisions that limit the liability of TLB. Further, you understand and agree that no particular outcome or result is guaranteed with respect to any End User, Participant, Student, or otherwise through your use of the Services, and that your use of the Services is for educational purposes only.
Modifications to the Terms & Conditions
We reserve the right in our sole discretion to revise and update these Terms & Conditions from time to time. Any and all such modifications are effective immediately upon posting or as of the date indicated in the notice and apply to all access to and continued use of the Services. Customer agrees to periodically review the Terms & Conditions in order to be aware of any such modifications and Customer’s continued use shall be deemed acceptance of these.
The information and material available through our Services may be changed, withdrawn or terminated at any time in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services are restricted to users or unavailable at any time or for any period.
“Administrative Users” shall mean the employees of the Customer assigned by the Customer to issue passwords and user-names to its End-Users;
“Contract Fees” shall mean all fees payable by the Customer under a Customer Order Form;
“Customer Indemnitees” shall mean the Customer, its trustees, superintendents, principals, education directors, other employees, consultants, agents, students, parents and volunteers;
“Customer Order Form” shall mean the order form signed by Customer, which outlines payment and agreement terms, including Agreement Start Date and Agreement End Date, quotation details relating to provision of certain Services by TLB to Customer, and includes any attached Schedule;
“Data” shall mean the responses, measures and assessments of End-Users and Participants;
“End-Users” shall mean the persons to whom the Customer issues passwords and user-names in order that such persons might access TLB’s Services;
“Losses” shall mean actions, causes of action, demands, claims, liabilities, losses, damages, costs and expenses;
“OCAP®” The First Nations principles of OCAP® establish how First Nations’ data and information will be collected, protected, used, or shared. Standing for ownership, control, access, and possession, OCAP® is a tool to support strong information governance on the path to First Nations data sovereignty.
“Participants” shall mean all Customer students assessed using the Services;
“Personal Information” means any information that may identify an individual, or that in combination with other, readily available information, may identify and individual, whether or not such information is available to the public;
“PIPEDA” means the Personal Information Protection and Electronic Documents Act (Canada) which applies to the collection, use or disclosure of personal information in the course of commercial activity;
“Product Websites” means any web software application or website providing Customer access to the Services, including the Early Years Evaluation, OurSCHOOL Survey, Confident Learners, and any similar service provided by TLB;
“Project Deliverables” shall mean all deliverables relating to the Services, as outlined in Schedules attached to the Customer Order Form;
“Professional Services” means courses, training sessions and assessments geared at professional learning and offered by TLB, and may be accessed through the Product Websites;
“Reports” shall mean reports to the Customer generated by TLB through its summarization and analysis of Data, and includes, without limitation, Early Years Evaluation Reports, Confident Learners Reports, and OurSCHOOL reports;
“Schedule” shall mean any schedule to the Customer Order Form, including those relating to Project Deliverables, Customer obligations, applicable policies and Survey questions;
“Services” means the Products and services provided by TLB to the Customer (and, if applicable, as specified in a Customer Order Form), which can include access to Product Websites and the provision of related services (including Project Deliverables relating to the Early Years Evaluation, Confident Learners and OurSCHOOL Survey Suite), provision of and access to Professional Services, and any other product or service made available by TLB to the Customer through the Product Websites, the e-commerce storefront, the website, or otherwise;
“Student” shall mean a student who is assessed using the Services (a Participant);
“TLB Indemnitees” shall mean TLB, its directors, officers, employees, consultants and agents;
“TLB Intellectual Property” shall have the meaning attributed to such term in the section Ownership Rights;
“Use” shall mean copy, transmit, record, reproduce, distribute, display, publish, disseminate, manipulate, disclose, adapt, modify and/or use;
“Work” means the provision of the Project Deliverables and all related services by TLB required under this Agreement, as specified in the Customer Order Form.
TERM AND TERMINATION
Term of Agreement
The term of this Agreement shall be as specified in the applicable Customer Order Form, and if there is no applicable Customer Order Form, then the Term shall be the period of time Services are provided to Customer. This Agreement comes into effect on the Start Date and shall continue until the End Date (the “Term”) unless earlier terminated pursuant to these Terms & Conditions.
Except as otherwise specified in the applicable Customer Order Form, or where the Term has expired and Services are no longer provided to Customer, this Agreement will automatically renew for additional one-year terms, unless either Party gives the other written notice (email acceptable) at least 90 days before the end of the relevant agreement term.
Except as expressly provided in the applicable Customer Order Form, renewal of promotional or one-time priced agreements will be at TLB’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which volume or length for any Services has decreased from the prior Term will result in re-pricing at renewal without regard to the prior Term’s per-unit pricing.
This Agreement may be terminated:
- at any time, upon the mutual agreement in writing of the Parties;
- by the Customer, upon thirty (30) days’ prior written notice to TLB where, in the opinion of the Customer, the Services are not being satisfactorily performed by TLB in conformity with this Agreement (and the applicable Customer Order Form) and such nonconformity was not rectified by TLB within such thirty (30) day period; or
- by the Customer, effective immediately upon written notice to TLB, if TLB is dissolved, winds-up, a receiver, trustee or bankruptcy officer is appointed to take charge of all or any substantial part of its business or property; it becomes an insolvent person or commits an act of bankruptcy under applicable laws; or a petition is filed or action taken with respect to it for reorganization or arrangement under applicable laws;
- by the Customer, without cause, effective immediately upon written notice to TLB, and subject to the Early Termination fee of 50% of the full remaining contract fees owing for all subsequent years until the End Date (and in accordance with the Customer Order Form);
- and upon termination of this Agreement, TLB forthwith shall cease to perform any further Services and shall deliver and transfer to the Customer all titles, interests (including all intellectual property rights), free and clear of claims, liens, charges, encumbrances and security interests, to any unfinished Work that was not previously delivered and accepted by the Customer prior to termination.
OBLIGATIONS, REPRESENTATIONS AND WARRANTIES OF TLB
Obligations of TLB
- have control of the Services and shall direct and supervise the Work so as to ensure conformity with TLB’s obligations under this Agreement;
- use due care in the performance of the Services to ensure that no person is injured, no property is damaged or lost and no rights are infringed;
- in providing the Services, comply with all applicable policies and procedures of the Customer as set forth on the Customer’s website or as otherwise notified by the Customer; and
- assume control and responsibility for acts and omissions hereunder of its employees, consultants, contractors, agents and those for whom it is responsible at law.
Representations and Warranties with Respect to Provision of Services
TLB represents and warrants to the Customer throughout the Term that:
- TLB possesses the necessary skills, expertise and experience to provide the Services in accordance with this Agreement; and
- at all times in the provision of Services, TLB shall comply with all applicable laws and regulations.
Warranties with Respect to Confidentiality of Data
During the Term and at all times thereafter, TLB warrants to the Customer that it:
- shall use and treat all Personal Information concerning Participants received as confidential and in accordance with PIPEDA and other applicable privacy legislation, and shall not collect or use any Personal Information concerning Participants unless and until the Customer, on TLB’s behalf, has received the prior written consent of the Participants, or the Participants’ parents/legal guardians, as may be required;
- shall treat as confidential Data and all Customer related documents and materials not in the public domain acquired by it or to which access has been given to it in the course of or incidental to the provision of the Services, and shall comply with all applicable privacy legislation in relation thereto;
- unless required by law, shall not disclose nor permit to be disclosed to any person or entity any such Personal Information, Data or Customer related documents or materials not in the public domain without first obtaining written permission from the Customer, and in respect of Personal Information, applicable consents to disclose under PIPEDA;
- and acknowledges and agrees that the Customer and the other Customer Indemnitees shall have no liability of any sort with respect to any Losses arising out of or related to any failure of TLB to comply with the foregoing, save and except to the extent arising from the negligence or willful default of the Customer.
OBLIGATIONS, REPRESENTATIONS AND WARRANTIES OF CUSTOMER
Obligations of Customer
- is responsible for maintaining the confidentiality of the Customer’s account designation information and passwords issued to it by TLB;
- is responsible for all Customer obligations under this Agreement (and as outlined in any applicable Schedule) in respect of issued passwords and accounts and, without limiting the generality of this Subsection, shall not provide a password or account to any Student or permit any Student to become an End-User or Participant with respect to whom the Customer has not obtained the prior written consent of such Student’s parents/legal guardians or the prior written consent of such Student as may be required;
- shall be responsible for performance of its obligations as set out in all applicable Schedules, including any outlining Customer Responsibilities;
- shall immediately notify TLB of any unauthorized use of its account or passwords, or any other breaches of privacy or security relating to use of the Services, or breach of the Customer’s obligations in each case as known or reasonably suspected by the Customer;
- subject to any of TLB’s obligations herein, is responsible for all activities of the Customer’s employees and personnel in connection with the Services;
- acknowledges and agrees that TLB and other TLB Indemnitees shall have no liability of any sort with respect to any Losses arising out of or related to any failure by the Customer to comply with the foregoing, save and except to the extent arising from the negligence or willful default of TLB.
Warranties with Respect to Confidentiality of Data – Customer
During the Term of this Agreement, and at all times thereafter, the Customer warrants to TLB that, subject to its obligations under PIPEDA, it shall treat as confidential all Personal Information, Data, Reports, documents and materials not in the public domain acquired by it or to which access has been given to it pursuant to this Agreement, and shall comply with all applicable privacy legislation in relation thereto.
Authority to Collect and Use Data
The Customer covenants with TLB that it will use reasonable commercial efforts to obtain all third-party consents required by law (including under PIPEDA) in respect of the use by TLB of Personal Information. The Customer shall inform TLB if any such consents are not obtained in relation to any individual, and Customer shall not allow such individual to be an End-User or a Participant, as the case may be, and any Personal Information relating to such individual shall not be included in the Data or otherwise disclosed or used pursuant to this Agreement.
Protection of Participants’ and End-Users’ Privacy
In accordance with these Terms & Conditions, the Customer acknowledges and agrees that it shall have the right to view Data or Data Files in the forms specified in applicable Schedules relating to Project Deliverables, and so long as such right to view is in compliance with applicable laws. To the extent that the Customer obtains access to Data through Reports or otherwise, the Customer shall be responsible to ensure that any Personal Information contained therein is maintained in accordance with these Terms & Conditions and applicable privacy laws.
Use of Data and Customer Reports
The Customer shall not Use, or permit any employee or agent of the Customer to Use Data or the Customer Reports to rank order the performance of any school, school boards or districts, teachers or any of the Customer’s employees. No part of the Data File shall be included or placed in any employment records or personnel files of the Customer, and the Customer shall not base any performance evaluation or review of any person relying solely on the Data.
Payment of Contract Fees
In consideration for TLB providing the Services to the Customer, the Customer shall pay to TLB the Contract Fees, together with any additional amounts that may be agreed to in writing or as otherwise provided herein. All payments are due upon signing of the Customer Order From and receipt of invoice, as outlined in the Customer Order Form. Any Customer who has tax exemption will provide sufficient documentation to substantiate the exemption.
Payment for Services (including Services provided under a Customer Order Form), purchased through the TLB e-Commerce storefront must be made using PayPal or Shopify Payments, which is set up to accept all major payment methods. Other payment methods are as agreed between the Parties, and as specified on a Customer Order Form.
After full payment has been confirmed via the e-Commerce storefront, TLB will provide access and next steps to initiate implementation of the Work.
Payment may also come via an invoice issued from firstname.lastname@example.org, If the invoice is not paid within 30 days of issue, TLB reserves the right to immediately cease Work, and revoke the Customer’s Product Websites access.
Reimbursement of Expenses
The Customer shall reimburse TLB for all reasonable out-of-pocket expenses including travel to provide the Services if prior written permission to incur each expense was obtained from the Customer and TLB provides receipts or supporting documentation satisfactory to the Customer, failing which the expense shall be the sole responsibility of TLB.
TLB reserves the right to increase fees on an annual basis with pricing notices being issued ninety (90) days prior to the start of the school year.
The pricing adjustment, if required, will be no greater than 5% per year, and will take effect starting with the first payment date following the pricing notice.
TLB continues to invest to improve our products and services; however, we cannot control all costs. Every effort will be made to keep pricing adjustments to a minimum for all customers.
Any discount provided to the Customer is applicable only to the initial Term detailed herein, unless otherwise expressly agreed by the Parties in writing, and will not be applied to any subsequent Term.
Any discounts applied to a previous agreement between the Parties may not apply to a renewal, including to any automatic renewals.
Purchase of TLB Products
All e-Commerce product purchases (including Family Activity Cards) (each, a “Product”) are processed through “store.thelearningbar.com”, using PayPal or Shopify Payments. No cancellations, returns or refunds are possible once payment has been processed.
If any Product arrives damaged (and damage occurred in transit or prior to transit), TLB will send the Customer a replacement Product with satisfactory proof of purchase and photographic evidence of damage. The Customer is responsible for all shipping and courier charges.
ACCOUNT USE AND SECURITY
We reserve the right at any time and from time to time, to disable or terminate your account, any username, password, or other identifier, whether chosen by you or provided by us to access our Services, in our sole discretion for any or no reason, including any violation of any provision of these Terms & Conditions.
You are prohibited from attempting to circumvent and from violating the security of the Services including without limitation: (a) accessing content and data that is not intended for you; (b) attempting to breach or breaching the security and/or authentication measures which are not authorized; (c) restrict disrupt or disable service to users, hosts, servers or networks; (d) illicitly reproducing TCP/IP packet header; (e) disrupting network services and otherwise disrupting TLB’s ability to monitor the Services; (f) use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material on the Services; (g) introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful; (h) attack the Services via a denial-of-service attack, distributed denial-of-service attack, flooding, mailbombing or crashing; and (i) otherwise attempt to interfere with the proper operation of the Services.
USE AND OWNERSHIP RIGHTS
TLB Intellectual Property
The Customer acknowledges that TLB owns proprietary information under trademark and has copyright and other intellectual property rights with respect to its name, logos, products, product names, graphics, texts, photographs, models, manuals, assessment materials, materials, training materials, computer software, data storage mechanisms, interfaces, statistical methodologies, databases and processes (“TLB Intellectual Property”). The Customer shall not Use or modify the TLB Intellectual Property for any purpose other than as expressly set forth in this Agreement unless expressly authorized in writing by TLB. The Customer shall not Use any TLB Intellectual Property for any purpose that may be competitive to TLB.
Ownership of Services
The Customer acknowledges and agrees that nothing in this Agreement grants to the Customer any right, title or interest in any of the Services. In consideration of payment of the Contract Fees, TLB grants to the Customer for the Term of this Agreement a limited, revocable, non-exclusive and non-transferable licence to use the Services in accordance with this Agreement (and any applicable Customer Order Form) (the “License”). Upon the expiration or termination of this Agreement, the License and all associated rights will immediately and automatically cease.
Ownership of Survey Questions and Assessment Items
The Customer acknowledges that the survey and assessment questions are the Intellectual Property of TLB and agrees that it shall not Use the survey and assessment questions for any purpose except in relation to and as part of the Reports.
Ownership of Customer Survey Questions
TLB acknowledges and agrees that Customer Survey Questions, (meaning survey questions and other content developed solely by the Customer), are the sole property of the Customer and may be used by the Customer in any manner not inconsistent with this Agreement.
Ownership of Data
All Data shall be the sole property of the Customer (and where applicable, in accordance with the principles of the OCAP® ethics code). Notwithstanding its ownership of the Data, the Customer acknowledges that it shall only view Data inputted through the Services, and shall only have possession of and use Reports, in accordance with these Terms & Conditions, and the applicable Project Deliverable Schedule.
Use of Data by TLB
The Customer hereby grants to TLB the non-exclusive, non-transferable and revocable license to Use the Data:
- to generate Reports;
- for the development of Canadian tables of aggregate data for establishing norms of survey measures and virtual (replica) schools for comparison;
- for the development of new survey questions;
- for the writing of research papers; and/or
- for the disseminating of general information about TLB’s Services;
provided that TLB at all times in its use of the Data complies with its obligations under this Agreement as to confidentiality and compliance with applicable privacy laws. No other use shall be made of the Data by TLB without the prior written permission of the Customer.
Ownership of Reports
The Customer acknowledges and agrees that TLB is not responsible for any Customer Survey Questions, or the Data inputted by Customer, through Customer’s use of the Services (the “Inputted Data”), and does not guarantee or provide any warranty with respect to the accuracy, integrity, quality or substance of the Customer Survey Questions or any Inputted Data.
Disclaimer of Warranties
You understand and agree that your use of the Services is at your own risk. Further, you understand and agree that no particular outcome or result is guaranteed with respect to any Participant, Student, or otherwise through your use of the Services, and that use of the Services is for educational purposes only.
The Services are provided on an “as is” and “as available” basis, without any warranties of any kind, either express or implied including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. The foregoing does not affect any warranties that cannot be excluded or limited under applicable law.
Neither TLB nor any affiliates nor their respective directors, officers, employees, agents or service providers makes any warranty, representation or endorsement with respect to the completeness, security, reliability, suitability, accuracy, currency or availability of the Services. Without limiting the foregoing, neither TLB nor any affiliates nor their respective directors, officers, employees, agents or service providers represents or warrants that the Services will be accurate, reliable, error-free, or uninterrupted, that defects will be corrected, that our site or the server that makes the Services available are free of viruses or other harmful components.
We cannot and do not guarantee or warrant that files or data available for downloading from the internet, TLB’s Learning Management System (LMS), the Product Websites and/or Services will be free of viruses or other destructive code. You are solely and entirely responsible for your use of the Services and your computer, internet and data security. To the fullest extent provided by law, we will not be liable for any loss or damage caused by denial-of-service attack, distributed denial-of-service attack, overloading, flooding, mailbombing or crashing, viruses, trojan horses, worms, logic bombs, or other technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of the websites or any services or items found or attained through the websites or to your downloading of any material posted on it, or on any website linked to it.
Limitation on Liability
Under no circumstance will TLB, its affiliates and their respective directors, officers, employees, agents, or service providers be liable for negligence, gross negligence, negligent misrepresentation, fundamental breach, damages of any kind, under any legal theory, including any direct, indirect, special, incidental, consequential, or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract, breach of privacy or otherwise, even if the party was allegedly advised or had reason to know, arising out of or in connection with your use, or inability to use, or reliance on, the Services, or otherwise arising from this Agreement.
The Customer hereby agrees to defend, indemnify and hold harmless the TLB Indemnitees from and against all liability, claims, demands, losses, fees (including reasonable lawyers’ fees) or damages caused, or alleged to be caused, in whole or in part by the negligence of the Customer or otherwise, or for the refusal or omission to act on any information provided by the Participants in a Survey, or in any way relating to a breach of this Agreement; and further agrees that if, despite this indemnification and waiver of liability and assumption of risk, anyone, including an Participant or Administrative User or other person, makes a claim against TLB or its shareholders, directors, officers, employees or agents, the Customer will indemnify, save, and hold harmless each of TLB or its shareholders, directors, officers, employees or agents, from any litigation expenses, legal fees on a solicitor client basis, loss, liability, damages, or costs which may be incurred as the result of such claim.
For clarity, and without limiting the indemnity obligations of the Customer under this Agreement, the Customer shall be responsible for any injury to or deaths of persons, damage to or loss of property, or infringement of third party proprietary or intellectual property rights caused by or related to the breach of any obligation, warranty or covenant of the Customer in this Agreement, and the Customer shall indemnify and save harmless the TLB Indemnitees from and against any Losses arising therefrom.
The Customer agrees to indemnify and hold harmless TLB from and against any and all Losses suffered by TLB arising from any inaccurate, offensive, indecent or objectionable Inputted Data, or with respect to any Customer Survey Questions.
The Customer shall be liable for and shall indemnify and save harmless the TLB Indemnitees from any Losses resulting from any unauthorized disclosure, whether intentional, inadvertent or accidental, of any Personal Information by or through the Customer.
The Customer shall indemnify the TLB Indemnitees and settle or defend, at its expense, or pay all damages, costs, awards, legal fees, fines and other expenses, resulting from any proceeding, action or claim and any Losses against or incurred by any TLB Indemnitee resulting from any such disclosure of Personal Information. TLB shall forthwith provide notice to the Customer of any such proceeding, action or claim of which it becomes aware.
Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, understandings and negotiations, whether written or oral.
Currency. All dollar amounts referred to in these Terms & Conditions (and any applicable Customer Order Form) are expressed in Canadian funds.
Governing Law. This Agreement shall be interpreted and enforced in accordance with, and the rights and obligations of the parties shall be governed by, the laws of New Brunswick and the applicable federal laws of Canada. Any action or proceeding arising out of or relating to the Product Websites and under these Terms and Conditions will be instituted in the courts of the province of New Brunswick and/or the Federal Court of Canada sitting in Fredericton, New Brunswick, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding. You waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue of such courts.
Force Majeure. In no event shall TLB or Customer be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, pandemic or epidemic events, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that both TLB and Customer shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under the circumstances.
Future Considerations. This Agreement shall enure to the benefit of and be binding upon the Parties hereto and their respective successors.
Severability. If any provision of this Agreement is held by competent authority to be invalid, illegal or unenforceable for any reason, the remaining provisions of this Agreement shall continue in full force so long as they express the intent of the parties. If the intent of either party cannot be preserved, this Agreement shall be either renegotiated or terminated by the parties.
Non-Waiver. No waiver of the application of any provision of this Agreement shall be binding upon a party unless that party has consented thereto in a written waiver executed by that party. No waiver by a party of any provision of this Agreement shall be deemed to or will constitute a waiver of any other provision hereof, nor will a waiver constitute a continuing waiver, unless expressly provided in a written waiver executed by that party.
Reference, press release, logo, case studies. Subject to prior approval of Customer, Customer agrees to be a reference, referenced in press releases, or case studies prepared by TLB. In connection with such activity, TLB may also use and display Customer’s trademarks, service marks, and/or logos in TLB’s Press Materials.
If you have any questions concerning the Services or this Agreement, please contact us by visiting the Contact Us section of our website.
Contracting entity: The Learning Bar Inc.
200-527 Queen St., Fredericton, NB E3B 1B8