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Terms and Conditions

THE LESSON BANK TERMS AND CONDITIONS

THESE ARE THE TERMS ON WHICH THE LESSON BANK (‘LB’) (AND ALL ITS SUBSIDUARY 'BANK RESOURCE SITES' (WHICH TRADES AS BATTLEFIELD HISTORIAN COMPANY NO.6996039) DO BUSINESS. THEY ARE DESIGNED TO SET OUT CLEARLY LB’S RESPONSIBILITIES AND YOUR RIGHTS.

OPERATIVE PROVISIONS:-

  1. INTERPRETATION

1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions” (Conditions)”.

“Contract” - means Contract as defined in conditions 2.3.

“Customer” - means the school, person, firm, entity or company whose identity and details are set out in the Order.

“Customer’s Personnel” - means such authorised personnel of the Customer specified in the Order (or as notified in writing by the Customer from time to time) who shall, on behalf of the Customer, be responsible for managing all issues relating to the performance of the Contract.

“Commencement Date” - means the commencement date set out in the Order.

“Fees” - means the total amount of fees payable by the Customer to NT as set out in the Order.

“Intellectual Property Rights” - means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including knowhow and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“The Law Bank” - means The Lesson Bank’s online learning platform which provides an interactive online education environment which consists of making available the LB’s Materials and the provision of the Services by NT. The Lesson Bank and The Law Bank trade as Battlefield Historian Ltd.

 “Materials” - means the LB’s Materials.

“LB’s Materials” - means the educational content (including materials and information including text files, pictures, sounds files, images, graphics whether static or non-static (in any digital and/or electronic format)) requested by the Customer and set out in the Order of which LB licences and makes available on the Server for the Customer and/or its Users to access and use.

“Order” - means any order made by the Customer for The Law Bank which shall (unless otherwise waived by LB) contain information including the name of Customer and its contact details; the number of subscriptions required by the Customer; the content which the Customer would like LB to subscribe to the Customer; subscription fees payable by the Customer to LB; the term of the Contract; the name and contact details of the Customer’s personnel which would manage the relationship between the Customer and LB; the estimated delivery dates; such other services which may be agreed by the Parties (e.g.creation of user names, passwords and registration of the user names and passwords onto the system) which LB will perform for the Customer; and the charges payable for such services.

“Privacy Policy” - means the privacy policy attached hereto as Schedule 1.

“Server”  - means the server and/or such other equipment used to host the Materials and which enables the Customer’s Users to access such Materials via the Software and the internet.

“Services” - means the services to be provided by LB under the Contract as set out in the Order and the services specified in conditions 5.1, 5.3, 5.4 and 5.5.

“Software” - means the various software used by LB on the Server or LB’s hardware and/or equipment to make available The Law Bank to the Customer and its Users.

“Term”  - means the Term of this Contract as set out in the Order.

“Users” - means the employees, staff and/or students of the Customer who are authorised to use The Law Bank.

2. APPLICATION OF CONDITIONS

2.1 The Customer agrees that these Conditions shall be the exclusive basis on which any Contract made between LB and the Customer is transacted and processed unless otherwise agreed in writing by an authorised representative of LB.

2.2 These Conditions shall not create any agency or partnership between the parties or any third party.

2.3 Any quotations and/or estimates given by LB shall be deemed as an ‘invitation to treat’ and not an offer. A contract (‘Contract’) is formed between the Customer and LB when (and not before):

2.3.1 LB notifies the Customer (of which such notification shall include making The Law Bank available to the Customer) that the Order has been accepted; or

2.3.2 LB sends the Customer an e-mail confirming that the Customer’s Order has been accepted.

2.4 Where the Customer’s order is placed orally e.g. on the telephone or in the event of any dispute as to the Order, LB’s version of the Order shall be deemed as the authoritative order and the Customer shall not dispute the correctness of the same.

2.5 The parties agree that the Contracts (Rights of Third Parties) Act 1999 shall not apply in any Contracts

3. LICENCE

3.1 In consideration of the Fees paid by the Customer to LB, LB grants to the Customer a non-exclusive licence to:

3.1.1 use LB’s Materials as part of the Customer’s teaching resources for the Users within the Customer’s organisation and/or establishment (which shall not include the use of the Software and/or LB’s Materials by, or for the benefit of, any person other than students, teachers or authorised personnel within the Customer’s organisation and/or establishment). Without prejudice to the generality of the foregoing, the Customer and/or Users shall be entitled to:

3.1.1.1 temporarily display on a computer terminal the LB’s Materials and adapt the LB’s materials on the computer’s display for the purposes of learning and/or teaching in classes (including the preparation for such classes) within the Customer’s organisation and/or establishment;

3.1.1.2 make paper copies and/or to adapt LB’s Materials for the purposes of learning and/or teaching classes (including the preparation for such classes) within the Customer’s organisation and/or establishment;

3.1.1.3 download the LB’s Materials onto the Users’ computer, portable hard drives, memory sticks and such other digital storage apparatus for the purposes of learning and/or teaching classes (including the preparation for such classes) within the Customer’s organisation and/or establishment;

3.1.1.4 re-transfer or re-transmit the LB’s Materials to other Users; and

3.1.1.5 adapt and incorporate the LB’s Materials into other works and/or material for the purposes of learning and/or teaching classes within the Customer’s organisation; and

3.2 The Customer may not use the LB’s Materials for any other purpose other than as specified in conditions 3.1 without the prior written consent of LB and the Customer acknowledges that additional fees may be payable on any change of use approved by LB.

3.4 Other than to the Users, the Customer has no right to sub-license or to assign the benefit or burden of the licence set out in conditions 3.1 in whole or in part, or to allow the LB’s Materials to become the subject of any charge, lien or encumbrance without the prior written consent of LB.

3.5 The Customer shall not and shall procure that its Users do not use the LB’s Materials for any purposes except those set out in conditions 3.1.

3.6 The Licence, Log In details, Password and access to the LB is granted to the licence holder only. Passwords, log in details and other registration details are not to be shared with any third party. LB grants a sole licence to all materials. If the customer shares any of these details LB reserves the right to terminate the contract and access to the Web Site without refund.

4. COMMENCEMENT AND TERM OF CONTRACT

4.1 Subject to earlier termination of the Contract pursuant to the provisions of these Conditions, the Contract shall commence on the Commencement Date set out in the Order and shall continue to be in force during the Term.

4.2 Subject to the other provisions in these Conditions, the parties shall in good faith re-negotiate a new Contract 30 days prior to the expiry of the Term.

5. SERVICES

5.1 LB shall:

5.1.1 procure the hosting of the Materials on the Server;

5.1.2 provide the Customer with the relevant web page link to access The Law Bank;

5.1.3 Where agreed between the parties, LB will create and register such usernames and passwords of the Customer’s Users for the Customer and LB may charge the Customer such fees as specified in the Order for the aforementioned services of creating and registering user names and passwords of users for the Customer;

5.1.4 (where agreed between the parties) provide the Customer with training and help notes on how to use The Law Bank;

5.2 LB warrants that it shall use reasonable care and skill to provide the Services.

5.3 LB warrants that it shall use reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

5.4 LB shall use reasonable endeavours to ensure that the Server is available all the time.

5.5 LB shall ensure that such maintenance and other actions as are reasonably required to maintain the Server in full working order shall be carried out during the Term of the Contract.

5.6 LB shall, on request by the Customer’s Personnel, as soon as it is practicable, suspend availability of the Materials and shall likewise, on request by the Customer’s Personnel, as soon as it is practicable, procure that the provision of access to the Materials is resumed following such suspensions.

6. CUSTOMER RESPONSIBILITIES

6.1 The Customer shall be responsible for the accuracy and completeness of the Order and to ensure that the Order meets the Customer’s requirements.

6.2 The Customer warrants that any personal data on the system (including the Server) complies fully with the Data Protection Act 1998 and associated legislation and hereby indemnifies LB against any infringement of such legislation (except insofar as LB is responsible for the security of the system and the Materials).

6.3 In the event of a breach and/or allegations of an infringement of conditions 6.1, and/or 6.2 above, or if LB reasonably suspects such breach and/or infringement has occurred, LB may, without giving notice to the Customer and without liability, suspend availability of the Materials or remove such Materials from the Server, pending clarification of such allegations or suspicion.

6.4 The parties shall notify each other as soon as reasonably possible after becoming aware of any third-party allegation of a breach of the provisions of conditions 6.1 and/or 6.2.

6.5 The Customer undertakes not to and shall procure that its Users will not initiate any downloading of excessive volume of Materials from and/or onto the Server such that it may impair the access to the Server nor the Server’s performance.

6.6 The Customer shall indemnify LB against any claims, proceedings, losses, liabilities, damages (including reasonable costs), charges and expenses of whatever nature arising out of or in connection with any claim or action made against LB relating to a breach of conditions 6.1 and 6.2, provided that LB will not make any admissions without the Customer’s prior written consent and subject to condition 6.3, not take any step (or omit to take any step) which would prejudice the Customer’s defence of the claim, and shall allow the Customer to conduct and/or settle all negotiations and litigation resulting from such claim. LB shall, at the request of the Customer, afford all reasonable assistance with such negotiations or litigation and shall be reimbursed by Customer for any reasonable out of pocket expenses incurred in so doing.

6.7 Subject to conditions 3.1, the Customer will take reasonable steps to ensure that its Users comply with the provisions of these Conditions and do not:

6.8.1 copy, print out or otherwise reproduce any information of materials extracted from the Server nor any material relating to any part of The Law Bank, except as permitted under these Conditions or authorised by LB in writing;

6.8.2 make available their username and password and/or any part of The Law Bank available to anyone. Where such disclosure of username and/or password occurs, the Customer shall procure that such User shall notify the Customer immediately who shall in turn forthwith notify LB immediately so that LB can take appropriate security measures; and/or

6.8.3 use The Law Bank and/or information extracted from the Server for any illegal, fraudulent or immoral purposes.

6.9 The Customer shall and shall procure that its Users shall notify the Customer who will in turn, notify LB immediately of any errors or inaccuracies in respect of any information and/or data extracted from the Server including the LB’s Materials. In this regards, the Customer shall contact LB by emailing LB at info@thelessonbank.co.uk.

6.10 Unless otherwise agreed in writing by LB, the Customer is solely responsible for configuring its computers and/or the Users’ computers in order to access The Law Bank and to provide for its own virus protection software. For the avoidance of doubt, the Customer acknowledges and shall procure that its Users acknowledge that the computers used by the Customer and/or Users must satisfy the specifications notified by LB to the Customer.

7. WITHDRAWAL OF ELECTRONIC MATERIAL

7.1 LB reserves the right at any time to withdraw the LB’s Materials and/or any parts of the LB’s Materials:

7.1.1 if LB no longer retains the right to publish such material; or

7.1.2 if in LB’s sole discretion, LB on reasonable grounds believes that such materials contain any content which infringes copyright or such intellectual property rights of third parties or is defamatory obscene unlawful or otherwise objectionable and LB shall notify the Customer of such withdrawal as soon as it is practicable.

7.2 On receipt of the notice referred to in conditions 7.1, the Customer shall, and shall procure that its Users immediately cease all distribution in any and all media of the withdrawn material and shall comply with LB’s reasonable instructions with respect to the deletion of such withdrawn material.

8. PRIVACY AND DATA PROTECTION

8.1 In the course of complying with LB’s obligations under the Contract, it is necessary for LB to collect personal data and other information relating to the Customer and its Users e.g. names, year group etc. LB is committed to ensuring that the Customer’s and its Users’ personal data and privacy are protected and that LB is compliant with the Data Protection Act 1998. In this regard, LB has put in place a Privacy Policy.

8.2 The Privacy Policy sets out:

8.2.1 the information and personal data which LB collects about the Customer and its Users;

8.2.2 what such information and personal data is used for; and

8.2.3 the safeguards which are in place.

8.3 NT may from time to time make changes to the Privacy Policy and will notify the Customer of any material changes to the Privacy Policy.

9. FEES AND PAYMENT

9.1 In consideration of LB licensing The Law Bank and providing the Services to the Customer, the Customer shall pay to LB the Fees.

9.2 Unless otherwise agreed between the parties, the Fees shall be paid prior to receipt of the LB services. For the avoidance of doubt, unless otherwise agreed between the parties, where the Customer requires additional licences for additional users during the Term, LB shall be entitled to invoice the Customer forthwith upon LB agreeing to licence such additional Users pursuant to the terms of these Conditions and such invoice shall be paid on the invoice date.

9.4 Time for payment shall be of the essence of the Contract.

9.5 All sums payable to LB under the Contract shall become due immediately on its termination, despite any other provision.

9.6 LB may, without prejudice to any other rights it may have, set off any liability of the Customer to LB against any liability of LB to the Customer.

9.7 No payment for the Fees shall be deemed to have been received until LB has received cleared funds.

10. WARRANTIES AND LIMITATION OF LIABILITY

10.1 LB warrants that The Law Bank will conform in all material respects to the brochures, marketing material produced by LB and LB’s website in respect of The Law Bank for a period of 90 days from the Commencement Date.

10.2 LB does not warrant that the use of The Law Bank and/or the Services will be uninterrupted or error-free.

10.3 The Customer accepts responsibility for the selection of The Law Bank and/or the Services to achieve its intended results.

10.4 This condition 10 sets out the entire financial liability of LB (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of (1) any breach of the Contract; (2) any use made by the Customer and/or its Users of The Law Bank and/or the Services; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

10.5 Subject to the warranties expressly contained in these conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

10.6 Nothing in these Conditions limits or excludes the liability of LB for death or personal injury resulting from negligence or for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by LB.

10.7 Subject to condition 10.6, LB shall not be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss of corruption of data or information, any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

10.8 Subject to conditions 10.6 and 10.7, LB’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the sum insured where LB is insured and the Fees specified in the relevant Order in all other cases.

11. INTELLECTUAL PROPERTY RIGHTS

11.1 As between the parties, the Customer acknowledges that SmartdeCat own all Intellectual Property Rights in the Software,  and LB owns all Intellectual Property Rights in LB’s Materials and the Services. Except as expressly stated in these Conditions, these Conditions do not grant the Customer any rights to, or in any Intellectual Property Rights or any other rights or licences in respect of the Software, LB’s Materials and/or Services.

11.2 If the Customer utilises The Law Bank for any other purpose other than those contemplated in condition 3, the licence to use The Law Bank granted pursuant to condition 3.1 is automatically terminated. Further use of the Software shall constitute Intellectual Property Rights infringement.

11.3 LB warrants to the best of its knowledge that the Intellectual Property Rights in the Software, Services and LB’s Material would not infringe the Intellectual Property Rights of any third party.

11.4 With regard to Intellectual Property Rights infringement in respect of the Software, Services and/or LB’s Materials, each party shall promptly give notice in writing to the other in the event that it becomes aware of any infringement or suspected infringement of the Intellectual Property Rights in or relating to the same.

11.5 In the case of any matter falling within condition 11.4, LB shall:

11.5.1 in its absolute discretion, determine what action if any shall be taken in respect of the matter;

11.5.2 have sole control over and shall conduct any action as it shall deem necessary; and

11.5.3 pay all costs in connection with that action and shall be entitled to all damages and other sums which may be paid or awarded as a result of any such action where LB decides to take control over and/or conduct any action but not otherwise and the Customer shall at LB’s cost provide all such assistance to LB as LB may request.

12. TERMINATION

12.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other if:

12.1.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

12.1.2 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

12.1.3 is unable to pay its debts or enters into compulsory of voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of the relevant party under the Contract) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed of its assets or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the party giving notice means that the other may be unable to pay its debts.

12.2 On termination of the Contract for any reason:

12.2.1 the Customer shall immediately pay to LB all of LB’s outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted, LB may submit an invoice, which shall be payable immediately on receipt; and

12.2.2 (where applicable) the Customer shall, return and/or destroy all copies of LB’s Materials as may be advised by LB to the Customer. If the Customer fails to do so, LB may enter the Customer’s premises and take possession of or delete them. Notwithstanding the foregoing, the Customer will be able to access the Historical Data for the sole purpose of viewing such Historical Data for a reasonable period of time of no less than 30 days.

12.3 The accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

12.4 On termination of the Contract (however arising), conditions 6, 7, 9, 10, 11, 12 and 14 shall survive and continue in full force and effect.

13. FORCE MAJEURE

LB shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of LB or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

14. CONFIDENTIALITY

14.1 Both parties shall keep in strict confidence all information which are of a confidential nature and have been disclosed by one party to the other party and shall procure that the receiving party’s employees, agents, consultants or subcontractors keep in strict confidence all such information other than for the purposes of performing its obligations under the Contract.

14.2 The obligations set out in condition 14.1 shall not apply to confidential information that the receiving party can demonstrate is or has become publicly known other than through breach of this condition 14, was in the possession of the receiving party prior to disclosure by the other party, was received by the receiving party from an independent third party who has full right of disclosure, or was independently developed by the receiving party or was required to be disclosed by a governmental authority, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.

14.3 The parties agree that LB shall be entitled to use the Customer’s name and trade mark for marketing and promotional purposes.

15. MAINTENANCE

15.1 Where the Customer and/or the Customer’s users are unable to access The Law Bank, the Customer shall first ascertain whether the inability to access The Law Bank is caused by a failure on the part of the Server or LB; or the Customer’s and/or its Users’ internet service provider and/or equipment. Where fault lies with the Server and/or LB, the Customer Personnel shall contact LB immediately using the following details:

Email address: info@thelessonbank.co,uk

Telephone Number: 01379 588248

15.2 Upon receiving the Customer’s report, LB shall use reasonable endeavours to resolve and rectify the problem to allow the Customer and its users to access The Law Bank.

15.3 Where it is subsequently established that fault does not lie with the Server or LB but with the Customer’s and/or its Users’ internet service provider and/or equipment, LB reserves the right to charge the Customer such reasonable cost as LB may have incurred.

16. NOTICES

16.1 All notices to be given under the Contract shall be in writing and shall either be delivered personally or sent by first class pre-paid post or facsimile transmission and shall be deemed duly served:

16.1.1 in the case of a notice delivered personally, at the time the same is left at the address of, or handed to a representative of, the party to be served;

16.1.2 in the case of a notice sent by first class pre-paid post, two clear business days after the date of despatch; and

16.1.3 in the case of a facsimile transmission, if sent during normal business hours then at the time of transmission and if sent outside normal business hours then on the next following business day, provided that a confirmatory copy is sent by first class pre-paid post or by hand by the end of the next business day.

16.2 Each notice shall be addressed to the address of the party concerned set out at the head of this Agreement or to such other address as may be notified in writing for this purpose from time to time.

17. GENERAL PROVISIONS

17.1 The Customer shall not, without the prior written consent of LB, assign, transfer, charge, mortgage, subcontract or deal in any manner with all or any of its rights or obligations under the Contract.

17.2 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Nothing in this condition shall limit or exclude any liability for fraud.

17.3 A variation of the Contract shall be in writing and signed by or on behalf of both parties to the Contract.

17.4 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

17.5 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

17.6 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

17.7 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

18. GOVERNING LAW AND JURISDICTION

18.1 This Contract and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.

18.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract.

18.3 Nothing in these Conditions shall limit the right of LB to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Battlefield Historian Ltd registered in United Kingdom 6996039. Registered address : 4 The Laurels, Fressingfield, Eye, Suffolk, IP21 5NZ

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