TRAINING POST TERMS OF SERVICE

IMPORTANT - PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE ACCESSING OR ATTEMPTING TO ACCESS TRAINING POST OR ANY RELATED SERVICES: 

These Terms of Service (“Agreement”) constitute a legal agreement between you, or the company (or other legal entity) you represent and on whose behalf you are authorised to act (whether that company, or other legal entity, is a provider or client organisation) (“you” or “your”) and Can Studios Limited of 15 South Street, Park Hill, Sheffield, England, S2 5QX (“us”, “our” or “we”) for access to and use of Training Post.

By accepting this Agreement you agree to the terms of this Agreement, which will bind you, or the company (or other legal entity) you represent and on whose behalf you represent that you are authorised to act (in which case “you” refers to such company or other legal entity).  If you do not have such authority or you do not agree to all the terms and conditions of this Agreement, you must not accept this Agreement, and you will not have any right to access or use Training Post. The terms of this Agreement include limitations on our liability, including in Condition 6 and Condition 7.

You should print a copy of this Agreement for future reference.

We may revise the terms of this Agreement at any time. Please check the terms of this Agreement regularly to take notice of any changes we make, as they are binding on you (for example, if you click a box indicating your acceptance after being notified of the updated Agreement). If you do not agree to and accept the terms of the updated Agreement you will not be permitted to continue to access Training Post.

These Terms of Service are structured as follows with the provisions in each Part applying as explained:

-      Part 1: Terms that apply to all users. Apply to all users, whether you are a Learner, Provider, Provider User, Client, Organisation Owner, Manager, Reporter or Learner (each as defined in Condition 1). In addition, one or more of the following Parts will also apply depending on whether you are an Organisation Owner or Provider (each as defined in Condition 1).

-      Part 2: Payment Terms that apply (if applicable) where we are taking payment from you of the Subscription Fees which entitle you (and your Users) to access Training Post. If you are granted access to Training Post via one of our Providers, the terms applying to your payment obligations to the Provider will be contained within your agreement with that Provider.

-      Part 3: Terms that to Providers. Apply to all customers that act as a Provider (as defined in Condition 1) of Training Post.

Part 1

Terms that apply to all Users

1. definitions used in this agreement

   In this Agreement:

   “Client”	means a customer of ours or a customer of a Provider, as the case may be.
   “Client Portal” or “Client Organisation”	means an LMS instance created by us or a Provider on the Platform through which the Client’s Learners, Managers and/or Organisation Owners will access Training Post. The Plan specifies the maximum number of Client Portals a Provider may create.
   “Confidential Information”	means all proprietary and/or confidential information that is disclosed or made available by a party to the other party: a) whether orally or in writing, that is either clearly labelled as such or otherwise identified as confidential, and  b) all information relating to Training Post and our customer and prospect information, whether or not otherwise designated as confidential.
   “Data Protection Legislation”	all: a) applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and b) other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
   “Intellectual Property Rights”	patents, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
   “Learner”	means an authorised user of Training Post registered to an individual Seat authorising that user to access and use Training Post via the Platform or a Client Portal to launch courses and view their own progress.
   “Manager”	means an authorised user of a Provider or Client with the authority access and use Training Post via a Client Portal to edit and report on some or all Users in that Client Organisation.
   “Order Form”	the documents (whether in written of electronic form) for placing your order for subscription to a Plan for Training Post entered into between you and us from time to time.
   “Organisation Owner”	means a suitably qualified and authorised user of a Client designated by the Client as having the authority and responsibility to act on behalf of and bind that Client.
   “Plan”	means the Training Post plan that you have chosen to subscribe to, as set out in the Order Form.
   “Platform”	means any domain and secure access (https) assigned or designated by us to a Provider, as modified or changed by us from time to time, through which the Provider, its Users and Clients’ Users will access Training Post (including via a Client Portal).
   “Provider”	means our customer who is a course provider and who we may permit to grant Seats giving access to Training Post to their customers’ either via the Platform or a Client Portal.
   “Provider Dashboard”	means the dashboard provided by us for the Provider enabling the Provider to manage and create Client Organisations, upload courses to share across Client Organisations, and see and limit Clients and Seats, control branding and messaging across their Clients.
   “Provider User”	means Provider’s employee, contractor, agent, or any other individual authorised by the Provider to access and use Training Post. Provider is responsible for Provider’s Users’ compliance with these this Agreement.
   “Reporter”	means an authorised user of a Provider or Client with the authority to access and use Training Post via a Client Portal to report on some or all Users in that Client Organisation.
   “Seats”	means the user subscriptions purchased from us and assigned to you permitting access to and use of Training Post by individual Users.
   “Subscription Fees”	means the fees payable to us for the Plan to which you have subscribed as set out in the Order Form, or where you are a Provider the fees payable to us for each Seat assigned by you.
   “Training Post”	means: the Training Post Learning Management System and related services provided by us, including all Platforms, Client Portals, Provider Dashboards and URLs (“LMS”);  all material that we incorporate into Training Post including all information, data, text, messages, software, source code, sound, music, video, photographs, graphics, images, tags, appearance, look and feel, and all other elements, content and materials that we incorporate into Training Post (“Training Post Content”); and the associated documentation relating to the LMS (“Documents”).
   “User”	means any individual user of Training Post, who may be acting as a Provider User, an authorised user of a Client, an Organisation Owner, a Manager, Reporter or Learner.
   “User Content”	means all material that a User provides, posts, disseminates, distributes, uploads, inputs, transmits or submits through Training Post including all information, data, text, messages, posts, software, sound, music, video, photographs, graphics, images, links and any other content and materials.

   
   

2. ACCESS TO TRAINING POST
   1. Subject to compliance with this Agreement, we provide access to and use of Training Post on the basis of this Agreement and as set forth in the Plan to which you are subscribed. We do not sell Training Post to you. We remain the owners of the LMS, Training Post Content and Documents (excluding User Content) at all times.
   2. In consideration of payment by you of the Subscription Fees (if applicable) and you agreeing to abide by the terms of this Agreement, we grant to you a non-exclusive, non-transferable licence to access and use Training Post on the terms of this Agreement solely to the extent set out it and permitted by your Plan during the applicable Initial Term and any Extended Term.
   3. You may access and use Training Post only:
      1. in accordance with and to the extent permitted by your Plan and the applicable Documents;
      2. by the number of concurrent Seats assigned to you and the maximum number of Users that you authorise to access and use Training Post shall not exceed the number of Seats you have purchased/been assigned from time to time; and
      3. provided that each Seat is used by only one registered individual User at any one time, unless it has been reassigned in its entirety from one registered individual User to another, in which case the prior individual User shall no longer have any right to access or use Training Post.
   4. The rights provided under this Agreement are granted to you only and (where applicable) shall not be considered granted to any subsidiary or holding company of yours.
   5. We are entitled to make changes to Training Post which do not adversely affect the access to or use of it and we shall give you written notice of any significant changes to it as soon as reasonably practicable. Any such modifications shall be considered part of Training Post for all purposes of this Agreement. We will have no liability for any change to Training Post.
   6. We reserve the right discontinue Training Post at any time (including by limiting or discontinuing certain features of Training Post), temporarily or permanently, without notice to you.  We will have no liability for any suspension or termination of your access to or use of Training Post. 
   7. We will follow our standard archiving procedures for User Content, as amended by us in our sole discretion from time to time. In the event of any loss or damage to User Content, your sole and exclusive remedy against us will be for us to use reasonable commercial endeavours to restore the lost or damaged data from the latest back-up maintained by us in accordance with our standard archiving procedure. We will not be responsible for any loss, destruction, alteration or disclosure of User Content caused by any third party, including other Users (except those third parties sub-contracted by us to perform services related to maintenance and back-up).
   8. You grant us the right to use your company's name and logo as a reference for marketing or promotional purposes on our websites and in other public or private communications with existing or potential customers, subject to your standard trademark usage guidelines as provided to us from time to time.
3. Restrictions
   1. Except as expressly set out in this Agreement or as permitted by any local law, you undertake not to (and you shall not enable or assist any third party to) and you shall ensure that your Users do not:
      1. copy the LMS, Training Post Content or Documents except where such copying is incidental to normal use of Training Post, or where it is necessary for the purpose of operational security;
      2. access all or any part of Training Post in order to build a product or service which competes with Training Post;
      3. unless you are expressly permitted to do so elsewhere in this Agreement, rent, lease, sub-license, loan, translate, merge, bundle, adapt, vary, modify sell, resell, publish, display (publicly or otherwise), distribute, or otherwise commercially exploit or by any means make available, either directly or via another reseller, to a third party access to and use of Training Post (in whole or in part) or include access to and use of Training Post (in whole or in part) in a service bureau, time-sharing, or equivalent offering;
      4. adapt, develop, create any derivative work, reverse engineer, decompile, disassemble or carry out any act based on the whole or any part of the LMS or visual design elements or concepts (including the look and feel) of Training Post nor attempt to do any such thing otherwise restricted by copyright or other intellectual property rights in Training Post except and only to the extent that it is expressly permitted by applicable law because they are essential for the purpose of achieving inter-operability of the LMS with another software program, and provided that the information obtained by you during such activities:
         1. is used only for the purpose of achieving inter-operability of the LMS with another software program; and
         2. is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
         3. is not used to create any software which is substantially similar to the LMS;
      5. reproduce, duplicate, copy or re-sell any part of our LMS, Platform or a Client Portal or visual design elements or concepts (including the look and feel) of Training Post;
      6. access without authority, interfere with, damage or disrupt:
         1. any part of our site, Platform or a Client Portal;
         2. any equipment or network on which our site or Platform or a Client Portal is stored;
         3. any software used in the provision of Training Post; or
         4. any equipment or network or software owned or used by any third party; and
      7. access, store, distribute or transmit any Viruses, or any material during the course of using Training Post that contravenes the terms of this Agreement. In this Agreement “Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; 
      8. provide or otherwise make available Training Post in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person other than your authorised Users without prior written consent from us; or
      9. overwhelm or attempt to overwhelm our infrastructure by imposing an unreasonable volume of load on our system that consumes extraordinary resources (CPU’s, memory, disk space, bandwidth etc).
   2. You and your Users may use Training Post only for lawful purposes. You and your Users may not use Training Post:
      1. in any way that breaches any applicable local, national or international law or regulation;
      2. in any way that is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect;
      3. for the purpose of harming or attempting to harm any person or property in any way;
      4. to bully, insult, intimidate or humiliate any person;
      5. to store or transmit sensitive personal data, any protected health data, or any matter that is export-controlled;
      6. to send, knowingly receive, upload, download, use or re-use any material which does not comply with this Agreement;
      7. to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); or
      8. to knowingly transmit any data, send or upload any material that contains Viruses, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
   3. You also agree:
      1. to supervise and control use of the Training Post and ensure it is used by your Users, employees, contractors, agents, and any other individuals authorised by you, in accordance with the terms of this Agreement;
      2. to use all reasonable endeavours to prevent any unauthorised access to, or use of, Training Post and, in the event of any such unauthorised access or use, you will promptly notify us;
      3. to keep all copies of the LMS, Training Post Content or Documents secure and to maintain accurate and up-to-date records of the number and locations of all copies of the LMS;
      4. to include our copyright notice on all entire and partial copies you make of the LMS, Training Post Content or Documents on any medium; and
      5. to comply with all applicable laws, regulations, rules and codes in connection with your access to and use of Training Post, including (but not limited to) all applicable technology control, export and reexport laws and regulations.
4. Intellectual property rights
   1. You acknowledge that all intellectual property rights in Training Post anywhere in the world belong to us (or our licensors), that certain rights to access and use Training Post are licensed (not sold) to you, and that you have no rights in or to Training Post other than the right to access and use it in accordance with the terms of this Agreement.
   2. You acknowledge that you have no right to have access to the LMS in source code form or in unlocked coding or with comments.
   3. ‘Can Studios’ and ‘Training Post’ are our trade marks. You are not permitted to use them without our approval, unless expressly permitted elsewhere in this Agreement.
   4. You shall own all right, title and interest in and to all User Content that you, or anyone acting on your behalf, submits, collects, provides, posts, uploads, or inputs through Training Post and you shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all User Content.
   5. Without prejudice to your right or the right of any third party to challenge the validity of any of our Intellectual Property Rights, you shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any of our Intellectual Property Rights and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.
   6. We make no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in Training Post and/or the Trade Marks nor as to whether the same infringe on any Intellectual Property Rights of third parties.
   7. The integrity of Training Post is protected by technical protection measures (TPMs) so that the intellectual property rights, including copyright, in Training Post are not misappropriated. You must not attempt in any way to remove or circumvent any such TPMs, nor apply or manufacture for sale or hire, import, distribute, sell or let for hire, offer or expose for sale or hire, advertise for sale or hire or have in your possession for private or commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of such TPMs, provided that this does not affect or prevent the exercise of your rights under Condition 3.1.1 or Condition 3.1.4.
5. user Content
   1. You are solely responsible for providing all training, teaching, courses, instruction and other User Content for your use of the Platform and/or Client Portal(s) and for the consequences of you providing User Content via Training Post. By providing any User Content you warrant that:
      1. you are the owner of the User Content, or you have the necessary licenses, rights, consents, and permissions to:
         1. use and provide to us such User Content; and 
         2. grant to us the licence set out in Condition 5.4 for the use of such User Content in the manner contemplated by this Agreement;
      2. such User Content will:
         1. comply with the requirements of Condition 5.1.3 in spirit as well as to the letter. The requirements of Condition 5.1.3 apply to each part of any User Content as well as to its whole; and
         2. comply with the law applicable in England and Wales and in any country from which it is posted.
      3. such User Content will not:
         1. be defamatory of any person;
         2. be obscene, offensive, hateful or inflammatory;
         3. bully, insult, intimidate or humiliate;
         4. promote sexually explicit material;
         5. include child sexual abuse material;
         6. promote violence;
         7. promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
         8. infringe any copyright, database right or trade mark of any other person;
         9. be likely to deceive any person;
         10. breach any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
         11. promote any illegal content or activity;
         12. be in contempt of court;
         13. be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety;
         14. be likely to harass, upset, embarrass, alarm or annoy any other person;
         15. impersonate any person or misrepresent your identity or affiliation with any person;
         16. give the impression that the User Content emanates from us or Training Post, if this is not the case;
         17. advocate, promote, incite any party to commit, or assist any unlawful or criminal act such as (by way of example only) copyright infringement or computer misuse;
         18. contain a statement which you know or believe, or have reasonable grounds for believing, that members of the public to whom the statement is, or is to be, published are likely to understand as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism; or
         19. contain any advertising or promote any services or web links to other sites.
   2. We are under no obligation to monitor, edit or control User Content that you or other Users post or publish on the Platform (including Client Portals), and we will not be in any way responsible or liable for User Content or for any loss or damage incurred as a result of the use of such content. We may, however, at any time and without notice, but we are not obliged to, monitor and screen User Content and determine, in our discretion, whether User Content fails to comply with the warranties contained in Condition 5.1 and Condition 5.1.3. If in our opinion the User Content does not so comply, we have the right to remove, delete and/or destroy any User Content from Training Post. We also have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to Training Post constitutes a violation of their intellectual property rights, or of their right to privacy or any other of their rights.
   3. You will be liable to us and indemnify us for any breach of the warranties given in Condition 5.1 and Condition 5.1.3. This means you will be responsible for any loss or damage we suffer as a result of your breach of warranty.
   4. By providing User Content to or via Training Post, you grant us a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, use, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, to the extent required for providing Training Post as described in this Agreement. 
   5. We may monitor use of Training Post by all of our customers and use the aggregated information gathered in an anonymous manner. You agree that we may use and publish such information, provided that such information does not disclose any User Content and/or identify you.  
   6. We will maintain commercially appropriate technical and organisational measures to ensure a level of security appropriate to the risk to protect User Content. In the event of any loss or damage to User Content, your sole and exclusive remedy against us shall be for us to use reasonable commercial endeavours to restore the lost or damaged User Content from the latest back-up of such User Content maintained by us (or our hosting provider) in accordance with our standard archiving procedure. We shall not be responsible for any loss, destruction, alteration or disclosure of User Content caused by any third party.
   7. This Condition 5 shall survive termination or expiry of this Agreement.
6. Limited warranty
   1. We warrant to you that Training Post will operate substantially in accordance with, and perform, the material functions and features as set out in the applicable part(s) of the documentation relating to it.
   2. We will use commercially reasonable endeavours to provide at least a 99% uptime service availability level for Training Post. This availability refers to an access point on our (or our hosting provider’s) backbone network. It does not apply to the portion of the circuit that does not transit the backbone network, as you are responsible for your own internet access. Availability does not include maintenance events (as described in Condition 6.3), outages or disruptions caused by you, your employees or representatives or third parties or outages or disruptions attributable in whole or in part to force majeure events within the meaning of Condition 13. 
   3. We will at all times endeavour to keep any service interruptions to a minimum. We may interrupt the availability of Training Post to perform routine, planned maintenance and unscheduled, emergency maintenance. Planned maintenance will not be performed between the hours of 9am – 5pm UK time. 
   4. You are responsible for configuring your information technology, computer programmes, device(s) and platform in order to access and use Training Post. 
   5. You should take the necessary steps to ensure that appropriate security measures, including but not limited to the use of Virus protection mechanisms, are adopted prior to you accessing or using Training Post. 
   6. Except as expressly stated elsewhere in this Agreement, to the extent permitted under law, we provide no warranties (whether implied or otherwise) to you in relation to Training Post under this Agreement, and any condition, warranty, representation or other term concerning the supply of Training Post which might otherwise be implied into, or incorporated in, this Agreement whether by statute, common law or otherwise, is hereby excluded. Please refer to the agreement under which you paid the subscription fees and/or obtained access to Training Post for details of any warranties provided under that agreement.
7. Limitation of our liability
   1. You acknowledge that Training Post has not been developed to meet your individual requirements, including any particular cybersecurity requirements you might be subject to under law or otherwise, and that it is therefore your responsibility to ensure that the facilities and functions of Training Post meet your requirements.
   2. Unless you are expressly permitted to do otherwise elsewhere in this Agreement, we only supply Training Post for internal use by your business and you agree not to use Training Post, or any part of it, for any re-sale purposes, except the delivery of eLearning via Training Post itself.
   3. We are under no obligation to oversee, monitor or moderate any User Content or any interactive service we provide on Training Post, and we expressly exclude our liability for any loss or damage arising from any User Content or the use of any interactive service by a user in contravention of this Agreement, whether the service is moderated or not.
   4. Subject to Condition 7.5:
      1. We shall not in any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:
         1. loss of profits, sales, business, or revenue;
         2. business interruption;
         3. loss of anticipated savings;
         4. loss of use;
         5. exemplary damages;
         6. punitive damages;
         7. costs of the procurement of substitute services;
         8. loss or corruption of data or information;
         9. loss or depletion of business opportunity, goodwill or reputation;

            whether any of the losses set out in Condition 7.4.1.1 to Condition 7.4.1.9 are direct or indirect; or

         10. any special, indirect or consequential loss, costs, damages, charges or expenses.
      2. our total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall in all circumstances be limited to the amount actually paid by you to us under this Agreement in the 12 months preceding the date on which the claim arose. If you are not obliged to pay Subscription Fees to us in respect of your access to Training Post (for example, if you are granted access to Training Post via one of our Providers) have not paid any Subscription Fees our total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall in all circumstances be limited to £10.00 (GBP).
   5. Nothing in this Agreement shall limit or exclude our liability for:
      1. death or personal injury resulting from our negligence;
      2. fraud or fraudulent misrepresentation;
      3. any other liability that cannot be excluded or limited by English law.
   6. This Agreement sets out the full extent of our obligations and liabilities in respect of the supply of Training Post. Except as expressly stated in this Agreement, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of Training Post which might otherwise be implied into, or incorporated in, this Agreement whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
   7. This Condition 7 shall survive termination or expiry of this Agreement.
8. term and Termination
   1. This Agreement shall commence on the first day of your Plan as stated in your Order Form. Unless terminated earlier in accordance with Condition 8.2 or this Condition, this Agreement shall continue for the Initial Term stated in your Order Form and shall automatically extend for a period of the same duration (Extended Term) at the end of the Initial Term and at the end of each Extended Term (together the Subscription Term). You may cancel your subscription at any time, in which case your Plan will come to an end at the end of your current Billing Period. Please note that we do not provide refunds of any Subscription Fees already paid if you cancel or decide to stop using Training Post during your Subscription Term. 
   2. We may give written notice to cancel your Subscription at any time, not later than 90 days before the end of the current Subscription Term, to terminate this Agreement at the end of that Subscription Term.
   3. If you access Training Post via a free trial, this Agreement will automatically extend at the end of your free trial for the Initial Term stated in your Plan and/or Order Form and the Subscription Fees will be payable on the first day of the Initial Term.
   4. Without affecting any other right or remedy available to us, we may terminate this Agreement and/or suspend or disable your access to Training Post without notice or liability to you, if:
      1. you fail to pay any amount due to us under this Agreement on the due date for payment and you remain in default not less than 30 days after being notified in writing by us to make such payment; or
      2. we have not received payment when due for the Seat under which you are entitled to access Training Post; or
      3. you commit a material or persistent breach of this Agreement which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; or
      4. you take any step or action in connection with your entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
      5. you suspend, or threaten to suspend, or cease or threaten to cease to carry on all or a substantial part of your business; or
      6. you access, store, distribute or transmit any Viruses, or any material during the course of your use of Training Post that contravenes the terms of this Agreement; or
      7. you purport to transfer any of your rights or obligations under this Agreement without our prior written consent.
   5. On termination or expiry of this Agreement:
      1. all rights granted to you under this Agreement shall cease;
      2. all then-current Seats under your Plan will also terminate unless otherwise agreed by us;
      3. you must immediately cease all use of Training Post and all activities authorised by this Agreement; 
      4. you must promptly and permanently delete, remove, destroy or return to us (at our option) all copies of the LMS, Training Post Content and Documents then in your possession, custody or control and, in the case of destruction, certify to us that you have done so;
      5. we shall not be liable to you because of such termination or expiry for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with your business or goodwill or for any other costs, loss or damage relating to or resulting from such termination or expiry; 
      6. we may destroy or otherwise dispose of any of the User Content in our possession, unless we receive, no later than thirty (30) days after the effective date of the termination or expiry of this Agreement, a written request for the delivery to you of the then most recent back-up of the User Content maintained by us (or by our hosting provider). We shall use reasonable commercial endeavours to deliver the back-up to you within 30 days of our receipt of such a written request and thereafter we reserve the right to delete from the Platform all existing copies of it (except to the extent that any applicable laws requires us to store such data). For these purposes the term "delete" shall mean to put such data beyond use; and
      7. the accrued rights of the parties as at termination, expiry or the continuation after termination or expiry of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
   6. You are responsible for retaining copies of all of your User Content and you must export your Learners’ training histories within thirty (30) days following the expiration or termination of this Agreement.
9. suspension

   In addition to our rights under Condition 8, we may immediately restrict or suspend (on a temporary or permanent basis) your or any of your User’s right to access or use any portion or all of Training Post and/or to delete the registration of one or more of your Users if we reasonably determine that your or the User’s use of Training Post:

   1. breaches the terms of this Agreement;
   2. poses a security risk to the Platform, a Client Portal or any third party;
   3. infringes any applicable law or could subject us, our affiliates, or any third party to liability;
   4. could be fraudulent. 

   We will use commercially reasonable efforts under the circumstances to provide you with advance notice of any such suspension and, if practicable, an opportunity to cure any breach or infringement prior to the suspension taking effect.

10. Communications between us
    1. If we have to contact you, we will do so by email or by pre-paid post to the address you provided in accordance with your registration for Training Post.
    2. Note that any notice:
       1. given by us to you will be deemed received and properly served 24 hours after it is first posted on our website, 24 hours after an email is sent, or three days after the date of posting of any letter; and
       2. given by you to us will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter.
    3. In proving the service of any notice, it will be sufficient to prove, in the case of posting on our website, that the website was generally accessible to the public for a period of 24 hours after the first posting of the notice; in the case of a letter, that such letter was properly addressed, stamped and placed in the post to the address of the recipient given for these purposes; and, in the case of an email, that such email was sent to the email address of the recipient given for these purposes.
    4. This Condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11. Confidentiality
    1. You and we may each may have access to Confidential Information of the other. For the purposes of this Agreement Confidential Information shall not include information that:
       1. is or becomes publicly known through no act or omission of the receiving party; or
       2. was in the receiving party's lawful possession prior to the disclosure; or
       3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
       4. is independently developed by the receiving party, which independent development can be shown by written evidence.
    2. Subject to Condition 11.4, you and we shall each hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
    3. You and we each agree to take all reasonable steps to ensure that the other's Confidential Information to which you and we have access is not disclosed or distributed by your/our employees or agents in violation of the terms of this Agreement.
    4. You and we may each disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent that it is legally permitted to do so, the other party shall be given as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Condition 11.4, account shall be taken of the reasonable requests of the other party in relation to the content of such disclosure.
    5. This Condition 11 shall survive termination of this Agreement for any reason.
12. Protection and processing of personal data
    1. Under Data Protection Legislation, we are required to provide you with certain information about who we are, how we process the personal data of those individuals who use Training Post and for what purposes and those individuals' rights in relation to their personal data and how to exercise them. This information is provided in our privacy notice at https://canstudios.com/privacy-policy/ and it is important that you read that information.
13. Force majeure

    Neither you or we shall in any circumstances be in breach of this Agreement nor liable for delay in performing, or failure to perform, any obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond the affected party’s reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, epidemic or pandemic, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate this Agreement by giving 30 days' written notice to the other party.

14. Other important terms
    1. You represent and warrant to us that you have full power and authority to enter into this Agreement.
    2. We may transfer our rights and obligations under this Agreement to another organisation, but this will not affect your rights or our obligations under this Agreement.
    3. You may only transfer your rights or your obligations under this Agreement to another person if we agree in writing.
    4. This Agreement constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. 
    5. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
    6. If we fail to insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
    7. Each of the conditions of this Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
    8. This Agreement, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both irrevocably agree to the exclusive jurisdiction of the courts of England and Wales.

    Part 2

    Payment Terms

15. Prices and Payment
    1. These payment terms apply where we are taking payment from you of the Subscription Fees which entitle you (and your Users) to access Training Post. If you are granted access to Training Post via one of our Providers, the terms applying to your payment obligations to the Provider will be contained within your agreement with that Provider.
    2. The Subscription Fees to be paid are to be calculated in accordance with the price bands set out in your Plan, and as amended by us from time to time in accordance with this Agreement.  The Subscription Fees are payable by you for each month or year (Billing Period) during your Subscription Term as stated in your Plan and/or Order Form.
    3. We may review and adjust the price bands set out in your Plan at any time provided that such review and adjustment shall occur no more than once in any 12 month period. We shall give you reasonable prior notice of any changes in the price bands applicable to your Plan.
    4. Any and all expenses, costs and charges you incur in the performance of your obligations under this Agreement shall be paid by you unless we have expressly agreed beforehand in writing to pay such expenses, costs and charges.
    5. You shall on or before the first day of your Plan as stated in your Order Form provide to us valid, up-to-date and complete credit card, direct debit or other automatic payment method details or approved purchase order information acceptable to us and any other relevant valid, up-to-date and complete contact and billing details and, if you provide:
       1. credit card, direct debit or other automatic payment method details to us, you hereby authorise us to take payment monthly or annually in advance for the Subscription Fees payable by you, as set out in your Plan and/or Order Form; or
       2. your approved purchase order information to us, we shall invoice you monthly or annually in advance for the Subscription Fees payable by you, as set out in your Plan and/or Order Form, and you shall pay the full amount invoiced to you in pounds sterling within 30 days after the date of such invoice.
    6. All amounts due under this Agreement shall be paid by you to us in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
    7. If you fail to make any payment due to us under this Agreement by the due date for payment, then, without limiting our remedies under Part 1, Condition 8:
       1. you shall pay interest on the overdue amount at the rate of 4% per annum above our bank's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount; 
       2. we may suspend the Seats purchased by you while any payment is outstanding and we may charge a reasonable re-activation fee to reinstate any Seats; and
       3. we may terminate or suspend the Users’ access to Training Post and/or enter into direct communication with the User.  

    Part 3

    Terms applicable to Providers 

16. provider access
    1. In addition to the rights granted to you under Condition 2, you may access and use Training Post:
       1. to access and manage your Provider Dashboard;
       2. to create Client Portals for your Clients in accordance with and to the extent permitted by your Plan and the applicable Documents;
    2. You shall be entitled to describe yourself as an "Authorised Reseller" of Training Post but you shall not represent yourself as an agent of ours for any purpose, nor pledge our credit or give any condition or warranty or make any representation on our behalf or commit us to any contracts. Further, you shall not without our prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Training Post which are inconsistent with those contained in our promotional material (including, without limitation, the Documents) or otherwise incur any liability on our behalf howsoever arising.
    3. We hereby grant to you a non-exclusive, revocable, personal licence (subject to the terms and conditions of this Agreement and during its term) to use the Trade Marks on or in relation to and for the sole purpose of the promotion, advertisement and sale of Seats. You shall ensure that each reference to, and your use of, any of the Trade Marks is in a manner approved by us from time to time and accompanied by an acknowledgement in a form approved by us that the same is a trade mark (or registered trade mark) of ours.
    4. You may sell Seats to your Clients at a price determined solely by you and you will ensure that your contract with the Client incorporates the terms and conditions of Part 1 of this Agreement.   
    5. You shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, sale, lease or other distribution of Seats.
    6. You acknowledge and accept that we require each User to agree to the terms of this Agreement (as applicable to them) when using Training Post. You will take all reasonable steps to ensure that your Users and Clients do not use Training Post in breach of this Agreement. If you discover or have reason to believe that any User or Client is making use of Training Post in breach of this Agreement, then you will immediately notify us in writing.
    7. Any transactions or terms in relation to the use of Training Post either via the Platform or a Client Portal by your Clients and their Users is solely between you and each Client. Other than as specifically provided for herein, and the terms applicable to all Users set out in Part 1, we have no responsibility or liability to your Clients or your Clients’ Users.
    8. At our request, you shall do or procure to be done all such further acts and things (including the execution of documents) as we shall require to give us the full benefit of this Agreement.
17. Provider-specific restrictions
    1. You shall not:
       1. use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or our goodwill in them;
       2. use in relation to Training Post any trade marks other than the Trade Marks without obtaining our prior written consent; or
       3. use any trade marks or trade names so resembling any trade mark or trade names of ours as to be likely to cause confusion or deception.
    2. You shall not sell or licence any Seats through a sales agent or to a sub-distributor or reseller without our prior express written permission (which may be withheld or conditioned as we see fit). 
    3. You undertake and agree with us to:
       1. observe all reasonable directions and instructions we give to you in relation to the promotion and advertisement of Training Post, and you shall not make any written statement as to the usage or functionality of Training Post without our prior written approval;
       2. conduct your business in a manner that reflects favourably at all times on us and our good name, goodwill and reputation and not enter into any contract or engage in any practice that is or may be detrimental to our interests in Training Post;
       3. avoid deceptive, misleading or unethical practices that are, or might be, detrimental to us, Training Post or the public and you shall not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to us or Training Post;
       4. comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;
       5. within 14 days of our written request at any time, and from time to time, provide such information as we reasonably request about:
          1. your processes and controls to support compliance with this Agreement; 
          2. your Users and Clients as is reasonably required by us for the purposes of managing and enforcing the terms of our Agreement with those Users and/or Clients; and
       6. during the term of this Agreement and for a period of 6 months after the termination or expiry of this Agreement, provide to your Users and Clients a pre- and after-sale support service in respect of Training Post, including, without limitation, the provision of necessary and useful assistance and consultation on the use of Training Post; timely responses to Users’ and Clients’ general questions concerning use of Training Post; and assistance to Users and Clients in the diagnosis and correction of problems encountered in using Training Post. For the avoidance of doubt, we shall not provide any support to your Users or Clients; 
       7. maintain full and proper books of account and records relating to Seats (whether resold or not) and allow us (or our nominee), on reasonable notice, access to all accounts and records relating to Seats and your data processing facilities for the purpose of inspection and to audit compliance with this Agreement. If any of the audits or information reveal that you have underpaid Subscription Fees to us, then without affecting or prejudicing any other rights we may have, you will pay to us an amount equal to such underpayment within 14 days of the date of our invoice for the amount of the underpayment; and
       8. inform us immediately of any changes in your ownership or any change in your organisation or method of doing business which might affect the performance of your duties under this Agreement (Control).
    4. You undertake not to:
       1. for the duration of this Agreement or for the period of five years from the Effective Date stated on your Order Form (whichever shall be the shorter), distribute or create any products which compete with Training Post; or
       2. at any time during the term of this Agreement, distribute Seats to access Training Post other than via the Platform or a Client Portal.
18. change of control

    Without affecting any other right or remedy available to us, we may terminate this Agreement and/or suspend or disable your access to Training Post without notice or liability to you, if there are any changes in your Control (as defined in Condition 17.3.8). 

19. indemnity

    You will indemnify us in full and on demand against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation any direct, indirect or consequential losses, loss of profit, loss of reputation, all interest, penalties and court and legal costs and all other reasonable professional costs and expenses) suffered or incurred by us arising out of or in connection with:

    1. your breach or negligent performance or non-performance of this Agreement;
    2. the enforcement of this Agreement; 
    3. any claim made against us by a third party arising out of or in connection with the provision of access to Training Post, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Agreement by you, your employees, agents or subcontractors,

    provided that we give you prompt notice of any such claim, we give you sole authority to defend or settle the claim and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defence or settlement of the claim. You will not accept any settlement that  imposes an obligation on us, that requires us to make an admission, or that places any restrictions on us without our prior written consent.

20. controllers of personal data
    1. You and we each acknowledge that for the purposes of the Data Protection Legislation:
       1. you and we may each be controllers of personal data and, in certain cases, we will share that personal data with each other as independent controllers; or
       2. you and we may be in a controller to processor relationship, where you are the controller of personal data, and we process such data as processor at your direction when performing our obligations under this Agreement. The Schedule to this Agreement (which is incorporated into this Agreement) sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject.
    2. You and we will each will comply with all applicable requirements of the Data Protection Legislation. This Condition is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
    3. Without prejudice to the generality of Condition 20.2, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to us (or collection of the personal data by us on your behalf) for the duration and purposes of this Agreement so that we may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf.
    4. Without prejudice to the generality of Condition 20.2, we shall, in relation to any personal data processed as processor on your behalf in connection with the performance by us of our obligations under this Agreement:
       1. process that personal data only on your documented written instructions unless we are required by applicable laws to process personal data. Where we are relying on applicable laws as the basis for processing personal data, we shall promptly notify you of this before performing the processing required by the applicable laws unless those applicable laws prohibit us from so notifying you;
       2. not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
          1. we or you have provided appropriate safeguards in relation to the transfer; and
          2. the data subject has enforceable rights and effective legal remedies;
       3. assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
       4. notify you without undue delay on becoming aware of a personal data breach concerning the personal data processed by us on your behalf;
       5. at your written direction, delete or return personal data and copies thereof to you on termination of this Agreement unless we are required by applicable law to store the personal data; and
       6. maintain complete and accurate records and information to demonstrate our compliance with this Condition and immediately inform you if, in our opinion, an instruction infringes the Data Protection Legislation.
    5. You consent to us appointing third-party processors of personal data under this Agreement for the purpose of performing our obligations under this Agreement. We confirm that we have entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this Condition.  As between you and us, we shall remain fully liable for all acts or omissions of any third-party processor appointed by us pursuant to this Condition.
    6. You and we will ensure that you and we, respectively, have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of our respective systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted).
    7. Either you or we may, at any time on not less than 30 days' notice, revise this Condition by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).

Schedule 1 Data Processing Details

1. Processing by Can Studios:
   1. Scope and subject matter of processing:

      We wish to provide to you and your Users certain services in connection with access to Training Post that may require us to process personal data on your behalf.

   2. Nature and purpose of processing:

      The personal data will be processed by us for the purpose and in the course of providing certain services to you and your Clients and Users in connection with access to Training Post.

   3. Duration of the processing:

      For the duration of the services being provided by us to you and your Clients and Users or such shorter period where the processing is no longer authorised or no longer necessary for the purposes of providing those services, for the collection of payments or for compliance with applicable laws.

2. Types of personal data

   Name, Email Address and Training Post learning record.

3. Categories of data subject

   Users: the individual registered as a user of Training Post.

   Provider contacts: employees or representatives of the Provider.

   Client contacts: the person requesting information about and/or purchasing Seats from the Provider, which may be an individual acting in their own right or acting on behalf of another person or business