1. INTRODUCTION

1.1 TLN TRAINING LIMITED (trading as “Gemba®”) (“TLN”, “we”, “our”, “us”) is incorporated and registered in England and Wales with company number 08776016 and has its registered office at Metropolitan Wharf Building, Unit 403, 70 Wapping Wall, London, E1W 3SS, England.

1.2 These Terms of Service (“these Terms”) shall apply to the contract (“Agreement”) between TLN and the Customer. “Customer” shall mean the customer named in the Order Form. “Order Form” means the Order Form to which these Terms are incorporated.

1.3 These Terms apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. In the event there is a conflict between these Terms and the Order Form, these Terms shall prevail unless otherwise specified in the Order Form.

2. SERVICES

2.1 The services may comprise:

2.1.1 a subscription to TLN’s virtual reality training software (“GEMBA Platform” or “Software”) and TLN’s virtual reality enabled learning and development programme(s) incorporating the Software (“GEMBA Programme(s)”); and

2.1.2 additional monthly or one-off services (“Add-ons”), including access to TLN’s training programmes developed in conjunction with a TLN expert in their field (“Masterclasses”), as more particularly set out in the Order Form (“Services”).

2.2 Our Services are provided in the standard version applicable at any time and not configured to the individual needs of any customer unless specifically agreed with us in a separate written agreement or an addendum to these Terms.

2.3 Where the Customer has purchased Add-ons, these shall be provided in accordance with any applicable specifications and/or additional terms as may be referred to in the Order Form or otherwise provided or made available online by TLN.

2.4 The Customer shall, and shall procure that its employees and independent contractors who are authorised by it to use the Services (“Authorised Users”) shall, use the Services and any documents or materials made available to the Customer by TLN from time to time in connection with the Services (“Documentation”) in accordance with these Terms and any other instructions provided by us from time to time. The Customer shall be responsible for any Authorised User’s breach of these Terms. The maximum number of Authorised Users is as set out in the Order Form. The Customer may change the number of Authorised Users on 30 days’ written notice to TLN (or where applicable, by changing its user settings in the Software) and the Fees (as defined below) shall be adjusted accordingly with effect from the Renewal Period (as defined below) that immediately follows expiry of the notice period.

2.5 If the Customer purchases any Masterclass(es), it shall ensure that the Authorised Users attending such Masterclass(es): (i) are appropriately qualified for them, (ii) will conduct themselves in a proper and professional manner and (iii) will adhere to any security or other policies or similar requirements of TLN relating to the Masterclass(es) (including in any Documentation provided by TLN).

2.6 TLN will, as part of the Services, provide support services in accordance with its standard support services policy from time to time or as otherwise stated in the Order Form.

3. LICENCE 

3.1 In consideration of the fees paid by the Customer to TLN as set out in the Order Form (“Fees”), TLN shall grant the Customer a limited, non-exclusive, non-transferable, non-sublicensable right to use the Services and Documentation during the Term (as defined below) solely for the Customer’s internal business operations, in accordance with and subject to these Terms.

3.2 The Customer acknowledges and agrees that:

3.2.1 Use of the Software shall be restricted to use of the Software in object code form, and shall not include allowing the use of the Software by, or for the benefit of, any person other than an Authorised User.

3.2.2 The Customer may not take backup copies of the Software. The Customer shall have no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt, or make error corrections to the Software or Documentation in whole or in part.

3.2.3 The Customer may upon notice to TLN transfer a subscription from one Authorised User to another employee or independent contractor of the Customer at the start of Renewal Period or at any time in the event that the original Authorised User is no longer employed or engaged by the Customer, provided that in each case the maximum number of users that it authorises to use the Services shall not exceed the number set out in the Order Form.

3.2.4 The Customer shall maintain a written, up-to-date list of current Authorised Users and provide such list to TLN within 7 days of request at any time.

3.2.5 TLN or its nominated representatives may audit the Customer’s compliance with these Terms on reasonable notice. If an audit reveals any non-compliance by the Customer (including that it has underpaid any fees), then without prejudice to TLN’s other rights and remedies, the Customer shall promptly take such action as is reasonably necessary to correct the non-compliance (including, where applicable, by paying the amount underpaid).

3.3 The Customer shall not:

3.3.1 Sub-license, assign or novate the benefit or burden of the Agreement in whole or in part;

3.3.2 Allow the Software to become the subject of any charge, lien or encumbrance; or

3.3.3 Access or use all or any part of the Software, the Services, the Add-ons or Documentation to build a competing product or service or to provide services to third parties.

4. HARDWARE 

4.1 The Customer acknowledges and agrees that the Services may only be accessed using appropriate hardware (“Hardware”) and that it will be solely responsible for obtaining such hardware (except where specified in the Order Form that TLN will provide the Customer with any Hardware).

4.2  The Customer shall:

4.2.1 Ensure that the Software is installed only on Hardware that is recommended by, and meets the minimum specifications of, TLN (as specified in the Order Form or online from time to time);

4.2.2 Restrict access to the Hardware (where supplied by TLN) and the Software to the Authorised Users;

4.2.3 Notify TLN as soon as it becomes aware of any unauthorised access to or use of the Services, Documentation, Software or (where supplied by TLN) the Hardware by any person;

4.2.4 (where supplied by TLN) ensure that the Hardware is used strictly in accordance with the health and safety guidelines that are applicable to the Hardware (as may be published by the Hardware manufacturer), and that these are provided to all Authorised Users prior to the use and procure that such Authorised Users comply with those guidelines. 

5. CUSTOMER OBLIGATIONS

5.1 The Customer shall:

5.1.1 cooperate with TLN in all matters relating to the Services;

5.1.2 provide to TLN in a timely manner all documents and information reasonably required by TLN in connection with the Services;

5.1.3 obtain and maintain all licences, consents and permissions necessary for TLN, its contractors or agents to perform their obligations under the Agreement;

5.1.4 carry out all other Customer responsibilities agreed by the parties in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, TLN may adjust any agreed timetable or delivery schedule as reasonably necessary;

5.1.5 without affecting its other obligations under the Agreement, comply with all applicable laws and regulations with respect to its activities under the Agreement;

5.1.6 ensure that its network and systems comply with the relevant specifications provided by TLN from time to time; and

5.1.7 be, to the extent permitted by law and except as otherwise expressly provided in the Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to TLN’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

5.2 If TLN’s performance of its obligations under the Agreement is prevented or delayed by any act, omission, direction or request of the Customer, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, TLN shall not be treated as being in breach of the Agreement and shall be allowed an extension of time to perform its obligations equal to any such delay. TLN shall also be entitled to recover from the Customer any reasonable losses or expenses it suffers or incurs as a result of such act, omission, direction or request.

6. FEES 

6.1 In consideration of the provision of the Services and Documentation by TLN, the Customer shall pay the Fees as set out in the Order Form. Except when required by law, Fees are non-refundable.

6.2 Where stated in an Order Form, some Services shall be billed in advance on a recurring and periodic basis (“Renewal Period”). Renewal Periods are set either on a monthly or annual basis depending on the type of subscription plan the Customer selects when purchasing the Services. Where the Order Form states that any Services must be paid for upfront, the Customer will not be entitled to use the relevant Services and Documentation until the applicable Fees are paid in full.

6.3 At the end of each Renewal Period, the Services will automatically renew on the same terms unless the Customer or TLN terminates the Services in accordance with these Terms.

6.4  A valid credit card is required to process the payment for the Services.  The Customer must on the Effective Date (as defined below) provide TLN with accurate, up-to-date and complete credit card details together with a full name, address, post code, telephone number. By submitting such information, the Customer authorises TLN to charge such credit card on the Effective Date for the Fees payable in respect of the Initial Term (as defined below) and subject to clause 8, at the beginning of each Renewal Period.

6.5 Should credit card billing fail to occur for any reason, TLN will issue an electronic invoice for the relevant Services and the Customer must pay such invoice within 30 days of its date.

6.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay TLN any sum due under the Agreement on the due date:

6.6.1 the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and

6.6.2 TLN may, without liability, suspend part or all of the Services until payment has been made in full.

7. FEE CHANGES 

7.1 We may in our sole discretion and at any time increase the Fees for the Services.

7.2 TLN will provide the Customer with 30 days’ prior notice of any such change. If the Customer does not agree with the change, it may terminate the Services in accordance with these Terms before such change becomes effective on the Renewal Period immediately following the end of the notice period.

7.3 The Customer’s continued use of our Services after a change in Fees comes into effect constitutes its agreement to pay the modified Fees.

8. TERM & TERMINATION

8.1 The Agreement shall commence on the date specified in the Order Form (or if no date is specified, such date as is agreed by the parties) (“Effective Date”) and shall continue for such initial period as is set out in the Order Form (“Initial Term”) and thereafter shall automatically renew for successive periods of 1 month or 12 months (as stated in the Order Form) (each a “Renewal Period”) unless terminated earlier in accordance with these Terms. 

8.2 The Customer may terminate the Services by giving TLN not less than 30 days’ written notice and the Services will be terminated with effect from the 31st day after notification of termination has been received by TLN (“Termination Date”). If the Termination Date falls during the next Renewal Period, the Customer will still be charged the Fees for the next Renewal Period in full, but the Customer will not be charged for a new Renewal Period thereafter.

8.3 Without affecting any other right or remedy available to it, TLN may terminate the Agreement with immediate effect by giving written notice to the Customer if:

8.3.1 the Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment; 

8.3.2 the Customer commits a material breach of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so; or

8.3.3 the Customer ceases or threatens to cease to trade, or becomes insolvent, has  a receiver or administrator appointed over the whole or any part of its assets or  business, makes any arrangements with its creditors, or an order or resolution is  made for its dissolution or liquidation, applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986, or its financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy, or takes or suffers any similar or  analogous procedure, action or event in any jurisdiction.

8.4 On termination of the Agreement for any reason: (i) all licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services, Documentation and any Hardware supplied by TLN; (ii) each party shall promptly return (at its own cost) and make no further use of any Hardware, equipment, property, Documentation and other items (and all copies of them) belonging to the other party; (iii) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination shall not be affected or prejudiced; and (iv) all provisions of these Terms which by their nature should survive termination shall survive termination, including without limitation: this clause 8, clause 13 (Intellectual Property), clause 14 (Indemnities), clause 15 (Confidentiality and Publicity), clause 16 (Data Protection and Privacy), clause 18 (Disclaimer of Warranties), clause 19 (Third Party Products and Services), clause 20 (Limitation of Liability), clause 24 (Waiver and Severability), clause 25 (Notices), clause 26 (Further Assurance), clause 27 (Entire Agreement), clause 28 (Third Party Rights) and clause 29 (Governing Law and Jurisdiction).

9. CREATION AND USE OF ACCOUNTS

9.1 The Customer acknowledges and agrees that each Authorised User must create a user account on the GEMBA Platform in order to use the Services.

9.2 Authorised Users may not use as a username: (i) the name of another person or entity, (ii) a name that is not lawfully available for use, (iii) a name or trademark that is subject to any rights of another person or entity other than the Customer, without appropriate authorisation. Authorised Users may not use as a username any name that is offensive, vulgar or obscene.

10. PROHIBITED USE

10.1 The Customer and the Authorised Users may use our Services only for lawful purposes and in accordance with these Terms.  The Customer agrees not to, and shall procure that the Authorised Users shall not, use our Services:

10.1.1 In any way that violates any applicable national or international law or regulation.

10.1.2 In any way that violates the Intellectual Property Rights of TLN or others.

10.1.3 For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content or otherwise.

10.1.4 To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter,” “spam,” or any other similar solicitation.

10.1.5 To impersonate or attempt to impersonate TLN, a TLN member of staff, another user, or any other person or entity.

10.1.6 In any way that infringes upon the rights of others, or in any way is illegal, threatening, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.

10.1.7 In any way which is defamatory of any person, obscene or offensive.

10.1.8 In any way which promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.

10.1.9 To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm or offend TLN or users of the Services or expose them to liability.

10.2 Additionally, the Customer agrees not to and shall procure that the Authorised Users shall not:

10.2.1 Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the GEMBA Platform.

10.2.2 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 platform.

10.2.3 Use any manual process to monitor or copy any of the material on the Services or for any other unauthorised purpose without our prior written consent.

10.2.4 Use any device, software, or routine that interferes with the proper working of the Services.

10.2.5 Introduce any viruses, trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful to the Services.

10.2.6 Attempt to gain unauthorised access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer, or database connected to the Services.

10.2.7 Attempt to sell, rent, lease, distribute, sublicense, transfer, lend or otherwise make the Services available to third parties.

10.2.8 Improperly delete, remove, decompile, reverse engineer, reverse compile, modify, translate, or make any similar changes to the Services, or any server, computer, or database connected to the Services.

10.2.9 Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.

10.2.10 In any way for commercial purposes or in a fraudulent way link (actively or passively) to the Services or take any other action that may damage or falsify TLN’s rating or reputation.

10.2.11 Otherwise attempt to interfere with the proper working of the Services.

11. GROUP CHATS AND CONTRIBUTIONS

11.1 In this clause:

11.1.1 “Contributions” means any material which the Customer or an Authorised User contributes to the Site or Group Chat.

11.1.2 “Group Chat” means any online chat group for TLN’s customers and users made available via the Site or third party instant messaging sites, apps or platforms, as may be notified to the Customer or an Authorised User by or on behalf of TLN from time to time.

11.1.3 “Site” means the GEMBA Platform and the TLN website https://thegemba.com/ 

11.2 The Customer acknowledges and agrees to comply with, and shall procure that the Authorised Users comply with and consent to, the following:

11.2.1 any content it uploads to the Site may be used and stored by TLN for the purpose of providing the Services;

11.2.2 TLN may modify, remove or choose not to publish an Authorised User’s profile or any content it posts or attempts to post on our Site at any time in our sole discretion and without notice;

11.2.3 Authorised Users must comply with clause 10 (‘Prohibited Use’) when participating in Group Chats and making Contributions;

11.2.4 Our Site and any Group Chats aim to promote and facilitate discussion amongst our users.  Authorised Users consent to other users of our Site being able to view their profile, Contributions and to contact them via our Site.   Authorised Users consent to be added to any discussion groups on our Site (related to the Services the Customer has purchased) with our course leaders and other users and to receive messages from them.  Authorised Users agree to comply with the Chatham House Rules in respect of any discussions on our Site and any Group Chats.

11.2.5 We will only add an Authorised User to a Group Chat at the Authorised User’s request and with its consent.  If an Authorised User requests to be added to a Group Chat, it consents to TLN’s course leaders and other users being able to: (i) view its profile and Contributions and (ii) contact it via the Group Chat and to receive messages from them.  Authorised Users acknowledge and agree that: (i) participation in any Group Chats is entirely voluntary and at their own risk and (ii) Group Chats on the Site are public.  TLN’s role in relation to any Group Chat is merely to promote and facilitate connections between users of the Group Chat (by way of adding users to a Group Chat) to enhance the user experience of its products and services but TLN does not monitor or moderate the content of any Contributions on Group Chats.

11.2.6 Authorised Users may withdraw their consents at any time by updating their settings on our Site and/or the GEMBA Platform (where applicable), by notifying us in writing or by cancelling the Services in accordance with these Terms.  Authorised Users may also remove themselves from a Group Chat at any time without notice to TLN.

12. AMENDMENTS, TERMINATION OR SUSPENSION OF ACCOUNTS OR SERVICES

12.1 We may at any time in our sole discretion: (i) amend the Services and Documentation, (ii) terminate or suspend  the Customer’s or an Authorised User’s account, (iii) restrict, suspend or terminate access to the Services and any Group Chat (in whole or in part) and/or (iv) remove or edit Contributions, in each case without prior notice or liability for any reason whatsoever (including but not limited to breach of these Terms, planned or emergency maintenance or due to any actual or suspected unauthorised access or security breach). 

12.2 Where reasonably possible, TLN will notify the Customer in advance where it is exercising its rights under this clause.

13. INTELLECTUAL PROPERTY 

13.1 The Customer acknowledges and agrees that all Intellectual Property Rights in the Services, the Software, the GEMBA Programme(s), Add-Ons, Masterclasses and Documentation (and any updates, upgrades, new releases, modifications, enhancements and improvements to, or derivative services thereof) belong and shall belong to TLN.  The Customer shall have no rights in or to the Services, Software, GEMBA Programme(s), Add-Ons and Masterclasses other than the right to use them in accordance with these Terms.

13.2 TLN acknowledges that all Intellectual Property Rights of the Customer that existed prior to the performance of the Services and any Intellectual Property Rights created by the Customer independently of the Agreement (“Customer Background IPR”) belong and shall belong to the Customer, and TLN shall have no rights in or to Customer Background IPR other than the limited right to use it for the purpose of performing the Services.

13.3 The Authorised Users own the Intellectual Property Rights in their Contributions and the Customer shall procure that the Authorised Users grant to TLN a worldwide, non-exclusive, transferable, perpetual and sub-licensable licence to use, copy, modify, distribute, publish and process their Contributions.

13.4 In these Terms, ‘Intellectual Property Rights’ means copyright, moral rights, trademarks, business names and domain names, goodwill, rights in computer software, database rights, and all other intellectual property rights, in each case whether registered or unregistered and all similar or equivalent rights or forms of protection in force now or in the future in any part of the world.

14. INDEMNITIES 

14.1 The Customer shall defend, indemnify and hold harmless TLN against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and Documentation, provided that:

14.1.1 the Customer is given prompt notice of any such claim;

14.1.2 TLN provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

14.1.3 the Customer is given sole authority to defend or settle the claim.

14.2 TLN shall indemnify the Customer against any claim that the Customer’s use of the Services or Documentation in accordance with the Agreement infringes a third party’s validly existing  Intellectual Property Rights, provided that, if any third party makes a claim, or notifies an intention to make a claim, against the Customer which may reasonably be considered likely to give rise to a liability under this indemnity (“Claim”), the Customer:

14.2.1 promptly gives written notice of the Claim to TLN, specifying the nature of the Claim in reasonable detail;

14.2.2 does not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of TLN;

14.2.3 gives TLN the sole authority to defend or settle the claim; and

14.2.4 takes such action (at TLN’s reasonable expense) as TLN may reasonably request to avoid, dispute, compromise or defend the Claim. 

14.3 In the defence or settlement of any claim, TLN may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on immediate notice to the Customer without any liability or obligation to pay damages or other costs to the Customer.

14.4 TLN shall not in any circumstances have any obligation or liability for any Claim that is based on or results from (in whole or in part):

14.4.1 the Customer’s use of the Services or Documentation in combination with software or hardware not supplied or approved in writing by TLN;

14.4.2 use of any version of the Software, Services or Documentation other than the latest version supplied by TLN, if such claim could have been avoided by the use of such supplied version;

14.4.3 any feature of the Software, Services or Documentation which was specified by the Customer;

14.4.4 modification of the Software, Services or Documentation by anyone other than TLN;

14.4.5 non-compliance with TLN’s designs, specifications or user documentation;

14.4.6 any products, services or intellectual property of the Customer or any third-party; or

14.4.7 use of the Services or Documentation after notice of the alleged or actual infringement.

14.5 The foregoing  and clause 20.3 state the Customer’s sole and exclusive rights and remedies, and  TLN’s entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

15. CONFIDENTIALITY AND PUBLICITY 

15.1 Each party undertakes not to use the other party’s Confidential Information otherwise than in the exercise and performance of its rights and obligations under the Agreement (“Permitted Purposes”).

15.2 Each party shall treat as confidential all Confidential Information of the other party.  Each party shall not, without the prior written consent of the other party, divulge any of the other’s Confidential Information to any person except to its own employees and contractors, who need to know it for the Permitted Purposes, and are bound by written confidentiality undertakings no less strict than those herein.  TLN and the Customer shall ensure that all recipients of any Confidential Information are made aware of, and comply with this clause.

15.3 Each Party must use commercially reasonable methods, at least as substantial as the methods it uses to protect its own confidential information, data and materials of a similar nature, to maintain and cause its employees, officers and contractors to maintain the confidentiality of the Confidential Information. A Receiving Party may not modify or delete any intellectual property or proprietary rights legend appearing in the Disclosing Party’s Confidential Information.

15.4 Each party shall notify the other party if any of its staff connected with the provision or receipt of the Services becomes aware of any unauthorised disclosure of any Confidential Information.

15.5 Except as provided in these Terms, no party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other party, except as required by law, any governmental or regulatory authority, or any court or other authority of competent jurisdiction.

15.6 For the purposes of these Terms, ‘Confidential Information’ means information of commercial value, in whatever form or medium, disclosed by a party to the other party that is of a confidential nature but shall exclude information that: (i) is or becomes publicly known other than through any act or omission of the receiving party, (ii) was in the other party’s lawful possession before the disclosure (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure, (iv) or is independently developed by the receiving party, which independent development can be shown by written evidence.

16. DATA PROTECTION AND PRIVACY 

16.1 TLN and the Customer shall each independently comply with its obligations under the Data Protection Legislation.  TLN and the Customer are each independent data controllers in respect of the personal data of the Authorised Users and Authorised Third Party.  

16.2 Our Privacy Policy also governs the Customer’s use of our Services and explains how we collect, safeguard and disclose personal data that results from  the Customer’s use of our Services and web pages: https://thegemba.com/privacy-notice.

16.3 In these Terms, ‘Data Protection Legislation’ means: (i) to the extent the UK GDPR (as defined in the Data Protection Act 2018) applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data, and (ii) to the extent the EU GDPR (General Data Protection Regulation ((EU) 2016/679)) applies, the law of the European Union or any member state of the European Union to which TLN is subject, which relates to the protection of personal data.

17. COMMUNICATIONS

By subscribing to our Services, the Customer and its Authorised Users agree to receive newsletters, marketing or promotional materials and other information we may send concerning the Services and similar products and services from TLN. However,  the Customer and its Authorised Users may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or by emailing us at theteam@thegemba.com.

18. DISCLAIMER OF WARRANTIES 

18.1 The Customer acknowledges and agrees that the Services, Documentation and any Hardware supplied by TLN are provided by us on an “as is” and “as available” basis. Neither TLN nor anyone associated with TLN makes any representations or warranties of any kind, express or implied: (i) as to the operation of the Services, Documentation and any Hardware supplied by us, or the information, content or materials included therein; (ii) as to the completeness, security, reliability, quality, accuracy, or availability of the Services, Documentation and such Hardware; (iii) that defects in the Services, Documentation and such Hardware will be corrected; (iv) that the Services or the server that makes it available, and any Hardware supplied by us are free of viruses or other harmful components;  (v) that the Services, Documentation and any Hardware supplied by us (or any results, information, services or items obtained through them) will be accurate, reliable, error-free, uninterrupted or otherwise meet  the Customer’s needs or expectations.   

18.2 The Customer assume sole responsibility for results obtained from the use of the Services, Documentation and Hardware supplied by us, and for conclusions drawn from such use.

18.3 We hereby exclude all warranties, representations, conditions and all other terms of any kind, whether express or implied, statutory, or otherwise, including but not limited to any warranties of merchantability, non-infringement, and fitness for particular purpose to the fullest extent permitted by applicable law.

19. THIRD PARTY PRODUCTS AND SERVICES

The Customer acknowledges that the Services, Documentation, Hardware and Group Chats (as defined above) may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites, apps, platforms and that it agrees it does so solely at its own risk. TLN makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party websites, apps, platforms or services or any transactions completed, and any contract entered into by the Customer, with any such third party.  Any such contracts and transactions are between the Customer and the relevant third party. TLN recommends that the Customer refers to the third party’s terms and conditions prior to using the relevant third-party website, app, platform or services. TLN does not endorse or approve any third-party website, app, platform or services nor their content.

20. LIMITATION OF LIABILITY 

20.1 TLN shall have no liability for any loss or damage caused by: (i) errors or omissions in any information or instructions provided to TLN by the Customer in connection with the Services, Documentation and any Hardware supplied by TLN, (ii) any actions taken by TLN at the Customer’s direction, (iii) for any downtime or interruption to the Services, Documentation and any Hardware supplied by TLN caused by the Customer’s systems, or the actions of the Customer or any third party  (including providers of communications networks and facilities) and (iv) use by any other customer of TLN (or any third parties) of our services, products, documentation, platform, website, group chats and hardware supplied by us. The Customer acknowledges that any Contributions posted by other users are the views of that user and not of TLN and TLN shall have no responsibility or liability in connection with such Contributions.

20.2 TLN shall not be liable whether in tort (including for negligence or breach of duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses, or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement.

20.3 Except as expressly stated in clause 20.4, TLN’s total aggregate liability in contract (including in respect of any indemnities in these Terms), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total Fees paid (excluding VAT and other applicable taxes) during the 12 months immediately preceding the date on which the claim arose.

20.4 Nothing in these Terms excludes the liability of TLN for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.

21. INSURANCE

During the term of the Agreement, TLN shall at its expense maintain appropriate insurance policies in relation to the Services, including as required by law.

22. FORCE MAJEURE 

TLN shall not be liable for any delays, failures or defects caused by events, occurrences or circumstances beyond TLN’s reasonable control (“Force Majeure Event”), including without limitation war, disease, epidemics, pandemics, natural disasters, strikes/lockouts, public orders, restrictions or failures with respect to utility services, transport or telecommunications networks. In such event, TLN’s obligations are suspended as long the Force Majeure Event prevents TLN from fulfilling such obligations and TLN shall be entitled to a reasonable extension of the time for performing such obligations.

23. VARYING THESE TERMS 

TLN reserves the right to amend these Terms from time to time and will notify the Customer in advance of any material changes.  If the Customer does not agree to any such changes, it may terminate the Services in accordance with these Terms. If the Customer continues to use these Services, the Customer will be deemed to have agreed to our amended terms.

24. WAIVER AND SEVERABILITY

24.1 No waiver by TLN of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of TLN to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

24.2 If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect.

25. NOTICES

Any notice given to a party under or in connection with these Terms shall be in writing, addressed to that party at its registered office (or e-mail address) and delivered personally or sent by pre-paid first class post or other next working day delivery service (or by e-mail). A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by e-mail shall be deemed to have been received at the time of transmission (provided no error message is received).

26. FURTHER ASSURANCE

Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to the Agreement.

27. ENTIRE AGREEMENT

The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.

28. THIRD PARTY RIGHTS

The Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.  No one other than a party to the Agreement shall have any right to enforce any of its terms.

29. GOVERNING LAW AND JURISDICTION

29.1 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.

29.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).