By using any Neovation® Custom Learning Services, you are agreeing to these terms. Be sure to occasionally check back for updates.
These Terms and Conditions (“Terms”) govern your retention of Neovation Custom Learning (Neovation Custom Learning, a division of Neovation Corporation) (“Neovation Custom Learning”, “we”, “us” and “our”) as an independent contractor for the provision of certain learning module design and development services (collectively, the “Services”).
In these Terms, you are referred to as “Client”, “you” or “your”. If you are agreeing to these Terms not as an individual but on behalf of a company, then “Client”, “you” or “your” means your company and you are binding your company to these Terms.
Neovation Custom Learning reserves the right to change these Terms at any time, effective upon the posting of modified Terms, and Neovation Custom Learning will communicate these changes to you via email or notification via our website. It is your obligation to ensure that you have read, understood and agree to the most recent Terms available on our website here: https://www.neovation.com/legal/custom-learning-services-terms.
(a) “Confidential Information” includes all information exchanged between the parties in connection with these Terms and the Services to be provided to you by Neovation Custom Learning, whether in writing, electronically, or orally, but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party.
(b) “Deliverables” means the training modules and any related products, materials, information or any other work product as may be specified in the applicable Proposal to be provided by Neovation Custom Learning to the Client under these Terms during the course of providing the Services.
(c) “Intellectual Property Rights” means patents (and anything that may be patentable), copyright, trademarks (and associated goodwill), trade secrets, industrial designs, domain names, software, formulas, processes, composition of matter, databases, and inventions, whether or not recognized by law or registered, and includes intellectual property applications, registrations and licenses anywhere in the world.
2.0 Services Rendered
2.1 DESIGN AND SCOPE OF SERVICES
We create training modules based on your supplied content. Depending on the scope of work, as described in a Proposal made under these Terms, this may include a variety of tasks such as interviewing your subject matter experts, performing independent research on the course topic, video editing, narration, translation and graphic design.
Each Proposal will include a description of the applicable Services and Deliverables, project scope, and project timeline. The project scope will include a description of the applicable training curriculum for which the Deliverables are to be designed, and the project timeline will provide a timeline for the commencement of work and completion of the applicable Deliverables.
Each Proposal must be mutually agreed upon by the parties. In the event of any conflict between these Terms and any Proposal, these Terms shall govern.
You’ll have opportunities to review our work and provide feedback. For greater certainty, you shall have 10 days from the formal submission of the Deliverable to review and inspect any Deliverable following which, unless you have provided written notice of non-conformance, you will be deemed to have accepted such Deliverable.
You may also increase the scope under any Proposal by asking us to perform additional tasks. We will provide a quote for any scope increases requested.
Unless otherwise contracted for, we will certify your module(s) to work on the versions of Edge, Firefox, Chrome and Safari on a Mac or Windows PC that are current at the time of course creation. While we expect most modules to work correctly on most mobile devices, they are not supported by default unless it is in your contract.
Unless otherwise specified, we will deliver your modules in an xAPI package. If requested, we can provide your module in SCORM 1.2 or SCORM 2004, AICC, cmi5, MP4 or web format. We certify that your modules will work with the SCORM Cloud LMS, which is the gold standard for LMS compatibility. If you require support with compatibility with your LMS, we can provide that at an hourly rate.
Accessibility features are not included by default. If you require your courses to be accessible, this must be specified in your contract. Upon request, we can tailor courses to meet Web Content Accessibility Guidelines (WCAG) 2.1 Level AA and Revised Section 508 standards. These tailored courses will be compatible with screen readers like NVDA, JAWS, and Mac VoiceOver on current Mac and Windows PCs. Our course content is created with various tools, and we are limited by their support of accessibility features. While these courses might work on most mobile devices, we don't ensure mobile device compatibility unless explicitly stated in your contract.
Our review process should allow us to both catch any errors or issues, but we understand that sometimes things are missed, and only found by you or us after the courses are finalized (we are all human!). Therefore, for a period of 30 days after your approval of a Deliverable, we will fix any minor bugs or errors within the Deliverable. This warranty does not include bugs or issues beyond our control - for instance, bugs or limitations with the course authoring tool, web browser, or Learning Management System (LMS) used to view the course.
Other than as expressly set out above, we make no other express warranties or representations, or any implied warranties or representations, of any kind whatever relating to the Services and Deliverables under these Terms. Without limiting the generality of the foregoing, we can’t guarantee that our work will be error-free and we do not warrant that the Services or Deliverables will meet your requirements or will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
3.0 Mutual Cooperation
We agree to use reasonable best efforts to provide the Services and Deliverables in accordance with the requirements and specifications set out in the applicable Proposal.
You agree to aid us in doing so by making available to us needed information pertaining to your courses and to cooperate with us in expediting the work by providing timely and comprehensive feedback.
4.0 Charges for Services Performed
4.1 FEES AND PAYMENT TERMS
The fees for the Services and Deliverables (the “Fees”) will be set out in each applicable Proposal.
Unless otherwise set out in the applicable Proposal, all amounts payable under these Terms shall be paid by you to Neovation Custom Learning within 30 days of receipt by you of the corresponding invoice.
We’re sure you understand how important it is that you will promptly pay the invoices that we send you. We’re also sure you’ll want to maintain a positive working relationship and keep the project moving forward, so you agree to stick tight to the applicable payment schedule.
Unless otherwise provided in the applicable Proposal, all amounts are payable in United States Dollars (USD) and include all costs including, without limitation, all applicable tariffs, duties and taxes (excluding any applicable GST, PST, and/or other provincial sales tax).
4.2 COLLECTION COSTS
In the event that we incur legal fees, costs and disbursements in an effort to collect any overdue Fees, in addition to interest on the unpaid balance, you agree to reimburse us for these expenses provided they are reasonable.
4.3 FEES FOR ADDITIONAL FUNCTIONALITY
Functionality or feature requests above and beyond those listed in the applicable Proposal will likely result in an increase in Fees and will require a mutually agreed upon amendment to the Proposal.
5.0 Cancellation of Plans
You have the right to modify, reject, cancel or stop any and all Services in progress under any Proposal. However, you agree to reimburse us for all demonstrated and substantiated time spent on the project up to the date of such cancellation, at our standard hourly rate of $120/hr. We agree to use our best efforts to minimize such costs and expenses.
Projects undertaken pursuant to a Proposal that go dormant for longer than 45 days because of your failure to be responsive to review requirements will incur a fee to resume work of $100.
6.1 OUR RESPONSIBILITIES FOR RELEASES
We shall obtain all applicable releases, licenses, registrations, permits or other authorization necessary or appropriate for us to perform and provide the Services to you.
6.2 YOUR RESPONSIBILITIES FOR RELEASES
You guarantee that all elements of text, images, or other artwork and any data or other information (including any personal information) you provide to us in relation to our performance of the Services are either owned by you or that you have permission to use them.
6.3 CLIENT RESPONSIBILITY FOR ACCURACY
You shall be responsible for the accuracy and completeness of and any proprietary rights in or to any information you provide to us (orally or in writing) in relation to our performance of the Services.
6.4 INTELLECTUAL PROPERTY RIGHTS
Subject to full payment of the applicable Fees under the corresponding Proposal, all Deliverables developed specifically for you, and all Intellectual Property Rights therein, shall belong to you. We’ll give you source files and finished files and you should keep them somewhere safe as we’re not required to keep a copy. You own all elements of text, images and data you provided, unless someone else owns them.
For greater certainty, Neovation Custom Learning and its licensors shall retain ownership to any technology, software, processes, procedures or documents, and all Intellectual Property Rights therein, owned by Neovation Custom Learning or its licensors prior to entering into these Terms, or developed by Neovation Custom Learning outside of the Services (collectively, “Background Technology”), provided that to the extent that any such Background Technology is incorporated into or required to enjoy the full benefit of any Deliverables provided to you, Neovation Custom Learning hereby grants to you a non-exclusive, fully-paid, royalty-free, world-wide, irrevocable and perpetual license to use, execute, reproduce, display, perform and modify such Background Technology to the extent reasonably necessary to maintain, repair, use, enjoy and/or exploit such Deliverables.
Unless the receiving party has the prior written consent of the disclosing party or unless required to do so by law:
- The receiving party will preserve the confidentiality of all Confidential Information of the disclosing party obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
- At any time upon the request of the disclosing party, or otherwise upon termination of these Terms, the receiving party will immediately return to the disclosing party all of the disclosing party’s Confidential Information and copies thereof or, if directed by the disclosing party, the receiving party will immediately destroy such Confidential Information and all copies thereof and shall furnish proof of their destruction to the disclosing party.
- Each party’s obligations under this Clause 7.1 will survive termination of these Terms.
8.0 Term and Termination
8.1 PERIOD OF AGREEMENT
These Terms shall commence on the date of your acceptance of a Proposal and shall continue in effect unless: (i) terminated or completed as set out herein, or (ii) the parties mutually agree to terminate these Terms.
8.2 TERMINATION FOR CAUSE
Either party may terminate a Proposal or these Terms in their entirety if the other party defaults in the performance of any of its material duties and obligations and the default is not cured within 15 days of the receipt of notice of said default, or if the default is not reasonably curable within said period of time, unless the defaulting party commences cure within said period of time and diligently proceeds to cure the default.
In addition, either party may immediately terminate these Terms by giving written notice to the other party if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, if the other party makes an assignment for the benefit of creditors, if a trustee, or similar agent is appointed with respect to any property or business of the other party, or if you materially breach your obligations to make payment pursuant to these Terms or a Proposal made under these Terms and the cure period, after notice, has expired.
9.0 Limitation of Liability and Indemnification
We can’t guarantee that our work will be error-free, (we’re human!) so we can’t be liable to you or any third-party for lost profits or other consequential or special damages including, without limitation, those resulting from loss of use, data, or profits, even if you’ve advised us of them.
Notwithstanding the above, we accept and shall indemnify you and hold you and your affiliates harmless from and against all claims, liabilities, damages and expenses, including reasonable legal fees, arising out of, in whole or in part, from our violation of any of these terms, or any violation or claimed violation of a third party's rights because of your use of Deliverables as provided under these Terms, including, without limitation, any intellectual property or privacy right.
In the event that any claim or liability arises against us, our aggregate liability under any Proposal in connection with the Services, Deliverables, or any other circumstance giving rise to liability shall be limited to direct damages only, and such direct damages shall not exceed the amount actually paid by you under the applicable Proposal.
Upon a request by us, you agree to defend, indemnify, and hold us and our affiliates harmless from all liabilities, claims, damages and expenses, including reasonable legal fees, arising out of, in whole or in part, from your use or misuse of the Services or Deliverables, your violation of any of these terms, your violation of any third party right, including, without limitation, any intellectual property or privacy right.
Each party reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by it, in which event the other party will cooperate in asserting any available defenses. This defense and indemnification obligation will survive these Terms.
10.0 General Provisions
10.1 GOVERNING LAW
Any account at law or in equity arising under these Terms will be conducted (i) in the Courts of Manitoba, Canada should the Client have its principal place of business in Canada, or (ii) in the Courts of Delaware, U.S. for all other Clients. The parties hereby consent and submit to the exclusive personal jurisdiction of such courts for the purposes of litigating any such action.
In interpreting these Terms, the parties agree that the laws of the filing jurisdiction shall govern.
10.2 REPRESENTATIONS AND WARRANTIES
The parties each individually represent and warrant that each has full power and authority to enter into these Terms and to perform all of their obligations hereunder without violating the legal or equitable rights of any third party.
10.3 ENTIRE AGREEMENT
Except as otherwise set forth or referred to in these Terms, these Terms and the Proposal made pursuant hereto constitute the sole and entire agreement and understanding between the parties hereto as to the subject matter hereof, and supersedes all prior discussions, agreements and understandings of every kind and nature between them as to such subject matter.
If any provision of these Terms is held to be illegal, invalid, or unenforceable under any present or future law, then that provision will be fully severable. In such instance, these Terms will be construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part of these Terms, and the remaining provisions of these Terms will remain in full force and effect.
Neither party may assign or transfer any rights under these Terms to any other person without the other party’s prior written consent, which consent may not be unreasonably withheld.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
Sections 6, 7, 9 and 10 shall survive termination of these Terms.
Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Neovation Custom Learning must be sent to firstname.lastname@example.org or to any other email address notified by email to you by Neovation Custom Learning. Notices to you will be sent to the email address provided by you to Neovation Custom Learning or otherwise set out in the applicable Proposal.
In the event a party provides written notice to the other party of any controversy, claim, dispute, difference or misunderstanding between the parties arising out of or relating to these Terms, each party shall designate managers to meet within ten (10) business days and negotiate in good faith in an attempt to reach a written resolution.
If the parties are unable to resolve the matter through good faith negotiations within ten (10) business days of such meeting, the parties shall, within five (5) additional business days, jointly prepare a written position statement which summarizes the unresolved issues and each party’s proposed resolution.
Such position statement shall be delivered to each party’s responsible senior executive for resolution within (5) business days. In the event that any matter arising hereunder is not resolved within the specified time periods, each party shall be entitled to pursue any and all remedies that are available to it at law or equity.
In the event of a dispute arising out of or relating to these Terms, each party shall continue to perform its respective obligations hereunder as long as the other party is attempting to resolve the dispute in good faith and such other party is not in material breach of these Terms.
WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. IN ADDITION, YOU AGREE WITH NEOVATION CUSTOM LEARNING TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE WITH NEOVATION CUSTOM LEARNING THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.