Terms of Service

Last Modified: January 10, 2019

By signing up for the Learnsby LMS Subscription Service (the "Service" or "Learnsby") and using the Learnsby website (the "Site") or any of the services of A Head in the Cloud (Pty) Ltd. ("A Head in the Cloud", "we", "us" or "our") you or the entity that you represent ("You" or "Your") are agreeing to be bound by the following terms and conditions ("Terms of Service" or "Terms"). If you are signing up on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don't have the legal authority to bind your employer or the applicable entity you may not access or use this Service.

PLEASE NOTE THAT IF YOU SIGN UP FOR THE SERVICE USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (i) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (ii) YOUR SIGNING UP FOR THE SERVICE WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (iii) THE WORD "YOU" IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.

Any new features, tools or resources which are added to the current Service shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time here. A Head in the Cloud reserves the right to update and change the Terms of Service from time to time without notice. Continued use of the Service after any such changes shall constitute your consent to such changes. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you.

1. Administrators

Through the Service, you may be able to specify certain End Users as Administrators, who will have important rights and controls over your use of the Service and End User Accounts. This may include making changes to your subscription (which may incur fees); creating, deleting, monitoring or modifying End User Accounts, and setting End User usage permissions; and managing access to Your Data by End Users or others. Administrators may also take over management of accounts previously registered using an email address belonging to your domain. Without limiting Section 2 (Responsibility for End Users), which fully applies to Administrators, you are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Service for you.

2. Responsibility for End Users

  1. You will provide all required disclosures to and will obtain and maintain all required consents from End Users to allow: (i) Administrators to have the access described in the Terms and the Privacy Policy; and (ii) A Head in the Cloud's provision of the Service to Administrators and End Users. You will provide evidence of such consents upon our reasonable request.
  2. You are responsible for compliance with the Terms by all End Users, including for any payment obligations. Please note that you are responsible for the activities of all your End Users, including fees they may incur and how End Users use Your Data, even if those End Users are not from your organisation or domain. We may display our User Notice to End Users at sign up, account creation, registration, or in-product. If you use single sign-on (SSO) for identity management of your Service such that End Users will bypass these screens and our User Notice, you are responsible for displaying our User Notice to End Users and for any damages resulting from your failure to do so.
  3. You must require that all End Users keep their user IDs and passwords for the Service strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.

3. Account Terms

  1. You must be a natural person and you must be of legal age to use this Service.
  2. You must provide your full legal name, current address, company name, a valid email address, and any other information needed in order to complete the signup process.
  3. Your login may only be used by one person - a single login shared by multiple people is not permitted. You may create separate logins for as many people as your plan allows.
  4. You are responsible for keeping your password secure. A Head in the Cloud cannot and will not be liable for any loss or damage from your failure to maintain the security of your account and password.
  5. You may not use the Service for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
  6. You are responsible for all activity and content (data, graphics, photos, links) that is uploaded to the Service (even when content is posted by your End Users).
  7. You must not upload, post, host, or transmit unsolicited email, SMSs, or "spam" messages.
  8. You must not transmit any worms or viruses or any code of a destructive nature.
  9. A breach or violation of any of the Account Terms as determined in the sole discretion of A Head in the Cloud will result in an immediate termination of your services.

4. General Conditions

  1. You must read, agree with and accept all of the terms and conditions contained in these Terms and the Privacy Policy before you may become a member of the Service.
  2. You understand that we use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
  3. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by A Head in the Cloud.
  4. You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, A Head in the Cloud, or any other A Head in the Cloud service.
  5. You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use A Head in the Cloud trademarks and/or variations and misspellings thereof.
  6. You understand that the technical processing and transmission of the Service, including your Content, (not including credit card information) may be transfered unencrypted and may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit Card information is always encrypted during transfer over networks.
  7. Questions about the Terms of Service should be sent to support@learnsby.com.

5. A Head in the Cloud's Rights

  1. We reserve the right to modify or terminate the Service for any reason, without notice at any time.
  2. We reserve the right to refuse service to anyone for any reason at any time.
  3. We may, but have no obligation to, remove Content and End User Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party's intellectual property or the Terms of Service.
  4. A Head in the Cloud does not pre-screen Content and it is in their sole discretion to refuse or remove any Content that is available via the Service.
  5. Verbal or written abuse of any kind (including threats of abuse or retribution) of any A Head in the Cloud customer, employee, member, or officer will result in immediate account termination.
  6. We reserve the right to provide our services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that A Head in the Cloud employees and contractors may also be customers of the Service and that they may compete with you, although they may not use your confidential information in doing so.
  7. We retain the right to contact you from time-to-time via telephone or email.

6. Limitation of Liability

  1. You expressly understand and agree that A Head In the Cloud shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if A Head in the Cloud has been advised of the possibility of such damages) resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the Service; (v) or any other matter relating to the Service.
  2. In no event shall A Head in the Cloud nor our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with our Site, our Service or the Terms (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, partners, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of the Terms or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
  3. Your use of the Service is at your sole risk. The Service is provided on an "as is" and "as available" basis without any warranty or condition, express, implied or statutory.
  4. A Head in the Cloud does not warrant that (i) the service will meet your specific requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, and (v) any errors in the Service will be corrected.
  5. A Head in the Cloud cannot be held liable for cross-browser incompatibilities that cause Service failures. We recommend that you and your employees or customers use the latest versions of Google Chrome, Microsoft Edge or Mozilla Firefox.

7. Waiver and Complete Agreement

The failure of A Head in the Cloud to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service and Privacy Policy constitutes the entire agreement between you and A Head in the Cloud and govern your use of the Service, superseding any prior agreements between you and A Head in the Cloud (including, but not limited to, any prior versions of the Terms of Service). We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Service.

8. Intellectual Property and Customer Content

  1. We do not claim any intellectual property rights over the text, files, images, photos, video, sounds, links, works of authorship, or any other materials you provide to the Service (collectively, "Content"). All material you upload remains yours. You can remove your Content at any time by deleting your account.
  2. By uploading Content to the Service, you agree to allow other internet users to view them and you agree to allow the Service to display and store them and you agree that A Head in the Cloud can, at any time, review all the Content submitted by you to its Service.
  3. We will not disclose your confidential information to third parties, except as required in the course of providing our services. Confidential information includes any materials or information provided by you to us which is not publicly known. Confidential information does not include information that: (i) was in the public domain at the time we received it, (ii) comes into the public domain after we received it through no fault of ours, (iii) we received from someone other than you without breach of our or their confidentiality obligations, or (iv) we are required by law to disclose.
  4. The look and feel of the Service is copyrighted. You may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without express written permission from A Head in the Cloud.
  5. This is the Terms for access to and use of the Service, and you are not granted a license to any software by these Terms. The Service, or any other A Head in the Cloud service, are protected by intellectual property laws, they belong to and are the property of A Head in the Cloud or our licensors (if any), and we retain all ownership rights to them.
  6. You grant A Head in the Cloud the right to add your name and company logo to our customer list and the Site.

9. Payment of Fees

  1. A valid credit card is required for paying accounts. Free accounts are not required to provide a credit card number.
  2. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable.
  3. Your subscription is billed in advance on a monthly or annual basis and is non-refundable.
  4. Unless your subscription is cancelled prior to the expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in the Service. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the Service continuing to be offered and will be charged at the then-current rates.
  5. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. No exceptions will be made.
  6. In cases where you exhaust the purchased active users for the billing cycle, overages will apply. Fees for applicable overages shall be invoiced and charged (as the case may be) in arrears, an invoice will be generated on the last day of your current billing cycle, and payment terms are 7 days, unless otherwise stated.
  7. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
  8. Should payment not be made by or on the due date, A Head in the Cloud has the right to deny access to the Service, in which event all End Users (except Administrators) of the Service will be prevented from accessing the Service until such outstanding invoices are paid.
  9. If the Service is suspended because we did not receive payment in accordance with these Terms, we will preserve your Content in accordance with our normal backup processes and procedures for 30 days. After that time your subscription to the Service will be terminated and your Content and all End User Accounts will be deleted.
  10. For any upgrade in plan level or otherwise increase your use of the Service, the credit card that you provided will automatically be charged the new rate, prorated for the remainder of the then-current Subscription Term.

10. Cancellation and Termination

  1. You are solely responsible for properly cancelling your Account and for ensuring specific processes are completed prior to cancellation (such as delivery of your data, should it be requested). An email or phone request to cancel your account is not considered cancellation. Cancellations will only be accepted from within the Service.
  2. If you cancel the Service before the end of your current paid up Subscription Term, your cancellation will take effect at the end of the current Subscription Term and you will not be charged again.
  3. Once your account is cancelled all of your Content and End User Accounts will be immediately deleted from the Service. Since deletion of all data is final please be sure that you do in fact want to cancel your account before doing so.
  4. We reserve the right to modify or terminate the Service for any reason, without notice at any time. Such termination of the Service will result in the deactivation or deletion of your account or your access to your account, and the forfeiture and relinquishment of all Content in your account.
  5. A Head in the Cloud reserves the right to refuse any and all current or future use of the Service, or any other A Head in the Cloud service, to anyone for any reason at any time.
  6. Without limiting any other remedies, Learnsby may suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Service.

11. Support

  1. Technical support is only provided to paying account holders and is only available via email. This support will be provided during normal working hours, defined as Monday to Friday 09h00 to 17h00 SAST, excluding South African public holidays.
  2. We may solicit or you may provide feedback about the Service. We are free to use and disclose this feedback for any purpose without an accounting to you or any other person. Further, A Head in the Cloud owns all rights, titles and interests in and to any changes, modifications or upgrades we make to our current products or services and any new products or services that we develop using such feedback.
  3. A Head in the Cloud's goal is to respond to notifications of severe faults within thirty minutes ("Error Response"). Our Error Response goal is a time to acknowledge only, not a time to resolve. We make no guarantee that our Error Response goal will be met.
  4. Certain aspects of the Service may be in beta form as designated by us ("Beta Services"). Technical support for Beta Services will be available free of charge via email. This support will be provided during normal working hours, defined as Monday to Friday 09h00 to 17h00 SAST, excluding South African public holidays. We reserve the right to terminate technical support to the Beta Services at any time. We make no guarantee that Beta Services will be put into production.

12. Usage

  1. A subdomain will be provided to you when you sign up for the Service, you have the right to use this subdomain only during the current Subscription Term and subject to these Terms. Upon termination or expiration of the Terms for any reason you will have no further right to use this subdomain.
  2. Where you are required to specify a domain for the operation of the Service, we may verify that you own or control that domain. If you do not own or control the domain you specify, then we will have no obligation to provide you with the Service.
  3. Active users and storage not utilised during the relevant billing cycle is not carried over and is lost.
  4. You can proactively manage your usage by logging in to the Service to check your active users and storage usage for the current billing cycle.
  5. If your bandwidth usage exceeds 500 MB/month, or significantly exceeds the average bandwidth usage (as determined solely by A Head in the Cloud) of other A Head in the Cloud customers, we reserve the right to immediately disable your account or throttle your usage until you can reduce your bandwidth consumption.

13. Modifications to the Service and Prices

  1. Prices for using the Service are subject to change upon 30 days notice from A Head in the Cloud. Such notice may be provided at any time by posting the changes to the Site (www.learnsby.com/pricing) itself.
  2. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.
  3. We shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.

14. Optional Tools

  1. We may provide you with access to third party tools over which we have no control or input, nor monitor.
  2. You acknowledge and agree that we provide access to such tools 'as is' without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third party tools.
  3. Any use by you of optional tools offered through the service is entirely at your own risk and discretion and you should ensure that you are familiar with and approve the terms on which tools are provided by the relevant third party provider(s).

15. Severability

In the event that any of the terms of these Terms of Service are found to be invalid, unlawful or unenforceable such terms will be severable from the remaining terms, which will continue to be valid and enforceable.

16. Interpretation

As used herein, "including" (and its variants) means "including without limitation" (and its variants). Headings are for convenience only.

17. Governing Law

The validity and interpretation of these Terms will be governed by the Laws of the Republic of South Africa.

18. Definitions

Certain capitalized terms are defined in this section, and others are defined contextually in the Terms.

"Administrators" mean the personnel designated by you who administer the Service to End Users on your behalf.

"Content means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to the Service. In this context, "submit" (and any similar term) includes submitting, uploading, transmitting or otherwise making available Content to or through the Service.

"End User" means an individual you permit or invite to use the Service. For the avoidance of doubt: (a) individuals invited by your End Users, and (b) individuals interacting with the Service as your customer are also considered End Users.

"End User Account" means an account established by you or an End User to enable the End User to use or access the Service.

"Subscription Term" means your permitted subscription period for the Service, as set forth in your account.

"Your Data" means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to the Service. In this context, "submit" (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Service.