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Digital Learning Labs Terms and Conditions

 

 

 

1.1 In these Terms and Conditions, references to “ADB”, “us” or “we” are to the Asian Development Bank, while references to “you”, “your”, or “participant” are to you, the person or organization which is participating in the Digital Learning Labs.

 

1.2 The agreement between you and us in relation to your participation in the Digital Learning Labs (“Agreement”) is set out in the following documents, which, in case of inconsistency between the documents, will be interpreted in the indicated order:

(a) our letter of acceptance of your application to participate in the Digital Learning Labs (“Letter of Acceptance”),

(b) the payment and intellectual property (IP) terms annex (if any) setting out the agreement between you and us on (i) ADB’s reimbursement of your costs in relation to your participation in the Digital Learning Labs; and (ii) ownership of any intellectual property produced through your participation in the Digital Learning Labs (“Payment and IP Terms Annex”);

(c) these Terms and Conditions; and

(d) your Digital Learning Labs application, as revised to include feedback from ADB (“Application”).

 

1.3 The support offered by ADB to you through the Digital Learning Labs is solely in relation to the proposition for an innovative product or service as outlined in your accepted Application (the “Proposed Innovation”).

 

1.4 We will use our reasonable skills and care in providing our feedback, guidance, or other advice (“Feedback”). Unless we expressly document otherwise, our Feedback will be based on the specific information that you share with us.

 

1.5 You and we agree to cooperate to help you and us get the most out of your participation in the Digital Learning Labs. You agree to remain open and transparent with ADB at all times in relation to the Proposed Innovation. If you are aware of any information that you believe would affect ADB’s understanding of your Proposed Innovation, you must inform us immediately through ADB’s Authorized Representatives listed in Appendix 1.

 

1.6 You shall take appropriate steps to ensure that neither you nor your employees are placed in a position where, in the reasonable opinion of ADB, there is or may be an actual or potential conflict between your pecuniary or personal interests and your performance of the Digital Learning Labs. You shall disclose to ADB full particulars of any such conflict of interest which may arise.

 

1.7 You warrant and undertake that you and your Proposed Innovation are, and will remain during the term of the Digital Learning Labs, in compliance with all applicable legal and regulatory obligations.

 

1.8 You are not required to comply with the Feedback. Of course, if you choose not to follow our Feedback you might not be able to continue in the Digital Learning Labs or be subsequently engaged by ADB to provide your product or service through ADB’s regular institutional procurement process (see Clause 5 below). [To be included only where the participant is acting as a lead on behalf of a group:]

 

1.9 You and we acknowledge that you are acting as a lead organization, and the development of the Proposed Innovation is shared among the persons and organizations listed below. You acknowledge and agree that our relationship in relation to the Digital Learning Labs is only with you. You agree to indemnify ADB from and against any claim or complaint brought by a third party, including those listed below, under or in relation to these Terms and Conditions or your participation in the Digital Learning Labs.

 

1.10 A list of persons and organizations you are working with on the Proposed Innovation (including name, address and company number, if applicable) shall be set out in your Application.

 

 

2.1 You hereby recognize and acknowledge the special status of ADB as an international organization which has certain privileges, immunities and exemptions under its Charter document entitled Agreement Establishing the Asian Development Bank (“ADB Charter”) and under its agreement with the Government of the Philippines (“Headquarters Agreement”). You acknowledge and agree that nothing relating to your participation in the Digital Learning Labs or the execution of the Agreement, including these Terms and Conditions, shall derogate from, or be construed as a waiver or release of, any of the privileges, immunities and exemptions accorded to ADB under and in terms of the ADB Charter and the Headquarters Agreement.

 

 

3.1 You shall perform the Digital Learning Labs activities indicated in your Application with due diligence and care and in accordance with the timelines and all other requirements set out in the Agreement, including these Terms and Conditions.

 

3.2 Reasonable care and diligence shall be employed in our dealings with you in relation to the Digital Learning Labs and your Proposed Innovation. However, given the nature of the Digital Learning Labs and our Feedback, we do not accept any liability or responsibility for:

(i) any opinions expressed or information included in any of our Feedback;

(ii) the time it may take for us to provide any Feedback; or

(iii) any other liability under or in relation to the Digital Learning Labs or the Agreement, whether in contract, tort (including negligence or inaction) or otherwise.

 

 

4.1 We will reimburse you for cost of experimentation and out-of-pocket expenses (such as travel, accommodation and per-diem) in relation to your participation in the Digital Learning Labs as specifically provided in the Payment and IP Terms Annex (if any). You understand and agree that in no event will we make any payment to you in the nature of remuneration for your participation in the Digital Learning Labs.

 

 

5.1 Unless extended by us, your involvement in the Digital Learning Labs terminates on the expiry of the agreed term as set out in the Letter of Acceptance (“Contract”) or, if there was no agreed term - when we notify you in writing that it is appropriate for the Digital Learning Labs to end; provided, that, in no event will the term of involvement in the Digital Learning Labs exceed one year from the date of the Letter of Acceptance. If ADB ceases to operate the Digital Learning Labs, your participation in the Digital Learning Labs will automatically cease with immediate effect.

 

5.2 Either you or ADB may at any time, on two week’s written notice, terminate your involvement in the Digital Learning Labs.

 

5.3 ADB may at any time terminate, with immediate effect, your involvement in the Digital Learning Labs and cease providing Feedback and any other regulatory support if:

(i) you commit a material or repeated breach of the Agreement (including these Terms and Conditions), which is not capable of remedy;

(ii) you are subject to bankruptcy, insolvency and/or change of control/ownership;

(iii) ADB determines, in its sole discretion, that you are in non-compliance with ADB’s Anticorruption Policy as set out in Clause 12 below; or

(iv) ADB (acting reasonably) determines that your conduct, either in the course of or outside of the Digital Learning Labs, is likely to bring ADB into disrepute.

 

5.4 You acknowledge that due to the highly innovative nature of the Digital Learning Labs, ADB is entitled to suspend or terminate the Digital Learning Labs project at any time should the Digital Learning Labs trigger detrimental unexpected consequences for ADB.

 

 

6.1 You understand and agree that, once your involvement in the Digital Learning Labs has expired or terminated in accordance with Clause 5 above, any procurement by ADB of your products or services as they relate to the Proposed Innovation or otherwise will need to be carried out in accordance with ADB’s rules and requirements for institutional procurement. Such rules and requirements include you satisfying eligibility and qualification requirements for participation in ADB institutional procurement and the entering into of a written agreement between you and us for such procurement. Accordingly, you acknowledge that we provide no assurance that there will be any further engagement with you subsequent to your participation in the Digital Learning Labs.

 

 

7.1 You will retain your intellectual property rights in, and responsibility for, all content and materials that you contribute to the Digital Learning Labs (“Existing Intellectual Property”). You will only submit Existing Intellectual Property that you have the right to share, use and develop, and you will fully comply with any third-party licenses relating to the Existing Intellectual Property.

 

7.2 All intellectual property rights obtained, created or developed by you during your participation in the Digital Learning Labs (“New Intellectual Property”) will vest as set out in the Payment and IP Terms Annex.

 

7.3 ADB may use Existing Intellectual Property and, subject to Clause 7.2 above, New Intellectual Property as is reasonable to enable it to exercise its rights and perform its functions or obligations in connection with the Digital Learning Labs (the “Use”), and you grant or must procure the grant of royalty-free and non-exclusive licenses to ADB to Use the Existing Intellectual Property and, subject to Clause 7.2 above, the New Intellectual Property.

 

7.4 You warrant and undertake to ensure that the Use by ADB of any Existing Intellectual Property and/or New Intellectual Property will not infringe the rights of any third party.

 

7.5 You agree to defend, indemnify, and hold harmless ADB from and against any liability or loss (including, without limitation, any legal costs) incurred by ADB as a result of, or in connection with, ADB’s Use of Existing Intellectual Property and New Intellectual Property.

 

 

8.1 You must clearly identify to ADB, in writing, which information you provide to us you consider to be your confidential information and provide clear reasons why you regard such information to be confidential (“your confidential information”). We will protect that confidential information as we do our own commercially sensitive information.

 

8.2 During the term of the Digital Learning Labs and for so long as such confidential information remains confidential in nature and not available to the public, we will not use or disclose your confidential information without your prior written consent other than to provide Feedback or other support in connection with the Digital Learning Labs or to fulfil any of the ADB’s functions or obligations, including as set out in this Clause 8.

 

8.3 ADB may disclose your confidential information to such of its employees, agents, consultants, advisors or representatives to the extent that such disclosure is reasonable in relation to the Digital Learning Labs, including for us to provide Feedback, and for the purposes set out in this Clause 8, provided always that such employees, agents, consultants, advisors or representatives are made aware of and comply with the obligations of confidentiality under these Terms and Conditions.

 

8.4 ADB has adopted an Access to Information Policy (AIP) and as such can be asked to disclose certain information that we hold. The AIP may be obtained at www.adb.org. ADB will endeavor to let you know if we are asked to share any information that relates to you and will seek to apply relevant exemptions from disclosure where appropriate.

 

8.5 Should you receive any confidential information belonging to ADB, you will keep that information confidential and only use it for the purpose for which it was provided to you. You will protect that confidential information as you do with your own confidential information. At any time, at our request you shall securely return or securely destroy our confidential information in your possession or control. The obligations in this Clause 8.4 shall continue during the term of the Digital Learning Labs and for so long afterwards as that confidential information remains confidential in nature and not available to the public.

 

 

9.1 ADB represents that it manages information that relates to identified or identifiable natural persons (“Personally Identifiable Information” or “PII”) in accordance with its personal data privacy and protection policy. The PII provided by ADB in the course of the Agreement shall be considered official ADB data and will enjoy the immunities, protections and exemptions accorded to ADB under the ADB Charter.

 

 

10.1 A condition of your participation in the Digital Learning Labs is that you provide us with your consent to make public that you are participating in the Digital Learning Labs along with a short description of your proposition. We will consult with you on the short description we use ahead of publication.

 

10.2 IMPORTANT: Your involvement in the Digital Learning Labs does not represent an approval or endorsement by ADB of you or your Proposed Innovation. Neither you nor anyone acting on your behalf may make any statement or announcement, either expressly or by implication, that suggests that ADB has approved, endorsed, or otherwise accepted your Proposed Innovation.

 

10.3 Your organization is not permitted to communicate to any third party that you are in the Digital Learning Labs, before, during, or after the Digital Learning Labs period, without ADB’s express written and specific consent. This includes, but is not limited to, communications to any organization, media outlet and/or existing or future customers.

 

 

11.1 These Terms and Conditions are governed by English law, subject to the privileges and immunities accorded to ADB under the Charter and the Headquarters Agreement.

 

11.2 In the event of a dispute, controversy or claim arising out of or relating to these Terms and Conditions, including a dispute as to the validity or existence of these Terms and Conditions and/or this clause, you and we shall use our best efforts to amicably settle any differences and disputes through direct negotiation. Any dispute, controversy or claim that remains unresolved within eighty (80) days from the date either you or we have notified the other of the nature of the dispute and of the measures that should be taken to rectify it shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat and venue of arbitration shall be Singapore. The language of the arbitration shall be English. The number of arbitrators shall be one.

 

 

12.1 Our Anticorruption Policy requires you to observe the highest standard of ethics during your participation in the Digital Learning Labs and execution of these Terms and Conditions. The Anticorruption Policy may be obtained at www.adb.org. Any violation of the Anticorruption Policy will result in termination of your participation in the Digital Learning Labs and sanctions being imposed on you, including being declared ineligible, either indefinitely or for a stated period of time, to participate in ADB-financed activities.

 

12.2 Pursuant to our Anticorruption Policy, we:

(a) will not award a procurement contract to a winning bidder that has directly or indirectly engaged in any corrupt. Fraudulent, collusive or coercive practice in competing for the contract in question;

 

(b) may suspend the procurement process at any stage when there is sufficient evidence to support a finding that an employee, agent or representative of the bidders, service contractors and concessionaires has engaged in any corrupt, fraudulent, collusive or coercive practice in competing for, or in executing an ADB- financed contract;

 

(c) will sanction a bidder, service contractor, concessionaire or its successor, if ADB at any time determines that such bidder, service contractor, concessionaire or its successor has, directly or indirectly, engaged in any corrupt, fraudulent, collusive or coercive practice in competing for, or in executing, any contract for the institutional procurement of services. Sanctions include, but are not limited to, declaring such bidder, service contractor, concessionaire or its successor ineligible to participate in ADB-financed activities indefinitely or for a stated period of time except under such conditions as ADB deems appropriate; or reimbursement to ADB of costs associated with investigations and proceedings; and

 

(d) will take appropriate actions to manage conflicts of interest including, but not limited to, rejecting a proposal for award if it determines that a conflict of interest has flawed the integrity of any procurement process.

 

12.3 You agree to be bound by ADB’s Anticorruption Policy as outlined above.

 

12.4 You shall permit us to inspect your accounts and records relating to your participation in the Digital Learning Labs and performance of these Terms and Conditions and to have them audited by auditors appointed by us, if so required by us.

 

 

13.1 Your involvement in the Digital Learning Labs does not create a joint venture, co-ownership, partnership or agency relationship between you and ADB. Neither you nor ADB will have the authority to incur, assume, or create, orally or in writing, any liability, obligation, or undertaking of any kind in the name of, or on behalf of, or in any way binding upon, the other.

 

13.2 The Agreement is not an exclusive arrangement and nothing in the Agreement shall operate to prevent the ADB from engaging any other organizations or persons to provide similar to or the same as the Digital Learning Labs.

 

13.3 We retain the right to amend these Terms and Conditions at any time by giving you reasonable notice in writing.

 

13.4 General words within these Terms and Conditions must not be given a restrictive meaning simply because they are followed by particular examples intended to be embraced by the general words.

 

13.5 Only you and we have rights under this Agreement, including these Terms and Conditions. A person who is not a party to the Agreement has no rights to enforce it or enjoy any benefits under it. You shall not assign, transfer or subcontract the Agreement or specific rights or obligations under it without ADB’s prior written consent.

 

13.6 The Agreement, including these Terms and Conditions, constitute the whole and only agreement between us and you relating to your participation in the Digital Learning Labs. You acknowledge that you have not relied on any representation made by or on behalf of ADB which is not set out in the Agreement, including these Terms and Conditions. If there is any conflict between the documents comprising the Agreement, such document will be interpreted in the order of priority set out in Clause 1.2 above.

 

13.7 Remedies under the Agreement, including these Terms and Conditions, are cumulative and may be exercised concurrently or separately.

 

13.8 If any provision of the Agreement, including these Terms and Conditions, is prohibited by law or determined to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from the Agreement without modifying the remaining provisions.

 

13.9 You and we shall not be liable for delays due to force majeure or fortuitous event. Force majeure shall refer to events, which could not be foreseen, or which though foreseen, are inevitable.

 

13.10 If applicable, you shall comply with applicable ADB rules and regulation on environment, health and safety, Standards of Conduct of Contractors, and relevant labor laws and legislations for the Digital Learning Labs.

 

13.11 Any waiver or relaxation, either partly or wholly, of any of the terms and conditions of the Agreement, including these Terms and Conditions, shall be valid only if it is communicated to the other in writing and expressly stated to be a waiver, and shall not constitute a waiver of any right or remedy arising from any other breach of the Agreement, including these Terms and Conditions.

 

13.12 Any formal notice to be given under the Agreement shall be in writing and may be served by personal delivery, first class recorded post or, e-mail to the address of you or us (as applicable) set out in the Application, or such other address as you or we have notified to other for formal notices. Notices shall be deemed served on the next working day after delivery. An email shall be deemed delivered when sent unless an error message is received or, where an out of office message is received, on the date the out of office message states the recipient is to return.