Legal - Term and Conditions

Monterpoint Ltd.'s Terms and conditions for LearnerTrack  

Contents

1.       Definitions

“Additional Services” means any consultancy and/or professional services which are in addition to the Services including but not limited to developing a bespoke version of the Services and training which are set out in (i) Schedule 2; and/or (ii) the parties agree in writing that Monterpoint shall provide.

 

“Administrator” means one or more employees of the Client notified to Monterpoint (as amended from time to time on the provision of written notice to Monterpoint) who shall use the Administrator username and password to manage User’s access to the Data.

 

“Agreement” means this Agreement together with the
 Schedule(s).

 

“Course Data” means the information relating to courses
 administered by the Client.

 

“Data” means the Course Data and the Learner Data.

 

“Database” means the Monterpoint software and hardware
 infrastructure of which certain access, as described herein,
 is made available to the Client via the Portal.

 

“Error” means either (a) failure of the Services to perform
 materially in accordance with the Documentation; or (b)
 a cessation, interruption or degradation of the usual
 functionality of the Services.

 

“Fees” means:

 

(i)  the annual fee payable by the Client to Monterpoint,
     which shall be calculated by multiplying the number of
     Learners registered for courses during the relevant
     year by the figure shown in Schedule 2 and payable
     annually in advance; and

 

(ii)  fees payable in respect of Additional Services set out
      in Schedule 2 (if any); and

 

(iii) any fees agreed by the parties in respect of Additional
      Services pursuant to clause 2.4 (if any).

 

“Intellectual Property Rights” means all intellectual property
 rights, including patents, utility models, trade and service
 marks, trade names, domain names, right in designs,
 copyrights, moral rights, topography rights, rights in
 databases, trade secrets and know-how, in all cases
 whether or not registered or registrable and including
 registrations and applications for registration of any of
 these and rights to apply for the same, and all rights and
 forms of protection of a similar nature or having equivalent
 or similar effect to any of these anywhere in the world.

 

 “Learner” means the individuals who are registered to
  attend the courses that are included in the Course Data. 

 

 “Learner Data” means the information relating to Learners.

 

 “Personal Information” means all information relating to
  and/or identifying individuals which is included in the
  Database.

 

 “Portal” means the application located at the Universal
  Resource Locator (“URL”) www.learnertrack.net or
  such other URL(s) as may be notified to the Client by
  Monterpoint from time to time.

 

“Services” means the provision, by Monterpoint to the Client,
 of access to the Database via the Portal for the purposes of
 uploading the Course Data, inputting and accessing the
 Learner Data and generating reports from the Data.

 

“Service Levels” means the service levels set out in
 Schedule 1.

 

“Support” means the support to be provided by Monterpoint
 to the Client, as is more particularly set out in clause 3.

 

“Users” means an individual employee and/or authorised
 contractor of the Client who is authorised by the Client to
 access the Portal.

 

2.     Services, Support and Restrictions

 

2.1         In consideration for payment of the Fees by the Client and subject to all the terms and conditions of this Agreement, Monterpoint shall provide the Services and Support to the Client commencing on the Effective Date.

 

2.2         On payment of the applicable Fees by the Client, Monterpoint shall provide one (1) Administrator username and password to the Client. 

 

2.3         The Administrator(s) may issue any number of User usernames and passwords, save that such usernames and passwords may be used by Users only.

 

2.4         Save in respect of Additional Services set out in Schedule 2 hereto, Monterpoint shall have no obligation to provide any Additional Services unless and until the cost and payment terms in respect of such Additional Services are agreed between the parties in writing, by fax or by email.  In the absence of any agreement to the contrary between the parties, all Additional Services shall be undertaken pursuant to and form part of this Agreement.

 

2.5         The Client shall use the Services only for processing such Data as relates exclusively to the Client and shall make such Data available solely within the Client’s organisation.

 

2.6         Except as expressly permitted in this Agreement, the Client shall not, and shall not permit others to: (i) modify, translate, create or attempt to create derivative copies of or copy the Portal or the Database in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Portal or the Database to source code form; (iii) distribute, sublicence, assign, share, timeshare, sell, rent, lease, transmit, grant a security interest in or otherwise transfer the Portal or the Database or the Client’s right to use the Portal or the Database.

 

2.7    Monterpoint shall use reasonable endeavours to ensure that
         access to the Portal and the Database is available at all times,
         however the Client acknowledges and agrees that the Portal
         and the Database may not be accessible to the Client from
         time to time. Wherever possible: (i) all scheduled service
         interruptions shall take place outside of office hours;  and
         (ii) 5 days prior written notice shall be given to the
         Administrator.

 

3.     Technical Support

3.1     Throughout the term of this agreement and, subject to payment of the Fees, Monterpoint shall provide the following technical support between 9.00am and 5.00pm, Monday to Friday (excluding bank and public holidays):

 

3.1.1    advice by telephone on the use of the Services;

 

3.1.2    the diagnosis of Errors in the Services and instructions as to the rectification of such Errors by email or by remote access.

 

3.2     As soon as practicable after Client becomes aware of a Error, it shall (i) notify Monterpoint of the circumstances in which it arose and provide all additional available information by email and/or telephone to Monterpoint regarding such Error; and (ii) provide Monterpoint with all access to the Services and its system and audit logs necessary to enable Monterpoint to rectify such Error.

 

3.3     Monterpoint shall use its reasonable endeavours to respond to Client in accordance with the Service Levels. This response shall include an initial analysis of the reported Error.  Thereafter, Monterpoint shall use its reasonable endeavours to provide a rectification to the Error as soon as reasonably possible thereafter. 

 

3.4     The Support shall not include the diagnosis and rectification of any Error resulting from:

 

3.4.1  the improper use operation or neglect of the Services or the equipment upon which it is run;

 

3.4.2  the modification of the Services by Client or any third party or its merger (in whole or in part) with any other software save as permitted in this Agreement;

 

3.4.3   any repair adjustment alteration or modification
 of the Services by any person other than Monterpoint
 without Monterpoint’s prior consent;

 

3.4.4    the use of the Services for a purpose for which
  it was not designed;

 

3.4.5    a fault in the equipment or in Client or third party
  software or applications or any upgrade or new
  release in respect thereof;

 

3.4.6    loss or damage caused directly or indirectly by
  operator error or omission;

 

3.4.7    rectification of lost or corrupted data arising for any
  reason other than Client’s own negligence.

 

3.5       Monterpoint may agree, upon receipt of a request by Client,
  to provide support that does not form part of the Support.
  Such support shall be deemed to be Additional Services.

 

3.6       All telephone contact with Monterpoint should be to the
            following telephone number unless Client is notified to
            the contrary by Monterpoint:
            [INSERT TELEPHONE NUMBER].  All email contact with
            Monterpoint should be to the following email address unless
            Client is notified to the contrary by Monterpoint:
            [INSERT EMAIL ADDRESS].

 

4.     Proprietary Rights

4.1   Monterpoint has sole and exclusive ownership of all right, title, and interest in and to the Portal and the Database, including all copyright and any other intellectual property rights therein.  This Agreement conveys a limited right and licence to use the Services and shall not be construed to convey title to or ownership of the Portal and the Database.  All rights in and to the Portal and the Database not expressly granted to the Client are reserved by Monterpoint.

 

4.2     The Client shall not:

 

4.2.1   modify, alter or use any registered or unregistered marks/logos owned by Monterpoint; or

 

4.2.2   do anything which may be deemed to take unfair advantage of the reputation and goodwill of Monterpoint; or

 

4.2.3   do anything which could be considered an infringement any of the intellectual property rights owned by and/or licensed to Monterpoint.

 

5.    Fees

5.1     In consideration for the provision of the Services and Support, the Client shall pay Monterpoint the non-refundable Fees.  Invoices shall be issued by Monterpoint in advance.  All invoices shall be paid in full within 30 days of the invoice date.

 

5.2     The Fees are exclusive of VAT, which will be applied to the Fees and payable by the Client, if applicable, at the standard rate. 

 

5.3     In the event that the Fees are not paid in accordance with the provisions herein, Monterpoint may deny Client access to the Services and Support without notice.

 

 

5.4     Monterpoint may increase the Fees on annual basis on the
          provision of not less than ninety (90) days prior written
          notice to the Client.

 

6.     Data Protection

6.1          The Client authorises Monterpoint and warrants and
    undertakes that:

 

        6.1.1   for the Term of this Agreement, it shall procure that
        Monterpoint is authorised to use, store or otherwise
        process any Personal Information which relates to
        and/or identifies the Client’s Clients, prospects
        and/or employees to the extent necessary to
        provide the Services; and

 

        6.1.2   the Personal Information provided to Monterpoint is
        accurate and complete and that all registration
        details (where applicable) contain the correct
        name(s), address(es) and other requested details.
        For the avoidance of doubt, both parties agree that
        Monterpoint is the data processor and the Client is
        the data controller (both terms as defined in the
        Data Protection Act 1998). 

 

6.2    Monterpoint shall only process Personal Information for
         the purposes of providing the Client with the Services.
         Monterpoint has in place and shall maintain for the
         duration of these terms and conditions appropriate
         technical and organisational measures against the
         accidental, unauthorised or unlawful processing,
         destruction, or disclosure of Personal Information
         and adequate security programmes and procedures
         to ensure that unauthorised persons do not have
         access to any equipment used to process Personal
         Information.

 

7.     Term and Termination

7.1    This Agreement shall commence on the Effective Date and shall continue in effect for a period of one year and thereafter unless terminated by either party on the provision of not less than three months written notice to the other, such notice to take effect on any anniversary of the commencement date, or otherwise in accordance with the provisions of this clause 7.

 

7.2     If either party breaches this Agreement in any material respect, the other party may give written notice to the breaching party of its intent to terminate, and if such breach is not cured within thirty (30) days after the breaching party’s receipt of such notice, this Agreement shall terminate without any further notice required.

 

7.3     Upon any termination of this Agreement for any reason,
          (a) the rights and licenses granted to the Client herein
          shall terminate; and (b) the Client shall immediately
          cease all use of the Services; and (c) clauses 4, 6, 8, 10 and
          11 shall survive.

 

8.     Warranties and Liability

8.1          Monterpoint cannot guarantee and does not warrant or represent that any specific results will be produced by the Services.  To the maximum extent permitted by law, Monterpoint expressly excludes all representations, warranties, obligations and liabilities in connection with the Services, including but not limited to the warranties of merchantability, non-infringement of intellectual property, accuracy, completeness, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade are hereby excluded and disclaimed.

 

8.2          To the maximum extent permitted by law, Monterpoint shall not be liable for any loss, injury or damage caused in whole or part by, or resulting from:

 

8.2.1    any failure, delay, interruption or otherwise of the
        provision of the Services; or

 

8.2.2    the Client’s actions taken pursuant to the receipt of the Services.

 

8.3          The Client’s sole remedy with respect to any claims arising out of this Agreement shall be limited in the aggregate to the monies paid by Client to Monterpoint under this Agreement during the twelve (12) month period preceding the event giving rise to such liability.

 

8.4     In no event shall Monterpoint be liable for:

 

8.4.1   any special, indirect, incidental or consequential
  damages,including loss of profits and goodwill,
  business or business benefit, or the cost of
  procurement of substitute products or services
  by Client even if advised of the possibility of such
  damages;

 

8.4.2   any delay or failure to provide the Services that is due
  to third parties, including without limitation, internet
  service providers, data centres, server hosting
  companies and telecommunications companies;

 

         8.4.3   any delay or failure to provide the Services that is due
                    to the delay or failure on the part of the Client to upload
                    the Data or provide details of the Administrator(s).

 

9.    Client's Obligations

9.1          The Client hereby acknowledges and agrees that it is responsible for issuing User usernames and passwords, and inputting Data.  Monterpoint shall not be liable for (i) any delay or failure by the Client to do so; or (ii) verifying whether the Data is correct or accurate or whether the usernames and passwords are sufficiently secure.

 

9.2          The Client hereby acknowledges and agrees that it is solely responsible for procuring and paying for access to the internet for all of the Client’s Users.

 

9.3          The Client hereby grants Monterpoint a non-exclusive, worldwide, royalty-free licence to use, reproduce and display the Data (including the Intellectual Property Rights therein) for the purposes of providing the Services.

 

 

9.4          The Client hereby represents, undertakes and warrants that:

 

9.4.1  the Client owns all rights in the Data necessary to grant Monterpoint the right to carry out its obligations pursuant to this Agreement;

 

9.4.2   the Data does not and will not contravene or breach any applicable law, regulation code of practice or directive including, without limitation, investment or financial services legislation or regulation or data protection legislation or regulation and that the use of the Data will not contravene any applicable law, regulation or industry standard; and

 

9.4.3  the Data does not and will not infringe any Intellectual Property Rights or other rights of any person, nor are they obscene, defamatory, libellous or slanderous, nor will it cause injury to, invade the privacy of or otherwise violate other rights of any person;

 

9.4.4   all information supplied by the Client for the purpose of registering the Administrator is true, complete and accurate in all respects and it shall notify Monterpoint as soon as reasonably practicable of all changes to such information;

 

9.4.5   it shall keep and, where relevant, shall procure that all its employees keep confidential the username(s) and password(s) provided by Monterpoint to the Administrator or by the Administrator to User(s);

 

9.4.6  it shall procure that no unauthorised access to and/or use is made of the Services utilising the usernames or passwords allocated to the Administrator and/or the Users;

 

9.4.7   it shall be liable for all access to and use of the Services, and shall pay all Fees incurred in respect thereof, whether authorised by the Client or not;

 

9.4.8   it shall inform Monterpoint immediately if it has any reason to believe that any of the Administrator’s and/or the Users’ usernames and passwords become known to any individuals not authorised to use them or if the Services are being or are likely to be used in an unauthorised way;

 

9.4.9   it shall procure that all Users comply with these terms and conditions to the extent the same are applicable to such Users.

 

9.5         The Client hereby fully indemnifies and undertakes to keep Monterpoint fully indemnified (and its employees, directors and agents) forthwith on demand against any actions, claims, losses, liability, proceedings, damages, costs, expenses, loss of business, loss of profits, business interruption and other pecuniary or consequential loss howsoever arising (including reasonable legal costs and expenses) and suffered or incurred by Monterpoint as a result of a third party claim against Monterpoint and arising directly or indirectly out of any breach or alleged breach of any of the warranties made by the Client in this Agreement.

 

9.6   In the event that the Client is in breach of this clause 9,
        Monterpoint, without prejudice to any other rights it may
        have in respect of such breach, may suspend the
        provision of the Services without notice and shall not be
        liable for any such suspension of the Services.

 

10.    Confidentiality

10.1   Except for confidential information that is required to be disclosed by law or any regulatory authority, each party undertakes to the other that during the term of these terms and condition and thereafter it shall keep secret and shall not without the prior written consent of the other party disclose to any third party any confidential information relating to the business or affairs of such other party or any other information declared in writing by either party as being confidential.

 

10.2     Upon written demand from either party, any confidential information shall be returned to the originator of the information including all copies thereof or confirmed in writing that, save as required by law or regulation, it has been destroyed.

 

10.3  To the extent that it is necessary to implement the provisions
         of these terms and condition the recipient party may disclose
         confidential information to its employees, agents or sub-
         contractors as may reasonably be necessary provided that
         before any such disclosure the recipient party shall make such
         persons aware of their obligations of confidentiality under
         these terms and condition and shall at all times procure
         compliance with such obligations of confidentiality.

 

11.     General

11.1      The Client shall not assign this Agreement, in whole or in part, without the written consent of Monterpoint.

 

11.2     The Client consents to the use by Monterpoint of the Client’s name in Client lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between the Client and Monterpoint and the prior consent of the Client has been given, such consent not to be unreasonably withheld or delayed. 

 

11.3     This Agreement and its performance shall be governed by and construed in accordance with and the parties hereby submit to the exclusive jurisdiction of the laws of England and Wales.

 

11.4     The Client agrees that because of the unique nature of the Services and Monterpoint’s proprietary rights therein, a demonstrated breach of this Agreement by Client would irreparably harm Monterpoint and monetary damages would be inadequate compensation.  Therefore, the Client agrees that Monterpoint shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Agreement.

 

11.5     If any provision of this Agreement or the Services thereof is declared void, illegal, or unenforceable, the remainder of this Agreement will be valid and enforceable to the extent permitted by applicable law.  In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.

 

11.6     Any failure by any party to this Agreement to enforce at any time any term or condition under this Agreement will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Agreement.

 

11.7     Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the nonperforming party uses reasonable efforts to avoid or remove such causes of nonperformance and continues performance hereunder with reasonable dispatch whenever such causes are removed.

 

11.8     This Agreement (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof, and (ii) cannot be altered except by agreement in writing executed by an authorised representative of each party.  No purchase order and/or standard terms of purchase provided by the Client shall supersede this Agreement.

 

11.9  Nothing in this Agreement shall give, directly or indirectly, any
         third party any enforceable benefit or any right of action against
         Monterpoint and such third parties shall not be entitled to
         enforce any term of this Agreement against Monterpoint.

 

12.     Schedule 1

 

Schedule 1

Service Levels 

Severity of error	Target time limit for correction
Severity category 1. Whole system down.	8 support hours
Severity category 2. Error causing substantial problems.  No workaround available.	16 support hours
Severity category 3. Error causing substantial problems.  Workaround available.	32 support hours
Severity category 4. Error causing inconvenience	Next reasonable scheduled update
Severity category 5. Any other error	Next major version release