CUSTOMER'S USE OF THE SERVICES
1.1. Free Trials. Should the Customer agree to this Agreement as part of a free trial, then this section 1.1 shall apply. When the Customer first agrees to these terms, REALSENSE allows for a thirty (30) day free trial ("Free Trial Period") of the Services for no more than five (5) Authorised Persons to use the Services on behalf of the Customer with no payment obligation and no obligation of continued subscription past the Free Trial Period. REALSENSE shall have the right to immediately suspend Services upon expiration of the Customer's Free Trial Period. To avoid any such interruption of Services, the Customer may elect to continue using the Services after its Free Trial Period by accepting in writing, REALSENSE's written Order (Booking Form), which will set forth the Services, the subscription Term, the number of users (and how defined), pricing, fees and reference to this Agreement (collectively, the "Order"). The Customer acknowledges and agrees that this Agreement will govern the Customer's use of Services during a Free Trial Period and any paid subscription Term for which the Customer accepts an Order.
ANY CUSTOMER DATA THAT THE CUSTOMER ENTERS INTO THE SERVICES DURING THE FREE TRIAL PERIOD MAY BE PERMANENTLY LOST UNLESS THE CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL PERIOD. THE CUSTOMER MUST EXPORT ITS CUSTOMER DATA BEFORE THE END OF THE FREE TRIAL PERIOD TO AVOID THE RISK THAT THE CUSTOMER DATA WILL BE PERMANENTLY LOST.
1.2 Provision of the Services. REALSENSE will make available to the Customer on a subscription basis for the Term the Services set forth in an Order pursuant to this Agreement and the applicable Order. Services are designed to be available 24/7 subject to maintenance. The Customer will be notified of scheduled maintenance. REALSENSE will, as part of providing a Service, apply any update, bug fix or upgrade to the Service that it makes generally available to its Customers of the Service. Services are subject to usage limits, including for example, the quantities specified in an accepted Order. REALSENSE will comply with all Laws applicable to it in connection with its provision of the Services to the Customer. REALSENSE reserves the right to modify the platform and content offerings including content of the online product library at any time.
1.3 Customer Obligations. The Customer may enable access of the Services for use only by Authorised Persons solely for the internal business purposes of the Customer and its Affiliates in accordance with this Agreement and not for the benefit of any third parties. The Customer is responsible for all Authorised Persons' use of the Services and compliance with this Agreement and the applicable Order(s). The Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all the Customer Data that is transmitted or otherwise provided to REALSENSE and the means by which the Customer acquired the Customer Data; (b) ensure that its employees receive any required disclosures and appropriate training concerning the use of the Services; (c) use commercially reasonable efforts to prevent unauthorised access to, or use of, the Services, and notify REALSENSE promptly of any such unauthorised access or use; and (d) shall use the Services(s) only in accordance with this Agreement, the Documentation and the applicable Law. The Customer shall not: (i) use the Services in violation of applicable Laws and regulations; (ii) in connection with the Services, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights. The Customer shall be liable for the acts and omissions of all Authorised Persons and the Customer Affiliates relating to this Agreement. If the Customer installs or enables a third-party application for use with a REALSENSE Service, the Customer (i) is solely responsible for obtaining and maintaining the license or other rights for its use of the third-party application, and (ii) grants REALSENSE permission to allow the provider of that third-party application to access the Customer Data as required for the interoperation of the third-party application and the REALSENSE Service.
DATA PROTECTION AND PRIVACY
2.1 Protection and Security. During the Term of this Agreement, REALSENSE shall establish, implement and maintain commercially reasonable administrative, physical and technical measures that are designed to protect the security and integrity of the Customer Data that is provided to REALSENSE by the Customer, and that are reasonably appropriate to the risks represented by the processing and nature of the provided the Customer Data to be protected, and designed to guard against the accidental or unauthorised access, use, loss or disclosure of the Customer Data while it is on REALSENSE's network and systems. The Customer understands that it has an independent duty to comply with any and all Laws applicable to it in connection with its provision of the Customer Data to REALSENSE.
2.2 Unauthorised Disclosure.
- If either party believes that there has been unauthorised access, use, loss or disclosure of the Customer Data while it is on REALSENSE's network and systems, such party must promptly notify the other party. Additionally, each party will reasonably assist the other party in investigating, remediating or mitigating any potential damage, including providing reasonable assistance with respect to any legally required notifications concerning the disclosure or the provision of credit reporting services to such individuals. Except as set forth in Section 2.2.B., each party shall bear the costs of such investigation, remediation, mitigation and/or notification associated with an unauthorised disclosure.
- In the event that the unauthorised access, use, loss or disclosure of the Customer Data was caused by breach of REALSENSE's obligations under this Agreement, then REALSENSE shall reimburse the Customer for its reasonable actual out-of-pocket costs to investigate and/or remediate such disclosure and provide legally required notifications to the affected users, subject to the cap on liability in Article 9. This Section 2.2.B states REALSENSE's sole liability for unauthorised access, use, loss or disclosure of the Customer Data attributable to REALSENSE's breach of its obligations under this Agreement.
FEES AND PAYMENT
3.1 Fees and Payment Terms. The Fees shall be set out in each Order. The Customer will pay REALSENSE's invoice within thirty days of REALSENSE's invoice date. All undisputed invoices are due and payable by the Customer net 30 days, unless otherwise agreed to by the parties signed in writing (however, the Customer's payment will not be considered overdue for any unpaid amounts disputed in good faith on an invoice-by-invoice basis.) REALSENSE will also invoice the Customer at the time the Customer adds any enhanced or additional Services. However, if the Customer exceeds the usage limitation (i.e. number of licensed users) set forth in the Order, REALSENSE will invoice the Customer for excesses in arrears by agreement. Fees will be billed and paid in GBP, unless otherwise agreed in writing by the parties.
3.2 Taxes. Excluding taxes based on REALSENSE's income, the Customer is liable for all taxes relating to the Services, except to the extent the Customer has provided REALSENSE with a valid tax exemption or direct pay certificate.
4.1 Confidential Information Defined.
- "Confidential Information" means all information disclosed by a party ("Discloser") to the other party ("Recipient"), orally or in writing, designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstance of disclosure. The Customer's Confidential Information includes the Customer Data; REALSENSE Confidential Information includes the Services, REALSENSE Content and Documentation; and Confidential Information of each party includes the terms of this Agreement and each Order (including signed order forms or statements of work entered under this Agreement), each party's proprietary technology and technical information, business processes and technical product information, product plans and designs, issues, and all communication between the Parties regarding the Services.
- Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; (iv) is received from a third party without breach of any obligation owed to the other party; or (v) is Aggregated Data as described further in Section 5.5.
4.2 Confidentiality Obligations. During the course of the parties' relationship, each party may have access to Confidential Information of the other party. Neither party shall disclose any Confidential Information of the other party, orally or in writing, to any third party without the prior written consent of the other party, except as provided in this Agreement. The parties shall protect each other's Confidential Information using commercially reasonable administrative, physical and technical safeguards. REALSENSE adheres to commercially reasonable administrative, physical and technical measures for protection of the Customer's Confidential Information. Neither party shall use the other party's Confidential Information for any purpose other than lawful performance of this Agreement.
4.3 Disclosure to Third Parties and as Required by Law. Recipient may provide access to and use of Discloser's Confidential Information only to those third parties that: (a) provide services to Recipient concerning Recipient's use of Discloser's Confidential Information; (b) have a need to use and access the Confidential Information; and (c) have agreed to substantially similar non-disclosure obligations as those contained in this Agreement. Recipient shall be responsible for the use by its third parties of the Discloser's Confidential Information. To the extent Recipient may be required by Law to disclose Confidential Information, Recipient may make such disclosure, provided that Recipient (i) to the extent permitted by Law, notifies Discloser of such requirement prior to disclosure and (ii) makes diligent efforts to avoid and limit disclosure. Notwithstanding Recipient's conformance with the procedures set forth in the prior sentence, the disclosure required by Law shall not itself cause the information to lose its confidential character unless the information ceases to be Confidential Information as a result of one of the reasons specifically set forth in Section 4.1.B above.
INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
5.1 Ownership and Reservation of Rights to REALSENSE Solutions Ltd. REALSENSE owns all right, title and interest in and to the Services, Documentation, REALSENSE Content, and other REALSENSE Technology, as well as any modifications that are derivative works thereof. Subject to the limited rights expressly granted hereunder, REALSENSE reserves all rights, title and interest in and to the Services, Documentation, and REALSENSE Content, including all related common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honoured or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto. No rights are granted to the Customer hereunder other than as expressly set forth herein.
5.2 License Grant. REALSENSE hereby grants the Customer a non-exclusive, non-transferable, right to use the Services, Documentation and REALSENSE Content, solely for the business purposes of the Customer and Affiliates and solely during the Term, subject to the terms and conditions of this Agreement within scope of use defined in the relevant Order(s). REALSENSE further grants to the Customer:
- Solely during the Term, the right to download and use the Learning Resources or portions thereof in combination with the Customer's (non-REALSENSE) learning material, with the express obligation that the Customer remove and return or destroy all Learning Resources upon expiration or termination of the Term; REALSENSE may audit the Customer's compliance with this post-Term obligation once annually for the two years following expiration or termination of this Agreement.
- Solely during the Term, the right to use the REALSENSE Content on a third party Learning Management System provided that REALSENSE does not warrant and bears no responsibility for availability of the REALSENSE Content on a third party LMS.
5.3 License Restrictions. The Customer shall not (i) except as allowed under Section 5.2.A, modify, copy or create any derivative works based on the Services or Documentation; (ii) license, sub-license, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services or Documentation available to any third party, other than to Authorised Persons as permitted herein; (iii) reverse engineer or decompile any portion of the Services or Documentation, including but not limited to, any software utilised by REALSENSE in the provision of the Services and Documentation, except to the extent required by Law; (iv) access the Services or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Services or Documentation.
5.4 Ownership of Customer Data. As between REALSENSE and the Customer, the Customer owns its Customer Data.
5.5 Aggregated Data Use. Without limiting the confidentiality rights and protections set forth in this Agreement, REALSENSE owns and has the perpetual right to use for its business and/or operating purposes the aggregated and statistical data derived from the operation of the Services, including, without limitation, the number of records in the Services, the number and types of transactions, configurations, and reports processed in the Services and the performance results for the Services (the "Aggregated Data"). Nothing herein shall be construed as prohibiting REALSENSE from utilising the Aggregated Data for purposes of operating REALSENSE's business, provided that REALSENSE's use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Services. In no event does the Aggregated Data include any Customer Confidential Information, Customer Data or any information that personally identifies a specific individual.
TERM, TERMINATION, SUSPENSION, AND DISPUTE RESOLUTION
6.1 Term. This Agreement shall have a term commencing as of the Effective Date and ending upon expiration or termination of all Orders issued hereunder. Each Order shall have a term commencing on its effective date and, unless otherwise set forth therein or upon its termination, or the termination of this Agreement, shall expire one (1) year after its effective date.
6.2 Termination for Default. Either party may terminate this Agreement in its entirety or any specific Order if the other party breaches any material term of these General Terms or the applicable Order and does not cure such material breach within sixty (60) days of receiving a Termination Notice.
6.3 Effect of Expiration or Termination. When this Agreement or any Order expires or is terminated, the Customer shall pay all money due to REALSENSE for Services rendered up to the expiration or termination date and any payments that may become due pursuant to this Agreement subsequent to such expiration or termination. The Customer also agrees to immediately stop using the Services and accessing the software, content library, and REALSENSE Content upon expiration or termination of the Order(s) and/or Agreement and both parties agree to stop using the Confidential Information of the other party and to return or destroy (at the party's discretion) all the copies of the other party's Confidential Information. To the extent the Recipient is required to keep a copy of any of the Discloser's Confidential Information as required by applicable law, the Recipient shall continue to treat such Discloser's Confidential Information as Confidential Information in accordance with the terms of this Agreement.
6.4 Dispute Resolution. Prior to instituting formal proceedings, the parties shall attempt to resolve all disputes arising out of or relating to this Agreement informally. To invoke this process a party shall appoint a designated executive and request that the other party do the same. The other party shall make such appointment within thirty (30) days of receipt of the request. The designated executives shall then have up to thirty (30) days to attempt in good faith to resolve the matter. The informal dispute resolution process shall terminate at the end of the thirty (30) day period unless extended by mutual agreement. Disputes not resolved by informal dispute resolution as provided in this section will be resolved by litigation unless the parties mutually agree to an alternative dispute resolution method such as arbitration.
Nothing in this section shall prevent, or be construed as preventing, a party from (a) instituting formal proceedings to avoid the expiration of any applicable limitations period, or (b) seeking injunctive or other equitable relief in a court of appropriate jurisdiction.
The parties agree that all negotiations pursuant to this section will be confidential and therefore treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
NO WARRANTIES; ALL SERVICES ARE PROVIDED "AS IS"
7.1 To the maximum extent permitted by applicable law, REALSENSE makes no warranties of any kind under this agreement or applicable schedule(s), whether express, implied, statutory or otherwise, and specifically disclaims the implied warranties of non-infringement, title, merchantability or fitness for a particular purpose. All services are provided "as is". REALSENSE makes no representations or warranties regarding the suitability or completeness of any of the services nor that the operation or use of the services will be uninterrupted or error free.
8.1 The Customer warrants that any bespoke work it requires of REALSENSE to facilitate for the purpose of providing the Services will not infringe the copyright or other rights of any third party and the Customer shall indemnify REALSENSE against any loss, damages, costs, expenses or other claims arising from such infringement.
8.2 All warranties and conditions whether express or implied whether arising by common law, statute or otherwise are excluded. The Services are supplied on the basis that the Customer is neither a consumer nor deals as a consumer.
8.3 The Customer agrees to indemnify REALSENSE against all claims in respect of any loss damage or expense (including without limitation death or personal injury caused by negligence) sustained by any staff of or third-party suppliers used by REALSENSE in connection with the supply of the Services.
LIMITATION OF LIABILITY
9.1 REALSENSE will not be liable for any incorrect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (however caused which arise out of or in connection with the Customer use or inability to use Activbase or any of the Materials.
10.1 Except as specifically provided for by law REALSENSE does not give any warranties, whether express or implied as to the fitness or quality of Activbase. Whilst REALSENSE takes all reasonable steps to ensure its solutions are tested for defects and software and materials are checked with up to date anti-virus software, REALSENSE cannot guarantee that access to the Services will continue uninterrupted or that the Services are free from errors or defects.
10.2 The ability to access any hypertext link, product, process or third party service from Activbase and/or the Content does not imply REALSENSE's support for, or endorsement of any such site, product, process or service. Any such link is provided for information purposes and REALSENSE does not sponsor or promote any such site and should in no way be perceived as being in any way connected to the sites. REALSENSE does not accept any liability for direct or consequential loss arising from your use of such third party sites.
11.1 Notices. All notices required or permitted by this Agreement shall be in writing and delivered by personal delivery, express courier, or certified or registered mail, and shall be effective upon delivery. Notices will be sent to a party at its contact (and to the attention of each party's General Counsel) at the address set forth in this Agreement, or such other address as either party may indicate by at least thirty (30) days prior written notice to the other party.
All notices to REALSENSE should be sent to:
REALSENSE Solutions Ltd
Derwent Business Centre
Derby, DE1 2BU
for the attention of the 'Commercial Review Team'
11.2 Assignment. Subject to REALSENSE's right to utilise Suppliers to supply all or part of the Services, neither party shall assign or transfer any of its rights or delegate any of its duties under this Agreement, whether by operation of law, as a result of a change of control or otherwise, without the other party's prior written consent, which consent the other party shall not unreasonably withhold, delay or condition, and any purported assignment or transfer shall be null and void. Notwithstanding the above, either party may assign the Agreement as part of a general assignment to a successor-in-interest who is not a direct competitor of the non-assigning party without the other party's prior written consent.
11.3 Survivability. The terms of this Agreement, which by their nature one would reasonably intend to survive this Agreement shall survive it, including terms addressing fees (Article 3), confidentiality (Article 4), ownership (Article 5), termination (Article 6), representations and warranties (Article 7), indemnity (Article 8), limitation of liability (Article 9), and the applicable miscellaneous sections in Article 10.
11.4 Governing Law. The formation, existence, construction, performance, validity and all aspects of this agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
11.5 Force Majeure. Except for the Customer's obligation to pay REALSENSE or to assume obligations for taxes, neither party shall be liable for any failure to perform due to causes beyond its reasonable control, such as war, terrorism, civil commotion, Internet service interruptions or slowdowns, vandalism or "hacker" attacks, or governmental demands or requirements.
11.6 Not for Use in High Risk Activities. The Customer acknowledges that the Services are not designed or intended for use in high-risk activities including, without limiting the generality of the foregoing, in any direct or active operations of any equipment in any nuclear, aviation, mass transit, or medical applications, or in any other inherently dangerous operation.
11.7 Severability. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision.
11.8 Waivers. The failure by a party to exercise or enforce any right hereunder shall not operate as a waiver of such party's right to exercise or enforce such right or any other right in the future.
11.9 Publicity. REALSENSE may add the Customer's name and logo to REALSENSE's published list of Customers so as long as the Customer continues to be a subscriber of the Services. The Customer also agrees that after signing up for Services, REALSENSE may immediately issue a generic press release which announces that a deal has been executed by the parties. The text below is an acceptable form of such announcement
"DERBY, UK, November XX, 20XX – REALSENSE Solutions Ltd is delighted to announce today that (Customer) has chosen to use (Activbase Platform and/or Content Services). The agreement was completed in the (quarter and year)."
11.10 Modifications, Additional Terms, Entire Agreement, Amendment. No purchase order or other document that purports to modify or supplement this Agreement shall add to or vary the terms of this Agreement. All proposed variations or additions, whether submitted by REALSENSE or the Customer, are objected to and deemed immaterial unless otherwise agreed to in a writing signed by both parties. This Agreement constitutes the entire agreement and understanding between the parties concerning the Customer's access to the Services and may not be modified by custom or usage. This Agreement replaces and supersedes all prior oral or written understandings, communications and representations between the parties with respect to the Services. This Agreement may be amended only by a written document executed by a duly authorised representative of each of the parties.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, "control" means direct or indirect ownership or control of fifty-one percent (51%) of the voting interests of the subject entity.
"Authorised Person(s)" or "User(s)" means an individual or entity that is authorised by the Customer to use the Services, or to whom the Customer (or REALSENSE at the Customer's request) have supplied a user identification and password. Authorised Persons may include, for example, the Customer's employees, partners, customers, consultants, and contractors. Authorised Persons exclude competitors of REALSENSE.
"REALSENSE Technology" means REALSENSE proprietary technology, including the Services, software, hardware designs, copyrights, trademarks, patents, trade secrets, software tools, algorithms, user interface designs, architectures, products, documentations, the designs and schema for any network or system connectivity and related intellectual property worldwide and whether in printed, written, electronically reproduced or any other form and whether owned by REALSENSE or any Supplier or licensed to REALSENSE or any Supplier and all enhancements, derivatives, improvements, modifications or extensions of such technology conceived, reduced to practice or developed during the term of this Agreement.
"Compliance and competency tools" means software and/or content (other-than subscribed course) items that the Customer may use and/or download from the platform, or that REALSENSE may otherwise provide, such as compliance and/or competency assessment and management processes, or compliance-completion promotional collateral that the Customer may use pursuant to this Agreement to subscribed services. Unless excepted, "compliance and competency tools" is included in each reference to REALSENSE Content in this Agreement.
"Confidential Information" has the definition provided in Section 4.1.
"Content" means courseware content that is created or viewed within a Learning Management System and/or alternative deliverable format such as CD-ROM, memory stick, website etc. (including, without limitation, artwork, images, text, audio, video, messaging, Internet links, software and other related creative elements and works of authorship).
"REALSENSE Content" means Content, Learning Resources and Assessment Resources and/or other associated compliance and competency tools that have been created by or for REALSENSE, or otherwise provided by REALSENSE to the Customer. Unless excepted, "REALSENSE Content" is included in each reference to Services in this Agreement.
"Customer Content" means courses/learning resources proprietary to the Customer or a third party that the Customer creates, launches or administers in the Activbase Platform.
"Customer Data" means the electronic data or information submitted by the Customer or Authorised Persons to the Services.
"Discloser" has the definition provided in Section 4.1.A.
"Documentation" means the published user manuals, whether in print or electronic form, or on-line help functions for each Service, as updated from time to time.
"Law" means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.
"Learning Management System" or "LMS" means an online learning management system through which a learner is registered and participates with and/or accesses Content, and an administrator and/or learning manager can administer and view reports on the learner's activities; the LMS may enable the Customer to create and view the Customer Content.
"Activbase Platform" means the proprietary learning management system that REALSENSE provides to the Customer under an Order. Unless excepted, "Activbase Platform" is included in each reference to Services in this Agreement.
"Learning Resources" means (other-than subscribed course) items that the Customer may download from the course library, or that REALSENSE may otherwise provide, such as ancillary learning material like workbooks, graphics, or course-completion promotional collateral that the Customer may use pursuant to this Agreement to supplement subscribed courses in its internal curriculum to its learners. Unless excepted, "Learning Resources" is included in each reference to REALSENSE Content in this Agreement.
"Recipient" has the definition provided in Section 4.1.A.
"Schedule" means any of the so-titled documents, along with all of its exhibits and attachments, which is issued pursuant to or refer to this Agreement and is executed by both the Customer and REALSENSE. The term "Order" in this Agreement includes any such Schedule.
"Services" means Services and REALSENSE Content provided by REALSENSE to the Customer under an Order.
"Supplier" means any person or entity contracted by REALSENSE that provides services, materials, products, or supplies in connection with the Services. REALSENSE may change Suppliers at its sole discretion. REALSENSE is responsible for its Suppliers' compliance with this Agreement.
"Term" means the duration of the Customer's subscription to the Service as set forth in the Order.
"Termination Notice" means prior written notice (consistent with Section 11.1) by one party to the other of the intent to terminate the Services under any or all Orders.
"Active Users" means any User (current, not archived) that has access to sign in to access the Customer's Services.
"Named Users" means a specific User that has login access to the Customer's Services during the annual term of this Agreement.