Terms & Conditions
Important – the software products associated with your Agreement are licensed, not sold. This licence covers the provision of software, services and associated products from Elephants don’t forget Ltd a limited company incorporated and registered in Ireland, with Company Registration Number: 520381 whose registered address is 44 Leeson Street, Dublin 2, Ireland. (Licensor). Fees for licensed usage of these products may be payable by the user or funded in whole or part on behalf of the licensed user by a separate provider. All references in the following document apply to users and providers of funds alike, irrespective of the fee payment arrangements.
Terms & Conditions
1 Grant of licence
(a) Unless otherwise agreed in writing between the Parties, these Terms and Conditions shall apply to all Licensor licences. In consideration of the Licence Fee, the Licensor hereby grants to the Licensee, who agrees to accept on the following terms and conditions a non-exclusive right to use the Software (defined in the Order Form), Web tools, Documentary Output, and Training Materials (collectively hereinafter referred to as the “Materials”) (the “Licence”).
(b) The Licensee may use the Software on any IT equipment used by the Licensee or by web link to an approved site. The Licence is granted for the number of users specified at the time of the granting of this Licence Agreement and will be updated based on the number of active users, monthly thereafter; a fair use basis will be applied to Licence activation and Licensor reserves the right to terminate this Agreement with 30 days’ notice if in its reasonable opinion a fair use basis is not being operated by the Licensee. Active users will be calculated using active e-mail addresses within the Software. The Incremental Licence Activation Fee shall be charged for each Licence activated incrementally to any previous maximum volume of Licences activated. The Licensee may not transfer, assign or sub-licence its rights under this Agreement. The Licensor reserves the right to sell or otherwise dispose of its rights or to grant licences to use the Software & Materials to other persons or organisations.
2. Licensee – Commencement / Renewal / Termination of Licence
The Licence shall commence on the activation of the first user. Should the Licensee fail to make payment in full for the Materials within the Licensor’s terms, for the Materials, the rights to the use of the Materials by the Licensee contained in this Agreement shall be suspended until such payment is accepted as received by the Licensor but all other provisions of this Agreement shall continue in full force and effect insofar as necessary to protect the Licensor’s proprietary rights.
The initial contract period of the Licence is for the Term shown on the Order Form. The Licences will be renewed for a further Term after the initial contract period and on subsequent renewals unless the Licensee provides written notice of intention to terminate the Software – such notice to be received at least 30 days before the end of any contract period. Billing for all Licences will be in advance, as stated on the Order Form and payable immediately.
3. Licensor’s Rights
The Licensee acknowledges that the Materials and copyright and other intellectual property rights in all parts of the Materials are the sole and exclusive property of the Licensor. By accepting the Licence, the Licensee does not acquire any proprietary rights in the Materials but does acquire the right to use all parts of the Materials in the course of its ordinary business activities strictly in accordance with the terms of this Agreement but not further or otherwise.
Licensor shall have the right to collect, hold and use question and answer material where such content is not proprietary to the Licensee and where such use is of a depersonalised nature. Licensor shall have the right to collect and hold information and data in relation to the Licensee and its employees including their performance and feedback. Licensor and its academic partners shall have the right to use such information for the purposes of academic research and publication. All publicly released information shall be depersonalised in relation to the Licensee and its employees unless the express written consent is received from Licensee and on condition such use complies with the Data Protection Principles and the Licensor Data Protection Policy.
The Licensor shall have the right to embed a low volume of questions into the Licensee’s question sets for the purpose of Licensor academic research, product feedback or to enhance engagement.
Licensor shall have the right to reference Licensee as a customer of Licensor and to use Licensee’s company logo on marketing collateral.
4. Scope of Licence
(a) Unless specifically otherwise agreed in writing by the Parties, any additional software modules originated by the Licensor for which a Licence is purchased by the Licensee subsequent to this Agreement will be deemed to be subject to the terms and conditions of this Agreement.
(b) The Licensee undertakes not to itself or through any third party, copy, modify, alter, merge or adapt the software in any way, or transfer, rent, lease, loan or hire any part of the Materials in whole or in part except as expressly provided for in this Licence unless specifically otherwise agreed in writing by the Parties or as otherwise permitted by law. The Licensee will take all reasonable steps to protect all the Materials from unauthorised use and reproduction, publication, disclosure or distribution including in respect of intellectual copyright, such duty of care to continue following termination of this Agreement. The Licensee shall notify the Licensor immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the Software or Materials by any person.
5. Licensor – Termination of Licence
(a) The Licensor may terminate the Licence forthwith on giving notice in writing to the Licensee if:
(i) the Licensee commits any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the Licensor to do so, to remedy such breach.
(ii) the Licensee shall have a receiver, administrator or administrative receiver appointed of it or over any parts of its undertaking or assets or shall pass any resolution for winding up (otherwise than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the Licensor shall enter into any voluntary arrangements with its creditors or shall become subject to an administration order or shall cease to carry on business.
(b) Forthwith upon termination of the Licence, the Licensee shall return to the Licensor the Materials and all copies of the whole or any part thereof or, if requested by the Licensor, shall destroy the same and certify in writing to the Licensor that they have been destroyed.
(c) Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect any provision which is intended to come into or continue in force on or after such termination.
6. Limited Warranty
(a) The Licensor warrants the Materials to be free from all material operational defects that could affect the reliability of the Materials for a period of 60 days from the effective date of this Agreement when the Software is intended to be in normal use and service.
(b) The said warranty shall be subject to the Licensee complying with its obligations hereunder and to there having been no alterations to the Software made by any person other than the Licensor. When notifying a defect or error the Licensee shall use its reasonable endeavours to provide the Licensor with a documented example of such defect or error.
(c) The Licensor shall have no liability or obligation under the said warranties other than to remedy breaches thereof by the reasonable provision of materials and services within a reasonable time and without charge to the Licensee. If the Licensor shall fail to comply with such obligation its liability for such failure shall be limited as specified in Clause 7. The foregoing states the entire liability of the Licensor, whether in contract or tort, for defects and errors in the Materials.
(d) As all software is inherently complex, the Licensee acknowledges that the Materials may not be completely free of errors. The Licensor shall make reasonable endeavours to keep Software material errors to a minimum and to correct performance affecting errors within reasonable timescales.
(e) No other warranties, terms or conditions express or implied, including but not limited to implied warranties, terms or conditions of satisfactory quality, or fitness for purpose, or reasonable skill and care, and all such warranties, terms and conditions are expressly and specifically disclaimed. This paragraph shall not detract from any statutory rights which the Licensee may have.
(f) Licensee warrants its rights under the Data Protection Act to use the employee information provided by Licensee in conjunction with the Licensor Software and Services and shall indemnify and hold harmless Licensor in respect of any breaches of such rights.
(g) Licensee warrants and undertakes its right to use and provide Licensor with the training and question content provided by Licensee and shall indemnify and hold harmless Licensor in respect of any breaches of such rights.
Save in respect of claims for death or personal injury arising from a Party’s negligence or any other liability which cannot be excluded or limited as a matter of law, neither Party shall be liable for any damages resulting from loss of use, loss of profits, loss of anticipated savings, loss of goodwill, nor for any damages that are an indirect, consequential or special loss or damage.
8 Confidential Information
(a) Both parties to this Agreement undertake, except as provided below, to treat as confidential and keep secret all information marked ‘confidential’ or which may reasonably be supposed to be confidential, including, without limitation, information contained or embodied in the Software or Materials, the Specification and other information supplied by the Licensee or Licensor (in this Agreement collectively referred to as ‘the Information’) with the same degree of care as it employs with regard to its own confidential information of a like nature and in any event in accordance with best current commercial security practices, provided that, this clause shall not extend to any information which was rightfully in the possession of either party prior to the commencement of the negotiations leading to this Agreement or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause).
(b) Both parties shall not without the prior written consent of the other party divulge any part of the Information to any person except:
– to their own employees and then only to those employees who need to know the same;
– to either party’s auditors, an officer of HM Revenue and Customs, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the other party and then only in pursuance of such right, duty or obligation;
– any person who is for the time being appointed by either party to maintain the Equipment on which the Licensed Programs are for the time being used (in accordance with the terms of the Licence) and then only to the extent necessary to enable such person to properly maintain the Equipment.
(c) Both parties undertake to ensure that persons and bodies referred to in clause 8(b) are made aware before the disclosure of any part of the Information that the same is confidential and that they owe a duty of confidence to the other party.
(d) Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
(e) The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Licence or this Agreement.
9 Breach of Terms
If the Licensee breaches the terms of this Licence, the Licensor reserves the right to recover any loss or be compensated for any damage occasioned by reason of the breach. Either party’s failure or delay in enforcing any provisions hereof will not waive that party’s rights if any provision of this Agreement is found invalid or unenforceable.
10 Illegality and Severance
If any term or provision of this Agreement shall be held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form part of this Agreement but the validity and enforceability of the remainder of this Agreement shall not be affected.
11 Authorities and Approvals
Unless otherwise provided above, any amendment or variation of this Agreement shall not be effective unless evidenced in writing by a duly authorised representative of the Licensor and the duly authorised representative of the Licensee.
12 Governing Law
This Licence Agreement is governed by and interpreted in accordance with the Laws of England and the Licensee agrees to submit to the exclusive jurisdiction of the English Courts.
All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in this Agreement or other such address as the recipient may designate by notice given in accordance with the provisions of this Clause.
14 Whole Agreement
The Licensee acknowledges that he has read this Agreement, understands it, and agrees to be bound by its terms and conditions. The Licensee further agrees that it is the complete and exclusive statement of the agreement with the Licensor for the licensing of the Software & Materials by the Licensor for use by the Licensee which supersedes any other previous proposal or agreement whether oral or written. No employee of the Licensor has authority to make any warranty, statement or promise concerning the Software or Materials except in writing and signed by a duly authorised officer. Nothing in this Clause is intended to, or shall operate as, exclusion of liability for the wilful default or fraudulent misrepresentation of either party. Subject to any determination of the Courts to the contrary the remainder of this Agreement shall remain valid and enforceable according to its terms.
15 Third Parties
A person who is not a party to the Agreement shall not have any rights under or in connection with it.
Performance Guarantee Terms & Conditions
1. Elephants don’t forget Limited (Edf) will refund an amount equal to 84% of the Licence Fees paid by Customer (as defined in the Edf Order Form) to Edf during the first 12 months of an initial Licence Agreement (Initial Term) with Edf where the following performance conditions are evidenced:
a. The average knowledge level of Customer’s employees using the Edf solution fails to increase over the Minimum Usage Period (MUP), a period of 12 months from first licence activation;
b. The time for Customer’s new recruits using the Edf solution to reach the average level of knowledge at the start of the Initial Term fails to improve during the MUP;
c. The knowledge level of Customer’s employees using the Edf solution in relation to compliance within Customer’s business fails to improve over the MUP.
2. Clause 1 above shall only apply where the following conditions are evidenced by the Edf system and Customer:
a. The Edf solution must have been in use for a minimum period of 12 months;
b. The volume of active licences shall not fall below 65% of the ordered licence volume during the Initial Term;
c. The user engagement rate must have consistently exceeded 70% during the Minimum Usage Period;
d. User engagement shall be calculated on a fair and reasonable basis. For the avoidance of doubt, a user selecting any answer simply to ensure the question is answered shall not constitute reasonable user engagement;
e. Edf system content must be based on training material that has previously been trained to Customer employees;
f. Reasonable and appropriate advice given by Edf to support the Edf solution must be followed or implemented by Customer within a reasonable period time;
g. Management engagement with the system and reporting tools must be reasonable to support the learning and user feedback process.
3. This Performance Guarantee shall apply to Licence Fees only and shall not apply to any other payments or amounts due to Edf from Customer.
4. In the event that Customer serves notice to terminate the Edf Agreement prior to the expiry of the Minimum Usage Period or in any way breaches the terms and conditions of the Licence Agreement, this Performance Guarantee shall terminate with immediate effect and no refund shall be due to Customer.
5. All amounts are exclusive of VAT or other taxes as appropriate.