These Terms of Service are an agreement between Developing Experts Ltd (DEL) and Customer (the “Agreement”). This Agreement consists of the below terms and conditions, the SLA’s applicable to the Service, and the pricing and payment terms made available relating to the Service. The Service also may contain other posted notices or codes of conduct, which are incorporated by reference into this Agreement.

 

Please read this Agreement carefully. BY SUBSCRIBING TO AND/OR USING ANY OF THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY MODIFICATIONS MADE TO IT FROM TIME TO TIME. IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, IT MAY NOT SUBSCRIBE TO OR USE THE SERVICE.

 

  1. DEFINITIONS

 

“Add-on Service” means additional functionality or services that may be Ordered by Users of the Service for an additional subscription fee or charge.

 

"Affiliate" means any legal entity that a party owns, that owns a party, or that is under its common ownership. "Ownership" means, for purposes of this definition, control of more than a 50% interest in an entity.

 

“Class” means a group of up to 35 students which attend a specific course provided by the Customer to their students.

 

“Class Licenses” means the maximum number of classes who may access Developing Experts, each class shall consist of no more than 35 students.

 

“Client Software” means any software provided to Customer related to the Service.

 

“Content” means all data, including all text, sound, or image files and software that are provided to DEL by, or on behalf of, Customer, its Users and associated account Users through their use of the Service.

 

“Customer” means the entity that has entered into this Agreement. If an individual enters this Agreement on behalf of a company or other legal entity, such individual represents that he or she has the authority to bind such entity to this Agreement.

 

"License" means the rights granted by DEL to Customer to use, access, display, run and/or otherwise interact with the Service and/or Client Software for, as applicable, for Customer’s internal business purposes.

 

“DEL” means Developing Experts Ltd or its Affiliates.

 

"Order" means an order for Services. An Order may include multiple Subscriptions to Services.

 

“Service” means the services (including pre-release services and Add-on Services) and software, including any updates, upgrades, support, and content (e.g., audio and visual information, documents) contained or made available to Customer by DEL in the course of using the Service. DEL may change the Service at any time and for any reason without notice.

 

"SLAs" means service level agreements representing commitments DEL makes with regard to the Services. See appendix 1 for the SLA definition.

 

"Subscription" means the part of the Order identifying the specific Services being ordered and may include the Class quantity, User Location, DEL software component or other information.

 

“Subscription Fee” means the monthly amount Customer is required to pay for the Subscription to the Service. "Term" means the duration of a Subscription.

“Users” means individuals within Customer’s organization who have the right to use the Services.

 

 

“Software as a service” consists of system administration, system management, and system monitoring activities that DEL performs for DEL programs, and includes the right to use the DEL programs, support services for such DEL programs, as well as any other services provided by DEL, as defined in the ordering document (collectively, the “services”).

 

“DEL Materials” refers to any available documentation or visual information as well as any other materials provided by DEL as part of the services.

 

“DEL programs” refers to the software products owned or distributed by DEL to which DEL grants you access as part of the services, including DEL Materials, and any program updates provided as part of the services.

 

  1. RIGHTS GRANTED

 

    1. General. Upon DEL’s acceptance of your order and for the duration of the services term defined in the ordering document, you have the nonexclusive, non-transferable, non-assignable, non-perpetual, royalty free, worldwide limited right to use the services solely for your internal business operations and subject to the terms of the agreement. You may allow your users to use the services for this purpose and you are responsible for your users’ compliance with the agreement.

 

You acknowledge that DEL will not ship copies of the DEL programs to you as part of the services. You agree that you do not acquire under the agreement any license or rights to use the DEL programs specified in the ordering document in excess of the scope and/or duration of the services. Upon the end of the agreement or the services thereunder, your right to access or use the DEL programs specified in the ordering document and the services shall terminate.

 

The ability to use Services may be affected by minimum system requirements or other factors. DEL reserves all rights not expressly granted.

 

    1. Client Software. Customer may need to install Client Software to access and use the Service. Customer may make copies of the Client Software solely to support the Service for its Users. Copies must be true and complete copies (including copyright and trademark notices) and be made from a DEL approved media or a network source. Customer may use a third party to make and install these copies, but Customer agrees that it will be responsible for that third party’s actions. Customer agrees to use reasonable efforts to make its employees, agents and other individuals that it allows to use the Client Software aware that it is licensed from DEL and subject to the terms of this Agreement. Additional rights and restrictions for the Client Software may accompany the provision of such Client Software, and Customer agrees to abide by all such additional rights and restrictions.

 

    1. Authorized Classes. Only those Classes who the Customer designates as authorized Classes may use and access the Service. Only Users who have administrator privileges may add additional authorized Classes to the Service up to and including the total number of Class Licenses purchased during the Subscription period. Class Licenses cannot be shared or used by more than one individual authorized Class and cannot be reassigned to a new Class to replace a current authorized Class. However, a User who has administrator privileges may delete an authorized Class from the Service and add a new authorized Class to the Service to replace the former authorized Class. Each authorized class may, unless otherwise specified, contain one teacher, one cover teacher, thirty-five students and two guardians per student.

 

    1. Limitations on use. Customer shall not reverse engineer, decompile or disassemble the Service or Client Software, except where applicable law permits it despite this limitation. Customer shall not rent, lease, lend, resell, or host to or for third parties any Service or Client Software. Third party technology that may be appropriate or necessary for use with some DEL programs is specified in the DEL Materials or ordering document as applicable. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by DEL and not under the agreement.

 

You may not:

 

 

 

 

You may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, DEL programs or materials available, to any third party other than, as expressly permitted under the terms of the agreement.

 

The rights granted to you under the agreement are also conditioned on the following:

 

 

and you agree to make every reasonable effort to prevent unauthorised third parties from accessing the services.

 

You may not assign the agreement or give or transfer the services or an interest in them to another individual or entity. If you grant a security interest in any portion of the services, the secured party has no right to use or transfer the services or any deliverables.

 

DEL may audit your use of the services. You agree to cooperate with DEL’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the services in excess of your rights. If you do not pay, DEL can end your services and/or the agreement. You agree that DEL shall not be responsible for any of your costs incurred in cooperating with the audit.

 

  1. ORDERING,  PRICING, PAYMENTS, RENEWALS  AND TAXES

 

    1. Ordering. Customer shall place an Order for each Subscription for a Service via any means made available by DEL for such Ordering. If Customer desires to use the Service for more than the total number of Class Licenses available through the Service level it subscribed to, it must subscribe to the appropriate Service level prior to commencing any such use. If Customer desires to reduce the total number of Class Licences, it may do so, subject to the cancellation fees set forth in Section 4.2. Any Services added to a Subscription will expire at the end of the Term. Each Subscription shall be for a defined Term (e.g. 12 months). Customer may place Orders for its Affiliates under this Agreement and grant its Affiliates administrative rights to manage the Services. Affiliates may not place Orders under this Agreement. To the extent Customer grants any rights to Affiliates, such Affiliates shall be bound by the terms and conditions of this Agreement. Customer agrees that it is jointly and severally liable for any Services purchased for or other actions taken by any of its Affiliates or any third party to which it provides rights under this Agreement .

 

    1. Subscription Fees. Subscription Fees are available via the Order or other means made available by DEL. Payments are due and must be paid in accordance with the Order. Price level changes are not retroactive. Prices for each price level are fixed at the time the Subscription is first placed and apply throughout the Term. Subscription Fees are subject to change at the beginning of any Subscription renewal.

 

 

    1. Renewal. Unless the offer specifically states otherwise, Customer’s Subscription will automatically renew at the expiration of the Term.

 

    1. New agreement. Prior to placing new Orders, renewing any Subscriptions, or further use of the Services, and upon notice, DEL may require that Customer enter into an updated agreement to govern Orders, renewal Subscriptions, or usage from that date forward.

 

    1. Taxes and other Incidental Charges. You agree to pay for all services ordered as set forth in the applicable ordering document. All fees due under the agreement are non-cancelable and the sums paid non-refundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that DEL must pay based on the services you ordered. You will reimburse DEL for reasonable expenses related to providing any on-site portion of the services. Fees for services listed in an ordering document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.

 

    1. Refunds. All charges are non-refundable unless expressly stated otherwise, or otherwise provided by law.

 

    1. Late Payments. Except to the extent prohibited by law, DEL may assess a late charge if Customer does not pay on time, regardless of any disputes Customer may have raised about its bill. Customer must pay these late charges as and when billed by DEL. The late charge will be the lesser of 1% of the unpaid amount each month or the maximum rate that is permitted by law. DEL may use a third party to collect past due amounts. Customer must pay for all reasonable costs incurred by DEL to collect any past due amounts. These costs may include reasonable attorneys’ fees and other legal fees and costs. DEL may suspend or cancel the Service if Customer does not pay in full and on time.

 

  1. TERM AND TERMINATION

 

    1. Termination by DEL. DEL may cancel or suspend Customer’s use of the Service or a portion thereof at any time if Customer violates the terms of this Agreement, if DEL believes that Customer’s use of the Service represents a direct or indirect threat to its network function or integrity or anyone else’s use of the Service, or if DEL is otherwise required by law to do so. Upon notification by DEL of any such cancellation or suspension, Customer’s right to use the Service will stop immediately. Cancellation or suspension of the Service for Customer’s violation of the terms of this Agreement will not change Customer’s obligation to pay any Subscription fees due for the applicable Term. DEL may also cancel or suspend Customer’s use of the Service for convenience at any time during the Term. Cancellation or suspension for convenience will only be effective upon a 3-month notification by DEL.

 

    1. Termination by Customer. Customer may terminate a Subscription or reduce the number of Class Licenses at any time during its Term. A termination will be effective at the end of the annual Subscription cycle during which customer terminates the Subscription or reduces the number of Class Licenses. Customer must pay for the period prior to the termination effective date.

If the Customer terminates a one-year Subscription within 30 days of the date on which the Subscription became effective or was renewed, customer must pay for the initial 30 days of the Subscription. No payments will be due for the remainder of the Subscription. If customer terminates a Subscription or reduces the number of Class Licenses at any other time during the Term, Customer must pay 100% of the Subscription fee otherwise due for the remainder of the one-year Term.

 

    1. Effect of termination. Upon termination or cancellation of the Service by either party for any reason, DEL may delete Customer’s Content permanently from its servers. Notwithstanding the foregoing, DEL will keep Customer’s Content for a period of 30 days before it is deleted from DEL’s servers. Customer is solely responsible for taking the necessary steps to back up its Content and ensure that it maintains its primary means of business.

 

    1. Waiver of rights and obligations. To the extent necessary to implement the termination of this Agreement, each party waives any right and obligation under any applicable law or regulation to request or obtain intervention of the courts to terminate this Agreement.

 

 

    1. No liability for deletion of Content. Customer acknowledges that, other than as expressly described in these terms, DEL will have no obligation to continue to hold, export or return Customer’s Content. Customer acknowledges that DEL will have no liability whatsoever for deletion of Content pursuant to these terms.

 

  1. PRIVACY & DATA PROTECTION

 

    1. Personal data. Personal data collected through the Service may be transferred, stored and processed in any other country in which DEL or its service providers maintain facilities. This includes any personal data the Customer collects using the Service. Customer agrees to obtain sufficient authorization from persons providing personal data to Customer, to transfer that data to DEL and its agents, and permit its transfer, storage and processing.

 

    1. Our Use of Customer Data and Third Party Requests. Customer data will be used only to provide Customer the Service. This may include troubleshooting aimed at preventing, detecting and repairing problems affecting the operation of the Service and the improvement of features that involve the detection of, and protection against, emerging and evolving threats to the user (such as malware or spam).

 

DEL will not disclose customer data to a third party (including law enforcement, other government entity, or civil litigant; excluding our subcontractors) except as Customer direct or unless required by law. Should a third party contact DEL with a demand for customer data, DEL will attempt to redirect the third party to request it directly from Customer. As part of that, DEL may provide Customer’s basic contact information to the third party. If compelled to disclose customer data to a third party, DEL will use commercially reasonable efforts to notify Customer in advance of a disclosure unless legally prohibited. Customer is responsible for responding to requests by a third party regarding Customer’s use of the Service.

 

    1. DEL acknowledges that any and all Customer Data processed by DEL in providing the Services belongs to Customer and that DEL has no right in or to Customer Data other than as permitted by this Agreement and/or to enable it to provide the Services.

 

    1. Customer grants DEL a license to use the Customer Data to the extent necessary for the performance of the Services and to keep an archival copy subject to the provisions of the relevant data protection regulations.

 

    1. Customer acknowledges that in providing the Service(s) DEL will only be required to act as a “data processor”, rather than a “data controller” in “processing” “personal data” as each of those terms are defined under the Data Protection Act 1998 (“the Act”). DEL confirms that it complies with the relevant obligations in accordance with the Seventh Principle of the Act. Customer shall indemnify and keep DEL indemnified against all claims, losses, liabilities, costs and expenses incurred or suffered by DEL arising from data processing carried out at the Customer’s instruction and/or arising out of Customers and Users non-compliance of the Act.

 

  1. USE RIGHTS AND LIMITATIONS

 

    1. SLAs. DEL will comply with the then-current SLA in place relating to the Services, as set forth in Appendix 1 .

 

    1. Customer’s Use. In using the Service, Customer will:

 

 

Customer may not:

 

 

 

    1. Limits on Service. DEL may establish limits on the Service. For example, it may limit the number of days the Service will retain any content that DEL, Customer or its Users provide, the number and size of email messages that Customer may send or receive through the Service, the maximum storage space on DEL’s servers available to Customer, the number of Service accounts to which Customer may subscribe, how long DEL retains an inactive Service account (one where Customer does not sign in to the Service for an extended period of time; the number of transactions Customer can conduct through the Service, and the number of asynchronous transactions that can be executed with an organization

 

    1. Use of Other DEL Services. Customer may need to use certain DEL websites or services to access and use the Services. If so, the terms of use associated with those websites or services, as applicable, apply to Customer’s use of them.

 

    1. Third Party Services. DEL may make services from third parties available to Customer through the Service. These third party services are the responsibility of the third party, not DEL. The third party service providers may require Customer to accept additional terms and conditions and/or pay a fee in order to use their services. Those additional terms and conditions are between Customer and the third party. Any third party’s use of information Customer provides as part of using their service is subject to the privacy statements and practices of that third party and/or their suppliers. DEL encourages Customer to review the privacy statement of these third party providers. DEL is not responsible for the privacy statements or privacy practices of these third party providers or their suppliers.

 

    1. Third Party Software. Customer is solely responsible for any third party software installed in or used with the Services. DEL is not a party to and is not bound by any terms governing Customer’s use of the third party software, Customer acknowledges that it will direct and control the installation in and use of such software with the Service. DEL will not run or make any copies of third party software licensed by the Customer except to support Customer’s use of the Service. Customer may not install or use the third party software in any way that would subject DEL’s intellectual property or technology to obligations beyond those included in the Agreement. DEL does not, and will not have any obligation to, provide technical or other support for any third party software. DEL does not make any representation or guaranty that any third party software will operate successfully with the Service or continue performing after an update, upgrade, services patch, support fix or platform migration has been made to the Service.

 

  1. CUSTOMER  CONTENT

 

    1. Content. Customer, its Users and associated account Users may be able to post or store Content to third party or DEL websites made available through the Service. Customer may be able to post or provide materials (including feedback) that are part of the Service in a publicly accessible area that allows Customer to communicate with others. If so, the terms of use associated with those websites where public access is made available for Customer to share Content, as applicable, apply to Customer’s use of them. Customer acknowledges that certain technical processing for posting Content may be required to

 

 

store and retrieve the Content, conform to connecting networks’ technical requirements, or conform to the limitations of the Service.

 

    1. Links to third-party Web sites. The Service may contain links to third-party websites. These third-party websites are not under DEL’s control. If DEL has included these links in the Service, it provides them as a convenience only. The inclusion of these links is not an endorsement by DEL of any third-party website, service or product. DEL reserves the right to disable links to any third-party website that Customer posts on the Service.

 

    1. DEL will not own any Content. DEL performs regular backups of Content for the purpose of recovery in the event of a failure in DEL’s data centers. However, notwithstanding the foregoing, Customer is solely responsible for maintaining and backing up any Content that it uses with the Service. The Customer, not DEL, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use such Content. DEL shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Content thatCustomer

 

  1. CONFIDENTIALITY

 

DEL and Customer shall treat the terms and conditions of this Agreement as confidential and shall not disclose them to any third party except in the furtherance of the parties’ business relationship with each other. For government Customers, this Section is subject to the requirements of applicable trade secret, public records, or similar laws.

 

  1. WARRANTIES

 

    1. Limited warranty. DEL warrants that the Services and Client Software will conform substantially to the description of them contained in the applicable DEL Materials. This limited warranty is subject to the following limitations: this limited warranty applies only during the Term, including any renewals ("Warranty Period"); any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last only during the Warranty Period; this limited warranty does not cover problems caused by accident, abuse or use of the Services in a manner inconsistent with this Agreement, or resulting from events beyond DEL’s reasonable control; this limited warranty does not apply to problems caused by the failure to meet minimum system requirements; and this limited warranty does not apply to downtime or other interruption in access to the Services, or any other performance metrics that are addressed in an applicable SLA.

 

    1. Remedies for breach of limited warranty. If Customer notifies DEL within the Warranty Period that a Service does not meet the limited warranty, then DEL will, at its option, either (1) return the amount paid for the Service during the (a) Term or (b) 12 months prior to delivery of notice to DEL, whichever is less, or (2) update such Service to make it conform. These are Customer’s only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law.

 

    1. DISCLAIMER OF OTHER WARRANTIES. OTHER THAN THIS LIMITED WARRANTY, DEL PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES. DEL DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON- INFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW.

 

  1. INTELLECTUAL PROPERTY RIGHTS

 

    1. Customer acknowledges and agrees that, as between the parties, DEL and/or its licensors own all Intellectual Property Rights in all materials connected with the Services and in any material developed or produced in connection with this agreement by DEL, its officers, employees, subcontractors or agents. This agreement does not grant the Customer any rights to such Intellectual Property Rights.

 

    1. Customer hereby grants to DEL an irrevocable, perpetual, worldwide, royalty free license to use Customer’s Intellectual Property Rights for the purposes of performing the Services.

 

    1. DEL shall have a perpetual, royalty-free, irrevocable, world-wide license to use and incorporate into the Services any suggestions, ideas, modification requests, feedback or other recommendations related to the Services.

 

 

 

 

  1. LIMITATION OF LIABILITY

 

    1. Limitation on liability. Except as otherwise provided in this Section, to the extent permitted by applicable law, the liability of DEL and of DEL’s contractors to Customer arising under this Agreement is limited to direct damages up to the amount Customer paid DEL for the Service and/or Client Software giving rise to that liability during the (1) Term or (2) twelve months prior to the filing of the claim, whichever is less. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to: Customer’s use of DEL’s trademark(s) without express written consent to do so; or liability for personal injury or death caused by DEL’s negligence or that of its employees or agents.

 

Neither party excludes or limits liability for death or personal injury arising from negligence, or for fraud or fraudulent misrepresentation or to the extent not permitted by law.

 

DEL is not liable in contract, tort (including negligence) or otherwise for the acts or omissions of providers of telecommunications services or for faults in or failures of their equipment.

 

In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for DEL to use reasonable commercial efforts to restore the lost or damaged Customer Data from the latest backup of such Customer Data. DEL shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties subcontracted by DEL to perform services related to Customer Data maintenance and back-up).

 

The Fees are determined on the basis of the exclusions and liabilities set out in this clause 8. The Customer expressly agrees that the exclusions and limitations are reasonable because (among other things) the likelihood that otherwise the amount of damages awardable to the Customer for a breach of this Agreement by DEL may be disproportionately greater than the Fees charged.

 

The exclusions and limitations of liability set out in this clause 8 shall be considered severable. The invalidity or unenforceability of one clause, sub-clause or provision shall not affect the validity or enforceability of the other parts of this clause 8.

 

During the Term, the Customer shall maintain in force with a reputable insurance company such commercial risks insurance as a reasonable and prudent business of the nature of the Customer may reasonably be expected to maintain.

 

Any property belonging to Customer (including, without limitation, information or data) supplied to DEL and required for the provision of the Services in connection with this Agreement: (a) shall be insured by Customer; (b) shall be clearly marked as the property of Customer. Customer may at any reasonable time, by giving not less than 14 days’ prior written notice toDEL,

 

EXCLUSION OF CERTAIN DAMAGES.TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF ITS AFFILIATES OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. HOWEVER, THIS EXCLUSION DOES NOT APPLY TO EITHER PARTY’S LIABILITY TO THE OTHER FOR VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS OR OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

 

  1. VERIFYING  COMPLIANCE

 

During the Term of any Subscription and for three years thereafter, Customer must keep all usual and proper records relating to the Subscription(s) and Customer’s use of the Services and/or Client Software under this Agreement. DEL may request that Customer conduct an internal audit of all Services in use throughout Customer’s organization, comparing the number

 

 

of Class Licenses in use to the number of Class Licenses issued to and/or paid for by Customer. By requesting an audit, DEL does not waive its rights to enforce this Agreement or to protect DEL’s intellectual property by any other means permitted by law. If verification or self-audit reveals any unlicensed use, Customer must promptly order sufficient Licenses to cover its past and present use. If material unlicensed use is found, Customer must reimburse DEL for the costs DEL has incurred in verification and acquire the necessary additional Licenses at single retail license cost within 30 days.

 

  1. MISCELLANEOUS

 

    1. Notices. Notices, authorizations, and requests to DEL in connection with this Agreement must be sent by regular postal service mail, or express courier, to the addresses given above. Notices will be treated as delivered on the date shown on the return receipt. Termination of the Agreement, a Subscription, or cancellation of a Subscription initiated by a Customer should be sent via the DEL customer service contact. Notices, authorizations, and requests to Customers may be emailed to account administrators Customer identifies. Notices are effective on the date on the return receipt or, for email, when sent.

 

    1. Assignment. Customer may not assign this Agreement. DEL may assign this Agreement to its Affiliates.

 

    1. Severability. If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the rest of the document will remain in effect and this Agreement will be amended to give effect to the eliminated provision to the maximum extent possible.

 

    1. Waiver. A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.

 

    1. Applicable law. This Agreement is governed by English Law without regard to its conflict of laws principles, The Services are protected by copyright and other intellectual property rights laws and international treaties.

 

    1. Dispute resolution. Any action to enforce this Agreement must be brought under English Law. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any other appropriate jurisdiction.

 

    1. Entire agreement. This Agreement, any SLAs, and the pricing and payment terms available set forth in the Order constitute the entire agreement concerning the subject matter and supersede any prior or contemporaneous communications.

 

    1. Survival. Provisions regarding fees, restrictions on use, transfer of licenses, intellectual property, limitations of liability, confidentiality, compliance verification, obligations on termination and the provisions in this Section entitled "Miscellaneous" will survive termination of this Agreement.

 

    1. Force majeure. Neither party will be liable for any failure in performance due to causes beyond either party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services)). This Section will not, however, apply to Customer’s payment obligations under this Agreement.

 

    1. User ID. Customer agrees that it is responsible for protecting the confidentiality of any DEL user access ID’s or other authentication IDs associated with this Agreement.

 

 

 
 

Appendix 1 Service Level Agreement (“SLA”)

 

 

DEL provides this SLA subject to the terms and conditions below, which will be fixed for the duration of the initial term of the Service subscription. If a Service subscription is renewed, the version of this SLA that is current at the time the renewal term commences will apply throughout the renewal term.

 

Standard Support

 

DEL will provide standard support to two Authorised Users as designated by Customer at no additional charge. These designated users will need to have been trained in the use of DEL products.

 

Additional user can be supported at an additional services fee of £10.00 excluding taxes per month. Authorised Users can submit a question by email to:

support@developingexperts.com

 

The DEL support team will use commercially reasonable efforts to promptly respond to each case with no less than 1 business day and will use commercially reasonable efforts to promptly resolve each case. Actual resolution times will depend upon the nature of the case and the resolution. A resolution may consist of a fix, workaround or other solution in the DEL Support team’s reasonable determination.

 

The DEL support team must be able to reproduce errors in order to resolve them. Customer agrees to co-operate and work closely with DEL support to reproduce errors, including conducting diagnostic or troubleshooting activities as reasonably required and appropriate. Authorised Users may also be asked to provide access to their account and/or desktop system for troubleshooting purposes.

 

The Support Services shall not be provided if there has been any modification of the services by any person other than DEL or approved by DEL.

 

If analysis and diagnostic work is provided by DEL to the Customer at the request of the Customer but it is discovered that the problem in issue is caused other than by an error or defect in the DEL Service, DEL reserves the right to charge the Customer at its then current consultancy rate for any time in excess of 30 minutes spent on such work.

 

The Customer shall not write data to the files or database used by the DEL Service by any means other than the standard DEL interfacing routines available with the Service.

 

For DEL to provide the Support Service it requires remote access to the Customers environment for the purposes of investigation and rectification. If the Customers refuses such remote access, then DEL will not be deemed to have failed to deliver the Support Service.

 

If DEL is requested by the Customer to attend a Customer Location to provide the Support Service then the Customers agrees to pay any expenses or costs incurred by DEL in attending that Location.

 

Excluded Items. Standard support does not include any of the following:

 

 

 

Monthly Service Level

  1. The Service Level is 99%.
  2. The Monthly Uptime Percentage is calculated for a given calendar month using the following formula:

 

 

Monthly Uptime Percentage =

Total number of minutes in a given calendar month

minus

Total number of minutes of Downtime in a given calendar month

Total number of minutes in a given calendar month

 

Service Credits

  1. Should the Service Level fall below 99% for a given month, DEL will provide a Service Credit as noted in the chart below:

 

Monthly Uptime Percentage

Service Credit*

< 99%

5%

< 95%

10%

< 90%

25%

 

*Service Credit will be issued against the applicable month’s Subscription Fee paid by Customer for the Service.

  1. A Service Credit is Customer’s sole and exclusive remedy for any violation of this SLA.
  2. A Service Credit awarded in any calendar month shall not, under any circumstance, exceed Customer’s monthly Subscription Fee.

 

Claims

 

  1. In order to make a Claim, Customers must be in compliance with policies for acceptable use of the Service found in the Agreement.
  2. Customer must submit a claim to Developing Experts Ltd.
  3. Customer must provide all reasonable details regarding the Claim, including but not limited to, detailed description of the Incident, the duration of the Incident, the number of affected users and the locations of such users and any attempts made by Customer to resolve the Incident.
  4. Customer must provide sufficient evidence to support the Claim, by the end of the month following the month in which the Incident which is the subject of the Claim occurs (for example, Incident occurs on January 15 th , Customer provides Notice on January 20 th , Customer must provide sufficient evidence to support the Claim by February 28 th ).
  5. DEL will use all information reasonably available to it to validate Claims and make a good faith judgment on whether the SLA and Service Levels apply to the Claim.
  6. DEL will use commercially reasonable efforts to process Claims within 45-days.

 

 

Exclusions

 

  1. Downtime does not include:

 

    1. The period of time when the Service is not available as a result of Scheduled Downtime; or

 

 

    1. The following performance or availability issues that may affect the Service:

 

      1. Due to factors outside DEL’s reasonable control;
      2. Related to add-on features for the Service, including, but not limited to Email or Reporting Services;
      3. That resulted from Customer’s or third party hardware, software, network connectivity or services;
      4. That resulted from actions or inactions of Customer or third parties;
      5. That resulted from actions or inactions by Customer or Customer’s employees, agents, contractors, or vendors, or anyone gaining access to DEL’s network by means of Customer’s passwords or equipment.
      6. That were caused by Customer’s use of the Service after DEL advised Customer to modify its use of the Service, if Customer did not modify its use as advised;
      7. Intermittent periods of Downtime that are ten minutes or less in duration; or
      8. Through Customer’s use of beta, trial offers, early access programs and/or demos (as determined by DEL).

Definitions:

  1. Claim” means a claim submitted by Customer to DEL that a Service Level under this SLA has not been met and that a Service Credit may be due to Customer.
  2. Downtime” means a period of time when Customers are unable to read or write any Service data for which they have appropriate  permission.
  3. Exclusions” means the performance or availability issues that are noted in Section D.
  4. Incident” means a set of circumstances resulting in an inability to meet a Service Level.
  5. Monthly Uptime Percentage” is calculated on a calendar month basis (according to the formula set forth in this Appendix) using data collected about the Service’s availability for a given calendar month.
  6. Notice” means that within five business days following an Incident, Customer must notify Customer Support of the Incident.
  7. Scheduled Downtime” means published maintenance windows or times where DEL notifies Customer of periods of Downtime for scheduled network, hardware, Service maintenance or Service upgrades at least 24-hours prior to the commencement of such Downtime.
  8. Service Credit” means the amount credited to Customer by DEL for a validated Claim.
  9. Service Level” means the percentage of Service availability for a given month that DEL agrees to provide Customer, which is measured by the Monthly Uptime Percentage.
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