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PERITUS LEARNING & DEVELOPMENT TERMS OF BUSINESS – PERITUS SYSTEMS

Introduction 

These Conditions set out Peritus Learning & Development (Peritus) standard terms and conditions of business for Customers and Subscribers and shall govern the provision of Products (of whatever nature) and Services by Peritus Learning & Development to Customers.

The headings in these Conditions are for convenience only and shall not affect their interpretation. Please note, the language of these Conditions is English. English is the definitive and binding version and the only language used in the interpretation of these Conditions.

These Conditions and the Agreement shall form the agreement between You and Peritus to the exclusion of all other terms and conditions (including any terms and conditions which You purport to apply as specified in any PO, purchase order, written instructions, letter of engagement, order confirmation, brief or other specification) and supersede any earlier agreement or agreements between You and Peritus.

  1. Definitions and interpretation
    In this Agreement:

“Aggregated Materials or Materials” means any Materials whether printed or provided on any other medium (including, but not limited to, USB sticks, DVDs, videos, CD‐ROMs, online web applications, apps or other software programs) that have been provided to, translated by or adapted by and Partners of Peritus or the Customer;

“Agreement” means the contractual relationship that comes into existence between You and Peritus upon purchase of the Products and Services;

“Active User” means an End User that accesses the Software and accesses any online course during an applicable billing period, regardless of the number of accesses during such billing period, the number of courses accessed during such billing period, or whether or not such End User completes the online course.

“Assessment Methods means any method of assessing a Course Participant, including but not limited to: multiple choice questions, scored activates, quizzes;

Business Day” means any week day, other than a bank or public holiday in England when banks in London are open for business;

Business Hours” means between 09:00 and 17:00 London time on a Business Day;

Charges” means the amounts payable by the Customer to Peritus in relation to this Agreement (as set out on the Front Sheet);

“Conditions” means these terms and conditions;

“Confidential Information” means any information which is disclosed to You by Peritus pursuant to, or in connection with, these Conditions and the Agreement (whether orally or in writing and whether or not such information is expressly stated to be confidential), or which otherwise comes into Your possession in relation to the System, any Agent of Peritus Learning & Development, the Website, the Services or the Products other than information which You can demonstrate is already in the public domain (otherwise than as a result of a breach of any obligation of confidentiality);

“Customer” means the entity that has purchased the Products or Services which could be the company you represent or you as an individual;

Customer Materials” all data works and materials:

(a)       uploaded to, stored on, processed using or transmitted via the Software by or on behalf of the Customer or by any person or application or automated system using the Customer’s account; and

(b) otherwise provided by the Customer to Peritus in connection with this Agreement;

“Data Controller” means an individual or an entity who defines the purposes for which and how any Personal Data are, or are to be, processed (including, but not limited to, collation of the data, use of the data, amendments to the data, processes for retaining or deleting the data);

“Data Processor” means an individual (other than a member of staff of the Data Controller) or an entity that processes Personal Data for the Data Controller;

“Documentation” means the user documentation and any other operating, training and reference manuals relating to use of the Software as supplied by Peritus to the Customer;

“Effective Date” means the date payment is received for the Products or Services or the Customer is provided with access to the Products or Services, whichever is sooner;

“End User” means all of the Customer’s employees and individual third parties who are authorised by the Customer to use the Software and who have been provided with a password for it, as described in clause 2.

“End User Data” means any data concerning the End User (including but not limited to Personal Data) that is gathered as a result of use of the System by the End User;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars) delays or restrictions by governmental bodies, inability to obtain or use necessary materials, or any cause beyond the reasonable control of Peritus;

“Fees means any and all fees due to be paid to Peritus by a Customer as set out for the provision of the Products, Services and use of the System whether in writing, electronic or otherwise which states the pricing and any payment schedule as well as the Products and Services to be provided.;

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs) including know‐how and trade secrets and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply for) and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection which may, now or in the future, subsist in any part of the world relating to the Products, Services, Bespoke Services, Materials, Aggregated Materials, the System and the Website, owned by Peritus or Partners, and acquired by Peritus or Partners from time to time;

Minimum Term” means 12 months following the Effective Date;

“Order means an order placed by You with Peritus for the provision of Products or Services;

Permitted Purpose” means the use of the System and any Content covered by the terms of this Agreement;

“Personal Data” means data which relates to a living individual who can be identified from that data as described in the Data Protection Act 2018;

Schedule” means a schedule attached to this Agreement;

Services” means all the services provided or to be provided by Peritus to the Customer under this Agreement, including the Support Services;

Software” means the software that is made available by Peritus (and as further described in Schedule 1), as a service via the internet under this Agreement;

Support Services” means support and maintenance services provided by Peritus to the Customer in accordance with Schedule 2;

Term” means the term of this Agreement;

Upgrades” means new versions of, and updates to, the Software, whether for the purpose of fixing an error, bug or other issue in the Software or enhancing the functionality of it; and

Website” means the website which is used to access the Software.

“You/Your” means a Customer

  • In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a)        that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)  any subordinate legislation made under that statute or statutory provision.

  • The clause headings do not affect the interpretation of this Agreement.
  • No Agreement will come into existence until Peritus, its Agents or Partners provides You with confirmation Peritus has accepted the Order.
  1. The Software
    • Subject to the terms of this Agreement, Peritus hereby grants to the Customer a non-exclusive, non-assignable licence to allow the End Users to use the Software for the Permitted Purpose via any standard web browser in accordance with the Documentation during the Term.
    • The licence granted by Peritus to the Customer under clause 1 is subject to the following limitations:
      • the Software may only be used by the authorised End Users;
      • End Users must agree to and comply with any applicable end user licence agreement(s);
      • the Customer must comply at all times with the terms of the acceptable use policy supplied with the Software and set out in Schedule 3, and must ensure that all End Users of the Software agree to and comply with the terms of that acceptable use policy; and
      • shall maintain a written, up to date list of current End Users and provide this to Peritus within 5 Business Days of Peritus’ written request at any time.
    • The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Software using the Customer’s account.
    • The Customer must not use the Software in any way that causes, or may cause, damage to the Software or impairment of the availability or accessibility of the Software, or any of the areas of, or services on, the Software.
    • The Customer acknowledges that certain maintenance activities regarding the Software and the Services may be necessary or appropriate from time to time, including bug fixes, software updates, feature updates, and the addition of new applications and new modules. Where such maintenance activities are not reasonably anticipated to materially impact the Customer’s use of the Software and/or any Services, Peritus will have no obligation to provide notice to the Customer regarding such maintenance activities. If Peritus reasonably determines that maintenance activities will require an unavailability or outage of the Software and/or the Services in excess of ten consecutive minutes, Peritus will use its reasonable endeavours to give the Customer advance notice. Peritus will use commercially reasonable efforts to perform routine scheduled maintenance during non-Business Hours.
    • The GDPR package is provided by Peritus Learning in partnership with Data Guardsman. Peritus provides the online GDPR training courses. Data Guardsman provides the GDPR compliance software. Payment of the fees will permit the customer to have access to the Peritus online training courses, subject to Peritus’ terms and conditions. Upon receipt of the fees, Peritus will procure access for the customer to the Data Guardsman software for a period of 12 months, which is strictly provided subject to the terms of use available from Data Guardsman (https://perituslearning.co.uk/dataguardsman-terms-conditions/). The provision of liability up to £250,000 by Data Guardsman is solely its responsibility and subject to separate terms and Peritus shall have no liability to the customer in this regard.
  2. Support Services and Upgrades
    • During the Term Peritus will provide the Support Services to the Customer, and may apply Upgrades to the Software, in accordance with the service level agreement set out in Schedule 2.
  3. Your Obligations
    • The Customer must have the required equipment, software, and internet access to be able to use the Software. Acquiring, installing, maintaining and operating equipment, any Software, and internet access is solely the Customer’s responsibility. Peritus neither represents nor warrants that the Software will be accessible through all web browser releases or all versions of tablets, smartphones, or other computing devices.
    • Peritus will provide the Customer with an account to use the The Customer and End Users are fully responsible for all activities performed on or through their account. The Customer agrees that it and each End User will:

(a) provide true, accurate, current and complete information as prompted by the registration form;

(b) maintain and promptly update such registration data to ensure the information is always true, accurate, current and complete;

(c) immediately inform the Peritus of any unauthorised use of an account or any other breach of security, and

(d) exit from the account at the end of each work session. Peritus shall have no obligation to verify the data provided by the Customer or its End Users. However, if Peritus finds or suspects that the provided information is untrue, inaccurate, not current or incomplete, Peritus may suspend or terminate the Customer’s and/or the End User’s account and refuse any and all current or future use of the Software and/or Services (or any part of them).

  • Each End User that uses the Software will choose a password when registering. The Customer shall ensure that End Users maintain the confidentiality of the passwords. The Customer will also be assigned a password or passwords for access to and use of the Software. The Customer acknowledges that once the initial password provided to the Customer is changed, Peritus does not retain the technical ability to retrieve such passwords. The Customer is fully responsible for all activities that occur using Customer and End User passwords. The Customer acknowledges and agrees that Peritus will not be liable for any loss that the Customer or any End User may incur as a result of someone else using a password that has been assigned to or obtained by the Customer or its End Users, either with or without the knowledge of the Customer or the applicable End User. Nor will Peritus be liable or responsible for any unauthorised access or misuse of the Software by the Customer or any of its End Users.
  • The Customer will notify Peritus immediately of any unauthorised use of the Software or any other breach of security that is known or suspected by the Customer, provided the Customer is legally able to give such notice. Peritus may suspend the access to the Software in the event of any breach of clause 2, 2, or 4.3 by the Customer or any End User until such violation ceases and Peritus receives reasonable assurances that such breach will not continue. If Peritus believes, in its sole discretion, that the software, computing equipment or network systems owned or licensed by Peritus (collectively, “Peritus Systems”) are being currently used for criminal activity, in a manner that violates the legal rights of Peritus, Peritus’ customers (including the Customer), any user or other third party, or is experiencing an actual data loss or data misappropriation, or that the continued operation of the Peritus Systems places the Peritus Systems in potential danger of data loss, data breach, or catastrophic failure, then such suspension may occur prior to the giving of such notice to the Customer.
  1. Ownership of the Software and Services

Title and ownership of all rights in the Software, Services, including Intellectual Property Rights are and will remain owned by Peritus or its third party suppliers or Software licensor, Docebo SPA. The Customer acknowledges that the Software in source code form remains proprietary information of Docebo SPA and that the source code is not licensed to the Customer by this Agreement and will not be provided by Docebo SPA. The Software may only be used by the Customer and its End Users.

  1. Customer Materials
    • The Customer grants to Peritus during the Term a non-exclusive licence to store, copy and otherwise use the Customer Materials in the Software for the purposes of operating the Software, providing the Services, fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement.
    • Subject to clause 1, all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.
    • The Customer warrants and represents to Peritus that the Customer Materials, and their use by Peritus in accordance with the terms of this Agreement, will not:
      • breach any laws, statutes, regulations or legally-binding codes;
      • infringe any person’s Intellectual Property Rights or other legal rights; or
      • give rise to any cause of action against Peritus or the Customer or any third party.
    • Where Peritus reasonably suspects that there has been a breach by the Customer of the provisions of this clause 5 Peritus may:
      • delete or amend the relevant Customer Materials; and/or
      • suspend any or all of the Services and/or the Customer’s access to the Software while it investigates the matter.
    • Any breach by the Customer of this clause 6 will be deemed to be a material breach of this Agreement for the purposes of clause 1.
    • In addition, the Customer agrees that Peritus and Docebo SPA, may use the Customer Materials for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules, except that such analysis shall be performed solely by Peritus and/or Docebo SPA and such analysis shall be performed only in conjunction with data derived by Peritus and/or Docebo SPA from performance of the Software and services for other customers, input by other Peritus and/or Docebo SPA customers or obtained from party data sources. The results of such analysis (“De-identified Data”) may be used by Peritus and Docebo SPA for any lawful purpose, including determining future hardware and communications needs and determining trends associated with warehouse use, operation, and efficacy. Notwithstanding anything contained in this Agreement, De-identified Data shall not contain;
  • any Confidential Information of the Customer;
  • any information that identifies or can be reasonably used to identify an individual person;
  • any information that identifies or can be reasonably used to identify the Customer, suppliers, or End Users; or
  • any information that identifies or can be reasonably used to identify any activities or behaviours of the Customer. Except as otherwise provided here, Peritus and Docebo SPA shall only use the Customer’s Confidential Information to the extent required for the proper delivery of the Software and the Services, including as necessary or appropriate to prevent technical problems (e.g. to resolve issues related to technical support).
  1. Fees
    • The Fees payable under this Agreement shall be in the amounts and payable on the terms set out at the point of sale.
    • All Fees are exclusive of VAT, unless the context requires otherwise. VAT will be payable by the Customer to Peritus in addition to the principal amounts.
    • If the Customer does not pay any amount properly due to Peritus under or in connection with this Agreement, Peritus may:
      • charge the Customer interest on the overdue amount at the rate of 8% per year above the base rate of the Bank of England from time to time (which interest will accrue daily and be compounded quarterly); or
      • claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
    • Peritus may suspend access to the Software and the provision of the Services if any amounts due to be paid by the Customer to Peritus under this Agreement are overdue.
    • End Users: ​Unless otherwise set forth in an Order, the fees for accessing the Software
      Services and any online courses are for a maximum of 250 End Users. Fees for additional End Users in excess of the authorised number of End Users (each, an “Extra User”) will be invoiced to the Customer in arrears in the amount of £25.00 plus Vat per Extra User per month.
    • You will pay all Fees due to Peritus without any set‐off, deduction, counterclaim or withholding of monies, including but not limited to bank charges and exchange rate effects.
    • Where a monthly payment structure has been agreed, the Fee shall be paid in advance and via a repeating charge to a Credit or Debit card of the Customer.
    • If you purchase a subscription, your payment method automatically will be charged at the start of each subscription period for the fees and taxes applicable to that period. To avoid future charges, cancel before the renewal date.
    • If You are dissatisfied with Peritus, its Agents or Partners delivery of its Products or Services, You must inform Peritus in writing within 14 days of the Effective Date. After this period no refunds or cancelations will be granted.
  2. Warranties
    • The Customer warrants and represents to Peritus that it has the legal right and authority to enter into and perform its obligations under this Agreement.
    • Peritus warrants to the Customer:
      • that it has the legal right and authority to enter into and perform its obligations under this Agreement;
      • subject to clause 3, that it will provide the Software and Services in a manner consistent with general industry standards for this type of software and that the Software will perform substantially in accordance with the Documentation under normal use and circumstances; and
      • subject to clause 3, it will use reasonable efforts to update the Peritus Systems so that they are protected from cyber-attacks and other intrusions, including through the utilisation of software updates, protective side code, firewalls, backups, and network monitoring.
    • The Customer acknowledges that where the Software and Documentation, are provided or owned by third parties (“Third Party Content”). The Customer acknowledges and agrees that Peritus does not control, and is not responsible for, the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided, any Documentation, services, or products (including Software) that the Customer or an End User accesses, downloads, receives or purchase through or relating to Third Party Content. To the extent that the benefit of any warranties made by the third-party owner of the Software and/or Documentation can be assigned to the Customer, Peritus shall assign to the Customer the benefit of such warranty.
    • The Customer further acknowledges that:
      • complex software is never wholly free from defects, errors and bugs, and Peritus gives no warranty or representation that the Software will be wholly free from such defects, errors and bugs;
      • Peritus does not warrant or represent that the Software will be compatible with any application, program or software not specifically identified as compatible in Schedule 2; and
      • Peritus will not and does not purport to provide any legal, taxation or accountancy advice under this Agreement or in relation to the Software and (except to the extent expressly provided otherwise) Peritus does not warrant or represent that the Software will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
    • All the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement.
  3. Indemnities
    • The Customer will indemnify, defend, and hold harmless Peritus against all claims, actions or proceedings, (including legal expenses and amounts paid in settlement of any disputes) arising out of any claim that:
  • any software used by the Customer to access the Software, Intellectual Property Rights, or Customer Materials provided by the Customer or its End Users or inputted into the Software, or the permitted use of the same by Peritus, infringes or violates any third-party patent, copyright or trade secret right;
  • the Customer’s unauthorised use or reproduction of the Software, the Services; or
  • Customer’s breach of clause 2 of this Agreement.
  1. Limitations and exclusions of liability
    • Nothing in the Agreement will limit or exclude liability of a party:
      • for death or personal injury resulting from negligence;
      • for fraud or fraudulent misrepresentation by that party;
      • any liability that is not permitted to be limited or excluded under applicable law.
    • Subject to clause 1, Peritus will in no event be liable to the Customer for any indirect, special, incidental, exemplary or consequential damages or loss of goodwill in any way relating to this Agreement or resulting from the use of or inability to use the deliverables or the performance or non-performance of the Software or any Services, even if Peritus has been notified of the possibility or likelihood of such damages or loss occurring, and whether such liability is based on contract, tort, negligence, strict liability, product liability or otherwise.
    • Subject to clause 1, in no event shall Peritus’ liability to the Customer whether based on contract, tort, negligence, strict liability, product liability or otherwise, exceed the pro-rata portion of Charges received by Peritus from the Customer during the three (3) month period immediately preceding the events giving rise to such action.
    • The Customer shall not rely on the abilities or discernment of Peritus, its Agents or Partners to establish the suitability of the Products and Services for any particular purpose and the Customer must use their own abilities and discernment to satisfy themselves that the Products and Services are of merchantable quality and suitable for their intended purposes, even if an Agent or Partner of Peritus, has given written or verbal opinions concerning the suitability of the Products and Services for a particular purpose. This clause shall survive termination of this Agreement.
    • Peritus, its Agents or Partners shall not be liable and gives no warranties to the Customer or any third party as to the suitability of the Products and Services for any particular purpose, including but not limited to the accuracy of its Project Files, Learning Modules, Workbooks, Materials and other Resources. This clause shall survive termination of this Agreement.
    • The Customer agrees that the Project Files, Learning Modules, Workbooks, Materials and other Resources Peritus, its Agents or Partners provides access to for the Customer represent Peritus, its Agents or Partners’ professional opinions based on research and analysis and must not be relied upon as statements of fact. For the avoidance of doubt, Peritus, its Agents or Partners’ are not an employment or recruitment agency and does not recruit individuals to undertake certain jobs, roles or functions.
    • Peritus, its Agents or Partners are committed to helping organisations value diversity in the workplace and care has been taken to ensure the Products and Services do not unlawfully discriminate or label or stereotype individuals. Peritus, its Agents or Partners shall not be liable if the Customer or the End User(s) or agents through their acts or omissions, make decisions based on, or interpretations of, the Project Files, Learning Modules, Workbooks, Materials and other Resources that result in claims of unlawful discrimination or labelling or stereotyping of individuals.
  2. Data protection
    • The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Peritus under or in connection with this Agreement.
    • Peritus warrants that:
      • it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Peritus on behalf of the Customer; and
      • it will use commercially reasonable efforts in accordance with customary industry standards to implement administrative, physical and technical safeguards necessary to ensure the security, confidentiality and integrity of Personal Data and against loss or corruption of Personal Data processed by Peritus on behalf of the Customer.
  1. Confidentiality and publicity
    • Each party may disclose to the other party Confidential Information
    • The party receiving any Confidential Information (theRecipient”) by the other party (the “Disclosing Party”) agrees to hold such in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information to any third party, or utilise it for any purpose whatsoever other than as expressly contemplated by this Agreement. The Customer acknowledges that the Software and Documentation are Confidential Information of Peritus, as between the Customer and Peritus. With regard to the Confidential Information, the obligations in this clause shall continue for as long as such information remains confidential. This shall not apply if and to the extent that:
  • Recipient establishes that the information communicated was publicly known at the time of Recipient’s receipt or has become publicly known other than by a breach of this Agreement; or
  • Recipient is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Confidential Information, provided however, that, Recipient shall first notify Disclosing Party prior to disclosure, if allowed by law, in order to give Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of this Agreement and shall disclose only that part of the Confidential Information which the Recipient is required to disclose.
    • Neither party will make any public disclosure relating to this Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the other party.
  1. Termination
    • Either party may terminate this Agreement immediately by giving written notice to the other party if the other party commits any material breach of any term of this Agreement, and the breach is remediable, the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so.
    • Either party may terminate this Agreement immediately by giving written notice to the other party if an order is made or a resolution is passed for the winding up of the other party, or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or such an administrator is appointed, or a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court or a creditor to appoint a receiver or manager or which entitle a court to make a winding-up order, or the other party takes or suffers any similar or analogous action in consequence of debt, or an arrangement or composition is made by the other party with its creditors or an application to a court for protection from its creditors is made by the other party, or the other party (being an individual) dies or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
    • Peritus may terminate the Agreement immediately by giving written notice of termination to the Customer where:
      • the Customer fails to pay to Peritus any amount due to be paid under the Agreement by the due date; or
      • In the event of any verbal or written abuse (including threats of abuse or retribution) by any End User, employee or other representative towards Peritus, Docebo SPA or any of their respective representatives,
  1. Effects of termination
    • Upon termination of this Agreement, all the provisions of this Agreement will cease to have effect, save that any provisions expressed or implied to survive and continue shall continue to have effect in accordance with their terms or otherwise indefinitely.
    • Termination of this Agreement will not affect either party’s accrued liabilities and rights as at the date of termination.
  2. Notice
    • Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement or such other address as may have been notified by that party for such purposes.
    • A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
  3. Force Majeure Event
    • Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event.
    • A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:
      • forthwith notify the other; and
      • will inform the other of the period for which it is estimated that such failure or delay will continue.
    • The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
  4. General
    • No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
    • If a clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant clause will be deemed to be deleted).
    • Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
    • Where the parties agree to Special Terms in Front Sheet, in the event of conflict the Special Terms shall take precedence over these terms of business. Subject to this, the Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
    • Peritus may assign, transfer or sub-contract any of its rights, benefits or obligations under this Agreement but the Customer may not assign, transfer or sub-contract any of its rights, benefits or obligations under this Agreement without the prior written consent of Peritus.
    • This Agreement is made for the benefit of the parties to this Agreement and is not intended to benefit any third party or be enforceable by any third party.
    • This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
    • This Agreement will be governed by and construed in accordance with the laws of England and Wales and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement (including non-contractual disputes or claims)

 

SCHEDULE 1

SOFTWARE SPECIFICATION

  1. SERVICE DESCRIPTION.

Peritus Systems

The Peritus System is software developed by Docebo Spa. Peritus Systems requires a modern web browser that supports cookies and JavaScript and localStorage must be enabled.

The Peritus Systems currently supports the following browsers click to view (which is subject to change without notice in Peritus’s sole discretion):

 

 SCHEDULE 2

SERVICE LEVEL AGREEMENT

  1. Introduction

1.1         In this Schedule:

New Functionality” means new functionality that is introduced to the Software by an Upgrade; and

1.2      References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

  1. Helpdesk

2.1      Peritus will make available, during Business Hours, an email and online helpdesk facility for the purposes of:

(a)              assisting the Customer with the proper use of the Software; and/or

(b)             determining the causes of errors and fixing errors in the Software.

2.2      The Customer must make all requests for Support Services through the helpdesk, and all such requests must include at least the following information: name, account, issue, number of people effected, full contact details.

  1. Response and resolution times

3.1         Peritus will:

(a)              use reasonable endeavours to respond to requests for Support Services made through the helpdesk; and

(b)             use reasonable endeavours to resolve issues raised by the Customer.

3.3         All Support Services will be provided remotely unless expressly agreed otherwise by Peritus.

  1. Limits on Support Services

4.1      Where the total person-hours spent by Peritus performing the Support Services under Paragraphs 2 and 3 during any month exceed 7.4 hours, then:

(a)       Peritus will cease to have an obligation to provide those Support Services to the Customer during that period; providing that

(b)       Peritus may agree to provide additional such Support Services to the Customer during that period, but the provision of such services will be subject to payment by the Customer of additional Charges at Peritus’ standard hourly rate[s] from time to time.

4.2      Peritus shall have no obligation under this Agreement to provide Support Services in respect of any fault or error caused by:

(a)              the improper use of the Software; or

(b)             the use of the Software otherwise than in accordance with this Agreement and Documentation.

  1. Upgrades

5.1      The Customer acknowledges that from time to time during the Term Peritus may apply Upgrades to the Software, and that such Upgrades may result in changes the appearance and/or functionality of the Software.

5.2      Peritus will give to the Customer reasonable prior written notice of the application of any significant Upgrade to the Software.

  1. Uptime commitment

6.1      Peritus shall use reasonable endeavours to ensure that the Software is available 95% of the time during each calendar month, subject to Paragraph 8.

  1. Back-up and restoration

7.1         Peritus will arrange for :

  • back-ups of the Customer Materials stored on the Software on a daily basis.

7.2      In the event of the loss of, or corruption of, Customer Materials stored on the Software being notified by the Customer to Peritus, Peritus shall if so directed by the Customer use reasonable endeavours promptly to restore the Customer Materials from the most recent available back-up copy.

  1. Scheduled maintenance

8.1      Peritus may suspend access to the Software in order to carry out scheduled maintenance, such maintenance to be carried out outside Business Hours.

8.2      Peritus must give to the Customer at least 14 days’ written notice of schedule maintenance, including full details of the expected Software downtime.

8.3      Software downtime during scheduled maintenance carried out by Peritus in accordance with this Paragraph 8 shall not be counted as downtime for the purposes of Paragraph 6.

 

Schedule 3

Acceptable Use Policy

1          This Policy

This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of our web services (the “Service”) and any content that you may submit to the Service (“Content”).

By using the Service, you agree to the rules set out in this Policy.

2          General restrictions

You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.

You must not use the Service:

(a)              in any way that is unlawful, illegal, fraudulent or harmful; or

(b)             in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

3          Unlawful and illegal material

You must not;

  • defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or Peritus;
  • publish, ship, distribute or disseminate any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortuous, indecent, unlawful, immoral or otherwise objectionable material or information (including any unsolicited commercial communications);
  • publish, ship, distribute or disseminate material or information that encourages conduct that could constitute a criminal offense or give rise to civil liability;
  • engage in any conduct that could constitute a criminal offense or give rise to civil liability for Peritus or any third party.

Content (and its publication on the Service) must not:

(a)              be libellous or maliciously false;

(b)             be obscene or indecent;

(c)       infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights;

(d)             infringe any rights of confidence, rights of privacy, or rights under data protection legislation;

(e)              constitute negligent advice or contain any negligent statement;

(f)              constitute an incitement to commit a crime;

(g)              be in contempt of any court, or in breach of any court order;

(h)             be in breach of racial or religious hatred or discrimination legislation;

(i)               be blasphemous;

(j)               be in breach of official secrets legislation; or

(k)              be in breach of any contractual obligation owed to any person.

You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

You shall not:

  • misrepresent or in any other way falsely identify the Customer’s identity or affiliation, including through impersonation or altering any technical information in communications using the Software;
  • interfere with or disrupt the Software or the Services, networks or servers connected to Peritus or the Software or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorised altering any of the information submitted through the Software;
  • attempt to gain unauthorised access to the Software, other Software customers’ computer systems or networks using the Software through any means; or
  • interfere with another party’s use of the Software. Peritus has no obligation to monitor the Customer’s use of the Software. However, Peritus, and its Software licensor, Docebo SPA, reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request. The Customer is fully responsible and liable for its End Users’ use of the Software and Services in compliance with the terms of this Agreement and as required by law.

4          Data mining

You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Service without our express written consent.

5          Graphic material

Content must not depict violence in an explicit, graphic or gratuitous manner.

Content must not be pornographic or sexually explicit, or consist of or include explicit, graphic or gratuitous material of a sexual nature.

6          Harmful software

You must not use the Service to transmit or upload any material through the Software containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Peritus’, or any other person’s or entity’s, network, computer system, or other equipment;

7          Breaches of this Policy

We reserve the right to edit or remove any Content in our sole discretion for any reason, without notice or explanation.

Without prejudice to this general right and our other legal rights, if you breach this Policy in any way, or if we reasonably suspect that you have breached this Policy in any way, we may:

(a)          delete or edit any of your Content;

(b)          send you one or more formal warnings;

(c)           temporarily suspend your access to a part or all of the Service; and/or

(d)          permanently prohibit you from using a part or all of the Service.

Peritus Learning & Development Head Office

Peritus Learning & Development London Office

Peritus Learning & Development North American Office

Accreditations

DOCK, Pioneer Park,
75 Exploration Drive,
Leicester, LE4 5NU

Phone0116 268 8727

Mail[email protected]

Pall Mall
London
SW1Y 5ED

Mail[email protected]

123 Slater Street, 6th Floor
Ottawa, ON
K1P 5H2, Canada
Phone+1 (613) 263 2904

Mail[email protected]