Peritus Service Level Agreement

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.

We also draw your attention to our Privacy Policy, Cookie Policy and Data Processing Addendum each of which are incorporated by reference into any Agreement (defined below) we enter into with you or any communications we have with you.

1. Definitions

1.1 In this Agreement:

“Agreement” means the Front Sheet and these terms of business (including the Schedules) and any amendments to them as agreed from time to time;

“Aggregated Materials or Materials” means any document in writing, plan, design, drawing, picture, idea or concept whether printed or provided on any other medium (including, but not limited to, USB sticks, DVDs, videos, CD‐ROMs, online web applications, SCORM files, apps or other software programs) that have been provided, translated by or adapted by Peritus for the Customer;

“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;

“Confidential Information” means:

(a) proprietary or Confidential Information that is clearly labelled or otherwise identified as such by the party to whom it belongs (the “Disclosing Party”) or that reasonably ought to be regarded as confidential, including, but not limited to, financial, business, or technical information, commercial know-how, inventions, or processes, and all other information (written, oral, digital, or in any media not contemplated hereunder) that has been disclosed to or otherwise obtained by the other party (the “Receiving Party”);

(b) importantly, Confidential Information does not include information that:

i. is publicly known through no act or omission of the Receiving Party;

ii. was in the Receiving Party’s lawful possession prior to disclosure by the Disclosing Party;

iii. is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure;

iv. is independently developed by the Receiving Party without any reference to or use of the Disclosing Party’s Confidential Information and such development is shown by written record; or

v. is required to be disclosed by law or by any legal or administrative body of competent jurisdiction. Confidential Information shall not be deemed to be publicly known if it is known to merely a few parties for whom it may be of commercial interest or where disparate parts of Confidential Information are separately otherwise deemed to be publicly known; and

(c) the financial terms and conditions of this Agreement.

“Contract” means the contract for the provision of the Service entered into between Peritus and the Customer;

“Customer” means You (as defined within the Front Sheet above these Conditions);

“Customer Materials” all data works and materials

(a) uploaded to, stored on, processed using or transmitted via the Software/Services 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 the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of Personal Data. For the purpose of this DPA, Data Controller is the Company and/or the other Data Controllers on whose behalf Company acts;

“Data Processor” means any natural or legal person, public authority, agency or any other body which processes Personal Data on behalf of a Controller or on the instruction of another Processor acting on behalf of a Controller;

“Data Protection Legislation/Laws” means all applicable laws and regulations relating to the processing of Personal Data and privacy that may exist in the relevant jurisdictions;

“Delivery Day” means a scheduled day of activity for Peritus which forms part of the Products or Services referenced in this Agreement;

“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 of the last signature on this Agreement;

“End User” means all of the Customer’s employees/workers/contractors and individual third parties who the Customer indicates are to be provided with the Products or Services covered by this Agreement;

“Fees” means the amount/s payable to Peritus by a Customer as set out for the provision of the Products or Services whether in writing, electronic or otherwise, which states the pricing and any payment schedule, as well as the Products or Services to be provided;

“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);

“Front Sheet” means the front sheet to this Agreement;

“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade-marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Permitted Purpose” means the use of any Products or Services in accordance with the terms of this Agreement;

“Personal Data”  means proprietary information gathered or created by Peritus and provided to Customer as part of the Software Services, excluding Third-Party Content ;

“Peritus Systems” means the website that is used to access or use any part of the Products or Service covered in this Agreement;

“Product and/or Service” means all the services provided or to be provided by Peritus to the Customer as detailed on the Front Sheet of this Agreement or a confirmed Order by the Customer;

“Schedule” means a schedule attached to this Agreement;

“Software” means any software that is made available by Peritus as part of the Services under this Agreement;

“Term” means the term of this Agreement and which the Services are to be delivered within;

“Website” means the website which is used to access the Software;

“You/Your” means the Customer.

1.2 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.

1.3 The clause headings do not affect the interpretation of this Agreement;

1.4 The Front Sheet forms part of this Agreement.

2. Services

2.1 Under the terms of this Agreement, Peritus shall provide the Service to the Customer. Any changes or additions to the Service or these Terms must be agreed in writing by Peritus;

2.2 The Customer shall, at its own expense, supply Peritus with all necessary Materials or other materials, and all necessary data or other information relating to the Service, within sufficient time to enable Peritus to provide the Service in accordance with the Contract. The Customer shall ensure the accuracy of all Customer Materials;

2.3 The Customer shall, at its own expense, retain duplicate copies of all Input Material and insure against its accidental loss or damage. Peritus shall have no liability for any such loss or damage, however caused;

2.4 Peritus may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Service without any liability to the Customer;

2.5 Peritus may at any time without notifying the Customer make any changes to the Service which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Service;

2.6 This Clause 2.6 relates to all Products and Services provided by Peritus for and on behalf of the Customer:

2.6.1 Peritus accepts bookings for Products and Services by e-mail and will confirm all such bookings to the e-mail address provided by the Customer;

2.6.2 Cancellation of all or a part of the Service;

2.6.2.1 If written notice is received by Peritus at least 28 days before the commencement of the Service that the Customer wishes to cancel, the full deposit of the Service fee will be lost with the remaining amount able to be transferred to an alternative project. No refunds will be provided;

2.6.2.2 If the Customer cancels the Service without the requisite minimum notice the Customer shall be required to pay to Peritus the full cost of the Service. No refunds will be provided;

2.6.3 Cancellation of a Delivery Day:

2.6.3.1 If the Customer cancels or postpones a Delivery Day, the following will apply:

2.6.3.1.1 Notice received more than 10 working days before the first Delivery Day; Delivery Day re-scheduled;

2.6.3.1.2 Notice received less than 10 working days before the first Delivery Day; Peritus reserves the right to charge, or deduct from any allocated delivery schedule, the full associated costs or equivalent days, as indicated in any Schedules to this Agreement.

2.6.4 Peritus reserves the right to vary or cancel a Service or to change the venue of a Delivery Day where necessary without liability to the Customer as a result of illness, incapacity of the delivery expert, or Force Majeure Event;

2.7 Neither Peritus nor its presenters, consultants or agents will be liable by reason of breach of contract, negligence or otherwise for any loss or consequential loss occasioned to any person acting, omitting to act or refraining from acting in reliance upon any Material or presentation of the Material or arising from or connected with any error or omission in the Material or presentation of the Material. For the purposes of this Clause “consequential loss” shall include but not be limited to any loss of profits or anticipated profits, damage to reputation or goodwill, loss of business or anticipated business, damages, costs, expenses incurred or payable to any third party or any other indirect or consequential losses;

2.8 The Customer must use the allocated Services as detailed in this Agreement within the designated Term. If there are parts of the Service that are still outstanding at the end of the Term then this will be provided by Peritus at their discretion, which could incur further Fees to the Customer.

3. Customer Materials

3.1 The Customer grants to Peritus during the Term a non-exclusive, revocable, non-assignable and non-transferrable licence to store, copy and otherwise use the Customer Materials for the purposes of providing the Services, fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement;

3.2 Subject to clause3.1, all rights, title, ownership and Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer;

3.3 Subject to clause 3.1, all rights, title, ownership and Intellectual Property Rights in the Materials will remain, as between the parties, the property of Peritus;

3.4 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:

3.4.1 breach any laws, statutes, regulations or legally-binding codes;

3.4.2 infringe any person's Intellectual Property Rights or other legal rights; or

3.4.3 give rise to any cause of action against Peritus or the Customer or any third party.

3.5 The Customer shall indemnify Peritus against any loss, damages, costs, expenses or other claims arising from any such infringement;

3.6 Where Peritus reasonably suspects that there has been a breach by the Customer of the provisions of this clause 3 Peritus may:

3.6.1 delete or amend the relevant Customer Materials; and/or

3.6.2 suspend any or all of the Services and/or the Customer’s access to the Software while it investigates the matter.

3.7 Any breach by the Customer of this clause 3 will be deemed to be a material breach of this Agreement for the purposes of clause 10.1;

3.8 In addition, the Customer agrees that Peritus and any partner organisations and contractors, may use the Customer Materials for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules, and such analysis shall be performed only in conjunction with data derived by Peritus from services for other customers, input by other Peritus customers or obtained from party data sources. The results of such analysis (“De-identified Data”) may be used by Peritus for any lawful purpose, including determining future communications needs and determining trends. Notwithstanding anything contained in this Agreement, De-identified Data shall not contain:

3.8.1 any Confidential Information of the Customer;

3.8.2 any information that identifies or can be reasonably used to identify an individual person;

3.8.3 any information that identifies or can be reasonably used to identify the Customer, suppliers, or End Users; or

3.8.4 any information that identifies or can be reasonably used to identify any activities or behaviours of the Customer. Except as otherwise provided here, Peritus shall only use the Customer’s Confidential Information to the extent required for the proper delivery of the Services, including as necessary or appropriate.

4. Fees

4.1 The Fees payable under this Agreement shall be in the amounts and payable on the terms set out on the Front Sheet or within the accepted Order;

4.2 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;

4.3 If the Customer does not pay any amount properly due to Peritus under or in connection with this Agreement, Peritus may:

4.3.1 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

4.3.2 claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

4.4 Peritus may suspend the provision of the Services if any amounts due to be paid by the Customer to Peritus under this Agreement are overdue;

4.5 You will pay all Fees due to Peritus without any set off, deduction, counterclaim or withholding of monies, including but not limited to bank Fees and exchange rate effects;

4.6 Peritus shall be entitled to invoice the Customer prior to the Service being provided, or at other times agreed by Peritus in writing with the Customer;

4.7 Payment will be made within 30 days of the date of Peritus's invoice, unless agreed in writing by Peritus;

4.8 If a delegate on an externally accredited course fails to meet the relevant criteria to pass the course at the required level, despite Peritus meeting their requirements, the Customer will be liable for any associated costs for them to re-sit this process. All costs will be provided to the Customer for acceptance prior to commencing any additional Services.

5. Warranties

5.1 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;

5.2 Peritus warrants to the Customer that it has the legal right and authority to enter into and perform its obligations under this Agreement;

5.3 Peritus warrants to the Customer that the Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with this Agreement and at the intervals and within the times referred to. Where Peritus supplies in connection with the provision of the Services any goods (including Output Material) supplied by a third party, Peritus does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to Peritus.

5.4 The Customer acknowledges that Peritus may use Materials that, 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 can be assigned to the Customer, Peritus shall assign to the Customer the benefit of such warranty;

5.5 The Customer further acknowledges that:

5.5.1 Peritus will not and does not purport to provide any legal, taxation or accountancy advice under this Agreement;

5.5.2 all access to the Software is subject to the Master SaaS agreement already in place with the Customer.

5.6 All of 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.

6. Limitations and exclusions of liability

6.1 Nothing in the Agreement will limit or exclude liability of a party:

6.1.1 for death or personal injury resulting from its (or its employees’ or agents) negligence;

6.1.2 for fraud or fraudulent misrepresentation by that party;

6.1.3 for any liability that is not permitted to be limited or excluded under applicable law.

6.2 Subject to clause 6.1, 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 any Products or 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;

6.3 Subject to clause 6.1, Peritus shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any Customer Materials or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Customer;

6.4 Subject to clause6.1, in no event shall Peritus’ liability to the Customer whether based on contract, tort, negligence, strict liability, product liability or otherwise, exceed one tenth of Fees received by Peritus from the Customer;

6.5 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;

6.6 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;

6.7 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;

6.8 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.

7. Data protection

7.1 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;

7.2 Peritus warrants that:

7.2.1 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

7.2.2 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.

8. Confidentiality and publicity

8.1 Each party may disclose to the other party Confidential Information;

8.2 The party receiving any Confidential Information (the “Recipient”) 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: (i) 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 (ii) 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;

8.3 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;

8.4 You will not seek to copy, decompile or reverse‐engineer any Materials provided to You by Peritus, its Agents or Partners or third-parties in connection with the provision of the Products and Service covered in this Agreement.

9. Termination

9.1 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;

9.2 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;

9.3 Peritus may terminate the Agreement immediately by giving written notice of termination to the Customer where:

9.3.1 the Customer fails to pay to Peritus any amount due to be paid under the Agreement by the due date; or

9.3.2 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, or any of their respective representatives.

10. Effects of termination

10.1 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;

10.2 Termination of this Agreement will not affect either party's accrued liabilities and rights as at the date of termination.

11. Notice

11.1 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;

11.2 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.

12. Force Majeure Event

12.1 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;

12.2 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:

12.2.1 forthwith notify the other; and

12.2.2 will inform the other of the period for which it is estimated that such failure or delay will continue.

12.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

13. General

13.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach;

13.2 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);

13.3 Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties;

13.4 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;

13.5 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;

13.6 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;

13.7 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;

13.8 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).