Lessons Management Hub. Support and maintenance agreement

Transcription

1 Lessons Management Hub Support and maintenance agreement

2 Lesson Management Hub Support and maintenance agreement SUPPORT and MAINTENANCE AGREEMENT between LESSON LEARNER LIMITED incorporated in Scotland with Company Number SC whose registered office is 37 Portland Road, Kilmarnock KA1 2DJ, Scotland ( Lesson Learner ) and you ( Licensee or you ) WHEREAS you are a current Licensee of the Software (as defined below) in terms of the Licence issued online to you through the Lesson Learner website at ( the Licence ); AND WHEREAS you require to obtain support and maintenance services from Lesson Learner in respect of the Software purchased THEREFORE it is now agreed between you and Lesson Learner as follows: 1. INTERPRETATION Charges means the amount payable by you to Lesson Learner as set out in the Customer Order Form for the purchase of these Services Customer Order Form means the online order form for the purchase of services completed and accepted by you on the Lesson Learner website Documentation means the documents made available to you electronically as part of the Licence and which includes the technical specification which sets out the minimum operating requirements of the Software Effective Date means the date set out in the Customer Order Form for the purchase of these Services Lesson Learner website means Licence means the online Licence for the Software purchased by you from the Lesson Learner Website and any amendments thereto from time to time Modifications means additions, edits, alterations and modifications made under the Software by Lesson Learner applied to the Software for the purpose of fixing any error, bug or other issue in the Software. For the avoidance of doubt however Modifications do not include any upgrades, changes to or enhancements in the functionality of the Software, which changes or enhancements will be regarded as a new version of the Software support of which will not be covered by this Agreement. Named Contact means the contact specified by you as the Licensee Administrator for the Software in the Customer Order Form or any substitution thereof subsequently notified to Lesson Learner in writing

3 Services means the provision of support and maintenance services for the Software within the Support Scope and in accordance with the terms of this Agreement Software means the Lessons Management Hub software developed by Lesson Learner and supplied to you in terms of the Licence (including where the context permits any Modifications applied to the Software by Lesson Learner) Support Scope means the level of support to be provided by Lesson Learner in terms of this Agreement all as more particularly defined in the Schedule to this Agreement Term means the minimum term set out in the Customer Order Form 2. SUPPORT AND MAINTENANCE SERVICES 2.1 Lesson Learner will supply the Services to you during the Term in accordance with the terms and conditions of this Agreement. 2.2 Lesson Learner may subcontract the provision of any of the Services without obtaining your consent. 2.3 Within the Support Scope, Lesson Learner shall use all reasonable endeavours to: provide Software support to the Named Contact and respond to any such request as soon as practicable after receipt of the same. For the avoidance of doubt however no guarantee on response time is given or intended provide error correction and bug fixing to ensure the Software performs in accordance with the Documentation, and to provide such error correction or bug fixing within 90 days of being notified by you of the requirement to do so, if such error correction or bug fixing is material in the reasonable opinion of the Licensee. Time shall not be of the essence if in the reasonable opinion of Lesson Learner the circumstances prevailing are so extreme that to provide error correction or bug fixing to a sufficiently high standard of quality within 90 days is not practicable; notify you of any Modifications of the Software; and deliver to you at no additional cost the object code of the Modification in machinereadable form, following installation of the Modification it shall become the Software to which this Agreement applies. 2.4 Lesson Learner shall support the Software for five years from the date of its original release if covered by a maintenance agreement, renewable annually. 2.5 Except as otherwise agreed, Lesson Learner shall not provide any support in relation to faults or enquiries outside of the Support Scope or arising from: misuse, incorrect use of or damage to the Software; or

4 2.5.2 use of the Software otherwise than in accordance with the Documentation; or failure to maintain the necessary environmental conditions for use of the Software; or your failure to install Modifications of the Software if the faults do not arise in the Modifications; or any breach of the Licensee s obligations under this agreement or the Software Licence. 3. LICENCE 3.1 Subject to the prohibitions set out in Clause 3.2 Lesson Learner hereby grants you from the date of supply of any relevant Modification a non-exclusive, worldwide royalty free licence to use the Modifications, if any, as an integral part of the Software including the rights to install and back-up the Modifications. 3.2 Except to the extent mandated by applicable law or expressly permitted in this Agreement the licence granted under the foregoing clause shall be subject to the same prohibitions and restrictions as are contained in the Licence. 4. WARRANTIES 4.1 Lesson Learner warrants that the Services provided under this Agreement will be provided with reasonable skill and care and by means of appropriately qualified and skilled personnel. 4.2 If the warranty in Clause 4.2 hereof is being breached you must tell Lesson Learner as soon as possible. Before you are allowed to do anything else about it, you must give Lesson Learner a reasonable time to fix the problem and (if necessary) provide you with a corrected version of the Software or re-perform any relevant services. If Lesson Learner is unable to do this within a reasonable time or does not think that it is a sensible way to deal with the problem then it may decide to terminate the Agreement and refund you the Charges actually paid by you in relation to the support year in respect of which the Agreement has been terminated. 4.3 Apart from the terms set out above no conditions, warranties or other terms apply to the Services, any corrected or updated versions of the Software or to anything else supplied under this Agreement. In particular no implied terms relating to satisfactory quality or fitness for any particular purpose shall apply to anything supplied under this Agreement. For the avoidance of doubt it is also not a term of this Agreement that use of the Software will be uninterrupted or error-free or that provision of the services will ensure this is the case. 5. EXCLUSIONS AND LIMITATIONS 5.1 In no circumstances shall Lesson Learner be liable to you whether in contract, delict or tort (including negligence), breach of statutory duty, warranty or otherwise for any indirect, incidental, consequential damages or special damages or losses including loss of profits, sales

5 or revenue, or loss of goodwill, reputation, business or business benefit or loss of anticipated savings or loss or corruption of data or information. The Licensor will not be liable for the cost of procurement or provision of substitute products by the Licensee even if advised of the possibility of such damages. 5.2 Nothing in this Licence shall limit or exclude Lesson Learner s liability for: death or personal injury resulting from the Licensor s negligence; fraud or fraudulent misrepresentation; or any other liability that cannot be excluded by Scots law. 5.3 Subject to Clauses 5.1.and 5.2 Lesson Learner s total liability under this Agreement is limited to an amount equal to the total amount payable by you for the Services during the most recent support year in relation to which the Services have been provided. 6. CONFIDENTIALITY AND DATA PROTECTION 6.1 Lesson Learner will keep confidential any information which you supply to them in connection with this Agreement or any support provided under the Licence and you must do the same in relation to any information supplied by Lesson Learner to you (which will include any corrected or updated versions of the Software). This will not apply to information which: is available to the public other than by any breach of this Agreement or the Licence; is, when it is supplied, already known to whoever it is disclosed to in the circumstances in which they are not prevented from disclosing it to others; it is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; it is trivial or obvious; or it is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure. 6.2 In the course of Lesson Learner providing Services under this Agreement it may necessary from time to time for it to have access to personal data belonging to or retained by you and for Lesson Learner to process that personal data on your behalf. In relation to any transfer or processing of that personal data: it is the intention of the parties that you are the data controller as defined in the Data Protection Act 1998 ( the DPA ) and that Lesson Learner will be the data processor you will: ensure that you are fully and lawfully entitled to transfer the relevant

6 personal data to Lesson Learner so as to allow Lesson Learner to lawfully process the personal data in accordance with this Agreement on your behalf; subject to Lesson Learner complying with its obligations under this Agreement, be responsible for ensuring that the processing of the personal data complies with the DPA. This includes taking all steps necessary so as to ensure that the transfer to Lesson Learner of the personal data and the processing of the personal data by Lesson Learner in accordance with this Agreement complies with the DPA; Lesson Learner will process the personal data only in accordance with the terms of this Agreement and any in accordance with any instructions given by you from time to time Both parties will take appropriate technical and organizational measures against unauthorized or unlawful processing of personal data and accidental loss or destruction of, or damage to, the personal data. 7. TERMINATION 7.1 If either party breaches this Agreement in any material respect, the other party may give written notice to the breaching party of its intent to terminate, and if such breach is not cured within thirty (30) days after the breaching party's receipt of such notice, this Agreement shall terminate immediately without any further notice required (but no cure period is required for any breach that cannot be cured). 7.2 Either party may terminate this Agreement immediately if the Licence is terminated. 7.3 Termination of this Agreement will not affect any accrued rights or liabilities which either Lesson Learner or you may at the time termination takes effect. 8. GENERAL 8.1 All notices and consents relating to this Agreement must be in writing. All variations to this Agreement must also be set out in writing and agreed and signed by both parties before they can take effect. 8.2 This Agreement and the relevant Customer Order Form set out all the terms that have been agreed between Lesson Learner and you and no other terms or representations shall form part of this Agreement. 8.3 This Agreement is governed by the Law of Scotland and both parties submit to the exclusive jurisdiction of the Scottish courts in relation to any dispute concerning the same.

7 SCHEDULE This schedule provides a definition of the support requests for which Lesson Learner will provide assistance. Basis of Understanding of the Support Scope The primary purpose of the Lesson Learner Support Service is to provide assistance and advice to suitably trained people who experience a difficulty when using the Software. The support desk is staffed by skilled and fully trained support technicians. Support technicians are generally not experienced in providing class-based training or in providing consultancy services, therefore the support service is not intended to be a substitute for training, or to equip novices with the skills or knowledge they need to use the Software. The Support Scope is restricted to requests fulfilling the following conditions: The Software and Modifications and updates to the Software released by Lesson Learner within 5 years of the original release date of the first version of the Software; Software running in an environment that meets the minimum operating requirements set out in the Documentation; Requests from Licensee personnel who are agreed by Lesson Learner as Named Contacts for support; Organisations that have a current Agreement with Lesson Learner for the supply of support services and that have paid the relevant Charges; and Support pertaining to any of the following topics: 1. any failure of the Software to operate in accordance with the Documentation; 2. any error messages given by the Software or its installation routine; 3. information relating to the behaviour of the Software under conditions that are not explicitly described in the Documentation, or explanation of such descriptions if the support recipient is having difficulty understanding the Documentation; 4. use of any feature provided by the Software; 5. advice and guidance on varying the Permitted Users; 6. explanation or clarification of minimum requirements; 7. achieving optimal performance of the Software insofar as this can be enabled by features of the Software or its configuration; and 8. advice on planned changes to Server Software (including re-hosting and upgrading).

8 Scope Exclusion Everything not explicitly stated in the list of included items given above is excluded from the Support Scope. To aid understanding, some of the excluded items are listed below: Software released more than 5 years ago; Software that is running in an environment that does not meet the minimum requirements; New Versions or Releases of the Software Support requests from people who are not Named Contacts; Failures in the Software when a customer has attempted to independently install, upgrade or change the configuration of the Software. Because of the inherent complexity, we strongly recommend against subsequent changes to the Software of any form by anyone other than a member of the Lesson Learner Installation team and support is not available to anyone who attempts to modify the Software independently; and All queries relating to: 1. hardware (apart from those relating to advice on the minimum requirements); 2. System Software including all browsers, Microsoft Internet Information Services, Microsoft Report Viewer, and Microsoft SQLServer 3. non-lesson Learner software; 4. customisations of the Software that have not been approved by Lesson Learner; 5. how to customise the Software; and 6. achieving optimal performance of the Software by means not explicitly included in the Support Scope.