Terms and Conditions

Introduction

This document sets out the only terms and conditions on which Kallidus Limited (“Kallidus”) offers to contract with customers. By either agreeing to the terms via the Kallidus website or by submitting a signed Order Form to Kallidus, Kallidus’s customer indicates acceptance of the terms set out in this document in a contract with Kallidus and the individual who does so on behalf of the customer confirms their authority to enter into legally binding contracts for the company or other legal entity that they represent. Unless otherwise agreed in writing, Kallidus will not enter into contracts with customers except on the terms and conditions set out in this document. Any other terms and conditions proffered, for example in any purchase order or other document, are expressly rejected.

The attention of the customer is drawn in particular to the provisions of clause 11 which limit Kallidus’s liability and exclude certain types of liability. Please note that if the customer is signing up to a free trial of any Kallidus product(s) then, notwithstanding any other provision to the contrary, the product(s) are provided on an “as-is” basis and without any warranty whatsoever. During the free trial period the product(s) are used at the customer’s own risk.

1. Definitions

“Business Day”

means any day which is not a Saturday, Sunday or public holiday in the UK. "these Terms" means these terms and the terms of the Order Form;

“Content”

means any online courses provided to the Customer as part of the Contract, as detailed in the Order Form;

“Contract”

means the agreement between the Customer and Kallidus for the provision of the Service and any Professional Services;

“Customer”

means Kallidus’s customer under the Contract as identified on the Order Form, on Kallidus’s website or elsewhere;

“Disaster”

means any unplanned event which prevents or impairs the ability of Kallidus to perform the Services;

“Kallidus Technology”

means all of Kallidus’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to the Customer by Kallidus in providing the Service;

“Effective Date”

means the earlier of the date of the Order Form and the date when the Customer accesses any Service via the Kallidus website (including, for the avoidance of doubt, for the purposes of a free trial);

“Group”

means, in relation to the Customer, any holding company of the Customer, any subsidiary of the Customer and any other subsidiary of such holding company and “Group Company” shall be construed accordingly;

“Initial Term”

means the initial period during which the Customer is obliged to pay for the Service as set out in the Order Form;

“Intellectual Property Rights”

means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, database rights, and rights in undisclosed or confidential information such as know-how and other trade secret rights, and all other intellectual property rights or similar proprietary rights of whatever nature (whether registered or not and including applications to register or rights to apply for registration), derivatives, and forms of protection of a similar nature which may now or in the future subsist anywhere in the world;

“Normal Business Hours”

means 8.30am to 5.30pm local UK time, each Business Day;

“Order Form”

means an order form in the form used by Kallidus for the time being, which has been completed by the Customer and accepted by Kallidus;

“Professional Services”

means any service other than the Service that Kallidus agrees in the Order Form to provide to the Customer, including configuration, training and data transfer services;

“Service(s)”

means the specific edition of Kallidus’s internet hosted learning management, performance management, talent management and e-learning content tool services identified in the Order Form, and as developed, operated, and maintained by Kallidus pursuant to the terms of the Contract, to which the Users are being granted access under the Contract including all Kallidus Technology and Content.

“Service Description”

means the document issued by Kallidus to the Customer in which the specification of the Service(s) and all relevant service levels is set out, as Kallidus may reasonably amend it from time to time;

“User(s)”

means the employees, representatives, consultants, contractors or agents of the Customer (and those of any Group Company) who are authorised by the Customer to use the Service and have been supplied usernames and passwords by the Customer or by Kallidus;

“User Data”

means any data which is held by Kallidus as part of the Service about the User(s) which may include data relating to the performance, talent or training records and/or courses or course information;

“Virus”

means any software code or file which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

2. Provision of the Service

Kallidus agrees to provide the Service to the Customer on these Terms for use by the number of Users for whom the Customer has paid Kallidus service fees in accordance with these Terms. The Customer may only use the Service for its own internal purposes and not to provide any service to any third party.

Kallidus grants to the Customer and the Users a non-exclusive, non-transferable (except as permitted in clause 15 below) licence to use the Kallidus Technology but strictly limited to the extent necessary to use the Service on these Terms.

Kallidus shall use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for:

• planned maintenance carried out during the maintenance window of 6.00 pm Friday to 6.00 am Monday UK time; and
• unscheduled maintenance performed outside Normal Business Hours, provided that Kallidus has used reasonable endeavours to give the Customer at least 4 Normal Business Hours’ notice in advance.

Kallidus will, as part of the Service and at no additional cost to the Customer, provide the Customer with the Kallidus’s standard customer support services during Normal Business Hours as set out in the Service Description or as may be notified to the Customer from time to time. The Customer may purchase enhanced support services separately at Kallidus’s then current rates.

Kallidus agrees to provide any Professional Services to the Customer on these Terms. The Customer agrees to use the number of Professional Services days specified in the Order Form within the six month period starting on the Effective Date. The Customer shall forfeit any Professional Services days or time not used within the six-month period and no credit or refund will be given for these unused days or time. The Customer acknowledges that reasonable travel charges and expenses will be billed in addition to the charges contracted for Professional Services.

Kallidus reserves the right to suspend access to the Service to any User(s) if it becomes aware of any unauthorised use or any misuse or abuse of the Service.

Kallidus agrees that the Customer may brand the Service, provided that the Customer shall indemnify Kallidus against any claim that its branding of the Service infringes in any respect the Intellectual Property Rights of any third party.

3. The Customer’s Responsibilities

The Customer is responsible for all activity occurring under its User accounts (including for the avoidance of doubt any unlawful use and any unauthorised use by persons who are not Users) and shall abide by all applicable law and regulations that are applicable to the Customer in using the Service, including those related to data privacy and the transmission of personal data.

The Customer shall ensure that each username and password combination ("Login") is only used by one person. The Customer may create separate Logins for as many Users as its account allows. Each Login may only be used by one person. The Customer is responsible for maintaining the security of Logins to its account.

The Customer shall: (i) notify Kallidus promptly upon becoming aware of any unauthorised use of any password or account or any other known or suspected breach of security; (ii) report to Kallidus promptly upon becoming aware of any infringement of Kallidus’s Intellectual Property Rights and use reasonable efforts to stop immediately any such infringement or copying or distribution of Content that is known or suspected by the Customer or its Users; and (iii) not impersonate another Kallidus user or provide false identity information to gain access to or use the Service.

The Customer shall not in the course of its use of the Service access, store, distribute or transmit any Viruses or any material during the course of its use of the Service that:

• is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
• facilitates illegal activity;
• depicts sexually explicit images;
• promotes unlawful violence;
• is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
• causes damage or injury to any person or property;

and Kallidus reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

The Customer shall not:

except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;

• and except to the extent expressly permitted under these Terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
• attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
• access all or any part of the Service in order to build a product or service which competes with the Service; or
• use the Service to provide services to third parties; or
• license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party except the Authorised Users, or
• attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under this clause.

4. Intellectual Property Ownership

Kallidus (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Kallidus Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations provided by the Customer or any third party acting on behalf of or providing advice to the Customer or otherwise acting in the performance of an agreement with the Customer (in this clause “Third Parties”) relating to the Service. The Customer assigns to Kallidus, and shall if necessary procure that all Third Parties shall assign to Kallidus, by way of present and future assignment, all Intellectual Property Rights in all such suggestions, ideas, enhancement requests, feedback and recommendations. The Contract is not a sale and does not convey to the Customer any rights of ownership in or related to the Service, the Kallidus Technology or the Intellectual Property Rights owned by Kallidus or (where applicable) its licensors. The Kallidus name, the Kallidus logo, and the product names associated with the Service are trademarks of Kallidus or third parties, and no right or license is granted to use them.

Unless and to the extent otherwise expressly agreed in writing between the parties, the parties agree that all Intellectual Property Rights that were owned by or licensed to either party, prior to the Effective Date (in this clause “Background IPR”), remain unaffected by it and, as such, nothing in relation to the Contract shall operate as a transfer of the ownership of any Background IPR.

5. Charges and Payment of Fees

Kallidus shall invoice the Customer in advance for the Service in accordance with the Order Form. The Customer shall pay Kallidus the fees for the Service specified in the Order Form within 30 days of receipt of Kallidus’s invoice. Fees for the Service subsequent periods are due and payable at the beginning of each period. Subject to the provisions of clause 6 below, all fees for the Service paid in advance are non refundable. The fees for any Professional Services shall be specified in the Order Form and shall be payable in accordance with the Order Form, together with reasonable travel and other out of pocket expenses. All prices and fees are in the currency specified in the Order Form. All amounts payable under the Contract are exclusive of value-added tax.

6. Non-Payment and Suspension

Without prejudice to any other available remedy, Kallidus reserves the right to suspend or terminate the Contract and/or the Customer’s access to the Service if the Customer fails to pay any undisputed invoices in accordance with clause 5 above.

Late payments shall automatically accrue interest from the due date until payment in full is received by Kallidus at the rate for the time being in force under the Late Payment of Commercial Debts (Interest) Act 1998. No fees or other charges will be refunded or waived in respect of any period of suspension. Where interest accrues on any sum due in accordance with this clause, any payment later received will be applied first in payment of the interest due, and only secondly in reduction of the indebtedness.

Kallidus reserves the right to impose a reasonable reconnection fee in the event the Customer is suspended and thereafter requests access to the Service.

7. Term & Termination

The Contract starts on the Effective Date and (subject to earlier termination in accordance with these Terms) shall continue until terminated by either party giving 30 days’ written notice to the other party to expire on or after the end of the Initial Term.

Either party shall be entitled to terminate the Contract immediately by written notice to the other if the other party:

• fails to pay an undisputed sum to the other;
• commits any material breach of the Contract that is not capable of remedy (including, in the case of the Customer and without limitation, any breach of confidentiality or any infringement of Kallidus’s Intellectual Property Rights);
• commits any material breach of the Contract that is capable of remedy and fails to remedy it within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
• is involved in any legal proceedings concerning its solvency, or ceases trading, or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary (other than for the purposes of an amalgamation or reconstruction), or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or any analogous event occurs in any relevant jurisdiction.

On termination of the Contract for any reason, all fees and other sums that are payable under the Contract shall become due for payment immediately. Kallidus shall return immediately to the Customer, in the format reasonably requested by the Customer ((provided that the Customer shall pay in advance a reasonable charge for conversion of any data to the format requested), any and all property and data (and all copies) including all User Data which is in Kallidus’s possession or under its control and which belongs to the Customer (and/or to any Group Company) and certify to the Customer in writing that it has done so.

Any termination of the Contract will not affect any accrued claims, rights or liabilities of either party nor will it affect the coming into force or continuation in force of any other provisions of the Contract, which are expressly or by implication intended to come into force or continue in force on or after termination, including clauses 4 (Intellectual Property Ownership), 9 (Indemnities), 10 (Confidentiality and Data Protection) and 11 (Limitations of Liability).

8. Warranties

Each party warrants that it has the legal power and authority to enter into the Contract.

Kallidus warrants (subject to the next following paragraph) that:

• it has the right to grant to the Customer the rights granted under the Contract;
• it will provide any Professional Service with reasonable skill and care and to the standard which would reasonably and ordinarily be expected from a skilled and experienced service provider engaged in the same type of undertaking under the same or similar circumstances; and
• the Service will perform substantially in accordance with the Service Description, and Kallidus will comply with any service levels set out in the Service Description.

The warranty given in the immediately preceding paragraph shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to Kallidus's instructions, or modification or alteration of the Service by any party other than Kallidus or Kallidus's duly authorised contractors or agents. If the Service does not conform with such warranty, Kallidus will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer's sole and exclusive remedy for any breach such warranty. Notwithstanding the foregoing, the Kallidus:

• does not warrant that the Customer's use of the Service will be uninterrupted or error-free; nor that the Service and/or the information obtained by the Customer through the Service will meet the Customer's requirements; and
• is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

The Customer warrants that it intends to use the Service for its own internal purposes (and not to provide services to any third party) and that it has not falsely identified itself nor provided any false information to gain access to the Service and that its billing information is correct.

Except as set out expressly in these Terms, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.

9. Indemnities

Kallidus will indemnify the Customer against any and all liability incurred by the Customer as a result of any claim that the Service, as provided by Kallidus to Customer under the Contract and used within the scope of the Contract, infringes any third party Intellectual Property Rights.

Kallidus’s obligations under this indemnity are subject to the following conditions: i)The Customer must notify Kallidus in writing promptly after it becomes aware of a claim; and ii) The Customer must grant Kallidus the sole control of the settlement, compromise, negotiation, and defence of any such claim and any related legal action; and; iii) The Customer must promptly provide Kallidus with all information related to the claim and any related legal action that is reasonably requested by Kallidus; and iv) Kallidus will at its option either, (a) obtain the right for Customer to continue using the Service; or (b) modify the Service so it is no longer infringing, or (c) terminate the Contract. If Kallidus terminates the Contract, Kallidus shall refund on a pro-rata basis any fees for the Service that have been paid in advance.

Kallidus shall not be liable for any settlement made by Customer without Kallidus’s advance written approval or for any award from any legal action in which Kallidus was not granted sole control of the defence in accordance with this clause.

The parties agree to cooperate in good faith in the defence of any legal action or suit that causes the Customer to invoke an indemnity hereunder.

This clause states Kallidus’s entire liability and the Customer’s exclusive remedy for infringement of intellectual property rights of any kind.

The Customer shall indemnify Kallidus against any and all liability incurred by Kallidus as a result of any claim that any content or material that the Customer or any User uploads to or uses in relation to the Service, or any unauthorised or unlawful use that the Customer or any User makes of the Service, infringes any proprietary right of any third party or is offensive or unlawful in any respect in any jurisdiction in which the Service may be used by the Customer or by any User.

10. Confidentiality and Data Protection

Confidentiality

During the term of the Contract, each party may have access to confidential information of the other party. “Confidential Information” of the Customer shall include but not be limited to employee data of the Customer (including the User Data). “Confidential Information” of Kallidus shall include confidential aspects of the Service and the Kallidus Technology. “Confidential Information” of each party shall include all other data relating to its business, research and development information, formulae, methods, know-how, processes, designs, performance tests, product evaluations, computer software and any other information identified as confidential or information that the receiving party knew or reasonably should have known was confidential.

Confidential Information shall be used solely for each party’s performance under the Contract and the exercise of its rights under the Contract and shall not be disclosed to any third party. Each party shall take reasonable precautions, at least as great as the precautions it takes to protect its own confidential information, to maintain the Confidential Information of the other party in strict confidence.

Confidential Information shall not include any information that the receiving party can establish: (i) is or subsequently becomes publicly available through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to disclosure of such information; (iii) is subsequently disclosed to receiving party by a third party who is not in breach of an obligation of confidentiality; or (iv) is independently developed by the receiving party without the use or benefit of the Confidential Information. Confidential Information may be disclosed pursuant to any applicable laws, rules, regulatory authority, court order, a valid subpoena, other legal process and to the extent that legal advisers for the receiving party determines in their reasonable discretion that the disclosure of such Confidential Information is reasonably and lawfully required, provided in each case that, where it is not prohibited from doing so, the receiving party promptly notifies the disclosing party in writing of such disclosure and provides the disclosing party an opportunity to seek an appropriate protective order prior to disclosing such Confidential Information.

The disclosing party may be irreparably damaged if the obligations of confidence under this clause 10 are breached and such party may not have an adequate remedy in damages in the event of a breach by the other party of such obligations. The parties agree, therefore, that such party may be entitled, in addition to other available remedies, to an injunction restraining any actual, threatened or further breaches of the other party's obligations of confidence or any other appropriate equitable order or decree.

Data Protection

The Customer shall own all rights, title and interest in and to all of the User Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the User Data.

Kallidus shall follow its standard back up procedures for User Data as set out in the Service Description or as may be notified to the Customer from time to time. In the event of any loss or damage to User Data, the Customer's sole and exclusive remedy shall be for Kallidus to use reasonable commercial endeavours to restore the lost or damaged User Data from the latest back-up of such User Data maintained by Kallidus in accordance with the back up procedure described in the Service Description. Kallidus shall not be responsible for any loss, destruction, alteration or disclosure of User Data caused by any third party (except those third parties sub-contracted by Kallidus to perform services related to User Data maintenance and back-up).

Kallidus shall, in providing the Services, comply with its standard Privacy and Security Policy relating to the privacy and security of the User Data as set out in the Service Description or as may be notified to the Customer from time to time.

If Kallidus processes any personal data comprised in the User Data on the Customer’s behalf when performing its obligations under the Contract, the parties record their intention that the Customer shall be the data controller and Kallidus shall be a data processor and in any such case:

• the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Users are located in order to carry out the Services and Kallidus’s other obligations under the Contract;
• the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Kallidus so that Kallidus may lawfully use, process and transfer the personal data in accordance with these Terms on the Customer's behalf;
• the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
• Kallidus shall process the personal data only in accordance with these Terms and any lawful instructions reasonably given by the Customer from time to time; and
• each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

11. Limitations Of Liability

To the extent permitted by English law, except with respect to Kallidus’s obligations under clause 9 above, notwithstanding the form (whether contract, tort (including negligence) statutory duty or otherwise) in which any legal or equitable action may be brought against Kallidus, Kallidus shall not be liable under the contract for damages which exceed, in the aggregate, the greater of £25,000 and the aggregate fees paid by the Customer for the specific services which gave rise to such damages in the twelve (12) month period immediately preceding the event.

To the extent permitted by English law, in no event shall either party be liable for any loss of profits, business or anticipated savings whether direct or indirect or for any special, incidental, indirect, exemplary, punitive loss or damages, or for any indirect or consequential loss or damages, even if a party has been notified of the possibility of such damage and whether arising from tort (including negligence), breach of contract, statutory duty or otherwise.

Nothing in the contract shall limit either party’s liability for death or personal injury caused by a party’s negligence or liability for fraud.

The provisions of the Contract allocate the risks between the Customer and Kallidus. Kallidus’s pricing reflects this allocation of risk and the limitations of liability set out in this clause. Any material downloaded or otherwise obtained by the Customer or any User through the use of the Service is at Customer’s own discretion and risk, and Kallidus shall have no responsibility for any damage to Customer’s computer system or loss of data or any claim from a User or a third party that results from the download of any such material.

12. Internet Delays and Force Majeure

The Services may be subject to limitations and/or delays, inherent in the use of the internet and electronic communications. Except to the extent that Kallidus is in breach of obligations under the Contract (including any relevant service level set out in the Service Description, Kallidus is not responsible to the Customer or any User for any delays, delivery failures, resulting from such problems.

Neither party shall be liable for any delay or default in performing any of its obligations (not being an obligation to pay money to the other party) if the delay or default results from events or circumstances outside its reasonable control, including interruption or failure of utility services including but not limited to electricity or telephone services, failure of any transportation service, fuel shortage, any industrial dispute, fire, flood, earthquake, severe weather conditions, war or other hostilities, acts of terrorism, actions of governments or governmental agencies, riots or other civil commotions. The party affected shall use all reasonable endeavours to remove or overcome the cause of such force majeure as soon as practicable. Such delay or default shall not constitute a breach of the Contract and the time for performance shall be extended by a period equivalent to that during which performance is so prevented.

13. Assignment

The Contract is personal to the parties, neither of whom may assign or sub-contract any of its rights or obligations under the Contract without the prior written consent of the other, provided that either party may assign its rights and obligations under the Contract to a purchaser of all or a substantial part of its business and undertaking without the consent of the other party.

14. Dispute Resolution

If any dispute arises out of the Contract the parties will attempt in good faith to negotiate a settlement. If the matter is not resolved by negotiation, the parties will refer it to mediation in accordance with the Centre for Effective Dispute Resolution ("CEDR") Model Mediation Procedure. (See www.cedr.co.uk). Unless the parties agree on the choice of mediator within 7 days of one party nominating a proposed mediator in writing to the other, the mediator shall be appointed by CEDR at the request of either party. If the parties fail to agree terms of settlement within 42 days of the start of the first meeting held under such procedure, the dispute may be referred to litigation by either party.

Nothing in this clause shall prevent or delay either party from seeking injunctive relief in any court in respect of any infringement of intellectual property or from issuing proceedings to recover any undisputed debt or from joining the other party to any proceedings issued against the first party by a third party.

15. Miscellaneous

The parties are independent contractors and nothing in the Contract shall be deemed to make either party an agent, employee, partner or joint venturer of the other party. Neither party shall have the authority to bind, commit, or otherwise obligate the other party in any manner whatsoever. Kallidus may use the Customer’s plain text name to list the organisation as a customer of Kallidus.

During the term of the Contract and for six months thereafter, both parties agree not without the other party’s prior written consent to solicit or to offer employment to any employees of the other party with whom they have had dealings in relation to the Contract. If a party breaches this restriction, it agrees to pay to the other party on demand as liquidated damages a sum equal to 30% of that person’s starting annual gross salary or other contractual payment with the party in breach and agrees that this amount shall be recoverable as a debt.

Any notice given under the Contract shall be in writing and shall be delivered by hand (in which case delivery is effective immediately), by Royal Mail special delivery (if posted in the United Kingdom) or by airmail (if posted outside the United Kingdom). In the case of Royal Mail special delivery, delivery shall be deemed to take place on delivery or on receipt by the sender of a notice that the addressee has "gone away" or refused to take delivery or any notice having similar effect. In the case of airmail, delivery shall be deemed to take place seven days after posting. Notices shall be delivered or posted to the addresses of the parties given above or to any other address notified in substitution on or after the Effective Date.

These Terms, the Order Form(s) and the Service Description constitute the entire agreement between the parties regarding the subject matter of the Contract and supersede all proposals and prior discussions and writings between the parties with respect thereto. Each party confirms that it has not relied on any pre-contractual statement made by the other in deciding to enter into the Contract.

A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of the Contract.

The Contract and shall be governed by the laws of England and the parties submit irrevocably to the non-exclusive jurisdiction of the English courts.