THIS AGREEMENT IS ENTERED INTO BETWEEN YOU AND LOBSTER (AS DEFINED BELOW) AND GOVERNS YOUR USE OF LOBSTER’S SERVICES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE MAY MODIFY THIS AGREEMENT WITH PROSPECTIVE EFFECT WITHOUT PRIOR NOTICE TO YOU, AND ANY REVISION THERETO WILL TAKE EFFECT WHEN POSTED ON THE PLATFORM, UNLESS A LATER DATE IS OTHERWISE STATED IN THE REVISED AGREEMENT. YOUR CONTINUED USE OF THE PLATFORM AND/OR SERVICES WILL BE CONSTRUED AS YOUR CONSENT TO THE AMENDED / UPDATED AGREEMENT AND WILL BE CONDITIONAL UPON THE AGREEMENT IN FORCE AT THE TIME OF YOUR USE. PLEASE CHECK THE PLATFORM OFTEN FOR UPDATES TO THE TERMS AND OTHER DOCUMENTS WHICH MAY HAVE A BEARING ON YOUR USE OF THE PLATFORM.
This agreement was last updated in June 2017 and is effective between you and Lobster (as defined below) as of the date of you accepting this agreement.
Table of Contents
- Term and Termination
- Lobster’s Obligations and Responsibilities
- Your Obligations and Responsibilities
- Fees and Payment for Services
- Intellectual Property Rights
- Use of Personal Information
- Representations and Warranties
- Limitation of Liability
- Governing Law and Jurisdiction
- General Provisions
1.1 “Affiliate(s)” of a Party means an entity that controls, is controlled by or is under common control with such Party. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” or “under common control with”), as used with respect to any entity, means the possession, directly or indirectly, of the power to direct or exercise an influence over the management or policies of such entity through more than 50% direct or indirect ownership of voting securities or comparable equity interests of the controlled entity. For the purposes of this agreement Southern Africa Skills Development Institute (Pty) Ltd, Lobster Technologies B.V. and Lobster Ink U.S., Inc. will be deemed Affiliates of Lobster International;
1.2 “Agreement” means this document, including the Subscription Form and Documentation;
1.3 “Content” means all of the content and Courses hosted on the Platform, including but not limited to still images, text, assessment content, video, the Training Media and still images thereof, graphic designs, audio recordings, multimedia programmes and computer programmes and/or software;
1.4 “Copyright” means the copyright in and to the Platform, the Content, the Courses and the copyright in the manuals;
1.5 “Course(s)” means the training courses present on the Online Training Platform and/or the Lobster Ink Library, as the case may be;
1.6 “Documentation” means the Subscription Form and any other annexure, addenda or schedules to this Agreement;
1.7 “ECB Rate for Late Payments in Commercial Transactions” means the late payment interest rate as determined by the European Central Bank;
1.8 “Intellectual Property” means all and any Intellectual Property Rights in and to the Online Training Platform, the Content, the software and systems relating to the Platform, the online assessments, the manuals, the Training Media, and the Copyright and includes patents, rights to inventions, copyright and related rights, all other rights of copyright, trademarks, trade names and domain names, business names, logos, service marks, moral rights, know-how, business methods and trade secrets, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, database rights and any other intellectual property rights, (including but not limited to moral rights), in each case whether registered or unregistered and including all applications (and right to apply) for, and renewals, extensions or revivals of, such and all similar or equivalent rights to forms of protection which subsist or will subsist now or in the future and in any part of the world (and “Intellectual Property Rights” means any ownership, license or associated rights relating to Intellectual Property);
1.9 “Legal Notice(s)” means any notice which serves the purpose of commencing any legal action, motion, claim or dispute;
1.10 “Lobster” means Lobster International S.A;
1.11 “Lobster Ink Library” means the list of Courses made available to You on the Subscription Form from which You can choose to subscribe to;
1.12 “Representative” means all employees, consultants, agents and subcontractors with which a party engages with in relation to the rendering, or usage, of the Services, as the case may be;
1.13 “Services” means the services supplied by Lobster to You, being the provision of Courses and the online assessment with the agreed support services, and includes the non-exclusive license to make use of these Services for the duration of this Agreement and in accordance with its conditions;
1.14 “Subscription Form” means the form that appears on the Online Training Platform when You subscribe to Lobster’s Services and on which your details (registered name of individual, country of registration, billing address, credit card payment information etc.) are recorded when You sign up for the Services rendered under this agreement;
1.15 “Training Media” means the training media video recordings which are hosted on the Platform containing the Courses, and to which You, and your identified and approved Users (if applicable), will have access in terms of this Agreement;
1.16 “Users” means You or Your employees who will receive training via the Services provided to You in terms of this Agreement;
1.17 “Online Training Platform” or “Platform” means Lobster’s online training platform which can be found on the internet using the domain name www.lobsterink.com;
1.18 “You” or “Your” means you, personally;
1.19 “Your Data” means data that You or Your Users submitted to the Platform.
2. TERM AND TERMINATION
2.1 Term of this Agreement. This Agreement commences on the date you first accept it and continues until all subscriptions hereunder have expired or have been terminated.
2.2 Term, renewal and termination of Subscription. The term of each subscription (“Subscription”) shall be as specified in the applicable Subscription Form. Except as otherwise specified in the Subscription Form, subscriptions will endure, renew and be terminated as set out below:
2.2.1 Monthly Subscriptions:
188.8.131.52 Shall be pre-paid and endure for a period of 1 (one) month from date of our receipt of Your payment;
184.108.40.206 Shall renew automatically at the end of each 1 (one) month period, subject to our receipt of Your payment, for a further 1 (one) month period, until terminated by You; and
220.127.116.11 May be terminated by You at any point, such termination to take effect at the end of the current 1 (one) month period.
2.2.2 Annual Subscriptions:
18.104.22.168 Shall be pre-paid and endure for a period of 12 (twelve) months from date of our receipt of Your payment;
22.214.171.124 Shall renew thereafter for a further 12 (twelve) month period subject to Your consent and our receipt of Your payment;
126.96.36.199 Should we not receive Your consent to such annual renewal, Your annual subscription shall automatically become a monthly subscription and shall endure, renew and be terminated as set out 2.2.1. above; and
188.8.131.52 May be terminated by You at any point, such termination to take effect at the end of the current 12 (twelve) month period.
Notwithstanding anything to the contrary, any renewal in which subscription volume of any amount of Courses has decreased from the prior term could result in re-pricing of such Courses / Services at renewal without regard to the prior term’s price.
2.3 Termination for breach. Either Party may terminate this agreement with immediate effect in the event that the other party:
a) commits any material breach of any of the provisions of this Agreement and fails to remedy such breach within 30 (thirty) days after receiving a written notice from the aggrieved party containing full particulars of the material breach and requiring it to be remedied;
b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Lobster may terminate this Agreement immediately where You fail or have failed to make payment of any sum due and payable under this Agreement. You agree that monthly and annual Subscriptions are each subject to pre-payment as set out in 2.2.1 above.
2.4 Refunds or Payment upon Termination. If You terminate this Agreement in accordance with clause 2.2 or 2.3, you will forfeit the Fees paid to Lobster for the remainder of Your current Subscription term, being either 1 (one) month or 12 (twelve) months, as set out above. Lobster does not provide refunds for Subscriptions.
2.5 Accrued Rights. Termination of this Agreement, for any reason, shall not affect the accrued rights of the Parties arising in any way out of this Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other and all provisions which are expressed to survive this Agreement shall remain in force and effect.
3. LOBSTER’S OBLIGATIONS AND RESPONSIBILITIES
3.1 Lobster will provide You with Courses from Lobster’s Lobster Ink Course Library, and customized Course Content (if applicable), through its Online Training Platform in accordance with the terms of this Agreement, the Subscription Form and the Documentation.
3.2 Lobster will be responsible for the performance of its personnel (including Lobster’s employees and contractors) and their compliance with Lobster’s obligations under this Agreement, except as otherwise specified herein.
4. YOUR OBLIGATIONS AND RESPONSIBILITIES
4.1 You have the right to access and use the Platform and applicable Content subject to the terms of the applicable Subscription Form, this Agreement and the Documentation. You will be entitled to use the Online Training Platform only for your personal use and for no other purpose whatsoever. You will not permit any other person to use the Online Training Platform, nor to access your account by using your login credentials. Lobster reserves the right under clause 7.1 to use your personal information to make a determination regarding compliance with this clause, and upon a determination by Lobster of a violation, may terminate this Agreement under clause 2.3. Accordingly, you will not, and will insure that others on your behalf do not, without limitation, edit, alter, copy, reproduce, transmit, perform, create derivative works of, grant any rights in respect of, publish or disseminate the Courses or Platform or any portion thereof in any way whatsoever.
4.2 You will be responsible: (a) for Your compliance with this Agreement and Your conduct while accessing the Online Training Platform and will be liable for any damages, loss or claims howsoever arising from or relating to the use or misuse of, or access to, the Online Training Platform or breach of this Agreement by the You (including any conduct by users other than You, whom You have allowed to access the Online Training Platform, even though such access is not permitted under the Agreement); (b) to ensure that Your account may not be shared with any other individual; (c) to use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Content, and notify LI promptly of any such unauthorised access or use.
5. FEES AND PAYMENT FOR SERVICES
5.1 Fees. You will pay the Fees specified in the Subscription Form in accordance with the package of Services You subscribed to. Except as otherwise specified herein or in the Subscription Form, (a) the Fees are based on Subscriptions purchased and not actual usage, (b) payment obligations cannot be cancelled and fees paid are non-refundable, and (c) the package or number of Courses subscribed to cannot be downgraded or reduced during the relevant Subscription term.
5.2 Invoicing and Payment. You will provide Lobster with valid and updated credit card information. If You provide Lobster with credit card information, You authorize Lobster to charge such credit card for all subscribed Services listed on the Subscription Form for the initial Subscription term and any renewal Subscription term(s) as applicable. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Subscription Form.
5.3 Overdue Charges. If any invoiced amount is not received by Lobster by the due date, then without limiting Lobster’s other remedies in law, those charges may accrue at the ECB Rate for Late Payments in Commercial Transactions on the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
5.4 Suspension of Services and Acceleration. If any amount owing by You under this or any other agreement with Lobster for Lobster’s Services is overdue, or your credit card payment for any renewal or other Subscription charges is not approved or is disputed by You, Lobster may, without limiting its other rights and remedies, immediately suspend Lobster’s Services to you until such amounts are paid in full.
5.5 Payment disputes. Lobster may not exercise its rights in clauses 5.3 and 5.4 above if You are disputing the applicable charges reasonably and you are diligently cooperating in good faith to resolve the dispute, subject thereto that any amounts that are not disputed, are paid up to date and in full.
5.6 Future Functionality. You agree that your Subscription is not subject to the delivery of any future functionality or features or dependent on any representations made by Lobster regarding future functionality or features, unless such representations form part of this Agreement.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 It is recorded, and You agree, that all of the rights in and to all and any Intellectual Property in the Content, Courses and Platform, whether registered or not, vests in Lobster and/or its Affiliates and nothing contained or implied in this agreement will derogate from Lobster’s or its Affiliates’ Intellectual Property Rights in any way whatsoever. No rights are granted to You hereunder other than as expressly set forth herein.
6.2 You may not, and you may not cause any other person to, reproduce, duplicate, copy, sell, resell, visit or otherwise exploit Lobster’s or its Affiliates’ Intellectual Property Rights in whole or in part, in any way whatsoever, without such parties’ prior written consent.
6.3 You grant Lobster and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Lobster’s Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You relating to the operation of Lobster’s Services.
6.4 You grant Lobster and its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data and program code created by or for You using a Service or for use by You with the Services, as reasonably necessary for Lobster to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, Lobster will acquire no right, title or interest from You under this Agreement in or to any of Your Data or such program code.
7. USE OF PERSONAL INFORMATION
7.1 You agree that Lobster may electronically collect, store and use the following information (subject to your approval thereof upon registration on the Platform):
a) Name, contact number and email address;
b) Internet usage information, including internet protocol (IP) address, the dates and times that You access the Platform, and the time spend on the Platform;
c) Demographic information relating to social networking preferences.
d) Member Account, Password, And Security. If the Platform requires or provides You with the option to open an account, You must complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form. You also will choose a password and a user name. You are entirely responsible for maintaining the confidentiality of Your password and account. Furthermore, You are entirely responsible for any and all activities that occur under your account. You agree to notify us immediately of any unauthorized use of Your account or any other breach of security. We will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, You could be held liable for losses incurred by us or another party due to someone else using Your account or password. You may not use anyone else’s account at any time.
7.2 Lobster will use information collected from you to provide you with the Services you requested. Lobster may use the information collected to provide you with additional information about its Services. Lobster may use the information collected to improve its Online Training Platform and Services. Lobster does not share, sell, rent or trade personally identifiable information with third parties for their promotional purposes. Lobster may share information collected with other companies that work on Lobster’s behalf.
8.1 All communications between the Parties, and all information and other materials supplied to or received by either of them from the other (the “Confidential Information”) shall be kept confidential by the Parties unless or until the Party receiving the Confidential Information (“the Receiving Party”) can reasonably demonstrate that the Confidential Information (or the relevant portion thereof) is already in the public domain through no fault of its own; has been lawfully obtained from any third party who/which was under no obligation to keep such communication, information or material confidential; is already lawfully known to the Receiving Party at the time that it receives such information (and the Receiving Party) is under no prior obligation to keep such information confidential); or is disclosed by the Receiving Party to satisfy the order of a court of competent jurisdiction or of a governmental or regulatory body, or to comply with the provisions of any law or regulation in force from time to time. The aforementioned is provided that in these circumstances the Receiving Party shall disclose only that portion of the Confidential Information which it is legally required to disclose, notify the Disclosing Party of such legally obliged disclosure within 5 (five) days of such disclosure being made and use its reasonable endeavours to protect the confidentiality of such Confidential Information to the fullest extent practicable.
8.2 The Parties shall use all reasonable endeavours to procure the observance of these restrictions and shall take all reasonable steps to minimize the risk of disclosure of Confidential Information.
8.3 The obligations contained in this clause shall endure, even after the termination of this Agreement for whatever reason.
9. REPRESENTATIONS AND WARRANTIES
9.1 Each Party represents that it has validly entered into this Agreement and has the legal authority to do so.
9.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW. CONTENT AND SERVICES ARE PROVIDED “AS IS”, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10. LIMITATION OF LIABILITY
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND IN NO EVENT OR CIRCUMSTANCES SHALL THE AGGREGATE LIABILITY OF EACH PARTY, TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT FOR SERVICES” CLAUSE ABOVE.
10.2 IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.3 Clauses 10.1 and 10.2 above shall not operate to exclude liability of a Party arising as a result of that Party’s fraudulent conduct or in respect of any death or personal injury caused by that Party’s negligence.
10.4 In this clause 10 any reference to Lobster shall also include all of Lobster’s directors, employees and/or Representatives.
11.1 Indemnifications by Lobster. Lobster will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (“a Claim Against You”), and will indemnify You from any damages, attorneys fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Lobster in writing, of a Claim Against You, provided You (a) promptly give Lobster written notice of the Claim Against You, (b) give Lobster sole control of the defense and settlement of the Claim Against You (Except that Lobster may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Lobster all reasonable assistance, at Lobster’s expense in defending such claim. If Lobster receives information about an infringement or misappropriation claim related to a Service, Lobster may in Lobster’s sole discretion and at no cost to You, (I) modify the Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your Subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated Subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Your use of the Services in violation of this Agreement, the Documentation or applicable Subscription Form.
11.2 Indemnifications by You. You will defend and hold Lobster harmless against any claim, demand, suit or proceeding made or brought against Lobster by a third party alleging that Your data infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in violation of the Agreement, the Documentation or applicable Subscription Form(s) or applicable law (each a “Claim Against Lobster”), and You will indemnify Lobster from any damages, attorney fees and costs finally awarded against Lobster as a result of, or for any amounts paid by Lobster under a settlement approved by You in writing of, a Claim Against Lobster, provided Lobster (a) promptly gives you written notice of the Claim Against Lobster, (b) give You sole control of the defense and settlement of the Claim Against Lobster (except that You may not settle any Claim Against Lobster unless it unconditionally releases Lobster of all liability) and (c) give You all reasonable assistance to defend such Claim, at Your expense.
12. GOVERNING LAW AND JURISDICTION
12.1 The Parties agree to attempt to negotiate in good faith a settlement of any claim or dispute between or among them arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination. If such claim or dispute is not resolved by negotiation within thirty (30) days of a written request for negotiation from a Party, then either Party may refer the matter to arbitration under the Rules of Arbitration of the International Chamber of Commerce (“the ICC Rules”). The ICC Rules are deemed to be incorporated by reference into this Agreement. Unless otherwise agreed by the Parties, the number of arbitrators shall be one (1). The seat (legal place) of arbitration shall be Geneva, Switzerland. The arbitration proceedings shall be conducted in the English language. The arbitral decision shall be delivered in writing and shall be final and binding on the Parties.
12.2 Notwithstanding any of the aforegoing, the Parties may seek from a court of competent jurisdiction, being the courts of Switzerland, any interim or provisional relief that may be necessary to protect the rights or property of that Party, pending resolution of the dispute in accordance with the procedure set forth in clause 12.1 above.
12.3 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter will be governed by and construed in accordance with the laws of Switzerland, irrespective of the place of signature.
13. GENERAL PROVISIONS
13.1 Waiver. No indulgence, failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that, or any other right, under this Agreement.
13.2 Variation. No variation, modification of the Agreement is of any force or effect unless reduced to writing and signed by hand by both parties.
13.3 Assignment. You may not cede, assign or otherwise dispose of any part of Your rights and obligations in terms of this Agreement. Lobster may assign this Agreement in its entirety (together with all Subscription Forms) without Your consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Lobster may sub-contract any Services to any of its Affiliates, including Southern Africa Skills Development Institute (Pty) Ltd t/a Let’s Sell Lobster. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.4 Severability. Each clause, or part thereof, of this Agreement is separate and severable from the rest of the Agreement, unless severing would render the Agreement unlawful. Should any clause or part thereof be unenforceable, it will not affect the enforceability of the rest of the Agreement.
13.5 Whole Agreement. This document contains the whole Agreement between the Parties. Neither Party will have any rights or remedy arising from any undertaking, warranty or representation not included in this document.
13.6 Notices. All notices related to this Agreement will be in writing, sent via email to email@example.com and will be effective upon the day thereof, save for notices of termination or Legal Notices, which shall clearly be identifiable as Legal Notices. Billing-related notices to You will be addressed to the relevant billing contact provided by You on the Subscription Form.