LOBSTER INTERNATIONAL S.A. TERMS AND CONDITIONS OF USE AND LICENSE: PLEASE READ
THESE TERMS AND CONDITIONS CAREFULLY. USE OF THIS WEBSITE
(WWW.LOBSTERINK.COM, LEARN.LOBSTERINK.COM, MANAGE.LOBSTERINK.COM) AND THE
LICENSED CONTENT CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE HEREOF.
Unless otherwise specified in this Agreement, the following terms will have the following meanings:
“Agreement” means these terms and conditions;
“the Client” means the party, being a member of the InterContinental Hotels Group who makes use of the Services on the Website forming the subject matter of this Agreement, being a subscribing hotel which is owned, leased, managed, franchised, licensed or otherwise operated by the Company or its affiliates, and includes its representatives, successors and permitted assigns;
“Company” means Six Continents Limited, incorporated and registered in England and Wales, having its place of business at Broadwater Park, Denham, Buckinghamshire, UB95HR;
“Content” means all of the content and Courses hosted on the Website 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;
“the Courses” means the training courses present on the Website and as agreed upon between the Vendor and Company;
“Intellectual Property” means all and any Intellectual Property Rights in and to the Website, the Content, the software and systems relating to the Website, the online assessment, 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 or 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);
“Vendor” means Lobster International S.A., a private company, incorporated and registered in Geneva, Switzerland, holding a commercial license number CHE-409.294.152, whose principal place of business is at Boulevard Helvétique 30, 1207 Geneva, Switzerland.
“Online Assessment” means the testing and assessment services reflected on the Website;
“Representatives” means all employees, consultants, agents and subcontractors with which the Vendor engages in relation to the Services;
“Services” means the services supplied by Vendor to the Client, being the Courses and the online assessment with the required support on the Website, and includes the non-exclusive license to make use of these Services for the duration of the Agreement and in accordance with its conditions;
“Training Media” means the training media video recordings which are stored on the Website, containing the Courses, and to which the Client and their identified and approved Users will have access to in terms of the Agreement;
“the Users” means the employees of the Client, Company or its affiliates who will receive training in terms of this Agreement.;
“Website” means Vendor’s websites, being www.lobsterink.com, learn.lobsterink.com, manage.lobsterink.com as at the date hereof, which includes both the ‘student’ and the ‘manager’ dashboard, student history, video lessons, manuals, user profile, assessments and support.
The Client appoints Vendor to provide the Services in accordance with this Agreement and Vendor hereby accepts such appointment. Vendor hereby grants to the Client the right to access the Website and the Content for the duration of the Agreement subject to the provisions of this Agreement. The Parties agree that these terms and conditions govern the relationship between them with regard to the provision of the Services. Where applicable, the terms of the agreement entered into between Vendor and Company on or about 25 September 2014, including any amendments thereto, (“Master Agreement”) will apply to this Agreement. Where there is a conflict, the provision of this Agreement will take preference.
3. THE COURSES
1. The Courses are contained in the Training Media and the manuals and will be provided to the Client by Vendor, and as specified in the agreement entered into between Vendor and Company. The Client shall be entitled to access the Training Media accessible on the Website for the duration of this Agreement and the renewal period thereafter, if applicable, provided there has been no breach of this Agreement and all amounts due in terms of this Agreement have been paid on or before due date.
2. The Client will use the Training Media for the limited purpose of training the Users and for no other purpose whatsoever. The Client and the Users will accordingly not, and without limitation, edit, alter, copy, reproduce, transmit, perform, create derivative works of, grant any rights in respect of, publish or disseminate the Training Media or any portion thereof or the Content in any way whatsoever.
4. TRAINING MATERIAL AND ONLINE ASSESSMENT
1. The Website contains the software required for the online assessment which will allow the Client to view the video content, access the online course manuals, monitor staff performance, create User profiles and store staff assessment information in the Client’s profile, which profile will be established by Vendor on the Website. Vendor will provide the Client with an access code that will enable the Client to view the Website and the profile of each User.
2. The Client will determine, and advise Vendor on the Website accordingly, who will be the Users. The Client will be responsible for the Users’ conduct while accessing the Website 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 Website by the User/s.
3. Without in any way derogating from the above-mentioned, the Client and/or its Users will not in any way whatsoever edit, alter, copy, reproduce, transmit, perform, create derivative works of, grant any rights in respect of, publish, or disseminate the online manuals, the Content or any portion of either; disassemble or reverse engineer the Content or any part thereof; or do anything or allow the doing of anything, which may have the effect of circumventing, disabling, damaging or impairing the Website or the Content or any portion of either and, in particular, the Website’s control or security systems.
4. The Courses, the manual, the Training Media, the Website and the Content are made available “as is” and neither Vendor nor its Representatives give any warranties of any nature whatsoever with regard thereto and/or the use or misuse thereof by the Client and/or the Users whether relating to fitness for intended purposes, accuracy of the Website and/or the Content or in any other regard whatsoever.
5. Vendor’s online learning platform and/or Website shall not be used during the term of this Agreement to
host any e-learning course content or other content of any nature that is developed by a third party outside of Vendor or its affiliates.
5. INFORMATION USAGE
1. The Client agrees that Vendor may electronically collect, store and use the following of the User’s information (subject to prior approval by the User upon registration on the Website):Personal information, including name, contact number and email address; Internet usage information, including Internet protocol (“IP”) address, the dates and times that the User accesses the Website, and time spent on the Website; and/or Information provided on a voluntary basis, including demographic information, information relating to social networking preferences or information provided in relation to competitions, promotions or surveys.
2. The information provided by the User may be used by Vendor and/or its Representatives for marketing purposes, to remember a User’s information in order that they do not have to re-enter such information for log-in purposes, to recommend products and/or services to the User, and track entries, submissions and the status in connection with the usage of the Website.
4. The Client and the Vendor agree that they shall only process Personal Data in compliance with all applicable regulations and that, in relation to the any transfer, processing or maintenance of Personal Data outside of the EEA, the export and import (as appropriate) of such data shall be in accordance with the standard contractual clauses for the transfer of personal data to processors established in third countries (European Commission Decision 2010/87/EC). For the purpose of this clause, the term “Personal Data” shall have the meaning given in Directive 95/46/EC of the European Commission.
6. TERM AND TERMINATION
1. The Agreement will come into force on the date of registration by the Client on the Website, and
continue in force and effect until 31 December 2017 (the “Term”).
2. Either party may terminate this Agreement if the other party fails to comply with any material provision of this Agreement. In order to terminate this Agreement, the terminating Party must give the other Party written notice of the breach and fourteen (14) days to cure such breach. If the other Party fails to cure the breach within the 14 days or the breach cannot be cured, this Agreement shall be deemed terminated on the 15th day after the notice of breach has been given. The Client will have no claim against Vendor if this Agreement is terminated in terms of this clause 6.
3. The Vendor can terminate this Agreement immediately or on notice if requested to do so by the
Company and in such event, the Client agrees to forfeit any Subscription Fees paid or due under this Agreement.
- As remuneration for the Services provided by Vendor to the Client in terms of this Agreement, the Client will pay to Vendor a fee for the Term as specified below, payable into the Vendor’s nominated bank account upon presentation of an invoice by Vendor, without exchange, deduction or set-off.
*Focused Service hotel brands include: Holiday Inn Express, Hotel Indigo, Staybridge Suites, Candlewood Suites, Even Hotels. The Company can at any time request that additional/new Company brands can be included in this definition of Focused Service hotels.
2. Payment of subscription fees will be upfront for the Term.
8. SUPPORT SERVICES
Vendor will provide the Client with the support services as detailed below. For the avoidance of doubt, the term “Subscribing Hotel” in this clause 8, refers to the Client.
1. Service Level Agreement
The Vendor agrees to the following Service Level Agreement (“SLA”): Other additional SLA’s to be agreed on an ad-hoc basis upon request.
2. Service availability and maintenance
2.1. The Vendor shall employ the highest level of industry standards to maintain its software in order to ensure its proper operation and functionality.
2.2. The Scheduled Maintenance shall be provided only after the Vendor has provided the Company / Subscribing Hotels with prior written notice of its intention to conduct the Scheduled Maintenance at least seven (7) days of the Scheduled Maintenance taking place.
2.3. Unless agreed otherwise with a Subscribing Hotel, save for Scheduled Maintenance (meaning any update and/or upgrade in the Vendor's software) and Unexpected Events (circumstances beyond the Vendor's reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labour disturbance, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software used by the Vendor, unexpected emergency maintenance, unauthorised acts or omissions by the Company and/or unauthorised acts or omissions of a third party engaged or authorised by the Company), the Website and Course Content will be available to Users at least 99% (ninety nine percent) of the time, as measured on a monthly basis. Availability, as aforementioned, will be measured by the Vendor using industry standard monitoring tools. For the avoidance of any doubt, the calculation of availability will be solely in connection with the software (i.e. software availability) and not the availability of any Hardware, the network or other components that are not under the Vendor’s control.
3. SUPPORT SERVICES
3.1. The Vendor’s Representatives will be available to answer questions and otherwise assist
the relevant Subscribing Hotel in troubleshooting any problems that may occur in the
day-to-day running of the software through email support. Email support as aforementioned, at email@example.com.
3.2. The Vendor has implemented an intelligent support system whereby frequently asked
questions are intelligently responded to whilst a User is using the Website. This system is
integrated into the operation of the Website and allows a User to get immediate answers
to queries, provided they fall under ‘frequently asked questions’, both technical and
3.3. Telephonic support is reserved for regional offices. The Vendor will be in weekly
telephonic contact with the relevant Company Representative based regionally, during
the implementation phase, and monthly once the project has been implemented.
4.1. If the Vendor fails to correct a Technical Support Problem within 2 (two) days of the
Subscribing Hotel advising The Vendor of the Problem or the Vendor advising the
Subscribing Hotel of a Problem, then The Vendor shall act as follows:
i. Promptly perform a root-cause analysis to identify the cause of such failure;
ii. Provide the Subscribing Hotel with written notice explaining the cause of and procedure for correcting such failure; and
iii. If appropriate under the circumstances (which will be determined at the sole instance of the Vendor), take action to avoid such failure in the future.
4.2. If the Problem is not resolved within the aforementioned time then the issue can be
escalated within the Vendor to the following persons:
i. Sandy Moser (Account Manager): firstname.lastname@example.org
ii. Matthew Mueller (Vice President of Learning): email@example.com
iii. Paul Rowett (Chief Operating Officer): firstname.lastname@example.org
In addition to any other exclusion contained herein, this Agreement specifically excludes the following:
i. Hardware, save as otherwise specified in the Schedule/s;
ii. The moving of hardware or cabling or equipment;
iii. Any additions of equipment, changes or upgrades to a Subscribing Hotel’s current IT infrastructure.
6. Subscribing Hotel’s OBLIGATIONS
6.1. The Subscribing Hotel will conduct business in good faith and in a courteous and
6.2. The Users will use the appropriate Help Desk to request support;
6.3. The Subscribing Hotel will use their internal resources to ensure that their network, firewall, security and infrastructure support services are up to date and able to support the Services;
6.4. The Subscribing Hotel will provide all information required to open a support request and make themselves available to assist The Vendor in correcting any support issues.
9. OWNERSHIP OF THE INTELLECTUAL PROPERTY
1. It is recorded and agreed that all of the rights in and to all and any Intellectual Property and the Content and Courses, whether registered or not, vest in Vendor and nothing contained or implied in this Agreement will derogate from Vendor’s Intellectual Property Rights in any way whatsoever.
2. Vendor’s Intellectual Property may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited in whole or in part in any way whatsoever except in the usual course of the Client’s business, without Vendor’s express prior written consent.
10.LIABILITY AND INDEMNITY
1. In no event shall either Party be liable to the other for the payment of any consequential, special,
incidental, exemplary or punitive damages even if informed of the possibility of such damages.
However, the provisions of this Section shall not apply in any way to or limit the Vendor’s obligation to any indemnified party under the Master Agreement other than the Company, each of its Affiliates and their officers, directors, employees, agents, successors and assigns.
2. To the fullest extent permitted by governing law, the Vendor’s total aggregate liability for any claims or series of claims arising in any calendar year whether arising out of or in connection with the performance or contemplated performance of the Services under this Agreement or arising in any way in relation to the Master Agreement and whether for tort (including negligence), breach of contract, breach of statutory duty or otherwise, including any indemnity given by the Vendor to the Company, its Affiliates, their officers, directors, employees, agents, successors and assigns under the Master Agreement) shall not exceed the relevant annual aggregate liability amounts reflected in Schedule 7 of the Master Agreement (in relation to professional indemnity and general liability claims respectively) and as further contemplated by clause 11.2 thereof. However, the provisions of this Section shall not apply in any way to or limit the Vendor’s obligation to any indemnified party under the Master Agreement other than the Company, each of its Affiliates and their officers, directors, employees, agents, successors and assigns.
3. In this clause 10 any reference to the Vendor shall also include all of the Vendor’s directors, employees and/or Representatives.
4. Except to the extent otherwise provided in this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
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, provided that in these circumstances the Receiving Party shall: disclose only that portion of the Confidential Information which it is legally required to disclose; and use its reasonable endeavours to protect the confidentiality of such Confidential Information to the fullest extent practicable. The obligations contained in this clause 11 shall endure, even after the termination of this Agreement for whatever reason.
1. Neither Party may cede, assign or otherwise dispose of its rights or obligations in terms of this
Agreement without the prior written consent of the other Party, save for any assignment, delegation, sub-contract or other transfer by the Vendor, within the Vendor Group (being the Vendor and any of its affiliates, including SASD Institute (Proprietary) Limited, a company incorporated in the Republic of South Africa of 1st Floor Block C, North Park, Black River Office Park, 6 Fir Street, Observatory, 7925, Cape Town, South Africa.
2. No relaxation of the terms of this Agreement and no indulgence which one Party may grant to the other, will in any way operate as an estoppel against the former Party or be deemed to be a waiver of its rights, or in any other way limit, alter or prejudice those rights.
3. No variation or notification of the Agreement is of any force or effect unless reduced to writing and signed by the Parties.
4. Each clause or part thereof in 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.
5. This document contains the whole Agreement between the Parties. Neither Party will have any right or remedy arising from any undertaking, warranty or representation not included in this document.
6. The parties select as their respective addresses for service of any documents, the addresses as set out on the Website. Any written notice by one party to the other should be sent by electronic mail. And deemed to be delivered on the date of transmission A notice which has not been served on a Party’s domicile address but which has actually been received by such Party shall be deemed for all purposes to have been properly served on such Party.
7. 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 England and Wales, and subject to the jurisdiction of the Courts of England and Wales.
For and on behalf of Lobster International S.A.