1. “Content” means data and/or digital media, including but not limited to, text, designs, graphics, logos, icons and audio clips;
2. “Documentation” means documentation accompanying the Falkor Platform, if any;
3. “ED” means Everyday Digital (Pty) Ltd, a private company with registration number: 2018/037549/07;
4. “Falkor Platform” means the cloud-based software developed and owned by ED;
5. “SCORM” means Shareable Content Object Reference Model;
6. “Services” means the services as described in clause 3 below;
7. “Subscription Type” means any public or private enterprise subscription or
8. “User/s” means you as the subscriber to and/or user of the Falkor Platform;
9. “Website” means the ED website located at www.everydaydigital.co.za;
10. “you” or “your” means you, as the User.
2.1 These Terms and Conditions govern the Services provided to you by ED and your use of the Falkor Platform.
2.2 ED reserves the right to update, change or modify these Terms and Conditions from time to time. Any changes or modifications, additions or deletions will become effective immediately upon notice to you which may be given by any means, including on the Website, by email or on the Falkor Platform. Your use of the Falkor Platform thereafter shall be deemed to constitute your acceptance of the changes, modifications, additions or deletions to these Terms and Conditions.
3.1 ED provides you with a non-exclusive, non-transferable, limited licence to use the Falkor Platform, within the Subscription Type, for a specified number of Users (“subscription”) and maintenance and support services in relation thereto.
3.2 The license to use shall include the right to use the version of the Falkor Platform initially licensed and any updates (minor enhancements and/or improvements, patches, fixes or the like) thereto but shall exclude the right to use any new feature or substantial additional functionality, unless as otherwise determined by ED.
3.3 Any updates as referred to in clause 3.2 above and any new feature or substantial additional functionality provided to you, either as part of the initial license of use or otherwise, shall be subject to these Terms and Conditions.
4.1 Resellers have been appointed by ED and granted rights to distribute and sell licences of use for the Falkor Platform and/or to provide ancillary services to Users, including but not limited to, support, management, development and creation of Content and implementation facilitation (“ancillary services”).
4.2 Notwithstanding the aforementioned, you acknowledge that your use of the Falkor Platform is subject to these Terms and Conditions and any additional terms and conditions that may have been agreed between you and the Reseller. Any ancillary services provided by the Reseller shall be in terms of a separate agreement between you and the Reseller.
The subscription shall be on a month-to-month basis, unless as otherwise agreed between you and the Reseller and/or terminated in accordance with these Terms and Conditions.
You hereby acknowledge and agree that all right, title and interest in and to the Falkor Platform (including but not limited to the source code), the Documentation and any other related materials are, and shall remain, solely vested in the ED. Nothing contained in these Terms and Conditions will be deemed to convey on you any title, ownership, copyright or any other intellectual property rights in or related to the Falkor Platform, and ED reserves all rights in and to the Falkor Platform which are not expressly granted to you under a licence of use.
7.1 In order to provide access to the Falkor Platform, ED must be provided with current, complete and accurate information.
7.2 You will be asked to enter a valid email address which will also serve as your username for purposes of access to the Falkor Platform.
7.5 You may not access the Falkor Platform using any other User’s username and password, without the permission of that User.
8.1 Your use of the Falkor Platform shall be limited to the Subscription Type.
8.2 It shall be your responsibility to ensure that you have the necessary software / systems to support the use of the Falkor Platform in particular, the latest browser version and Operating System (for Android and Apple devices).
8.3 As a condition of your use of the Falkor Platform, you may not:
8.3.1 copy, sell, resell, license, transfer, assign, sub-license, rent, lease or otherwise make available, the Falkor Platform, in whole or in part, to any third party;
8.3.2 translate, disassemble, decompile, reverse engineer, or otherwise modify, tamper with, repair or attempt to discern the source code of any software contained in the Falkor Platform;
8.3.3 create derivative works of, or based on, any parts of the Falkor Platform;
8.3.4 remove or modify any copyright notices or other proprietary markings contained in the Falkor Platform;
8.3.5 intimate the “look and feel” of the Falkor Platform;
8.3.6 use the Falkor Platform for any purpose that is unlawful or prohibited by these Terms and Conditions;
8.3.7 use the Falkor Platform in a way that is intended to avoid or work around any use limitations and restrictions of the Falkor Platform;
8.3.8 bypass, breach or circumvent security access protocols or authentications including the User login;
8.3.9 use the Falkor Platform in any manner that could damage, disable, overburden or impair any ED server and/or network/s connected to any ED server or interfere with any other party’s use or enjoyment of the Falkor Platform;
8.3.10 interfere with the proper functioning of the Falkor Platform;
8.3.11 access or use the Falkor Platform for the purposes of conducting a performance test, building a competitive product or service or copying its features or user interface;
8.3.12 reproduce, modify or translate all or any portion of the Falkor Platform or accompanying Documentation.
8.4 ED must be promptly notified of:
8.4.1 any unauthorised use of the Falkor Platform;
8.4.2 any actual, threatened or suspected infringement of ED’s
8.4.3 subject to clause 15.3 any claim by any third party that the Falkor Platform infringes on the intellectual property rights of any third party.
9.1 The Falkor Platform allows you to develop, create, author and publish Content on the Falkor Platform subject to your user access permissions and privileges.
9.2 ED does not claim ownership of the Content. The Content developed, created, authored or published by you remains your Content and you are responsible for all Content published on the Falkor Platform, including but not limited to, its legality, reliability, appropriateness, originality and copyright. If you have engaged the services of a Reseller for this purpose, ownership of the Content shall be determined by the agreement between you and the Reseller.
9.3 You shall, at all times, ensure that the Content published on the Falkor Platform (whether published by you or the Reseller):
9.3.1 complies with all applicable laws and/or regulations;
9.3.2 does not infringe on any third party proprietary or other intellectual property rights;
9.3.3 does not violate any privacy, confidentiality or data protection rights;
9.3.4 is not abusive, harmful, illegal, offensive or otherwise objectionable;
9.3.5 does not constitute or encourage a criminal offence, or in any way violate the rights of any party;
9.3.6 does not portray any form of nudity, bestiality or pornography;
9.3.7 does not contain any false or misleading information or material.
9.4 ED hereby reserves the right to, in its sole and absolute discretion, refuse to publish any Content to the Falkor Platform and/or to remove any Content from the Falkor Platform where the Content fails to comply with the provisions of this clause 9.
10.1 Maintenance and support services shall consist of:
10.1.1 updates to the Falkor Platform; and
10.1.2 telephone and email support for queries in relation to the operation of the Falkor Platform (applicable to Resellers only);
10.1.3 other maintenance and support channels forming part of the Falkor Platform.
10.2 ED does not provide any maintenance and/or support services in relation to the Content and merely provides guidance for the use of the Falkor Platform by means of the Documentation.
10.3 Updates to the Falkor Platform are automatically installed by ED. However, if, for any reason whatsoever, you are required by ED to install any update to the Falkor Platform, you hereby undertake to do so. ED shall not, in an instance in which you are required to install an update to the Falkor Platform, be responsible for any technical difficulties or non-performance of the Falkor Platform as a result of any update to the Falkor Platform not having been installed.
10.4 In order for ED to provide effective maintenance and support services, you shall ensure that ED and its personnel are provided with such information under your control as is reasonably necessary to enable ED to comply with its maintenance and support obligations.
10.5 To the extent that you have engaged a Reseller, the Reseller may perform maintenance and support services in relation to the Falkor Platform and the Content on the terms and conditions agreed between you and the Reseller.
11.1 This clause shall, in addition to the remaining provisions of these Terms and Conditions, apply in an instance in which the Content is developed, created, authored and/or published using the Falkor Platform but exported and imported to a platform other than the Falkor Platform for distribution and/or publishing purposes.
11.2 In the event that you intend to use another platform for purposes of distributing and/or publishing the Content, ED shall package the Content for purposes thereof (“SCORM package”). In this regard, you acknowledge that:
11.2.1 ownership of and all intellectual property rights in the source code of the SCORM package is and shall remain solely vested in ED. Nothing contained in these Terms and Conditions will be deemed to convey on you any title, ownership, copyright or other intellectual property rights in or related to the source code of the SCORM package or otherwise beyond your right of use of the SCORM package;
11.2.2 the provisions of clause 8 of these Terms and Conditions shall apply mutatis mutandis to the SCORM package;
11.2.3 SCORM packages are limited in their analytic ability due to the nature of SCORM. The Content is therefore only able to offer a basic version of analytics in comparison to the in-depth insights provided by the Falkor Platform;
11.2.4 reflective and survey page results cannot be tracked on SCORM and assignment uploads are not permitted by SCORM;
11.2.5 the Falkor Platform allows only for the export of SCORM packages but does not support external Learning Management Systems. Accordingly, no maintenance and support is provided by ED for external Learning Management Systems;
11.2.6 SCORM packages are not accompanied by any warranties;
11.2.7 ED does not provide any guarantee, representation or warranty in relation to the functionality, operation, performance, availability, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness and delays, of the SCORM package;
11.2.8 ED shall not be liable or responsible for any errors in the Content that may occur as a result of the SCORM export or for any Content which is otherwise published and/or distributed by means other than the Falkor Platform;
11.2.9 SCORM packages are only supported by evergreen browsers and it shall be your responsibility to ensure that you have the necessary software / systems to support the SCORM package.
12.1 Subject to any agreement to the contrary between you and the Reseller, you, as the User, shall be required to make payment to ED of the following fees as set out hereunder:
12.1.1 Subscription Fee
188.8.131.52 a subscription fee shall be levied by ED for your use of the Falkor Platform;
184.108.40.206 the subscription fee shall be subject to your subscription tier which is based on storage space, bandwidth and number of users;
220.127.116.11 the subscription fee shall be levied by ED either monthly or annually as agreed between you and ED; and
18.104.22.168 the subscription fee shall be payable within 30 (thirty) days from date of invoice.
12.1.2 Set-up Fee
22.214.171.124 a set-up fee shall be levied by ED for the set-up of the Falkor Platform, including user access, user access permissions, other branding and visual standard requirements, and basic training at the time of your subscription to the Falkor Platform;
126.96.36.199 the set-up fee shall be payable on invoice.
12.1.3 Additional Fees
188.8.131.52 additional fees shall be chargeable by ED :
184.108.40.206.1 in the event of a change in your subscription tier;
220.127.116.11.2 in the event of any additional set-up requirements;
18.104.22.168.3 if ED is required, for any reason, due to the fault of the User, to recompile the Falkor Platform for your use;
22.214.171.124.4 for any services rendered by ED in relation to the Falkor Platform which are not included as part of the subscription fee or setup fee.
12.2 All payments shall be made to ED without deduction, set-off or withholding.
12.3 ED reserves the right to charge interest at the prime rate on all amounts which are not paid on the due date, from the due date until the date of payment.
13.1 ED may immediately terminate your license to use the Falkor Platform in the following instances:
13.1.1 on 30 (thirty) days written notice for any reason whatsoever;
13.1.2 in the event of a breach of these Terms and Conditions and a failure to remedy such breach within 7 (seven) days of written notice calling on you to do so;
13.1.2 in the event of the termination or expiration of your agreement with a Reseller for any reason whatsoever.
13.2 Unless as otherwise agreed between you and the Reseller, you may terminate your subscription at any time after the first 120 (one-hundred and twenty) days, upon 40 (forty) days written notice to ED or the Reseller.
13.3 In the event of a termination of your subscription, you acknowledge that, save for where ED or the Reseller, as the case may be, is provided with a written instruction to delete your account, including the Falkor Platform and all Content thereon, ED shall retain your account information and your Content for a period of 5 (five) years from the date of termination for record purposes. Notwithstanding the aforegoing, ED does not guarantee that your Content will remain available for 5 (five) years after the date of termination.
13.4 You may also, unless as otherwise agreed between you and the Reseller, suspend your subscription at any time after the first 120 (one hundred and twenty) days and upon 40 (forty) days written notice to the Reseller or ED. In this event, ED shall retain your account and all Content published by you on the Falkor Platform for a maximum period of 5 (five) years during which time, your subscription may be reactivated with 30 (thirty) days written notice to ED or the Reseller, as the case may be. A monthly fee shall be payable in this regard, for so long as your subscription remains suspended. The suspension of your subscription will incur a monthly fee of 15% (fifteen percent) of the subscription fee payable within 30 (thirty) days of date of invoice and in accordance with the terms of clause 12.
14.1 ED warrants that it holds the necessary rights to grant the rights as specified in these Terms and Conditions and that the Falkor Platform does not infringe on the intellectual property rights of any third party.
14.2 Save for the warranties provided by ED in clause 14.1 above, you acknowledge that the Falkor Platform is otherwise provided “as is” without any warranty of any kind, express or implied, including but not limited to warranties of performance, availability, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness, and delays.
14.3 ED shall endeavour to ensure a considerable uptime of the Falkor Platform but provides no warranty that access to the Falkor Platform will be uninterrupted, secure, complete or error free.
14.4 ED also makes no representation about the suitability of the information contained in the Documentation and related graphics published as part of the Services and the Documentation and related graphics are provided “as is” without any warranties of any kind. The Documentation could include technical inaccuracies and typographical errors and ED may make improvements and/or changes to the Documentation from time to time.
15.1 Under no circumstances shall ED assume any liability whatsoever for any loss or damage suffered by you in relation to your use of the Falkor Platform and/or any failure to comply with these Terms and Conditions nor shall ED be liable to you for any consequential, indirect, delictual, special, or other damages of any nature whatsoever or howsoever arising.
15.2 You hereby indemnify ED and its employees, directors and agents against any claim (including any legal costs incurred by ED in relation thereto) that may arise against ED as a result of your failure to comply with these Terms and Conditions, any infringement of a third party’s intellectual property in the creation and/or development of Content, any negligence on your part, either contractually or delictually and whether by act or omission, any violation by you of any laws or regulations.
15.3 ED hereby indemnifies you in respect of any claim by any third party that the Falkor Platform infringes on the intellectual rights of any third party. You are required to notify ED of the commencement (or threatened commencement) of any civil, criminal, administrative or investigative action or proceedings involving any claim by any third party that the Falkor Platform infringes on the intellectual rights of any third party. ED shall be entitled to assume control over the defence and/or settlement of such claim on written notice to you alternatively, ED shall be entitled to participate in the defence of such claim and may employ Counsel at its own expense to assist in the handling of such claim. No settlement may be entered into by you without ED’s prior written consent.
17.1 The Website and/or any Falkor Platform-related communications may contain links to third party websites. These links to third party websites are provided solely for your convenience and does not imply endorsement by ED of the third party website.
17.2 You agree and acknowledge that these third party websites are not under the control of ED and ED is not responsible for the content of any linked site or any link contained in a linked site, or any changes or updates to such websites.
ED shall not be responsible for a failure to provide the Services hereunder to causes beyond its control, including but not limited to, work stoppages, fires, civil disobedience, riots, rebellions, earthquakes, floods, acts of God and similar occurrences. Provision of the Services shall be resumed as soon as possible but within 30 (thirty) days of such cause, failing which your subscription shall terminate.
Except as otherwise provided, all notices and correspondence must be given in writing to ED at: 24 Hurlingham Road, Cnr Fricker Road, Illovo, Sandton, Gauteng or email@example.com or such other addresses of which ED may give you notice.
Any dispute arising under or in any way connected with these Terms and Conditions shall be subject to the laws of the Republic of South Africa.
21.1 You will not be entitled to cede or assign any rights and/or obligations which you may have in terms of these Terms and Conditions to any third party.
21.2 ED may cede and/or assign any rights and/or obligations in terms of these Terms and Conditions upon notification to you.
In the event of any action or proceeding being brought to enforce or interpret any provision of these Terms and Conditions or recover any amounts, the prevailing party in such action or proceeding will be entitled to recover all costs incurred by it, whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
Should any provision be declared illegal, invalid or unenforceable in any jurisdiction affected by these Terms and Conditions, such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition and shall be severed from the balance of the provisions hereof, without invalidating the remaining provisions of these terms and conditions or affecting the validity or enforceability of such provision in any other jurisdiction.
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