END USER TERMS AND CONDITIONS OF USE OF SITE (INCLUDING LICENCE AGREEMENT FOR ACCESS TO THE THINKUBATE LEANER MANAGEMENT SYSTEM (“EULA”)

1. INTERPRETATION; DEFINTIONS

The following definitions apply to this Terms of Use (PART A) and EULA (PART B):

“Confidential Information” means any information that is clearly labelled or identified as confidential or ought to reasonably be treated as being confidential. Confidential Information includes the LMS Programme and any Third Party Content. Confidential Information excludes any information which:

a) is or becomes publicly known other than through a breach of this EULA or other obligation of confidentiality;
b) was in the receiving Party’s lawful possession before the disclosure;
c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
d) is independently developed by the receiving Party and that independent development can be shown by written evidence; or
e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

“LMS” means Learner Management System;
“LMS Programme” means Thinkroom’s Learner Management Systems Programme made available online to you, subject to the EULA;

“GDPR”: means in this EULA, the terms “controller”, “processor”, “data subject”, “personal data”, “process”, “processing”, “consent” and “special categories of personal data” (previously referred to as “sensitive personal data”) have the meanings ascribed to them in the General Data Protection Regulation 2016/679 (https://gdpr-info.eu/);

“Intellectual Property Rights” means all copyright and related rights, patents, rights to inventions, utility models, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection;

“Licence”: means the licence granted under clause 12.2;

“Third Party Content”: means any data, information, content including trademarks, logos, software or other Intellectual Property Rights of an affiliate of Thinkroom, a third party, including any which is accessed by your use of the LMS Programme;

“Thinkroom” means Thinkroom Limited, a private company registered in the United Kingdom.

“us”, “we” and “our” shall mean Thinkroom, as set out above;

“you” and “your” shall mean to any person who accesses the site; and

“site” means the website accessed at  https://www.lmsuk.com/stars (STARS)

PART A - TERMS OF USE OF SITE

2. APPLICABLE TO ALL PAGES OF OUR SITE

By using our site, you accept these terms.

These terms of use, together with the relevant webpage specific terms in Part B below (together the Terms of Use), set out the terms on which you may use our sites. Use of our sites includes accessing, browsing or registering to use our sites.
Please read these Terms of Use carefully before you start to use any of our sites, as they will apply to your use of our sites.
By using our site, you confirm that you accept these Terms of Use and that you agree to comply with them. If you do not agree to these Terms of Use, you must not use our sites.

3. OTHER TERMS THAT MAY APPLY TO YOU

Our Privacy Notice (which sets out the terms on which we process your personal data and which sets out information about the cookies on our site) will also apply to your use of our site.

4. CHANGES TO THESE TERMS OF USE

We may revise these Terms of Use at any time by amending this page. Please check this page from time to time for any changes we have made, as they are binding on you. We do not guarantee that our sites, or any content on them, will be free from errors or omissions.

5. ACCESSING OUR SITE

We do not guarantee that our site, or any content on them, will always be available or be uninterrupted. Access to our sites are permitted on a temporary basis. We may suspend or withdraw or restrict the availability of all or any part of our site for business and operational reasons. We will try to give you reasonable notice of any suspension or withdrawal by including a notice on the applicable site.  We will not be liable to you if for any reason our site is unavailable or interrupted at any time or for any period.

You are responsible for making all arrangements necessary for you to have access to our sites. You are also responsible for ensuring that all persons who access our site through your internet connection are aware of these Terms of Use and other applicable terms and conditions, and that they comply with them.

6. ACCESS TO OUR SITE AND LOG IN

You will be provided with a registration code to access the site.

You are responsible for the security and confidentiality of the registration code, personalised link or other information needed to access or use the site or any of our services. You must not allow others to access the site or any services via your registration code.

You are only permitted to make three attempts to log on to the LMS, should you exceed these attempts your account may be suspended and you may be unable to use the site. Should this happen you would need to contact us directly at assist@thinkroom.co.za in order to request further access to the LMS.

Should you lose or misplace your access details you must promptly notify us at assist@thinkroom.co.za.

We have the right to disable any user access, registration or identification code, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Terms of Use or EULA. If you know or suspect that anyone other than you has accessed the LMS, knows your user identification or registration code, you must promptly notify us at assist@thinkroom.co.za.

We have the right to disable any user identification or registration code at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Terms of Use. If you know or suspect that anyone other than you knows your user identification or registration code, you must promptly notify us at assist@thinkroom.co.za.

7. YOUR USE OF OUR SITE

This site is intended for use by individuals who are registered on the Thinkroom LMS Programme.
You are responsible for the accuracy and completeness of all information and/or personal data which you enter on the site.
You may use our site only for lawful purposes. You may not use our site:

    1. in any way that breaches any applicable local, national or international law, regulation or code of practice;
    2. in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
    3. in any way that infringes the rights of any third party (including intellectual property rights and rights to privacy); and/or
    4. to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation to any person.
    5. You also agree not to reproduce, duplicate, copy or re-sell any part of our site in contravention of these Terms of Use.
    6. Breach of any of these conditions of use of our site constitutes a material breach of these Terms of Use.

8. DOWNLOADING ITEMS

Where downloads are available on the site, you may download items, subject to these Terms of Use. If you print off, copy or download any part of our site in breach of these Terms of Use, your right to use our site will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.

You should use your own virus protection software. It is recommended that you should virus check all materials downloaded from our site and regularly check for the presence of errors, viruses, bugs, other malicious code, and harmful components.

9. VIRUSES, HACKING AND OTHER OFFENCES

We do not guarantee that our site will be secure or free from bugs or viruses, however, we make all reasonable effort to ensure our site will be secure.

Although we use reasonable efforts to ensure that our site is free from viruses and other malicious or harmful content, you are responsible for configuring your information technology, computer programmes and platform to access our site. You should use your own virus protection software. It is recommended that you should virus check all materials downloaded from our site and regularly check for the presence of errors, viruses, bugs, other malicious code, and harmful components.

You agree:
    1. not to use our site to knowingly transmit any data, send or upload any material that contains any viruses, Trojan horses, worms, logic or time bombs, keystroke loggers, spyware, adware or any other technologically harmful programs, data or code;
    2. not to attempt to access without authority, interfere with, damage or disrupt:
      • any part of our site;
      • any database connected to our site;
      • any equipment or network on which our site is stored or which is connected to our site; and/or
      • any software used in the provision of our site; and
    3. not to attack our site via a denial-of-service attack or a distributed denial-of service attack.

By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990 (and may commit additional offences under local laws in other applicable jurisdictions). We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our site will cease immediately.

10. INTELLECTUAL PROPERTY AND HOW YOU MAY USE MATERIAL ON OUR SITES

The trade marks, copyright, database rights and other intellectual property rights in the site, and the information, content, material or data that we display on the site belongs to us or our licensees and all such rights are reserved.

Unless we explicitly state otherwise in writing, you may use, view, download, copy or print textual or graphic content of our site provided that it is solely used by you for the purpose of submitting a case to, requesting a quote from us or accessing our Panel Firms in accordance with the instructions provided throughout our site and provided that you do not change or delete any copyright, trademark or other proprietary notices on such content.

Under no circumstances may you use any content in a manner that may give a false or misleading impression of us or imply some form of commercial agency partnership or other arrangement.

Save for in accordance with these Terms of Use, you must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.

Our status (and that of any identified contributors) as the authors of content on our site must always be acknowledged.

You must not use any part of the content on our site for commercial purposes without obtaining a licence to do so from us or our licensors.

If you print off, copy or download any part of our site in breach of these Terms of Use, your right to use our site will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.

11. DO NOT RELY ON INFORMATION ON THIS SITE

Unless otherwise specified in the Page Specific Terms, the content on our site is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our sites.

Although we make reasonable efforts to update the information on our sites, unless otherwise specified, we make no representations, warranties or guarantees, whether express or implied that the content on our site is accurate, complete or up to date.

We will provide the service with reasonable skill and care and endeavour to ensure that the databases and data we use in delivering the service is complete and accurate, however we cannot guarantee that your access to or use of the site or service will be uninterrupted or error free.

12. OUR RIGHTS

If we determine, in our discretion, that there has been a breach of these Terms of Use, we may take such action as we deem appropriate. Failure to comply with these Terms of Use may result in all or any of the following actions:

  • issue of a warning to you;
  • immediate, temporary or permanent withdrawal of your right to use our site;
  • legal proceedings against you for damages, losses and/or reimbursement of all costs (including, but not limited to, reasonable administrative and legal costs) resulting from your breach of the Terms of Use; and/or
  • disclosure of such information to law enforcement authorities as we reasonably feel is necessary.

 

We exclude liability for actions taken in response to breaches of the Terms of Use. The actions described in these Terms of Use are not limited and we may take any other action we reasonably deem appropriate.

We reserve the right to restrict access to any part or all of this site. In particular, we will restrict access to the service to only 3 attempts without further, direct approval from us.

13. LIMITATION OF OUR LIABILITY

We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation.

We refer you to the specific limitations applicable to the EULA, as contained in clause 14.7 below. The security of communications sent over the Internet (including by e-mail) is subject to many factors outside of our control and we do not guarantee the security or confidentiality of any electronic communications and shall not be responsible to you for any loss or damage that you may suffer as a result of the transmission of any such communications. We shall have no liability for your inability to connect to or to access our site which may result from any faults, errors or problems relating to your PC hardware, software, network or security, or your Internet service provider or any other similar problem.

Where our site contains links to other sites and resources provided by third parties, these links are provided for your information only. We assume no responsibility for the content of websites linked on our site. Such links should not be interpreted as endorsement by us of those linked websites or their content. We will not be liable for any loss or damage that may arise from your use of them.

14. LINKING TO OUR SITE AND THIRD-PARTY COOKIES

Any linking to our site is prohibited without our prior written consent.
You must not:

14.1 establish a link in a way that is not fair or legal;
14.2 establish a link in such a way as to damage our reputation or take advantage of it;
14.3 establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists;
14.4 establish a link to our site in any website that is not owned by you;
14.5 establish a link to our site in any website that includes unlawful or fraudulent content, or has any unlawful or fraudulent purpose or effect; or
14.6 frame our site on any other site.

We reserve the right to withdraw linking permission without notice.

14.7 If you wish to make any use of content on our site other than permitted in these Terms of Use, please contact assist@thinkroom.co.za
14.8 You are prohibited from placing, or attempting to place, any cookies, tracking pixel, plug-ins, local shared objects, HTMLS LAN Storage, or other similar technologies on any of our sites, or when linking to our sites, without our prior written consent. You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting).

15. WHEN ACCESSING THIS SERVICE FROM A EUROPEAN BASED SERVER, YOU AGREE TO THE FOLLOWING EULA:

THINKROOM LIMITED (“THINKROOM”) IS WILLING TO PROVIDE ACCESS TO THE ONLINE PROGRAMME CURRENTLY MARKETED AS THE “LMS” TO YOU ON THE TERMS OF THIS END USER LICENCE AGREEMENT (THE “EULA”). YOU MUST READ THIS EULA CAREFULLY BEFORE USING THE LMS PROGRAMME. THIS EULA CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND THINKROOM (EACH A “Party” AND TOGETHER THE “Parties”). BY CLICKING ‘I AGREE’, USING (WHICH INCLUDES VISITING, REGISTERING, ENRULLING OR ACCESSING) THE LMS PROGRAMME OR OTHERWISE INDICATING AGREEMENT ELECTRONICALLY, YOU AGREE TO THIS EULA. IF YOU DO NOT AGREE TO THIS EULA, YOU SHOULD NOT CLICK ‘I AGREE’ AND/OR SHOULD IMMEDIATELY MAKE NO FURTHER USE OF THE LMS PROGRAMME.

    • YOUR USE OF THE LMS PROGRAMME
      • Your access to the LMS programme shall be limited to you. When you register, you will be provided with a registration code. You shall keep your registration code confidential. Thinkroom shall not be liable for any losses or damage suffered by you due to the disclosure of your registration code;
      • Your use of the LMS Programme shall not viulate any applicable law, regulation or any terms of use applicable to the use of Third Party Content;
      • The LMS Programme are provided for general information and training purposes only and you must obtain professional or specialist advice before taking, or refraining from taking, any action on the basis of information obtained through the LMS Programme;
      • You are sulely responsible for ensuring that you have sufficient and compatible hardware, software and internet connectivity necessary for use of the LMS Programme.
    • LICENCE OF THE LMS PROGRAMME
      • Thinkroom hereby grants you a licence to use the LMS Programme in accordance with the terms of this EULA (the “Licence”).
      • The Licence is revocable, non-exclusive, non-transferable and non-sub-licensable.
      • The Licence is granted to you only. You shall not share the LMS Programme with any third party.
      • You shall not use the LMS Programme to:
  • provide services to third parties; or
  • build a product or service which competes with the LMS Programme.
      • You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the LMS Programme and shall notify Thinkroom promptly of any such unauthorised access or use.
    • Thinkroom may modify, suspend or discontinue any part of the LMS Programme or otherwise make any changes it considers desirable to the LMS Programme.

 

    • INTELLECTUAL PROPRIETARY RIGHTS

Thinkroom and/or its licensors own all Intellectual Property Rights in the LMS Programme materials and content. Other than as expressly set out in this EULA, Thinkroom does not grant you any Intellectual Property Rights in respect of the LMS Programme or any other materials unless expressly provided in this EULA.
You may not copy, de-compile, reverse engineer, modify or otherwise deal in any way with the LMS Programme. You may not remove any proprietary notices attached to the LMS Programme.

    • THIRD PARTY CONTENT

Thinkroom may host Third Party Content which is accessed by your use of the LMS Programme and is in no way invulved with the information contained in any Third Party Content. Thinkroom does not:

  • initiate the transmission of Third Party Content;
  • select the receiver of any transmitted Third Party Content; or
  • select or modify the information contained in any Third Party Content (other than technical manipulations which take place in the course of the transmission of the Third Party Content and which do not alter the integrity of the information contained in the Third Party Content).

Any Intellectual Property Rights in the Third Party Content shall remain with its owners or licensors.
You will indemnify, defend and huld harmless Thinkroom, from and against any claims, costs, damages, losses, liabilities and expenses (including legal fees) relating to any claims, actions, suits or proceedings by third parties against Thinkroom arising out of or related in any way to either Party’s use of Third Party Content in accordance with this EULA.

Each Party shall huld the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party unless that third party is subject to an equivalent duty of confidentiality. Neither Party shall use the other’s Confidential Information for any purpose other than the implementation of this EULA.
Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, agents or independent contractors in breach of the terms of this EULA.
This clause 16.6 shall survive termination of the EULA for a period of 5 years.

    • LIMITATION OF LIABILITY
      • This clause 16.7 sets out Thinkroom’s entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you:
        • arising under or in connection with this EULA;
        • in respect of any use made by you of the LMS Programme;
        • any Third Party Content; and
        • in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this EULA.
      • Except as expressly and specifically provided in this EULA you assume sule responsibility for your use of the LMS Programme and for the results of, or conclusions drawn from, such use.
      • The LMS Programme are provided “as is” to the fullest extent permissible pursuant to applicable law. Thinkroom disclaims all warranties and conditions express or implied, including, but not limited to, implied warranties of satisfactory quality and fitness for a particular purpose, in relation to the LMS Programme, its use and the results of such use. Thinkroom specifically disclaims any warranty:
        • that the LMS Programme and its availability shall be uninterrupted, delayed or error-free;
        • for any loss of your information stored on the LMS course dashboard (including grades, certificates or achievements). As such, we advise that you back up or keep additional copies of this information;
        • that defects shall be corrected;
        • that there are no viruses or other harmful components;
        • that the security methods employed shall be sufficient; or
        • regarding correctness, accuracy, or reliability.
      • All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from this EULA to the fullest extent permitted by law.
      • Nothing in this EULA excludes the liability of Thinkroom:
        • for death or personal injury caused by Thinkroom’s negligence;
        • for fraud or fraudulent misrepresentation; or
        • any statutory liability not capable of limitation.
      • Subject to clause 16.7.5, Thinkroom shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this EULA.
      • Subject to clause 16.7.5, Thinkroom’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this EULA shall be limited to GBP£10.

16. DATA PROTECTION

The Parties intend that Thinkroom is a processor and only processes personal data on behalf of the controller. If personal data is provided by you to Thinkroom, Thinkroom shall only process such personal data on documented instructions from the controller.
Thinkroom shall only collect and process personal data in accordance with the legal basis of entering into and performing a contract with you for the purposes of delivering the LMS Programme. For further detail on your rights and how Thinkroom processes personal data, please refer to Thinkroom’s website privacy policy found HERE.

Thinkroom shall take appropriate and commercially reasonable technical and organisational measures to protect against unauthorised or unlawful processing of any personal data provided by you, or any accidental loss, destruction or damage of such data.

17. TERMINATION

Thinkroom will continue to hold your data following completion of the respective module for a further year beyond the last day of access. After this point, the information stored on your LMS account (including course information, goals and progress) will be permanently deleted.

Thinkroom may terminate the EULA at any time if we reasonably suspect that you have breached any term of this EULA. You may terminate the EULA on reasonable written notice to Thinkroom.

The Term of Use remain in place for as long as you access the site or until terminated by us.

18. WAIVER

A waiver of any right under this Terms of Use or EULA is only effective if it is in writing.

19. SEVERANCE

If any provision (or part of a provision) of this Terms of Use or EULA is found to be invalid, unenforceable or illegal, the other provisions (or parts of any provisions) shall remain in force.

20. ENTIRE AGREEMENT

The Terms of Use and the EULA constitutes the whole agreement between the parties and supersedes any previous agreement between them.

21. ASSIGNMENT

You shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Terms of Use or EULA, without the prior written consent of Thinkroom.

22. THIRD PARTY RIGHTS

This Terms of Use and EULA does not confer any rights on any person or party (other than the parties to this EULA and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

23. GOVERNING LAW AND JURISDICTION

This Terms of Use and EULA shall be governed by, and construed in accordance with, the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English Courts.