Last updated: December 2023
In this License Agreement, we have given specific meanings to the following words:
“Authorized Personnel” means the Subscriber’s directors, officers, employees, and authorized personnel;
“Course Content” means any e-learning materials, courses and other content, including text, imagery, videos or other files entered, uploaded or created by you or your authors while using the Software.
“Deliverables” means any specified bespoke work or materials to be created by Elucidat as part of its provision of Professional Services as described in an Order Form or Statement of Work, but excluding Software;
“Elucidat” “us” ”we” and “our” refers to the relevant Elucidat entity described in clause 17.8 below, or as otherwise detailed in the relevant Order Form;
“Elucidat Account” means a current Subscription account for the Software created pursuant to this License Agreement;
"Elucidat AI" means our AI-powered authoring features for online course creation which the Subscriber may activate as an additional feature of the Software.
“Elucidat Security Policy” shall refer to the Elucidat security policy as set out at https://support.elucidat.com/hc/en-us/articles/4822811178641 and as updated and amended from time to time at Elucidat's sole discretion;
“Force Majeure Event” means circumstance not within a party’s reasonable control including, without limitation acts of God, flood, storm, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, strike, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, any law or any action taken by a government or public authority, including without limitation imposing restrictions on travel and health warnings, and collapse of buildings, breakdown of plant or machinery, fire, explosion or accident, internet service provider (or other third-party application or service) failure or delay or denial of service attack;
“Free Trial” means where access to the Software has been granted to the Subscriber by Elucidat on the basis of beta access, a free trial or pilot period;
“License Agreement” means these terms and conditions may be amended or varied from time to time as explained herein;
“Order Form” means the order form, setting out the details of the Software and/or Professional Services being contracted for by you pursuant to this License Agreement;
“Professional Services” means, where applicable, any additional or ancillary services set out in an Order Form or Statement of Work to be provided by Elucidat to you in connection with the Software, subject to this License Agreement, such as implementation, training, custom design or consulting services;
“Site” means www.elucidat.com or such other URL as updated by Elucidat from time to time;
“Software” means the relevant Elucidat software-as-a-service and the application programming interfaces ("API") which the Subscriber has purchased a subscription to or in respect of which the Subscriber subscribes to a Free Trial, which is accessed and used via our password-protected area on our Site;
“Special Terms” means any terms agreed by the parties to override the standard terms of this License Agreement pursuant to clause 17.3 below;
“Statement of Work” means the “Statement of Work” incorporated into the Order Form setting out a description of any Professional Services to be provided by us to you pursuant to this License Agreement;
“Subscriber” “you” and “your” means the individual or legal entity which is named as our subscriber when subscribing to an Elucidat Account and who is contracting with Elucidat under this License Agreement, which shall, where the context permits, includes the Subscriber’s Authorized Personnel;
“Subscription” means the paid for subscription for the Software for the period specified in the relevant Order Form during which your Elucidat Account is valid under this License Agreement;
"Support Services" means the support services as detailed in clause 8;
"Support Services Terms" shall mean the support service terms as notified by Elucidat to the Subscriber (using any reasonable means), as updated and amended from time to time; and
"Trial Period" means the duration of the Free Trial set out in the Order Form or as otherwise notified to the Subscriber by Elucidat using any reasonable means, and in any other case, the period of two (2) weeks commencing on the commencement of the Free Trial.
2 This License Agreement
2.1 Acceptance of Terms: The Software and/or Professional Services are provided by Elucidat to the Subscriber subject to the terms of this License Agreement. By signing this License Agreement the parties are agreeing to be legally bound by this License Agreement and are committing fully and unconditionally to the obligations hereunder. This License Agreement shall continue for as long as there is an Order Form in effect, unless terminated earlier pursuant to any of the License Agreement’s express provisions.
2.2 Additional items: In addition to the terms set out herein, you will also be subject to any guidelines and other rules applicable to use of the Site and Software, which are posted on our Site from time to time. All such guidelines and rules are hereby incorporated by reference into this License Agreement.
2.3 Important notice: The nature of Elucidat’s database-driven technology means that you will only be able to create and edit your Course Content and publish it via the Software for the duration of your Subscription, Free Trial, or both. However, you may at any time export your Course Content out of our systems for independent publication.
3 Free Trial
The provisions of this clause 3 shall apply where the Order Form refers to you subscribing to a Free Trial only. In the event of any conflict or inconsistency between the other provisions of this License Agreement as they relate to the Free Trial and the provisions of this clause 3, the provisions of this clause 3 shall prevail to the extent of the conflict or inconsistency.
3.1 Duration: During the Trial Period, Elucidat will make the Software available to you on a trial basis until the earlier of: (a) expiry of the Trial Period, (b) the date on which any Subscription commences, and (c) termination of the Trial Period by us at any time in our sole discretion by giving notice to you in writing.
3.2 Course Content during the Free Trial: Any Course Content created or uploaded during the Trial Period will become inaccessible to you upon termination or expiry of the Free Trial and we shall be entitled to delete it, unless you purchase a Subscription before the end of the Trial Period. Nothing in the preceding sentence shall restrict or prevent you from maintaining backups of, or removing, your Course Content during the term of the Trial Period.
3.3 Amendments to this License Agreement: The following provisions of this License Agreement shall not apply during the Trial Period:
3.3.1 clause 8 (Professional Services and Support Services);
3.3.2 clause 13.5 (Deletion of Course Content);
3.3.3 clause 14.2 (Third party intellectual property rights);
3.3.4 clause 16.3 (Software Availability); and
3.3.5 clause 16.6.(b) (Liability Cap).
3.4 Disclaimer: During the Trial Period, the Software is made available to you "as is", and any use by you of the Software during the Trial Period will be at the Subscriber's sole risk. Elucidat makes no warranties relating to the Software throughout the Trial Period and expressly disclaims all warranties, express or implied, including without limitation those of merchantability, fitness for a particular purpose, or that the Subscriber's use of the Software during the Trial Period will be uninterrupted, timely, secure or free from error. The foregoing provisions of this clause 3.4 shall be enforceable to the maximum extent permitted by applicable law.
3.5 Limitation of Liability: Subject to the retained provisions of clause 16.5 under this clause 3, Elucidat's total liability to you for any loss or damage relating to the Trial Period shall not exceed an amount equal to one thousand pounds (£1,000).
4 Elucidat AI
Some of our functionality is powered by AI software, which is made clear on our Site. If you choose to activate Elucidat AI when using the Software, our Elucidat AI Terms at Annex 2 shall apply.
5 The Software
5.1 The Software is subscription-based online e-learning authoring software. The Software provides our Subscribers with the ability to simply and quickly author and publish online e-learning Course Content.
5.2 The Software is continually under review and its features and functionality may change throughout your Subscription at our sole discretion, provided that the Software will perform substantially in accordance with the functions as specified on our Site when under use by Authorized Personnel in a manner that conforms to the terms and conditions of this Agreement and the functionality specified on our Site. In the event that a change under this clause has a material adverse effect to the functionality of the Software, we will provide you with 60 days' written notice before such change takes effect.
5.3 The Software may facilitate the creation of SCORM-compliant files for integration with third-party learning management systems (LMSs). We do not warrant that third-party LMSs will all be able to integrate with SCORM files generated by the Software.
6 Creating an Elucidat Account
6.1 In order to use the Software, you must apply via our Site for an Elucidat Account.
6.2 If you are applying on behalf of your business, please ensure you name the correct entity (sole trader, LLP, limited company or PLC, etc.) as the “Subscriber,” as the contract will be formed between the named Subscriber and Elucidat. You must only apply for an Elucidat Account in the name of a Subscriber with the express authority of that person or entity.
6.3 We reserve the right, at our discretion and without cause, prior to entering a License Agreement, not to accept an application to create an Elucidat Account or additional Elucidat Accounts for existing Subscribers. No charge will be made by us for declined applications.
7 Accessing and using your Elucidat Account
7.1 Once your Elucidat Account has been created, we will send you an account activation email so that you can log in with your username (your email address) and create your new password.
7.2 Unless permitted below, the Subscriber may not permit any third-party to access or use their Elucidat Account.
7.3 Additional users within the Subscriber organization can obtain their own usernames and passwords if the initial user accesses the Software and uses the “Editor” function on the “Account” page (some subscription packages may have limitations on the number of additional users which can be added – please check our Site for details).
7.4 You may be able to upgrade your Elucidat Account by applying to upgrade and paying any further applicable fees.
8 Professional Services and Support Services
8.1 Where agreed in an Order Form or Statement of Work and in consideration for the relevant fees paid by the Subscriber, Elucidat shall provide the Professional Services and any agreed Deliverables with reasonable skill and care.
8.2 Unless otherwise agreed, Professional Services shall be provided from Elucidat’s own premises. Where provided at other locations, additional expenses may be incurred by prior agreement.
8.3 Unless stated otherwise in the relevant Order Form or Statement of Work, you shall be entitled to use the Deliverables on a non-exclusive, perpetual, Worldwide, royalty-free basis for your own business purposes. All other rights in Deliverables shall be reserved to Elucidat.
8.4 Subject to the payment by the Subscriber of the relevant fees (as applicable), Elucidat shall provide the support services in accordance with any service levels as defined in the Support Services Terms then in effect (the "Support Services").
8.5 Elucidat may amend the Support Services Terms from time to time in its sole discretion. Provided that any modification which materially degrades the level of Support Service or other benefits provided to Subscriber under the version of the Support Services Terms in place as of the date of this License Agreement shall be subject to the change mechanism detailed in clause 17.3.
8.6 If the Software is subscribed to through one of Elucidat’s authorized reseller partners, the relevant reseller partner will provide details of the Support Services. In such a situation, the Support Services may be performed by the reseller partner.
9 Software license
9.1 Your rights to use the Software: From our confirmation of the creation of an Elucidat Account, we grant the Subscriber and its Authorized Personnel a non-transferable, non-sublicensable, non-exclusive license to access and use the Software in accordance with this License Agreement for the duration of the Subscription.
9.2 Conditions: The above licenses are strictly subject to compliance with this License Agreement by the Subscriber and its Authorized Personnel. Access to the Software may be suspended at any time for reasonable cause.
10 Your obligations
10.1 You must:
10.1.1 Only use the Software for the Subscriber’s own business purposes;
10.1.3 Only use the Software for legal purposes in accordance with honest trade practices and applicable law;
10.1.4 Use reasonable endeavors to maintain the security of all log-in details for the Elucidat Account;
10.1.5 Only attempt to access the Software using authorized log-in details of the Subscriber;
10.1.6 Comply with our reasonable requests and directions as to your use of the Software notified to you from time to time;
10.1.7 Take full responsibility for the compliance with this License Agreement by anyone accessing the Software using your Elucidat Account, including your Authorized Personnel.
10.2 You must not:
10.2.1 Do anything which could reasonably be expected to damage, disable, overburden or materially impair the Software or our Site and systems generally, or which is likely to interfere with any other party’s use or enjoyment of the Software;
10.2.2 Use the Software to infringe upon any third-party intellectual property rights;
10.2.3 Infringe, challenge or dispute our ownership of the intellectual property rights in the Software;
10.2.4 Attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties); or
10.2.5 Seek to license, sell, resell, transfer, rent, lease, distribute, exploit or otherwise make the Software available to any third-party other than your Authorized Personnel.
10.3 You represent and warrant that you have the full right, power and authority to: (i) enter into this License Agreement; (ii) perform your obligations under this License Agreement; and (iii) grant the rights, licenses, consents, and authorisations you grant or are required to grant under this License Agreement. You further represent and warrant that you are not subject to any sanctions or trade restrictions and will notify Elucidat, without delay, in the event that you become subject to any sanctions or trade restrictions.
11.1 The Subscriber is ultimately responsible for administering and safeguarding any log-in details and passwords created to control access to its Elucidat Account. Please keep any such details secure. Please let us know immediately if you think that there has been any unauthorized attempt to access the Software without permission.
11.2 Our prevailing Elucidat Security Policy applies. We may make reasonable adjustments to the Elucidat Security Policy at our sole discretion from time to time, which shall take effect when published on the Site at https://support.elucidat.com/hc/en-us/articles/4822811178641.
12 Paying for The Software
12.1 Subscription fees: In consideration for your rights under this License Agreement for use of the Software, you will pay to us all applicable Subscription fees, payable annually in advance. The applicable pricing is as advised and agreed with you at the start of your Subscription. All Subscription fees are non-refundable and non-cancellable.
12.2 Professional Service and Support Services fees: In consideration for your rights under this License Agreement in respect of the Professional Services and/or Support Services (as applicable), you will pay to us all applicable Professional Services and/or Support Services, payable in advance. The applicable pricing is as advised and agreed with you at the start of your Subscription.
12.3 How payments are made: We will invoice you for the fees applicable to your Subscription, payment being required before your Elucidat Account will be activated or before your current Subscription period expires.
12.4 Automatic renewal: Elucidat may change pricing and pricing structures from time to time. Such changes shall automatically take effect for you from your next billing cycle (i.e., you will only be subject to price increases after the period that you have already paid for in advance), unless otherwise agreed in writing. Your Subscription will automatically renew unless you or we cancel your Subscription according to the cancellation procedure below (Closing an Elucidat Account). By default, an annual increase of the prevailing UK CPI (Consumer Price Index) + 3% shall be applied to your fees on renewal. Where we notify you of an updated License Agreement prior to renewal, the updated License Agreement terms shall apply to the renewed Subscription.
12.5 Currency: You shall pay the fees in the currency as detailed in the relevant Order Form or as advertised to you on the Site at the point of purchasing the Subscription or relevant Professional Services.
12.6 VAT and sales tax: All fees payable by you pursuant to this License Agreement are exclusive of VAT, sales tax or other applicable taxes which are also payable as applicable.
12.7 Non-payment: We shall be under no obligation to provide the Software or the Professional Services if the relevant fee (plus applicable taxes) is not paid to us on time. The Subscriber must ensure that we have complete and accurate billing and contact information throughout the Subscription period, including the full name of the Subscriber, its business address, and a billing contact email address. If fees become overdue, because for example invoices are unpaid or the Subscriber’s credit card has expired, we reserve the right to suspend your access to the Software or supply of the Professional Services until the balance is paid and/or we may close your Elucidat Account permanently without notice, without prejudice to our wider remedies at law.
13 Course Content, Personal Data and Confidentiality
13.1 Rights in your Course Content: You have sole responsibility for the accuracy, reliability and use of your Course Content. You retain ownership and/or control of any copyright, trademarks, database rights and any other intellectual property rights in your Course Content. Intellectual property ownership in your Course Content will not be transferred to us.
13.2 Our use of your Course Content: We will only use your Course Content to the extent necessary to provide the Software (and any support services thereto) or Professional Services, except that we reserve the right to disclose your Course Content to law enforcement and/or regulatory officials in the investigation and/or determination of alleged unlawful activities and legal disputes. The Software will enable you to create, edit, store, access, publish and delete your Course Content for the duration of your Subscription.
13.3 Your responsibilities regarding Course Content: You warrant that you have the rights to use your Course Content, and any personal data contained within it, online via the Software. You take full responsibility for your Course Content, and indemnify Elucidat against any claims relating to breach of third-party rights caused by such use of your Course Content, breach of any law or regulation or other legal rights as a result of the nature or use of your Course Content, or any other associated claim. Elucidat reserves the right to remove your Course Content from our servers in the event of the above claims, threatened, alleged or issued, or for any other reasonable cause.
13.5 Deletion of your Course Content and Authorized Personnel data: We will retain any Course Content that you leave in your Elucidat Account as of the expiry or termination of your Elucidat Account for the period of one (1) month after which we shall be entitled to delete it from our systems and backups. Retention periods for personal data relating to your Authorized Personnel (learner data and author data) shall be as detailed in the Data Processor Terms.
13.6 If you require assistance with exporting your Course Content, any applicable services shall be chargeable. Where required by law, Elucidat shall certify to the Subscriber that it has deleted the Course Content, subject to the backup provisions detailed below.
13.7 Backups: All Elucidat data (including your Course Content stored via the Site) is backed up several times a day with encrypted copies of the backup data provided to multiple secure locations. Backed up data is stored for 14 days after initial backup date. You agree not to hold Elucidat liable and we accept no responsibility in respect of the loss or corruption of any Course Content. You are therefore strongly advised to regularly export and backup copies of your Course Content.
13.8 Confidentiality: Unless either we or you have the prior written consent of the other or unless required to do so by law, each party will preserve the confidentiality of all confidential information of the other obtained in connection with this License Agreement. Neither we nor you will, without the prior written consent of the other, disclose or make any confidential information available to any person, or use the same for its own benefit, other than as contemplated by this License Agreement. Each party's obligations under this clause will survive for a period of two (2) years following expiry or termination of your Subscription, but shall not apply to any information which:
13.8.1 is or becomes public knowledge other than by a breach of this clause;
13.8.2 is received from a third-party who lawfully acquired it and who is under no obligation restricting its disclosure;
13.8.3 is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
13.8.4 is independently developed without access to the confidential information.
13.9 Usage data: We may track and analyze the usage of the Software for purposes of security and helping us improve both the Software and the user experience. We may share anonymous usage data with our service providers for these purposes. We may also share such anonymous usage data on an aggregate basis in the normal course of operating our business, including sharing such information publicly to show trends about the general use of our Software.
14 Elucidat Intellectual Property
14.1 Our intellectual property: Except as expressly stated in this License Agreement, Elucidat alone (and its licensors, where applicable) will own and retain all intellectual property rights relating to the Software, Site, Professional Services, Deliverables or any suggestions, ideas, enhancement requests, feedback, recommendations or other information related thereto provided to Elucidat by you or any third party, which are hereby assigned to Elucidat. Nothing in this License Agreement shall transfer any ownership rights to the Subscriber or any third-party, unless expressly agreed in writing.
14.2 Third party intellectual property rights:
14.2.1 Subject to your compliance with clause 14.2.2, Elucidat shall indemnify you in respect of any losses finally awarded by a court of competent jurisdiction which arise from a claim by a third party (a "Third Party Claim") that use of the Software in accordance with this License Agreement infringes the intellectual property rights of the third party, except where and to the extent the claim is due to the fraud, negligence or breach of this License Agreement by you.
14.2.2 Where you claim against Elucidat under 14.2.1, your rights are subject to and conditional on satisfying the following:
a) as soon as reasonably practicable giving Elucidat written notice of the Third Party Claim;
b) not admitting liability or making any offer, promise, compromise, settlement or communication with the third party in respect of the Third Party Claim;
c) providing Elucidat or its insurers all reasonable information in connection with the defence of the Third Party Claim; and
d) you having complied with this License Agreement.
14.2.3 In the event of any actual or threatened claim relating to clause 14.2.1, or if we reasonably believe the Software may be infringing, we shall (at our sole expense): (i) procure for you the right to continue using the Software in the manner contemplated by this License Agreement; (ii) replace or modify the Software so that they become non-infringing; or (iii) if neither (i) nor (ii) are available after the use of commercially reasonable efforts, terminate this License Agreement immediately by providing written notice to you. In the event of termination by us pursuant to this clause 14.2, we shall refund to you any fees prepaid in respect of the unexpired term of the License Agreement.
14.2.4 In the event of claim that the Software infringes the intellectual property rights of a third party, Elucidat shall not in any circumstances have any liability to the extent the alleged infringement is based on: (i) modification of the Software by anyone other than us or a third party acting on our behalf; (ii) your or any Authorized Personnel's use of the Software in breach of this License Agreement; (iii) your or any Authorized Personnel’s use of the Software after notice of the alleged or actual infringement from us or any appropriate authority; (iv) use or combination of the Software with any other software or hardware, in circumstances where, but for such combination, no infringement would have occurred; or (v) if the alleged infringement arises as a result of, or in connection with, Elucidat following the instructions of Subscriber in respect of creating the Deliverables.
14.3 Third-party features: All copyright, database rights, trademarks and other intellectual property rights in any external data sources or embedded third-party services used in the Software are the intellectual property of the relevant third-party provider.
14.4 Marketing: Unless otherwise agreed between us, you hereby agree that we shall be entitled to use your logo on our Site to publicize that you are a Subscriber to the Software, provided that such publicity does not imply any wider trading association or relationship between us. We shall not use your logo for any other purpose, without your prior consent.
15 Termination and Closing an Elucidat Account
15.1 Cancellation by you: You may close your Elucidat Account at any time by contacting our Customer Success Team in writing at least thirty (30) days before your current Subscription is due to auto-renew. Once you have given written notice, no refund will be made of any Subscription fees already billed and paid and any outstanding fees on the date of cancellation, including those relating to the unexpired term of the Subscription, shall become immediately due and payable. If you cancel your Elucidat Account, the Software and Course Content will remain accessible by you until the current Subscription period that you have already paid for expires, after which your Elucidat Account will be locked and your Course Content shall no longer be accessible via the Software.
15.2 Suspension and closure by us in the event of a problem: If you, or any other user of your Elucidat Account, fail to abide by this License Agreement or if the Subscription fees are not paid on time, we reserve the right to suspend your access to the Software and/or permanently cancel your Elucidat Account. If we withdraw access to the Software because this License Agreement has been breached, no refund will be payable by us.
15.3 Closure by us for conduct affecting our reputation: In addition to our other rights under this License Agreement, we also reserve the right to close any Elucidat Account (including during any ‘Free Trial’) by giving written notice with immediate effect if you become involved in or become associated with (whether directly or indirectly) any situation or activity which reflects unfavorably on the reputation of Elucidat, our brands, Software or Professional Services.
15.4 Termination for breach: Either party may terminate this License Agreement or an Order Form (as applicable), effective on written notice to the other party, if the other party materially breaches this License Agreement or the affected Order Form, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach containing details of the breach and requiring the breach to be remedied. Termination of an Order Form shall not result in the automatic termination of any other Order Forms in existence.
15.5 Effect of Expiration or Termination: Upon any expiration or termination of this License Agreement or relevant Order Form, as applicable, except as expressly otherwise provided in this License Agreement:
15.5.1 all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
15.5.2 you shall cease all use of the Software and, where applicable, the Professional Services;
15.5.3 notwithstanding anything to the contrary in this License Agreement, with respect to any information and materials of the other party then in its possession or control: (i) the receiving party may retain the disclosing party’s confidential information, in its then current state and solely to the extent and for so long as required by applicable law or regulation or for audit and compliance purposes; (ii) we may also retain Course Content in backup and disaster recovery systems until such Course Content is deleted or otherwise remediated in the ordinary course of business; and (iii) all information and materials described in this clause 15.5.3 will remain subject to all confidentiality, security and other applicable requirements of this License Agreement;
15.5.4 if we properly terminate this License Agreement or relevant Order Form, all Subscription Fees that would have become payable had this License Agreement or relevant Order Form (as applicable) remained in effect until expiration of the applicable Subscription period will become immediately due and payable, and you shall pay such Subscription Fees, together with previously-accrued but not yet paid Subscription Fees, on receipt of our invoice relating to such fees. Where you properly terminate an Order Form under clause 15.4, we will refund to you on a pro rata basis all prepaid Subscription Fees in respect of the unexpired term of the relevant Order Form;
15.5.5 each provision of this License Agreement that, by its nature, should survive termination or expiration, will survive any termination or expiration of this License Agreement.
16.1 This section restricts the extent to which we are liable for any losses which may be suffered in connection with your use of the Software or receipt of the Professional Services. It also requires the Subscriber to compensate us for any loss we suffer as a result of your failure to comply with this License Agreement.
16.2 Course Content disclaimer: Elucidat does not control the Course Content that Subscribers create or publish via the Software and, as such, does not guarantee the accuracy, integrity or quality of such Course Content or derivative works. You understand that by using the Software, you may be exposed to third-party content that is offensive, indecent or objectionable.
16.3 Software Availability: Unless agreed otherwise in the relevant Support Services Terms, we agree to use commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week, except for:
16.3.1 planned downtime or maintenance (which we shall try to keep to a minimum and give at least 8 hours electronic notice, and which we shall schedule to the extent practicable during Saturday and Sunday British Standard Time), and
16.3.2 any unavailability caused by circumstances beyond our reasonable control, including, for example, a Force Majeure Event.
16.4 No guarantees: We make no guarantee that the Software will be suitable for your intended use, neither do we guarantee that it will be error-free, timely, reliable, entirely secure, virus-free or available, especially since we are dependent on the reliability of the Internet and your use of your own computer to access the Software.
16.5 Liability following the Trial Period: Any claim for errors in or insufficiencies of the Software arising after expiry or termination of the Trial Period shall be dealt with in accordance with the provisions of this License Agreement other than clause 3, except that where and to the extent the claim relates to the Trial Period, the provisions of clause 3 shall apply to the claim or part thereof relating to the Trial Period.
16.6 Exclusion of liability: Neither party excludes or restrict their liability (if any) for personal injury or death resulting from our negligence, for fraud or for any matter which it would be illegal to exclude or to attempt to restrict liability for. Except in relation to the foregoing, we exclude and limit all other liability and responsibility for any amount or kind of loss or damage arising in connection with this License Agreement (even if we have been advised of their possibility) on the following basis:
a) EXCLUDED TYPES OF LOSS: UNDER NO CIRCUMSTANCES SHALL ELUCIDAT, NOR ITS AFFILIATES, STAFF, AGENTS OR SUPPLIERS, BE LIABLE FOR: LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL, ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR OTHER ECONOMIC LOSS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THIS LICENSE AGREEMENT; AND
b) LIABILITY CAP: SUBJECT IN EACH CASE TO CLAUSE 16.5 ABOVE OUR TOTAL LIABILITY FOR: (I) LIABILITY ARISING PURSUANT TO THE INDEMNITY DETAILED IN CLAUSE 14.2.1 SHALL NOT EXCEED AN AMOUNT EQUAL TO ONE HUNDRED AND FIFTY PER CENT (150%) OF THE FEES PAID BY THE RELEVANT SUBSCRIBER IN RESPECT OF THE RELEVANT SOFTWARE OR PROFESSIONAL SERVICES (AS APPLICABLE) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM; AND (II) FOR ANY OTHER LOSS OR DAMAGE RELATING TO THIS LICENSE AGREEMENT TOGETHER WITH ALL ORDER FORMS SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY THE RELEVANT SUBSCRIBER IN RESPECT OF THE RELEVANT SOFTWARE OR PROFESSIONAL SERVICES (AS APPLICABLE) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
16.7 Liability to us: The Subscriber shall be solely responsible for any Course Content published via or in connection with its Elucidat Account. The Subscriber shall be held liable for any reasonable costs and expenses incurred by Elucidat as a result of breach of this License Agreement by you or anyone accessing your Elucidat Account with your permission.
17 General Legal Matters
17.2 Counterparts: This License Agreement and any Order Form may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
17.3 Changes to this License Agreement: We reserve the right to change this License Agreement from time to time. Changes to this License Agreement will be notified to you prior to renewal and shall come into effect automatically for any subsequent Subscription renewal. Any renewal of your Subscription will be deemed to constitute acceptance by the Subscriber of all the new terms. In addition, any terms agreed in writing by us as “Special Terms” in any Order Form or Statement of Work shall override any conflicting terms in this License Agreement to the extent of any conflict. This License Agreement may not otherwise be changed without our written consent.
17.4 Transfer of rights and obligations: We shall be entitled to transfer our rights and/or obligations under this License Agreement together with any Order Forms to another party at our sole discretion. The Subscriber may not transfer any of your rights or obligations under this License Agreement or an Order Form without our written consent.
17.5 Waiver and severability: If either you or we ignore any breach of this License Agreement, it shall not mean that any further breach cannot be enforced. Similarly, if any part of this License Agreement is held to be invalid or unenforceable for some reason, then it will be replaced with a provision which, as far as possible, achieves the same purpose as the original, and the remainder of this License Agreement will still be binding.
17.6 Third-party rights: No person other than Elucidat and the Subscriber shall have any rights to enforce this License Agreement. No third-party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third-party which exists, or is available, apart from that Act.
17.7 Force Majeure: We shall not be responsible for failure to fulfill our obligations hereunder due to a Force Majeure Event including those that directly or indirectly delays or prevents our timely performance hereunder. Dates or times by which we are required to render performance under this License Agreement shall be postponed automatically to the extent that we are delayed or prevented from meeting them by such causes. If the Force Majeure Event prevents, hinders or delays our performance of our obligations for a continuous period of more than 30 days, we may terminate this License Agreement by giving you 30 days’ written notice.
17.8 Elucidat entity, applicable law and jurisdiction: Unless stated otherwise in the relevant Order Form, the Elucidat entity entering into this License Agreement, the law that will apply in any dispute or claim arising out of or in connection with this License Agreement, and the courts that have exclusive jurisdiction over any such dispute or claim, shall be as detailed in the following table. You are responsible for compliance with any applicable laws of the country from which you use or otherwise access the Software or receive the Professional Services.
The Elucidat entity entering into this License Agreement is: Elucidat Ltd with company number 08526821 and registered office address at 2nd Floor Aquis House, 49-51 Belgrave Street, Reading, RG1 1PL, United Kingdom
Governing law is: The laws of England and Wales
Courts with exclusive jurisdiction are: The courts of England
ANNEX 2: ELUCIDAT AI TERMS
Elucidat AI Terms
IT IS HEREBY AGREED:
Where the Subscriber has purchased a subscription to Elucidat pursuant to an Order Form and activates Elucidat AI features, these Elucidat AI Terms shall form part of the License Agreement between Elucidat and the Subscriber. These features are completely optional and can be toggled on and off by Elucidat at the request of your Account Administrator. In the event of any conflict or inconsistency between the other provisions of this License Agreement as they relate to the use of Elucidat AI, the provisions of this Annex 2 shall prevail.
1 Elucidat AI: You may provide input to Elucidat AI ("Input(s)"), and receive output generated and returned by Elucidat AI based on the Input ("Output(s)"). As between the parties and to the extent permitted by applicable law, you own all Input and Output. Elucidat and its licensors use Input and Output to provide and maintain Elucidat AI, comply with applicable law, and enforce our policies. You are responsible for the Inputs, including for ensuring that it does not violate any applicable law or this License Agreement.
2 Similar Outputs. Course Content includes content and Outputs generated through use of Elucidat AI. You acknowledge that Outputs provided to you may be similar or identical to Outputs independently provided by Elucidat to others.
3 Accuracy and Verification of Output: Given the probabilistic nature of AI, use of Elucidat AI may result in incorrect Outputs. You should review and verify all Output (including the accuracy of any Output) as appropriate for your use case, including by using human review of the Output.
4 Restrictions: You must not:
a) use Elucidat AI or any Output to develop, train or improve any artificial intelligence or machine learning models (separate from authorized use of the Software under this License Agreement);
b) use the Output to develop models that compete with Elucidat AI;
c) except as permitted through the API, use any automated or programmatic method to extract data or an Output, including scraping, web harvesting, or web data extraction;
d) represent any Output as being approved or vetted by Elucidat;
e) represent any Output as being an original work or a wholly human-generated work;
f) use Elucidat AI for automated decision-making that has legal or similarly significant effects on individuals, unless it does so with adequate human review and in compliance with applicable law;
g) use Elucidat AI for purposes or with effects that are discriminatory, harassing, harmful or unethical; and
h) send us any personal information of children under 13 or the applicable age of digital consent.
5 Support Services: For the avoidance of doubt, you may still obtain the same Support Services in accordance with clause 8, but Support Services shall not be given in relation to Output; Support Services for Elucidat AI shall only be provided in relation to the functionality of the Software. To the extent that we do provide any suggestions around the type of prompts you may use to create Outputs, such suggestions are of a non-advisory nature and you take full responsibility for the Input you feed to Elucidat AI and any Output you obtain.
6 Amendments to this License Agreement: The following provisions of this License Agreement shall not apply to Elucidat AI:
a) clause 14.2.1 (Third party intellectual property rights);
b) clause 16.3 (Software Availability); and
c) clause 16.6.(b) (Liability Cap).
7 Disclaimer: Elucidat AI is made available to you "as is", and any use by you of Elucidat AI will be at the Subscriber's sole risk. Elucidat makes no warranties relating to Elucidat AI and expressly disclaims all warranties, express or implied, including without limitation those of merchantability, fitness for a particular purpose, satisfactory quality, non-infringement or that the Subscriber's use of Elucidat AI will be uninterrupted, timely, secure or free from error. The foregoing provisions of this clause shall be enforceable to the maximum extent permitted by applicable law.
8 Third party intellectual property rights: Subject to your compliance with clause 14.2.2 and the retained provisions of clause 14.2.3 and clause 14.2.4, Elucidat shall indemnify you in respect of any losses finally awarded by a court of competent jurisdiction which arise from a claim by a third party (a "Third Party Claim") that use of Elucidat AI in accordance with this License Agreement infringes the intellectual property rights of the third party, except where:
a) you knew or should have known the Output was infringing or likely to infringe;
b) you disabled, ignored, or did not use any relevant citation, filtering or safety features or restrictions provided by Elucidat AI;
c) Output was modified, transformed, or used in combination with products or services not provided by or on behalf of Elucidat AI;
d) you did not have the right to use the Input or fine-tuning files to generate the allegedly infringing Output;
e) the claim alleges violation of trademark or related rights based on your use of Output in trade or commerce; or
f) the allegedly infringing Output is from content from a third party offering.
9 Limitation of Liability: Subject to the retained provisions of clause 16.5 under this Annex 2, Elucidat's total liability to you for any loss or damage relating to Elucidat AI shall not exceed an amount equal to one thousand pounds (£1,000).