Attensi's simulation-based platform, portal, software, technical interfaces and related technology (the “Attensi Platform”) is provided to Customer for enabling internal business training by its employees. The Attensi Platform is the exclusive property of Attensi and may not be used without the explicit consent of Attensi. “Software” means all the software programs, any associated user interfaces and related technology that Attensi makes available in the Attensi Platform. The software will be published by Attensi or a wholly owned subsidiary of Attensi.
Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
“Anti-corruption Laws” shall mean the United States Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act 2010, the Norwegian General Civil Penal Code and all other applicable laws that prohibit tax evasion, money laundering or otherwise dealing in the proceeds of crime or the bribery of, or the providing of unlawful gratuities, facilitation payments, or other benefits to, any government official or any person
“Attensi IP” means all software code (in any form), algorithms, application programming interfaces (APIs), apparatus, concepts, information, data, databases, data structures and data collections, data analytics, visualizations, graphical assets, 3D models, animations, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marks, methods, models, procedures, processes, schematics, subroutines, techniques, tools, uniform resource identifiers, user interfaces, works of authorship, and other forms of technology or materials.
“Authorised User(s)” means those employees, agents and independent contractors of the Customer or any of its Affiliates who are authorised by the Customer to use the Services and the Documentation. For the purposes of this Agreement, an “Affiliate” of the Customer means any entity directly or indirectly controlling or controlled by the Customer or which is directly or indirectly controlled by the same entity that controls the Customer. The term "control" and the correlative terms "controlling" and "controlled by" shall mean the legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent of the aggregate of all voting equity interests in an entity."
“Customer Content” means (a) information (e.g., unique text, images, audio, and video) that depict Customer’s desired content, (e.g., training schemes and scenarios) that Customer wish to be incorporated into the Attensi Platform and (b) Customer trademarks and logos.
“Development Services” means the work performed by Attensi to adapt the Attensi Platform (e.g., formatting, configuration, embedding, redesign, reprogramming, etc.) to be able to onboard the Customer Content in accordance with the final Specifications.
“Documentation” means the technical materials provided by Attensi (in hard copy or electronic form) describing the use and operation of the Attensi Platform, the Supported Environment and the hosting services
“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
“Trade Control Laws” shall mean all applicable laws concerning the import, export, or re-export of goods, software, or technology, or their direct product, including: (a) applicable customs regulations, Council Regulation (EC) No. 428/2009; (b) any sanction regulations issued by the Council of the European Union; and (c) the regulations and orders issued or administered by the US Department of the Treasury, Office of Foreign Assets Control in relation to export control, anti-boycott, and trade sanctions matters.1.3 Authorisation of Users
Attensi shall provide the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures that are necessary to allow Authorised Users to access the Services (the “Access Protocols”). Each Authorised User will be provided with a unique user ID (each, a “User ID”), to be used exclusively by the Authorised User. Customer is responsible for providing the correct information about each Authorised User (names, email addresses, and contact information) and updating such information.
Customer shall use commercially reasonable efforts to prevent unauthorised access to, or use of, the Attensi Platform, and shall notify Attensi promptly of any such unauthorised use known to Customer.
Attensi will perform preparational work in accordance with the Customer's request and prepare a general description of the capability of the Software together with illustrations of the proposed simulation solution and samples of output, including sample presentation (the “Specification(s)”).
The Specifications describes Attensi's recommended use of the functionality in the Attensi Platform to present the Customer Content and provide Customer with a simulation-based gaming environment.
Customer acknowledges that the design of the simulation and gaming environment, (e.g., visual design, avatars, sequencing) and presentation of the Customer Content (e.g., the formulation and sequencing of task/questions, ranking of results and other output) experience will be subject to creative decisions by Attensi taking due consideration of the capability of the Attensi Platform and the requests from the Customer.
The Customer shall review the Specifications immediately and request reasonable changes. Attensi shall use reasonable efforts to meet the Customer's requests before a final Specification is agreed, which shall form the basis of the Development Services.
If Customer does not approve the final Specifications made by Attensi or if the Parties are not able to agree on changes to Specifications within a reasonable time or the costs estimated by Attensi, each Party shall have the right, upon notice to the other Party, to immediately terminate the ordered Services. Customer shall pay Attensi the hourly charges accrued for all work performed by Attensi up and until termination.
In the event that the Customer wishes to modify or change the final Specifications after Attensi has commenced the Development Services, Attensi shall use its reasonable efforts to implement such changes within the deadlines and costs determined by Attensi.1.5. Hosting.
Attensi shall host the Attensi Platform as part of the Services and shall provide connectivity software, but Attensi is not responsible for providing electronic communications services and/or computer network hardware required by Customer or any Authorised User to access the Services.1.6. Support services.
Attensi will provide Error Corrections and improvements and Updates as set out in Clause 1.8 and Clause 1.9. Other support services are subject to separate agreement.1.7. Error Corrections.
Attensi will use commercially reasonable efforts to correct reproducible failures in the Software that (a) prevent the Software from substantially conforming to the Documentation or (b) prevent Customer's access to the Software (“Error”). Attensi will utilize remote diagnostic procedures whenever possible for Error diagnosis and correct Errors through bug fixes or workarounds intended to correct Errors in the Software ("Error Corrections"). Attensi may not issue corrections for all faults in the Attensi Platform.1.8. Improvements and Updates.
During the term of the Agreement, Attensi may, in its sole discretion, provide Customer with updates, upgrades, enhancements, and any other major improvements that Attensi then generally offers to other users of the Services (each, an “Update”). Customer acknowledges that such Updates may result in changes in the appearance and/or functionality of the Services, the Supported Environment and/or that continued use of the Attensi Platform may require the Customer to update the Customers own system, including new operating systems (e.g., IOS, Android or Windows) or web-browsers.
The Customer is solely responsible to obtain consent from the Authorised Users to process any user specific data (to the extent necessary), including but not limited to storing and transferring the data to Attensi for processing and presenting the Customer Content and other data provided by the Customer and/or the Authorised Users in the Attensi Platform and Software.
Attensi's provision of the Service involve processing of personal data pertaining to the Authorised User. In such case Attensi shall be deemed data "Processor" and Customer shall be deemed "Controller". The Parties shall if relevant, enter into Attensi's standard data processing agreement which satisfies the requirement set out in EU's General Data Protection Regulation (GDPR).
Personal data will be processed within the data region selected in the Agreement.
Customer and the Authorised Users shall be responsible for the security of all passwords and other Access Protocols required in order the access the Services and shall use the Attensi Platform in accordance with the user instructions and health warnings provided by Attensi to limit the risk of injury or other adverse health impacts which may occur due to photosensitivity or other discomforts caused by video images and use of the Attensi Platform and Software.
The Attensi Platform, Documentation, and all other materials provided by Attensi to the Customer and/or the Authorised User, are the exclusive property of Attensi and/or its suppliers (Attensi IP).
Subject to the limited license rights granted in Clause 4.2, Attensi retains all right, title, and interest to the Attensi IP, including the Intellectual Property Rights and Customer acknowledges that it neither owns nor acquires any rights in or to the Attensi IP other than the usage rights expressly granted in Clause 220.127.116.11 Grant of License
Attensi hereby grants to Customer a non-exclusive, non-transferable right (except as expressly provided herein) to (a) access and use, and to permit each Authorised User to access and use the Services during the term of the Agreement solely for Customer’s internal business training purposes and (b) to use and reproduce a reasonable number of copies of the Documentation solely to enable use of the Services.
Customer and Authorised Users shall use the Attensi Platform in accordance with the user instructions, health warnings and guidelines provided by Attensi to, among other things, limit the risk of damage or unauthorised access to the Attensi Platform or injury or other adverse health impacts which may occur due to photosensitivity or other discomforts caused by video images and use of the Attensi Platform.
If the Customer and/or Authorised User experiences symptoms of discomfort upon use of the Attensi Platform, the Authorised User should immediately desist from all use of the Attensi Platform.
Customer and Authorised User shall not, (a) decompile, disassemble, reverse engineer or otherwise attempt to obtain, perceive, use or utilize the source code from which any software component of the Services are compiled or interpreted (other than provided by mandatory law), unless specifically agreed to by Attensi in writing; (b) allow third parties other than Authorised Users to gain access to the Services and/or the Attensi Platform and Software; (c) use the Services and/or the Attensi Platform to (i) send any form of duplicative and unsolicited messages; (ii) harvest, collect, gather or assemble information or data regarding other users without their consent; (iii) transmit through or post unlawful, immoral, libellous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; or (iv) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (d) interfere with or disrupt the integrity of software or data; (e) attempt to gain unauthorised access; or (f) interfere with another user's use.
Customer acknowledges and agrees that the Attensi Platform or other services provided by Attensi will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions.
Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Attensi IP.4.3 Open Source Software
The Parties acknowledge and agree that certain items of software are subject to “open source” or “free software” licenses (“OSS”) and that such OSS is owned by third parties and subject to certain license requirements in the relevant OSS license. The provisions in Clause 4.2 and 6.3 do not apply to OSS.4.4 Customer Content
Customer owns and retains all right, title and interest in and to the Customer Content and all Intellectual Property Rights therein. Attensi acknowledges that it neither owns nor acquires any additional rights in or to the Customer Content other than set forth herein and that Customer only grants to Attensi a non-exclusive, non-transferable right and license to use, display, perform, reproduce, and modify the Customer Content, solely as necessary to provide the Services to Customer and to improve and expand Attensi's database of generic and generally available information, provided such information is first anonymized.
Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. Customer shall notify Attensi about any changes in the Customer Content and/or technical specifications (e.g., Application Programming Interfaces (API)) that impact the use of the Customer Content in the Attensi Platform. If changes in the Customer Content or Customer's systems require changes in the Services delivered by Attensi, the Customer shall cover any reasonable costs incurred by Attensi according to Attensi's current price list.4.5 Copyright Policy
Attensi reserves the right to suspend the access to and use of the Services at any time if any Authorised User materially or repeatedly infringes third party copyright rights, including upon Attensi’s receipt of notification by the copyright owner or the copyright owner’s legal agent.
Without limiting the foregoing, if Customer or Attensi believes that a copyrighted work has been copied and posted via the Services in a way that constitutes copyright infringement, Customer shall provide Attensi with the following information: (a) an electronic or physical signature of the person authorised to act on behalf of the owner of the copyrighted work; (b) an identification and location in connection with the Services of the copyrighted work that Customer claims has been infringed; (c) a written statement by Customer that Customer has a good faith belief that the disputed use is not authorised by the owner, its agent, or the law; (d) the name and contact information, such as telephone number or email address, of Customer; and (e) a statement by Customer that the above information in Customer’s notice is accurate and, under penalty of perjury, that Customer is the copyright owner or authorised to act on the copyright owner’s behalf. Such notice of claims of copyright infringement shall be promptly sent to email@example.com
Customer will pay to Attensi the fees set forth in the Agreement, in advance, and Attensi shall have the right to invoice all such amounts accordingly.
Customer shall pay all invoiced amounts within thirty (30) days after the date of the invoice. In the event that any payment remains unpaid for a period of thirty (30) days from the original due date, Attensi shall be entitled to terminate the Agreement according to clause 8.1 or suspend the Services until the fees are paid in full.
In case of late payment, late payment interest in accordance with the applicable law in the country of the place of business of Attensi shall accrue from, but not including, the due date to the actual payment date. All fees are subject to an annual price increase in accordance with the Consumer Price Index applicable in the relevant jurisdiction in which the Attensi contracting entity is domiciled.5.2 Taxes
The fees are exclusive of all applicable sales, use, value-added and other taxes, duties and fees ("Taxes"), and Customer will be responsible for payment of all such Taxes and any related penalties and interest.5.3 Expenses
Customer shall reimburse Attensi for all costs, including Attensi’s reasonable out-of-pocket (including travel and living) expenses.
The Attensi Platform is provided "as is" and Attensi's responsibility is expressly limited to providing the Attensi Platform substantially in accordance with the Documentation (subject to any Updates). Subject to clause 6.4, any other liability for the Attensi Platform is expressly excluded. The Customer acknowledges that (a) complex software is never wholly free from Errors, and Attensi gives no warranty or representation that the Attensi Platform will be wholly free from Errors; (b) Attensi will not and does not purport to provide any legal, taxation or accountancy advice etc. in relation to the Services; and (c) Attensi has no warranty obligation for problems on the Attensi Platform caused by third party software or hardware, by accidental damage or by other matters beyond Attensi's control.
Attensi represents and warrants that the Attensi Platform and the technology upon which it is based shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) contain any viruses, worms or other malicious computer programming codes intended to damage the Customer's Content, system or data; or (d) otherwise violate the rights of a third party.6.2 Customer Warranty
Customer represents and warrants that any Customer Content hosted by Attensi as part of the Services shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Attensi’s system or data; (e) otherwise violate the rights of a third party; or (f) contain any personally identifiable health information. Attensi is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense.6.3 Indemnification
Customer shall indemnify and hold Attensi harmless from any damages (including, without limitations, reasonable costs and legal fees) arising out of any third party suit, claim or other legal action against Attensi relating to the Customer Content or Attensi's damage or loss suffered as a result of Customer's breach of the provisions in Clause 4.2,4.5, or 6.2.
Attensi shall indemnify and hold Customer harmless from any damages (including, without limitations, reasonable costs and legal fees) arising out of any third party suit, claim or other legal action against Attensi relating to the Attensi Platform or the Software or Customer's damage or loss suffered as a result of Attensi's breach of the provisions in Clause 18.104.22.168 Limitation of Liability
NOTHING IN THE AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
SUBJECT TO THE FIRST PARAGRAPH OF THIS CLAUSE, NEITHER PARTY (OR ITS EMPLOYEES, AGENTS, SUPPLIERS OR CONTRACTORS) IS LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGE OF ANY NATURE, INCLUDING BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION, USE. NEITHER PARTY SHALL HAVE ANY LIABILITY FOR THE SUCCESS OR FAILURE OF ANY EMPLOYEE TRAINING OR ACHIEVING OTHER GOALS BY THE USE OF THE ATTENSI PLATFORM OR THE CUSTOMER CONTENT. A PARTY'S MAXIMUM LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED TEN PERCENT OF THE FEES PAID BY CUSTOMER TO ATTENSI DURING THE PRECEDING TWELVE (12) MONTHS.
NOTHING CONTAINED IN THIS CLAUSE 6.4 SHALL LIMIT THE PROVISIONS IN CLAUSE 6.1 (ATTENSI WARRANTY), CLAUSE 6.2 (CUSTOMER WARRANTY), CLAUSE 6.3 (INDEMNIFICATION) AND CLAUSE 7.3 (CONFIDENTIAL INFORMATION).
Each Party shall use its best endeavours to perform work in compliance with, and to require its subcontractors to comply with, all applicable national and international laws, rules and regulations relating to ethical and responsible standards of behaviour, including, without limitation, those dealing with human rights, labour rules, environmental protection and anti-corruption fight.7.2 Anti-corruption
Each Party acknowledges and undertakes to be committed to eliminating all risk of bribery and corruption in its supply chain and has a strict anti-bribery and corruption policy. Each Party agrees that it will not do any act or thing nor omit to do any act or thing for the benefit of, in the name of or on behalf of the other Party that could be construed as an offence under any applicable Anti-corruption Laws including (but not limited to) the US Foreign Corrupt Practices Act, the UK Bribery Act 2010 or Norwegian General Civil Penal Code as well as all other applicable international, regional, national or local law.
Each Party may terminate the Agreement for cause and with immediate effect if the other Party: (i) is in material breach of any of its obligations hereunder and fails to remedy and cure the default within thirty (30) days following written notice from the other Party, or (ii) commits a material breach of the Agreement which is not capable of remedy, or (iii) is repeatedly in breach of the Agreement, or (iv) violates any Anti-corruption Laws, applicable competition laws, Trade Control Laws, or other applicable law, or (v) is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into either voluntary, or compulsory liquidation or a receiver or administrator is appointed over their assets.
Non-payment is deemed a material breach.
The foregoing does not limit Attensi's right to immediately suspend any Authorised Users in accordance with Clause 4.5 and/or immediately suspend the Services, without liability, in the event any invoiced amounts are not paid when due, in addition to any of its other rights or remedies, until such amounts are paid in full.8.2 Effect of Termination
Upon termination or expiration of the Agreement for any reason (a) all rights and obligations of both Parties, including all licenses granted by Attensi hereunder, shall immediately terminate; (b) each Party shall either delete or return all Confidential Information; and (c) Attensi shall discontinue all use of non-anonymized Customer Content. Clause 6.4 (Limitation of liability), 8.3 (Confidentiality), Clause 8.5 (Law and legal venue), Clause 8.6 (Remedies) will survive expiration or termination of this Agreement. In the event the Customer terminates the Agreement due to Attensi’s breach, Customer shall be entitled to a pro-rata reimbursement of any license fees pre-paid for the remainder of the license term following the effective date of termination. Should Attensi terminate the Agreement due to Customer’s breach, Customer shall not be entitled to any reimbursement of pre-paid license fees. Should Attensi terminate for convenience, Customer shall be entitled to a pro-rata reimbursement of any license fees pre-paid for the remainder of license term following the effective date of termination.8.3 Confidentiality
Attensi and/or the Customer (the “Disclosing Party”) may provide the other Party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, Confidential Information).
The Attensi IP is considered Confidential Information. Neither Party shall use or disclose to any third party any Confidential Information and will protect the Disclosing Party’s Confidential Information in the same manner that it protects its own proprietary information of a similar nature. The Receiving Party will return to the Disclosing Party or destroy or permanently erase all copies of the Confidential Information if so required. Customer acknowledges that certain Customer Content will be made available to the Authorised Users, and Customer shall be responsible for ensuring that such disclosure is permitted.8.4 Changes in Contractual Terms
You will receive notice of any changes that materially affect your use of the Attensi Platform. Your continued use of the Attensi Platform after any updates are effectuated or after receipt of notice of any changes, will constitute acceptance of those updates/changes and you will be bound by the new terms upon your continued use of the Attensi Platform.8.5 Governing Law and Legal Venue
The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable for the use of the Attensi Platform.8.6 Remedies
Except as provided in Clause 1.3,1.5, 6.1, 6.4 and 8.3 the Parties’ rights and remedies are cumulative. Customer acknowledges that the Attensi IP contain valuable trade secrets, that any actual or threatened breach of Clause 4.1 and 4.2 or any other breach with respect to Attensi IP will constitute immediate, irreparable harm to Attensi for which monetary damages would be an inadequate remedy and that Attensi is entitled to immediate injunctive relief.8.7 Force Majeure
Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of the provisions in these Terms of Service if such delay is caused by a labour dispute, shortage of materials, fire, earthquake, flood, storms, epidemics or pandemics, third-party mechanical or other equipment breakdowns, explosions, fiber optic cable cuts, interruption or failure of telecommunication or digital transmission links, Internet failures or delays, cyber-attacks, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.8.8 Announcements, Publicity and Marketing
Parties shall agree upon any press releases or communications with similar effect relating to the Agreement or the performance of any obligations hereunder. Notwithstanding the foregoing, Attensi has the right to publish a notice about any Agreement, as well as use the Customer's name and logo for marketing purposes on their respective websites and social media platforms. The Customer grants Attensi the right to use the Customer’s Intellectual Property Rights pertaining to the Customer’s name, logo, and trademarks for this purpose. On request by Attensi, the Customer also agrees to partake in a testimonial video together with Attensi regarding their experience with the Attensi Platform.