Lumenii Terms & Conditions
1. INTRODUCTION TO LUMENII'S TERMS AND CONDITIONS
1.1. All services rendered by Lumenii (Pty) Ltd (trading as “Lumenii”) to its Clients shall at all times be subject to the provisions of these Terms & Conditions.
1.2. In the event that any of the provisions of these Terms & Conditions are in conflict with the terms of any other written agreement(s) concluded between Lumenii and its Clients, the terms of such other written agreement(s) shall prevail.
1.3. In these Terms & Conditions –
1.3.1. words importing any one gender include the other gender;
1.3.2. words importing the singular include the plural and vice versa; and
1.3.3. unless the context clearly indicates otherwise, the words referred to clause 2 below shall have the meaning assigned to them therein and cognate expressions shall have corresponding meanings.
2. DEFINITIONS AND INTERPRETATION
Administrator means persons authorised by a Client to make Online Assessments available to Applicants, to look into Online Assessments and to remove said Online Assessments (whether in whole or in part) under the supervision of said Client;
Applicant means any natural person authorised by the Administrator(s) of a Client to make use of Online Assessment services provided by Lumenii;
Business Day means any day other than a Saturday, Sunday or public holiday.
Client means any party to whom Lumenii renders services;
Lumenii means Lumenii (Pty) Ltd, a private company with registration number: 2013/089681/07.
Online Assessment means an evaluation, for which data is collected via an online questionnaire, and configurations are provided via an online management interface;
SaaS Service means an internet-based, multi-tenant platform service provided by Lumenii to a Client for the purposes of developing and performing Online Assessment and research functions;
Senior Administrator means any natural person nominated by a Client to take responsibility for any data obtained via the SaaS Service; Test Units means credit units purchased by Clients from Lumenii as a fee for the SaaS Service.
3. PRICING & PAYMENT
3.1. The prices of all services rendered by Lumenii are subject to change on three months’ notice to Client
3.2. All prices quoted by Lumenii in respect of its services are exclusive of VAT, which will be billed to Client in addition to the sum quoted.
3.3. Insofar as Clients are allocated a SaaS portal:
3.3.1. Clients are obliged to pay an annual fee to Lumenii in respect of the SaaS Service. The annual fee and any other applicable fees may be viewed in the support section of each Client’s online portal relating to the SaaS Service.
3.3.2. The prices applicable to Test Units purchased by Clients shall be those appearing on the most recent pricelist published on each Client’s online portal relating to the SaaS Service.
3.3.3. If a Client has purchased insufficient Test Units, resulting in a negative balance of Test Units, that Client shall be obliged to purchase additional Test Units immediately in order to ensure that the balance of Test Units becomes positive.
3.3.4. In the event that a Client has a negative Test Unit balance at the end of any given month, that Client shall be liable to pay a fee to Lumenii which is commensurate with the negative balance, which fee shall be due and payable immediately.
3.4. The fees payable to Lumenii in respect of any training services supplied to Clients shall be those fees appearing on the most recent pricelist published by Lumenii on each Client’s online portal relating to the SaaS Service.
3.5. All invoices rendered by Lumenii to Clients shall be payable within thirty (30) days of the invoice date.
3.6.Lumenii reserves the right, when travelling outside major metropolitan areas in which it maintains offices, to bill Clients for travel and accommodation costs attendant on delivering its services (including but not limited to training and consulting services).
3.7. Any amounts payable to Lumenii shall be paid free of any deduction or set off.
3.8. In the event that a Client fails to pay any amount owed to Lumenii by due date, Lumenii shall have the right to terminate its services until payment is made, and all overdue amounts shall bear interest at the maximum rate allowed by law.
3.9. If Lumenii is required to instruct attorneys to recover any amount owing by a Client, that Client shall be liable to pay Lumenii's legal fees on the scale as between attorney and own client.
4.1. Insofar as Clients are allocated a SaaS portal:
4.1.1. The identities of any Senior Administrators nominated by a Client shall be communicated to Lumenii, in the manner and form which Lumenii may prescribe from time to time.
4.1.2. Lumenii shall regard any Senior Administrator as the Client’s primary contact person for all purposes relating to the services provided by Lumenii.
4.1.3. Only Senior Administrators may notify Lumenii, in the manner and form prescribed by Lumenii from time to time, of new contact persons and Administrators appointed on behalf of the Client.
4.1.4. Senior Administrators are responsible for the deactivation of contact persons and Administrators who are no longer employed by the Client, or who are no longer a authorised to make use of the services provided by Lumenii for any reason whatsoever.
4.1.5. The Client shall at all times supervise and accept full responsibility for the conduct of its Administrators and Senior Administrators.
4.1.6. Senior Administrators shall determine the access rights available to each Administrator for the performance of actions within the SaaS Service; including but not limited to the right of each Administrator to add Applicants, generate reports, or look into and/or edit Client data or Applicant data.
4.1.7. Administrators shall be entitled to access the SaaS Service, to the extent permitted by Senior Administrators, via personal login accounts linked to the Administrators’ email addresses.
5. DATA POLICY
5.1. Notwithstanding anything to the contrary herein, Clients are responsible for the data in the SaaS Service and for the updating or removal of data pertaining to them or their Applicants.
5.2. Whenever Clients remove data from the SaaS Service, they must select whether to:
5.2.1. delete the data, in which event Applicants’ personal information, including test information and related scores, are permanently removed from the SaaS platform; or
5.2.2. anonymise the data, in which event identifying information pertaining to Applicants is removed, but demographic data and scores are retained on the SaaS platform for statistical purposes.
5.3. Notwithstanding anything to the contrary herein, Clients are responsible for all data relating to any incidental assessments, pilots or demonstrations provided by Lumenii and for the updating or removal of data pertaining to them or their Applicants.
6. SERVICE INTERRUPTION
6.1. Only Clients who have been afforded a license to make use of the SaaS Service shall be entitled to service level agreements, in which case Lumenii shall respond to service failures or interruptions in the manner set out below.
6.2. Notwithstanding anything to the contrary contained herein, Lumenii shall accept no liability whatsoever for any loss or damage which may result from a failure or interruption of any service it provides.
6.3. Lumenii shall have the right to suspend services at any time and without prior notice in the event that critical maintenance or critical software updates are required, or in the event of a potential security or data breach.
6.4. Lumenii shall have the right to undertake non-critical or routine maintenance, software updates or backups on a daily basis, between the hours of 20:00 and 07:00 (SAST).
6.5. Any service failures or interruptions may be reported to Lumenii via the service telephone number and/or email address provided to Clients by Lumenii.
6.6. In the event that a service failure or interruption is reported by a Client, Lumenii shall endeavour to trace the cause of the problem and restore services within four hours of receipt of notice thereof. If it is impossible to restore services within four hours, the Client shall be informed of the nature of the failure/interruption as well as the estimated time required in order to restore services.
6.7. Lumenii shall only work to restore interrupted or failed services on Business Days between the hours of 09:00 and 17:00 (SAST).
6.8. In the event of a failure or interruption specifically relating to the SaaS Service, Clients’ employees who have received certification training from Lumenii may make use of the “Helpdesk” service on Business Days between the hours of 08:30 and 17:30 (SAST) in order to resolve problems.
7. USE OF THE SAAS SERVICE
7.1. Only Administrators and Applicants may make use of the SaaS Service.
7.2. Clients shall bear sole responsibility for the content and use of all reports and documents generated via the SaaS Service and Lumenii shall not accept any liability whatsoever for any loss, damage or claims which may result (whether directly or indirectly) from the compilation, use, distribution or publishing of said reports and documents.
7.3. Lumenii shall at all times have the right to effect changes to the content and scope of any of its services, including but not limited to the SaaS Service, if it is of the view that doing so will improve the quality of its services, or if it is required to do so by law.
8. INTELLECTUAL PROPERTY
8.1. All works developed by Lumenii (including but not limited to computer software, source code, graphic interfaces, databases, reports, analyses, designs and documents) and made available to Clients – whether or not as part of any service – shall at all times remain the full and exclusive property of Lumenii.
8.2. The provisions of clause 8.1 shall apply regardless of whether a Client has paid, or is willing to pay, Lumenii a fee for the development of any software or source code.
8.3. To the extent that a Client is afforded the right to make use of any works developed by Lumenii, such right shall be:
8.3.2. incapable being ceded or transferred to third parties;
8.3.3. given strictly for the purposes and period stipulated by Lumenii.
9.1. The total liability which Lumenii shall have to Clients in respect of any service rendered by Lumenii, or in respect of any guarantees or indemnities which Lumenii may furnish from time to time, shall be limited to the price paid by said
Clients in respect of the particular service.
9.2. For the avoidance of doubt, Lumenii shall not accept any liability whatsoever for any losses or damage suffered by a Client, its employees, users, Applicant/s, invitees or subcontractors arising out of the use of the SaaS Service or any other service rendered by Lumenii.
10.1. In the event that Lumenii provides training to a Client or its employees:
10.1.1. The Client may replace a participant in a training activity with another participant, provided the Client has notified Lumenii timeously.
10.1.2. Lumenii reserves the right to reschedule training for a later date and time in the event that unforeseen circumstances arise.
10.1.3. The Client may cancel the training activity in writing. In the event that the Client cancels less than one week before the agreed training date, or in the event that a participant does not arrive for training, the Client shall be liable for a cancellation fee.
10.1.4. The content and scope of the training shall be within the sole discretion of Lumenii.
10.1.5. Lumenii may exclude participants from any training activity in the event that the Client has not fulfilled its payment obligations to Lumenii.
11.1. In the event that Lumenii provides consultancy services to a Client:
11.1.1. The Client shall provide the necessary information, data and cooperation which Lumenii requires in order to render its services effectively.
11.1.2. The Client shall assume the risk in the use of any reports or results which are produced by Lumenii while acting as consultant.
11.1.3. The Client shall only use the results of Lumenii's consultancy services for internal purposes within its own organisation.
11.1.4. Unless otherwise agreed, all fees in respect of Lumenii consultancy services shall be due and payable on the last Business Day of each calendar month.
12. CUSTOM SOFTWARE
12.1. In the event that a Client requests Lumenii to develop custom software:
12.1.1. Lumenii shall endeavour to develop the custom software according to explicitly agreed specifications or functional design.
12.1.2. If the custom software is developed in an agile/iterative manner, the Client shall accept that the agreed specifications or functional design may be adapted during the development process by mutual agreement.
12.1.3. The Client shall accept the risk that at the end of the last development phase, the custom software may not necessarily meet all agreed specifications.
12.1.4. If the Client fails to make timely and clear decisions regarding the development of the custom software, Lumenii shall have the right to make whatever decisions it deems reasonable and appropriate in the circumstances.
12.1.5. If Client requires maintenance and/or support services in respect of the custom software, the usual fees charged by Lumenii for services of this nature shall apply.
12.1.6. Lumenii shall not be obliged to make auxiliary software and program or data libraries available for the use and/or maintenance of the custom software.
12.1.7. Lumenii shall not be obliged to make the source code of the custom software available to the Client for any reason whatsoever.
12.1.8. Unless otherwise agreed, all fees in respect of the development of the custom software shall be due and payable on the last Business Day of each calendar month.
12.1.9. Notwithstanding that the custom software has been developed at the request of the Client, the Client shall only be entitled to make use of the software for the period of time expressly agreed between the parties. Lumenii shall at all time retain ownership of the custom software and all intellectual property associated therewith.
13. INDIVIDUAL ASSESSMENTS & DEMONSTRATIONS
13.1. Clients may request Lumenii to conduct individual Online Assessments, or batches thereof, on Clients’ behalf, in which case:
13.1.1. A quotation for the individual Online Assessments shall be furnished to the Client;
13.1.2. If the aforesaid quotation is accepted, Lumenii shall run the Online Assessments itself and furnish the Client with the results thereof;
13.1.3. The Client shall not be afforded a license to make use of the SaaS Service or any other rights in respect thereof.
13.2. Clients may request Lumenii to conduct demonstrations in respect of the services provided by Lumenii, in which case:
13.2.1. Lumenii shall, at a date and time agreed between the parties, set up a service platform purely for the purposes of demonstration (“the demo platform”);
13.2.2. The Client shall not be afforded a license to the demo platform or any other rights in respect thereof;
13.2.3. Lumenii may, in its sole discretion, set up a user account for the Client in relation to the demo platform, to enable the Client to assist in the demonstration.