These Terms and Conditions, as may be amended from time to time, together with any documents, policies, or terms they incorporate by reference (collectively, these “Terms and Conditions”), are entered into by and between you and Mpirical Limited (a Company incorporated in England and Wales with registered number 4393797 and with a registered office at 343 Storey House, White Cross, Lancaster, LA1 4XQ, “we”, or “us”). For purposes of these Terms and Conditions, “you” includes, individually and collectively, you (the user or Customer) and any individual or business user that is visiting, viewing, using, or accessing the Site under your Package.
You acknowledge and agree that by:
- visiting, viewing, using, or accessing the Site;
- clicking “Agree”, “Purchase”, “Submit”, or similar links; or
- signing or confirming a Sales Order or other agreement incorporating these Terms and Conditions,
that you have read, understand, and agree to be bound by these Terms and Conditions, irrespective of whether you are a guest or a registered user of the Site.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, THEN YOU MAY NOT ACCESS OR USE THE SITE. MPIRICAL LIMITED’S ALLOWANCE OF YOUR USE AND ACCESS TO THE SITE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS AND TO THE EXCLUSION OF ALL OTHER TERMS.
1. Basis of contract
Any purchase you make from us is subject to these Terms and Conditions.
If you issue any purchase order or written acceptance of a quotation or estimate that we have provided (each an “Order”), that Order constitutes an offer by you to purchase in accordance with these Terms and Conditions.
The Order shall only be deemed to be accepted when we issue written acceptance of the Order or when we start to provide the relevant services to you, at which point and on which date the agreement between us shall come into existence.
These Terms and Conditions apply to the agreement between us, to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
Any quotation or estimate given by us shall not constitute an offer, and is only valid until the expiration date shown in it.
3. Site Access and Account Registration
With regard to your username, password, any other piece of information you provide to us as part of our security procedures (collectively, “Account Information”), you agree to treat such Account Information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your Account Information is personal to you, and you agree not to provide any other person with access to the Site using your Account Information. You agree to notify us immediately (firstname.lastname@example.org) of any unauthorized access to or use of your Account Information or any other breach of security that you become aware of. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your Account Information or other personal information.
Except as provided herein, you may not transfer your Account Information to any other person and you may not use anyone else’s Account Information or account at any time. In cases where you have in breach of these Terms and Conditions nevertheless authorized or registered another person to use your account, or where you have failed to use your best endeavours to safeguard your Account Information as set forth above, you agree you are fully responsible for:
- the acts and omissions of such person accessing the Site with your Account Information;
- controlling the person’s access to and use of the Site; and
- the consequences of any use or misuse by such person. Your Account is personal to you and if you authorise or register another person to use your account then such other person shall have no rights to enforce of the terms in this Terms and Conditions.
4. Courses and Subscription Packages
The scope, features, and price of your access to the Site is determined by the subscription package and account type for which you register, purchase, order, renew, or change into (each, a “Course” or “Package” and collectively your “Plan”) – to review the scope, features, and price associated with Mpirical’s Courses or Packages, please visit www.mpirical.com. Whether such registration, purchase, order, renewal, or change happens through the Site’s checkout or account settings functionalities, through a Free Trial or Pilot, by execution or confirmation of a Sales Order, or with or without the assistance of Mpirical’s sales or support teams (all such methods, collectively, “Checkout”), your use of and access to the Site is expressly conditioned upon timely payment of the applicable License Fee associated with your Course or Package and governed by these Terms and Conditions.
For purposes herein:
- “License Fee” means the Individual License Fee, all forms of the Business License Fee (e.g., Team License Fee, or Enterprise License Fee), as applicable;
- “Payment Method” means the Individual Payment Method or the Business Payment Method, as applicable; and
- “Unlicensed User” means any person who Mpirical has not authorised to access a Course or Package under your Plan, which, in the case of an Individual License (as defined in clause 4.1), shall be any person who is not you and, in the case of a Business License (as defined in clause 4.2), shall be any person who is not a Business User, Course or Package Manager, or otherwise not specifically named as authorised to access the Course or Package.
We reserve the right to increase or decrease any License Fee at any time. Except where exercising our rights under clause 4.3, to the extent you have paid your License Fee in advance, any increase or decrease will not become effective for your Course or Package until the end of your current subscription term or your next renewal.
4.1 Individual License
If you choose or purchase a Course or individual package subscription during Checkout, Mpirical grants you, and you alone, a non-exclusive, non-transferable license (“Individual License”) to use the Site for the subscription term length set forth during Checkout in strict accordance with these Terms and Conditions.
All portions of the Individual License Fee are completely non-refundable. Exceptions for extenuating circumstances may be considered by emailing email@example.com; however, we are in no way required to refund you any portion of the Individual License Fee.
You must use your best endeavours to prevent any Unlicensed User from gaining access to the Site through your Individual License. If you require access for additional users, you should to contact Mpirical in order to discuss an amendment to your Plan.
4.2 Business License
If you choose or purchase a business subscription during Checkout or in a separate sales order (each, a “Sales Order”), which includes any of the Courses, Team Packages or Enterprise Packages, Mpirical grants you a non-exclusive, non-transferable license (“Business License”) to use the Site for the subscription term length set forth during Checkout or a Sales Order in strict accordance with these Terms and Conditions.
The Business License allows a specific number (the “User Limit”) of your employees or affiliate employees to register as Mpirical users (each, a “Business User”) and receive access to the Site by way of your Business License. Each Business User must be designated by the business purchasing the Business License or by such business’s designated Course or Package Manager, after which each Business User will be provisioned unique Account Information to register for an Mpirical account and receive access to use the Site through an individual single-use business subscription (an “Individual Business Subscription”). Each Individual Business Subscription is to be used solely by the respective named Business User and for the internal purposes of the business provisioning the Business License. Each Individual Business Subscription may not be shared amongst Business Users nor may it be shared amongst other employees, affiliate employees, contractors, agents, or other individuals.
Mpirical’s grant of the Business License is expressly conditioned on timely payment of the then-applicable license fee in advance for all Plans on or added to your Business Package in the amount and on the billing frequency set forth during Checkout or in a Sales Order (individually, and collectively, the “Business License Fee”).
If payment is not received within the required time period, we may suspend your access to the Site (including all of your Business Users’ access) until payment is received. In the event we suspend your license because of non-payment, no additional time will be added to the then-applicable Business Term.
The Business License Fee is exclusive of taxes. When processing your Business Payment Method or invoicing, we may include a separate charge for any applicable sales, use, value-added, or excise taxes, and any other similar taxes, duties or charges of any kind, other than taxes on Mpirical’s income, imposed by any governmental body on any amounts payable by you under these Terms and Conditions or any Sales Order. We will remit taxes collected, if any, to the appropriate taxing authority.
You acknowledge and agree that the Plans granted under these Terms and Conditions, via Checkout, and under each Sales Order are specific to the individual Business Users you designate. Except as set forth during Checkout or a Sales Order, the Plans granted under these Terms and Conditions are not transferable to any Unlicensed Users for any reason, and you agree to use your best endeavours to prevent your Business Users from granting access to the Site to any Unlicensed Users. Should you require access for additional Business Users over and above your User Limit you should to contact Mpirical in order to discuss an amendment to your Business License.
4.3 Reconciliation of licensed users
It is essential for Mpricial’s business that you do not share access to your Plan to any Unlicensed Users. You must therefore use your best endeavours to prevent any Unlicensed Users from accessing any Course or Package under your Plan. Any claim from you that the unlicensed usage occurred without your consent or knowledge shall not be considered a defence against this breach of the Terms and Conditions. You understand and agree that Mpirical has the right, per clause 8.3, to monitor use of the Site in order to (but not limited to) prevent unauthorised or unlicensed access to any of its services.
If Mpirical has evidence to suggest that your Individual License has been shared amongst or is being used by Unlicensed Users, then Mpirical may, at its sole discretion:
- notify you in writing that Mpirical has collected evidence to suggest that you are breaching these Terms and Conditions for the above reason, and specify the number of Unlicensed Users who have accessed the Site through your Individual License; and
- within 10 business days of this notice raise an invoice (which is due and payable immediately) to reconcile the disparity between the License Fee paid for the Individual License and the number of Unlicensed Users who have accessed the Site without a valid license, with the amount of this invoice being calculated by taking the number of Unlicensed Users multiplied by the License Fee for the respective Individual License.
If Mpirical has collected evidence to suggest that, in respect of a Business License, (i) an Individual Business Subscription has been shared amongst Business Users, multiple employees, affiliate employees, contractors, agents, any other Unlicensed Users; or (ii) you are otherwise not abiding by these Terms and Conditions by either facilitating or failing to prevent a greater number of individuals from accessing the Site than your User Limit permits, then Mpirical may, at its sole discretion, undertake the following steps:
- notify you in writing that we have evidence to suggest that you are breaching these Terms and Conditions for one or both of the above reasons, and specify the number of users which are accessing the site over the User Limit (the “Unlicensed Users” of a Business License);
- within 10 business days of this notice raise an invoice (which is due and payable immediately) to reconcile the disparity between the Business License Fee paid for the Business License and the number of Unlicensed Users who accessed the Site without a valid license, with the amount of this invoice being calculated as if the current User Limit were increased proportionately to take into account the Unlicensed Users based on Mpirical’s standard business pricing and not the Business License Fee; and
- unilaterally increase your Business License Fee and User Limit to reconcile the difference between the Unlicensed Users and User Limit.
The existence or exercise of the rights under this clause 4.3 to not exclude or limit any other rights or remedies which may be exercised by Mpirical under these Terms and Conditions.
5. Proprietary Materials
The Site contains copyrighted materials, trademarks, proprietary and confidential information, and intellectual property of Mpirical (collectively, “Proprietary Materials”), including without limitation source code, video, text, software, photos, graphics, images, music, and sound.
You agree not to modify, publish, transmit, participate in the transfer or sale of, create derivative works of, or in any way exploit, in whole or in part, any Proprietary Materials. Proprietary Materials may only be accessed through the Site, and not by or from any other site or means.
The applicable License granted you by these Terms and Conditions is a right of access through the Site only, and does not grant to you any right to download or store any Proprietary Materials in any medium, other than:
- that downloadable content that may be provided for certain training courses, including exercise files, course slides, and sample code;
- files that are automatically cached by your web browser for display purposes; and
- if we provide desktop, mobile, or other applications for download, a single copy of such application for your computer or mobile device solely for your own, personal use, provided you agree to be bound by an applicable end user license agreement for such application (collectively, the “Authorized Downloadable Materials”). Authorized Downloadable Materials are held by you pursuant to a limited revocable right only, and are subject to all restrictions described herein, including the prohibition on further transfer, sale, creation of derivative works, or exploitation in any manner.
Mpirical reserves all intellectual property rights to the Proprietary Materials, other than as specifically granted under the applicable License granted you under these Terms and Conditions. No posting, copying, transmission, retransmission, distribution, redistribution, publication, republication, decompilation, disassembling, reverse engineering, or otherwise reproducing, storing, transmitting, modifying, or commercially exploiting any Proprietary Materials in any form or by any means, for any purpose, is permitted without our express written permission.
You acknowledge that a breach of any proprietary rights described in these Terms and Conditions may cause us irreparable damage, for which the award of damages would not be adequate compensation. Consequently, you agree that we may institute an action to enjoin you from any and all acts in violation of those provisions, which remedy will be cumulative and not exclusive, and we may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which we may be entitled at law or in equity.
Other trademarks, service marks, and logos used throughout the Site are the trademarks, service marks, or logos of their respective owners.
We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at our sole discretion, remove or disable access to any materials on the Site that we believe (or are notified) may infringe on the rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement or otherwise infringes on your intellectual property rights, please report it to us promptly.
6. Mobile Devices
If you use a mobile device to access the Site, the following additional terms and conditions (“Mobile Terms”) also apply:
You agree that you are solely responsible for all message and data charges that apply to use of your mobile device to access the Site. All such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status, and details.
You understand that wireless service may not be available in all areas at all times and may be affected by product, software, coverage, or service changes made by your service provider or otherwise. Additional terms and conditions may apply to your use of our mobile applications based on the type of mobile device that you use.
7. User Content and Feedback
The Site from time to time may provide you with the ability to upload, post, submit, publish, or transmit to other users or persons (hereinafter, “post”) via online forums, chat capabilities, user discussion groups, blogs, online profiles, or other online forums (“Interactive Features”).
The Interactive Features are intended to provide you and other users with valuable resources on selected topics. Some, if not most, of the content found on such Interactive Features is provided by third-party users, and not us (such content, “User Content”). The third-party user (including you, if applicable) is solely responsible for the User Content and for complying with applicable laws relating thereto.
All User Content you submit to the Interactive Features (including for inclusion on the Site) or that is otherwise made available to Mpirical will be considered non-confidential and non-proprietary, and by so doing, you hereby grant us and our affiliates and service providers, and each other and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material.
To the extent that you provide any User Content, you represent and warrant that (a) you have all necessary rights, licenses and/or clearances to provide such User Content as provided above, (b) such User Content is accurate and reasonably complete, (c) as between you and Mpirical, you are responsible for the payment of third-party fees, if any, related to the provision and use of such User Content, (d) such User Content does not and will not infringe or misappropriate any third-party rights or constitute a fraudulent statement or misrepresentation or unfair business practices, and (e) you agree to comply with all applicable rules regarding online conduct and acceptable content we may post on the Site or Interactive Features from time to time, including those set forth in this clause 7.
We have the right to:
- remove or refuse to post any User Content or Feedback for any or no reason in our sole discretion;
- disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy;
- take appropriate legal action, including without limitation referral to law enforcement for any illegal or unauthorized use of the Site; and
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any User Content, Feedback, or materials on or through the Site. YOU WAIVE AND HOLD HARMLESS US AND OUR AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY US OR ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER US, SUCH PARTIES, OR LAW ENFORCEMENT AUTHORITIES.
Notwithstanding anything to the contrary, we have no obligation to review any User Content, Feedback, or materials before they are posted on the Site, and we cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party, and we have no liability or responsibility to anyone for performance or non-performance of the activities described in this Section.
8. “Dos” and “Don’ts”
You acknowledge and agree that the Site contains content and materials that are viewable through online streaming methods and they are not to be downloaded by you (or your Business Users), except under the limited circumstances and for the limited times as permitted by your Plan. In addition, you agree to adhere and abide to the following DOs and DON’Ts.
8.1 DOs (User Obligations). You acknowledge and agree that you (and your Business Users) will:
- Comply with all applicable local or international law or regulations (including without limitation any laws regarding copyright, intellectual property, privacy and personal identity, or the export of data or software to and from the UK or other countries);
- Provide true and accurate information to us and keep it updated;
- Use the Interactive Features in a respectful manner; and
- Exit from your account at the end of each session or use of the Site.
8.2 DON’Ts (Prohibited Conduct). You acknowledge and agree that you (and your Business Users), will not:
- reproduce, redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, create derivative works of, license, capture, download, save, upload, print, or otherwise transfer or retain information or content available on the Site other than with regard to Authorized Downloadable Materials, subject to the limited permissions set forth herein;
- manually or systematically harvest, scrape, collect or otherwise extract information or data contained on the Site, other than permitted use of Authorized Downloadable Materials or temporary storage of video materials for offline viewing.
- permit or provide others access to the Site using your Account Information or otherwise, or the Account Information of another authorized user;
- impersonate or attempt to impersonate Mpirical, an Mpirical employee, another user, or any other person or entity (including without limitation by using e-mail addresses or Account Information associated with any of the foregoing) or provide incorrect or knowingly false information;
- remove or modify any copyright, trademark, legal notices, or other proprietary notations from the Proprietary Materials or any other content available on the Site;
- violate or attempt to violate the Site’s security mechanisms, attempt to gain unauthorized access to the Site or assist others to do so, or otherwise breach the security of the Site or corrupt the Site in any way;
- co-brand or frame the Site or establish a link in such a way as to suggest any form or association, approval, or endorsement on our part, without the prior express written permission of an authorized representative of Mpirical;
- use any portion of the Site to aid in transmitting, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, or “spam” or any other similar solicitation;
- post to the Interactive Features or any other portion of the Site any inappropriate, offensive, racist, hateful, sexist, pornographic, false, misleading, infringing, defamatory, or libelous content;
- use the Site or its contents (including User Content) to recruit, solicit, or contact in any form other users or potential users for employment or contracting for a business not affiliated with us without the prior express written permission of an authorized representative of Mpirical;
- use or attempt to use the Site to store or transmit software viruses, worms, time bombs, Trojan horses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment;
- engage in any conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm us or users of the Site or expose them to liability; and/or
- use the Site in any manner that could disable, overburden, damage, or impair the Site, interfere with any other party’s use of the Site (including their ability to engage in real time activities through the Site), or otherwise attempt to interfere with the proper working of the Site.
8.3 Restricted Use of Site
We reserve the right to monitor use of the Site and to suspend, revoke, deny, disable, undertake the reconciliation procedure in clause 4.3, or immediately and without notice terminate your access or the access of any of your Business Users if you or they have violated any provisions of these Terms and Conditions (including the DOs and DON’Ts above) or if your or their usage behaviour exceeds normal limits, as determined in our sole discretion. The term “normal limits” will be determined solely by Mpirical.
9. Representation, Warranties, and Covenants
Your Representations and Warranties. You represent and warrant that:
- You are (i) 18 years of age or older or an emancipated minor, and (ii) are fully able and competent to form a binding contract with Mpirical by entering into these Terms and Conditions.
- You are solely responsible for all service, telephony, data charges, and other fees and costs associated with your access to and use of the Site, including without limitation maintaining all internet, browser software and extensions, computer hardware, telephone, and other equipment required for such access.
- You and Mpirical each represent, warrant, and covenant that it has the full power and authority to: (i) enter into an agreement subject to these Terms and Conditions; (ii) perform its obligations hereunder, and that its performance hereunder does not conflict with, limit, or be contrary to any other agreement; (iii) and that by so doing, it does not violate any applicable laws or any contractual relationship.
Mpirical Intellectual Property. We represent, warrant, and covenant that: (i) we have and will have all rights, titles, licenses, intellectual property, permissions and approvals necessary in connection with our performance under these Terms and Conditions to grant you the License and rights granted hereunder; and (ii) neither the Site (including the Proprietary Materials), nor the provision or utilization thereof as contemplated under these Terms and Conditions, will infringe, violate, trespass or in any manner contravene or breach or constitute the unauthorized use or misappropriation of any intellectual property of any third party.
Reliance and Functionality. Mpirical does not warrant that the content or functions of the Site will meet your requirements or that the operation of the Site will be uninterrupted or error free. The content and materials presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from or related to any reliance placed on such materials by you, your Business Users, or any other visitor to the Site, or by anyone who may be informed of any of its contents. The Site (including without limitation our blogs and Interactive Features) may include content provided by third parties, including materials provided by other users, bloggers, or third-party licensors, syndicators, aggregators, and reporting services. All statements and opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Mpirical, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Mpirical. We are not responsible or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
Availability of Site. You recognize that the traffic of data through the Internet may cause delays during your use of or access to the Site, and accordingly, you agree not to hold us liable for delays that are ordinary in the course of Internet use. You further acknowledge and accept that the Site may not be available on a continual 24-hour basis due to such delays, delays caused by our upgrading, modification, or standard maintenance of the Site, or any other delays outside of our control.
Third-party services, links, SSO, OAuth, etc. If any portion of the Site contains services (e.g., discussion forums), links, resources, or materials provided by third parties, including without limitation URL links, discussion forum engines, single-sign on services (SSO), OAuth resources (e.g., Facebook, GitHub, LinkedIn, etc.), or capabilities to share to social media websites, these are provided for your convenience only. This may include links contained on courses or in advertisements, including banner advertisements and sponsored links on the Site. We have no control over the contents, software, or privacy practices of these third-party services, links, resources, or materials, and accept no responsibility for them or for any loss or damage that may arise from your use of them – if you access or use them, you do so entirely at your own risk and in accordance with the terms and conditions and privacy policies of such third parties.
10. Termination; Cancellation Policy
Mpirical’s Rights of Termination.
- the termination may be effected without prior notice to you;
- Mpirical will not be liable to you or any third party for any deactivation of your account or termination of your Plan;
- all fees related to your Plan are non-refundable; and
- all unpaid fees are due and payable immediately upon termination.
Business Plan Termination.
For Convenience. A Business Plan may be terminated for convenience by sending written notice to Mpirical at least thirty (30) days prior to the expiration of the then-current Business Term; however, in the event of any termination for convenience all portions of the Business License Fee are completely non-refundable. With respect to any Business Term still in effect as of the date of such termination for convenience, and upon your request, your Business Plan will remain active to the end of your then-current Business Term to the extent your Business License Fee has been paid; provided that these Terms and Conditions will continue in effect and govern such Business Term until its expiration or earlier termination for cause. You providing notice to terminate to Mpirical does not exclude or invalidate any rights or remedies Mpirical may have in relation to any breach of these Terms and Conditions (whether or not these remedies have been exercised at the time of your notice to terminate) including without limitation Mpirical’s own right to terminate under this clause 10 or to undertake the Reconciliation Procedure under clause 4.3.
11. Other important terms
Mpirical may transfer your account to someone else. Mpirical may transfer our rights and obligations under these Terms and Conditions to another organisation.
Each of the paragraphs of these Terms and Conditions operates separately. If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
If Mpirical do not insist immediately that you do anything you are required to do under these Terms and Conditions, or if Mpirical delay in taking steps against you in respect of your breaking these Terms and Conditions, that will not mean that you do not have to do those things and it will not prevent Mpirical taking steps against you at a later date. For example, if you miss a payment but we do not demand payment from you and Mpirical continue to provide the products and services, Mpirical can still require you to make the payment at a later date.
These Terms and Conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of these Terms and Conditions.
These Terms and Conditions are governed by English law and you can bring legal proceedings in respect of the products in the English courts.