Terms of Service (Pluto LMS Pty Ltd)
Summary of update:
1) Legal entity name change from Pluto Education (Pty) Ltd to Pluto LMS (Pty) Ltd
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE. YOUR CONTINUED USE OF THIS WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS WEBSITE IF YOU DO NOT ACCEPT THESE TERMS. ALL SECTIONS OF THESE TERMS ARE APPLICABLE TO MEMBERS, ENROLLEES AND USERS UNLESS THE SECTION EXPRESSLY STATES OTHERWISE.
1.1. This site [www.plutolms.com], together with any associated Portals (as defined below), are owned, operated and/or made available by Pluto LMS (Pty) Ltd (hereinafter referred to as “Pluto LMS”, “Pluto LMS Website”, “Pluto LMS Platform” “Website”, “we”, “our”, “us” or “the Company”). Any reference to “Pluto LMS”, “we”, “our”, “us” or “the Company”, shall include, where applicable, our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and suppliers.
1.3. Accessing and/or use of the Pluto LMS Website and/or any Portal after the Effective Date will signify that you have read, understand, accept, and agree to be bound, and are bound, by the Terms, in your individual capacity and for and on behalf of any entity for whom you use Pluto LMS. Further, you represent and warrant that you have the authority to do so and that you are a Competent Person (as defined in the Protection of Personal Information Act, 4 of 2013, as amended).
1.4. To the extent permitted by applicable law, we may modify the Terms with prospective effect with notice to you, and any revisions to the Terms will take effect when and on the date specified in a notice posted on the page devoted to site news and/or updates on the Pluto LMS Website. Your continued use of the Website, Portal(s) and/or the Services will be construed as your consent to the amended or updated Terms, and will be conditional upon the Terms in force at the time of your use. Your only remedy, should you not agree to these Terms, is to stop your use of this Website, Portals and/or Services.
2.1. The following terminology applies to these Terms:
2.1.1. “Activation Date” shall refer to the date on which Pluto LMS approves a user’s application to become a Member;
2.1.2. “Enrollees” refer to clients, students, learners, or other individuals which are granted access to the content and/or resources created by the Members for consumption by Enrollees;
2.1.3. “Institutional Members” refer to schools, institutions, businesses and/or other institutions or juristic entities which join Pluto LMS as a Member, but specifically exclude natural persons, and which will be liable for payment of any Service Fees;
2.1.4. “Individual Members” refer to teachers, trainers, individuals and/or other natural persons which join Pluto LMS as a Member on a freemium basis, only being liable in certain instances, as stipulated by Pluto LMS or made available on the Website and/or any Portal, for payment of any Service Fees;
2.1.5. “Members” refer to both Institutional Members and Individual Members;
2.1.6. “Party” or “Parties” refers to a Member, a user and/or Pluto LMS, as the context requires;
2.1.7. “Portal” shall refer to a custom portal, page or website created by Pluto LMS for and on behalf of a Member;
2.1.8. “Service Fee” refers to a monetary amount payable by Members in consideration for the Services, and which shall be quoted and agreed upon between the Member and Pluto LMS as and when required by Pluto LMS;
2.1.9. “Services” shall refer to the use of the Website and/or the use of our services in the creation of Portals for Members, designed for the access by Enrollees to consume the content and/or resources created by the Members, in addition to any other services which may be provided through the Pluto LMS Website from time to time;
2.1.10. “Membership Period” shall refer to the period of (1) year as from the Activation Date of a Member’s account by Pluto LMS, unless otherwise agreed by the Parties.
2.2. Any use of the above terminology or other words in the singular, plural, capitalisation and/or he/she or they, are taken as interchangeable and therefore as referring to same.
3. Your Agreement to these Terms
3.1. Subject to, and on the basis of your acceptance of the Terms, Pluto LMS grants you a limited, revocable, non-transferable license to access and use the Pluto LMS Platform in accordance with these Terms governing such use and access.
4. Description of our Services
4.1. We provide creation of Portals for Members, designed for the access by Enrollees to consume the content and/or resources created by the Members.
4.2. In consideration for rendering of the Services, Pluto LMS charges a yearly or monthly Service Fee as set out in clause 5 below to certain of its Members.
4.3. Members agree that you shall be solely responsible for any use of your account, Portal and all transactions concluded by yourself on the Website and Portal. A Member shall not allow any third party to utilise its account for any reason whatsoever. If you allow a third party to utilise or in any way access your account, whether intentionally or negligently, Pluto LMS shall have the right to suspend the provision of the Services or terminate these Terms without any refund or other compensation.
5. Service Fee
5.1. Certain Members, at the discretion of Pluto LMS and as stipulated on the Website or any Portal from time to time, when signing up, upgrading and/or for the continued use of the Services, will be liable for payment of the Services Fees;
5.2. When signing up, Pluto LMS may, in its sole and absolute discretion, grant a free trial for use of the Services for a length as determined by Pluto LMS (“Trial Period”);
5.3. Upon termination of the Trial Period, or as determined by Pluto LMS from time to time, certain Members will be required to pay the Service Fee;
5.4. All Service Fees shall be payable in advance to Pluto LMS or its authorised agent by electronic funds transfer, and when and if accepted, certain other payment gateways, as stipulated by Pluto LMS from time to time.
5.5. All Services Fees are exclusive of VAT and financial or bank charges.
5.6. Service Fees paid in a currency other than South African Rand (“Rand”) shall be converted into Rand at Pluto LMS’s financial institution’s then-current market rate of exchange.
5.7. Pluto LMS specifically reserves the right to modify its Service Fee, pricing structure and/or payment conditions from time to time and at its sole discretion.
5.8. Each Member paying such Service Fee shall remain solely liable for any statutory or regulatory charges accruing to such Service Fee.
6.1. You agree to provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for Pluto LMS’s provision of the Services. If your failure to do so results in a delay in the provision of any Service, Pluto LMS shall not be obliged to extend the relevant Membership Period or be liable for any loss or damages arising from such delay.
6.2. You represent, warrant, and undertake (where applicable) to Pluto LMS that:
6.2.1. You have the full power and authority to enter into these Terms, to grant the license, and to perform your obligations hereunder;
6.2.2. You will carry on your activities on the Website and/or Portal in compliance with any applicable laws and regulations;
6.2.3. You will not use the Services to engage in any unlawful activities;
6.2.4. You have the legitimate right and authorisation (including any necessary licences) to distribute or export any and all products and/or services that you submit for publication on the Website;
6.2.5. You will not sell or otherwise derive monetary remuneration from any products or services on any Portal without the prior written consent of Pluto LMS;
6.2.6. You will not impersonate any person or entity, or misrepresent yourself or your affiliation with any person or entity.
6.3. You will conduct all activities on the Website and/or Portal in accordance with all applicable laws and regulations and commonly accepted commercial practices and in an ethical manner.
6.4. Should Pluto LMS receive any complaint or claim in respect of your account and/or Portal, Pluto LMS shall have the right to suspend or terminate your account immediately.
6.5. You agree to indemnify Pluto LMS and its affiliates and their employees, agents and representatives- and to hold them harmless- from any and all losses, damages, actions, claims and liabilities (including legal costs), whether in contract, delict or otherwise, which may arise, directly or indirectly, from use of the Website and/or any Portal. Unless in the violation of the client’s intellectual property and copyright.
7. Member Content
7.2. Pluto LMS shall have the right, but shall not be obliged, to monitor or examine any Content Submissions that you publish or submit for publication on the Website or any Portal.
7.3. Further, Pluto LMS does not guarantee the subsequent ability to edit or delete any Content Submission.
7.4. In submitting any Content Submission, Members and Enrollees make the following representations and warranties:
7.4.1. If required by law, all rights in and to such Content Submissions (including, without limitation, all rights to the reproduction and display of such Content Submissions) are obtained by such user, or, alternatively, all necessary rights in and to such Content Submissions as described in these Terms have been obtained;
7.4.2. If required by law, all necessary license fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of Content Submissions have been paid prior to submission to the Website.
7.4.3. Content Submissions do not infringe the copyrights, trademarks, patents, trade secrets, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
7.4.4. Content Submissions do not violate any law including, but not limited to, those governing export control, consumer protection, unfair competition, or false advertising;
7.4.5. Content Submissions are not, and may not reasonably be considered to be, defamatory, libellous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
7.4.6. Members have not and will not be compensated or granted any consideration by any third party for submitting a Content Submission;
7.4.7. Content Submissions do not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
7.4.8. Content Submissions are true, lawful and accurate, and are not false, misleading or deceptive;
7.4.9. Content Submissions do not contain or constitute any unsolicited or unauthorised advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
7.5. Should Pluto LMS, in its reasonable opinion, believe that any of your activities on the site, including but not limited to Content Submissions, are in violation of any applicable law or regulation, or affect any third party’s rights, or fall foul of the provisions set out in these Terms, then Pluto LMS may, at its discretion, delete or remove any material, Content Submission, and/or limit or suspend the provision of the Services to you.
8. Refund Policy
8.1. Under no circumstances will a refund of any Service Fee, or any other fees which may be applicable, be permitted.
9.1 Pluto LMS makes no express, implied or statutory representations, warranties, or guarantees in connection with this website, the portals, the services, any other members or enrollees, including but not limited to partners, third parties, or any materials on the website or any portal relating to the quality, suitability, truth, accuracy or completeness of any information or material contained or presented on this website or such portal.
9.2 Unless otherwise explicitly stated, to the maximum extent permitted by applicable law, this website and each portal, materials, and any information or material contained or presented on this website and/or each portal is provided to you on an “as is,” “as available” basis with no warranty of implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights. We do not provide any warranties against viruses, spyware or malware that may be installed on your computer as a result of you accessing or using this website.
9.3 We make no warranty as to the results that may be obtained from the use of this Website or a Portal or as to the accuracy or reliability of any information obtained through this Website or a Portal. No advice or information, whether oral or written, obtained by a user through this Website, a Portal, or from Pluto LMS or its third party service providers shall create any warranty enforceable as against Pluto LMS.
10. Unauthorised Use Of This Website or a Portal
10.1. You are specifically not permitted to use this Website or a Portal in any of the following ways (which list should not be deemed to be exhaustive of Pluto LMS’s rights in this regard):
10.1.1. To stalk, harass, or harm another individual;
10.1.2. To impersonate any person or entity or otherwise misrepresent the true state of affairs;
10.1.3. To interfere with or disrupt this Website, a Portal or servers or networks connected to this Website or any Portal ;
10.1.4. To use any data mining, robots, or similar data gathering or extraction methods in connection with this Website; or
10.1.5. Attempt to gain access to any portion of this Website or a Portal, to which you are not ordinarily permitted, or any other accounts, computer systems, or networks connected to this Website or a Portal, whether through hacking, password mining, or any other means.
11.1. Pluto LMS and the contents of the Website (unless intellectually owned and uploaded by the user), together with the general layout of each Portal, unless licensed on an open sourced basis from a third party, are the property of Pluto LMS and are protected by South African and international copyright laws. Furthermore, the compilation (meaning the collection, arrangement, and assembly) of all content on the Website and layout on each Portal, is our exclusive property and is, likewise, protected by South African and international copyright laws.
11.2. Except as stated in the Terms, none of the contents of the Website, or layout of each Portal, may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, except as permitted by the fair use privilege under the South African copyright laws or without the prior written permission of Pluto LMS or the copyright owner, and further, should such consent be provided, Pluto LMS reserves its right to withdraw such consent at any stage, in its sole and absolute discretion.
11.3. We do not permit copyright infringing activities and infringement of intellectual property rights on the Website or a Portal, and we may, at our sole discretion, remove any infringing content if we are of the view that such content infringes on another’s intellectual property rights or our own.
11.4. You are granted a limited, revocable, and non-exclusive right to create a hyperlink to the home page of Pluto LMS and/or a Portal, so long as the link does not portray Pluto LMS or the Members and/or Enrollees of a Portal, its affiliates, or its products or services in a false, misleading, derogatory, or otherwise offensive manner. You may not use Pluto LMS’s logo or other proprietary graphic or trademark as part of the link without the express permission of Pluto LMS, its affiliates or content suppliers.
11.5. All trademarks and copyrights, as also any other intellectual property rights, in and to any of the content (unless intellectually owned and uploaded by the user) on the Website are the exclusive property of Pluto LMS.
12.1. Should either Party (“Defaulting Party”) breach any of the provisions of these Terms, then the other Party (“Aggrieved Party”) may give the Defaulting Party 10 (ten) days’ written notice or such longer period of time as the Aggrieved Party may specify in the notice, to remedy the breach. If the Defaulting Party fails to comply with the notice, the Aggrieved Party may:
12.1.1. Claim immediate payment and/or performance by the Defaulting Party of all of the Defaulting Party’s obligations that are due for performance; or
12.1.2. Terminate these Terms upon written notice to the Defaulting Party where the breach constitutes a material breach, in either event without prejudice to the Aggrieved Party’s right to claim damages or to exercise any other rights that the Aggrieved Party may have under these Terms or in law.
12.2. Without detracting from the provisions of the above clause, the Aggrieved Party may summarily terminate these Terms at any time by giving to the Defaulting Party notice of the cancellation if:
12.2.1. The Defaulting Party commits a material breach of these Terms which cannot be remedied;
12.2.2. The Defaulting Party is placed under voluntary or compulsory sequestration, winding-up, judicial management, business rescue or the equivalent of any of these in any jurisdiction;
12.2.3. A judgment against the Defaulting Party in respect of which no appeal lies or in respect of which the period for lodging an appeal (excluding any period to seek condonation) has expired and remains unsatisfied for a period of at least 30 (thirty) days; or
12.2.4. The Defaulting Party makes or offers to make a general assignment or any arrangement or composition with or for the benefit of its creditors generally (or any class of its creditors) for releasing it wholly or partially from its debts.
12.3. Any termination of these Terms by the Aggrieved Party is effective on receipt of a notice of cancellation by the Defaulting Party.
12.4. Any termination is without prejudice to any claim that either Party may have in respect of any breach of these Terms by the other Party arising prior to the date of cancellation.
13.1. A Member may terminate a Member’s membership for any reason whatsoever on 30 days’ written notice to Pluto LMS.
13.2. Pluto LMS may terminate a Member’s membership for any reason whatsoever with at least 90 days prior notice.
13.3. In the above circumstances, no refunds of any Service Fees, or any other applicable fees, shall be permitted.
14.1. You may not assign your rights and/or obligations under these Terms to any other party without our prior written consent.
15. Export Control Laws
15.1. You understand and agree that the software, Services and user data may be subject to import and export control laws and regulations of the Republic of South Africa or the country in which you are situated. You undertake to adhere to all applicable laws and regulations and agree not to, without prior authorisation from the government of the Republic of South Africa or of such other country which is applicable, directly and/or indirectly export, re-export and/or transfer the software and Services to any other country in contravention of such laws and regulations.
16. Force Majeure
16.1. To the extent that it becomes impossible for a Party to perform any obligation (other than a payment obligation) in terms of these Terms because of an event or circumstance that was neither foreseen nor reasonably foreseeable when the Terms were entered into or which, if the event could have been foreseen at that time, cannot be guarded against or avoided by reasonable care or the reasonable acts of that Party, that Party may:
16.1.1. Notify the other Party within 5 (five) business days of the nature, extent, effect and likely duration of the event or circumstance; and keep the other Party updated as may be reasonably required by the other Party;
16.1.2. Take all commercially reasonable action to remedy or minimise the consequences (and report to the other Party); and
16.1.3. Immediately resume performance of its obligations under these Terms and notify the other Party when performance of the obligation again becomes possible.
16.2. Performance of any such obligation is suspended for as long as the event or circumstance continues to make the performance impossible.
16.3. If the event or circumstance continues for a period exceeding 20 business days, either Party may cancel these Terms on written notice to the other Party, provided that the obligation which the affected Party is unable to perform is a material obligation under these Terms.
17.1. To the extent permitted by law, these Terms, and the provision of our Services, shall be governed by and construed in accordance with South African law, and any dispute arising out of these Terms and/or our Services shall be submitted to the competent South African courts having the requisite jurisdiction to hear the matter.
17.2. To the extent necessary and/or possible, you consent to the exclusive jurisdiction of the Western Cape High Court or an alternative appropriate South African court seized with appropriate jurisdiction in all disputes arising out of the Terms, our Services, and/or related agreements incorporated by reference.
17.3. These Terms comprise the whole agreement between the Parties in regard to its subject matter.
17.4. No addition to or variation or consensual cancellation of these Terms, including this clause, has effect, unless in writing and signed by the Parties.
17.5. No indulgence by a Party to another Party, or failure strictly to enforce these Terms, shall be construed as a waiver or be capable of founding an estoppel.
17.6. The Parties undertake to do everything reasonable in their power necessary for or incidental to the effectiveness and performance of these Terms.
18.1. If any of these terms are deemed invalid or unenforceable for any reason (including, but not limited to the exclusions and limitations set out above), then the invalid or unenforceable provision will be severed from these Terms and the remaining terms will continue to apply. Failure by Pluto LMS to enforce any of the provisions set out in these Terms and/or any other agreement, or failure to exercise any option to terminate, shall not be construed as a waiver of such provisions and shall not affect the validity of these Terms or of any agreement or any part thereof, or the right thereafter to enforce each and every provision.