PLATFORM TERMS AND CONDITIONS

Last updated on 18 May 2021

INTRODUCTION

These Terms and Conditions (“Terms”) govern the relationship between you (the “User”, “Platform Account Holder”, or “You”) and the Platform Licensee, ByteKast. It explains your rights and obligations with regards to your use of ByteKast LXP UK (“the Platform”), and the related technology, software, updates, patches, and upgrades. It also defines how the Platform and related technology are licensed for your use.

By accessing or using the Platform, you agree to these Terms. If you do not or can not agree, you must request the deletion of your Platform Account, and should not access or use ByteKast LXP UK.

1. LICENSE CONDITIONS

This Platform, ByteKast LXP UK, is operated by ByteKast (“we” “us”), a Licensee of technologies provided and owned by Everyday Digital (Pty) Ltd (“ED”, “Everyday”), the primary Licensor.

The Licensee, ByteKast, may also provide content and services to you through ByteKast LXP UK.

2. DEFINITIONS

2.1 “Content” means data and/or digital media, including but not limited to, text, designs, graphics, logos, icons and audio clips;

2.2 “Documentation” means documentation accompanying the Platform, if any;

2.3 “Licensee” means a mandated provider of a Platform built on technology developed and owned by the Licensor, Everyday Digital (Pty) Ltd.

2.4 “Sub-Licensee(s)” are mandated and appointed by the Platform Licensee, ByteKast, to distribute and operate the Platform;

2.5 “Appointed Provider/s” means a third party service provider appointed and/or mandated by the Licensor, and/or the Licensee, (“ByteKast”), and/or Sub-Licensee(s) to provide ancillary services, to operate, and to provide support for the Platform and related technology;

2.6 “the Platform” an iteration of licensed technology, operated and distributed by a Licensee or Sub-Licensee(s);

2.7 “Technology” means proprietary technology, frameworks, software and platforms, and related services and process, as developed by ED;

2.8 “Services” means the services as described in clause 3 below;

2.9 “Account” or “Account Type” means any Platform account that is effectively a license of Platform use, and that may be subjected to platform, feature and other limits as set out by the Platform;

2.10 “User/s” means any User of the platform and/or its technology;

2.11 “you” or “your” means you, as the User.

2.12 “SCORM” means Shareable Content Object Reference Model;

3. ACCEPTANCE OF TERMS

3.1 These Terms and Conditions govern your use of the Platform, and the Services provided to you by ByteKast and/or its Sub-Licensee(s).

3.2 ByteKast reserves the right to update, change or modify these Terms and Conditions from time to time. Any changes or modifications, additions or deletions will become effective immediately upon notice to you which may be given by any means, including on the Website of ByteKast, by email or on the Platform. Your use of the Platform thereafter shall be deemed to constitute your acceptance of the changes, modifications, additions or deletions to these Terms and Conditions.

4. DESCRIPTION OF THE SERVICES

4.1 ByteKast provides you with a non-exclusive, non-transferable, limited licence to use the Platform, within the limitations of your chosen Account Type for a specified number of Users, and maintenance and support services in relation thereto.

4.2 The license to use shall include the right to use the version of the Platform initially licensed and any updates (minor enhancements and/or improvements, patches, fixes or the like) thereto but shall exclude the right to use any new feature or substantial additional functionality, unless as otherwise determined by ByteKast and/or its Sub-Licensee(s).

4.3 Any updates as referred to in clause 4.2 above and any new feature or substantial additional functionality provided to you, either as part of the initial license of use or otherwise, shall be subject to these Terms and Conditions.

5. LICENSEE & APPOINTED PROVIDERS

5.1 Licensees have been appointed directly by the Licensor of the Platform and have been granted rights to distribute and sell licences of use for the Platform and/or to provide ancillary services to Users, including but not limited to, support, management, development, and creation of Content and implementation facilitation (“ancillary services”).

5.2 A Licensee may appoint Sub-Licensees and Appointed Providers who are mandated to operate, resell, and support the Platform in alignment with their licensing agreement, and on terms no less restrictive than what appear here.

5.3 Notwithstanding the aforementioned, you acknowledge that your use of the Platform is subject to these Terms and Conditions and any additional terms and conditions that may have been agreed between you and/or ByteKast and/or its Sub-Licensee(s) and/or Appointed Provider(s). Any ancillary services provided shall be in terms of a separate agreement.

6. ACCOUNT TERM

The license to use the Platform and to retain an active account shall be on a month-to-month basis, unless as otherwise agreed between you and the ByteKast and/or its Sub-Licensee(s), and terminated in accordance with these Terms and Conditions.

7. TITLE

You hereby acknowledge and agree that all right, title and interest in and to the Platform (including but not limited to the source code), the Documentation and any other related materials are, and shall remain, solely vested in the Licensor. Nothing contained in these Terms and Conditions will be deemed to convey on you any title, ownership, copyright or any other intellectual property rights in or related to the Platform, and the Licensor reserves all rights in and to the Platform which are not expressly granted to you under a licence of use.

8. ACCESS TO THE PLATFORM

8.1 In order to provide access to the Platform, ByteKast and/or its Sub-Licensee(s) must be provided with current, complete and accurate information.

8.2 You will be asked to enter a valid email address which will also serve as your username for purposes of access to the Platform.

8.3 You are entirely responsible for maintaining the confidentiality of your password. You are also entirely responsible for any and all activities that occur under your username and password whether such access and/or use was authorised by you or not.

8.4 You may not access the Platform using any other User’s username and password, without the permission of that User.

9. TERMS OF USE

9.1 Your use of the Platform shall be limited to the Account Type

9.2 It shall be your responsibility to ensure any User requiring consent of parent/guardian in terms of their jurisdiction, must obtain the agreement and acceptance of a person with parental authority.

9.3 It shall be your responsibility to ensure that you have the necessary software / systems to support the use of the Platform in particular, the latest browser version and/or Operating System.

9.4 As a condition of your use of the Platform, you may not:

• 9.4.1 copy, sell, resell, license, transfer, assign, sub-license, rent, lease or otherwise make available, the Platform, in whole or in part, to any third party;
• 9.4.2 translate, disassemble, decompile, reverse engineer, or otherwise modify, tamper with, repair or attempt to discern the source code of any software contained in the Platform;
• 9.4.3 create derivative works of, or based on, any parts of the Platform;
• 9.4.4 remove or modify any copyright notices or other proprietary markings contained in the Platform;
• 9.4.5 imitate the “look and feel” of the Platform;
• 9.4.6 use the Platform for any purpose that is unlawful or prohibited by these Terms and Conditions;
• 9.4.7 use the Platform in a way that is intended to avoid or work around any use limitations and restrictions of the Platform;
• 9.4.8 bypass, breach or circumvent security access protocols or authentications including the User login;
• 9.4.9 use the Platform in any manner that could damage, disable, overburden or impair any server of the Licensor and/or network(s) connected to any server of the Licensor or interfere with any other party’s use or enjoyment of the Platform;
• 9.4.10 interfere with the proper functioning of the Platform;
• 9.4.11 access or use the Platform for the purposes of conducting a performance test, building a competitive product or service or copying its features or user interface;
• 9.4.12 reproduce, modify or translate all or any portion of the Platform or accompanying Documentation.

9.5 ByteKast and/or its Sub-Licensee(s) must be promptly notified of:

• 9.5.1 any unauthorised use of the Platform;
• 9.5.2 any actual, threatened or suspected infringement of the Licensor’s intellectual property;
• 9.5.3 subject to clause 15.4 any claim by any third party that the Platform infringes on the intellectual property rights of any third party.

10. CONTENT RIGHTS AND RESTRICTIONS

10.1 The Platform allows you to develop, create, author and publish Content on the Platform and/or to the app/s linked to a platform account, subject to your user access permissions and privileges.

10.2 ByteKast and/or its Sub-Licensee(s) does not claim ownership of the Content. The Content developed, created, authored or published by you remains your Content and you are responsible for all Content published on the Platform, including but not limited to, its legality, reliability, appropriateness, originality and copyright. If you have engaged the services of an ByteKast and/or its Sub-Licensee(s) or an Appointed Provider for this purpose, ownership of the Content shall be determined by the agreement between you and the ByteKast and/or its Sub-Licensee(s) and/or Appointed Provider.

10.3 You shall, at all times, ensure that the Content published on the Platform (whether published by you or the ByteKast and/or its Sub-Licensee(s):

• 10.3.1 complies with all applicable laws and/or regulations;
• 10.3.2 does not infringe on any third party proprietary or other intellectual property rights;
• 10.3.3 does not violate any privacy, confidentiality or data protection rights;
• 10.3.4 is not abusive, harmful, illegal, offensive or otherwise objectionable;
• 10.3.5 does not constitute or encourage a criminal offence, or in any way violate the rights of any party;
• 10.3.6 does not portray any form of nudity, bestiality or pornography;
• 10.3.7 does not contain any false or misleading information or material.
• 10.3.8 The Licensor, as well as ByteKast and/or its Sub-Licensee(s) hereby reserves the right to, in its sole and absolute discretion, refuse to publish any Content to the Platform and/or to remove any Content from the Platform where the Content fails to comply with the provisions of this clause 10.

11. MAINTENANCE AND SUPPORT

11.1 Maintenance and support services shall consist of:

• 11.1.1 updates to the Platform; and
• 11.1.2 telephone and email support for queries in relation to the operation of the Platform (applicable to ByteKast and/or its Sub-Licensee(s) and/or Appointed Providers only);
• 11.1.3 other maintenance and support channels forming part of the Platform.

11.2 The Licensor does not provide any maintenance and/or support services in relation to the Content and merely provides guidance for the use of the Platform by means of the Documentation.

11.3 Updates to the Platform are automatically installed by the Licensor or ByteKast. However, if, for any reason whatsoever, you are required to install any update to the Platform, you hereby undertake to do so. The Licensor shall not, in an instance in which you are required to install an update to the Platform, be responsible for any technical difficulties or non-performance of the Platform as a result of any update to the Platform not having been installed.

11.4 In order for ByteKast and/or its Sub-Licensee(s) to provide effective maintenance and support services, you shall ensure that ED and its personnel are provided with such information under your control as is reasonably necessary to enable the Licensor or ByteKast and/or its Sub-Licensee(s) to comply with its maintenance and support obligations.

11.5 To the extent that you have engaged ByteKast and/or its Sub-Licensee(s), they may perform maintenance and support services in relation to the Platform and the Content on the terms and conditions agreed between you and ByteKast and/or its Sub-Licensee(s) and/or an Appointed Provider.

12. USE OF ALTERNATIVE PLATFORMS (SCORM EXPORTS)

12.1 This clause shall, in addition to the remaining provisions of these Terms and Conditions, apply in an instance in which the Content is developed, created, authored and/or published using the Platform but exported and imported to a platform other than the Platform for distribution and/or publishing purposes.

12.2 In the event that you intend to use another platform for purposes of distributing and/or publishing the Content, the Platform shall package the Content for purposes thereof (“SCORM package”). In this regard, you acknowledge that:

• 12.2.1 ownership of and all intellectual property rights in the source code of the SCORM package is and shall remain solely vested in ED. Nothing contained in these Terms and Conditions will be deemed to convey on you any title, ownership, copyright or other intellectual property rights in or related to the source code of the SCORM package or otherwise beyond your right of use of the SCORM package;
• 12.2.2 the provisions of clause 8 of these Terms and Conditions shall apply mutatis mutandis to the SCORM package;
• 12.2.3 SCORM packages are limited in their analytic ability due to the nature of SCORM. The Content is therefore only able to offer a basic version of analytics in comparison to the in-depth insights provided by the Platform;
• 12.2.4 reflective and survey page results cannot be tracked on SCORM and assignment uploads are not permitted by SCORM;
• 12.2.5 the Platform allows only for the export of SCORM packages but does not support external Learning Management Systems. Accordingly, no maintenance and support is provided by the Licensor, ByteKast and its Sub-Licensee(s) for external Learning Management Systems;
• 12.2.6 SCORM packages are not accompanied by any warranties;
• 12.2.7 ByteKast and its Sub-Licensee(s) do(es) not provide any guarantee, representation or warranty in relation to the functionality, operation, performance, availability, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness and delays, of the SCORM package;

12.3 The Licensor, ByteKast and its Sub-Licensee(s) shall not be liable or responsible for any errors in the Content that may occur as a result of the SCORM export or for any Content which is otherwise published and/or distributed by means other than the Platform;

12.4 SCORM packages are only supported by evergreen browsers and it shall be your responsibility to ensure that you have the necessary software / systems to support the SCORM package.

13. ACCOUNT TERMINATION / SUSPENSION

13.1 The Licensor, ByteKast and/or its Sub-Licensee(s) may immediately terminate your license to use the Platform in the following instances:

• 13.1.1 on 30 (thirty) days written notice for any reason whatsoever;
• 13.1.2 in the event of a breach of these Terms and Conditions and a failure to remedy such breach within 7 (seven) days of written notice calling on you to do so;
• 13.1.3 in the event of the termination or expiration of your agreement with the Licensor and/or ByteKast and/or its Sub-Licensee(s) and/or an Appointed Provider for any reason whatsoever.

13.2 Unless as otherwise agreed between you and ByteKast and/or its Sub-Licensee(s), you may terminate your Account at any time after the first 120 (one-hundred and twenty) days, upon 40 (forty) days written notice to ByteKast and/or its Sub-Licensee(s).

13.3 In the event of a termination of your Account, you acknowledge that, save for where the Licensor or ByteKast and/or its Sub-Licensee(s), as the case may be, is provided with a written instruction to delete your account or app data, including the account on the Platform, App(s) and all Content thereon, the Licensor shall retain your account information and your Content for a period of 5 (five) years from the date of termination for research, reference, and statistical purposes. Notwithstanding the aforegoing, the Licensor does not guarantee that your Content will remain available for 5 (five) years after the date of termination.

13.4 You may also, unless as otherwise agreed between you and ByteKast and/or its Sub-Licensee(s) suspend your Account at any time after the first 120 (one hundred and twenty) days and upon 40 (forty) days written notice to ByteKast and/or its Sub-Licensee(s) or the Licensor. In this event, the Licensor, ByteKast and its Sub-Licensee(s) shall retain your account and all Content published by you on the Platform for a maximum period of 5 (five) years for research and statistical purposes during which time, your Account may be reactivated with 30 (thirty) days written notice to ByteKast and/or its Sub-Licensee(s), as the case may be. A monthly fee shall be payable to ByteKast and/or its Sub-Licensee(s) in this regard, for so long as your Account remains suspended.

14. WARRANTIES

14.1 The Licensor warrants that it holds the necessary rights to grant the rights as specified in these Terms and Conditions and that the Platform does not infringe on the intellectual property rights of any third party.

14.2 Save for the warranties provided in clause 14.1 above, you acknowledge that the Platform is otherwise provided “as is” without any warranty of any kind, express or implied, including but not limited to warranties of performance, availability, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness, and delays.

14.3 ByteKast and/or its Sub-Licensee(s) shall endeavour to ensure a considerable uptime of the Platform but provides no warranty that access to the Platform will be uninterrupted, secure, complete or error free.

14.4 ByteKast and/or its Sub-Licensee(s) also makes no representation about the suitability of the information contained in the Documentation and related graphics published as part of the Services and the Documentation and related graphics are provided “as is” without any warranties of any kind. The Documentation could include technical inaccuracies and typographical errors and ByteKast and/or its Sub-Licensee(s) may make improvements and/or changes to the Documentation from time to time.

14.5 ByteKast and/or its Sub-Licensee(s) shall endeavour to ensure optimal latency of its technology and platforms, but provides no warranty for latency disruptions that are due to network outage from user providers, vast distances, or device configurations (such as Virtual Private Networks).

15. LIMITATION OF LIABILITY AND INDEMNITY

15.1 Under no circumstances shall the Licensor and/or ByteKast and/or its Sub-Licensee(s) assume any liability whatsoever for any loss or damage suffered by you in relation to your use of the Platform and/or any failure to comply with these Terms and Conditions nor shall the Licensor, ByteKast and/or its Sub-Licensee(s) be liable to you for any consequential, indirect, delictual, special, or other damages of any nature whatsoever or howsoever arising.

15.2 You hereby indemnify the Licensor, ByteKast, its Sub-Licensee(s) and their respective employees, directors and agents against any claim (including any legal costs incurred by the Licensor, ByteKast and/or its Sub-Licensee(s) in relation thereto) that may arise against the Licensor, ByteKast and/or its Sub-Licensee(s) as a result of your failure to comply with these Terms and Conditions, any infringement of a third party’s intellectual property in the creation and/or development of Content, any negligence on your part, either contractually or delictually and whether by act or omission, any violation by you of any laws or regulations.

15.3 All Apps distributed through ByteKast LXP UK are provided with an End User License Agreement (EULA) that grants the ByteKast and/or its Sub-Licensee(s) a single-use license to operate and provide services for the App that is linked to the Platform, ByteKast LXP UK.

15.4 You are required to notify ByteKast and/or its Sub-Licensee(s) of the commencement (or threatened commencement) of any civil, criminal, administrative or investigative action or proceedings involving any claim by any third party that the Platform infringes on the intellectual rights of any third party. ByteKast and/or its Sub-Licensee(s) shall be entitled to assume control over the defence and/or settlement of such claim on written notice to you alternatively, ByteKast and/or its Sub-Licensee(s) shall be entitled to participate in the defence of such claim and may employ Counsel at its own expense to assist in the handling of such claim. No settlement may be entered into by you without prior written consent by ByteKast and/or its Sub-Licensee(s).

15.5 The User shall indemnify and hold harmless the Licensor from any claim of damages, costs and expenses, including legal costs, loss of profits and any other liability of whatsoever nature resulting from the use of any the Licensor’s platforms and/or resulting from any third party copyright infringement or third party claim of copyright infringement of:

• 15.5.1 any patent under South African law; and
• 15.5.2 any patent issued and/or registered under the laws of any other country and/or in which the aggrieved third party may operate.

15.6 The User and/or Originator agrees not to use or exploit the platform for any purpose that is illegal, harmful or prohibited under South African law or in contravention of these Terms.

15.7 The User specifically undertakes and agrees that it may not use the platform to disclose, share, send or publish any content and/or material of whatsoever nature that may be copyrighted, offensive, defamatory, prohibited, regulated, inaccurate, untrue or damaging to any person and/or entity.

15.8 In this regard, the User and/or ByteKast and/or its Sub-Licensee(s) shall have the sole responsibility to ascertain whether any content and/or material is copyrighted, offensive, defamatory, prohibited, regulated, inaccurate, untrue or damaging to any person and/or entity.

15.9 The User and/or ByteKast and/or its Sub-Licensee(s) shall indemnify and hold harmless the Licensor from any claim of damages, costs and expenses, including legal costs, loss of profits and any other liability of whatsoever nature resulting from the contravention of the above two clauses.

16. PRIVACY POLICY

Your data privacy is important to us, and is protected by personal information or data protection laws that require us to inform you how we store and process your personal data. These Terms and Conditions should be read in tandem with the relevant Privacy Policies of the Platform Licensor and Licensee before creating a Platform Account.

• 3.1.1 Privacy Policy of the platform and App licensee, ByteKast
  https://app.bytekast.io/legal/privacy/.
• 3.1.2 Privacy Policy of the platform and App licensor, Everyday Digital
  https://everydaydigital.co.za/privacy/.

17. LINKS TO THIRD PARTY WEBSITES

17.1 The Website and/or any Platform-related communications may contain links to third party websites. These links to third party websites are provided solely for your convenience and do not imply endorsement by ByteKast and/or its Sub-Licensee(s) of the third party website.

17.2 You agree and acknowledge that these third party websites are not under the control of ByteKast and/or its Sub-Licensee(s) and they are not responsible for the content of any linked site or any link contained in a linked site, or any changes or updates to such websites.

18. FORCE MAJEURE

Neither the Licensor nor ByteKast and/or its Sub-Licensee(s) shall be responsible for a failure to provide the Services hereunder to causes beyond its control, including but not limited to, work stoppages, fires, civil disobedience, riots, rebellions, earthquakes, floods, acts of God and similar occurrences. Provision of the Services shall be resumed as soon as possible but within 30 (thirty) days of such cause, failing which your Account shall terminate.

19. NOTICES

Except as otherwise provided, all notices and correspondence must be given in writing to the Licensee, who may convey this to the relevant its Sub-Licensee(s):

THE LICENSEE: BYTEKAST
https://www.bytekast.io
frank@bytekast.io

THE LICENSOR: EVERYDAY DIGITAL (PTY) LTD
http://www.everydaydigital.co.za
Contact us at: dpo@everydaydigital.co.za

20. GOVERNING LAW

Any dispute arising under or in any way connected with these Terms and Conditions shall be subject to the laws of the Republic of South Africa.

21. CESSION AND ASSIGNMENT

21.1 You will not be entitled to cede or assign any rights and/or obligations which you may have in terms of these Terms and Conditions to any third party.

21.2 ByteKast and/or its Sub-Licensee(s), and the Licensor may cede and/or assign any rights and/or obligations in terms of these Terms and Conditions upon notification to you.

22. COSTS

In the event of any action or proceeding being brought to enforce or interpret any provision of these Terms and Conditions or recover any amounts, the prevailing party in such action or proceeding will be entitled to recover all costs incurred by it, whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.

23. SEVERABILITY

Should any provision be declared illegal, invalid or unenforceable in any jurisdiction affected by these Terms and Conditions, such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition and shall be severed from the balance of the provisions hereof, without invalidating the remaining provisions of these terms and conditions or affecting the validity or enforceability of such provision in any other jurisdiction.