subscription & license agreement

THESE GENERAL TERMS AND CONDITIONS (“GENERAL TERMS AND CONDITIONS”), AS MAY BE AMENDED BY SUPPLEMENTAL TERMS AND CONDITIONS (“SUPPLEMENTAL TERMS AND CONDITIONS,” IF ANY, TOGETHER WITH THESE GENERAL TERMS AND CONDITIONS, “TERMS AND CONDITIONS”) APPLY TO AND GOVERN THE PERFORMANCE OF ANY QUOTE(S), ORDER FORM(S), PURCHASE ORDER(S), RECEIPT(S), INVOICE(S), STATEMENT(S) OF WORK OR OTHER SIMILAR DOCUMENT(S) THAT EXPRESSLY INCORPORATES THE TERMS AND CONDITIONS  BY REFERENCE (“ORDERING DOCUMENT”) THAT IS AGREED BETWEEN THE PROVIDER IDENTIFIED IN THE ORDERING DOCUMENT (“PROVIDER”) AND THE CUSTOMER IDENTIFIED IN THE ORDERING DOCUMENT (“CUSTOMER”). THE TERMS AND CONDITIONS AND THE ORDERING DOCUMENT TOGETHER CONSTITUTE THE SUBSCRIPTION AND LICENSE AGREEMENT BY AND BETWEEN THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.”

BY SIGNING AN ORDERING DOCUMENT, CLICKING “I ACCEPT”, OR ACCESSING OR USING THE (1) SUBSCRIPTION SERVICES, IF ANY, IDENTIFIED IN THE APPLICABLE ORDERING DOCUMENT (“SUBSCRIPTION SERVICE(S)”); (2) LICENSED PRODUCTS, IF ANY, IDENTIFIED IN THE APPLICABLE ORDERING DOCUMENT (“LICENSED PRODUCT(S)”), (3) SUPPORT SERVICES FOR THE SUBSCRIPTION SERVICES OR LICENSED PRODUCTS, IF ANY, IDENTIFIED IN THE APPLICABLE ORDERING DOCUMENT (“SUPPORT SERVICE(S)”); OR (4) PROFESSIONAL SERVICES TO SUPPORT IMPLEMENTATION, CONFIGURATION, ENHANCEMENT, AND/OR USE OF THE SUBSCRIPTION SERVICES OR LICENSED PRODUCTS, IF ANY, IDENTIFIED IN THE APPLICABLE ORDERING DOCUMENT (“PROFESSIONAL SERVICE(S)”) TOGETHER WITH SUBSCRIPTION SERVICES, LICENSED PRODUCTS, AND SUPPORT SERVICES, “SOLUTIONS”)), CUSTOMER IS INDICATING THAT CUSTOMER HAS READ, UNDERSTANDS, AND ACCEPTS THESE TERMS AND CONDITIONS. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS, CUSTOMER MAY NOT ACCESS, INSTALL, OR OTHERWISE USE ANY SOLUTIONS.

1. SUBSCRIPTION. This Section 1 applies to Customer’s purchase of any Subscription Services. Subject to the terms and conditions set forth in the Agreement, including payment of the fees set forth in the applicable Ordering Document, Provider hereby grants, and Customer hereby accepts, a non-exclusive, non-sublicensable, non-transferable, revocable, limited, subscription right to permit Customer’s employees, agents, independent contractors, and/or other authorized users, if any, identified in the applicable Ordering Document or Supplemental Terms and Conditions (collectively, “Authorized Users”) to access and use the Subscription Services, solely for Customer’s purposes set forth in the applicable Ordering Document or Supplemental Terms and Conditions (“Purpose”), in accordance with any user instructions or other documentation that Provider may, in its sole discretion, provide or make available to Customer in any form or medium and which describes the functionality, components, features, or requirements of the Subscription Service (“Documentation”) in the United States and/or other territories, if any, identified in the applicable Ordering Document or Supplemental Terms and Conditions (“Territory”) during the  term identified in the applicable Ordering Document or Supplemental Terms and Conditions, unless earlier terminated (“Term”). Use of the Subscription Services is restricted and subject to the number of users, specifications, and other parameters, if any, set forth in the applicable Ordering Document.
2. LICENSE. This Section 2 applies to Customer’s purchase of any Licensed Products. Subject to the terms and conditions set forth in the Agreement, including payment of the fees set forth in the applicable Ordering Document, Provider hereby grants, and Customer hereby accepts, a non-exclusive, non-sublicensable, non-transferable, revocable, limited, license to install and use the Licensed Product in machine-readable object code form only, solely for the Purpose, in accordance with the Documentation, in the Territory during the Term. Use of the Licensed Products is restricted and subject to the number of Authorized Users, devices, specifications, and other parameters, if any, set forth in the applicable Ordering Document.
3. RESERVED RIGHTS. Provider retains all rights not expressly granted to Customer hereunder. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to any of the Solutions.  Provider reserves the right to make changes to the Solutions and Documentation to maintain or enhance the quality, delivery, competitive strength, marketability, cost efficiency, or performance of Provider’s products or services, or to comply with applicable law.
4. RESTRICTIONS AND REQUIREMENTS.
   1. Customer will not and will not allow any third party to: (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Solutions or Documentation in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Solutions; (b) access all or any part of the Solutions or Documentation if Customer or such third party is a competitor of Provider, or for purposes of monitoring the availability, performance, or functionality of the Solution, or for any other benchmarking or competitive purposes; (c) except to the extent expressly permitted under this Agreement, use the Solutions or Documentation to provide services to any third party; (d) except to the extent expressly permitted under this Agreement, license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit the Solutions or Documentation; (e) attempt to gain unauthorized access to any Solutions, to any non-public account or authentication credentials of, or accounts registered to, others, or to any computers, servers or networks connected to the Solutions by any means other than the user interface provided by Provider, including by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of Solutions; (f) remove, delete, alter, or obscure any trademarks, specifications, documentation, warranties, or disclaimers, or any copyright, trademark, or other intellectual property or proprietary rights notices from the Solutions or Documentation; (g) use the Solutions to support email messages or other communications that are unsolicited, deceptive, anonymous, excessively voluminous or that contain falsified identifying information, including spamming and phishing; (h) use the name of Provider or any licensor of Provider or any of their respective products or services  or any abbreviations of such names or any trademark, trade name, service mark, logo, or other identifying information of Provider or its licensors in the originating or return email address line, header, subject line, or body of any email transmission or any other communication, on a website, in marketing, or other materials, unless approved by Provider and its licensor(s) in writing (any such approval will not relieve Customer of any of its representations, warranties, undertakings and/or indemnities under the Agreement); or (h) use the Solutions in violation of any applicable law, rule, or regulation. All uses in the Agreement of the terms “purchase,” “sell,” “sale,” “price,” and the like mean the purchase or sale of a subscription or license by Customer.
   2. Customer will have sole responsibility for all content and other materials, including text, images, videos, and audio, input into the Subscription Services or otherwise provided to Provider by or on behalf of Customer (“Customer Content”) and data and other information, including personal data, input into the Subscription Services or otherwise provided to Provider by or on behalf of Subscriber or Authorized Users (“Customer Data”), including the legality, consent for processing, reliability, integrity, accuracy, and quality of Customer Content and Customer Data. Customer acknowledges that Customer: (a) controls the type and substance of Customer Content and Customer Data; and (b) sets permissions to access Customer Content and Customer Data; and therefore, Customer is responsible for reviewing and evaluating whether the documented functionality of the Solutions meets Customer’s security requirements and obligations relating to Customer Content and Customer Data under applicable laws. Customer will secure and maintain all rights in Customer Content and Customer Data necessary for Provider to provide the Solutions to Customer without violating the rights of any Authorized User or other third party or otherwise obligating Provider to any Authorized User or any third party. Provider may access and use the Customer Content and Customer Data solely to provide the Solutions and as otherwise agreed by the parties.
   3. If Customer provides any Customer Data to Provider or Provider collects or otherwise uses any Customer Data via the Solutions, Customer will ensure that such collection and use complies with all applicable laws and Customer’s privacy policy that will be made available and agreed to by the Authorized Users.
   4. Customer will not use the Solutions to collect or otherwise use any “Prohibited Data” which means any: (1) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1), any successor legislation, and any applicable United Kingdom laws including the U.K. GDPR; (2) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (HIPAA); (3) credit, debit, or other payment card data or financial account information, including bank account numbers; (4) credentials granting access to an online account (e.g. username plus password); (5) social security numbers, driver’s license numbers, or other government identification numbers; (6) other information subject to regulation or protection under specific laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); or (7) any data similar to the above protected under foreign or domestic laws; and will not use the Subscription Services in connection with any activities where its use or failure could lead to death, personal injury, or environmental damage, such as in life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control (collectively, “High Risk Activities”). Customer acknowledges that the Solutions are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Provider is not a Business Associate as defined under HIPAA. Therefore, notwithstanding anything else in this Agreement, Provider has no liability for Prohibited Data processed, or High-Risk Activity-related use, in connection with the Solutions.
   5. Customer will comply with Provider’s acceptable use and related guidelines for the Solutions. Without limiting the generality of the foregoing, Customer will not access, store, distribute, upload, or transmit to or from the Solutions nor include in the Customer Content or Customer Data anything (including any software, code, file, program or other material) which may: (1) prevent, impair, or otherwise adversely affect the operation of the Solutions or any computer software, hardware, or network, any telecommunications service, equipment, or network, or any other service or device, or user experience; (2) prevent, impair, or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering, or erasing the program or data in whole or part or otherwise);  (3) contain any viruses, malware, worms, spyware, or other components or instructions that are malicious, deceptive, or designed to limit or harm the functionality of the Solutions or any other service or device or use experience; (4) promote harassment, bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age; (5) be inappropriate, offensive indecent, obscene, pornographic, hateful, tortious, untruthful, inaccurate, defamatory, slanderous, or libelous; (6) promote any political agenda; (7) facilitate or promote violence or illegal activity; or (8) cause damage or injury to any person or property. Provider reserves the right, without liability or prejudice to its other rights to Customer, to remove or disable access to any material that breaches this Agreement; provided, however, Provider will have no obligation to screen, verify, censor, or disable access to such material.
   6. Customer will comply with Provider’s technical requirements for the Solutions. Customer is responsible for controlling access to and use of the Solutions in accordance with this Agreement. Customer is responsible for maintaining the confidentiality of any non-public account or authentication credentials associated with Customer’s use of the Solutions. Customer will promptly notify Provider about any possible misuse of Customer’s account or authentication credentials, or any security incident related to the Solutions. Customer will ensure that Authorized Users comply with this Agreement. Customer will ensure that its network and systems comply with the relevant specifications provided by Provider from time to time; and be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Provider’s data centers, and all problems, conditions, delays, delivery failures, and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet.
   7. Customer acknowledges and agrees that Provider may access via the Solutions and/or obtain from Customer, information, assets, and services, including Customer Data and security access information, to facilitate Provider’s performance of its obligations, respond to support requests, detect, prevent, or otherwise address fraud, security, legal, or technical issues, verify Customer’s performance of its payment and other obligations hereunder, and enforce the terms and conditions of this Agreement. Customer further acknowledges and agrees that Provider may use Customer Data to provide notifications to Authorized Users regarding usage, including comparisons of usage between Authorized Users.
5. SUPPORT SERVICES. During the Term, Provider will support the Solutions in accordance with the applicable standard support policy for the Solutions then in effect, if any, unless otherwise set forth in the applicable Supplemental Terms and Conditions or Ordering Document.
6. PROFESSIONAL SERVICES. This Section 6 applies to Customer’s purchase of any Professional Services. Provider may offer and Customer may purchase Professional Services through an Ordering Document. For Professional Services engagements, Customer will, at its expense, provide Provider with secure remote access to its systems and network to the extent required to perform the Professional Services, which access must meet market-prevailing security standards applicable to the information and data accessed and any other security Provider may reasonably request. Throughout all Professional Services engagements, Customer will assign adequate personnel and resources and reasonably cooperate with Provider for completion of Professional Services as scheduled, including (i) assigning a project contact authorized to provide required decisions and approvals, (ii) providing timely, complete, and accurate responses to information requested by Provider. Provider will not be responsible for any incremental costs or damages resulting from a Professional Services performance delay caused by Customer’s failure to perform or timely perform any of its obligations. Customer will be charged at Provider’s then-current daily rates for any additional time needed by Provider to complete the Professional Services due to such delays. Unless expressly provided otherwise in an Ordering Document, any project extensions will be charged at Provider’s then-current daily rates.
7. PRIVACY AND SECURITY PROGRAM OVERVIEW. During the Term, Provider will comply with Provider’s applicable privacy policy for the Solution as set forth in the Supplemental Terms and Conditions.  During the Term, Provider will comply with the Provider’s security program overview, which is available at www.elblearning.com/security-program-overview, for the Solutions. Provider agrees to use industry standard data security protocols, and other methods reasonably deemed to be adequate for securing business data, to maintain the administrative, physical, technical security, confidentiality, and integrity of Customer’s Data. Those safeguards will include measures for preventing unauthorized access, use, modification, or disclosure of Customer’s Data by Provider’s personnel, except (a) to provide the Solutions to Customer and prevent or address service or technical problems, (b) as compelled by law, or (c) as Customer or Authorized Users authorize through explicit written authorization, acceptance of terms, or configuration of application parameters or Solution settings. Notwithstanding the previous sentence, Customer agrees that during the course of providing the Solutions, Provider may collect and use technical and related information, including technical information about Customer’s computer system and application software, to facilitate the provision of updates to the Solutions, and support to Customer, and to verify compliance with the terms of this Agreement. Additionally, Provider may use any of this information, and in the event of system or Solution error, may share it with other persons, as long as it is in a form that does not personally identify Customer, to improve the Solutions.
8. FEES.
   1. Fees are specified in the applicable Ordering Document. Unless otherwise set forth in the Ordering Document, payment terms are net thirty (30) days from the date of invoice.  All amounts payable to Provider under this Agreement will be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.  If Customer fails to make any payment when due, then in addition to all other remedies that may be available: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer will reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and (iii) Provider may suspend Customer’s access to the Solutions until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer by reason of such suspension.
   2. All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”). Customer will pay all Taxes associated with this Agreement, excluding any taxes based on Provider’s net income, property, or employees. If Customer is required by applicable law to withhold any Taxes from payments owed to Provider, Customer will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by Provider. Customer will provide Provider with proof of payment of any withheld Taxes to the appropriate authority. Taxes will be shown as a separate line item on an invoice.
9. TERM AND TERMINATION.
   1. This Agreement is effective as of the effective date of the initial Ordering Document and will continue until the expiration of the last Term, unless earlier terminated.
   2. If this Agreement terminates as a result of there being no active Ordering Document, this Agreement will automatically become effective again in the event that a new Ordering Document is entered into by and between the parties.
   3. Without prejudice to any other rights or remedies to which Provider may be entitled, Provider may at any time terminate this Agreement, any Ordering Document, and Customer’s access to any and all Solutions if Customer breaches any provision of this Agreement, if Provider is required to do so by law, or if Provider elects to discontinue the Solutions, in whole or in part, because it becomes impractical for Provider to continue offering the Solutions due to a change of law.
   4. Customer may terminate this Agreement, effective on written notice to Provider, if Provider materially breaches this Agreement, and such breach remains uncured thirty (30) days after Customer provides Provider with written notice of such breach.
   5. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement, (i) all rights, licenses, consents, and authorizations granted by Provider to Customer hereunder will immediately terminate; (ii) Customer will immediately cease all use of the Solutions and Documentation; (iii); and (iii) no portion of any prior payments will be repayable to Customer, and any and all payments due or to become due will be immediately due and payable.  By the very nature of the Solutions and the way Customer uploads Customer Content to the Solutions and accesses Customer Data from the Solutions, Customer Content and Customer Data will not be retrievable from the Solutions following expiration of terminations of Term. Provider will either delete or irreversibly anonymize the Customer Content and Customer Data residing on its servers.
   6. Provisions that survive termination or expiration of this Agreement are those relating to confidentiality, limitation of liability, indemnification, payment, and others which by their nature are intended to survive.  Without limiting the generality of foregoing, Sections 8 through 19 will survive expiration or termination of this Agreement.
10. PROPRIETARY RIGHTS.
    1. Provider acknowledges and agrees that, as between Provider and Customer, Customer owns all intellectual property rights in Customer Content and Customer Data. Customer acknowledges and agrees that, as between Provider and CustomProvider owns all intellectual property rights in the Solutions and Documentation. Except as expressly stated in the Agreement, Provider does not grant Customer any rights to, or in, patents, copyrights, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Solutions or Documentation. Any and all updates, enhancements, modifications, corrections, and derivative works that are made to the Solutions and Documentation will be owned by Provider.
    2. Provider may compile aggregate data, anonymous data, and other statistical information related to Customer’s use of the Solutions and may make such information publicly available, provided that such information does not incorporate Customer’s Confidential Information, Customer Content, or Customer Data that contains any personally identifiable information. Without limiting the generality of the foregoing, Provider may use in its marketing and advertising, non-Customer specific Service activity, including the total number of users, average time spent per user, success metrics, activities used by users and other performance-based statistics to attract new customers.
    3. Provider owns all intellectual property rights in such aggregate data, anonymous data, and other statistical information.
    4. Provider may use tools, scripts, software, and utilities (collectively, “Tools”) to monitor and administer the Solutions and to help resolve service requests. The Tools will not collect, report, or store any Customer Data residing in the service production environment, except as necessary to monitor and administer the Solutions and to help resolve service requests. Data collected by the Tools (excluding production data) may also be used to analyze certain information about the actual use of the Solution by the Customer (such as pages viewed, links clicked, help functions used, and other workflow information); such data shall not be considered Confidential Information of Customer hereunder, and may be used by the Provider for assisting in managing Provider’ product and service portfolio, error resolution, product analytics and improvement, and for license administration and management. Provider and its licensors own all intellectual property rights in such Tools; and Provider owns all intellectual property rights in such resulting data.
    5. Customer acknowledges and agrees that Provider owns all rights to any feedback provided to Provider, including any survey responses, bug reports, enhancement requests, issue reports, and support information; and Provider will be free to use such feedback for any purpose.
11. CONFIDENTIALITY.  Each party will maintain as confidential and will not disclose (except to its employees, accountants, attorneys, advisors, affiliates, consultants, outsourcers and third party service providers of recipient with a need to know in connection with recipient’s performance under this Agreement, and who have been advised of the obligation of confidentiality hereunder), copy or use for purposes other than the performance of this Agreement, any information which relates to the other party’s business affairs, trade secrets, technology, research, development, pricing or terms of this Agreement (“Confidential Information”) and each party agrees to protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information and to prevent unauthorized, negligent or inadvertent use, disclosure or publication thereof. Breach of this Section 11 may cause irreparable harm and damage.  Thus, in addition to all other remedies available at law or in equity, the disclosing party will have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys’ fees and expenses) incurred in connection with such unauthorized use. The recipient will be liable to the disclosing party for any use or disclosure in violation of this Section 11 by recipient or its affiliates, employees, third party service providers or any other related party.  Confidential Information will not include information that (i) is already known prior to the disclosure by the owning party; (ii) is or becomes publicly known through no breach of this Agreement; (iii) is independently developed without the use of the other party’s Confidential Information and evidence exists to substantiate such independent development; (iv) information that is obtained from a third party, and that third party is not, in good faith belief of the recipient, under any legal obligation of confidentiality; or (v) the recipient receives written permission from the disclosing party for the right to disclose any Confidential Information.
12. PUBLICITY.  Neither party will, except as otherwise required by applicable law, issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s name or trademarks without the prior written consent of the other party; provided, however, that Provider may identify Customer as a recipient of Solutions and use Customer’s logo in websites, sales presentations, marketing materials, and press releases; (ii) to develop a brief customer profile for use by Provider on Provider’s websites for promotional purposes; and (iii) use the email addresses of Authorized Users for the purpose of communicating program enhancements and information about Provider’s other products and services during the term of the Agreement.
13. REPRESENTATIONS AND WARRANTIES.
    1. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
    2. Provider warrants that: (a) the Subscription Services will perform in material conformity with the functions described in the applicable Documentation during the applicable Term of the applicable Subscription Services; and (b) the Licensed Products will perform in material conformity with the functions described in the applicable Documentation for thirty (30) days after delivery. Provider will use commercially reasonable efforts to remedy any material non-conformity of the Subscription Services or the Licensed Products that is discovered and made known to Provider by Customer during the applicable warranty period. If Provider is unable to remedy such material non-conformity within thirty (30) days or such other commercially reasonable period agreed between the parties, and the non-conformity materially and adversely affects the functionality of the Subscription Services or the Licensed Products, Customer may terminate the applicable Term of the Subscription Services or the Licensed Products and receive a refund of the unused portion of any fees that Customer has previously prepaid to Provider for the terminated Subscription Services or the Licensed Products. This Section 13(b) contains Customer’s sole and exclusive remedy, and Provider’s entire liability, for any breach of Provider’s warranties.
14. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 13, PROVIDER MAKES NO, AND HEREBY DISCLAIMS ALL, WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SOLUTIONS OR DOCUMENTATION, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER PRODUCTS OR SERVICES, OR BE ACCURATE, COMPLETE OR ERROR FREE.  PROVIDER WILL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND CUSTOMER ACKNOWLEDGES THAT THE SOLUTIONS MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PROVIDER WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, OR DISCLOSURE OF CUSTOMER CONTENT OR CUSTOMER DATA CAUSED BY ANY THIRD PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW. ALL THIRD-PARTY PRODUCTS AND SERVICES THAT ARE SEPARATELY LICENSED BY A THIRD PARTY ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY PRODUCTS OR SERVICES IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. TRANSLATIONS OF THE SOLUTIONS OR DOCUMENTATION INTO LANGUAGES OTHER THAN ENGLISH ARE INTENDED SOLELY AS A CONVENIENCE. SOME SOLUTIONS OR DOCUMENTATION MAY NOT WORK AS EXPECTED WHEN TRANSLATED DUE TO LANGUAGE RESTRICTIONS. NO LIABILITY IS ASSUMED BY PROVIDER FOR ANY ERRORS, OMISSIONS, OR AMBIGUITIES IN TRANSLATIONS. THE SOLUTIONS ARE NOT DESIGNED OR INTENDED FOR USE IN MEDICAL, NUCLEAR, AVIATION, NAVIGATION, MILITARY OR OTHER HIGH-RISK ACTIVITIES WHERE FAILURE OF THE SOLUTIONS COULD RESULT IN DEATH, PERSONAL INJURY, AND/OR SUBSTANTIAL PROPERTY DAMAGE.  PROVIDER EXPRESSLY DISCLAIMS AND IS RELEASED FROM ANY RESPONSIBILITY OR LIABILITY FOR ANY AND ALL DAMAGES THAT MAY BE INCURRED DUE TO THE USE OF THE SOLUTIONS FOR SUCH APPLICATIONS. PRE-RELEASE, BETA, TRIAL, AND FREE PRODUCTS AND SERVICES, IF ANY, ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.”
15. LIMITATION OF LIABILITY.
    1. IN NO EVENT WILL PROVIDER BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IS NEGLIGENT. THE CUMULATIVE LIABILITY OF PROVIDER TO CUSTOMER FOR ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO PROVIDER FOR THE SPECIFIC SOLUTION GIVING RISE TO THE LIABILITY UNDER THE APPLICABLE ORDERING DOCUMENT WITHIN THE YEAR IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY.
    2. Notwithstanding anything to the contrary set forth in this Agreement, Provider will have no obligation or liability, including (without limitation) with respect to support, warranties, indemnification, or otherwise in connection with any: (i) unauthorized use of any Solutions or Documentation; (ii) any Solutions or Documentation that is altered, damaged, or modified by Customer or any third party; (iii) any Solutions or Documentation that is not the then current release available from Provider; (iv) problems caused by Customer’s or any third party’s negligence, hardware malfunction, or other causes beyond the control of Provider; (v) any Solutions accessed on a hardware or operating system environment that is not supported by Provider; (vi) the combination, operation, or use of any Solutions with other product(s) or service(s) not supplied by Provider; (vii) pre-release, beta, trial, or free Solutions; (viii) Customer Content, Customer Data, or any other technology, materials or information provided by Customer or any third party; or (ix) any actions taken by Provider at Customer’s direction.
16. INDEMNIFICATION.
    1. If a third-party claims that a Solution infringe any U.S. patent, copyright, or trade secret, Provider will defend Customer against such claim at Provider’s expense and pay all damages finally awarded through judgment or settlement, provided that Customer promptly notifies Provider in writing of the claim, allows Provider sole control of the defense and/or settlement, and cooperates with Provider in, the defense or settlement of such action.  If such a claim is made or appears possible, Provider may, at its option, secure for Customer the right to continue to use the Solution, modify or replace the Solution so that the Solution is non-infringing, or, if neither of the foregoing options is available in Provider’s reasonable opinion, terminate this Agreement and refund to Customer any unamortized prepaid      fees for use of the Solution.  THIS PARAGRAPH STATES PROVIDER’S ENTIRE OBLIGATION TO CUSTOMER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
    2. Customer will indemnify, defend and hold harmless Provider and its  officers, directors, employees, agents, successors and assigns from and against any and all claims, losses, liabilities, damages, causes of action, suits, expenses, and costs (including reasonable attorneys and expert witness fees) which result from or arise out of a claim by a third party that, if true, would constitute a breach of any representation, warranty, or covenant made by Customer hereunder; or relating to Customer Content, Customer Data, or any other materials or information provided by or on behalf of Customer, including without limitation: (a) claims by Authorized Users; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information by Customer ; (c) claims related to infringement or violation of any applicable law; and (d) claims that use of the Solutions through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising.
17. ALLOCATION OF RISK. Customer acknowledges and agrees that Provider has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability in this Agreement, that the same reflect an allocation of risk between Provider and Customer (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between Provider and Customer. If Customer is subject to applicable laws that prohibit Customer from indemnifying Provider as set forth herein or prohibit Customer from entering into the risk allocation arrangement set forth herein, then (a) the terms of such provisions of this Agreement shall apply to Customer only to the fullest extent permitted by applicable law, it being understood that Customer and Provider each wish to enforce the provisions of this Agreement to the maximum extent permitted by applicable law; and (b) Customer must, within thirty (30) days of the commencement of the Term, notify Provider to specifically identify the applicable laws that apply to Customer and the resulting modifications to the risk allocation and indemnification provisions of this Agreement as a result of the application of such applicable laws.
18. THIRD PARTY PRODUCTS AND SERVICES. The Solutions may contain features and functionalities linking Customer or providing Customer with certain functionality and access to third party products and services, including content, websites, directories, servers, networks, systems, information, databases, applications, and software. Customer acknowledges that Provider is not responsible for such third-party products and services. Any terms associated with such third-party products and services are solely between Customer and the applicable third party.
19. GENERAL.
    1. RELATIONSHIP OF PARTIES.  This Agreement will not be construed as creating an agency, partnership, joint venture, or any other form of association, for tax purposes or otherwise, between the parties, and the parties will at all times be and remain independent contractors.  Except as expressly agreed by the parties in writing, neither party will have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.
    2. ASSIGNMENT.  This Agreement may not be assigned or transferred by Customer, whether by operation of law or otherwise, without Provider’s prior written consent.
    3. FORCE MAJEURE. Provider will have no liability to Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, work stoppage, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation, or direction, accident, breakdown of plant or machinery, fire, flood, storm, tornado,  technological, computer hardware or software errors, delays, or breakdowns, including those caused by attacks from unauthorized users who access the technological infrastructure, e.g., hackers, or default of sub-contractors or other third parties.
    4. WAIVER. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.  Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
    5. SEVERABILITY.  If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions will remain in force.  If any invalid, unenforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
    6. NOTICES.  Any notice required to be given under this Agreement will be in writing and will be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by electronic mail to the other party’s address as set out in this Agreement or as the other party may specify in writing.  A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received at the time at which it would have been delivered in the normal course of post.  A notice sent by electronic mail will be deemed to have been received when the recipient acknowledges receipt of such notice.
    7. GOVERNING LAW AND DISPUTES.  This Agreement and any dispute arising hereunder will be governed by and interpreted and construed in accordance with the laws of the State of Delaware, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The place of performance and exclusive jurisdiction for any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) is the principal place of business of the Provider. The Uniform Computer Information Transactions Act or the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or purchases placed under it.
    8. EXPORT LAWS. Each party will (i) comply with applicable laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”) and (ii) not directly or indirectly export, re-export or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Customer represents that it is not a Sanctions Target or prohibited from receiving Services pursuant to this Agreement under applicable Laws, including Export Laws.
    9. GOVERNMENT USE.  If Customer is a branch or agency of the U.S. Government, then use, duplication, or disclosure of the Solutions are subject to the restrictions set forth in this Agreement, except that this Agreement shall be governed by federal law.
    10. ANTI-CORRUPTION. Each Party acknowledges its obligation to comply with all applicable anti-corruption legislation and represents that, to its knowledge, no money or other consideration of any kind paid or payable under this Agreement or by separate agreement is, has been or will be used for unlawful purposes, including purposes violating anti-corruption laws, including making or causing to be made payments to any employee of either party or anyone acting on their behalf to assist in obtaining or retaining business with, or directing business to, any person, or securing any improper advantage.
    11. ENTIRE AGREEMENT.  This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof. If these General Terms and Conditions conflict with any of the terms or conditions of any Ordering Document, Supplemental Terms and Conditions, or Documentation, then the order of precedence will be:      (i) Supplemental Terms and Conditions; (ii) General Terms and Conditions; (iii) the Ordering Document; and (iv) the Documentation; provided that a conflicting term in an Ordering Document will take precedence over the Terms and Conditions if the Ordering Document (a) is signed by an authorized representative of both parties, (b) expressly states that the parties intend to override or replace a provision of the Terms and Conditions that it overrides, and (c) identifies the particular provision in the Terms and Conditions being overridden or replaced. Any purchase orders issued by Customer will be deemed to be for Customer’s convenience only and, notwithstanding acceptance of such orders by Provider, will in no way change, override, or supplement this Agreement. This Agreement applies to the exclusion of any terms or conditions Customer seeks to impose or incorporate, or that might be implied by usage of trade, custom, practice, course of dealing, course of performance or otherwise. Any term or agreement related to the subject matter hereof or any change, addition, or modification to the terms of the Agreement shall be valid and enforceable only if it is made in writing as an amendment or addendum to the and executed by Customer and a duly authorized officer of Provider.

SUPPLEMENTAL TERMS AND CONDITIONS

The following supplemental terms and conditions apply for The Training Arcade subscription:

1. Section 1 of the General Terms and Conditions is hereby amended to add the following:
   

   Purpose: Customer’s training and professional development

   Game Type: Customizable game template in The Training Arcade for the reinforcement, evaluation, and optimization of training, as set forth in the Ordering Document.

   Game: Game Type populated with Customer Content via The Training Arcade.

   Authorized User: An employee, agent, or independent contractor of Customer who are designated by Customer via the Subscription Services as “Primary Administrator,” “Author,” “Viewer/Facilitator,” or “Learner.” The Primary Administrator is designated by the Customer during the online setup process. The Primary Administrator and Author(s) may access the Game Type authoring tools to populate the Game Types with Customer Content and to invite Learners to access the Games via the Subscription Services. The Primary Administrator, Author(s), and Viewer(s)/Facilitator(s) may view the Game analytics dashboard and leaderboard via the Subscription Services. The Learners may access and play the Games as provided to them by the Primary Administrator or Author via the Subscription Services.

   Learners (up to the number indicated in the Ordering Document, whether such Learner is uniquely identified through a data field such as an email address or unregistered playing anonymously) may access the Games and Arcades, if purchased, during the Term in the Territory in accordance with this Agreement for the fee indicated in the Ordering Documents. Learners uniquely identified through a data field such as an email address or employee ID # are counted only once during the Term.  In anonymous gameplay, each session counts toward the Learner threshold.

2. Section 3 of the General Terms and Conditions is hereby amended to add the following:
   

   All aspects of running challenges, contests, and other promotions and/or awarding, purchasing, and delivering prizes and incentives, including drafting rules and compliance with all contest, promotion, tax, and other applicable laws, are the sole responsibility of the Customer, and neither Provider nor its licensors bear any risk or responsibility thereunder.

   Customer will not place a link to any functionality available from the Subscription Service onto a public-facing website or social media site.

3. Section 5 of the General Terms and Conditions is hereby amended to add the following:
   

   Provider shall provide Customer with access to support personnel for assistance in the use of the Subscription Service as indicated at https://thetrainingarcade.com/faqs-the-training-arcade/.

    

4. Sections 7 of the General Terms and Conditions is hereby amended to add the following:
   

   Privacy Policy: Privacy Policy is available at https://thetrainingarcade.com/privacy-policy/     .

   Data Processing Addendum: If Customer’s use of The Training Arcade involves processing personal data pursuant to Regulation 2016/679 (GDPR) and/or transferring personal data outside the United Kingdom, the European Economic Area, or Switzerland to any country not deemed by the UK Information Commissioner’s Office or European Commission as providing an adequate level of protection for personal data or applicable personal data regulations, then the Data Processing Addendum available at this link shall apply to such processing and are hereby incorporated by reference. For the purposes of the Standard Contractual Clauses in Schedule 3 to the Data Processing Addendum, Customer is the data exporter, and Customer’s acceptance of the Ordering Document shall be treated as Customer’s signature of the Standard Contractual Clauses and appendices. For purposes of compliance with the EU General Data Protection Regulation, Customer is the Data Controller and Provider is the Data Processor.

5. Section 9 of the General Terms and Conditions is hereby amended to add the following:
   

   Post-Expiration Period: Commences on the date of expiration of the Term and expires three months thereafter, unless earlier terminated. During the Post-Expiration Period, subject to Customer’s payment of applicable fees as set forth in the Order Form and fulfillment      of all other obligations under this Agreement, Learners will continue to have access to the single Learner (not multi-learner nor instructor-led) Games via The Training Arcade.  During such Post Expiration Period, no other functionality for the Subscription Services will be available to the Customer, and nor will Provider have any support or other obligations in connection therewith. After the Post-Expiration Period, if any, or termination of this Agreement, Provider will have the right, without obligation, to disable Customer’s access to the Subscription Services, including links, and dispose of, or archive any of Customer Content and Customer Data in its possession.  Such disposal will be in the form of anonymizing Customer Content and Customer Data.

6. If, and to the extent that, Customer is a Publisher (as defined below), the following applies:
   

   “Publisher” means a Customer who purchases a Subscription for Publisher’s Primary Author and Publisher’s Author(s) to access the Game Type authoring tools to populate the Game Types with Customer Content and to invite all or a subset of Publisher Client’s Learners to access the Games via The Training Arcade; for the Publisher’s Primary Author, Publisher’s Author(s), Publisher’s Viewer Author(s), and Publisher Client’s Viewer Author(s) to view the Game analytics dashboard and leaderboard via The Training Arcade; and for the Publisher Client’s Learners to access and play the Games via The Training Arcade (“Publisher Rights”). Publisher may designate an employee, agent, and independent contractor of Publisher (but not Publisher Client) as Publisher’s Author and Publisher’s Primary Author. Publisher may designate employees, agents, and independent contractors of Publisher Client as Publisher’s Viewer Author(s) and Publisher’s Learners.

   “Publisher Client” means a client of Publisher who enters into a written agreement with Publisher to have Publisher exercise Publisher Rights for such client.

   “Customer Content” includes the questions, answers, images, videos, sounds, and other materials that the Publisher’s Primary Author or Publisher’s Author provides and populates in Game Types on behalf of Publisher Client for the purpose of facilitating internal training of Learners in accordance with this Agreement.

   Publisher may exercise the Publisher Rights solely for Publisher Client’s non-commercial internal training purposes in the Territory during the applicable Term, provided however that Publisher must designate a unique subdomain for each Publisher Client. Accordingly, if Publisher wishes to have more than one (1) Publisher Client, then Publisher must purchase another Subscription for each additional Publisher Client and enter into separate agreements for each Subscription. Publisher will not permit any third party to access and play the Games, other than Publisher Client’s Learners.

   Publisher represents and warrants that (a) it is authorized to act as Customer on behalf of Publisher Client and to bind Publisher Client to the terms and conditions of this Agreement; and (b) Publisher has and will have the necessary rights and consents from Publisher Client.

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