WHEREAS, StormWind (“Company”) desires to offer online training to Customer via a web-based learning management system (“Campus”) and Customer (Company and Customer are individually a “Party” and together the “Parties”) agrees to license access thereto;
NOW THEREFORE, in consideration of the premises and the representations and mutual undertakings hereinafter set forth, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the foregoing and as follows:
1. Subject Matter
Company is currently offering online training to employees of Customer (“Students”) via Campus.
2. Account
Access to Campus shall be licensed pursuant to an executed Order Agreement which shall be attached hereto or incorporated by reference via hyperlink. Each Order Agreement constitutes a firm, non-cancelable commitment for the full Access Term set forth in the attached Order Agreement. Except as expressly permitted under Section 12 (Termination for Cause), Customer may not terminate or cancel an Order Agreement for convenience, and all fees are non-refundable and payable as outlined in the Order Agreement. Customer will ensure that Students comply with these terms and conditions, and Customer remains responsible for their acts and omissions.
3. Modification of Terms
These Terms and Conditions may only be modified by a written instrument duly executed by a duly authorized representative of each party. Legal notices must be sent by certified or registered mail (return receipt requested) or commercial express courier (with tracking capabilities) and shall be deemed given when received or, in the case of email, upon successful transmission. All other notices can be given through email, a posting on the Campus, updates on the Company website or any other means by which Customer or a Student may obtain notice.
4. Limited License.
Company hereby grants each Student a limited, non-exclusive, non-sublicensable worldwide license to access and use Campus including the content and information available in Campus and documentation thereto according to the provisions contained herein.
Customer may only allow its Students that have signed up to access the student Campus. If the applicable Order Agreement terminates, the applicable Students shall no longer have access to the Campus. The Campus may not be accessed by more than the authorized number of Students purchased under the Order Agreement. Each Student shall be authorized to access the Campus from any Internet connection.
A license may be reassigned to a new Student only if the original Student a) permanently ceases employment with Customer or b) permanently ceases to require access to the Company Campus in the ordinary course of their duties. In no event may Customer reassign licenses on a temporary or rotating basis to accommodate additional Students beyond the number of licenses purchased.
Company reserves the right to monitor usage and review reports of license transfer activity and account access to ensure compliance with these terms. Such reviews shall be limited to system-generated usage and transfer reports. Company may suspend or terminate transfer capability to accounts exhibiting transfer patterns inconsistent with these Terms.
Customer shall designate an administrator to oversee and manage Student licenses.
5. Access to the Company Student Campus; Modification of Content.
Company strives to provide the Campus to its Students on a continuous basis. To that end, Company will take all commercially reasonable efforts to provide uninterrupted access to the Campus to its Students. However, from time to time, Students may be unable to access the Campus due to conditions beyond Company’s control. Such conditions include, but are not limited to: force majeure, acts of God, and power outages. Also, from time to time, access may be unavailable due to software issues, server downtime, increased Internet traffic or downtime, programming errors, regular maintenance of the system, and other related reasons. Company will provide notifications at least three (3) business days in advance to Customer and/or Students related to downtime as a result of Company’s actions (Regular Maintenance, Software Issues, Hardware Issues). These notices will be given through email, a posting on the Campus, and updates on the Company website as prescribed. In response to any unavailability of the Campus to its Students, Company will take all commercially reasonable steps to ensure access is restored within a reasonable period of time. The term “commercially reasonable” shall mean reasonable efforts taken in good faith without undue or burdensome use or expenditure of time, resources, personnel or money.
Company endeavors to provide the highest quality content to its Students. To that end, Company reserves the right to change, modify, or discontinue any aspect or feature of the Campus in whole or in part, including, without limitation, the content of Campus. Such changes, modifications, additions or deletions will be effective immediately upon notice thereof, which notice may be made by posting such changes on the Campus.
Students are solely responsible for ensuring that they have sufficient and compatible hardware, software, telecommunications equipment and Internet service necessary for use of the Site.
Temporary unavailability of the Campus shall not entitle Customer to any refund, credit, or extension of Term.
6. Prohibited Conduct.
Each Student expressly agrees to refrain from doing, either personally or through an agent, any of the following “Prohibited Conduct”:
- Knowingly transmit, install, upload or otherwise transfer any virus, advertisement, communication, or other item or process to the Campus that in any way affects the use, enjoyment or service of Campus, or adversely affects Company’s computers, servers or databases.
- Knowingly permit or provide others with unauthorized access to the Campus using Student login and password or otherwise.
- Except as otherwise expressly set forth herein, copy, modify, reverse engineer, disassemble, redistribute, republish, alter, create derivative works from, assign, license, transfer or adapt any of the software, content, information, text, graphics, source code or HTML code, or other content available on the Campus.
- Transfer the Campus content to another person; “frame,” “mirror,” “in-line link,” or employ similar navigational technology to the Campus content.
- Knowingly violate or attempt to violate Company’s security mechanisms, access any data or server you are not authorized to access or otherwise breach the security of the Campus or corrupt the Campus in any way.
- Knowingly engage in any other conduct which violates the Copyright Act or other laws of the United States.
- Use any device (such as a “web crawler” or other automatic retrieval mechanism) or other means to harvest information about other Students, the Campus or Company.
- Use the Campus to intentionally violate a third party’s intellectual property, personality, publicity or confidentiality rights; upload, download, display, publish, perform, create derivative works from, transmit, or otherwise distribute information or content in violation of a third party’s intellectual property rights.
- Knowingly misrepresent a Student’s identity or personal information when accessing the Campus.
- Knowingly post obscene, harassing, defamatory, filthy, violent, pornographic, abusive, threatening, objectionable or illegal material on the Campus or during a Live Class; post a communication that advocates or encourages criminal conduct or conduct that may give rise to civil liability.
- Provide access to an account or transfer account to another Student when the paid Student has completed their courses or if the paid Student is no longer with the paying customer/account.
- Use the Campus or its content to develop, train, or enhance any competing educational or AI system.
7. LIMITED WARRANTIES.
Each party represents and warrants that it has the authority required to enter into these Terms and Conditions.
Company warrants that Campus will substantially achieve the functionality and specifications described in its documentation and within Campus.
Company warrants that the Campus and its contents, when used as permitted, will not knowingly infringe any third-party intellectual property rights.
Company provides no warranty that Customer hardware, software, telecommunications equipment and/or Internet service is compatible or sufficient to access the Campus.
8. Third Party Content; Hyperlinks.
Content provided by third parties is for informational purposes only, and Company’s use of the content constitutes neither an endorsement nor a recommendation by Company of the content and is not liable for any claims related to such content. Company assumes no responsibility for third party products or services unless recommended by Company or unless such products or services are incorporated in the Campus.
The Company Student Campus may contain links and references to other third-party websites and materials. Company does not assume any responsibility for these websites or materials and provides these links or materials solely for the convenience of Students. Company does not endorse or otherwise recommend any of these third-party websites, references, or the products, services, or information there offered. Company may disable any hyperlink to the Campus.
COMPANY MAKES NO WARRANTY, EITHER EXPRESSED OR IMPLIED, OF THE ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THE INFORMATION PROVIDED BY THIRD PARTIES. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY INFORMATION FOUND ON A LINK LOCATED ON CAMPUS THAT ALLOWS STUDENTS TO ACCESS INFORMATION FOUND ON ANOTHER SITE. ADDITIONALLY, COMPANY DOES NOT WARRANT THE EXISTENCE OR FUNCTIONALITY OF ANY WEBSITE WHICH CAN BE ACCESSED THROUGH A LINK LOCATED ON CAMPUS.
9. Limitation on Liability.
Neither Party shall be liable to the other Party or its Affiliates for any consequential, incidental, or punitive damages, or for loss of profits or revenues (collectively referred to as “special damages”) incurred by such Party or its affiliated Persons that arise out of or relate to this Agreement, REGARDLESS OF WHETHER ANY SUCH CLAIM ARISES UNDER OR RESULTS FROM CONTRACT, NEGLIGENCE, OR STRICT LIABILITY OF THE PARTY WHOSE LIABILITY IS BEING WAIVED HEREBY. Company’s maximum liability to Customer shall be limited to the actual cost paid by the Customer. Except as expressly provided in the Agreement, neither Customer nor Company makes any guarantees or warranties of any kind, expressed or implied. Company specifically disclaims all implied warranties of any kind or nature, including any implied warranty of merchantability and/or any implied warranty of fitness for a particular purpose. Company’s total aggregate liability under this Agreement shall not exceed the total fees actually paid by the Customer under the applicable Order Agreement giving rise to the claim.
The limitations of liability do not apply to a) either party’s breach of confidentiality obligations or b) Customer’s violation of the license restrictions.
10. Copyrights, Trademarks and Other Proprietary Rights.
Company or its third party content providers shall retain all worldwide rights in the intellectual property in and on the Campus, including, but not limited to, software code, video content, course recordings, trademarks, service marks, trade dress, inventions, ideas, trade secrets, the source code, the HTML code, the “look and feel” of the Campus, its color combinations, layout, and all other graphical elements, and the copyrights in and to its original content.
Notwithstanding the foregoing, Customer owns and shall retain all rights in all intellectual property and information provided to Company in connection with these Terms and Conditions. Except as expressly stated on the Campus or in these Terms, nothing that appears in the Campus may be copied, reproduced, modified, distributed, transmitted, republished, displayed or performed for commercial use without the prior written consent of Company, except as provided in these Terms and Conditions.
Customer shall not use any Company or its third party content providers’ trademarks, names, or logos in any manner without prior written consent. Customer shall not remove, alter, or obscure proprietary notices from any materials.
11. Security; Authorized Use.
Students are prohibited from or attempting to violate the security of the Campus. Company has the right but not the obligation to investigate occurrences of possible violations and will cooperate with all applicable law enforcement authorities in prosecuting violators. Company may suspend Customer’s access, with notification to Customer, while it conducts an investigation. Students are required to enter a Student login and password to access the Campus.
A Student may not use the account, Student login or password of someone else at any time. Customer agrees to notify Company promptly of any unauthorized use or loss of an account, Student login, and/or password. Customer also agrees to notify Company promptly of known or suspected unauthorized use of the Campus and/or the Campus content. Company will not be liable for any loss that Customer incurs as a result of someone else using a Student name and password with or without Customer’s knowledge, except where Customer has provided Company with notice of such unauthorized access or use.
12. Term and Termination for Cause.
The term of these Terms and Conditions shall be the Access Term set forth in the attached Order Agreement. Except as expressly provided herein, neither party may terminate these Terms and Conditions for convenience.
Either party may terminate these Terms and Conditions only for cause if the other party is in material breach of these Terms and Conditions and fails to cure such breach within thirty (30) days after receiving written notice specifying the nature of the breach.
At the end of the Term, access will automatically expire unless renewed in writing by mutual agreement.
13. Confidentiality.
Each Party (the “Receiving Party”) shall maintain in strict confidence all Confidential Information of the other Party (the “Disclosing Party”) and shall not disclose or use such Confidential Information for any purpose other than performance under this Agreement. The Receiving Party may disclose Confidential Information only to its employees, contractors, or agents who have a need to know and who are bound by obligations of confidentiality no less protective than those herein. These obligations shall survive for three (3) years after termination of this Agreement.
“Confidential Information” means all non-public information disclosed by a Disclosing Party to the Receiving Party that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be understood to be confidential.
Confidential Information includes, without limitation, all business, technical, financial, and operational information; customer and student data; pricing, trade secrets, training materials, course content, software, source code, inventions, know-how, processes, business plans, marketing data, and other proprietary information.
Confidential Information does not include information that the Receiving Party can demonstrate:
(a) was or becomes publicly available through no breach of this Agreement;
(b) was known to the Receiving Party prior to its disclosure by the Disclosing Party;
(c) is received from a third party without breach of any obligation of confidentiality; or
(d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
Confidential Information shall remain the property of the Disclosing Party.
14. Fees and Payment.
The Order Agreement shall set forth the fees payable by Customer under this Agreement and the timing for invoicing. Each invoice shall be payable within thirty (30) days after its receipt by Customer.
All payments are non-refundable. Late payments will accrue interest at 1.5% per month (or the maximum rate allowed by law). Customer shall reimburse Company for reasonable costs of collection, including attorney’s fees. The Customer shall not offset, withhold, or reduce any payment for any reason. Fees exclude taxes, which are the responsibility of the Customer.
15. Governing Law.
The Parties agree to exclusive jurisdiction and venue in the state and federal courts located in Maricopa County, Arizona, and both Parties agree to such jurisdiction.
16. Miscellaneous.
These Terms and Conditions constitute the entire agreement between Company and Customer regarding the subject matter hereof. Any previous agreement, whether oral or written, between Company and Customer dealing with the subject matter hereof is superseded.
If any portion of these Terms and Conditions is determined to be unenforceable for any reason, such portion will be deemed severed and the remaining terms and conditions shall continue in full force and effect.
Company operates the Campus from the United States and makes no representation that Campus complies with any foreign or international laws.
Neither party may assign its rights or delegate its duties under these Terms and Conditions without the other party’s prior written consent.
The parties agree that no third party is an intended beneficiary of these Terms and Conditions. The following provisions shall survive termination of these Terms and Conditions 7, 8, 13, 15 and those portions of this Section 16 which by their nature should survive termination.
In case of conflict, the Order Agreement prevails over these Terms. Failure to enforce any provision does not constitute waiver.
This Order Agreement may be executed electronically and in counterparts, each of which is deemed an original.
