ANY CUSTOMER DATA THAT CUSTOMER ENTERS OR PROVIES WHILE USING THE SERVICES DURING
THE FREE TRIAL PERIOD MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A
SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL PERIOD. CUSTOMER MUST EXPORT ITS CUSTOMER DATA BEFORE THE END OF THE FREE TRIAL PERIOD TO AVOID THE RISK THAT CUSTOMER DATA WILL BE PERMANENTLY LOST.
1.2 Provision of the Services. STAREDLA will make available to Customer on a subscription basis for the Term the Services set forth in an Order pursuant to this Agreement and the applicable Order. Services are designed to be available 24/7 subject to maintenance and reasonable downtime. Customer will be notified of scheduled maintenance. STAREDLA will, as part of providing a Service, apply any update, bug fix or upgrade to the Service that it makes generally available to its customers of the Service. Services are subject to usage limits, including for example, the quantities specified in an accepted Order. STAREDLA reserves the right to modify the course offerings and content of the online course library at any time.
Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all Customer Data that is transmitted or otherwise provided to STAREDLA and the means by which Customer acquired Customer Data; (b) ensure that all users receive any required disclosures and appropriate training concerning the use of the Services; (c) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify STAREDLA promptly of any such unauthorized access or use; (d) promptly inform STAREDLA when the number of Active Users increases; and (e) use the Services(s) only in accordance with this Agreement, the Documentation and any applicable Laws. Customer shall not: (i) use the Services in violation of applicable Laws; (ii) in connection with the Services, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights. Customer shall be liable for the acts and omissions of all Authorized Persons and Customer Affiliates relating to this Agreement. If Customer installs or enables a third-party application for use with any Service, Customer (i) is solely responsible for obtaining and maintaining the license or other rights for its use of the third-party application, and (ii) grants STAREDLA permission to allow the provider of that third-party application to access Customer Data as required for the interoperation of the third-party application and the Service.
2.1 Protection and Security. During the Term of this Agreement, STAREDLA shall establish, implement and maintain commercially reasonable administrative, physical and technical measures that are designed to protect the security and integrity of Customer Data that is provided to STAREDLA by Customer, and that are reasonably appropriate to the risks represented by the processing and nature of the provided Customer Data to be protected, and designed to guard against the accidental or unauthorized access, use, loss or disclosure of Customer Data while it is on STAREDLA’s network and systems. Customer understands that it has an independent duty to comply with any and all Laws applicable to it in connection with its provision of Customer Data to STAREDLA.
2.2 Unauthorized Disclosure.
3.1 Fees and Payment Terms. The Fees shall be set out in each License Agreement. By electing credit card payment and inputting its billing and credit card information into the STAREDLA system (via a link sent by STAREDLA), Customer’s credit card on file will be charged in advance the annual On-Demand Fees and/or Content Licensing Fees for the Term (including any agreed-to renewal term), provided that Customer remains responsible for All Fees. Upon the failure of any credit card payment, STAREDLA will invoice Customer for Fees and interest at the monthly rate of 1.5% or lesser maximum allowable, and Customer will pay STAREDLA’s invoice within thirty days of the invoice date. STAREDLA will also invoice Customer (or if applicable, charge Customer’s credit card) at the time Customer adds any enhanced or additional Services. If Customer exceeds any usage limitation set forth in the License Agreement, STAREDLA will invoice Customer for the overages in arears. Fees will be billed and paid in USD, unless otherwise agreed in writing by the parties.
4.1 Confidential Information Defined.
5.1 Ownership and Reservation of Rights to STAREDLA. STAREDLA and its licensors and Affiliates own all right, title and interest in and to the Services, Content, Documentation, and other Technology, as well as any modifications that are derivative works thereof. Subject to the limited rights expressly granted hereunder, STAREDLA , its licensors, and/or its Affiliates reserve all rights, title and interest in and to the Services, Documentation, and Content, including all related common law, statutory and other industrial property rights and intellectual property rights, copyrights, trademarks, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto. No rights are granted to Customer hereunder other than as expressly set forth herein. Customer, and any Affiliate or individual with access to the Services through Customer, shall not use, disclose, copy, display, reproduce, or otherwise infringe the foregoing intellectual property rights.
“Aggregated Data”). Nothing herein shall be construed as prohibiting STAREDLA from utilizing the
Aggregated Data for purposes of operating STAREDLA’s business, provided that STAREDLA’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual while utilizing the Services. In no event does the Aggregated Data include any Customer Confidential Information, Customer Data or any information that personally identifies a specific individual.
6.3 Effect of Expiration or Termination. Upon termination or expiration of any License Agreement, Customer shall pay all money due to STAREDLA for Services rendered up to the expiration or termination date and any payments that may become due subsequent to such expiration or termination. Customer shall immediately stop using the Services and accessing the software, course library, and any Content. Customer shall immediately stop using any Confidential Information of STAREDLA and to return or destroy (at STAREDLA’s discretion) all copies of the STAREDLA’s Confidential
Nothing in this section shall prevent, or be construed as preventing, a party from (a) instituting formal proceedings to avoid the expiration of any applicable limitations period, or (b) seeking injunctive or other equitable relief in a court of appropriate jurisdiction.
7.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STAREDLA NO WARRANTIES OF ANY
KIND UNDER THIS AGREEMENT OR APPLICABLE SCHEDULE(S), WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF
NONINFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL
SERVICES ARE PROVIDED “AS IS”. STAREDLA MAKES NO REPRESENTATIONS OR WARRANTIES
REGARDING THE SUITABILITY OR COMPLETENESS OF ANY OF THE SERVICES NOR THAT THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. The Content has been created to assist Customers that are endeavoring to educate their employees. The information contained in the Content is the information available to STAREDLA or its licensors or affiliates at the time the Content was produced. All information in the Services should be reviewed for accuracy and appropriateness to assure it conforms to Customer’s circumstances and recommended procedures, as well as to any state, federal or other laws, standards and regulations governing the Customer’s operations. There is no warranty, express or implied, that the information in the Services is accurate or appropriate for any particular Customer’s environment. STAREDLA cannot and does not warrant against human and machine errors, omissions, delays, interruptions or losses, including loss of data. STAREDLA cannot and does not guarantee or warrant that the Content or Services will be free of infection by viruses, worms, “Trojan horses” or other code that manifests contaminating or destructive properties.
9.1 Direct Damages. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, STAREDLA’S
AGGREGATE MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS
AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE MONTHS PRIOR TO THE DATE SUCH CAUSE OF ACTION FIRST AROSE (“FEE EXPOSURE”).
9.2 Exclusion of Consequential and Related Damages. STAREDLA, INCLUDING ANY OF ITS AFFILIATES OR
THIRD PARTY LICENSORS, SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUES.
10.1 Notices. All notices required or permitted by this Agreement shall be in writing and delivered by personal delivery, express courier, or certified or registered mail, and shall be effective upon delivery. Notices will be sent to Customer at the address set forth in the License Agreement, and to STAREDLA as set forth below, or to such other address as either party may indicate by at least ten (10) days prior written notice to the other party.
All notices to STAREDLA should be sent to:
881 Alma Real Drive, Suite 115
Pacific Palisades, CA 90727
Attention : Legal Compliance
10.3 Survivability. The terms of this Agreement, which by their nature one would reasonably intend to survive this Agreement shall survive it, including terms addressing confidentiality (Article 4), ownership (Article 5), termination (Article 6), representations and warranties (Article 7), indemnity (Article 8), limitation of liability (Article 9), and the applicable miscellaneous sections in Article 10.
10.4 Choice of Law. California law shall govern this Agreement, without regard to its conflict of laws provisions.
10.5 Article and Section Headings. The Article and Section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement.
10.6 Force Majeure. Except for Customer’s obligation to pay STAREDLA or to assume obligations for taxes, neither party shall be liable for any failure to perform due to causes beyond its reasonable control, such as war, terrorism, civil commotion, Internet service interruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements.
10.7 Not for Use in High Risk Activities. Customer acknowledges that the Services are not designed or intended for use in high-risk activities including, without limiting the generality of the foregoing, in any direct or active operations of any equipment in any nuclear, aviation, mass transit, or medical applications, or in any other inherently dangerous operation.
10.8 Severability. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision.
10.9 Waivers. The failure by a party to exercise or enforce any right hereunder shall not operate as a waiver of such party’s right to exercise or enforce such right or any other right in the future.
10.10 Publicity. STAREDLA may add Customer’s name and logo to STAREDLA published list of customers so as long as Customer continues to be a subscriber of the Services. Customer also agrees that after signing up for Services, STAREDLA may immediately issue a generic press release which announces that a deal has been executed by the parties. The text below is an acceptable form of such announcement
10.11 Modifications, Additional Terms, Entire Agreement, Amendment. No purchase order or other document that purports to modify or supplement this Agreement shall add to or vary the terms of this Agreement. All proposed variations or additions, whether submitted by STAREDLA or Customer, are objected to and deemed immaterial unless otherwise agreed to in a writing signed by both parties. This
Agreement constitutes the entire agreement and understanding between the parties concerning Customer’s access to the Services and may not be modified by custom or usage. This Agreement replaces and supersedes all prior oral or written understandings, communications and representations between the parties with respect to the Services. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of fifty-one percent (51%) of the voting interests of the subject entity.
“Authorized Persons” means an individual or entity that is authorized by Customer to use the Services, or to whom Customer (or STAREDLA at Customer’s request) have supplied a user identification and password. Authorized Persons may include, for example, Customer’s employees, partners, customers, consultants, and contractors. Authorized Persons exclude competitors of STAREDLA.
“STAREDLA Technology” means STAREDLA proprietary and or licensed technology, including the Services, software, hardware designs, copyrights, trademarks, patents, trade secrets, software tools, algorithms, user interface designs, architectures, products, documentations, the designs and schema for any network or system connectivity and related intellectual property worldwide and whether in printed, written, electronically reproduced or any other form and whether owned by STAREDLA or any Supplier or licensed to STAREDLA or any Supplier and all enhancements, derivatives, STAREDLAements, modifications or extensions of such technology conceived, reduced to practice or developed during the term of this Agreement.
“Confidential Information” has the definition provided in Section 4.1.
“Content” means courseware content (including, without limitation, artwork, images, text, audio, video, messaging, Internet links, software and other related creative elements and works of authorship). “STAREDLA Content” means Content and Learning Resources created by or for STAREDLA, or otherwise provided by STAREDLA to Customer. Unless excepted, “STAREDLA Content” is included in each reference to Services in this Agreement.
“Customer Content” means courses proprietary to Customer or a third party that Customer creates, launches or administers in the STAREDLA LMS.
“Customer Data” means the electronic data or information submitted by Customer or Authorized Persons to the On-Demand Services.
“Discloser” has the definition provided in Section 4.1.A.
“Documentation” means the published user manuals, whether in print or electronic form, or on-line help functions for each Service, as updated from time to time.
“Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.
“Learning Management System” or “LMS” means a cloud-based learning management system through which a learner can register and participate in Content, and a learning manager can administer and view reports on the learner’s activities; the LMS may enable Customer to create and view Customer Content. “STAREDLA LMS” means the learning management system that STAREDLA provides to Customer under an Order. Unless excepted, “STAREDLA LMS” is included in each reference to Services in this Agreement.
“Learning Resources” means (other-than subscribed course) items that Customer may download from the course library, or that STAREDLA may otherwise provide, such as ancillary learning material like workbooks, graphics, or course-completion promotional collateral that Customer may use pursuant to this Agreement to supplement subscribed courses in its internal curriculum to its learners. Unless excepted, “Learning Resources” is included in each reference to STAREDLA Content in this Agreement.
“On-Demand Fee” means the fee STAREDLA charges to Customer for the Services that is detailed in each Order.
“Recipient” has the definition provided in Section 4.1.A.
“Schedule” means any of the so-titled documents, along with all of its exhibits and attachments, which is issued pursuant to or refer to this Agreement and is executed by both Customer and STAREDLA. The term “Order” in this Agreement includes any such Schedule.
“Services” or “On-Demand Services” means the On-Demand Services and STAREDLA Content provided by STAREDLA to Customer under an Order.
“Supplier” means any person or entity contracted by STAREDLA that provides services, materials, products, or supplies in connection with the Services. STAREDLA may change Suppliers at its sole discretion. STAREDLA is responsible for its Suppliers’ compliance with this Agreement.
“Term” means the duration of Customer’s subscription to the Service as set forth in the Order. “Termination Notice” means prior written notice (consistent with Section 10.1) by one party to the other of the intent to terminate the Services under any or all Orders.
“Active Users” means any User that signs in to access Customer’s Services during the month and/or any user that was issued a login credentials
“Named Users” means a specific User that has login access to Customer’s Services during the annual term of this Agreement.