In consideration of the mutual representations, warranties, and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
- Acceptance of Terms and Conditions
1.1. Kantola Training Solutions (“Licensor”) offers workplace training solutions (“Product”)
1.2. The Terms and Conditions (“T&Cs”) constitute a legal agreement between you (either an entity or an individual) (“Licensee/You/Your”) and Licensor, which governs Your use of the Product as the Licensee.
1.3. Licensee’s agreement with the Licensor includes the T&Cs and any additional terms that the Licensor and Licensee agree to in a binding contract (“License Agreement”). To the extent that there is any irreconcilable conflict between any License Agreement and these T&Cs, the License Agreement shall prevail. Capitalized terms used herein and not otherwise defined are defined as set forth in the License Agreement.
1.4. By using the Product or executing a License Agreement, Licensee is agreeing that Licensee has read, and that Licensee agrees to comply with and to be bound by, the terms and conditions of this T&Cs. If You are an individual representing an entity, You acknowledge that You have the appropriate authority to accept the T&Cs on behalf of such entity. You will not access the Product if you are a direct competitor of the Licensor.
1.5. All terms, conditions and obligations of these T&Cs will be deemed to be accepted by both parties (“Acceptance”) upon Licensee using the Product or accepting License Agreement, if any.
1.6. Licensor and Licensee shall individually be referred to as a “Party” and collectively as the “Parties” - Ownership and Usage Rights
2.1. The Product includes elements subject to copyright and other legal protections (“Licensor IP”). Licensor IP includes items such as the proprietary training developed and owned by the Licensor, including, but not limited to, all the materials that comprise the course, all related video and audio recordings, images, text, software, electronic files, data, and related documentation provided by the Licensor, Licensor’s online training platform located at kantola.com, Licensor Confidential Information and all source code and object code related thereto, and all copies, modifications and derivative works thereof. Title, copyright, intellectual property rights and distribution rights of the Product and Licensor IP remain exclusively with the Licensor. Title, copyright, intellectual property rights and distribution rights of the Product and Licensor IP remain exclusively with the Licensor.
2.2. These T&Cs constitutes a license for use only for Licensee’s internal business purposes and is not in any way a transfer of ownership rights to the Product.
2.3. Neither Party may transfer or assign any of the rights or obligations granted under these T&Cs to any other person or legal entity, except for a Party’s legal successors and assignees in case of change of control, if any, without the consent of the other Party.
2.4. The Licensee may not make available the Product for use by any third party and may not make copies, except the Licensee may make copies in order to maintain records of training for archival purposes.
2.5. Except as provided for in License Agreement, Licensee is not permitted to modify Licensor’s Product in any way without Licensor’s written permission. The Product may not be reverse-engineered or de-compiled in any manner.
2.6. Licensee will not use the Licensor IP to develop or otherwise cause to bring to market any product or application that is competitive with the Product.
2.7. Licensee grants Licensor a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Product any suggestion, enhancement request, recommendation, correction, or other feedback provided by Licensee or employees of Licensee relating to the Product.
2.8. The Licensee of the classroom streaming product which is designed to be instructor led (“Classroom Streaming”) may only use the product in an instructor-led training setting, and each license of Classroom Streaming may only be used by one instructor at one location. The Licensee may not use Classroom Streaming in a webinar-style or virtual instruction setting.
2.9. If Licensee provides the Licensor data (“Licensee Data”), Licensee grants the Licensor a worldwide, limited-term right to host, copy, transmit, and display Licensee Data (1) as necessary for Licensor to provide the Product, or otherwise exercise Licensor rights or obligations pursuant to the Licensee Agreement; (2) as necessary to provide support, address service issues/requests, or otherwise enhance Licensee use of the Product; (3) as required by law, regulation, or in accordance governmental request with legal process; (4) as requested by Licensee; (5) to investigate or address security or integrity issues related to the Product. Licensee Data shall mean mean any and all text, data, information, images, graphics, audio, video, and/or audiovisual combinations submitted, uploaded, imported, integrated, and/or communicated by the Licensee to the Licensor in relation to the T&Cs or License Agreement, including Personal Data.
2.10. Except as expressly permitted by the Licensee Agreement or T&Cs, the Licensor acquires no right, title, or interest from Licensee to any Licensee Data and the Licensee has and shall retain all right, title and interest, including, without limitation, all intellectual property rights, in and to any Licensee Data. - Confidentiality & Privacy
3.1. The Parties acknowledge that one party (the “Receiving Party”) may have access to confidential or proprietary information (“Confidential Information”) of the other party (the “Disclosing Party”). For avoidance of doubt, Confidential Information shall include, but is not limited to, Personal Data and terms and conditions of these T&Cs. The term “Personal Data” shall mean information that can identify, relate to, describe, be associated with, or be reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.
3.2. The Receiving Party will hold in confidence and protect the Confidential Information of the Disclosing Party against unauthorized access, use or disclosure. The Receiving Party shall not use the Disclosing Party’s Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these T&Cs.
3.3. A Receiving Party may permit access to Confidential Information to authorized representatives, including, without limitation attorneys, accountants, advisors, Contractors, lenders (collectively, “Representatives”) who have a need to know and who have been informed of the confidential nature of such information and who have agreed to maintain the confidentiality thereof and the Receiving Party will remain responsible for the actions and disclosures of such Representatives.
3.4. The Receiving Party agrees to notify the Disclosing Party immediately in the event they become aware of any unauthorized knowledge, possession or use of the information or any part thereof by any person or entity.
3.5. The Parties acknowledge that any violation of the confidentiality provisions of these T&Cs may result in irreparable harm for which there is no adequate remedy in damages, that in those circumstances, an injunction, specific performance, or other equitable relief to enforce confidentiality pursuant to these T&Cs may be appropriate for any threatened or actual breach of these T&Cs, and that each Party shall be entitled to seek such relief. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
3.6. Upon request, the Receiving Party will promptly return to the Disclosing Party all copies, in whole or in part, of any of the Confidential Information in its possession, or it shall destroy all such copies and certify in writing that such Confidential Information has been destroyed.
3.7. Notwithstanding the foregoing, the Receiving Party shall be entitled to retain one (i) copy of the Confidential Information to the extent that (i) the Confidential Information needed to comply with any law, regulation or order of a regulatory agency or court having competent jurisdiction or (ii) the Confidential Information is an electronic backup taken automatically by the Receiving Party’s information technology (IT) systems for record retention, business continuity and disaster recovery purposes pursuant to law or regulation and in which case such Confidential Information will be erased in accordance with IT backup systems destruction protocols, and provided that so long as the backups exist, they are only reasonably accessible to Receiving Party’s designated IT personnel.
3.8. Notwithstanding the foregoing, the obligations pursuant to this Section shall not apply to information which (a) is publicly available or becomes publicly available through no action or fault of the Receiving Party (b) was already in the Receiving Party’s possession or known to the Receiving Party prior to being disclosed or provided to the Receiving Party by the Disclosing Party, provided, that, the source of such information or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect thereto (c) is disclosed by order of a court of competent jurisdiction; (d) the Disclosing Party authorizes, in writing, for release (e) was independently developed by the Receiving Party without reference to the Confidential Information.
3.9. In the event a receiving Party is requested or required by legal process to disclose any of the Confidential Information, the receiving Party shall give the disclosing Party prompt notice so that the disclosing Party may seek a protective order or other appropriate relief prior to any such disclosure. In the event that such protective order is not obtained, the receiving Party shall disclose only that portion of the Confidential Information that its legal counsel advises that it is legally required to disclose, and shall work with the disclosing Party to minimize the extent and effect.
3.10. The Parties acknowledge and agree that use of the Product to transmit, store, or otherwise process Highly Sensitive Information provided by the Licensee is unnecessary for use of the Product. “Highly Sensitive Information” is defined as (a) social security numbers, passport numbers, or driver’s license numbers; (b) personal health or medical information; (c) banking or payment card information; (d) sensitive government or military information; (e) information collected from or regarding minors or children (f) other personal information which a reasonable person would believe to be particularly sensitive, such as a person’s criminal history; Notwithstanding anything to the contrary in the License Agreement or T&Cs, Licensor shall not be liable for noncompliance with a law or regulation where such noncompliance would not have occurred but for Licensee’s use or provision of Highly Sensitive Information in connection with the Product.
3.11. Each Party shall be responsible for ensuring their respective compliance with any and all relevant privacy, notice and consent rules or regulations and/or data collection laws or regulations applicable to its use of the Product and the performance of its obligations under the T&Cs and Licensee Agreement.
3.12. Licensor shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Product and related systems and technologies, including information collected from Licensor Product courses and surveys, provided that Personal Data in connection with the permitted purposes of the T&Cs, unless such Personal Data is aggregated or otherwise de-identified. - Representations, Warranties, Indemnification and Liability
4.1. Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of the place of its origin, and possesses all the necessary authority to enter into and perform its obligations under this Agreement.
4.2. Each Party represents that it is not named on any U.S. government denied-party list. Licensee shall not permit its employees to access or use the Product in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation.
4.3. Licensee acknowledges that they have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Licensor employees or agents in connection with these T&Cs or License Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Licensee learns of any violation of the above restriction, Licensee will use reasonable efforts to promptly notify the Licensor.
4.4. The Licensor warrants and represents that granting the license to use the Product is not in violation of any other agreement, copyright or applicable statute. Licensor, at its sole expense, agrees to defend Licensee and its Affiliates (each, a “Licensee Indemnitee”) against any third-party claim that Licensee Indemnitee’s use of the Product, as made available by Licensor to Licensee and used in accordance with the Agreement, directly infringes a third party’s Intellectual Property Right (an “Infringement Claim”), and indemnify Licensee Indemnitee from the resulting costs and damages finally awarded against Licensee Indemnitee to such third party by a court of competent jurisdiction or agreed to in settlement; provided that: (a) Licensee Indemnitee promptly notifies Licensor in writing of the Infringement Claim; (b) Licensor has sole control of the defense and all related settlement negotiations; (c) Licensee Indemnitee provides Licensor with the information, assistance and authority to enable Licensor to perform its obligations under this Section 10; and (d) Licensee Indemnitee makes no admission of liability and does not compromise the ability of Licensor to defend the claim. Licensee Indemnitee may not settle or compromise any Infringement Claim without the prior written consent of Licensor. In any action based on an Infringement Claim, Licensor, at its option and expense, will either: (i) procure the right for Licensee to continue using the Product in accordance with the Agreement; (ii) make modifications to or replace the Product so that the infringing Product becomes non-infringing without incurring a material diminution in performance or function; or (iii) terminate the right to use the infringing Product and refund to Licensee the unused remainder of any Product subscription fees prepaid by Licensee and received by Licensor for such infringing Product. Licensor shall have no liability or obligations for an Infringement Claim pursuant to this Section 4.4 to the extent that it results from: (A) modifications to the Product made by a party other than Licensor or a party under the direct control of Licensor; (B) the combination, operation or use of the Product with non-Licensor products, Product, or materials; (C) use of the Product outside the scope of the Agreement; (D) Licensor’s use of any Licensee Content, designs, instructions, specifications, or the like, provided by Licensee Indemnitee, if any; or (E) use of third party Product or, technology not embedded by Licensor into the Product. This Section 4.4 sets out Licensee Indemnitees’ sole and exclusive remedies and Licensor’s entire liability with respect to claims subject to indemnification under this Section, including claims for infringement or violation of third-party intellectual property rights by the Product.
4.5. Except with respect to a Party’s gross negligence, willful misconduct, or fraud, in no event will either Party’s aggregate liability arising out of, related to, or connected with the License Agreement or T&Cs, exceed the license fees paid or payable by the Licensee to the Licensor in the twelve months prior to the event giving rise to the claim.
4.6. Except with respect to a Party’s gross negligence, willful misconduct or fraud, neither Party shall be liable to the other Party whether in contract, tort or breach of warranty, for any indirect, incidental, special, general or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other economic disadvantage suffered by either Party arising out of, related to, or connected with the License Agreement or T&Cs, even if a Party has been advised of the possibility of such damages.
4.7. 4.7. Except for warranties Licensor expressly provided in the T&Cs or License Agreement, to the extent permitted by applicable law, Licensor disclaims all warranties express or implied related to the Product, including (without limitation) warranties of accuracy, adequacy, completeness, merchantability, reliability, or fitness for any particular purpose. Licensor disclaims any and all liability for any third-party content provided by the Licensee and made available to the Licensee through the Product. Licensee assumes all responsibility for the selection of the Product for its intended results.
4.8. The Product is not intended to provide legal or other professional advice. The Product should not be construed as, or be used as, a substitute for, the advice of competent legal or applicable professional counsel.
4.9. Licensor execution of the License Agreement or T&Cs and use of the Product is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Licensor regarding future functionality or features.
4.10. A Party’s indemnification obligations under the T&Cs are conditioned on the indemnified Party providing prompt written notice to the indemnifying Party of any claim, action, or demand for which indemnification is claimed, provided, however, that any delay in such notice will relieve the indemnifying Party of its indemnification obligations only to the extent such delay materially prejudices the indemnifying Party’s defense. The indemnifying Party shall be entitled to assume control of the defense and any settlement negotiations. In the event the indemnifying Party assumes control of the defense and negotiations, the indemnified Party shall be entitled, at its sole cost and expense, to participate in the defense and negotiations. In the event the indemnifying Party does not assume control of the defense and negotiations, then the indemnified Party may take control of the defense and negotiations, and its reasonable costs and expenses shall be subject to indemnification. The indemnified Party will reasonably cooperate, at the indemnifying Party’s expense, in the defense of such claim as the indemnifying Party may request. The indemnifying Party will not enter into or agree to any settlement that requires any action or admits any liability by the indemnified Party or imposes any restrictions on the indemnified Party, in each case without the prior written consent of the indemnified Party, such consent shall not unreasonably be withheld. - Fees, Taxes, Updates, Term and Termination
5.1. Licensee agrees to pay the fees for the Product pursuant to the terms of the License Agreement. Licensor acknowledges and agrees that the amount billed and charged shall include applicable overages, additional licenses and upgrade fees, which shall be paid by Licensee in accordance with the terms of the License Agreement. In the event the Licensee disputes any invoiced amount, the Licensee shall provide written notice to the Licensor of the dispute and the basis for such dispute. The Parties agree to negotiate such dispute in good faith to try to reach a resolution of the disputed charges within thirty (30) days (or such longer period of time as agreed to by the Parties) of the Licensee’s notice. If an invoice includes both disputed and undisputed amounts, the Licensee shall pay all undisputed amounts in accordance with the License Agreement.
5.2. Licensor reserves the right, upon ten (10) days prior written notice, to suspend or terminate the Product for payments that are more than sixty (60) days past due. Licensor reserves the right, but is not obligated, to accrue interest at the lesser of 1.5% monthly or the highest interest rate allowable under applicable law for past due payments.
5.3. License Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). If Licensor has the legal obligation to pay or collect Taxes for which the Licensee is responsible under this clause, Licensor will invoice Licensee and Licensee will pay that amount unless the Licensee provide the Licensor with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.4. From time to time, Licensor may decide to retire or replace its Products with newer training solutions (“Substitute Products”). Licensor reserves the right to provide Licensee with Substitute Products on the anniversary of the execution of the License Agreement. If the Substitute Products will not meet the Licensee’s requirements, the Licensee may terminate the License Agreement upon thirty (30) days written notice to the Licensor and the Licensor shall prorate and refund to the Licensee any remaining License Fees.
5.5. Licensor has the right to modify its learning management system or the Product at any time. Licensor will use commercially reasonable efforts to ensure that the modifications do not materially affect the Product during the term of the license agreement executed between the Parties. If the modifications reduce the functionality of the Product such that the Product no longer meets the Licensee’s requirements, the Licensee may terminate the License Agreement upon thirty (30) days written notice to the Licensor and the Licensor shall prorate and refund to the Licensee any remaining License Fees.
5.6. The Term will automatically extend for subsequent one (1) year terms at the same terms, conditions and provisions set forth in the T&Cs and License Agreement unless the License Agreement is terminated or either party gives the other notice of non-renewal up to 30 days before the end of the relevant Term and if done no further fees will be due for subsequent years beyond the relevant Term.
5.7. A contract year is defined as the 12-month period starting at the execution of the License Agreement or the most recent anniversary of the execution of the License Agreement (“Contract Year”). Licenses acquired at the start of or during a Contract Year are valid until the end of that Contract Year.
5.8. Either Party may terminate the License Agreement immediately if the other Party breaches any material provisions of the License Agreement or T&Cs and, if curable, fails to cure such breach within sixty (60) days after receipt of written notice of such breach.
5.9. Either Party may, at its option, terminate the License Agreement immediately upon written notice to other in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues its business; or (iv) a receiver is appointed or there is an assignment for the benefit of the other Party’s creditors.
5.10. During the term of the Licensee Agreement and for at least sixty days (60) following expiration or termination of the License Agreement, the Licensor will make course completion data available to Licensor to export or download, provided Licensor’s account has been paid in full. After expiration of the sixty (60) day period, Licensor shall, without liability or obligation of further notice to Licensee, have the right to follow the Licensor’s data retention policies and delete all Licensee Data and course completion data. Upon written request, the Licensor will promptly return to the Licensee all copies, in whole or in part, of any of the Licensee Data in its possession, or it shall destroy all such copies and certify in writing that such Licensee Data has been destroyed. - Miscellaneous
6.1. No failure or delay by either party in exercising any right under these T&Cs or Licensee Agreement will constitute a waiver of that right.
6.2. If any provision of the T&Cs or Licensee Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void or, preferably, ‘blue-penciled’ and scaled back until it is no longer contrary to law, and the remaining provisions of the T&Cs or License Agreement will remain in effect.
6.3. This T&Cs as well as License Agreement, if any, between the Licensee and Licensor will be enforced or construed according to the laws of the State of California. The parties to this License Agreement submit to the jurisdiction of the courts of the County of Santa Clara, California for the enforcement of these T&Cs and License Agreement if any, or any arbitration award or decision arising from these T&Cs and License Agreement, if any
6.4. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created herein between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent.
6.5. Unless notified otherwise by the Licensee in writing, Licensor will have the right to use the Licensee’s name and logo in marketing materials that reference Licensor’s clients.
6.6. Licensor may use third party service providers and contractors (“Contractors”) to assist in developing, providing, supporting, and improving the Product. Licensor shall be responsible for the compliance of Licensor Contractors with the relevant provisions of the T&Cs. The Licensor shall also be responsible for all payments to the Licensor’s Contractors. No relationship, contractual or otherwise, is intended or implied, between the Licensee and any Licensor Contractor.
6.7. Neither Party shall assign any of the rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not unreasonably be withheld. However, consent is not required for an assignment of this Agreement in connection with a change of control, merger, stock transfer, sale or other disposition of substantially all the assets of the assigning Party’s business. The T&Cs is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
6.8. The words “execution,” “signed,” “signature,” and words of like import in the License Agreement or T&Cs or any other certificate, agreement or document related to the License Agreement, shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including but not limited to the Federal Electronic Signatures in Global and National Commerce Act of 2000.
6.9. Headings are for reference purposes only and do not limit the scope or extent of such section.
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