CUSTOMER Terms of service

1.  DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.

1.1.    “AUP” means Provider’s acceptable use policy currently posted at https://learn.ink/aup.

1.2.    “Client ToS” means such terms of service as Provider may require for users of the SaaS who are not Provider’s customers or their employees. It is currently posted at https://learn.ink/terms.

1.3.    “Customer’s Clients” means any of Customer’s clients or customers, personnel, or other third parties Customer gives access to the SaaS, including without limitation such companies’ agents and employees.

1.4.    “Customer Data” means all information processed or stored through the SaaS by Customer or on Customer’s behalf. Customer data does not include payment records, credit cards or other information Customer uses to pay Provider, or other information and records related to Customer’s account, including without limitation identifying information related to Customer staff involved in payment or other management of such account.

1.5.    “Documentation” means Provider's standard manual related to use of the SaaS.

1.6.    “Order” means an order for access to the SaaS.

1.7.    “Privacy/SecurityLaw” means privacy and security laws governing Provider’s handling of Customer Data (if any).

1.8.    “SaaS” means Provider’s online training platform.

1.9.    “Term” is defined in Section 11.1 below.

1.10.  “User” means any company or individual who uses the SaaS on Customer’s behalf or through Customer’s account or passwords, whether authorized or not, including without limitation Customer’s Clients.

2.  THE SAAS.

2.1.    Use of the SaaS. During the Term, Customer may access and use the SaaS pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.

2.2.    Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the SaaS.

2.3.   Customer’s Clients. Customer may authorize Customer’s Clients to access and use the SaaS in such numbers and according to such restrictions as are set forth in the applicable Order. Customer shall make no representations or warranties regarding the SaaS or any other matter, to Customer’s Clients or Users or any other third party, from or on behalf of Provider, and Customer shall not create or purport to create any obligations or liabilities for Provider. Provider may reject any proposed Customer’s Client for any reason that does not violate applicable law, in its sole discretion. Customer shall be jointly and severally liable to Provider forCustomer’s Client’s compliance with the Client ToS. Provider shall have no obligation to provide support or other services, SLA remedies, or other remedies to Customer’s Clients.

3.  SAAS FEES.

3.1.    Fees. In exchange for rights to access the SaaS during the Term, Customer agrees to pay the applicable subscription fees to Provider. Fees are non-refundable and non-creditable subject to the provisions of this Agreement. If Customer requests to upgrade to a higher tier plan, Customer will be required to pay for any difference in fees on a prorated basis for the remainder of the then-current Term.

3.2.   Taxes: Amounts due under this Agreement are payable to Provider without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, Provider may require that Customer submit applicable Sales Taxes to Provider. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives Provider a valid tax exemption certificate within 30 days of the Effective Date. Provider’s failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section 3.2. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay Provider the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 3.2 does not govern taxes based on Provider’s net income.

3.3.    Payment process: Customer will be invoiced for the Services through the Company’s authorised reseller and Merchant of Record Paddle.com. Paddle.com is responsible for payment processing and post-sale payment management. The contractual relationship between Paddle and the Customer is governed by the Paddle Terms and Conditions (https://www.paddle.com/legal/checkout-buyer-terms) and the Paddle Privacy Policy (https://www.paddle.com/legal/privacy).

4. CUSTOMER DATA & PRIVACY.

4.1.    The parties will each comply with their respective duties under all relevant legislation (in any country) concerning the protection of personal data, including EU Regulation 2016/679 (the General Data Protection Regulation), and where relevant the UK Data Protection Act 2018 and the UK GDPR. The terms used in this Article 4 shall have the meanings set out in the General Data Protection Regulation. The expression “Customer’s personal data” shall mean personal data to be processed by Provider on behalf of Customer.

4.2.   If and to the extent that Provider is required (in the capacity of data processor) to process personal data on behalf of Customer under this Agreement, Provider will:

(a)  Process such personal data:

          (i) only to the extent strictly necessary for the purposes of performing its obligations under this Agreement, and

          (ii) only in accordance with the written instructions of Customer, including those contained in this Article 4;

(b)  Put and at all times maintain in place appropriate technical and organisational measures against unauthorised or unlawful processing of such personal data and against accidental loss, destruction of or damage to the data.  Such measures shall (inter alia) have regard to the specific requirements of this Agreement and the level of harm that may be suffered by a data subject whose personal data is affected by any such unauthorised or unlawful processing or by its loss, destruction or damage, and shall include (where appropriate in each case):

         (i) The pseudonymisation and encryption of personal data;

        (ii) The ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

         (iii) The ability to restore the availability of, and access to, personal data in a timely manner in the event of a physical or technical incident; and

         (iv) A process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing;

(c)  Not keep the personal data for longer than is necessary for the purposes of processing the personal data to perform its obligations under this Agreement;

(d)  Take reasonable steps to ensure the reliability of any of its staff who will have access to the personal data, ensuring that any such staff are:

        (i) Adequately trained in their duties;

        (ii) Contractually obliged to maintain the confidentiality of Customer’s personal data, and

         (iii) Contractually obliged to process Customer’s personal data only on the instructions of Customer;

(e)  Inform Customer immediately if in Provider’s opinion an instruction issued by Customer infringes any applicable data protection law;

(f)  Inform Customer without undue delay if it becomes aware of any accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure of or access to Customer’s personal data and provide Customer with all reasonable assistance in investigating and mitigating the impact of any such data breach. Provider will also provide all reasonable assistance to Customer in relation to its obligations to provide adequate notifications to the relevant data protection authorities and affected data subjects;

(g)  Provide Customer with reasonable and timely assistance for the purposes of fulfilling Customer’s obligations in the event that Customer receives from a data subject a request to exercise any of his/her rights under applicable data protection law. If Provider receives from a data subject a request to exercise his/her rights in respect of Customer’s personal data, Provider will provide notice of this to Customer without undue delay;

(h)  Assist Customer to ensure Customer’s compliance with any requirements under applicable data protection legislation concerning the conduct of data protection impact assessments, including co-operation with the relevant supervisory authority;

(i) Not without the written consent of Customer process any of Customer’s personal data outside the EEA and the UK, nor transfer any of Customer’s personal data outside the EEA and the UK or to an international organisation, unless required to do so by any EU or UK law to which Supplier is subject, in which case Supplier shall inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;

(j)  Allow a representative of Customer (or an auditor appointed by Customer) access to any relevant premises owned or controlled by Provider upon reasonable notice, to inspect the measures, programmes and procedures adopted in performance of and in compliance with this Article 4. Provider will also make available to Customer, at Customer’s request, all information necessary to demonstrate compliance with this Article 4;

(k)  Upon the termination of this Agreement for whatever reason, return all personal data and all copies of the personal data to Customer forthwith or, at Customer’s choice, destroy all copies of the same and certify to Customer that it has done so, unless Supplier is prevented by any legal or regulatory requirement from destroying or returning all or part of such data, in which event the data will be kept confidential and will not be actively processed for any purpose, subject to the last sentence of 11.3 regarding the certificates of user training which Provider can continue to store after termination for the benefit of the users to help them with future employment prospects;

(l)  Not subcontract any processing of Customer’s personal data or otherwise disclose Customer’s personal data to any third party except as expressly permitted by this Agreement or otherwise permitted by Customer in writing. Where such a sub-contractor is engaged, Supplier will:

          (i) Ensure that it has a written contract (the "Processing Subcontract") in place with the relevant subcontractor which imposes on the subcontractor the same obligations in respect of processing of Customer’s personal data as are imposed on Supplier under this Agreement, and in particular this Article 4;

          (ii) Ensure that there are sufficient guarantees in place to ensure the subcontract will meet the requirements of Article 28 of EU Regulation 2016/679;

          (iii) Remain fully liable to Customer for its obligations under thisArticle 4; and

          (iv) Provide a copy of the Processing Subcontract to Customer upon request, subject to reasonable confidentiality restrictions that may be applicable. Provider shall ensure that any confidentiality restrictions in the Processing Subcontract do not prevent it showing to Customer those provisions which demonstrate Provider's compliance with its obligations under this Article 4.

4.3.    Details of the processing activities to be undertaken by Provider are as follows:

(a)  Subject-matter of the processing: Personal Data of Authorized Users is used to provide the Services as described in the Agreement.

(b)  Expected duration: Processing shall begin on creation of Customer account and be carried out for an unspecified period until the account is deleted by the Controller.

(c)  Nature of processing: Processing the data consists of the following: collecting, sorted, saving, transferring, restricting, and deleting data.

(d)  Purpose of processing: Provision of digital training for Users and provision of learning management system for Customer.

(e)  Types of personal data: First name, last name, region, country, age bracket, gender, phone number, email address.

(f)  Categories of data subjects: Users of the platform

4.4.    If Customer requests Provider to transfer personal data to any territory outside the EEA and the UK, then Provider shall do so as agent on behalf of Customer. Any transfers of personal data so carried out shall accordingly be treated as if they were transfers by Customer itself. If so requested by Customer, Provider shall enter into appropriate standard contractual clauses to cover the transfer, including adherence as a party to any existing standard contractual clauses in place between Customer and other relevant entities.  Where Provider transfers Personal Data or Customer Data to any territory outside of the EEA and the UK, then such transfers are made subject to the UK model clauses for data transfers.

4.5.    Statutory Special Terms. If Provider receives a “right to know,” deletion, “right to be forgotten,” or similar request related to Customer Data, Provider may respond in accordance with applicable law. Nothing in this Agreement precludes Provider from asserting rights or defenses it may have under applicable law related to such requests.

4.6.    Additional Fees. Customer recognizes and agrees that Provider may charge additional fees (without limitation) (a) for activities (if any) required by Privacy/Security Laws and (b) for activities Customer requests to help it comply with Privacy/Security Laws.

4.7.    Privacy Policy. Customer acknowledges Provider’s privacy policy at https://learn.ink/privacy, and Customer recognizes and agrees that nothing in this Agreement restricts Provider’s right to alter such privacy policy.

4.8.    De-identified Data. Provider reserves the right to disclose User information, in de-identified, anonymized and aggregate form only, in connection with its business. (“De-Identified Data” refers to Customer Data with the following removed: information that identifies or could reasonably be used to identify an individual person, a household, a Customer’s Client, or Customer.)

4.9.    Erasure. Provider may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more, without limiting Provider’s other rights or remedies.

4.10.  Required Disclosure. Notwithstanding the provisions above of this Article 4, Provider may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Provider shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

4.11.  Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the SaaS, Customer assumes such risks. Provider offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.

4.12.  Data Accuracy. Provider shall have no responsibility or liability for the accuracy of data uploaded to the SaaS by Customer, including without limitation Customer Data and any other data uploaded by Users or Customer’s Clients.

4.13.  Excluded Data. Customer warrants that (a) it has not and will not transmit Excluded Data (as defined below), or permit transmission of Excluded Data, to Provider or its computers or other media and, (b) to the best of its knowledge, Customer Data does not and will not include Excluded Data. Customer shall inform Provider of any Excluded Data within Customer Data promptly after discovery (without limiting Provider’s rights or remedies). Customer recognizes and agrees that: (i) the provisions of this Agreement related to Customer Data do not apply to Excluded Data; (ii) Provider has no liability for any failure to provide protections in the Excluded Data Laws (as defined below) or otherwise to protect Excluded Data; and (iii) Provider’s systems are not intended for management or protection of Excluded Data and may not provide adequate or legally required security for Excluded Data. Provider is not responsible or liable for any data exposure or disclosure or related loss to the extent that it involves Excluded Data. (“Excluded Data” means health related data or other data where the relevant laws provide for more stringent or robust data protection measures for such data than the types of data mentioned elsewhere in this Article 4. “Excluded Data Laws” means any law or regulation governing Excluded Data, including without limitation any law or regulation protecting privacy or security rights of Excluded Data subjects).

4.14.  Customer acknowledges that Personal Data or Customer Data will be collected pertaining to Customer, Customer’s Clients or Users (User Information) for the purpose of managing the SaaS. This includes but is not limited to email address, phone number, demographic information (region/age bracket/gender), connection speed and device information. Such User Information will be deemed the content of the Customer, who will also be deemed the data Controller with respect to User Information comprising Personal Data and the Provider will be deemed the data Processor with respect to User Information comprising personal data other than as set out in Clause 4.13

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5. CUSTOMER’S RESPONSIBILITIES &RESTRICTIONS.

5.1.    Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the SaaS for service bureau or time-sharing purposes or in any other way allow third parties to exploit the SaaS, except Customer’s Clients as specifically authorized by this Agreement; (b) provide SaaS passwords or other log-in information to any third party, except Customer’s Clients as specifically authorized by this Agreement; (c) share non-public SaaS features or content with any third party, except Customer’s Clients as specifically authorized by this Agreement; (d) access the SaaS in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the SaaS; or (e) engage in web scraping or data scraping on or related to the SaaS, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Provider may suspend Customer’s access to the SaaS without advanced notice, in addition to such other remedies as Provider may have. Neither this Agreement nor the AUP requires that Provider take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but Provider is free to take any such action it sees fit.

5.2.    Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the SaaS, including without limitation by protecting its passwords and other log-in information. Customer shall notify Provider immediately of any known or suspected unauthorized use of the SaaS or breach of its security and shall use best efforts to stop said breach.

5.3.    Compliance with Laws. In its use of the SaaS, Customer shall comply with all applicable laws, including without limitation Privacy/Security Laws.

5.4.    Customer’s Clients & Other Users; SaaS Access. Customer is responsible and liable for: (a) Customer’s Clients’ and other Users’ use of the SaaS, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the SaaS through Customer’s account, whether authorized or unauthorized.

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6.   IP & FEEDBACK.

6.1.    IP Rights to the SaaS. Provider retains all right, title, and interest in and to the SaaS, including any training materials which Provider has stored on the SaaS (including any such training materials which are templates intended for Customer to modify), including without limitation all software used to provide the SaaS and all graphics, user interfaces, logos, and trademarks reproduced through the SaaS, and copyright in any such training materials which Provider has stored on the SaaS. The above also applies with respect to any modifications, enhancements or improvements made to any of the above by Provider at any time and in any event. This Agreement does not grant Customer any intellectual property license or rights in or to the SaaS or any of its components, or any of the training materials which Provider has stored on the SaaS. Customer recognizes that the SaaS and its components, and the training materials which Provider has storedon the SaaS, are protected by copyright and other laws.

6.2.    Feedback. Provider has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer, Customer’s Clients, or other Users give Provider, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Provider’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. Feedback will not be considered Customer’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Provider’s products or services.)

6.3.    Customer Modified Training Materials. Where Customer has modified any of the training materials which Provider has stored on the SaaS (such as where such training materials which Provider has stored on the SaaS are templates intended for Customer to modify, Customer shall own all right, title, and interest in and to, the modified training materials, subject always to Provider’s ownership of all right, title and interest in the unmodified training materials as provided in 6.1.  Accordingly, Customer’s use of the modified training materials is subject to the terms of this Agreement.

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7.              CONFIDENTIAL INFORMATION.

“Confidential Information” refers to the following items Provider discloses to Customer: (a) any document Provider marks “Confidential”; (b) any information Provider orally designates as “Confidential” at the time of disclosure, provided Provider confirms such designation in writing within 10 business days; (c) the Documentation and training materials which Provider has stored on the SaaS, whether or not marked or designated confidential; and (d) any other non-public, sensitive informationCustomer should reasonably consider a trade secret or otherwise confidential.Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference toConfidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Provider.

7.1.    Nondisclosure. Customer shall not use Confidential Information for any purpose other than making use of the SaaS online training as permitted by the terms of this Agreement (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without Provider’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Provider of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Provider prompt notice of any such legal or governmental demand and reasonably cooperate with Provider in any effort toseek a protective order or otherwise to contest such required disclosure, at Provider’s expense.

7.2.    Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate 5 years after the date of disclosure; provided that such obligations related to Confidential Information constituting Provider’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Provider or certify, in writing, the destruction thereof.

7.3.    Injunction. Customer agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 7; (b) it would be difficult to determine the damages resulting from its breach of this Article 7, and such breach would cause irreparable harm to Provider; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that Provider prove actual damage or post a bond or other security. Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section 7.3 does not limit either party’s right to injunctive relief for breaches not listed.)

7.4.    Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Provider will retain all right, title, and interest in and to all Confidential Information.

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8.  REPRESENTATION & WARRANTIES.

8.1.    From Provider. Provider represents and warrants that it is the owner of the SaaS and of any training materials which Provider has stored on the SaaS, and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the SaaS set forth in this Agreement without the further consent of any third party. Provider’s representations and warranties in the preceding sentence do not apply to use of the SaaS in combination with hardware or software not provided by Provider (except where such use is merely accessing the SaaS via a standard mobile phone, tablet or other typical client device). In case of breach of the warranty above in this Section 8.1, Provider, at its own expense, shall promptly: (a) secure for Customer the right to continue using the SaaS; (b) replace or modify the SaaS to make it non-infringing; or if such remedies are not commercially practical in Provider’s reasonable opinion, (c) refund the fees paid for the SaaS for every month remaining in the then-current Term following the date after which Customer access to the SaaS ceases as a result of such breach of warranty. If Provider exercises its rights pursuant to Subsection 8.1(c) above, Customer shall promptly cease all use of the SaaS and all reproduction and use of the Documentation and training materials which Provider has stored on the SaaS (as well as any Customer modified training materials) and erase all copies in its possession or control. This Section 8.1, in conjunction with Customer’s right to terminate this Agreement where applicable, states Customer’s sole remedy and Provider’s entire liability for breach of the warranty above in this Section 8.1.

8.2.    From Customer.

(a)     Re Customer Itself. Customer represents and warrants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the SaaS; and (iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

(b)     Re Customer’s Clients. Customer represents and warrants that, to the best of its knowledge: (i) each Customer’s Client will have the full right and authority to enter into, execute, and perform its obligations as required under this Agreement and the Client ToS, with no pending or threatened claim or litigation that would have a material adverse impact on its ability so to perform; and (ii) each Customer’s Client will be a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

8.3.    Warranty Disclaimers. Except to the extent set forth in Section 8.1 above, CUSTOMER ACCEPTS THE SAAS “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SAAS WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SAAS IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.

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9.  INDEMNIFICATION.

9.1.    Customer shall defend, indemnify, and hold harmless Provider and the Provider Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the SaaS, including without limitation: (a) claims by Customer’s Clients or other Users or by Customer's or Customer’s Clients’ employees; (b) claims related to Data Incidents (as defined below); (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the SaaS through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the SaaS through Customer’s account, including by Customer’s Clients or other Users, harasses, defames, or defrauds a third party or violates any other law or restriction on electronic advertising. INDEMNIFIED CLAIMS INCLUDE, WITHOUT LIMITATION, CLAIMS ARISING OUT OF OR RELATED TO PROVIDER’S NEGLIGENCE. Customer’s obligations set forth in this Article 9 include, without limitation: (i) settlement atCustomer’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (ii) reimbursement of reasonable attorneys’ fees incurred before Customers’ assumption of the defence (but not attorneys’ fees incurred thereafter). If Customer fails to assume the defence on time to avoid prejudicing the defence, Provider may defend the Indemnified Claim, without loss of rights pursuant to this Article 9. Provider will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or a Provider Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. (“Provider Associates” are Provider’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns. A “Data Incident” is any (1) unauthorized disclosure of, access to, or use of Customer Data, including without limitationExcluded Data, or (2) violation of Privacy/Security Law through Customer’s account. Data Incidents include, without limitation, such events caused by Customer, by Provider, by Customer’s customers or other users, by hackers, and by any other third party.)

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10.           LIMITATION OF LIABILITY.

10.1.  Monetary Cap. PROVIDER’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO PROVIDER FOR THE SAAS UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.

10.2.  Excluded Damages. Except with regard to breaches of Article 7 (Confidential Information), IN NO EVENT WILL PROVIDER BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

10.3.  Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY TO THE BENEFIT OF PROVIDER’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELLAS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION,WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Customer acknowledges and agrees that Provider has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 10 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of thisArticle 10, Provider’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Provider’s liability limits and other rights set forth in this Article 10 apply likewise to Provider’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

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11.           TERM & TERMINATION.

11.1.  Term. The term of this Agreement (the “Term”) shall be for the Service Term as specified in the Order Form. Thereafter, the Term shall automatically renew for successive periods equal to the Initial Term, unless either party provides notice of non-renewal prior to the end of the then-current term.

11.2.  Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. Without limiting Provider’s other rights and remedies, Provider may suspend or terminate a Customer’s Client’s or other User’s access to the SaaS at any time, without advanced notice, if Provider reasonably concludes such Customer’s Client or other User has conducted itself in a way that is not consistent with the requirements of the AUP or the other requirements of this Agreement, or according to the Client ToS, or in a way that subjects Provider to potential liability.

11.3.  Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the SaaS and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b)Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.2 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfil its essential purpose.  Furthermore, upon termination of this Agreement for any reason, Customer agrees to allow Provider to continue to store on its SaaS, for an unlimited period of time, certificates of completion of training for any Users, profile information submitted by Users(name, region, country) and login information (phone number), so that such Users can continue to access such certificates. Provider will provide a refund of any prepaid and unused fees from the date of such termination.

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12.  MISCELLANEOUS

12.1.  Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Provider employee or contractor will be an employee of Customer.

12.2.  Notices. Provider may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to info@learn.ink and such notices will be deemed received 72 hours after they are sent. In addition, Customer is on notice and agrees that Provider will terminate the accounts of subscribers or Users who are repeat copyright infringers.

12.3.  Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by epidemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.

12.4.  Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Provider’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

12.5.  Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfil its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

12.6.  No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

12.7.  Choice of Law & Jurisdiction. This Agreement will be governed solely by the laws of England and Wales. The parties consent to the personal and exclusive jurisdiction of the courts of England & Wales. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

12.8.  Conflicts. In the event of any conflict between this Agreement and any Provider policy posted online, including without limitation the AUP, the terms of this Agreement will govern.

12.9.  Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

12.10  Amendment. Provider may amend this Agreement from time to time by posting an amended version  and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Provider written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 11, Term & Termination). Customer’s continued use of the SaaS following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 12.10, Provider may revise the AUP at any time by posting a new version and such new version will become effective on the date it is posted; provided if such amendment materially reduces Customer’s rights or protections, notice and consent will be subject to the requirements above in this Section 12.10.