Article 1. Customer’s Use of the Services
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. IEC 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. IEC 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. IEC reserves the right to modify the course offerings and content of the online course library at any time.
Article 2. Customer Data
2.1 Protection and Security. During the Term of this Agreement, IEC 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 IEC 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 IEC’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 IEC.
2.2 Unauthorized Disclosure.
A. If either party believes that there has been unauthorized access, use, loss or disclosure of Customer Data while it is on IEC’s network and systems, such party must promptly notify the other party. Additionally, each party will reasonably assist the other party in investigating, remediating or mitigating any potential damage, including providing reasonable assistance with respect to any legally required notifications concerning the disclosure or the provision of credit reporting services to such individuals. Each party shall bear its own costs of such investigation, remediation, mitigation and/or notification associated with an unauthorized disclosure.
Article 3. Fees and Payment
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 IEC system (via a link sent by IEC), 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, IEC will invoice Customer for Fees and interest at the monthly rate of 1.5% or lesser maximum allowable, and Customer will pay IEC’s invoice within thirty days of the invoice date. IEC 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, IEC will invoice Customer for the overages in arears. Fees will be billed and paid in USD, unless otherwise agreed in writing by the parties.
3. No Resale. Customer understands that Customer may not resell the Services or access to the Services to any third party.
Article 4. Confidentiality
4.1 Confidential Information Defined.
A. “Confidential Information” means all information disclosed by a party (“Discloser”) to the other party (“Recipient”), orally or in writing, designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstance of disclosure. Customer’s Confidential Information includes Customer Data; IEC’s Confidential Information includes the Services, Content and Documentation; and Confidential Information of each party includes each party’s proprietary technology and technical information, business processes and technical product information.
B. Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; or (iv) is received from a third party without breach of any obligation owed to the other party.
4.3 Disclosure to Third Parties and as Required by Law. Recipient may provide access to and use of Discloser’s Confidential Information only to those third parties that: (a) provide services to Recipient concerning Recipient’s use of Discloser’s Confidential Information; (b) have a need to use and access the Confidential Information; and (c) have agreed to substantially similar non-disclosure obligations as those contained in this Agreement. Recipient shall be responsible for the use by its third parties of the Discloser’s Confidential Information. To the extent Recipient may be required by Law to disclose Confidential Information, Recipient may make such disclosure, provided that Recipient (i) to the extent permitted by Law, notifies Discloser of such requirement prior to disclosure and (ii) allows Discloser to take reasonable action to avoid and/or limit disclosure.
Article 5. Proprietary Rights
5.1 Ownership and Reservation of Rights to IEC. IEC 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, IEC , 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.
A. Solely during the Term, the right to download and use the Learning Resources and Content or portions thereof in combination with Customer’s (non-IEC) learning material, with the express obligation that Customer remove and return or destroy all Learning Resources upon expiration or termination of the Term. IEC may audit Customer’ compliance with this post-Term obligation once annually for the two years following expiration or termination of this Agreement, upon twenty-four (24) hours’ written notice to Customer, and Customer agrees to comply with any such audit.
B. Solely during the Term, the right to use the Content on a third party Learning Management System provided that IEC does not warrant and bears no responsibility for availability and functionality of the Content on a third party LMS.
5.3 License Restrictions. Customer shall not (i) except as allowed under Section 5.2.A, modify, copy or create any derivative works based on the Services or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services or Documentation available to any third party, other than to Authorized Persons as permitted herein; (iii) reverse engineer or decompile any portion of the Services or Documentation, including but not limited to, any software utilized by IEC in the provision of the Services and Documentation, except to the extent required by Law; (iv) access the Services or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Services or Documentation. Customer represents and warrants that neither it nor any Authorized User is a national, resident or under control of any country on the list of countries to which the U.S has embargoed goods.
5.4 Ownership of Customer Data. As between IEC and Customer, Customer owns its Customer Data.
5.5 Aggregated Data Use. Without limiting the confidentiality rights and protections set forth in this Agreement, IEC owns and has the perpetual right to use for its business and or operating purposes the aggregated and statistical data derived from the operation of the Services, including, without limitation, the number of records in the Services, the number and types of transactions, configurations, and reports processed in the Services, and the performance results for the Services (the “Aggregated Data”). Nothing herein shall be construed as prohibiting IEC from utilizing the Aggregated Data for purposes of operating IEC’s business, provided that IEC’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.
Article 6. Term, Termination, Suspension, and Dispute Resolution
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.
Article 7. No Warranties; All Services are provided “AS IS”
7.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IEC 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”. IEC 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 IEC 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. IEC cannot and does not warrant against human and machine errors, omissions, delays, interruptions or losses, including loss of data. IEC 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.
Article 8. Indemnification
Article 9. Limitation of Liability
9.1 Direct Damages. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, IEC’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. IEC, 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.
Article 10. Miscellaneous
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 IEC 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 IEC should be sent to:
Interactive Education Concepts, Inc.
17328 Ventura Blvd, PO Box 202
Encino, CA 91436, USA
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 IEC 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. IEC may add Customer’s name and logo to IEC 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, IEC 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 IEC 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.
Article 11. Definitions
“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 IEC 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 IEC.
“IEC Technology” means IEC 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 IEC or any Supplier or licensed to IEC or any Supplier and all enhancements, derivatives, IECements, 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).
“IEC Content” means Content and Learning Resources created by or for IEC, or otherwise provided by IEC to Customer. Unless excepted, “IEC 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 IEC 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. “IEC LMS” means the learning management system that IEC provides to Customer under an Order. Unless excepted, “IEC 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 IEC 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 IEC Content in this Agreement.
“On-Demand Fee” means the fee IEC 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 IEC. The term “Order” in this Agreement includes any such Schedule.
“Services” or “On-Demand Services” means the On-Demand Services and IEC Content provided by IEC to Customer under an Order.
“Supplier” means any person or entity contracted by IEC that provides services, materials, products, or supplies in connection with the Services. IEC may change Suppliers at its sole discretion. IEC 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.