THIS AGREEMENT GOVERNS THE COMPANY’S ACQUISITION AND USE OF GREAT LEARNINGWORKS, INC.’S E-LEARNING SERVICES OR PRODUCTS. BY ACCEPTING THIS AGREEMENT, THE COMPANY AGREES TO THE TERMS SET FORTH IN THIS AGREEMENT.

 

1. DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with Great LearningWorks, Inc. or the Company.

“Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means this Master Service & Subscription Agreement.

“Access” means to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.

“Beta Services” means GLW’s services that are not generally available to customers.

“Company” means the entity, organization or individual identified on an Order Form.

“Company Data” means electronic data and information submitted by or for the Company or collected and processed by or for the Company using the Services, excluding Content and Non-GLW Applications.

“Content” means information obtained by GLW or from its licensors or publicly available sources and provided to the Company pursuant to an Order Form, as more fully described in Documents.

“Created Content” means content created by GLW for use on its E-Learning Platform.

“Documents” means GLW’s user guides, documentation, and help and training materials, as updated from time to time, accessible via help.greatlearningworks.com.

“E-Learning Course” means modified content created by GLW. Such modified content is for use on the E-Learning Platform.

“E-Learning Platform” means the Platform created and hosted by GLW designed to host Company’s or Licensor’s content.

“Effective Date” means the date identified on an Order Form for which the agreement term begins to run.

“GLW” means Great LearningWorks, Inc.

“License Fee” means the dollar amount identified as the License Fee on the Order Form.

“License Term” unless otherwise stated on the Order Form, shall mean a one year term commencing upon the effective date.

“Licensed Content” means Content created by Licensor and licensed by GLW pursuant to an Order Form(s) and subject to the terms of this agreement.

“Licensor” means a person or entity who enters into a license agreement with GLW via a license order form, with the intent to license GLW its Original Content for use on its E-Learning Platform.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including but not limited to, viruses, worms, time bombs and Trojan horses.

“Modified Content” means Content which GLW has created, updated, and/or modified based off the Original Content licensed by GLW.

“Non-GLW Applications” means a Web-based or off-line software application that is provided by the Company or a third party and interoperates with a Service.

“Order Form” means the document specifying the Services to be provided to Company or the Licensed Content acquired by GLW from Licensor.

“Original Content” means the content created by Licensor.

“Prospect” or “Prospects” means prospective GLW customers who may benefit from the use of the Services and who have the necessary resources to license the Software.

“Reporting Month” means the month in which GLW shall provide Company or Licensor a report detailing the activity of the prior month.

“Services” or “Purchased Services” means the products and services that are ordered by the Company or its Affiliate under an Order Form and made available or provided by GLW. “Services” do not include Content or Non-GLW applications.

“Server” means a single database or file server which may be accessed by a network of personal computers.

“Subscription” means a paid time period in which a person or entity has access to GLW E-Learning Courses.

“User” means an individual who is authorized by the Company or GLW to use a Service, for whom the Company has ordered the Service, and to whom the Company or GLW at the Company’s request have supplied a user identification and password. Users may include, for example, the Company’s employees, consultants, contractors and agents, and third parties with which the Company transacts business.

 

2. GLW RESPONSIBILITIES

2.1 Provision of Services.

GLW will (a) make the Services available to the Company pursuant to this Agreement and the applicable Order Form(s), (b) provide GLW standard support for the Services at no additional charge or upgraded support if purchased, and (c) use commercially reasonable efforts to make any online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which GLW shall give at least 4 hours electronic notice and which GLW shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 6:00 a.m. Monday Eastern time, and (ii) any unavailability caused by circumstances beyond GLW’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, any Internet service provider failure or delay, Non-GLW Application, or denial of service attack.

2.2 Protection of Company Data.

GLW will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Company’s Data, as described in the Documents. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Company’s Data by GLW personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as required by law in accordance with Section 10.3 below, or (c) as the Company expressly permits in writing.

2.3 GLW Personnel.

GLW will be responsible for the performance of GLW personnel (including GLW employees and contractors) and their compliance with GLW obligations under this Agreement, except as otherwise specified herein.

2.4 Beta Services.

From time to time, GLW may invite the Company to experience Beta Services at no charge. The Company may accept or decline any such trial in the Company’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, or by a description signaling that such platform is considered Beta Services. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. GLW may discontinue Beta Services at any time in GLW’s sole discretion and may never make them generally available. GLW will have no liability for any harm or damage arising out of or in connection with any Beta Service.

 

3. USE OF PAID SERVICES AND CONTENT

Section 3.1 to Section 3.6 applies to Order Form between Company and GLW for Paid Services

3.1 Subscriptions.

Unless otherwise provided in the applicable Order Form, (a) Services and Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing and prorated for the portion of the subscription term remaining at the time any subscription is added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.

3.2 Usage Limits.

Services and Content may be subject to usage limits, including, for example, the quantities specified in Order Form(s). Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If the Company exceeds a contractual usage limit, GLW may work with the Company to seek to reduce the Company’s usage so that it conforms to the agreed upon limit. If, notwithstanding GLW’s efforts, the Company is unable or unwilling to limit usage as specified in the Order Form, the Company will execute an Order Form for additional usage of the applicable Services or Content promptly upon GLW’s request or pay any invoice for excess usage in accordance with Section 6.2 below.

3.3 Company Responsibilities.

The Company will (a) be responsible for all of its Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality, and legality of its Data and the means by which the Company acquired its Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and promptly notify GLW of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documents and applicable laws and government regulations, and (e) comply with any applicable terms of service.

3.4 Usage Restrictions.

The Company will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than the Company and its Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, (c) use a Service to create, store, share or transmit infringing, libelous, or otherwise unlawful material, or to create, store, share or transmit material in violation of any third-party privacy rights, (d) use a Service to create, store, share or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents any contractual term, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Document, (j) frame or mirror any part of any Service or Content, other than framing on the Company’s own intranets or otherwise for the Company’s own internal business purposes or as permitted in the Documents, (k) access any Service or Content in order to build a competitive platform, product or service, or (l) reverse engineer any Service to the extent such restriction is permitted by law.

3.5 Removal of Content and Non-GLW Applications.

If GLW is required to remove Content, or if GLW receives notice that Content provided to Company may violate applicable law or third-party rights, GLW may notify Company and in such event, GLW will promptly remove such Content from its systems. If GLW receives information that a Non-GLW Application hosted on a Service by the Company may violate any applicable GLW policy, applicable law or third-party rights, GLW shall notify the Company and in such event, the Company will promptly disable such Non-GLW Application or modify the Non-GLW Application to resolve the potential violation. If the Company does not take required action in accordance with the above, GLW may disable the applicable Content, Service or Non-GLW Application until the potential violation is resolved.

3.6 Rights to Created Content.

Company may elect to have GLW create Content in connection with any paid services. Unless otherwise specified herein or in an Order Form, all rights, title, and interest in and to any, created content shall remain that of GLW.

 

4. LICENSED CONTENT

Section 4.1 to Section 4.6 applies to Order Form between Licensor and GLW for Licensed Content.

4.1 License Grant.

Licensor hereby grants to GLW and its affiliates, an exclusive, non-transferable, revocable license to use Licensor’s Content and accompanying documentation as authorized in this Agreement and the Order Form. GLW may make copies of Licensor’s Content for the purpose of backup in the event the Content is damaged or destroyed. Any such copies of the Content shall include Licensor’s copyright and other proprietary notices.

4.2 Company’s Rights.

GLW acknowledges and agrees that the original content and documentation provided by Licensor are products of Licensor and as such are protected under U.S. copyright law. GLW further acknowledges and agrees that all right, title, interest in and to the provided original content and documentation, are and shall remain with Licensor, and any third party from which Licensor obtains its rights. Licensor acknowledges and represents Licensor has the rights, title, and interest in the original content and documentation for the purpose of licensing the content to GLW.

4.3 Assignment.

GLW agress that it will not assign, sublicense, transfer, pledge, lease, rent or share its rights under this Section unless previously authorized in writing by Licensor. Licensor hereby agrees nothing contained in this agreement grants Licensor any license in GLW’s E-Learning Platform or other intellectual property.

4.4 License by Company to Use Feedback.

Licensor grants to GLW and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement, request, recommendation, correction, other feedback or information provided by Licensor or its Users concerning the Services.

4.5 Update or Modification.

Licensor hereby agrees the right, title, interest in and to any, updates to, or modification of, Licensor’s Content and/or documentation shall remain with GLW.

4.6 Authorized Use.

GLW shall prohibit unauthorized users from accessing the Content, and documentation. Only authorized Users may access licensed Content or modified Content on GLW’s E-Learning Platform on a computer, owned, leased, or otherwise controlled by the authorized User. Concurrent use on two or more computers by the same authorized User is not permitted without separate authorization or payment by the additional User.

 

5. NON-GLW PROVIDERS

5.1 Acquisition of Non-GLW Products and Services.

GLW or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-GLW Applications and implementation and other consulting services. Any acquisition by the Company of such Non-GLW products or services, and any exchange of data between the Company and any Non-GLW provider is solely between the Company and the applicable Non-GLW provider. GLW does not warrant or support Non-GLW Applications or other Non-GLW products or services, whether or not they are designated by GLW as “certified” or otherwise, except as specified in an Order Form.

5.2 Non-GLW Applications and Company Data.

If the Company installs or enables a Non-GLW Application for use with a Service, Company grants GLW permission to allow the provider of that Non-GLW Application to access Company’s Data as required for the interoperation of that Non-GLW Application with the Service. GLW is not responsible for any disclosure, modification or deletion of the Company’s Data resulting from access by a Non-GLW Application.

5.3 Integration with Non-GLW Applications.

The Services may contain features designed to interoperate with Non-GLW Applications. To use such features, the Company may be required to obtain access to Non-GLW Applications from the provider, and may be required to grant GLW access to Company’s account(s) on the Non-GLW Applications. If the provider of a Non-GLW Application ceases to make the Non-GLW Application available for interoperation with the corresponding Service features on reasonable terms, GLW may stop providing those Service features without providing Company any refund, credit, or other compensation.

 

6. FEES AND PAYMENT FOR PURCHASED SERVICES

6.1 Fees for Purchased Services.

Company will pay all fees specified in Order Form(s). Except as otherwise specified herein or in an Order Form, (a) fees are based on Services and Content purchased and not actual usage, (b) payment obligations may not be cancelled and all fees paid are non-refundable, and (c) quantities or usage purchased cannot be decreased during the current subscription term.

6.2 Invoicing and Payment.

Company will provide GLW with valid and up-to-date credit card information, or a valid purchase order or alternative document reasonably acceptable to GLW. If Company provides credit card information, Company authorizes GLW to charge such credit card for all Services identified in an Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 14.2. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, GLW will invoice the Company in advance and otherwise in accordance with the applicable Order Form. Unless otherwise stated in the Order Form, all invoiced charges are net 30 days from the invoice date without right of set-off or deduction. Company is responsible for providing complete and accurate billing and contact information to GLW and notifying GLW of any changes to such information. Company’s access to the Services may be suspended until complete and accurate billing and contact information is available and charges are authorized by the Company’s credit card company.

6.3 Overdue Amounts.

If any amount due is not received by GLW by the due date, then without limiting GLW’s rights or remedies, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) GLW may condition future subscription renewals or Order Forms on payment terms on a pay in advance basis or shorter than those specified in Section 6.2.

6.4 Suspension of Service.

If any amount owing by the Company under this or any other agreement, including an Order Form, for GLW services is 30 or more days overdue (or 10 or more days overdue in the case of amounts the Company has authorized GLW to charge a credit card), GLW may, without limiting GLW other rights and remedies, suspend services until such amounts are paid in full. GLW will provide at least 10 days’ prior notice to Company that its account is delinquent before suspending services.

6.5 Taxes.

GLW fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Company is responsible for paying all taxes associated with this Agreement and any Order Form. If GLW has the legal obligation to pay or collect taxes for which the Company is responsible under this Section 6.5, GLW will invoice the Company and Company will pay that amount unless the Company provides GLW with a valid tax exemption certificate authorized by the appropriate taxing authority. Company is not responsible for taxes based on GLW’s income, property and employees.

 

7. PAYMENT FOR LICENSED CONTENT

7.1 Fees for Licensed Content.

GLW will pay Licensor a one-time fee per Licensed Content E-Learning Course purchased by a User. The amount and/or percentage of the one-time fee is specified in Order Form(s). All fees are subject to chargeback, deductions, and offsets.

7.2 Reporting and Payment.

Unless specified in an Order Form, GLW shall prepare and submit to Licensor a complete and accurate written report detailing the E-Learning Course purchased by an Authorized User for which the Content is licensed from Licensor. Payment based on a fee set in the Order Form will be submitted to Licensor at the same time as the above report. The Report and payment shall be submitted 30 days after the last day of the prior month.

7.3 Taxes.

GLW fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Licensor is responsible for paying all taxes associated with this Agreement and any Order Form. If GLW has the legal obligation to pay or collect taxes for which the Licensor is responsible under this Section 7.2, GLW will invoice the Licensor and Licensor will pay that amount unless the Licensor provides GLW with a valid tax exemption certificate authorized by the appropriate taxing authority. Licensor is not responsible for taxes based on GLW’s income, property and employees.

 

8. MARKETING FOR SERVICES

Section 8.1 to Section 8.4 applies to Order Form between Company and GLW for Marketing in Exchange for Services.

8.1. Marketing for Services.

GLW agrees to provide to Company Services specified in Order Form(s) subject to the terms of this agreement, and in exchange for a license to use Company’s Intellectual Property including but not limited to: Company’s Logos, Trademarks, and Copyrights for use in GLW’s marketing material including but not limited to: Website, Social Media, Mailings, Television Ads, Web Ads, and Product Brochures for the length of this agreement.

8.2 Authorized Statements.

Company is authorized to represent to Prospects and other third parties only such facts about the GLW and its Services as GLW itself states in its product descriptions, advertising, and promotional materials or as may be stated in other non-confidential, written material furnished by Great LearningWorks.

8.3 Trademark License.

Company grants to GLW a limited license to use the trade name of Company and the Company’s logo for use in GLW marketing material including but not limited to: Website, Social Media, Mailings, Television Ads, Web Ads, and Product Brochures. The use of the trade name and the Company logo by GLW shall inure to the benefit of GLW. GLW shall provide to Company, at no cost to Company, examples of its use of Company’s trade name and logo and shall modify such use if requested by Company within 15 days of receipt of such examples. The Parties shall not adopt any trademark, trade name or service mark which is confusingly similar to the trademark, trade name or service mark used by either Great LearningWorks or Company to sell or assist in the sale of its products.

8.4 Term.

The term shall be specified in the Order Form(s).

 

9. PROPRIETARY RIGHTS AND LICENSES

Unless otherwise specified in this agreement or in Order Form(s) the following rights and licenses apply:

9.1 Reservation of Rights.

Subject to the limited rights expressly granted hereunder, GLW reserves all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to the Company, or Licensor hereunder other than as expressly set forth herein.

9.2 License by GLW to Use Content.

GLW grants to Company and Licensor a worldwide, limited-term license, under GLW applicable intellectual property rights and licenses, to use the Services and Content acquired by the Company pursuant to Order Forms, subject to the terms set forth on any Order Forms, this Agreement, and the Documents.

9.3 License by Company to Host Company’s Data and Applications.

Company grants GLW and its Affiliates a worldwide, limited term license to host, copy, transmit and display Company’s Data, and any Non-GLW Applications and program code created by or for Company using a Service, as necessary for GLW to deliver the Services in accordance with this Agreement. Subject to the limited licenses granted herein, GLW and its Affiliates acquire no right, title or interest from Company or its licensors under this Agreement in or to Company’s Data or any Non-GLW Application or program code.

9.4 License by Company to Use Feedback.

Company and Licensor grants to GLW and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback or information provided by the Company or its Users concerning the Services.

9.5 Authorized Statements.

Company and Licensor are authorized to represent to Prospects and other third parties only such facts about the GLW and its Services as GLW itself states in its product descriptions, advertising, and promotional materials or as may be stated in other non-confidential, written material furnished by GLW.

9.6 Non-Exclusivity.

Nothing in this Agreement shall prohibit GLW, its agents, successors or assigns from entering into agreements with third parties under the same or similar terms and conditions as the terms and conditions of this Agreement.

 

10. CONFIDENTIALITY

10.1 Definition of Confidential Information.

“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Company’s Confidential Information includes Company’s Data; GLW Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including but not limited to pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.

10.2 Protection of Confidential Information.

The Receiving Party will use reasonable care to protect the Disclosing Party’s Confidential Information (a) not to use any Confidential Information of the Disclosing Party for any purpose beyond the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those employees and contractors of its and its Affiliates who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 10.2.

10.3 Required Disclosure.

The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law to do so, provided the Receiving Party shall give the Disclosing Party prior notice of the required disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to seek to limit or prevent disclosure of its Confidential Information.

 

11. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS

11.1 Representations.

Each party represents that it has validly entered into this Agreement and has the legal power to do so.

11.2 GLW Warranties.

GLW warrants that (a) this Agreement, the Order Form(s) and the Documents accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Company’s Data, (b) GLW will not materially decrease the overall security of the Services during a subscription term, (c) the Services will perform materially in accordance with the applicable Documents, (d) subject to Section 6.4 GLW will not materially decrease the functionality of the Services during a subscription term, and (e) the Services and Content will not introduce Malicious Code into Company’s systems. For any breach of an above warranty, Company’s exclusive remedies are those described in Sections 13.1 and 13.2 below.

11.4 Disclaimers.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

 

12. MUTUAL INDEMNIFICATION

12.1 Indemnification by GLW.

GLW will defend Company against any claim, demand, suit or proceeding made or brought against Company by a third party alleging that the use of a purchased service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Company”), and will indemnify Company from any damages, attorney fees and costs finally awarded against Company as a result of, or for amounts Company pays under a court-approved settlement of, a Claim Against Company, provided Company (a) promptly notifies GLW in writing of the Claim Against Company, (b) gives GLW sole control of the defense and settlement of the claim and such settlement document shall release Company from liability for the claim, and (c) provide GLW with all reasonable assistance to defend the Claim Against Company, at GLW expense. If GLW receives information that the Service infringes or misappropriates any third party’s rights, GLW may in GLW discretion and at no cost to Company (a) modify the Service so that it no longer violates any third party’s rights, without breaching GLW’s warranties under Section 11.2, (b) obtain a royalty-free license for Company to continue to use the Service, or (c) terminate Company’s subscription for that Service upon 30 days’ written notice and refund any pre-paid fees. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-GLW Application or if Company breaches this Agreement.

12.2 Indemnification by Company.

Company will defend GLW and its Affiliates against any claim, demand, suit or proceeding made or brought against GLW or its Affiliates by a third party alleging that Company’s Data or use of any Service or Content is in breach of this Agreement, infringes or misappropriates the third party’s intellectual property rights or violates applicable law (a “Claim Against GLW”), and will indemnify GLW and its affiliates from any damages, attorney fees and costs finally awarded against them as a result of, or for any amounts paid by GLW under a court-approved settlement of, a Claim Against GLW, provided GLW (a) promptly gives written notice of the Claim Against GLW, (b) allows Company to control the defense and settlement of the Claim Against GLWs and such settlement releases GLW and its affiliates from any liability for the claim and (c) give Company all reasonable assistance, at Company’s expense.

12.3 Indemnification by Licensor.

Licensor will defend GLW and its Affiliates against any claim, demand, suit or proceeding made or brought against GLW or its Affiliates by a third party alleging that Licensor’s Content is in breach of this Agreement, infringes or misappropriates the third party’s intellectual property rights or violates applicable law (a “Claim Against GLW”), and will indemnify GLW and its affiliates from any damages, attorney fees and costs finally awarded against them as a result of, or for any amounts paid by GLW under a court-approved settlement of, a Claim Against GLW, provided GLW (a) promptly gives written notice of the Claim Against GLW, (b) allows Company to control the defense and settlement of the Claim Against GLWs and such settlement releases GLW and its affiliates from any liability for the claim and (c) give Company all reasonable assistance, at Company’s expense.

 

13. LIMITATION OF LIABILITY

13.1 Limitation of Liability.

NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT LIST IN THE ORDER FORM(S) HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT LISTED IN THE ORDER FORM(S). THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT COMPANY’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT AND THE APPROPRIATE ORDER FORM.

13.2 Exclusion of Consequential and Related Damages.

IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

 

14. TERM AND TERMINATION

14.1 Term of This Agreement.

This Agreement commences on the effective date described on the Order Form(s) and continues until all subscriptions hereunder have expired or have been terminated or otherwise stated on the Order Form.

14.2 Term of Purchased Subscriptions.

The term of each subscription shall be as specified in the applicable Order Form.

14.3 Termination.

Any party may terminate this Agreement for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

14.4 Termination for Convenience.

This Agreement may be terminated by either party at any time, at such party’s sole discretion, for any reason or no reason at all, effective immediately upon 90 days written notice to the other party.

14.5 Refund or Payment upon Termination.

If this Agreement is terminated by Company in accordance with Section 14.3, GLW will refund any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by GLW in accordance with Section 14.3, Company will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Company of its obligation to pay any fees payable to GLW for the period prior to the effective date of termination.

14.6 Termination of License Order Form(s).

Licensor will be paid for all fees earned through the date of termination. In the event Licensor’s performance or delivery of Services harms or may cause harm to GLW, GLW may immediately upon written notice terminate the Services under this Agreement and no further amounts shall be due.

14.7 Company Data Portability and Deletion.

Upon request by Company, if made within 30 days after the effective date of termination or expiration of this Agreement, GLW will make the Company’s Data available for export or download as provided in the Documents. After that 30-day period, GLW will have no obligation to maintain or provide the Data, and will thereafter delete or destroy all copies of Company’s Data in its systems or otherwise in its possession or control as provided in the Documents, unless otherwise prohibited by law.

14.8 Surviving Provisions.

The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Portability and Deletion of Company Data,” “Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration if this Agreement.

 

15. NOTICES, GOVERNING LAW AND JURISDICTION

15.1 General. This Agreement will be governed by the laws of the state of Florida.

All disputes arising out of this Agreement shall be brought in the state or federal courts located in Broward County, Florida. Notices given to GLW should be directed to Great LearningWorks, Inc., Attn: Miles DuPree, COO, 4100 SW 28th Way, Fort Lauderdale, FL 33312 with a courtesy copy to Attn: Legal Department. Notices provided to Company shall be addressed as identified on the Order Form.

15.2 Manner of Giving Notice.

Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email but only if that e-mail is acknowledged by the addressed party (except email shall not be sufficient for notices of termination or notice of an indemnifiable claim).

15.3 Agreement to Governing Law and Jurisdiction.

Each party agrees to the applicable governing law of the State of Florida without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the state or federal courts located in Broward County, Florida.

15.4 No Agency.

For the avoidance of doubt, GLW is entering into this Agreement as principal and not as agent for any Affiliate. Subject to any permitted Assignment under Section 16.4, the obligations owed by GLW under this Agreement shall be owed to Company solely by GLW and the obligations owed by Company under this Agreement shall be owed solely to GLW.

 

16. GENERAL PROVISIONS

16.1 Export Compliance.

The Services, Content, other technology GLW makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Company shall not permit Users to access or use any Service or Content in a U.S.-embargoed country or in violation of any U.S. export law or regulation.

16.2 Anti-Corruption.

Company has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of GLW employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Company learns of any violation of the above restriction, it will use reasonable efforts to promptly notify GLW Legal Department at [email protected]

16.3 Entire Agreement and Order of Precedence.

This Agreement is the entire agreement between GLW, Company and Licensor. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any in any other document (excluding the Order Form(s)) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement.

16.4 Assignment.

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

16.5 Relationship of the Parties.

The parties are independent contractors. Nothing in this Agreement is deemed to create a partnership, joint venture or similar relationship between the parties and no party will be deemed to be the agent of the other. Neither party has nor will hold itself out as having any authority to enter into any contract or create any obligation or liability on behalf of, in the name of, or binding upon the other party.

16.6 Third-Party Beneficiaries.

There are no other third-party beneficiaries under this Agreement.

16.7 Waiver.

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

16.8 Severability.

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.