TrainHQ, INC. Master Subscription Agreement (EU Version)

TrainHQ, INC. Master Subscription Agreement (EU Version)

TrainHQ, INC. Master Subscription Agreement (EU Version)

Version

1.0

Jun 4, 2025

MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT")

THIS MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (THE "CUSTOMER") AND TRAINHQ INC AND ITS SUBSIDIARIES ("TRAINHQ") AND GOVERNS THE USE OF TRAINHQ'S SERVICES DESCRIBED HEREIN. BY CLICKING THE "I AGREE" BUTTON OR CHECK BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT OR BY ACCESSING THE SERVICES, YOU AGREE TO ALL OF THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU", "YOUR" OR "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. IF YOU ARE A DIRECT COMPETITOR OF TRAINHQ YOU MAY NOT BECOME A CUSTOMER AND MAY NOT ACCESS THE SERVICES WITHOUT TRAINHQ'S PRIOR WRITTEN INFORMED CONSENT. TRAINHQ RESERVES THE RIGHT TO DETERMINE THE ELIGIBILITY CRITERIA NECESSARY TO ACCESS THE SERVICES AND TO DENY ACCESS TO THE SERVICES TO ANY INDIVIDUAL OR ENTITY IN ITS SOLE DISCRETION. TRAINHQ AND CUSTOMER SHALL SOMETIMES COLLECTIVELY BE REFERRED TO HEREIN AS THE "PARTIES" OR, INDIVIDUALLY, AS A "PARTY."

1. DEFINITIONS

"Affiliate" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of an entity through the ownership or control of more than 50% of an entity's voting securities.

"AI Role-Play Simulations" means role-play simulation functionality provided through the Services, including Content generated by the Services through use of such functionality.

"Confidential Information" refers to non-public information that either Party may obtain from the other or have access to by virtue of this Agreement, including, but not limited to, each Party's data and each Party's proprietary software and computer operations, all code, inventions, algorithms, business concepts, workflow, marketing, financial, business and technical information, the terms and pricing under this Agreement, authentication credentials associated with the use of the Services, personal information of any natural person, and all other information clearly identified as confidential.

"Content" means information, text, audio, video, images, photographs, illustrations, animation and graphics, logos, trademarks, materials, resources, documentation, or other content.

"Customer Data" means all electronic data or Content submitted by Customer, any User or any Training Program User to the Services or Training Program.

"User" means an individual authorized by Customer to use the Services on its behalf through the assignment of an individual or group user identifier.

"Development Tools" means the development tools provided by TrainHQ and accessible through the Services.

"Documentation" means information contained in the user guides, operating manuals and web sites provided by TrainHQ with the Services or otherwise made accessible to Customer, if any, as may be updated from time to time.

"Effective Date" means the date that Customer accepts this Agreement.

"Fees" means the amount to be paid for a subscription to the Services as detailed in the applicable Order.

"Intellectual Property" means any patents, patent rights, design rights, copyrights, database rights, trade secrets, know-how, trademarks, trade names, service marks and other intellectual property embodied therein and all applications and rights to apply for registration or protection rights pertaining thereto, in existence at the date hereof or created in the future.

"Order" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between Customer and TrainHQ from time to time. Orders shall be deemed incorporated herein by reference.

"Services" means the online, cloud-based platform, including Development Tools, machine learning algorithms, AI Role-Play Simulations and the runtime services to enable Customer to develop, distribute, display, perform, conduct, and exhibit Training Programs as described in the Documentation and provided to Customer pursuant to an Order.

"Subscription Term" refers to the period of time for which Customer has acquired the subscription for Services from TrainHQ, as defined in the applicable Order.

"Territory" means the territory identified in the Order.

"Training Programs" means the training programs and supportive Content developed and distributed by Customer through TrainHQ's cloud-based platform; provided, however, that such training programs and Content shall not include the Services or any Service Data.

"Training Program User" means any individual or entity that accesses or uses a Training Program.

"Data Controller" means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.

"Data Processor" means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Data Controller.

"GDPR" means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, as may be amended from time to time.

"Personal Data" means any information relating to an identified or identifiable natural person ('data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

2. SUBSCRIPTION

2.1. Services

Pursuant to the execution or electronic acceptance of an Order and subject to the terms and conditions of this Agreement and to Customer's payment obligations, TrainHQ will provide the Services to Customer during the Subscription Term. Customer may order multiple subscriptions by executing additional Orders.

2.2. Subscription Term

Subscriptions ordered by Customer commence on the start date defined in the applicable Order and shall continue in effect for the Subscription Term specified therein. Except as otherwise specified in the applicable Order, all subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term or 1 (one) month (whichever is shorter), unless either Party gives the other notice of non-renewal at least 60 (sixty) days before the end of the relevant Subscription Term or the Parties mutually agree on a different Subscription Term.

3. RESTRICTIONS ON USE

3.1. Usage Limits

The Services are subject to technical, functional, geographic, and usage limits, as specified in the respective Order and Documentation, including the following: (a) the Services may not be accessed by Users outside of the Territory; (b) Users shall not be direct competitors of TrainHQ and shall be bound by the confidentiality obligations of this Agreement; (c) the Services may not be used in excess of the data storage limits specified in the Order; and (d) the Training Program may only be used on the Services.

3.2. Restrictions on Use

Unless otherwise authorized under this Agreement, Customer may not (and will not allow any third party to): (i) sell, rent, lease, license, sublicense, distribute, pledge, assign or otherwise transfer in whole or in part the Services to another party; (ii) provide, disclose, divulge or make available to, or permit use of the Services in whole or in part by any third party without TrainHQ's prior written consent; (iii) use the Services in a manner that circumvents or interferes with the operation of the technological measure that controls the access to the Services; (iv) modify, translate, adapt or create derivative works based on the Services; (v) decompile, disassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary) the Services, or any portion thereof; (vi) export or re-export the Services or any derivative work thereof; (vii) remove or modify any Services markings or any notice of TrainHQ's proprietary rights; (viii) use the Services to develop, test, host, or run and operate Training Programs on behalf of third-parties; (ix) use or allow a direct competitor to use the Services for any benchmark tests, to monitor the availability, performance or functionality of the Services, to build a competitive product, to copy any features or functionality or for other competitive purposes; (x) use the Services in any way that is contrary to the terms and conditions of this Agreement; (xi) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit materials in violation of third-party privacy, Intellectual Property or confidentiality rights; (xii) use the Services in any way that violates the privacy rights of any Training Program User or other natural person; or (xiii) use the Services for any unlawful purposes.

3.3. Similar Training Programs

Due to the nature of the Services as a platform for developing, distributing and maintaining Training Programs, Customer recognizes that TrainHQ and its customers, partners, vendors, resellers, and distributors may independently develop Training Programs using the Services that perform similar functions or that are used for a similar purpose as Customer's Training Programs. TrainHQ is not responsible, and shall not be liable, for any alleged violation of Intellectual Property rights or related disputes that may arise between Customer and any of TrainHQ's other customers, partners, vendors, resellers, and distributors with respect to such Training Programs, or for any infringing Content that Customer uses in connection with its Training Programs.

3.4. Customer Obligations

3.4.1. General Responsibilities

Customer is responsible for (i) all Customer Data uploaded, posted, transmitted, or otherwise disseminated using the Services, including the legal acquisition and use of Customer Data; (ii) maintaining secure access to the Services and Customer Data, and promptly notifying TrainHQ of any unauthorized use or access; (iii) maintaining reasonable security mechanism with respect to issuance of User identification and password information, and any other personal information transmitted to or through, stored on, published or otherwise made available to, or disseminated by the Services; (iv) downloading, exporting, and maintaining copies of all Customer Data and Content uploaded to or produced using the Training Program; (v) any and all activities that occur under Customer's account, including all actions and omissions of Users; (vi) complying with all applicable laws and regulations, including relevant data privacy and data security laws; and (vii) properly configuring the Services in accordance with the Documentation.

3.4.2. Training Program Users

Customer is responsible for Training Program Users' use of all Training Programs. If Customer becomes aware of any violation of its obligations under this Agreement by any Training Program User, Customer will immediately suspend access to the Training Program by such Training Program User. Customer is responsible for providing any customer service to Training Program Users. TrainHQ does not provide any support services to Training Program Users, unless otherwise agreed to in writing by TrainHQ.

4. SUPPORT

4.1. Scope

Subject to the terms and conditions of this Agreement, TrainHQ will provide Customer with technical support as provided below during the Subscription Term.

4.2. Availability and Technical Support

TrainHQ will provide telephone support for the Services to Customer during the hours of 9:00am to 5:00pm Central European Time (CET), Monday through Friday, excluding German public holidays. Such support will include initial configuration support and ongoing technical support for Customer. For additional support outside of these hours, email support will be made available to Customer.

5. FEES AND PAYMENT TERMS

5.1. Fees

Customer will pay to TrainHQ, without deduction, the Fees set forth in the applicable Order. Fees listed in an Order are exclusive of Value Added Tax (VAT). Customer will pay or reimburse TrainHQ for all applicable taxes, duties, or any similar assessments imposed by applicable law incurred on the Order (except for TrainHQ's income taxes) and such taxes, duties, or any similar assessments shall be charged at the appropriate rate by TrainHQ in addition to its stated Fees and shall be shown separately on the relevant invoice. Fees may increase upon written notice from TrainHQ provided at least 60 (sixty) days prior to the renewal of the next subscription period.

5.2. Payment

All Fees herein are payable to TrainHQ, and due within the term defined in the applicable Order. Except as otherwise stated in this Agreement, all Orders are non-cancelable and, upon payment, all payments are non-refundable. All payments will be made via SEPA transfer to TrainHQ's designated bank account unless otherwise directed by TrainHQ.

5.3. Overdue Payments

Undisputed overdue payments shall bear interest at the rate specified in the German Law on Late Payments (currently 9 percentage points above the base interest rate). The non-payment of any undisputed Fees within the term defined in the applicable Order constitutes a material breach of this Agreement by Customer and TrainHQ shall have the right to: (i) upon 30 (thirty) days prior written notice, suspend Customer's right to access or use any portion or all of the Services until all such due and undisputed amounts and respective interests have been paid; and/or (ii) exercise its right to terminate the Agreement under Section 10 ("Term and Termination").

6. INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP AND TITLE

6.1. TrainHQ's Intellectual Property

Customer acknowledges and agrees that all Intellectual Property rights in and to the Services and Service Date are owned by TrainHQ and shall, notwithstanding the terms of this Agreement, remain vested in TrainHQ. Unless otherwise expressly provided in this Agreement, Customer shall not acquire any proprietary right, title or interest in or to any Intellectual Property rights in the Services or Service Data. All rights not expressly granted by TrainHQ herein are reserved.

6.2. Customer's Intellectual Property

Subject to Section 10.6 hereof, all Intellectual Property rights in and to Customer's developed Training Programs and Customer Data are owned by Customer and shall, notwithstanding the terms of this Agreement, remain vested in Customer. Unless otherwise expressly provided in this Agreement, TrainHQ shall not acquire any proprietary right, title or interest in or to any Intellectual Property rights in Customer's developed Training Program.

6.3. Customer's Data and Training Programs

As necessary for TrainHQ to provide Customer with the Services and limited to such purpose only, Customer hereby grants to TrainHQ the right and a license to host, copy, transmit, adapt and securely display Customer Data and Training Programs in accordance with this Agreement during the Subscription Term, plus any additional post-termination period during which TrainHQ provides Customer with access to retrieve an export file of Customer Data, if applicable. Subject to the limited licenses granted herein, TrainHQ acquires no right, title or interest from Customer or its licensors under this Agreement in or to any of Customer's Training Programs or Customer Data.

6.4. Service Data

Notwithstanding anything to the contrary, TrainHQ shall have the right to monitor, collect and analyse data, content and other information relating to the provision, use, access and performance of various aspects of, and interactions with, the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom, as well as any feedback provided to TrainHQ), and TrainHQ will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other operational, learning, development, diagnostic, and corrective purposes in connection with the Services and other TrainHQ offerings, and (ii) disclose such data solely in aggregate or other de-identified or anonymised form in connection with its business (collectively, the "Service Data"). Notwithstanding the foregoing, Customer will retain ownership of all Customer Data.

6.5. License to Use Suggestions

Customer grants to TrainHQ and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of such Services.

7. THIRD PARTY CONTENT

7.1. No Liability for Third Party Content

As part of certain Services offerings, to the extent Customer uses the Content of a third party owner, author or provider that retains all ownership and Intellectual Property rights in and to that Content ("Third Party Content"), Customer's is solely responsible to ensure it has cleared all rights to use such Content and understands the terms applicable to such Third Party Content as specified by such third party owner, author or provider. TrainHQ will not be responsible or liable in any manner for such Third Party Content. TrainHQ hereby disclaims any and all warranties regarding the Services to the extent Customer's misuse of any Third Party Content.

8. CONFIDENTIALITY

8.1. Use and Disclosure

During this Agreement and following its termination, each Party shall hold in confidence and not use for any purposes unrelated to this Agreement or disclose to any third party (except the Party's employees, agents or contractors who are not competitors of TrainHQ and have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party, using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). Each Party agrees to take all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by its employees, contractors, or agents in violation of the terms of this Agreement.

8.2. Permitted Disclosures

Either Party may disclose Confidential Information of the other Party either: (i) in response to a valid order by a court or other governmental or regulatory body, or (ii) as otherwise required by law, or (iii) as necessary to establish the rights of either Party under this Agreement. Disclosing Party will promptly give notice to the receiving Party of such compelled disclosure and allows receiving Party to object or to seek a protective order, to the extent legally permitted.

8.3. Non-Confidential Information

The Parties shall not be obligated under this Section 8 ("Confidentiality") with respect to Confidential Information that: (i) is or becomes a part of the public domain through no act or omission of the receiving Party; (ii) was in the receiving Party's lawful possession without restriction prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the receiving Party by a third party without restriction on the disclosure; or (iv) is independently developed by the receiving Party without access to the Confidential Information.

9. DATA PROTECTION AND SECURITY

9.1. Data Protection

Each Party shall comply with all applicable laws and regulations regarding the processing of Personal Data, including but not limited to the GDPR. The Parties acknowledge that, for the purposes of the GDPR, Customer is the Data Controller and TrainHQ is the Data Processor of any Personal Data processed by TrainHQ on behalf of Customer in connection with the provision of the Services.

9.2. Data Processing Terms

The Parties agree to comply with the Data Processing Agreement attached as Exhibit A to this Agreement, which sets out the scope, nature, purpose, and duration of processing, as well as the types of Personal Data and categories of data subjects. The terms of the Data Processing Agreement shall apply to all processing of Personal Data by TrainHQ on behalf of Customer.

9.3. Data Security

TrainHQ will maintain administrative, physical, and technical industry-standard measures, protocols and safeguards for protection of the security, confidentiality and integrity of Customer Data stored on, processed or provided by Customer to the Services. Those measures and safeguards will include, but will not be limited to, measures designed to prevent unauthorized access, acquisition, use, modification or disclosure of Customer Data by TrainHQ's personnel and other third-parties except (a) to provide the Services and prevent or address problems, (b) as compelled by law in accordance with Section 8.2 ("Permitted Disclosures"), or (c) as Customer expressly permits in writing.

9.4. Data Breach Notification

In the event of a personal data breach (as defined in the GDPR) affecting Customer's Personal Data, TrainHQ shall notify Customer without undue delay after becoming aware of the breach and shall provide reasonable assistance to Customer in relation to Customer's obligations under applicable data protection laws.

9.5. Customer's Security and Redundancy

TrainHQ recommends that Customer use strong security and redundancy features, such as access controls, encryption and backup. Customer is responsible for properly configuring and using the Services in a manner that provides security and redundancy of Customer's account, Training Programs and any Training Program Users' data, such as, for example, using enhanced access controls to prevent unauthorized access to Customer's accounts, using encryption technology to prevent unauthorized access to any personal information, and ensuring the appropriate level of backup to prevent loss of personal information.

10. TERM AND TERMINATION

10.1. Term of Agreement

Unless earlier terminated pursuant Sections 10.2 ("Termination for Cause") or 10.3 ("Termination for Insolvency"), this Agreement commences on the Effective Date and continues in force until all Orders granted in accordance with this Agreement have expired or been terminated.

10.2. Termination for Cause

Either Party will have the right to terminate this Agreement immediately upon written notice at any time if the other Party is in material breach of any warranty, term, condition or covenant of this Agreement and fails to cure that breach within 30 (thirty) days after written notice of that breach.

10.3. Termination for Insolvency

Either Party may terminate the Agreement immediately if the other Party becomes insolvent.

10.4. Effect of Termination

Upon termination, the subscriptions shall be automatically cancelled and thus Customer shall no longer have access to the Services of the terminated subscriptions or Training Programs. If TrainHQ terminates this Agreement pursuant to Sections 10.2 ("Termination for Cause") or 10.3 ("Termination for Insolvency"), TrainHQ shall invoice Customer all amounts that have accrued for the terminated items prior to such termination, which were not previously invoiced, as well as all sums remaining unpaid under this Agreement. Customer will pay such invoices in accordance with the terms of this Agreement. In no event will termination relieve Customer of the obligation to pay any Fees payable to TrainHQ.

10.5. Data Return and Deletion

Upon Customer's request made within 30 days following the effective date of termination, TrainHQ will make Customer Data available to Customer for export or download. After this 30-day period, TrainHQ will have no obligation to maintain or provide any Customer Data, and may delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

10.6. Loss of Training Programs and Materials

TrainHQ shall have no obligation or liability with respect to any Training Programs and materials developed by Customer using the Services and any Customer Data hosted on the Services. Upon termination of this Agreement, all Training Programs and materials developed by Customer using the Services and hosted on Services may be permanently lost. TrainHQ has no obligation to continue to store, or to return to Customer or destroy any such Training Programs, materials and Customer Data beyond the period specified in Section 10.5 ("Data Return and Deletion").

11. WARRANTIES

11.1. TrainHQ Warranties

TrainHQ warrants that (i) it has the full power to enter into this Agreement and to perform its obligations hereunder; and (ii) it has the right to grant the rights and licenses contemplated by this Agreement. Customer recognizes that (a) artificial intelligence ("AI") is an emerging technology and is subject to errors, inconsistencies, and potentially harmful output, and the Services, including AI Role-Play Simulations, that rely on the use of AI or generative-AI software and algorithms may sometimes provide inaccurate, incomplete or offensive content, for which TrainHQ does not assume any responsibility or liability, and (b) Customer is responsible for providing and uploading Customer Data to the Services and Training Programs and is responsible for independently verifying the results of the Training Programs. Customer agrees to use discretion before relying on, publishing, or otherwise using content provided by the Services or Training Programs.

11.2. Customer Warranties

Customer warrants that (i) it has the full power to enter into this Agreement and to perform its obligations hereunder; (ii) it has the right to grant the rights and licenses contemplated by this Agreement; and (iii) it will comply with all applicable laws and regulations, including relevant data privacy and data security laws. Customer further warrants that (a) it has complied and will continue to comply with all applicable laws and regulations in its collection, use and provision to TrainHQ of the Customer Data, (b) that it has the right to provide the Customer Data to TrainHQ, (c) and that TrainHQ's processing, transfer, storage and/or use of the Customer Data as provided in this Agreement will not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.

11.3. Limited Warranty

TrainHQ warrants that the Services will operate substantially in accordance with the applicable Documentation during the Subscription Term. If the Services do not conform to this warranty, TrainHQ will, at its option and at no additional cost to Customer, use commercially reasonable efforts to correct the non-conformity or replace the non-conforming Services with conforming Services. If TrainHQ is unable to correct such non-conformity or replace the Services within a reasonable time, Customer may terminate the applicable Order and TrainHQ will refund to Customer any prepaid fees covering the remainder of the Subscription Term for the non-conforming Services.

11.4. Disclaimer of Warranties

EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRAINHQ PROVIDES THE SERVICES "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THIS DISCLAIMER DOES NOT AFFECT ANY LEGAL RIGHTS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER'S PRIVACY, CONFIDENTIAL INFORMATION, CUSTOMER DATA AND/OR CONTENT. CUSTOMER SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS AND OWNERSHIP OF ALL CUSTOMER DATA, CONTENT AND TRAINING PROGRAMS.

12. LIMITATION OF LIABILITY

12.1. Unlimited Liability

NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR:

(A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS;

(B) FRAUD OR FRAUDULENT MISREPRESENTATION;

(C) BREACH OF THE TERMS IMPLIED BY SECTION 2 OF THE SUPPLY OF GOODS AND SERVICES ACT 1982 (TITLE AND QUIET POSSESSION);

(D) DAMAGES ARISING FROM INTENTIONAL ACTS OR GROSS NEGLIGENCE;

(E) LIABILITY UNDER THE GERMAN PRODUCT LIABILITY ACT (PRODUKTHAFTUNGSGESETZ); OR

(F) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

12.2. Limited Liability

SUBJECT TO SECTION 12.1, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, FOR ANY INDIRECT OR CONSEQUENTIAL LOSS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.

12.3. Liability Cap

SUBJECT TO SECTIONS 12.1 AND 12.2, EACH PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 (TWELVE) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

13. GENERAL PROVISIONS

13.1. Entire Agreement

This Agreement, including all exhibits, addendums and Orders, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed or electronically accepted by a duly authorized representative of both Parties. In the case of conflicts, discrepancies, errors or omissions among the body of this Agreement, exhibits, addendums and any Orders, such documents and amendments to them shall take precedence and govern in the following order: (a) Order, (b) addendum, (c) exhibit, and (d) the body of this Agreement.

13.2. Governing Law and Jurisdiction

This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the Federal Republic of Germany without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the Federal Republic of Germany to the rights and duties of the parties. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

13.3. Dispute Resolution

In the event of any dispute, controversy or claim arising out of or relating to this Agreement, the Parties shall first attempt to resolve the matter amicably through good faith negotiations. If the dispute cannot be resolved through negotiation, either Party may initiate court proceedings. The courts of [HIGHLIGHT: Insert German City] shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation. Notwithstanding the foregoing, each Party may seek interim injunctive relief in any court of competent jurisdiction.

13.4. Alternative Dispute Resolution

Prior to initiating court proceedings, the Parties may agree to submit any dispute to mediation in accordance with the mediation rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V., DIS). Unless otherwise agreed, the seat of mediation shall be [HIGHLIGHT: Insert German City].

13.5. Export Laws

Customer agrees that the applicable export and import laws govern Customer's use of the Services, including related Documentation. Customer agrees that neither the Services nor any direct product thereof will be downloaded, exported or re-exported, directly, or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, (i) into any country subject to EU or UN embargo or sanctions, or (ii) to anyone on the EU sanctions list or similar restricted parties lists. Customer represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list.

13.6. Indemnification by TrainHQ

TrainHQ will defend or settle, at its option and expense, any third-party claim brought against Customer to the extent that it is based on an allegation that Customer's use of the Services as permitted under this Agreement infringes a patent, copyright, or trademark or misappropriates a trade secret of any third party (each, a "Customer Claim"), and, subject to Section 12, TrainHQ will pay all damages and costs (including reasonable legal fees) finally awarded by a court of final appeal, or pursuant to a court-approved settlement thereof, resulting from such Customer Claim, provided that Customer a) promptly gives TrainHQ written notice of the Customer Claim; (b) gives TrainHQ sole control of the defense and settlement of the Customer Claim (provided that TrainHQ may not settle any Customer Claim unless the settlement unconditionally releases Customer of all liability); and (c) provides to TrainHQ all reasonable assistance, at Customer's expense. In the event of a Customer Claim or if TrainHQ believes the Services may infringe or misappropriate, TrainHQ may in its discretion and at no cost to Customer (i) modify the Services so that they no longer infringe or misappropriate, while retaining substantially equivalent functionality, (ii) obtain a license for Customer's continued use of the Services in accordance with this Agreement, or (iii) terminate Customer's subscriptions to the Services with a pro-rata refund of prepaid fees for the remainder of the Subscription Term. Notwithstanding the foregoing, TrainHQ has no obligation to indemnify, defend or settle a Customer Claim to the extent that: (a) the Services are altered or modified by anyone other than TrainHQ, or used outside the usage and other limitations identified in the Order, Documentation or this Agreement; (b) an infringement claim is based upon any software, design, specification, instruction, data or other material or Content not furnished by TrainHQ; or (c) to the extent an infringement claim is based upon the combination of the Services with any products, data or services not provided to Customer by TrainHQ, including Customer Data. The foregoing states TrainHQ's sole liability and Customer's exclusive remedy for any type of Customer Claim described in this paragraph.

13.7. Indemnification by Customer

Customer will defend TrainHQ against any third-party claim made or brought against TrainHQ or its Affiliates to the extent that (i) it is based on an allegation that Customer's Training Programs or Customer's development, design, production, marketing, offering, or use of the Training Program, Customer Data, or Customer's use of the Services in violation of this Agreement, infringes a patent, copyright, or trademark, misappropriates a trade secret of any third party or violates the privacy rights of any User, third-party, or natural person; (ii) Customer's or any User's or Training Program User's use of or access to the Services or any Training Program causes or results in a data breach, resulting in the unauthorized access to or acquisition of personal information; (iii) it results from Customer's breach of any representation, warranty or covenant in this Agreement; or (iv) it results from any dispute between Customer and any Training Program User (each, a "Claim"), and will indemnify TrainHQ for all damages and costs (including reasonable legal fees) finally awarded by a court of final appeal, or pursuant to a court-approved settlement thereof, resulting from such Claim, provided that TrainHQ a) promptly gives Customer written notice of the Claim; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally releases TrainHQ of all liability); and (c) provides to Customer all reasonable assistance, at Customer's expense.

13.8. Compliance Audit Rights

During the term of this Agreement and for a period of 1 (one) year following its termination, Customer shall keep all its records relating to its usage of the Services and TrainHQ may inspect and review Customer's records to verify compliance with the grant of rights to use the Services, usage limits, restrictions, payment obligations and other terms and conditions of this Agreement. TrainHQ shall provide Customer with 30 (thirty) days advance written notice of such compliance check. Customer agrees to cooperate with the compliance check, and provide TrainHQ with reasonable assistance and access to information. Any such audit will be performed at TrainHQ's expense, provided, however, that Customer shall promptly reimburse TrainHQ for the cost of such audit and any applicable fees if such audit reveals an underpayment by Customer of more than 5% of the Fees payable by Customer to TrainHQ for the period audited. In addition to any other remedies available to it, if such audit reveals underpayment by Customer and Customer fails to promptly reimburse TrainHQ, TrainHQ can immediately terminate this Agreement and Customer's use of the Services.

13.9. Notices

Any notice, consent, approval, or other communication intended to have legal effect to be given under this Agreement ("Notices") must be in writing and shall be deemed to be have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided that email shall not be sufficient alone for notices of termination or claims for indemnification). All notices to Customer will be addressed to the system administrator designated by Customer on its account.

13.10. Relationship of Parties

The Parties are independent contractors, and not agents, employees or joint ventures of one another, and do not have any authority to bind the other Party by contract or otherwise to any obligation. Neither Party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.

13.11. No Third-Party Beneficiaries

There are no third-party beneficiaries to this Agreement.

13.12. Assignment

This Agreement (including each Party's rights and obligations) is not assignable or transferable by either Party without the prior written consent of the other Party, which shall not be unreasonably withheld. Any attempt by either Party to assign or transfer this Agreement without such consent shall be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement in its entirety (including all Orders) to its Affiliate or as a result of a merger, acquisition, corporate reorganization, or a sale of all or substantially all of its assets. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions, as well as the existing Orders shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the Parties hereto. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.13. Severability

If any provision of this Agreement is unlawful, void or for any reason declared unenforceable by any court of competent jurisdiction, that provision shall be deemed severable from, and shall in no way effect the validity or enforceability of, the remaining provisions.

13.14. Force Majeure

No Party shall be liable for, or considered to be in breach of this Agreement on account of, any failure or delay in performance of any of its obligations hereunder (except for the payment of money) if such failure or delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection, intervention of any government or authority or any other reason where the failure to perform is beyond the reasonable control of and not caused by the negligence or intentional acts or omissions of the non-performing Party.

13.15. No Waiver of Rights; Cumulative Remedies

The failure of either Party to enforce any of the provisions of this Agreement, or the failure to require performance by the other Party of any of the provisions of this Agreement, shall not be construed to be a present or future waiver of such provisions, nor affect the validity of either Party's right to enforce such provision in future. The remedies provided in this Agreement are in addition to any other remedies at law or in equity, except as expressly provided otherwise herein.

13.16. Survival

Sections 3.2 ("Restrictions of Use"), 6 ("Intellectual Property Rights, Ownership and Title"), 7 ("Third Party Content"), 8 ("Confidentiality"), 9 ("Data Protection and Security"), 10.4 ("Effect of Termination"), 11.4 ("Disclaimer of Warranties"), 12 ("Limitation of Liability"), and 13 ("General Provisions") of this Agreement shall survive termination, without prejudice to other obligations that, pursuant to the applicable law or to this Agreement, shall also remain in force after the termination date.

13.17. Language

This Agreement is made in the English language, which shall be the binding and controlling language for all matters relating to the meaning or interpretation of this Agreement. Any translation of this Agreement into another language shall be for convenience only and shall not be binding.

13.18. Right of Withdrawal

If Customer is considered a consumer under applicable law, Customer has the right to withdraw from this Agreement within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of the conclusion of the Agreement. To exercise the right of withdrawal, Customer must inform TrainHQ of its decision to withdraw from this Agreement by an unequivocal statement to the following email address: info@trainhq.ai. To meet the withdrawal deadline, it is sufficient for Customer to send its communication concerning its exercise of the right of withdrawal before the withdrawal period has expired.

13.19. Electronic Signatures

The Parties agree that electronic signatures shall be valid and binding on all Parties to the same extent as original signatures. Any document related to this Agreement may be signed electronically and shall be deemed duly executed.